Essays on Modern Chinese Law, Volume 4, Criminal Law Section

Author: He Qinhua
Publisher:
Publish Date: 2004-12-01
Features: The criminal law serves the people, but it is also intended to benefit the people. What does "benefit the people" mean? 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 during the late Qing Dynasty, and after the establishment of the Republic of China, it was deemed unsuitable for the national context. Moreover, as social conditions evolved, legal scholars gradually realized its unsuitability. Thus, the criminal law transformed into the criminal code. Since its promulgation in 1929, it has been in effect for only five or six years. Last year, the Legislative Yuan, citing the hasty legislative process and inadequate deliberation of the current criminal code, drafted a preliminary revision bill in December of the previous year.
From the perspective of legal stability, frequent revisions are not ideal. However, the fundamental purpose of law lies in meeting societal needs. As the foundation of society develops, its legal relationships must inevitably evolve. Particularly in China's revolutionary process, which seeks to transition from a feudal society and prevent capitalism while advancing toward a utopian society, the mission of law is of great significance. Beyond adapting to the demands of the times, law must also promote social progress. Thus, despite multiple revisions, the criminal code has proven to be a testament to the advancement of social evolution and revolution.
Since the French Revolution of 1810, criminal systems have shifted from discretionary to statutory principles. The difference between the criminal code and the Qing Dynasty's criminal law lies in the contrast between monarchy and democracy. Other fundamental principles remain unchanged. Although the current criminal code is formally a product of the Three Principles of the People, its revisions merely compile previous amendments, with most content still derived from the Qing Dynasty's criminal law. Many shortcomings in the legislative process were evident, so the revisions have primarily focused on organization and refinement.
From the Qing Dynasty's criminal law to the preliminary revision bill of the criminal code, numerous revisions have occurred. Each revision represents progress, a fact as clear as day. Notably, last year's revision bill was based on the Three Principles of the People, emphasizing the principle of gender equality, such as mutual chastity obligations between spouses. According to the current criminal code'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 revision bill, however, stipulates that individuals in a marital relationship are subject to punishment, establishing mutual chastity obligations between spouses—a logical development.
Yet, the construction of a Three Principles of the People-led new China is still underway, and the creation of its legal culture requires future efforts. To create a legal culture aligned with the Three Principles of the People, the corresponding social organization must first be established. Without completing the Three Principles of the People's social organization, even if the law advances, it may still be impractical. Therefore, the criminal code draft during this revolutionary process must align with the conditions and qualifications of future Chinese criminal law to adhere to the principles of the Three Principles of the People without deviating from reality.
Law must be socialized within a specific society and applicable to certain legal systems. In a given era, it must be grounded in certain principles, a point scholars must not overlook. Moreover, law reflects the socio-economic system. Under specific socio-economic systems and cultural stages, if the fundamental conditions are not mature, legal thought and legal forms cannot change. Once material conditions progress and new classes emerge, new relationships within the system naturally reflect in contemporary concepts.
Currently, most countries' economic systems have evolved from primitive communism to private property systems, even the imperialist class today. Their trajectory in legal evolution varies with time and space, yet all follow the same principles, sharing common elements with socio-economic changes. Legal evolution, as generally advocated by scholars, progresses from uncodified to codified law, from secret to public law, from an obligation-based to a rights-based system, and from public law preceding private law. From this perspective, the evolution of criminal law not only transitions from uncodified to codified 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 reactive retributionism to conscious purposefulness, from general preventionism to subjective special preventionism. Modern criminal law is now governed by purposefulness and special preventionism.
In primitive times, punitive relationships existed between groups—internally, tribal leaders had the authority to discipline subordinates, similar to a modern head of household's relationship with family members. Externally, inter-tribal revenge resembled modern warfare. Formally, it might seem that inter-tribal revenge is the origin of modern criminal law, but it is more accurate to say that internal tribal sanctions represent its primitive form. However, the boundaries between tribes were fluid, with smaller tribes forming larger ones, and these larger tribes further merging. Thus, the external conflicts of smaller tribes simultaneously became internal issues for larger tribes. Therefore, external revenge was one aspect of criminal law, recognized in general theory as the retaliatory response between individuals or families.
In ancient times, groups lived collectively, with bloodline groups as the basic unit. If a bloodline group suffered harm from another, the entire tribe had the right and obligation to retaliate. Individual actions were constrained by the group, and violations led to tribal punishment. Thus, the form of punishment often involved bloodline struggles between tribes. Over time, as tribes gradually unified, larger and larger tribes reduced the necessity of internal revenge among families or bloodlines to maintain order and interests. The demand for new legal norms arose, limiting such internal struggles. This limitation on internal conflicts exemplifies the origin of legal norms, and criminal law culture gradually evolved from this.
Criminal law originated from the initial act of revenge, rooted in individual feelings of retribution. At the time, revenge was unrestricted by third parties. As production developed and centralized authority was established, revenge evolved with restrictions—such as defined scopes and public approval. Society then recognized that crime not only harmed individual interests but also those of the group, leading to these restrictions to transform private force into public authority and guide the path toward conscious reflection.
