Chinese Criminal Law Research Articles

Comparative Analysis of Child Pornography Laws between China and the US: Suggestions for the Revision of Chinese Criminal Law Based on a Systematic Literature Review

Comparative Analysis of Child Pornography Laws between China and the US: Suggestions for the Revision of Chinese Criminal Law Based on a Systematic Literature Review

On the Crime of Buying Abducted Women and Children in Chinese Criminal Law

On the Crime of Buying Abducted Women and Children in Chinese Criminal Law

Crime of Illegal Business Operation in Chinese Criminal Law: Legislation and Judicial Practice

Crime of Illegal Business Operation in Chinese Criminal Law: Legislation and Judicial Practice

Baffled Labelling: Making Sense of the Intertwined Relationship between Fundraising Fraud and Illegally Taking in Deposits from the General Public in Chinese Criminal Law

AbstractFundraising fraud is one of the most serious and complicated financial crimes in China. It has an intertwined relationship with a regulatory offence, known as illegally taking in deposits from the general public (ITIDFGP). In judicial practice, ITIDFGP works as the downgraded form of fundraising fraud. This article explores why fundraising fraud is identified as financial fraud whereas ITIDFGP is a regulatory offence. The paper discerns the essence of fraud in Chinese criminal law and critically examines the concept of “intention to possess illegally.” It argues that ITIDFGP should be classified as a form of fraud de jure, although, in reality, there are policy considerations behind its categorization as a regulatory offence. The paper also suggests that the role played by the socioeconomic policy in Chinese criminal-law legislation should be fully acknowledged.

On the Up-regulation of the Age of Sexual Consent in Chinese Criminal Law

On the Up-regulation of the Age of Sexual Consent in Chinese Criminal Law

The Influence of the Soviet Law Model on Criminal Procedure Law in China

The first Criminal Procedure Law (CPL) of China, issued in 1979, was greatly influenced by the Soviet Criminal Procedure Law in multiple dimensions, including the framework, concepts, principles, and specific institutions. Although the Chinese CPL has changed a lot after three amendments in 1996, 2012 and 2018, respectively, the influence of the Soviet Law can still be noticed in many aspects of the current law. This paper will explore how Soviet Law has shaped Chinese CPL into the way it is. Part I will explore the historical development of Chinese CPL, indicating the close relationship between Chinese law and Soviet Law. Part II will compare Chinese CPLs with the Soviet (and its successor, Russia) CPLs, trying to identify their similarities and differences. Part III will draw some tentative conclusions from the comparison and predict the continuing influence of the Russian law model on Chinese CPL in the future. This paper will primarily rely on comparative study and historical analysis. The legal framework, legal terms, theories, principles, and specific institutions will be examined to illustrate the significant influence of the Soviet Law on Chinese Criminal Procedure Law. This study helps to better understand the evolution of Chinese criminal procedure law and predict its further development more accurately.

Study on the Examination and Judgment of WeChat Record-type Evidence in Criminal Proceedings

In order to solve the problems existing in China at present in the examination and judgment of WeChat record evidence, this paper is based on the relevant laws and regulations in Chinese criminal procedure law, analyze the examination and judgment mechanism of WeChat record evidence, namely, the authenticity examination of the content, original data and storage medium, the relevance examination of WeChat record evidence to examine whether the content of WeChat record evidence is related to the facts to be proved and the legality review of the subject of the evidence, the way of the evidence and the procedure of the evidence collection. The legality review of the subject of the evidence collection, the way of evidence collection and the procedure of evidence collection. On this basis, it further analyzes the problems existing in the current mechanism, and provides certain methodological reference for improving the examination and judgment of WeChat record evidence.

Familyism in Ancient Chinese Criminal Law

Ancient China adhered to the principle of "family-state congruence" in governance, with familyism playing a significant role in maintaining feudal rule. As ancient Chinese law, particularly criminal law, developed, it gradually integrated with familyism, becoming a distinctive feature of the Chinese legal system. By studying the reasons and manifestations of the fusion of familyism and criminal law, insights can be gained to support modern legal governance.

