Criminal Law Review 2005 (Volume 17)

Author: Chen Xingliang
Publisher:
Publishing Date: 2006-03-23
Features: In the preface to Volume 16 of Criminal Law Review, the editor discussed the Nie Shubin case, which remains unresolved to this day. However, internal reports suggest it may not be an wrongful conviction. The victim is dead, and the defendant is also dead—no witnesses, so overturning the case is difficult. Yet, the case of She Xianglin, who died and was later exonerated, has been rectified. Subsequently, several other wrongful death penalty cases were exposed. Coincidentally, I received a document titled "Case Exchange" from the Shaanxi Gengmin Law Firm yesterday (August 30), titled "Should the Shaanxi 'She Xianglin' Be Released?" Here, the Shaanxi 'She Xianglin' refers to Gao Jinfa, a farmer from Dali County, Shaanxi, who was suspected of being the murderer in two cases of raping and killing minors and was sentenced to "death with suspension of execution" twice, serving over 1,200 days in prison. After five trials by the Weinan Municipal Court and the Shaanxi Provincial Court, he was finally declared innocent and released on July 9, 2005. However, nine days later, the prosecution lodged an appeal. The document reflects that Gao Jinfa differs from She Xianglin in that there was no such fortuitous opportunity as the real culprit coming forward or the victim resurfacing, making his exoneration face numerous challenges. Indeed, overturning wrongful convictions is not easy, so I am grateful that the suspended death penalty saved the lives of these suspected wrongful conviction victims, otherwise there would be even morecases.
Regarding wrongful convictions, it reminds me of a recent American film titled The Green Mile (also translated as "Green Mile"), which I just watched. The protagonist, Paul Atreides (played by Tom Hanks), now lives in a retirement home. Approximately 60 years ago, he worked at Cold Mountain Reformatory, serving as the chief guard of death row inmates. One of his duties was overseeing several inmates awaiting execution. It was 1935 in the bleak and grim Cold Mountain Prison in the southern United States. There was a one-mile-long green area called the "Green Mile," but its residents were all death row inmates, with the electric chair at the other end of the green. Paul Atreides was the warden here, seemingly indifferent to the executions that took place on the Green Mile, as the inmates screamed in agony on the electric chair. Besides Paul and his beloved wife, Jane, the Green Mile also had a cruel deputy warden, Howell, a sadistic guard named Percy, a conscientious guard named Heyl and his terminally ill wife, Melinda, Dracula, who used pet rats to entertain the guards and fellow inmates, serial killer William, and Peter, a guilt-ridden inmate. They were a diverse group filled with hostility and disdain. However, the arrival of the mysterious John Coffey changed everything. Coffey was sentenced to death for murdering two minors. Despite his terrifying appearance and massive physique, he was unexpectedly calm, sensitive, and silent, sometimes even childlike, and seemed to possess an indescribable mystical power that made people unconsciously trust him, which made Atreides doubt whether his crimes were truly committed. In fact, the two minors were killed by William, who was also in the same death row. Coffey had already sensed this through his unique abilities but couldn't prove it. The truth couldn't replace the process, and Coffey had to walk the Green Mile. At the moment this seemingly rough man was about to die, the people on the Green Mile achieved significant life transitions in different ways. This is an impressive film. Although Coffey was wrongfully convicted, his kind heart was beyond reproach; Percy, despite being a guard, had a morally corrupt soul that was hard to describe. However, the only thing that slightly disappointed me was the film's fantasy elements, which made it easy for viewers to mistake the unreal for the real. I would say this is the most unforgettable film I've seen about the death penalty. It tells us that wrongful convictions in the death penalty exist, and their rectification is. Thinking of similar cases like She Xianglin in our real lives, the philosophy revealed in The Green Mile holds great significance for us.
