Criminal Law Section -- Exquisite Essays on Republican Era Legal Studies (Volume 4) (Volume 4)

Author: He Qinhua
Publisher:
Publishing Date: 2004-12-01
Features: The criminal law serves the people, and it is also intended to benefit the people. What is meant by benefiting the people? It means being suitable for the times. Since the Qing Dynasty, our country's criminal code has undergone several revisions. The criminal law was established in the late Qing Dynasty, but after the establishment of the Republic of China, it was deemed unsuitable for the national system. Moreover, with the continuous evolution of affairs, those who studied the law gradually found it unsuitable for the times. Thus, the criminal law was transformed into criminal law. Since its promulgation in 1929, it has been in practice for only five or six years. Last year, the Legislative Yuan, citing the hasty promulgation and insufficient deliberation of the current criminal law, drafted a preliminary version of the criminal law amendment in December of last year.
From the perspective of legal stability, frequent amendments are not advisable. However, the fundamental principle of law lies in its suitability to social needs. As the foundation of society has developed, its legal relationships must inevitably evolve accordingly. Particularly in China's revolutionary process, which seeks to break away from feudal society and prevent capitalism while advancing toward a utopian society, the mission of law is even more profound. Beyond adapting to the demands of the times, law must also promote social progress. Therefore, despite multiple amendments, the criminal law has proven to be a testament to the evolution of society and revolution.
Since the French Revolution of 1810, criminal systems have transitioned from arbitrary to statutory principles. The difference between the criminal law and the Qing Dynasty's criminal code lies in the contrast between monarchy and democracy. Other fundamental principles have remained unchanged. Although the current criminal law is formally a product of the Three Principles of the People, in reality, its amendments merely compile previous revisions, with most of its content still derived from the Qing Dynasty's criminal code. Many shortcomings were present during its drafting, so its amendments have primarily involved organization and refinement.
From the Qing Dynasty's criminal code to the preliminary draft of the criminal law amendment, numerous revisions have been made. Each amendment represents progress, a fact as evident as the preliminary draft of last year, which was revised based on the Three Principles of the People. It upholds the principle of gender equality, for example, stipulating that both spouses should uphold chastity after marriage. According to the current criminal law's Article 256, only married women who commit adultery are punished, while married men are not, which contradicts the spirit of gender equality. The preliminary draft of the criminal law amendment, however, stipulates that individuals in a marital relationship should be punished under Article 228, making both spouses equally responsible for chastity, which is only natural. This is one aspect of the evolution of the criminal law.
However, the construction of a new China based on the Three Principles of the People is still ongoing, and the creation of its legal culture requires future efforts. To create a legal culture aligned with the Three Principles of the People, it is necessary to first complete the social organization based on these principles. Without such an organization, even if the law advances, it may still be impractical. Therefore, the draft criminal law during this revolutionary process must align with the conditions and qualifications of future Chinese criminal law, ensuring it adheres to the principles of the Three Principles of the People without contradicting reality.
Law must be socialized within a specific society and applied to certain legal systems. In a given era, it must be based on certain principles, a point scholars must not overlook. Moreover, law reflects the socio-economic system. Under certain socio-economic systems and cultural stages, if the fundamental conditions are not mature, neither legal thought nor legal forms can change. Once the material foundation advances and a new class emerges, new relationships within the organization will naturally reflect in contemporary concepts.
Currently, the economic systems of most countries have evolved from primitive communism to private property systems, even the imperialist class today. Their reflection in the history of legal evolution varies with time and space, but all legal evolution processes are governed by the same principles and share common elements with socio-economic changes. This is because, according to general scholarly views, legal evolution progresses from unwritten to written law, from secret to public law, from an obligation-based to a right-based system, and from the precedence of public law over private law.
From this perspective, the evolution of criminal law not only involves transitioning from unwritten to written law and from secret to public law but also originates and evolves before private law. The evolution of criminal law and its theory follows a path from a reactive retributionist approach to a conscious purpose-oriented approach, from general prevention to subjective special prevention. Modern criminal law is now dominated by purpose-oriented and special prevention principles.
