Keywords criminal law structure, uniform criminal code, single track system, double track system
1 Definition of Criminal Law Structure and Research Perspective
Recently, general criminal jurisprudence textbooks and treatises have defined criminal law as the legal norms for prescribing the crimes and penalties, and after pointing out its components, discussed it by classifying it into such two parts as crime and penalty without discussing the relationship between both parts. In the opinion of Professor Chu Huaizhi, “its components are not equal to its structure”, and he acutely pointed out that with the same components, if the proportion (structure) of the components was different, the nature of a thing would be different. For instance, with the same methods for criminal punishments (components) such as death penalty, imprisonment and fine, if their percentages are different, a severe punishment structure or a light punishment structure will be formed. [1]
Then, what is the criminal law structure? Professor Chu defined it as the “combination form of quantity of crime and penalty”. [2] Later, he pointed out that the criminal law structure was actually the combination form of the different elements in the criminal law system, that is, the combination of crime and penalty in different quantities. The quantity of crime shows the scope of crime circle while that of penalty means the degree of penalty. The size of the crime circle means the density of the net of the criminal law, while the degree of penalty means the degree of the severity of statutory penalty.[3]
According to the severity of punishment upon establishment of crimes, Professor Chu divided the combination of the crimes and punishment into four types, that is, four types of criminal law structure: (1) neither strict nor severe, (2) both strict and severe, (3) strict but not severe, and (4) severe but not strict. In his view, neither the “strict and severe” criminal law structure nor the typical “neither strict nor severe” criminal law structure exists, and in most countries which have developed and have higher level of rule of law, the criminal law structure is of the type “strict but not severe”, while the current Chinese criminal law structure is of the “severe but not strict” type. The “strict but not severe” type of criminal law structure is the type with “less severe punishment” with “strict net of law”, while the “severe but not strict” type of criminal law structure is with “severe punishment” but “with less strict net of law”, the later of which is the intrinsic reason for the non-smooth criminal law mechanism. The direction of Chinese criminal law reform should be from the “severe but not strict” type to the “strict but not severe” type.[4]
Professor Chu’s definition and classification of criminal law structure are enlightening, but the author is of the opinion that it is still necessary to discuss his definition and classification. Firstly, he seemed to simplify the components of criminal law system into such two components as crime and penalty. But in fact, though crime and penalty are two essential elements in the criminal law structure, the criminal law structure is absolutely not limited to the mutual relationship and combination of such two components, and it should also include the coordination among the criminal code and separate criminal laws and accessory criminal laws, the coordination among the criminal law and the law on punishment for administration of public security and the law for correction of illegal acts (law on re-education through labor ), and the coordination among the clauses within the criminal law. Secondly, he divided the criminal law structure into four types, but in fact, denied the existence of two of them, and hence there remained only two types: the type of “strict but not severe” and the type of “severe but not strict”. However, “strict” and “severe” are opposite. Do all the criminal law structures in those economically advanced countries of higher level of rule of law belong to the type of “strict but not severe”? How to explain their differences among the criminal law structures? Thirdly, he mainly regarded the criminal law structure as something macrocosmic .that is to say,the criminal law structure either belongs to the type of “strict but not severe” or belongs to the type of “severe but not strict”. However, it seems insufficient that the criminal law structure should also be further studied from a microcosmic view. For instance, Chinese criminal law structure belongs to the type of “severe but not strict”, but is there any possibility that, in general, the penalty is too “severe”, but in some certain aspects the penalty is too “light” (especially the incoordination among penalties of different crimes)? Or is there any possibility that, in general, the net of criminal law is “not strict”, but for some certain crimes, it is too strict that some acts that should not be regarded as crimes have been prescribed as crimes? As a matter of fact, it will not be hard to realize that those problems really exist after micro examination of Chinese criminal law structure.
