’s Republic Of China – What Are The Guiding Principles And Characteristics Essay, Research Paper Criminal Law is enacted in accordance with the principle of combining punishment with leniency. The Law governs Tasks, Basic Principles, and Scope of Application of the Criminal Law, Crimes, Punishments, The Concrete Application Of Punishments, Crimes of Endangering National Security, Crimes of Endangering Public Security, Crimes of Undermining the Order of Socialist Market Economy, Crimes of Infringing Upon the Rights of the Person and the Democratic Rights of Citizens, Crime of Encroaching on Property, Crimes of Disrupting the Order of Social Administration, Crimes of Endangering the Interests of National Defense, Graft and Bribery, Crimes of Dereliction of Duty, Crimes of Violation of Duty by Military Personnel Supplementary Articles.
’s Republic Of China – What Are The Guiding Principles And Characteristics Essay, Research Paper
Criminal Law is enacted in accordance with the principle of combining punishment with leniency. The Law governs Tasks, Basic Principles, and Scope of Application of the Criminal Law, Crimes, Punishments, The Concrete Application Of Punishments, Crimes of Endangering National Security, Crimes of Endangering Public Security, Crimes of Undermining the Order of Socialist Market Economy, Crimes of Infringing Upon the Rights of the Person and the Democratic Rights of Citizens, Crime of Encroaching on Property, Crimes of Disrupting the Order of Social Administration, Crimes of Endangering the Interests of National Defense, Graft and Bribery, Crimes of Dereliction of Duty, Crimes of Violation of Duty by Military Personnel Supplementary Articles. Criminal Law was Adopted by the Second Session of the Fifth National People’s Congress on July 1, 1979 and amended by the Fifth Session of the Eighth National People’s Congress on March 14, 1997. Criminal Law, in 452 articles, comes into effect on October 1, 1997.
In the PRC ideology has infected its understanding of the cause of crime. Instead of being connected to human nature or malfeasance as in the West, the prevailing view has been that crime is a result of a class society. The thesis is that in a truly socialist and classless society the causes of crime and immorality would be rooted out and thus there would be no need (or at least only a minimal need) for an elaborate apparatus of social order and management of criminal activity.
Of course, since 1949 when the PRC established, it has become increasingly obvious, even to the officials of the PRC that crime has continued and that many crimes have no plausible or traceable class-based explanation. So the socialist theory of crime eradication has been quietly dropped. What this means ultimately is that Chinese moral culture will have a continuing need to control crime and minimize its occurrence and effect in the society. PRC was also affected by a series of political events and class struggle. Such political events made the situation became worse and because of the chaos of political atmosphere, the rule of law is totally impossible in China for the period 1950-1980, until the end of Cultural Revolution.
In the PRC, especially in its anti-crime campaigns of the 1980s persons who engaged in criminal or illegal activity were considered “enemies of the people”. In fact, not all anti-social behavior is handled by the courts. There are matters handed by the courts and there are matters handled by the Security Administration.
The validity scope of Criminal LawTerritory PrincipleThis principle means China has jurisdiction over crimes happening within Chinese territory. And in China, the Objective Territory Principle is applicable, according to Chinese relevant law, Chinese court has jurisdiction over conducts started in other country but complete within Chinese territory; or causing gravely harmful effects on the social or economic order in Chinese territory.
Personal principleAccording to the international law, on the basis of the Nationality Principle, Chinese authorities have jurisdiction to prosecute and punish the person who violates Chinese criminal law and regulations within the territory of China or abroad. But this is not applicable to foreigner as they are not Chinese citizens. This principle is not commonly used by any countries in the world not except in China.
Protective principleThis principle stated that if one person violated or committed crimes with or within the territory of country, they will be prosecuted under the criminal law of that country. This principle is rarely adopted because it is difficult to sue a person when he committed crimes outside the country.
