Essays on Modern Chinese Law: Selections (Volume 4) (Criminal Law Section)

Author: He Qinhua
Publisher:
Publishing Date: 2004-12-01
Features: The criminal law serves the people, and it is also meant 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 context. Moreover, as social conditions continued to evolve, those who studied the law 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 change. Particularly in China's revolutionary process, which seeks to transition from a feudal society and prevent capitalism while advancing toward a utopian society, the role of law is even more profound. Beyond adapting to the demands of the times, law must also foster social progress. Thus, despite multiple revisions, the criminal code serves as evidence of social evolution and revolutionary advancement.
Since the French Revolution of 1810, criminal systems have shifted from arbitrary 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 existed in the legislative process, 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 been made. Each revision represents progress, a fact as evident as daylight. Particularly, last year's preliminary revision bill, based on the Three Principles of the People, emphasized 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 relationship are subject to punishment, making both spouses responsible for chastity, which is only natural. This is one aspect of the criminal code's evolution.
However, the construction of a new China based on the Three Principles of the People is still ongoing. 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 social organization of the Three Principles of the People, 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 be in harmony with the principles of the Three Principles of the People without contradicting reality.
Law must be socialized within a specific society and applied accordingly. In a given era, it must be based on a particular ideology, 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, yet all follow the same principles, sharing common elements with socio-economic changes. This is because, as most scholars argue, legal evolution 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 involves transitioning from uncodified to codified law and from secret to public law. Its origins and evolution also precede private law. The evolution of criminal law and its theory has shifted from a reactive retributionist approach to a conscious teleological approach, from general prevention to subjective special prevention. Modern criminal law is now governed by these teleological and special prevention principles.
In primitive times, criminal relationships involved two types: internal and external. Internally, tribal leaders had the authority to govern and punish their subordinates, similar to how modern heads of families manage their families. 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 not fixed, often forming larger tribes through smaller tribal unions. Thus, the external relationships of smaller tribes simultaneously became internal issues for larger tribes. External revenge was thus one aspect of criminal law, recognized by general scholarship as the retaliatory response between individuals or families.
In ancient times, tribes lived in collective units, with bloodline groups as the basic units. If a tribe suffered from another, the entire tribe had the right and obligation to retaliate. Individual actions were constrained by the tribe, and violations led to tribal punishment. Therefore, the form of punishment often involved bloodline struggles between tribes. Over time, as tribes gradually united, larger and larger tribes reduced the need for 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 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. During revenge, the behavior was not constrained by third parties. As production developed and centralized authority was established, revenge evolved with restrictions—such as limited scope and requiring public approval. At that time, crime was seen as not only harming individual interests but also damaging tribal interests, hence 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 bloodshed to compensation. Initially, parties could freely choose between revenge or compensation, which became a legal obligation. Today, compensation for damages is the norm, with the amount determined by law. By the late stage of revenge, crimes became irredeemable due to the advancement of state power, distinguishing them from redeemable crimes. This distinction arose because criminal behavior had a profound relationship with both the state and society.
Although state power expanded during this period, the state retained the right to claim a portion of compensation, often dividing it equally between the ruler and the victim. Over time, the 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 times, driven by changes in the subjects exercising the right of 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 criminal deterrence can be observed from a sociological perspective: during that time, state systems were not yet developed, and their foundations were unstable, often prone to collapse. To preserve their systems, states showed no hesitation in sacrificing individual rights.
From an economic perspective, production during that time remained in the handicraft era, with individual productivity weaker than in the industrial era. Individual personalities were thus not fully valued. Moreover, the feudal economic system, based on slave labor, established a master-servant relationship between producers and the ruling class. Without brutal deterrence, the ruling class could not maintain control.
After the Crusades, various social classes emerged, including the unemployed and vagrants, forming a criminal class. The previous compensation system proved ineffective for them, so measures like physical punishment and capital punishment were introduced to suppress the working class, and compensation systems were largely abandoned. Formerly redeemable crimes became irredeemable. During this period, legal proceedings were dominated by arbitrary authority, with legal codes merely orders from higher to lower authorities. The determination of crimes and punishments rested solely with enforcers, leaving citizens unable to defend themselves legally or access legal information beforehand. Trials followed an inquisitorial system, relying on judges' discretionary actions, leading to unfair and biased judgments.
Later, with the advancement 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 overcame feudal constraints, making freedom a common goal. The doctrine of inborn human rights 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 the time, leading to significant reforms in brutal punishment systems and the emergence of the era of fraternity.
During this period, enforcers could punish criminals without legal basis, even freely interpreting laws. Even when laws were unclear, judges had the authority to supplement them, allowing arbitrary imposition of capital punishment even without explicit legal provisions. However, after the French Revolution, the trend toward freedom, equality, and fraternity took hold, leading liberals to demand that criminal law be clearly stipulated, with punishments determined only by 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 punishments based on status. Citizens were not equal under the law, giving rise to the principle of criminal equivalence. 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 judgments and executions. Instead, mechanisms like procedural hesitation, sentencing hesitation, probation, and parole emerged to avoid harsh judgments, delay executions, and shorten sentences. Thus, crimes of the same nature did not necessarily receive the same punishment, and equal sentences were not uniformly enforced. Adjustments were made based on circumstances, at the discretion of judges, not predetermined by law. The standard for such discretion was whether it served the purpose of protecting society. Therefore, the principle of criminal equivalence faded during this era.
Indeed, crime suppression 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. Thus, establishing criminal policy has become 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 distinct criminal cultures: capitalist and Soviet. The aforementioned modern capitalist criminal law represents only one aspect of modern legal culture. Let us now discuss 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 permitted analogical interpretation for the purpose of defending society. In contrast, capitalist societies, which seek to balance individual and social interests, cannot match the Soviet model in criminal theory progress.
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 capitalist development as a historical mission, criminal legality was harmful rather than beneficial to the formation of a communist society. It was clear that criminal legality had no place 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 if there was no explicit legal provision. This became the characteristic of Soviet criminal law at that stage.
Today, capitalist criminal law and Soviet criminal law differ in ideology, 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, as the Three Principles of the People are merely a means to an end, this is similar to the Soviet Union's current criminal law, which serves the goal of communism. Thus, China's criminal law during 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 ideal of a utopian society.