In addition, the research on the criminal law structure is not necessarily limited to such view put forth by Professor Chu. In fact, the criminal law structure can be studied from many views. For example, German scholar Jescheck analyzed the criminal law structure as follows: (1) preconditions of punishment (mainly referring to the part of “crime theory” in the general provisions); (2) penalties and measures; (3) specific elements (mainly referring to the content of the special provisions); (4) international criminal laws (such as Law on Implementation of the Rome Statute of ICC enacted by Germany in 2002); (5) accessory criminal laws (such as the Narcotics Law).[5] Several years ago, in a written discussion about the construction of the criminal law discipline, I put forth the idea of “three-dimensional criminal law”, that is, the study of criminal law should be combined “forwardly” with criminology and “retrospectively” with the science of execution of punishment, with criminal procedure law “at left” and with civil law, administrative law and other branch laws “at right”, “upwardly” with constitution and international law and “downwardly” with the law on punishment for administration of public security and re-education through labor, “internally” with interpretation of law and “externally” with necessary demarcation established for such interpretation.[6] The idea of three-dimensional criminal law, in fact, can be taken as a train of thought. for research on the criminal law structure, that is, taking the criminal code as the axis, and radiating to: (1) “forwardly” such the actual laws as the Law on Preventing Juvenile Delinquency and such the deserved laws as the Law on Preventing Crime, the Law on Protection of Witnesses and the Law on Protection of Victims, and “backwardly” such the actual law as Jail Law and such the deserved laws as the Law on Execution of Penalty; (2) “at left” the contents of criminal law included in the criminal procedure law, and “at right” the accessory criminal norms included in branch laws such as administrative laws; (3) “upwardly Constitution and international treaties”, whereby in some countries, important criminal matters such as principle of nulla poena sine lege and abolishment of death peanlty have been raised to the level of Constitution,[7] and though this is not the case in China, the interpretation and understanding of those matters need to be based on the spirit of the Constitution; as to the international crimes related to the international treaties approved by Chinese government, it has been stipulated in the general provisions of the Chinese Criminal Law that: This law is applicable to the crimes specified in international treaties to which the PRC is a signatory state or with which it is a member and the PRC exercises criminal jurisdiction over such crimes within its treaty obligations, so it is also necessary to take this view; and as for “downwardly the punishment for administration of public security and re-education through labor”, just as to be discussed below, they are parts of foreign criminal laws; (4) “combination of internal and external research”, whereby it is understood that “internal research” means research on the criminal code, and “external research”means research on all the criminal regulations except for the criminal code, such as separate criminal laws (special criminal laws) and even “quasi-criminal laws” including legislative interpretations and judicial interpretations of criminal laws.
If we say Professor Chu has studied the criminal law structure in substantive view, then Professor Jescheck’s study and the study by the author may be regardes as studies of the criminal law structure in form. Of course, the substantive criminal law structure and the formal criminal law structure cannot be distinguished completely from each other, and they are of some inner connections. Take the relationship among the law on punishment for administration of public security, the law on re-education through labor and the criminal code as an example, on the surface, it is the external form of the criminal structure, but it also relates to the definition of “the scope of crimes” and “the severity of penalties”. But anyway, they are not the same things. For instance, if the crime and penalty for a mala prohibia (administrative crime) are the same, it is only a question of choice of form whether to prescribe it in the criminal code or in accessory criminal laws.
2 Path selection to adjusting the criminal law structure of China
2.1 From a small criminal code to a large criminal code
At present, Chinese scholars in civil law are dedicated to enacting a uniform civil code, while scholars in the criminal law academic circle may say proudly that the Criminal Law of the People's Republic of China (hereinafter referred to as the Criminal Law) has been enacted early since 1979, and the newly revised Criminal Law has also been stipulated since 1997. But in my view, the present criminal code in China now is not a complete criminal code in real sense, and thus the task to enact a uniform criminal code has not been completed.
My conclusion is mainly based on the inspiration from the provisions concerning the crime classifications and punishment in several foreign criminal codes.
According to Section 1.04 of US Model Penal Code, crimes are classified into such four types as felony, misdemeanor, petty misdemeanor and violation. And the first three types are called “crimes”, the punishment of which may involve the deprivation of personal freedom (in case of petty misdemeanor, the punishment should not exceed 1-year imprisonment), and in case of the fourth type, violation, the punishment should only be fine or other civil punishment, and “there should not occur limited capability or unfavorable legal situations due to the conviction of a crime.”[8]
In France, crimes have been classified into three types such as felony, misdemeanor and violation in criminal law according to the severity of the crime since 1791, and the same classification was adopted by the new criminal law revised in 1994.
In Germany, early in the Criminal Code of Empire (the origin of current criminal code) enacted in 1871, crimes were classified into felony, misdemeanor, and violation, and violation was defined as “a crime for which the punishment is criminal detention or fine less than 150 empire Mark.” In Liszt’s view, this kind of classification made it possible for the lawmaker to give brief statement easily in many place of law.[9] In the current German Criminal Code (revised in 2002), crimes are divided into the following two types: felony and misdemeanor,[10] felony of which refers to “a crime for which the lightest punishment is the freedom penalty of one year or more than one year”, and misdemeanor refers to “a crime for which the severest punishment is less than one year freedom penalty or pecuniary penalty”(Article 12). [11]In addition, in Chapter 3 “Legal Results of Acts” of the General Provisions of current German Criminal Code, “correction and security measures” are prescribed together with “peanlty”. Thus, correction and security measures include: place custody in mental hospitals, place custody in drug rehabilitation institutions, security supervision, behavior supervision, revocation of driving licenses, and prohibition of professions.