Universal principleThis principle stated that the criminal law is applicable to the offences committed by any person. This principle is widely accepted by the world as it combined the above three principles and it is also the most comprehensive. The Chinese Criminal Law also adopted this principle that it is applicable to any person who committed crimes aboard ships or aircrafts of the PRC . PRC also adopted the principle of territorial application; the criminal responsibility of foreigners who enjoy diplomatic privileges and immunity will be resolved through diplomatic channels.
The guiding principles of The Criminal Law of PRCThe guiding principles of the criminal law of PRC define the purposed of the Law aw well as notions of crime and criminal liabilities. It also provide rules on sentencing, parole and statutory limitations. The structure of the guiding principles of The Criminal Law, is to intact, minimize and give revision to the provisions of it that the incorporation of some fundamental principles of justice into general principles constitutes the most significant progress and development of criminal law since 1979.Before1979, some western scholars pointed out that the Criminal Law of China was too vague and its use of language was too difficult to understand. ??For the so-called Chinese language is a really forward child, a most recalcitrant thing in the hand of the logical-minded. Chinese legal material abounds with inconsistent and imprecisely use of terminology.??
It was not until 1979 that the first codes of criminal law and criminal procedure law were enacted in China. The 1990s have seen significant further reform of the criminal justice system which has mainly focused on criminal law and criminal procedure law. Although problems and difficulties remain, nonetheless the changes are a milestone in the reform of China??s legal system. The following are the basic guiding principles of The Criminal Law of PRC.
Nullum Crimen, Nulla Poena Sin Lege and the Abolition of AnalogyIt is the principle that when there no crime (no penalty) without law making it so. This meant if the behaviour of a person is not defined by any articles of law as a crime, that is not a crime. It aimed at avoiding the tyranny of conviction and sentencing to people which law is easily made by the ruler through his words or liking. This principle is commonly adopted most of the countries. So it is important that nullum crimen, nulla poena sin lege is stated in law, but it has not become reality until the revised Criminal law in 1997 because the 1979 Criminal Law still allowed the application of the Law by analogy subject to approval of the Supreme People??s Court. However, many Chinese scholars and officials regard it as the spirit of Chinese Law and it can serve as the basic principles of the Criminal Law.
The use of analog was seen as the supplementary to the Law and represented a flexible application of the old and rigid principle of nullum crimen, nulla poena sin lege. Since the early years of PRC, the concept of analogy had long regarded as the important principle in Criminal Law even when the first completed Criminal Law was enacted in 1979. It was not after 1988, the idea of abolition of analogy was once again brought to the consideration. It is because that this kind of ??analogy?? is out-dated compared to the world??s legal system. The legal position and the trend towards the nullum crimen, nulla poena sin lege in the world??s major legal systems; the possibility of the co-existence of nullum crimen, nulla poena sin lege with analogy; and preference in case of conflict between nullum crimen, nulla poena sin lege and analogy. Some Chinese scholars think that the abolition of analogy was necessary and it was a universal principle under nullum crimen, nulla poena sin lege in all major countries under the rule of law.
The adoption of nullum crimen, nulla poena sin lege is a must and analogy with it is mutually exclusive. It is important to know that the upholding of nullum crimen, nulla poena sin lege necessarily required the abolition of analogy in criminal law. Finally, it was decided that the principle of nullum crimen, nulla poena sin lege should be incorporated into the revised criminal law in 1997. It is clearly stated that ??All criminal acts expressly stipulated by law as crimes shall be determined as such and punished according to the law; acts not expressly defined by law as criminal shall not be judged so and shall not be punished.??
Equality Before the Law and Marxism-Lenism-Mao Zedong Thought as a Guiding Ideology for Criminal LawArticle 4 of Criminal Law stated that ??Every one is equal before the law in committing crime. No one is permitted to have privileges to transgress the law.?? This is the principle of ??equality before the law?? It was added to the revised criminal law in 1997 for the omission of the old criminal law principle that ??Marxism-Lenism-Mao Zedong Thought as the guiding ideology for criminal law,?? which strongly emphasized the class nature of law. The change of this principle was actually the change of ideology of PRC from class struggle to the market economy and to be closer to the world??s legal system. The principle of equality before the law was brought to consideration in the post-Mao era.where it was argued vehemently that whether equality before the law meant only equality in the application of the law or also included the making of law. As the officials and some scholars thought, the major concern of upholding the principle was mainly to prevent privilege being accorded to officials of all ranks; that is, law was to attack tigers and files alike.