As social evolution and commodity development progressed, blood feuds gradually lost value, and effective revenge methods shifted from physical harm to compensation. Initially, parties could freely choose between revenge or compensation, which became a legal obligation. Today, compensation for damages is the norm, with amounts determined by law. In the later stages of revenge, as state power developed, criminal acts became irredeemable, distinguishing them from redeemable offenses. This distinction arose because criminal acts bore a significant relationship to both the state and society.
Although state power expanded, a portion of compensation rights was retained by monarchs, so compensation amounts were often divided equally between the ruler and the victim. Over time, these amounts diverged, eventually leading to independent penalty systems and the separation of civil and criminal liabilities. In essence, the evolution of revenge varied with the changing subjects exercising the right to revenge. The earlier changes referred to evolution—initially, individuals or families were the subjects of revenge, but today, state criminal authority has become the center of criminal thought. Criminal authority is one function of governance, a power the state inherently possesses.
To maintain its existence, the state establishes governance, which is its lifeblood, and criminal authority is the state's power. A state without power cannot exist, and the existence of criminal authority gives rise to criminal law. 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 punitive deterrence can be observed from a sociological perspective: during the early stages of state development, its foundations were unstable, making it prone to collapse. To safeguard its long-term stability, the state had little concern for individual rights. From a socio-economic perspective, production was still in the artisanal stage, and individual productivity was weaker than in the industrial era, resulting in insufficient evaluation of individual dignity. Moreover, the feudal economic system, based on slave labor, established a master-servant relationship between producers and the ruling class, necessitating harsh deterrence to maintain control.
After the Crusades, various social classes emerged, including the unemployed and vagrants, forming a criminal class. The existing compensation system proved ineffective for them, so measures like physical punishment and death sentences were introduced to suppress the working class, and compensation systems were largely abandoned. Formerly redeemable offenses became irredeemable. During this period, discretionary authority dominated legal processing, with codes merely serving as orders from higher to lower authorities. The determination of crimes and punishments rested solely with enforcers, leaving citizens unable to defend themselves legally or anticipate legal content. Trials followed an inquisitorial model, relying on judges' discretionary actions, leading to biased and unfair sentencing.
Later, with the advancement of production methods, individual consciousness grew, demanding 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 became apparent. Politically, feudal constraints were broken, and the pursuit of freedom became a shared goal. The doctrine of inborn human rights also became a fundamental principle of political construction. Thus, the theory that the individual exists for the state and the state exists for the individual became the standard for critiquing various systems. Freedom, equality, and fraternity became the highest ideals of the time, leading to significant reforms in harsh punishment systems and the emergence of the era of fraternity.
During this period, enforcers could punish offenders without legal basis, even freely interpreting laws. Even when laws were unclear, judges retained the authority to supplement them, allowing arbitrary imposition of death sentences even in the absence of legal provisions. However, after the French Revolution, the trend toward freedom, equality, and fraternity led to demands for clearly stipulated criminal laws, requiring punishment only according to legal provisions. From then on, wherever liberal thought spread, the principle of criminal legality took root.
Due to differences in feudal identities between lords and serfs, criminal law adopted discretionary authority, imposing differential treatment based on status, denying legal equality. However, this principle soon faded as society evolved. 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, mechanisms like procedural hesitation, sentencing hesitation, suspended sentences, and parole emerged to avoid harsh judgments and delay or shorten sentences. Crimes of the same nature did not necessarily receive the same punishment, nor did equal sentences lead to equal enforcement. Adjustments were made case by case, at the discretion of judges, beyond what law could predefine. The standard for such discretion was whether it served the purpose of protecting society, rendering the principle of equivalence obsolete.
The suppression of crime ultimately depends on eliminating its causes, which exist not only in individuals but also in the environment. Effective crime prevention requires identifying causes before determining measures, making criminal policy the cornerstone of modern criminal law.
At the turn of the 20th century, the success of the Bolshevik Revolution in Russia reshaped the world's socio-economic systems, creating a divide between capitalist and Soviet criminal cultures. The modern capitalist criminal law discussed earlier 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 entirely abandoned, and discretionary interpretation was permitted for the sake of defending society. In contrast, capitalist societies, which seek to reconcile individual and collective interests, cannot match the Soviet model in criminal theory.
In capitalist countries, criminal legality was the foundation of early capitalism, while educational criminalism was its product. In the Soviet Union, only unified class action existed, with no individual freedom, especially for a society with capitalism as its historical mission. Criminal legality, therefore, offered no benefit and even harm to the formation of a communist society, leaving no room for its existence in Soviet criminal law. However, as the goal was the formation of a communist society, any obstacle to its realization was permissible to defend, even without explicit legal provisions, making discretionary interpretation a feature of Soviet criminal law at the time.
Capitalist criminal law and Soviet criminal law differ in ideology and 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's revolution is not for the third or fourth class but is related to them. Thus, 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 communist goal, the Three Principles of the People's criminal law in China is merely a transitional means to that ideal. Therefore, China's criminal law during the Three Principles of the People's revolutionary stage not only embodies the crystallization of "individual consciousness" and "social discovery" but also carries the nature of the revolution, promoting and fulfilling the mission of a utopian society.