Therefore, it is obvious that in the criminal laws of most countries in the world, crimes are basically classified into such three types as felony, misdemeanor and violation, and in many countries, security measures is incorporated in the criminal code systematically. In Chinese criminal code, there is only the part of felonies as included in the criminal codes of western countries, [12]but there are no such contents as violation, misdemeanor and security measure. In China, crimes are prescribed not only according to the nature of behaviors, but also according to the severity of behaviors (such as requirements for relatively large quantity or severe circumstances). Besides criminal laws, there are the law on punishment for administration of public security and the law on re-education through labor. Furthermore, there are no systemic security measures in Chinese criminal law.
Based on the current legislations, the criminal law was revised in a narrow sense in 1997, though some scholars advised to solve the issue of re-education through labor all at once. The Law of People’s Republic of China on Punishment for Administration of Public Security (hereinafter referred to as the Law on Punishment for Administration of Public Security), which was based on the revision of the original Regulation on Punishment for Administration of Public Security, was promulgated on August 28, 2005, and went into effect on March 1, 2006. The legislature is now preparing to formulate the Law on Correction of Illegal Acts. So in an actual view, the situation of such three laws co-existing at the same time will continue. In my view, it will benefit the formulation of a more scientific criminal law structure to unify those three laws and incorporate the security measures into one criminal code.[13]
Firstly, let us have a look at the comparatively independent security measures, which include “correction measures” and “protective measures”, and the former emphasizes correction, such as drug treatment, while the latter emphasizes security, such as taking the mental patients who, by behaviors, seem dangerous to the public security into mental hospitals. The values of security measures are as follows: (1) to protect the public security is always the first task of criminal laws, while the narrow sense of criminal law cannot completely fulfill this task, because those people who incur harms to the society without capabilities for criminal responsibility, such as the mental patients, and those who incur harms to the society but have not reached the age of criminal responsibility cannot be imposed with penalty by criminal laws, but it is necessary to take corresponding measures for public security; (2) penalty need to be supplemented by security punishment, and for some criminals, general penalty is not enough to educate and help them back to the society, and correction measures are needed as a help (for example, to those addicted to drugs, the correction measures such as drug treatment are necessary before execution of penalty), or through assessment after a fixed term penalty, it is felt that the criminal is still dangerous and it is necessary to continue keeping him in the prison or receive other supervising measures.
However, since security measures relate to the deprivation or limitation of personal freedom, the severity of its legal consequence may be equal to that of the criminal law, and therefore laws and regulations are needed to prevent the infringement on the human rights of the enforcement objects. The current situation in this area in China is not ideal. Take the followings for example: (1) shelter and rehabilitation. Subject to the criminal law, when a person is not criminally punished because he has not reached the age of sixteen, if necessary, he may be given shelter and rehabilitation by the government. According to the relevant documents, the term of shelter and rehabilitation is 1-3 years, public security organs are authorized to make a decision of shelter and rehabilitation. The original intent of legislators is to protect teenagers, but the opposite results may occur. For example, several years ago, there happened an arson case in “Lan Ji Su” Internet Bar in Haidian District, Beijing, the arsonists are two teenagers, one of them who was elder enough to bear the criminal responsibility was convicted and imposed with penalties by the court, and the other one who was too young to bear the criminal responsibility was given shelter and rehabilitation by the public security organ and was deprived of the right of a open hearing, the right of defending by a lawyer and the right to appeal. (2) Mandatory medical treatment. According to Article 18 of the Criminal Law, if a person shall not bear criminal responsibilities due to mental diseases, if necessary, the government may compel him to receive medical treatment. In fact it is also the public security organ that makes such decision. The current problem is that there is no assorted measures and construction and in such case, in normal days people who should be given mandatory medical treatment is at large outside, which brings harm to their own personal safety and the personal safety of others, or within the period of important holidays and activities, the scope of mandatory medical treatment is enlarged at random, and at the end of such period they will be released due to economic pressure. Hence, till now there is neither the system established to offer free physical and psychological treatment for mental patients nor the system established for the mental patients who need medical treatment and may return to the society to get advices from the corresponding physical and psychological doctors and decisions from the court. (3) Mandatory detoxification. Subject to the relevant provisions, public security organs may make decisions on mandatory detoxification of 3-6 months with drug addicts, or re-education through labor and drug treatment with those who retake drug. The decisions above may be arbitrary to some extent, and it has been proved in practice that giving drug treatment through depriving personal freedom or even punishment is not an ideal choice. (4) Shelter and education. Those who prostitute or patronize a prostitute will be given shelter and education for a period from 6 months to 2 years by public security organs. Those who re-prostitute or patronize a prostitute again after such shelter and education will be given re-education through labor. The decision above may also be obviously arbitrary.