In fact, the principle not included in the substantive law (Criminal Law) but was incorporated into procedural (the Criminal Procedure Law) or organic laws (the Organic Laws of the Court and Procuratore). This kind of principle also led to the reinstatement of the equality principle in the 1982 Constitution. So it is very important to add the principle of ??equality before the law?? as it was stated in most world??s legal system, this principle serves as an important concept to embody ??Every one is equal before the law??. The incorporation of ??equality before the law?? makes the Criminal Law of PRC become even modernized. It is also important to note that Marxism-Leninism-Mao Zedong Thought as a guiding principle of criminal law has now been legitimately abolished which perhaps means the final burying of the class nature of the criminal law of PRC .
Although the Chinese government still emphasizes the importance of this kind of ideology, it was the fact that its influence has dropped compare to the early years of PRC. (Before the economic reform in 1980s). This modification conforms the trend of the world??s legal system as well.
Proportionality (Principle of Zuixing Xiang Shiying)
This is one of the important guiding principles of the Criminal Law of PRC that incorporated in the 1979 Criminal Law. It was the policy of combining punishment with leniency, the meaning of ??leniency?? refers to those who confess and severity to those who resist in the determination of sentence. This principle is important that the Court give a judgment or sentence according to suitable level of severity of that crime. It is stated that ??The severity of punishments must be commensurate with the crime committed by an offender and the criminal responsibility he bears.?? This is what the Chinese scholars referred to as the principle of proportionality (Zuixing Xiang Shiying Yuanze). Without the adoption of the principle of proportionality, it can give loopholes in the law for officials in power to escape legal sanctions or avoid serve punishment. The emphasis on confession is also potentially in conflict with the presumption of innocence.
As we have mentioned before, the guiding principle of Marxism-Leninism-Mao Zedong Thought has abolished to adapt the trend of world??s legal system. The main theory of this principle is to make sure that there will be a balance between various provisions of the Law on punishing crimes. The adoption of this principle has given new perspective to the criminal law. There are four important aspects of the principle. First, it is the basis for the General Provisions in dealing with issues of preparation to commit a crime, attempted crimes, incomplete crimes, joint offence, recidivism, and voluntary give up. Second, the Specific Provisions of the Law shall have a balanced approach in defining punishment for criminal offence according to the seriousness of the crime. Third, the nature of the crime and its social harm shall be the main factors in judicial determination of punishment. Finally, it has been meaningful that it means the Chinese principle of proportionality is not purely a reflection of the backward-looking philosophy of retributive justice. (mutually revenge, ??an eye for an eye; a tooth for a tooth??). It is important that the aim of the educational function of the criminal law has not been abolished. From this point of view, it can be seen that the traditional forward-looking utilitarian views on justice still existed. Some articles in the criminal law has not been revised in the 1997 revised Criminal Law such as Article 57, it gives judge a great latitude in imposing criminal punishment. This loopholes lead to the unbalance of Proportionality as the judicial authority has long emphasized the accurate use of law in verdict. However, there are some revisions to avoid misuse of leniency in order to achieve that intended purpose., it also further elaborates a number of articles dealing with aggravating and, in particular, mitigating circumstances. It stated that the imposition of punishment below the minimum punishment prescribed by the law must be approved by the Supreme People??s Court. The Criminal Law has given leniency under specific circumstances, such as voluntary surrender as not only voluntary surrender to the authority after committing a crime, but also includes the truthful confession of crimes committed. Furthermore, any criminal suspects, criminal defendants or convicted criminals who voluntarily and truthfully confess crimes not yet discovered by the judicial authorities will also be treated leniently. Offenders who provide information or other assistance to investigatory organizations in solving crimes committed by other people will also get lenient punishment.