An Examination of the Boundaries of Legitimate Defense within the Framework of Chinese Criminal Law

In the realm of legislation, China's definition of legitimate defense is expansive; yet, in the context of judicial application, the legitimate defense framework has been significantly curtailed, resembling what can be described as a zombie clause. The legislative requirements on the limitation of defense have not significantly enhanced the comprehension of the temporal aspect and the criteria for assessing excessive defense. The determination of whether an act of legitimate defense surpasses the defined standards and other related matters is flawed. In order to address the aforementioned issues, it is imperative to acquire a comprehensive understanding of the juxtaposition between noticeably exceeds the necessary limits and causes great harm. It is crucial to establish that the criterion of “noticeably exceeds the necessary limits” holds significant importance in determining the necessity and proportionality of defensive limitations. It is imperative to establish that the criterion for the necessity and proportionality of the limit of defense necessitates a clear demonstration of exceeding the limit that is evidently beyond what is necessary. Furthermore, the assessment should be grounded in situational theories, which encompass both the act of defense and its outcome. Subsequently, it is vital to further define the criteria used to evaluate the parameters of the noticeably exceeds and necessary limits categories.

New development of Chinese Criminal law

New development of Chinese Criminal law

The Preventive Turn in Chinese Criminal Law - From the Perspective of Counter-terrorism

The Preventive Turn in Chinese Criminal Law - From the Perspective of Counter-terrorism

Investigation of the Legislation of Crimes Concerning Endangering Drug Safety in China

The protection and improvement of drug safety is a major and realistic issue of concern to Chinese society and the public at present. Thus, the crimes concerning endangering drug safety are one of the key areas of Chinese criminal law. The Criminal Law of the People's Republic of China has been regulating crimes concerning endangering drug safety since 1979, and special activities have been carried out in practice to combat crimes concerning endangering drug safety. Although the criminal legislation on crimes concerning endangering drug safety changes frequently in China, its spirit of legislation and the developmental sequence is clear. Firstly, the main legislative form is the criminal code, supported by administrative laws and regulations. Secondly, the scope of criminal law shows a trend of gradual expansion, which is mainly reflected in the expansion of the object of crime and the scope of regulatory act. Thirdly, the time-point of intervention has been brought forward by the criminal law. Fourthly, the punishment tends to be more severe. In criminal legislation of China, the specific content of the crimes concerning endangering drug safety is mainly concentrated on the core crimes related to the act of producing or selling of counterfeit and substandard drugs. This article carried out a detailed analysis of the constituent elements and the controversial issues about these core crimes such as the crime of producing, selling or providing counterfeit drugs, the crime of producing, selling or providing substandard drugs, the crime of disrupting drug administration, the crime of neglecting duties in drug regulation, and other relevant crimes.

IS LIFE IMPRISONMENT WITHOUT PAROLE OR COMMUTATION AN EFFECTIVE ANTI-CORRUPTION MEASURE FOR CHINA?

New legislation adopting a tough criminal stance on the crimes of corruption and bribery responds to the need for strengthening Chinese anti-corruption work. The ninth amendment to the Chinese Criminal Law Code, which adds life imprisonment without parole or commutation, has received broad support from all sectors of society. The aim of the amendment, as stated by the legislature, is to safeguard judicial fairness and prevent criminals convicted of the most serious corruption offences from having their prison sentences shortened through commutation. This stated legislative aim is not acceptable. Whether from the perspective of deterrence or alternative measures to the death penalty, the approach of adding life imprisonment without parole or commutation in order to punish the corrupt is not ideal. This article argues that, given the particular nature of crimes of corruption and given the disadvantages of life imprisonment without parole or commutation, restraint in the use of the death penalty does not mean that life imprisonment has to be used as an alternative measure. Moreover, the death penalty with a two-year reprieve is sufficient for realising retribution and prevention as aims of punishment.

