Essays on Modern Chinese Law: A Selection (Volume 4: Criminal Law)

Author: He Qinhua, Li Xiuching, Editors
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, and 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 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 promulgation and insufficient deliberation of the current criminal code, drafted a preliminary version of the criminal code amendment in December of the previous year.
From the perspective of legal stability, frequent amendments are not ideal. 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. Especially 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 particularly significant. Beyond adapting to the demands of the times, law must also promote social progress. Thus, despite multiple amendments, the criminal code serves as evidence of social evolution and revolutionary progress.
Since the French Revolution of 1810, criminal systems have transitioned 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 have remained unchanged. Although the current criminal code is formally a product of the Three Principles of the People, its amendments merely compile previous revisions, with most of its content derived from the Qing Dynasty's criminal law. Many shortcomings existed in the legislative process, so the amendments have primarily focused on organization and refinement.
From the Qing Dynasty's criminal law to the preliminary draft of the criminal code amendment, multiple 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 married couples should mutually uphold chastity. 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 draft of the criminal code amendment, however, stipulates that individuals in a marital relationship are subject to punishment, thereby establishing mutual obligations of chastity between spouses—a logical development.
Yet, 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, 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 draft criminal code 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 and not contradict reality.
Law must be socialized within a specific society and applicable 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 specific socio-economic systems and cultural stages, if the fundamental conditions are not mature, legal thought and legal forms cannot change. Once the material foundation advances and a new class emerges, new organizational relationships will inevitably reflect in contemporary concepts.
Currently, the economic systems of most countries have evolved from primitive communism to private property systems, even the imperialist class, which also originated from primitive communism. Their trajectory in the history of legal evolution may differ over time and space, but their legal evolution processes are governed by the same principles, sharing common elements with socio-economic changes. This is because, according to general scholarly views, legal evolution progresses from uncodified to codified 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 transitions from uncodified to codified law and from secret to public law but also originates and evolves before private law. The path of criminal law and its theory has shifted 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 involved two aspects: internal and external. Internally, tribal chiefs had the authority to govern and punish their subordinates, similar to the modern relationship between a head of household and family members. Externally, inter-tribal revenge resembled modern warfare. Formally, it is more appropriate to consider the internal regulation of tribes as the origin of criminal law rather than their external revenge. However, the boundaries between tribes were not fixed, often with smaller tribes forming larger ones, which in turn merged into even larger tribes. Thus, the external relationships 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, society was organized into tribes, with bloodline groups serving as the units of collective life. If a tribe suffered harm 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. Thus, the form of punishment often involved bloodline struggles between tribes. Over time, as tribes gradually united, larger and larger tribes reduced the necessity of internal revenge among families or bloodline groups to maintain order and interests. The demand for new legal norms arose, limiting such internal struggles, which became the prototype of legal regulation. Criminal law culture thus gradually evolved.
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 being limited in scope and requiring public approval. This was because crime was perceived as harming not only individual interests but also collective interests, so these restrictions transformed private force into public authority and guided the path toward conscious reflection.
As a result of social evolution and the development of commerce, blood feuds 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 is the norm, 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, given their profound relationship with the state and society.
Although state power expanded during this period, a portion of compensation rights was retained by the monarch, so the amount was often divided equally between the monarch and the victim. Over time, the division grew, eventually leading to independent systems and the emergence of fines. The separation of civil and criminal liability thus became established. In essence, the evolution of revenge varied with the changing 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 power has become the center of criminal thought. Criminal power is one function of sovereignty, a right the state inherently possesses.
To maintain its existence, the state exercises sovereignty, which is the lifeblood of the state, and criminal power is the state's authority. A state without authority cannot survive, and the existence of criminal power 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, from a sociological perspective, was due to the nascent state system, which lacked a stable foundation and was prone to instability. To safeguard its long-term interests, the state showed little concern for individual personalities. From a socio-economic perspective, production during this period remained in the handicraft era, with individual productivity weaker than in the industrial era, and individual personalities were not fully valued. Moreover, the feudal economic system, based on slave labor, established a master-servant relationship between producers and the ruling class, requiring the brutality of deterrence to achieve 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 proletariat, and the compensation system was largely abandoned. Formerly redeemable crimes were rendered irredeemable. During this period, the handling of cases was dominated by arbitrary authority, with legal codes serving as commands from higher to lower authorities. The determination of crimes and punishments rested solely with enforcers, leaving citizens unable to appeal based on law, nor could they anticipate the law's content. Trials followed an inquisitorial system, relying on the free discretion of judges, leading to unfair and biased applications of criminal justice.
Later, with the advancement of production methods, the idea of individual consciousness emerged, demanding the rule of law in politics and freedom in society. The principle of criminal legality thus arose, coinciding with 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 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, freely interpreting laws, and even supplementing laws when unclear, allowing judges to impose death sentences arbitrarily even when the law was silent. However, after the success of the French Revolution, the trend toward freedom, equality, and fraternity led to demands for clearly stipulated criminal laws, requiring punishments to be based on legal provisions. The state must pre-define the punishment for each crime. Since then, wherever free thought prevailed, the principle of criminal legality spread.
Moreover, due to the differences in status between feudal lords and serfs, criminal law adopted an arbitrary approach, imposing differential treatment based on status, leaving citizens unequal under the law. Thus, the principle of equivalent punishment for equivalent crimes emerged. However, this principle soon 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, suspended sentences, and parole emerged to avoid harsh judgments, delay executions, and shorten sentences. Crimes of the same nature did not necessarily receive the same punishment, nor did equal sentences necessarily lead to equal executions. The adjustment of penalties became case-by-case, at the discretion of judges, beyond legal predefinition. The standard for such discretion was whether it served the purpose of protecting society, rendering the principle of equivalent punishment obsolete.
Indeed, the suppression of crime lies in eliminating its root causes, which are not solely individual but also closely related to the environment. Effective crime prevention requires identifying causes 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. 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 allowed for analogical interpretation for the purpose of defending society. In contrast, the capitalist ideal of harmonizing the individual with society could not be compared with it. 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 the time.
Today, capitalist criminal law and Soviet criminal law differ in principles, as do their purposes. Then, 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, so the criminal law during this process shares similarities with capitalist countries but also resembles socialist criminal law. However, the Three Principles of the People's ideal is merely a transitional means, which is completely identical to the nature of the Soviet Union's current criminal law for the purpose of communism. Therefore, China's criminal law in 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,。