The above articles improve the old criminal law in 1979 in handling leniency, but it should note that their still loopholes in the revised criminal law in terms of elaborate and detailed provisions on aggravating and mitigating circumstances. Today, there still many problems exist in the criminal law, such as the unbalanced judgment between different cases with same crime. This is due to the general system of Chinese Law as China adopts Civil Law system which Chinese judicial authorities often neglect the use of case law in each sentence. The judge always only refers to law itself but rarely refers to cases. This is the basic reason lead to the unbalanced sentence. In addition, China territory is too large that it is almost impossible to get the same judgment in all provinces. Although the Criminal Law has been revised in 1997, there are still many articles, its meaning seem to be too vague so that it will be difficult when interpret them. The judge still has large latitude when sentence where the interpretation of law is not so accurate. Therefore, a proper application of the principle of proportionality will be a crucial point in the future operation of the Criminal Law.
White Collar?? Crimes—-??Unit Criminality?? (Danwei Fanzui)The ??unit criminality?? is defined that crime is committed by not only person but a unit or legal person, such as companies, organization, enterprises, institutions, state organs and corporation when their acts endanger the society, they shall assume legal liability. This is a rather new concept in the PRC??s Criminal Law. But there are some difficulties in carrying out it. For example, a corporation as an abstraction is conceptually without its own mind. It is thus difficult in location mens rea in imposing criminal liability and it has no physical existence of its own. It is also difficult to determine which kind of criminal punishment is committed, such as incarceration, are inapplicable to a corporation. Under this circumstance, the principle of ultra vires in corporations law certainly does not help in developing a theory of corporate criminal liability.
However, in the revised criminal law in 1997, modifications of articles had been incorporated into the criminal law. There are also three main areas which can be identified. First, there was the proposal that the General Part of current Criminal Code to be amended expressly provide criminal liability of legal persons and that individual acts and regulation is made to provide for specific crimes and punishments. Secondly, it is suggested that the Criminal Code is wholly amended to criminal liability of legal persons in general and specific crimes and punishments in detail. Other voices urged that it is important to advocate the making of special code on criminal liability of legal persons and guidelines for the imposition of punishments. The adoption of ??Unit Crimes?? (Danwei Fanzui) brings the Criminal Law of 1997 into new dimension. Article 31 and 32 pointed out that when a unit committed crimes, they should bear the criminal liability. This not only included the unit but also included persons who are involved in the unit. It should also be noted that the revised Criminal Law uses the term ??Unit Crime?? instead of ??corporate crime.?? It is because many organizations are not necessarily a corporation but may nevertheless commit a criminal offence, that is why the term ??unit?? is to involve not only companies, but also other unincorporated organizations.
Territorial and Extraterritorial ApplicationThis referred to the validity scope of Criminal Law we have mentioned before, it includes in both territorial and extraterritorial. It is applicable to offences committed by any person. If foreigners who enjoy diplomatic privileges and immunity will be resolved through diplomatic channels . On the other hand, the Criminal Law also maintained its extraterritoriality. Under this law, Chinese people committed crimes outside China will not be punished unless specific offence such as ??endangering state security crime?? (formerly called counter-revolutionary crime). However, the new revised criminal law has expanded its validity of extraterritorial application. It applies to all Chinese people who committed crime outside China if the maximum punishment is three years or above. The amendment of the law aimed at targeting at the increasing number of Chinese students and business people now studying or working abroad. It remained valid to the extraterritorial application even if an offence has been tried by a foreign state. But, if the offender has been punished by foreign state, their punishment may be wholly waived or partially mitigated. This principle is important that it clearly rejects the principle of double jeopardy as far as crime committed outside China. By the way, another new concept of the principle of non-retrospectively has been adopted under the revised criminal law. It stated that offences committed before the revision shall be pursed by the previous, but if the new law does not consider the act an offender or provides a lighter punishment, the latest law shall be applied in the case.