Volume 17 of Criminal Law Review is the second volume of 2005 and is also a rich and diverse one. In the "Theoretical Frontiers" section, Kang Wei's "Formation Mechanism of Criminal Apperception" is a highly recommended paper. This is Kang Wei's doctoral dissertation, which adopts a postmodern perspective to observe criminal phenomena and provides an interesting account of the formation mechanism of criminal apperception. It is particularly important to note the concept of criminal apperception, which Kang Wei defines in his thesis as "a reflection related to crime existing in people's minds," referring to a form of perception. Therefore, it is different from both criminal phenomena and criminal facts. Although criminal facts play a dominant role in the criminal justice process, criminal apperception exerts a positive or negative influence on criminal justice in an invisible way. Kang Wei's paper clearly states the phenomenon of criminal apperception, bringing it from the latent to the manifest, which I believe has theoretical significance. Of course, criminal apperception itself is difficult to grasp, so the paper is somewhat obscure and requires careful reading multiple times to understand. Readers should be prepared for this. Due to the paper's length, it will be published in two parts, with this volume featuring the first part. Fu Liqing's "On the Status and Scope of Subjective Elements of Unlawfulness—An Expansion Based on Japanese Criminal Law Theory" provides a thorough discussion of the status and scope of subjective elements of unlawfulness. Notably, Fu Liqing utilized his study opportunity at the University of Tokyo in Japan to gather a large amount of Japanese-language materials, which he elaborates on in the paper, thereby enhancing its academic level. Lin Wei's "Power Analysis of the Procedure and Form of Criminal Interpretation" explores the procedure and form of criminal interpretation using a power analysis method, offering a fresh perspective. Criminal interpretation is an old topic, and Lin Wei chose it as his doctoral dissertation topic, which worried me. The key issue lies in how to innovate. From the current paper, Lin Wei adopts new methods and perspectives to study criminal interpretation, particularly expanding the research field of criminal interpretation and grasping the operation of the power of criminal interpretation from a dynamic relationship. Due to this paper, my worries have become unnecessary. Kang Wei, Fu Liqing, and Lin Wei are all doctoral students I supervised, and these three papers are their doctoral dissertations. Kang Wei's doctoral dissertation has passed the defense this year, and Criminal Law Review will publish it in two volumes. Fu Liqing and Lin Wei have not yet participated in their doctoral dissertation defenses, so the two papers published in this volume are excerpts from their dissertations, and their full dissertations will be even more outstanding.
I once held the "fallacy" that thesis papers should be steady and passable. However, my three doctoral students seem to approach their doctoral dissertations with a cutting-edge, even avant-garde academic attitude. When Kang Wei's first draft of his doctoral dissertation was submitted to me, I genuinely worried about its approval. At that time, I anticipated extreme evaluations of his dissertation—"excellent" or "terrible." I asked Kang Wei to make some popularization efforts during the revision process. The dissertation defense went smoothly and received praise from Professor Zhang Mingkai and Professor Qu Xinquan, which made me very happy. Kang Wei, Fu Liqing, and Lin Wei, especially Kang Wei and Fu Liqing, are still new to the academic world, and their doctoral dissertations are their keys to the of criminal law. I believe this key is heavy enough to open the doors of the academic. Their academic debut is loud, enough to make me feel the awe of the younger generation and lament the passage of time. Now, without avoiding the bias of favoritism, I am publishing their papers to prove my judgment is correct.
In the "Criminal Constituent Research" section, Wang Zhiyuan's "From Flat to Three-Dimensional: The Inevitable Trend of Criminal Constituent Theory" proposes the idea of reconstructing China's criminal constituent theory by borrowing from the systematical approach of the civil law system and provides arguments for it. The paper contains a significant amount of academic information and the author's personal reflections, making it valuable for constructing China's criminal constituent system. Wang Chong's "On the Objective Purpose Theory of Criminal Constituent System—Taking Weiszel's Criminal Constituent System as the Object" specifically discusses Weiszel's objective purpose theory of criminal constituent system. Weiszel emphasizes the dominance of subjective purpose over objective behavior, from which he constructs the criminal constituent system, proposing unique insights on constitutive elements, unlawfulness, and responsibility, thereby advancing the development of the criminal constituent system. China is currently reconstructing its criminal constituent system, making it necessary to review and introduce Weiszel's objective purpose theory. Wu Xuebin's "Ideological Value in the Judgment of Constitutive Element Compliance" puts forward the view that "in the judgment of constitutive element compliance, one should establish the legal concept of: transcending legal formalism, forming case facts under the meaning of constitutive elements, and type thinking." It should be noted that the "constitutive element compliance judgment" mentioned in this paper is different from the commonly referred "criminal determination." Wu Xuebin proposes the concept of "transcending legal formalism" in the paper, attempting to incorporate the content of value concepts into the understanding of legal texts. Of course, how to transcend legal formalism without violating the principle of nullum crimen sine lege is an issue that needs to be addressed. The three papers in this section study the theory of criminal constituents from different angles, and I believe they hold academic value.