Признание под пыткой в уголовном судопроизводстве императорского Китая

The article describes the institution of confession under torture in the criminal proceedings of traditional China. The research featured legislative documents, also official and unofficial manuals for judges with torture rules and practice analysis. Tang lü shu yi, or Criminal Regulations of the Tan with Explanations, was a criminal code of the Tang dynasty which dated back to 653 AD. Its standards of extreme interrogation were applied without fundamental changes until the collapse of the Qing Empire in 1912. The author refutes the popular opinion that the method of enhanced interrogation prevailed in the system of evidence in criminal cases in imperial China. In fact, confession under torture was never the regina probationum of the Chinese criminal law. Torture was a legal means of obtaining a confession, but it was always considered a last resort. Moreover, extreme interrogation was undesirable from the standpoint of Confucian ideas about humanity and generosity. Chinese criminal proceedings have similar features to the inquisition proceedings might have had a lot in common with Spanish inquisitional processes, although it cannot be considered as such, since preference has always been given to voluntary confession, and the sentence could be passed without confession, based only on the testimony of witnesses and a set of other evidence. Violation of torture rules always caused severe criminal penalties; however, their abuse was a common practice in imperial Chinese courts.

The Latest Legislative Amendments and Comments on Financial Crimes in Chinese Criminal Law

The Latest Legislative Amendments and Comments on Financial Crimes in Chinese Criminal Law

Fabricating insurance subject matter and defrauding insurance money: a civil wrong or a criminal offence?

ABSTRACT Insurance fraud is a serious problem and is dealt with mainly by the mechanisms of civil liability and criminal punishment in China. This article critically examines these mechanisms and their application to different types of fraud, identifies the existing and potential problems with them, and also propose solutions to the problems with reference to the English common law fraudulent claims rule and the Fraud Act 2006 (UK). Chinese Criminal Law provides a unique type of insurance fraud, namely, ‘fabricate insurance subject matter and defraud insurance money’, but no definition of this type of fraud is provided in the Law, this causes judicial difficulty in the trial of the fraud cases. This type of fraud is committed at two stages: ‘fabricate insurance subject matter’ at the stage of conclusion of the contract and ‘defraud insurance money’ at the stage of making claims. It argues that the phrase of ‘fabricate insurance subject matter’ should be construed in a narrow sense that it only refers to the fraud where a non-existent insurance subject matter is fabricated into an existent one; while fabrication of the features or characters of the insurance subject matter should not be taken as the fraud of ‘fabricate insurance subject matter’. This article examines the circumstances under which this type of fraud may be dealt with by civil law or criminal law and puts forward guidelines for the determination of this type of fraud and for the correct application of civil remedies or criminal sanction for the fraud.

On the Charges of Destruction and Illegal Control of Computer Network Crime —— Taking the Ninth Batch of Guidance Cases of the Supreme People's Procuratorate as an Example

In Chinese Criminal Law, there are great qualitative disputes about the crime of destroying computer information system and the crime of illegally controlling computer information system. There are some phenomenons such as different evaluations of the same behavior, improper expansion of the semantics of the keyword "destruction", improper limitation of the scope of "illegal control" and so on. Taking the ninth batch of guidance cases of the Supreme People's Procuratorate as the starting point, the author analyzes the deficiencies in the identification of the two crimes in theory and practice, and provides a five-step idea to distinguish the difference between this and that crime, and weaken the emergence of this pocket crime and empty crime.

我国刑法中的暴力犯罪与相关概念之辨析

我国刑法中的暴力犯罪与相关概念之辨析

Amendments to Chinese Criminal Law Concerning Intellectual Property Crimes

Chinese authorities have taken decisive steps to tackle violations of intellectual property (IP) rights in the People’s Republic of China (PRC). The National People’s Congress (NPC) adopted a new amendment to China’s criminal law on December 26, 2020. These regulations entered into force on March 1, 2021. The article aims to draw attention to the recent developments and ways to fight against the IP infringement in China. The study focuses on the IP courts in China and then analyzes the recent amendment to Chinese criminal law. Therefore, it is based on the descriptive and dogmatic methods. The article seeks to answer the question of whether the regulations are effective and significantly prevent the spread of IP infringements in China. It brings us to the conclusion that China’s accession to the WTO was a turning point that influenced the development and the improvement of domestic IP regime. Hence, China became a country with complex, multifaceted, and contentious environment regarding IP rights. One of the most significant changes concern the establishment of IP courts across China. It is too early to determine whether these solutions are effective due to the ongoing COVID-19 pandemic in China.

The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935

The Fascist Origin of Modern Chinese Criminal Law? Revisiting Attilio Lavagna’s Contribution to the Chinese Penal Code of 1935