So, for protecting public security and safeguarding human rights, it is necessary to systematize the correction measures and security measures and adopt them into the criminal code as integral parts. Through such reforms, the application of all correction measures and security measures will be more normative and the criminal law’s function of protecting public security and safeguarding human rights can be better accomplished.
Secondly, let us focus on studying of adopting re-education through labor and punishment for administration of public security into the criminal law. It should have been noticed that the current situation in which three laws (criminal law, regulation on re-education through labor and law on punishment for administration of public security) co-exist at the same time has seriously affected the scientificalness of the criminal law structure, which has been the fundamental reason for the failure of the realization of the criminal law mechanism. The passive consequences caused by such situation can be listed as follows:
First, discord in legislation. It is stipulated in Article 2 of the Law on Punishment for Administration of Public Security that: “A person who disturbs public order, endangers public safety, infringes on the rights of person and property or hampers social administration, which is harmful to the society and which, according to the provisions of the Criminal Law of the People’s Republic of China, constitutes a crime, and shall be investigated for criminal responsibilities according to law; and if such an act is not serious enough for criminal punishment, the public security organ shall impose on him a punishment for administration of public security according to this Law.” According to this article, the punishment for administration of public security and criminal law could have joined with each other closely, but in fact there is a system of re-education through labor in China, and the longest term of personal freedom that it can deprive is three years (as can be extended for another one year if necessary). It is commonly thought that re-education through labor was established in consideration of the personal dangerousness of the actor, with focus on the prevention of possible crimes, while the criminal law and the law on punishment for administration of public security were established in consideration of the harmfulness of behavior of the actor, with focus on the punishment of happened crime. This thought is obviously in compliance with the practice, but is against the principle of modern criminal law.because in modern criminal law, the actor and his behavior, the prevention of the possible crime and the punishment of the happened crime should be combined organically. Ought to say that because re-education through labor emphasizes paying attention to the actor’s behavior and personality, intentionally or unintentionally, the criminal law in China only emphasizes the results, fails to give enough consideration of the actor’s personality. And besides the lack of coordination among the legislation of re-education through labor and the criminal law and the law on punishment for administration of public security, there are some “ambiguous” areas in the latter two laws. For example, it is stipulated in Article 40 of the Law on Punishment for Administration of Public Security that: “unlawful intrusion into another person's residence or unlawful body search of another person” are illegal behaviors “infringing against the personal rights of others” that should be punished according to the law on punishment for administration of public security, while it is stipulated in Article 245 of the Criminal Law that: “Whoever unlawfully subjects another person to a body search or a search of his residence or unlawfully intrudes into another person's residence” constitutes “the crime of illegal search” and “the crime of illegal intrusion of residence”. There is hidden trouble here for the interpretation and application of laws because the contents of both articles above are the same, but are stipulated in two different laws.
Second, discord in law enforcement. For the system of re-education through labor and the punishment for administration of public security, they are all applied to the acts that are not serious enough for criminal punishment, hence leading to the conflict between them as well as the discord among the re-education through labor, the punishment for administration of public security and the criminal law. [14] Furthermore, when some persons who constitute a crime and are not prosecuted under criminal law in practice may receive the punishment of re-education through labor, or even punishment for administration of public security, which certainly will cause the confusion in law enforcement. For example, in Oct 2006, the boss (female) of Wenbi Hair Salon located in District N, Shenzhen was seized for sheltering prostitution 16 days later, and was sentenced a five-year fixed-term imprisonment by the people’s court in District N, Shenzhen according to Article 359 of the Criminal Law. She lodged an appeal, but Shenzhen Intermediate Court upheld the ruling. In December the same year, the boss (female) of another hair salon located in District L, Shenzhen was also seized for sheltering prostitution 18 days later, and was detained for 15 days and was fined RMB5,000 according to the Law on Punishment for Administration of Public Security by the public security organ in that district. Why did the act of the same nature get a different legal verdict? The reason is based on the different provisions on the same act in the Criminal Law and the Law on Punishment for Administration of Public Security. Article 67 of the Law on Punishment for Administration of Public Security and Article 539 of the Criminal Law have completely the same provisions on the crimes of inducement, sheltering and introduction of prostitution by women. What is harder to operate is that, according to Article 359 in the Criminal Law, whoever seduces other persons into or shelters prostitution or procures other persons to engage in prostitution shall be sentenced to fixed-term imprisonment of five years or more; if the circumstances are general or not serious, he shall be sentenced to fixed-term imprisonment no more than five years. But according to Article 67 of the Law on Punishment for Administration of Public Security, a person who seduces, shelters or introduces another person to engage in prostitution, if the circumstances are serious, shall be detained for not less than 10 days but not more than 15 days and may, in addition, be fined not more than RMB5,000; and if the circumstances are not serious, he shall be detained for not more than five days or be fined not more than RMB500. It means that the punishment in serious circumstances for this same act is also provided for in the Law on Punishment for Administration of Public Security.[15] With respect to the existence of such deep concurrence provisions in the Criminal Law and the Law on Punishment for Administration of Public Security, , the justice of law enforcement can still not be guaranteed, even though the case is handled by a person of impartial attitude.
