Criminal Law Forum · Volume 8

Author: Gao Mingxuan Zhao Bingzhi
Publisher:
Publish Date: 2004-12-01
Features: The 8th volume of Criminal Law Forum publishes 18 papers, covering various fields of criminal law such as Chinese criminal law, foreign criminal law, comparative criminal law, regional criminal law, and international criminal law. It includes both foundational and speculative in-depth theoretical research in criminal law and pioneering explorations into significant practical issues in judicial practice. The volume features substantial long essays as well as insightful short articles, along with valuable informational and reference materials.
The "Chinese Criminal Law" section includes 8 papers. Among them, the article "A Study on the Judicial Implementation of the Principle of Proportionality Between Crime and Punishment" by Judge Zhang Yi first reveals the main problems in the application of criminal punishment in judicial practice and conducts an in-depth analysis of the causes hindering the judicial realization of the principle. On this basis, the author elaborates on the basic ideas for constructing a standard system for the judicial realization of the principle and proposes concrete concepts for establishing a sentencing balance mechanism and a sound judicial operation environment. The article "On the Status of the Principle of Unity of Subjective and Objective Elements" by Associate Professor Nie Lizhe systematically examines the different views in the Chinese criminal law academia regarding the status of the principle of unity of subjective and objective elements and the criteria for establishing criminal law principles. The author argues that, in terms of content, the principle of unity of subjective and objective elements belongs to the principles of criminal liability and runs through the entire process of conviction, sentencing, and execution of criminal punishment. In terms of function, the principle plays a dominant role in criminal law legislation, revision, interpretation, and judicial practice, thus meeting the criteria for establishing criminal law principles and should be recognized as a fundamental principle of Chinese criminal law. The article "On the Effectiveness of Foreign Criminal Judgments in China" by Associate Professor Su Caixia, after analyzing the effectiveness and development trends of foreign criminal judgments, rationally reflects on Article 10 of China's Criminal Law and advocates for the conditional and active recognition of the effectiveness of foreign criminal judgments in China. The article "Personality Danger is Also the Basis for Criminal Liability Attribution" by Professor Li Xihui and Doctor Tong Weihua first introduces the evolution of relevant theories abroad and focuses on exploring the views in Chinese criminal law academia. Based on this, the authors argue that the personality danger of the perpetrator and the social harm of the act are both bases for criminal liability attribution. The article "On Joint Liability" by Doctors Zhang Zhongbin and Zhao Hui analyzes the connotation and function of joint liability and specifically studies in-depth issues such as the formation, detachment, and overlap of joint liability, offering theoretical insights. The article "Reconstruction of the Purpose of Punishment" by Professor Han Yi, after analyzing the limitations of the monistic, dualistic, and two-tiered theories of the purpose of punishment, attempts to reconstruct China's theory of the purpose of punishment. The author argues that the purpose of punishment is a complete whole, a unified hierarchy, and can be divided into three levels in China: punishing crimes, preventing crimes, and protecting legal interests, which are mutually progressive and deepening. The article "A Socio-Cultural Analysis of Security Measures" by Professor Xu Famin first discusses the basic issues of the concept and scope of security measures and then examines the system from the perspectives of socio-empirical culture and socio-legal culture. The author argues that the popularity of security measures is closely linked to socio-empirical culture, and the criminal legislative implementation of security measures aligns with the cultural spirit and institutional requirements of a rule-of-law state. The article "Legal Transplantation and the Transformation of Chinese Criminal Law in the Republican Period" by Associate Professor Li Xiucheng analyzes the specific implementation of adhering to global criminal law trends and transplanting foreign criminal systems in the Republican period, taking two amendments and two criminal codes as examples.
The "Foreign Criminal Law" section publishes the article "Intent, Dilemma, and Solutions: On the Theory of Constituent Elements in the Civil Law System" by Professor Liu Yanhong. The author points out that the intent behind the constituent element theories proposed by scholars at different times is essentially to closely link the constituent elements with the concept of illegality. However, due to the complexity of the theory of illegality and the resulting complexity of illegality determination, even in modern criminal law theories that treat constituent elements as types of illegality, despite our efforts to closely link them, there remains a problem between the determination of constituent element applicability and illegality determination. In light of this, the author advocates for the promotion of an open concept of constituent elements.
The "Comparative Criminal Law" section is a column that studies criminal law from the perspective of comparative analysis. This volume includes two articles in this section. The article "A Comparative Study on the Issue of Fleeing After Causing a Traffic Accident" by Doctor Xu Chenglei first explores the significance of fleeing after causing a traffic accident in criminal law and reveals the conditions for its formation. On this basis, the author conducts an in-depth analysis of whether such behavior constitutes abandonment of duty or even murder. The article "A Comparative Study on the Crime of Obstructing Public Administration" by Associate Professor Zhao Zuojun first introduces the two legislative models of the crime of obstructing public administration and then explores the object, method, and subjective intent of the crime.
The "International Criminal Law" section publishes two articles. The article "On Terrorism Crimes and Their Legal Control" co-authored by Professor Mo Hongxian and Doctor Wang Mingxing first defines the concept of terrorism crimes and then analyzes their characteristics, followed by a discussion on the legal control of terrorism crimes. The article "A Study on the Provisions Regarding the Relationship Between the International Criminal Court and the United Nations Security Council in the Rome Statute" by Zhou Lulu from the Legal Department of the Ministry of Foreign Affairs examines the provisions in the Rome Statute regarding the relationship between the International Criminal Court and the United Nations Security Council in detail.
The "Regional Criminal Law" section introduces the article "Institutional Conception for Properly Resolving Conflicts of Regional Criminal Jurisdiction in China" co-authored by Professor Zhao Bingzhi and Doctor Shi Yan'an. The article primarily discusses the fundamental principles and rules for resolving conflicts of regional criminal jurisdiction in China from a normative perspective, analyzes the relationship between the resolution of criminal jurisdiction conflicts and regional criminal judicial assistance, designs specific procedures for determining criminal jurisdiction, and proposes legislative improvements to resolve the issue of regional criminal jurisdiction conflicts in China.
The "Academic Information" section of this volume is quite rich in content, not only including information about the academic exchange agreements signed by the Research Center for Criminal Law Science at Renmin University of China with the Max Planck Institute for Foreign and International Criminal Law in Germany and the School of Law at the National University of Siberia in Russia, but also two academic reviews. The article "A Review and Prospect of Criminal Law Research in 2003" co-authored by Professor Lu Jianping, Associate Professor Wang Zhixiang, and Doctor Guo Lirong summarizes the state of criminal law research in 2003, the past year saw remarkable achievements in China's criminal law research,; however, there were also some shortcomings that need further development and improvement. The article "Against Torture, Protect Human Rights" by Doctor Yin Jianfeng provides a concise introduction to the "China-UK Workshop on Combating Torture" co-hosted by the Research Center for Criminal Law Science at Renmin University of China and the British Embassy's Cultural and Educational Office, allowing the research findings and academic insights of this academic event to be promptly shared with society.