The characteristics of The Criminal Law of PRCAfter the introduction of the guiding principle of the Criminal Law of PRC, it should be noted that there are five guiding principle of it. When we evaluate the Criminal Law of PRC, we have found that some of the characteristics of the Criminal Law and it will be summarized in the following paragraphs. There are, in general, have three general layers of the characteristics of the Criminal Law.
China has one layer of law which is a Western-style penal code which became effective in 1980 and is known simply as the Code of Criminal Law. This discusses criminal responsibility, distinguishing between intentional and negligent acts and providing for diminished responsibly in various circumstance such as where the offender is young or mentally ill. This code has rules on sentencing and parole and a statute of limitations. In many cases convicted criminals continue to work and receive wages and must report regularly to the local police, sometimes there is confinement in a local detention house. Only in extreme cases is there “penal servitude” which often is tied to the commission of multiple crimes and usually results in commitment to hard labor in a prison camp. Capital punishment may be imposed to be executed immediately, or in many cases, with a two-year suspension under which if the individual shows repentance and reformation the sentence may be lessened to years in penal servitude. Crimes under this law code include counter-revolutionary crimes (it has been changed to the ??endangering state security crime?? in the revised criminal law of 1997), property violation, disruption of marriage and the family, and dereliction of duty and corruption.
The second layer of Chinese criminal law is the Security Administration Punishment Regulations. This is a set of rules most recently revised in 1994. Most of Chinese social order is administered at this level and not at the level of the criminal code. The SAPR took up 3 million cases in 1992, compared with only 423,000 criminal cases that year. Three punishments are possible: a warning, a fine of up to 200 Yuan, and detention for up to 15 days. The administration of these punishments is done at the many sub-stations across the country. The offences are disruption of public order, interfering with public safety, infringing the personal rights of others, damaging public or private property. Where a striking difference between Western law and practice in the PRC is that a trial is not for the purpose of determining guilt or innocence in the PRC. Guilt is determined before hand by the accused, lawyers, and police (Political-Legal Committee of the Party). The Chinese rule is xian pan hou shen (verdict first, trial second). The defense lawyer’s role is usually to plead mitigating circumstances and to help the defendant admit his crime and encourage the defendant and his/her family to submit to the law. This means that the main function of a trial is educational. It is meant to educate persons about what is considered wrong and what actions will be taken. A trial is a public performance and will probably be rehearsed and staged before the “audience” (public) is admitted.
The third layer of Chinese criminal law is re-education through labor. This law is administered by the Ministry of Public Security. Punishments may be longer and harsher than under either of the other forms of law. This administration has the power of custody and investigation, according to which suspicious persons can be detained while police is investigating crimes that they have committed, might have committed, or might commit. In China, when law is invoked it is a device for shaming the participants into rejoining the community. That is what the pre-trial phase is all about. It is the shame of the investigation and litigation phase that is suppose to do the work of restoring persons to the community. Indeed the China historian, BrianMcKnight, has surveyed the dynastic histories and has demonstrated that across 2000 years, the gates of the prisons were thrown open with amnesties and pardons every two or three years. In general, all of this is deeply rooted in the Confucian assumptions about a viable community. People are always located within a context of moral and communal ties and interdependence. This traditional concept still somewhat affects the theory of law in China today.
As in general, the Criminal Law has following general characteristics from the previous incomplete criminal law system. It gives a clear distinguish between criminal and non-criminal offenses. The principle of equality before the law applies to all crimes and to all criminals, it represented PRC??s Criminal Law closely approach to Western style and principle. The policy of combining punishment with leniency which imposed different penalties according to criminal offences. It was, the Criminal Law clearly stipulates that adoption of capital punishment under circumstances as specified. Above features are the general principles as mentioned in the previous paragraphs and it also becomes characteristics of the Criminal Law.
Problems concerned to the Criminal Law of PRCFirstly, it will be the problem of arbitrary arrest and detention—-in China a person could be detained because it is believed he is are preparing to commit a crime, the law requires that a detainee’s family be notified within 24 hours, unless this hinders investigation or is not possible. Often this means that a notification may be delayed for long periods or never issued. By law, the authority must either approve the arrest or order the release of the suspect within three days, but police reportedly detain persons for much longer periods.