I myself edited and published the book Research on Criminal Constituent Systems (Tsinghua University Press, 2005). In my view, the criminal constituent system is a major theoretical issue in contemporary Chinese criminal law academia. Criminal Law Review has repeatedly set up columns for the study of criminal constituent theory, indicating our attention to this significant theoretical issue.
In the "Judicial Model Research" section, Ma Mingliang's "Negotiated Justice: A New Model of Justice" proposes a model of negotiated justice, believing it to be a newly emerging judicial model that reflects a new proceduralism concept and implies a new procedural theory behind it. Lu Lan's "Restorative Justice Concept and Model—A Comparison of Restorative Justice Practices in China and Japan" explores restorative justice, also known as corrective justice. Criminal Law Review Volume 12 previously published Dr. Zhang Qingfang's "Restorative Justice—A Brand New Model of Criminal Rule of Law," and reading Lu's paper alongside Zhang's will give us a deeper impression of restorative justice. Especially Lu Lan's paper introduces the practice of restorative justice in China and Japan, which is more meaningful in reality. The two papers discussing negotiated justice and restorative justice respectively study similar judicial trends from the perspectives of procedural law and substantive law, allowing us to sense the direction of future judicial model evolution. Therefore, these two papers also share common ground, and reading them in comparison will bring greater reading pleasure.
In the "Foreign Perspectives" section, the article "The Basis of State Punitive Power" by the renowned Japanese criminal law scholar, Professor Haruyoshi Nishiyama, is a transcript of his lecture at Peking University Shenzhen Graduate School, translated by Professor Feng Jun of the Law School of Renmin University of China. Professor Nishiyama's book The Foundations and Philosophy of Criminal Law (translated by Gu Xiaorong et al., Shanghai Sanlian Bookstore, 1991) is one of the earlier works introduced to China that conducted metaphysical examination of criminal law. In the "Conclusion" of my book Criminal Philosophy, almost completed in 1991, I mentioned this book, from which I proposed the concept of "criminal philosophy in the sense of natural law." Now, rereading this lecture transcript of Professor Nishiyama, I have many reflections. The transcript includes Professor Nishiyama's latest thoughts and on-the-spot improvisations, making it worth reading. Ronald L. Akers's article "Deterrence Theory," written by an American scholar and translated by Lei Liqing, reviews the popular deterrence theory in the West, especially its distinction and review of classical deterrence theory and modern deterrence theory, which is beneficial for us to correctly understand the deterrent function of criminal law.
In the "Criminal History Research" section, Wang Ruifeng's "On the 'Yinuan' in Qing Dynasty Criminal Justice" provides a detailed introduction to the phenomenon of "yinuan" in Qing Dynasty criminal justice, deepening our micro-level understanding of Qing Dynasty criminal justice. Especially, the paper also makes comparisons with the current criminal law and theory of China, making it more readable. Chen Xinyu's "The Practice of 'Yibai' and the Debate over Nullum Crimen Sine Lege in the History of Chinese Criminal Law—Taking Shen Jiaben's Turning Point in Attitude Towards 'Yibai' as the Center" studies the phenomenon of "yibai" in the history of Chinese criminal law, especially introducing the modern criminal law principle of nullum crimen sine lege as a reference point, with precise analysis and conclusions supported by evidence. The two papers and authors are doctoral graduates of the Chinese Legal History program at Peking University Law School this year, both selected from their doctoral dissertations. Previous legal history research often satisfied itself with grand narratives centered on ideological discourse, being too broad and lacking reference value for the study of specific legal fields. Under the guidance of Professor Li Guilian of Peking University Law School, Wang Ruifeng and Chen Xinyu's aforementioned papers focus on the "details" (which reminds me of the book title "Details Determine Success") and conduct in-depth research on these details, extending the reach of legal history research into the field of specific legal history, making academic contributions to the study of specific legal sciences. This is definitely commendable. In the future, Criminal Law Review will publish more research in this area, thereby expanding the research fields of criminal law.
