The vicissitudes of Chinese criminal law and theory

Abstract

Modern Chinese criminal law and legal theory cannot be separated from the historical, cultural and political context in which they developed. This article begins with a four-part periodization of the development of Chinese criminal law: (1) Late Qing reform, Republican legislation and the dawn of the modernization of Chinese criminal law from the 1911 Revolution until 1949; (2) the blank period of criminal law from the establishment of the PRC in 1949 until 1979; (3) the 1979 Criminal Law and the special Criminal Law era from 1980 until 1997; (4) the 1997 Criminal Law and the amendment era from 1997 to the present.This article next traces the development of Chinese legal scholarship alongside shifts in the criminal law. Prior to 1949 the academic field of Chinese criminal legal studies engaged with criminal justice systems and philosophies from Germany, Japan and other civil law jurisdictions as they were being introduced into China. After the establishment of the PRC, Chinese criminal law turned away from modeling Germany and Japan and thoroughly adopted Soviet criminal theory, transforming Chinese criminal jurisprudence into socialist criminal jurisprudence. In the 1960s and 70s, with the rising tides of legal nihilism and legal anarchism, research into criminal theory stagnated and was suspended for two decades. Following the promulgation of the 1979 Criminal Law, research into criminal legal theory was reinvigorated. Since the mid-1990s research into theory has flourished as a result of theoretical debates and legislative deliberation around the revision to the Criminal Law in 1997. At the turn of the 21st century Chinese criminal legal theory once again incorporated Germany and Japanese criminal law discourse and knowledge, producing systemic reconstruction in a process of standardization.