Secondly, it is the Torture and cruel or degrading punishment—-Although this seems must not happen in China under the guidance of the present Criminal Law, but in China since a part of the investigation process is helping the accused to come to admit his/her crime, measures are often employed which violate the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which China says it supports. But mistreatment during interrogation ranges from beatings, to assault with electric baton, use of shackles and chains, suspension by the arms or feet, confinement in tiny and dark cells, deprivation of sleep and food, etc. Further, medical care is seldom given to those who have suffered torture during interrogation. Currently, since these practices are considered “acts of investigation” rather than “acts of administration” citizens wronged in this way cannot bring suit or complaint.
Thirdly, Chinese people today still have no right to counsel, to have fair and to join public hearings–in China trials are held in public, but the hearing and determination of guilt or innocence and even what punishment will be implemented is already determined before the trial. Trials can be attended, but only by ticket. Seating is limited. There is no presumption of innocence for an accused. In fact, it is the defense’s responsibility to prove innocence, or that the crime is minor, or that punishment should be mitigated. The burden of proof is on the accused. Under Chinese law, the authority does have a duty to guarantee that defendants obtain defense, but this need not be professional legal counsel. It could be an ordinary citizen or relative.
Although as we have mentioned in the above guiding principle of the Criminal Law that under article 67 and 68, but actually this principle cannot be fully functioned. As sometimes defendants who fail to “show the right attitude” by confessing their crimes are typically sentenced more harshly. Criminal trials remain essentially sentencing hearings, despite official denials of this. Confessions without corroborating evidence are insufficient for a conviction under law, but coerced confessions are still frequently introduced into evidence.
Fourthly, there still no fully freedom of opinion and expression in China, as no need to mention, China today is still an one party rule country. The ruling party?XChinese Communist Party (CCP) represents all voices from people, no one could challenge it. Therefore, it is illegal to attack the CCP, socialism, or Mao’s thought. Freedom of speech and expression is limited, and violations are counter-revolutionary (now is amended as endangering state security). The goal is to create a society which exercises self-censorship and this is based on the belief that all party officials also exercise self-criticism. There are limits on demonstrations, assemblies, and parades which can cause harm to the interests of the state and society. Furthermore, Freedom of religion is also limited—though the law provides for freedom of religion, proselytizing and foreign missionary work are not officially permitted on the grounds that these activities lead to the foreign domination of Chinese believers. Many churches, temples, mosques have been reopened since the Cultural Revolution.
ConclusionSince 1979, the first completed Criminal Law was adopted, it brought China ??s concept of rule of law into a new era. After almost 20 years, there have been changes in the criminal law passed during the 1997 which showed a significant development in China??s transition to the rule of law. Difficulties and problems remain with the implementation of both the revised Criminal Law but there is growing recognition in the reforms of the protection of human rights. Clearly, the 1979 Criminal Law as amended in 1997 now represents a formalistic approach towards crime and punishment. It also is a symbol of formally abolish the concept and direction of class struggle and revolution under the CCP, as the most obvious one is the amendment of the ??counter-revolutionary crime?? to the ??endangering state security crime?? in the revised Criminal law of 1997. This change reveals the modernization of the Chinese Law. The debate on reform of the judicial system is still continued and ongoing. Where there is an active research and often-heated debate on how to introduce this covenant into China??s domestic criminal justice system. Although the new revised Criminal Law added, improved and amended many of its articles, let it become more modernized as new concept and wording are incorporated into the Law. Some problems still exist in the revised Criminal Law such as some wording still to be too vague to have interpretation, this give large latitude to judges whenever they make verdict. As under Civil Law system, it rarely referred to the previous law cases. There are also improper sentence by the Court when referred to the same case as different region has different routines when give a sentence. This kind of unfair situation must be solved in the future. Generally speaking, it is believed that the Criminal Law will soon be considered by the Chinese authorities to revise again as to make it become even more completed.
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