Transformation of Society and Development of Chinese Criminal Law

（Prof. and Director of the Criminal Law Department of the Institute of Law, Chinese Academy of Social Sciences, Beijing 100720）

First, a Transformation from Revolutionary Criminal Law to Constructive Criminal Law.

There existed twenty-eight crimes with death penalty in the first Criminal Code enacted in 1979. Crimes of counterrevolution accounted for more than half of the crimes with death penalty. It suggested that legislators of that time attached great importance to utilizing criminal law as a sharp weapon to punish varieties of counterrevolutionary activities severely. However, with the shift of State’s main task from “taking class struggle as the key link” to “focusing on economic construction”, defendants who were convicted and sentenced in the name of crimes of counterrevolution have become less and less. For example, on October 15, 1993, Minister of Justice Xiao Yang told journalist of CCTV that the number of offenders in prison reached about 1.2 millions, among which the number of counterrevolutionary offenders accounted for 0.32 percent and reached 3840. Correspondingly, common crimes such crimes against social security and economics as crimes of corruption, have increasingly become the main regulating objects of criminal law. A great many new crimes were created by the new Criminal Code in 1997.These new crimes were dominantly applied in the fields of producing and distributing counterfeit and shoddy products, disrupting the order of financial administration and administration of companies and enterprises, infringing on intellectual property rights, impairing the protection of environment and resources, embezzlement and bribery and so on. Moreover, “crime of counterrevolution” was renamed to “crime of endangering national security” by the new Criminal Code. However, it is not simply an alternation from one appellation of political complexion to another appellation of more legal complexion. In fact, it indicates that understandings on the functions of criminal law in the period of peacetime construction have been deepened by legislators.

Second, a Transformation from State-Based Criminal Law to Citizen-Based Criminal Law.

Criminal law had been considered as a sword for People's democratic dictatorship, a kind of sharp weapon to fight against crimes. Meanwhile, it was considered that crime was a kind of very serious wrongdoings that an individual infringes upon the public interest of State and society. However, this is only one aspect of the problem. On the other hand, criminal law is the Magna Carta for protection of human rights. That public organizations such as State organs infringe on civil rights and interest, shall also constitutes a crime. System of Analogy established in the old Criminal Code in 1979 was abolished by the new Criminal Code in 1997.And the principle of a legally prescribed punishment for a specified crime was established in the new Criminal Code. It indicates that China has increasingly been implementing rule of law in the field of criminal law and focusing on criminal law’s function of protection of human rights. With the development of rule of law in China, criminal law has increasingly attached great importance to protecting the citizens’ rights and interests. For example, the draft of the seventh Amendment to the Criminal Code under discussion pays more attention to the citizen's right to privacy. It is stated that any functionary of the State organs, institutions of finance, telecommunication, transportation, education and medical treatment and so on, who violates the State’s prescriptions to sell or illegally supply to others the personal information which the organs or institutions obtained when performing duties or providing services, if the circumstances are serious, shall be found guilty. Therefore, we can see that imposing restriction on power and guaranteeing for rights represent one direction of development of Chinese criminal law in the future.

Third, a Transformation from Strike-Hard Criminal Law to Criminal Law with Temper Justice with Mercy.