Discord in law enforcement will cause harms in many aspects. Firstly, it wavers people’s belief in law. In the current situation that judicial authorities have no good enough public trust, it is easy for people to think of judicial corruption if the same act can not receive the same treatment (in fact, this really exists in a few number of cases). Secondly, it influences the efficiency of law enforcement, and increases the judicial cost. In practice, there was one case happening like the following: there was a quarrel between two families; one family gathered some relatives to make some noise to the other family. At the beginning, the public security organ treated it as a public security case. But the victim family did not agree with this and thought this case should be treated as a criminal case, and repeatedly reported this to the higher level authorities, sought help from personal relationship and the media. Finally, the public security organ was forced to handle this case as a criminal case due to the influences from different factors. Thirdly, it is not good for the safeguarding of human rights of the objects of law enforcement. Some cases, at the beginning, were treated by the public security organ as criminal case, but were rejected by the procuratorial organ due to lack of evidence, and after this the criminal suspects should be released, but the public security organ gave them the punishment of re-education through labor. What is more unfair, even when a crime has been committed, the punishment available is probation or freedom penalty of a very short period, but the re-education through labor may be as long as several years.[16]
Third, discord in theoretic study. Because the criminal law in the integral sense is divided into several parts, criminal law scholars only pay attention to the criminal law in a narrow sense, and they are not familiar with and pay no attention to the law on punishment for administration of public security, re-education through labor and related security measures.[17] The theoretic study of the latter has thus been seriously backward, and many problems during law enforcement have been caused. Another issue in this regard is that the comparison of criminal statistical figures between China and foreign countries is meaningless due to its totally different way to judge the commitment of the crime from that in other countries. Hence, when making comparative study or foreign publicity, the following mistake will be easily made: to say there are lower crime rate and recidivism rate in China. [18] In fact, in China, the large quantity of the cases of public security and re-education through labor has not been included in the criminal statistical figures.[19] After comparing the penalty structure and system in China with those of other countries, we can find that their lower limits of freedom penalties are lower than that of re-education through labor, sometimes even lower than that of administrative detension. For example, in South Korea, there is a kind of criminal detension from 1 day to 30 days; in the criminal law of Switzerland, the period of imprisonment ranges from 3 days to 3 years, and detention from 1 day to 3 months.
From the above-mentioned analysis, the author believes that the unification of the criminal law structure should be one of the directions for the future development of Chinese criminal law. That is to say, punishment for administration of public security, re-education through labor and other security measures should all be included into the criminal law,[20] and there should be violation, misdemeanor, felony and security measures in the criminal law, the latter three of which must be decided by the court, provided the composition of the tribunals and the judicial procedures may be complex or simple. Thus, the relationship between related parts may be streamlined for avoiding the same case being prosecuted by different authorities by different ways. And on the basis of forming such a comprehensive criminal law, the legislature can formulate some “implementing rules” or supplemental laws(such as “Youth Criminal Judicature Law” ) to regulate some specific crimes separately.
Some people may worry that the above-mentioned reform may enlarge the range of crimes, whereby more people may be labeled as “criminal”, and this worry, in the opinion of the author, may be eliminated through corresponding system designing. For example, it may be prescribed by law that those who are punished according to violation, misdemeanor and some security measures will not be called as “criminal”, or a system may be established for expunging criminal records of different periods by force of law on the basis of the degree of the crime and once specific period has passed, the criminal records will not be kept and other related rights will recover automatically.
2.2 Shift from single track system to double track system
The single track system of criminal legislation refers to the system in which the legal norms on crime and penalty are only prescribed in the criminal code and separate criminal laws (or special criminal laws), while except in criminal laws, there are no independent clauses of crime and penalty in the administrative laws and economic laws. Professor Chu Huaizhi said: “this kind of legislative system only exists in China (exclusive of Hong Kong, Macao and Taiwan), while in other countries and regions, criminal laws are all composed of two parts, and other laws than criminal law can have independent clauses of crime and penalty, if necessary, which are called accessory criminal laws or administrative criminal laws, and such mode is called double track system.” [21] I have initially discussed the shortcomings of single track system and the values of double track system in Chinese legislation of criminal law in an article written in 2002 on improvement of legislation for the acts of undermining the election of villagers’ committee. In that article, I suggested a new idea of legislation: “by amending Article 15 of the Law on Organization of Villager’s Committees, the expression of ‘handling by force of law’ therein shall be clarified, thus directly prescribing the ‘crime of undermining the election of villager’s committees’ and its criminal responsibility as well as the content of corresponding public security punishment. There may be certain obstacles with respect to the last way because till now, no new crime has been prescribed in accessory criminal laws directly. But in our opinions, in order to avoid the legislative defects caused by such unpractical words as “handling by force of law” and “criminal liabilities shall be investigated under the law”, it should be an economical and feasible idea of legislation to prescribe the crime directly in economic laws, administrative laws and civil laws.[22] In March 2007, Professor Chu Huaizhi raised this issue again in an academic conference held in Beijing, which caused me to consider this issue more deeply.