In the "Criminal Research" section, Xie Yong and Wang Yanfei's "Social Structure Paradigm Analysis in the Perspective of Criminal Research" attempts to study criminal phenomena using the research method of social structure paradigm analysis, basically continuing Professor Xie Yong's research path in criminal sociology, with both the analytical process and conclusions being innovative. Jin Gaofeng's "Defining Criminalology: From Actual to Normative" analyzes the definition of criminalology using the framework of actual and normative, providing a relatively detailed discussion. The two papers both involve research on criminal research methods, and such fundamental theoretical research promotes the discipline construction of criminalology.
The "Special Research" section remains the largest section of Criminal Law Review, with papers covering various disciplines of criminal law, having the nature of a "salad." However, each paper conducts in-depth research on relevant topics, representing cutting-edge academic achievements on the subject. This volume's "Special Research" features 8 papers, covering criminal law (including international criminal law), criminal procedure law, penology, and Western criminal philosophy. Sun Lihong's "On the Formation of Negligent Joint Crime" is, as the title indicates, in favor of the formation of negligent joint crime and provides arguments for it. Liu Shude's "Comparative Thinking on the Object and Protected Legal Interests of Property Crimes—A Re-examination from the Perspective of Property Rights Being Incorporated into the Constitution" continues Liu Shude's constitutional thinking about criminal law, introducing this constitutional thinking into the study of specific crimes. Xiong Yongming's "Behavioral Definition of the Crime of Forging Documents" studies the crime of forging documents, which is common and frequent in real life, especially conducting comparative criminal law research on it with reference to foreign criminal law. Song Jianqiang's "International Criminal Rule of Law: The True Hope of Human Peace and Justice" proposes the concept of international criminal rule of law, which is a new insight in the research of international criminal law. Yuan Dengming's "Penal Policy Perspectives on Penitentiary Countermeasures" conducts criminal policy research on penitentiary issues, which is relatively rare in previous research, but such research is of great significance. Song Xing's "Modern Prison Character Theory" studies the character of prisons, which is actually the issue of prison functions, pointing out the proposition of public administrative power of prisons. The authors of the above papers are all specialists in their respective academic fields, making the professionalism, specialization, and expertise of their papers evident. However, the last paper in this volume's author, Fang Bo, is relatively late in comparison to the aforementioned authors. Fang Bo is a 2005 undergraduate graduate of Peking University Law School. Early this year, he came to the classroom to ask me to supervise his undergraduate thesis, and I agreed. After a while, he submitted the first draft of his thesis, and after reviewing it, I felt the author had a deep philosophical foundation, and it was not easy for an undergraduate to write a thesis to this extent. When I next met Fang Bo, I asked about his plans after graduation, and he said he had been admitted to the Western Philosophy History Master's program at Peking University Philosophy Department, which surprised me and brought me some joy. After minor adjustments, the thesis was quickly finalized, and the paper published in this volume, "Exploring Kant's Criminal Philosophy," is the revised version of the thesis. Perhaps this is Fang Bo's first, or even last, law-related paper. At least, I still hope Fang Bo can return to the field of law.
The undergraduate thesis of Zhang Lixin published in Volume 16 of Criminal Law Review and the undergraduate thesis of Fang Bo published in this volume both reflect, from different perspectives, the level of undergraduate education at Peking University Law School, which is a source of satisfaction. The diversity of content and the diversity of authors are what Criminal Law Review strives for. Criminal Law Review is like an academic garden, where both towering trees can stretch their branches and small grass can find its place.