The Inspection and Correction of “Reification” Criminal Law— A Case Analysis Based on Tobacco-Involved Crimes

Abstract

Superficially, the control of trafficking of counterfeit cigarettes in the name of illegal business operation goes against the spirit of modest and restraint, as well as the doctrine, of the Criminal Law; substantially, however, it is the realistic portrayal of the cross-border governing of market misconduct with “reification” criminal law. In recent years, modern criminal law has opened the way to a transformation of functionalism upon the demand for security governance derived from risks to society. It has gone from being a passive night watchman to being a positive leader and pusher, highlighting the trend of “reification” of functionalism-oriented criminal law. The reification not only weakens the contractual value of crime and punishment but also causes dysfunction of the integral legal order. In this regard, while affirming the legitimacy of the functionalism transformation of criminal law, this paper corrects the trend of "reification" of functionalism-oriented criminal law by declaring the modest value of classical humanity-oriented criminal law, and promotes its return to the modest value of "humanity-oriented" criminal law. Based on the principle of unity of legal order, this paper proposes to build a two-tier judgment model consisting of "general violation" and "punishable violation" in an attempt to provide intellectual support for the processing of criminal cases involving tobacco.