In view of the legislative history of criminal law, it initially aimed at mala in se, but with the development of human society, mala prohibia was increasingly included into the criminal law.[23] Mala prohibia is prescribed in the criminal laws of different countries in the following three ways. Firstly, some behaviors which are of obvious crime characters, or which can be understood without reference to the content of administrative laws, or which have changed from a mala prohibia at the beginning to a mala in se in modern society (at least, a crime which is not so clear to be a mala in se or a mala prohibia),[24] such as forgery of money, will be prescribed as crimes in the criminal code directly. Secondly, at the time when the criminal code needs to be revised, some mala prohibias which were initially prescribed dispersedly in administrative laws will be adopted into the criminal code as a chapter or a section after necessary arrangement, such as the chapter “Crime of Damaging the Environment” in German Criminal Code. Some premises are required for this kind of legislation, for example, after long-term accumulation, this kind of crimes has changed into a big group, and there is not only one case or two cases, and at the same time, the criminal code promptly needs to be revised, when the state wants to declare its criminal policy in a certain aspect through this way. Thirdly, instead of being prescribed in the criminal code directly, a large quantity of mala prohibia are prescribed in the related administrative laws or economic laws. In accordance with the observance of some scholars, the quantity of mala prohibia (administrative offenses) which are prescribed in the laws other than criminal laws is much larger than that of mala in se (criminal crimes) prescribed in the criminal code. So, the world has changed from the time of mala in se into the time of mala prohibia.
Looking back at China, in the legislation of its criminal law, attention is not paid enough to tell the difference between mala prohibia and mala in se, and they are all prescribed in the criminal code and the separate criminal laws (special criminal laws), while there are only some vague words such as “criminal liabilities shall be investigated under the law” in a large quantity of accessory criminal laws. Such model of legislation leads to a lot of problems:
Firstly, it enlarges the cost of legislation and enforcement of criminal law. It will be a waste of time and energy in legislation if a new mala prohibia is often not prescribed in the new economic law or administrative law, and the crime and penalty are prescribed separately in an “amendment to criminal law” which is enacted at the same time or soon after. But during its enforcement, the understanding of the crime needs the reference to the related economic laws or administrative laws, which causes difficulties to learning, popularization and enforcement of criminal law.
Secondly, it is easy to leave blank areas in legislation and cause the problem that there is no proper law for enforcement to follow, or cause arbitrary enforcement. Sometimes, the term “criminal liabilities shall be investigated under the law” is not accompanied by a related criminal legislation, and hence being afraid of unknown criminal responsibilities, people dare not act, or think his act is allowed by the law but is punishable later. The former is not good for the construction of a creative and energetic society, while the latter is not good for the construction of a society in which people can predict the results of his behaviors. [25]
Thirdly, it increases difficulties in the mitigation of penalty. According to the opinion of academic circles of criminal law, mala in se should generally be punished severely, and mala prohibia should be punished relatively lighter.[26] Thus, Chinese scholars pointed out that: “in the theoretic background of the mitigation of penalty, in the dimension of distinguishing mala in se and mala prohibia, we can see that in the great process of mitigation of penalty, mala prohibia is more valuable than mala in se, and it can become the frontier of mitigation of penalty; Furthermore, a lot of great ideas for mitigation of penalty can be realized first in the area of mala prohibia.”[27] The prerequisite for such aim is to separate a number of mala prohibia from the discourse system of the mala in se in the criminal code.
Last, it is not good for the stability of the criminal code. “In terms of the nature of illegality, mala prohibia is always in the process of change and is not as stable as mala in se.”[28] In other words, in social life, the legal norms of mala in se are seldom variable, while those of mala prohibia are more variable and are always changed with the change of related administrative laws and economic laws. If double track system is adopted, that is, crime and penalty are directly prescribed in the administrative laws and economic laws, it will be easier to change such laws without influence on stability of the criminal code.