In primitive times, the relationship between punishment and society had two aspects: internal and external. Internally, tribal leaders had the authority to govern and punish their subordinates, similar to how modern heads of families govern their families. Externally, inter-tribal revenge resembled modern warfare. In form, it is more appropriate to consider the internal regulation of tribes as the origin of modern criminal law rather than their external revenge. However, the boundaries between tribes were not fixed, often forming larger tribes through the union of smaller ones. Thus, the external relations of smaller tribes simultaneously became internal issues for larger tribes. Therefore, external revenge was one aspect of criminal law, recognized by general scholarship as the retaliatory response between individuals or families.
In ancient times, tribes lived in groups, with bloodline groups as the basic units. If a tribe suffered harm from another, the entire tribe had the right and obligation to seek revenge. Individual actions were constrained by the tribe, and violations led to tribal punishment. Thus, the form of punishment was primarily based on bloodline struggles between tribes. Over time, as tribes gradually united, larger and larger tribes increasingly restricted internal revenge among families or bloodlines to maintain order and interests. The demand for new legal norms arose, and internal revenge within larger tribes was thus limited. This limitation on internal struggles became the prototype of legal norms, marking the gradual evolution of criminal law culture.
Criminal law originated from the initial act of revenge, rooted in individual feelings of retribution. At that time, revenge was unrestricted by third parties. As production gradually developed and centralized authority was established, revenge evolved with restrictions, such as being limited in scope and requiring public approval. People then recognized that crime not only harmed individual interests but also the collective interest, so these restrictions were imposed to transform private force into public authority and guide the path toward conscious reflection.
As a result of social evolution and the development of commerce, bloodshed-based revenge gradually lost value, and effective revenge methods transitioned from bloodshed to compensation. Initially, parties could freely choose between revenge or compensation, which became a legal obligation. Today, compensation for damages has evolved, with the amount determined by law. In the later stages of revenge, as state power developed, criminal acts became irredeemable, distinguishing them from redeemable crimes. This was because criminal acts had a significant relationship with both the state and society.
Although state power had grown, a portion of compensation rights was retained by the monarch, so compensation amounts were often divided equally between the monarch and the victim. Over time, these amounts diverged, eventually becoming independent, leading to the development of the fine system and the separation of civil and criminal liabilities. In essence, the evolution of revenge was shaped by changes in the subjects exercising the right of revenge. The earlier changes referred to evolution, as the initial subjects of revenge were individuals or families. Today, state criminal power has become the center of criminal thought, as criminal power is one aspect of governance, a right the state inherently possesses.
To maintain its existence, the state establishes governance, which is the lifeblood of the state, and criminal power is the state's authority. Without authority, the state cannot exist, and with criminal power, criminal law arises. Regarding the progress of criminal law culture, as previously discussed, it has moved from the era of revenge to the era of deterrence. The purpose of criminal deterrence, from a sociological perspective, is that the state system at that time was not yet fully developed, and its foundation was unstable, often prone to collapse. To safeguard its long-term stability, the state had no room to spare for individual human dignity.
From a socio-economic perspective, production at that time was still in the handicraft era, with individual productivity weaker than in the industrial era. Consequently, individual dignity could not be fully recognized. Moreover, the feudal economic system was a slave economy, where producers and the ruling class had a master-servant relationship. Thus, brutal deterrence was necessary to maintain control. After the Crusades, various social classes emerged, including the unemployed and vagrants, forming a criminal class. The existing compensation system had become ineffective for them, so measures like physical punishment and death sentences were introduced to suppress the working class, and the compensation system was largely abandoned. Redeemable crimes also became irredeemable.
During this era, event handling was dominated by arbitrary authority, with national codes merely orders from higher to lower authorities. The determination of crimes and punishments was left to the discretion of enforcers. Citizens could not appeal based on law, nor could they know the content of the law in advance. Litigation followed an inquisitorial system, relying on the free judgment of judges, leading to unfair and biased application of punishments.