From the early 1980s, together with the Reform and Opening-up and transference of personnel and property, China's social order situation had tended to be serious enough. For this reason, the Chinese government had implemented a criminal policy which was characterized by “striking hard”. Under this case, three large-scale national “striking hard” campaigns were successively launched in 1983, 1996 and 2001. As far as other special and quarterly “striking hard” campaigns are concerned, the number is much larger. To adapt to this, the legislature successively introduced a large number of separate criminal laws beyond the Criminal Code, such as the Decision Regarding Severe Punishment of Criminals Who Seriously Endanger Public Security. Compared with the Criminal Code, those separate criminal laws generally enhanced statutory punishment and imposed death penalty on some crimes. However, in the context of building a harmonious society and the overall stabilization of social order situation in recent years, the criminal policy of tempering justice with mercy has begun to be advocated in the field of criminal law. It is an important adjustment in China’s contemporary criminal policy to substitute the policy of “tempering justice with mercy” for the policy of “Striking hard”. And it has already brought about a series of positive changes. For example, the number of death penalty cases in China showed a sharp fall after the Supreme People's Court had withdrawn the power of reviewing death penalty cases from high courts on January 1, 2007. For another instance, the draft of the seventh Amendment to Criminal Code pays attention to decriminalization and lowering statutory punishment for certain crimes, while previous amendments only emphasized criminalization and enhancing statutory punishment. For example, the draft states that whoever commits tax evasion can be immune from criminal prosecution when the following conditions can be satisfied simultaneously. Firstly, the offender is a first offender. Secondly, the offender has made a supplementary payment of the tax payable and overdue payment fines. Thirdly, the offender has been imposed administrative punishment. The minimum penalty of kidnapping was once ten years’ imprisonment. However, this provision often resulted in abnormal severity in sentencing. In the circumstance, a sentencing level was added in the draft. That is, anyone who commits kidnapping, if the circumstances are light, shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years. In my opinion, this legislative idea is appropriate. There are also many other fields in the criminal law that call for application of the policy of temper justice with mercy.

Fourth, A Transformation from the Criminal Law Trend of Civil Law to the Civil Law Trend of Criminal Law.

In the era of “taking class struggle as the key link”, Chinese criminal law was all pervasive. Many social relationships which could have been adjusted by civil laws were regulated absolutely by criminal laws. Since the Reform and Opening-up, a large number of civil laws have been issued and promulgated. They have played a positive role in establishing the fundamental systems of society, and thus gradually drove criminal law back to the last line of social defense. Along with the expansion of the domain of civil law, its counterpart “criminal law” shrinks correspondingly. It is believed that the trend is one of the symbols of the healthy development of society. As a scholar, I am happy with this trend. In this respect, we can take the initiative of Victim-Offender Mediation which has recently developed from judicial practices as an example. In the past, criminal cases were not permitted to “be settled privately”. Once discovered, even if it was reached willingly, the resolution would become invalid or the parties concerned would even be prosecuted according to relevant laws. This kind of law enforcement resulted in an adverse outcome. That is, although convicting offenders seems to do justice, some victims could not actually feel this kind of so-called justice. They would rather expect to obtain material compensation or reparation from offenders by the way of agreeing to mitigate offenders’ criminal responsibility correspondingly. Recently we have started to rethink our current policies against crimes. Originally, crime is due to the conflict between the offender and the victim, so repairing their relationship should be an important mission for criminal law. Why do not we recognize the mediation between litigants if it can be realized through certain procedures in some minor crimes cases? Existing practices demonstrate that Victim-Offender Mediation promotes social harmony and its effect is not negative. I even believe that Victim-Offender Mediation can also be applied to some cases concerning serious crimes. That is, the punishment could be appropriately mitigated according to the degree of mediation (including compensation, apology, forgiveness, and so on) between offender and victim. However, all of the above also call for theoretical innovation. For example, we should change the concept that criminal law belongs to the pure public law, and add more contents of civil law nature to it.

Fifth, a Transformation from Differential Treatment to Equal Treatment.

In the past when managing state affairs according to policies, China emphasized distinguishing two different types of contradictions, that is, contradictions between ourselves and the enemy and contradictions among the people. Once the case was identified as contradictions between ourselves and the enemy, the defendants would receive more severe punishment. With the promulgation of the first criminal code of PRC in 1979, more and more people believe that criminal cases should be settled according to criminal law regardless of the nature of contradictions and parentage of defendants. The foundation for conviction and sentencing is the behaviours of the defendants. However, the criminal code 1979 treated some behaviors differentially. For example, the same behaviours of causing explosion, committing arson and breaching a dike, were prescribed in different chapters in the criminal code and punished by different charges. If the defendants aimed to counter revolution, they would be guilty of criminal damage with purpose of counter-revolution in the chapter of crimes of counter revolution. However, if the defendants did not aim to counter revolution, they would be found guilty of crimes of causing explosion, committing arson and breaching a dike in the chapter of crimes of endangering public security. The Criminal Code 1997 abolished the differential treatment for the same behaviour. Therefore, whatever purpose for the defendants, when committing behaviours of explosion, arson and breaching a dike, the defendants would be guilty of crimes of committing arson, causing explosion and breaching a dike. Technically speaking, it is difficult to determine the counter-revolutionary purpose of the defendants. Deliberately distinguishing crime of criminal damage with purpose of counter-revolution from crime of endangering public security will put burden on courts. It is convenient for practicers to treat the same behaviours according to the same crime prescribed in the same chapter.