In summary, the single track system of criminal legislation in which “crime and penalty are prohibited in the laws other than the criminal law” should be changed. New mala prohibia should be prescribed directly in the related administrative laws or economic laws. The description of crimes should be more in detail and complete, and the statutory penalty should be more apt to the crime description. Though it seems that the unification of the criminal code will be damaged to a certain extent, but in fact, judicial operation will be more convenient. Just as one scholar said: “At present, in Chinese judicial practice it is mainly in economic criminal area that the difficulties are met in the criminal law enforcement (all economic criminal cases belong to cases of administrative offenses). To prescribe the crime and penalty clauses of this kind of criminal acts directly in the related laws will benefit law enforcement as a combination of skin and hair.”[29] It is sure that, sooner or later, the double track system of criminal legislation will be established under the background that new kinds of mala prohibia will occur and their number will keep increasing with the economic and social development of China.
Author
Liu Renwen, Ph.D, is a Professor of the Law Institute , Chinese Academy of Social Sciences. His major publications include: A Preliminary Study of Criminal Policy (2004), Economic Analysis under the Integration of Criminal Law (2007), The reform of the re-education through labour (Criminal Law Review, 2001), Enhance the quality of death penalty cases through the procedure (New Reports in Criminal Law, 2006).
References
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[1] See Chu Huaizhi, et al. Criminal Law Mechanism, Law Press China, 2004, p. 7.
[2] See Chui Huaizhi. Conflict between Crime and Penalty and Criminal Law Reform, China Legal Science, 1994, Issue 5.
[3] See Chu Huaizhi, et al. Criminal Law Mechanism, Law Press China, 2004, p. 8.
[4] Ibid.
[5] [German]Hans Heinrich Jescheck. Preface to Criminal Code of Federal Republic of Germany, German Criminal Code, translated by Xu Jiusheng, Zhuang Jinghua, China Fangzheng Press, 2004, pp. 10-30.
[6] Liu Renwen. Advocating Three-dimensional Criminal Law, Studies in Law and Business, 2003, Issue 3.
[7] This practice does not purely have formal meaning. For example, after the clause of abolition of death penalty was prescribed in the Constitution, it is not easy for death penalty to recover under the influence of public opinion and individual cases. Since it is harder to amend the Constitution than the criminal law.
[8] See American Model Penal Code and Annotations, translated by Liu Renwen, et al, Law Press China, 2005, pp. 8-9
[9] See [German] Liszt: German Criminal Law Textbook (revised by Schmidt in 1931), Law Press China, 2006, pp. 173-174
[10] The revision of the criminal law in West Germany was started in 1951. After considering social factors, lawmakers pointed out that violations should be separated from the criminal law, while will no longer be included in the criminal law, and the violations which are serious enough to constitute crimes will still be prescribed in the new criminal law, while other violations will be prescribed in the “law on violation of public order”. In the new West German criminal law which took effect in 1975, violations in the old criminal law were all deleted according to the above-mentioned principle, the original lighter crimes, together with the serious violations were reorganized and classified, and those that are not suitable to be included in the criminal law were all arranged in the Law on Violation of Public Order. The Law on Violation of Public Order was formulated at the same time, which was promulgated in 1992. See Li Chunhua. Thought on The Coordination Between the Criminal Law and the Law on Punishment for Administrative of Public Security, Criminal Law Research Center in China Renmin University: a Collection of Papers on Coordination of Criminal Law Mechanism under the Harmonious Society Context, Beijing, 2007.
[11] See German Criminal Code, translated by Xu Jiusheng, Zhuang Jinghua, China Fangzheng Press, 2004, p. 8
[12] Of course, it is also worth discussing that, in China, crimes of soldiers violating military duties are prescribed in the criminal code, unlike in some western countries, there are separate military criminal laws. Military criminal law is different from the common criminal law in terms of the subject of crime and judicial authorities. Without prejudice to systemitization of common criminal law, to separate the military criminal law will be of great economic significance to eliminate the overweight of the criminal code and to popularize the knowledge of the criminal law.
[13] To unify the three laws, together with the security measures, may be taken as an idea first, under which legislation may me made one by one, and finally a uniform criminal code will be compiled. Just as before the promulgation of the civil code, uniform contract law, property law and tort law shall be formulated by order, plus marriage and family law and intellectual property law, finally the uniform civil code will be compiled.
[14] See Zheng Xiaze, Zhang Guirong. Thoughts on Correction of Illegal Activities through Education - and the Coordination with the Criminal Law and the Law on Punishment for Administrative of Public Security, Criminal Law Research Center in China Renmin University: a Collection of Papers on Coordination of Criminal Law Mechanism under the Harmonious Society Context, Beijing, 2007.
[15] From Wu Xuebin: Objective Understanding of the Same Act in Different Contexts -Find the Blurring Line between the Law on Punishment for Administrative of Public Security and Criminal Law, Criminal Law Research Center in China Renmin University: a Collection of Papers on Coordination of Criminal Law Mechanism under the Harmonious Society Context, Beijing, 2007.