Later, with the development of production methods, individual consciousness grew, demanding the rule of law in politics and freedom in society. The principle of criminal legality emerged alongside the success of the third-class revolution. By the late 18th century, the superiority of capitalist economic systems over feudal ones had overcome feudal structures, and the desire for freedom became a common goal in intellectual circles. The doctrine of inborn human rights also became a fundamental principle of political construction. Thus, the theory that individuals exist for the state and the state exists for individuals became the standard for critiquing various systems.
Freedom, equality, and fraternity became the highest ideals of society, and brutal punishment systems underwent significant reforms, ushering in the era of fraternity. During this period, enforcers could punish criminals without legal basis, freely interpreting laws, and even supplementing laws when unclear, allowing judges to impose death sentences arbitrarily even when there was no legal provision. However, after the French Revolution, the trend toward freedom, equality, and fraternity emerged, leading to demands for clearly stipulated criminal laws, requiring punishment only according to law. From then on, wherever free thought spread, the principle of criminal legality was adopted.
Moreover, due to the differences in status between feudal lords and serfs, criminal law adopted arbitrary authority, imposing differential treatment based on status, making citizens unequal under the law. Thus, the principle of equivalent punishment for equivalent crimes emerged. However, this principle also faded with social evolution. As the principle of equivalence began to be incorporated into planned economies, criminal law's goal of defending society no longer relied solely on judicial execution. Instead, measures like procedural hesitation, sentencing hesitation, probation, suspended sentences, and parole were introduced to avoid harsh judgments, delay executions, and shorten sentences. Thus, crimes of the same nature did not necessarily receive the same punishment, nor did equal sentences necessarily lead to equal enforcement. The severity of punishment was determined by circumstances, at the discretion of judges, not pre-specified by law. The standard for such discretion was whether it served the purpose of protecting society, leading to the decline of the principle of equivalent punishment.
The suppression of crime ultimately lies in eliminating its causes, which exist not only in individuals but also in the environment. To effectively suppress crime, its causes must be identified before determining measures, making the establishment of criminal policy the cornerstone of modern criminal law.
At the turn of the 20th century, with the success of the Bolshevik Revolution in Russia, the world's socio-economic systems formed a dichotomy between capitalist and Soviet criminal cultures. The aforementioned modern capitalist criminal law represents only one aspect of modern criminal culture. Now, let us consider the principle of criminal legality based on individualism: In the 1927 Soviet criminal code, individualism in criminal legality was not only completely lost but also allowed for analogical interpretation for the purpose of defending society. In contrast, the capitalist ideal of harmonizing the individual and society could not be compared to this.
In capitalist countries, criminal legality was the foundation of early capitalism, while educational criminalism was its product. In the Soviet Union, there was only unified class action, with no individual freedom, especially for a capitalist-oriented criminal legality that served as a historical mission. It was clearly detrimental rather than beneficial to the formation of a communist society, leaving no room for criminal legality in Soviet criminal law. However, as its goal was the formation of a communist society, any obstacle to its ideal could be punished by analogy even without explicit legal provisions, becoming a feature of Soviet criminal law at that stage.
Today, capitalist criminal law and Soviet criminal law differ in principles, and thus in purpose. So, what similarities does China share with either? Our country is founded on the Three Principles of the People, whose revolutionary goal is to liberate feudal society. The Three Principles of the People revolution is not for the third or fourth class but is related to them. Therefore, the criminal law during this process shares similarities with capitalist countries but also resembles socialist criminal law. However, like the Soviet Union's current criminal law, which serves the purpose of communism, the Three Principles of the People's ideal in China is merely a transitional means.
Thus, China's criminal law during the current stage of the Three Principles of the People revolution not only embodies the crystallization of both "individual consciousness" and "social discovery" but also carries the nature of the revolutionary process, with the mission of promoting and completing the utopian society.