"Equality before the criminal law" was established as one of the three basic principles of the Criminal Code 1997. This is of special significance for a country which once laid emphasis on theory of status and family lineage. Although this principle is generally understood as a principle of judicatory application, I think, its spirit should be permeated into the legislative process, otherwise it is congenitally deficient. Of course, the principle can not be vulgarly understood. Some argue that the amount of the starting point for crime of embezzlement and crime of theft set differently is in violation of this principle. I think this understanding is somewhat biased, for the thresholds of incrimination may vary with the kind of crime changes.

There is still a lot of room for improvement for Chinese Criminal Law. For example, it is stipulated that one is a recidivist if he commits another crime punishable by fixed- term imprisonment or heavier penalty within five years after serving his sentence. However, A criminal of endangering national security commits the same crime again at any time after serving his sentence or receiving a pardon shall be dealt with as a recidivist. The system of recidivism can also be applied to crime of endangering national security, why don’t we abolish the latter prescription for criminal of endangering national security? For another example, Whoever has a spouse and commits bigamy or knowingly marries a person who has a spouse shall be guilty of bigamy. However, whoever just knowingly cohabits with a person who is the spouse of an active serviceman would guilty of crime of violation of the PLA man's marriage and receive more severe penalty than that of bigamy. Are these special protective measures reasonable?

There are still many issues to be studied. For example, property is divided into state-owned and non state-owned property. So the same misappropriated action may constitute different crimes. If the funds are of state-owned nature, one may commit crime of misappropriation of public funds, otherwise he may commit crime of diverting funds. For another example, the same action of unlawfully taking possession of property may constitute the crime of duty encroachment or crime of embezzlement according to different nature of the property. Criminal law often imposes tighter rules on state-owned property. Now that Constitution and the Property Law have established the principle of equal protection of the public and private property, the state-owned property and non-state-owned property should be protected equally according the criminal law.

Sixth, a Transformation from Criminal Law Natural Person-Oriented to Criminal Law Natural Person and Corporation-Oriented.

From new China founded in 1949 to the first Criminal Code enacted in 1979, Chinese criminal legislation had held a negating attitude toward crimes committed by corporations. With the economic system reform and opening up, China's economic ownership relations have undergone significant changes. Firstly, diversified ownership had appeared. They are individual enterprises, private enterprises, joint ventures, cooperative enterprises and wholly foreign-owned enterprises. Secondly, with the line between the functions of the government and enterprises being differentiated, the original state-owned enterprises have become a relatively independent economic entity. Driven by multi-interests, the illegal and criminal activities of these organizations had become increasingly serious. The voice for regulating criminal activities committed by corporations through criminal law had increasingly been louder. In 1987, Customs Law of the People's Republic of China put corporation as the subject of crime of smuggling for the first time, which initiated a precedent to punish crimes committed by a corporation. Since then, China's legislature has prescribed nearly 50 accusations in a series of slip criminal law and accessory criminal law. The new Criminal Code 1997 added new accusations in addition to these accusations. According to statistics, there are about 440 accusations in Chinese criminal law while accusations of corporations are about 140, accounting for about one-third. Compared with the amount of accusations of countries of common law system, the amount in Chinese criminal law is still smaller and will continue to increase.

In order to resolve the serious problems arising from the process of economic development, illegal acts committed by corporations are criminalized in a hurry. And criminalization of illegal acts committed by corporations lacks full theoretical study. For example, what is the legal basis of criminal responsibility for crimes committed by corporations? Does it conflict with the traditional theory of individual responsibility? Can State organs become the subject of crime? A few years ago, court was prosecuted. This case caused us to rethink the scope of the subject of crimes committed by corporations.