[16] I think this is a covert “twice for the same”, which violates the litigation principle of ne bis in idem. It seems that the academic circle has not paid enough attention to this abnormal phenomenon in Chinese law enforcement practice. For example, after the defendant was announced innocent by the court, the original public organ involved confiscated the property that should be returned to the defendant by excuse of a “tail” against the defendants. The reason is that the rights of punishment are not concentrated in the court. To avoid such phenomenon, my suggestion is to establish the following principles: Firstly, the defendant should never be pushed into a more unfavorable situation, after being announced innocent by the court; he should not be given re-education through labor by the public security organs, which though is not a penalty, but worse than a penalty. Secondly, the procuratorial organ must raise the requirement for confiscation and fine besides discretion of punishment when initiating a prosecution. If the act is not serious enough to be imposed with penalty, but the property needs to be confiscated, the court can give “light penalty” of confiscation or fine. Thirdly, as an alternative of the preceding principle, if the case is returned to the original authority involved because the act is not serious enough to be imposed with penalty and if such authority still determines to give penalty of confiscation or fine to the defendant, the defendant shall have the free right to choose.
[17] During one symposium on the limitation of personal freedom, I heard that a criminal doctoral tutor from one university “asking” others the question about the difference among mandatory detoxification and shelter and rehabilitation and shelter and education, as well as their own term. I was astonished that as a criminal doctoral tutor, he even did not know those legal measures which may deprive the personal freedom for such a long term. But maybe it is not completely his own faults. I also have the following experiences, when listening to Professor Cohen’s lesson on Chinese law in New York University in USA, when discussing the punishment for administration of public security, he asked me several questions.and I answered that I mainly studied the criminal law, knew little about the punishment for administration of public security. Then he raised his voice and told the students that a professor of criminal law from China even did not know well about the punishment for administration of public security which might deprive of the personal freedom.
[18] See Liu Renwen. Risk of Comparison, People’s Procuratorate, 2001, Issue 10.
[19] The number of public security cases is much bigger than that of criminal cases every year. For example, there were over 1.11 million public security cases in 1986, and the registration rate is 104 cases for each 100,000 persons, one time higher than that of criminal cases and crime rate respectively. So, there was a scholar pointing out that: “if the public security cases are included in criminal statistics as misdemeanor cases as that in many foreign countries, the crime problem in China will be worse”. Hu Lianhe. Transformation and Crime: Positive Study of Crime Problems in Chinese Transformation Period, Central Party School Press, 2006, p. 4
[20] Of course, punishment for administration of public security can be handled in the way that the countries like Germany chooses, that is, some light illegal activities should be separated from the criminal law and with the Law on Violation of Public Order promulgated, the punishment shall not include the deprivation or limitation of personal freedom but may be fine of small amount. And at the same time, people has the right to choose punishment, that is, if he will not accept the punishment determined by the public security organ, the case can not be concluded by the public security organs, and the final decision will be made by the court.
[21] See Chu Huaizhi, et al. Criminal Law Mechanism, Law Press China, 2004, p. 24.
[22] Liu Renwen, Shi Jinghai. Nature of the Act of undermining the Election of Villager’s Committees and Improvement of the Legislation, Study on Law Application, 2002, Issue 4.
[23] The division of mala in se and mala prohibia was originally from Garofalo’s Criminology. Mi Chuanyong. Comparison between Mala In Se and Mala Prohibia and Realization of penalty mitigation, Criminal Law Research Center in China Renmin University: a Collection of Papers on Coordination of Criminal Law Mechanism under the Harmonious Society Context, Beijing, 2007.
[24] The relationship between mala prohibia and mala in se is a little like the relationship between public law and private law, and though it is of great importance to differentiate in ideas, when relating to a certain crime (or specific law), it is hard to say it is this kind but not that kind. For example, the crimes of organizing and participating in the terrorism organizations are under the former category, while the latter in labor law.
[25] See Liu Renwwen. Which Kind of Responsibility Is Corresponding Legal Responsibility .Legal Morning News, June 12, 2006.
[26] See Gao Yangzhi. Theory and Application of General Provisions of Criminal Law, Taiwan Wunan Book, Co., Ltd., 1994, pp. 140-141.
[27] Mi Chuanyong. Comparison between Mala In Se and Mala Prohibia and Realization of Punishment Relief, Criminal Law Research Center in China Renmin University: a Collection of Papers on Coordination of Criminal Law Mechanism under the Harmonious Society Context Beijing, 2007.
[28] Su Huiyu. Criminal Law Science, China University of Political Science and Law Press, 1999, p. 82.
[29] See Chu Huaizhi, et al. Criminal Law Mechanism, Law Press China, 2004, p. 24.
主办：中国社会科学院法学研究所、国际法研究所
地址：北京市东城区沙滩北街15号