Moreover, the classical theory of criminal law is based on natural person-oriented. For example, when we talk about general subject and special subject, special subject refers status crime, i.e. the perpetrators should have a special identity. But now some scholars propose that the corporation can be considered as a special subject. Therefore, the classification standard is confused. Do corporations committing crimes constitute general subject or special subject? In addition, can atonement system in criminal law be applied to corporations? If so, how to apply? All these need to be answered and these can be seen as the development trend of Chinese criminal law.

Seventh, a Transformation from Single-Track System for Penalty to Double-Track System for Penalty and Security Measures.

Due to the social background of planned economy, security measures remained little notice in the Criminal Code 1979. At that time, social control by the State was all-pervasive. The drug addiction, prostitution and so on were banned after the founding of New China. However, with the implementation of the policy of reform and opening up and the increasing of social vitality, a variety of social evils had revived. To meet the needs of governance, a series of slip criminal laws in which security measures were prescribed were issued. For example, Decision of the National People's Congress Standing Committee in 1990 on Anti-Drug stipulates: ingesting and injecting drug addicts should be given compulsive addiction treatment; whoever ingest and inject again after compulsory treatment would receive re-education through labor. Decision of NPC Standing Committee in 1991 on Prohibiting Prostitution and whoring states: prostitutes would be imposed punishment of compulsory education; mandatory treatment would be imposed if they were found suffering from sexually transmitted diseases.

Some scholars suggested introducing security measures into the criminal law system when it was amended in 1997, but opponents argued that the system of security measures would easily be abused and may pose threat to protection of human rights. Therefore, double-track system for penalty and security measures were not established. However, the new criminal law had paid some attention to security measures. For example, provisions for mental patients stipulate that when necessary, the government may compel them to receive medical treatment.

The system of security measures is still developing in practice. For example, Law of the People's Republic of China on Narcotics Control issued in 2008 introduced many new drug treatment measures. They are community-based drug treatment, medical treatment, mandatory drug isolation, the maintenance of community-based rehabilitation and drug treatment.

Since society need security measures and a variety of security measures factually exist outside the criminal law, then how to systematize security measures out the criminal law to meet the requirements of due process is not a dispensable task. The Legislature is currently developing “law for correcting illegal activities” to substitute the system of re-education through labor. In order to form "Security Measures Law" alongside Chinese Criminal Law, I propose to expand its scope and add the followings measures. They are mandatory treatment for mental patients, taking in for rehabilitation for juvenile offenders under the age of criminal responsibility, educational sanctions for prostitutes and so on.

Eighth, a Transformation from Close-Ended Criminal Law to Opening Criminal Law.

China rarely signed international treaties, but this situation has been changed after the implementation of the policy of reform and opening up. For example, Legal Daily said on July 25, 2008 that China had participated in and signed more than 200 international conventions in the last two decades. The amount of conventions, treaties and agreements which were approved and ratified by the 7th, 8th, 9th and 10th session of the NPC Standing Committee was respectively 40, 60 and 74. This is one reflection of China's growing integration into the international community and increasingly taking the initiative to participate in the formulation of international rules. In this context, the provisions of Article IX were added as follows: this law shall be applicable to crimes which are stipulated in international treaties concluded or acceded to by the People's Republic of China and over which the People's Republic of China exercises criminal jurisdiction within the scope of obligations, prescribed in these treaties, it agrees to perform. Though this is one symbol of Chinese criminal law’s transformation from closed style to opening style, it is not enough. Because Chinese criminal law had expressly abolished the principle of analogy and established the basic principle of nulla poena sine lege , whereas the provisions for international crimes are often a kind of provisions advocating the contracting parties to nationalize, or at most constitute a kind of provision prescribing crimes rather than penalty. No international treaty provides for specific penalty for certain crimes. Perhaps because it is very difficult to reach agreement on which international illegal act can constitute a crime, not to mention to stipulate specific penalty due to the difference of degree, structure and type of penalty. In such a case, the foregoing Article IX, if not supplemented by specific penal provision in specific provisions, would then become a mere formality in practice. In addition, many countries have created some crimes against the common interests of human being such as crimes against humanity, war crimes, genocide and crimes of piracy and so on. Although specific provisions of Chinese Criminal Code can be applied to some of these crimes, it had better clearly stipulate these accusations in criminal law so as to demonstrate the openness of Chinese criminal law and its respect for common values of humanity.