Chinese Criminal Law Research Articles

"Walking on two legs in Chinese law schools": A Chinese/U.S. Program in Experimental Legal Education

Dong Jingbo, a young faculty member at the China University of Political Science and Law in Beijing, used to teach using only the traditional lecture technique which she had experienced in her own legal education in China and Korea. Until, that is, Professor Dong attended summer workshops given by Pacific McGeorge, in partnership with American University’s Washington College of Law, and also earned an LL.M. at Pacific McGeorge, in the Teaching of Advocacy. Her classes no longer are limited to lecture. She has developed a simulation to use in Chinese criminal law classes, has demonstrated it to other Chinese law professors and has written a law review article about it.2 The simulation is based on a news story about a man who used his wife’s ATM card to make two successive withdrawals of 10,000 RMB, while the receipts reflected a total withdrawal of only 2 RMB, and even though his wife had only 10,000 RMB in her account. The man was charged with theft. Professor Dong assigns students to play the role of the prosecutor, defense counsel and judge. They are given the definition of theft, and must argue and decide the case. She then provides a series of additional facts, requiring deeper analysis. Introduction of this role play into the class builds on learning theory to provide deeper understanding of the elements of the crime of theft than a student could obtain by listening to a lecture. Moreover, this learning by doing encourages analysis, fact development, understanding of the important role of the theory of the case, and independent thinking. For these reasons, and as our experience in China affirms, role play is a useful learning method in traditional, simulation, and clinical law courses.

The Criminal Law Solution of Foreigners Committing Crimes Within National States Territory: Take Chinese Criminal Law as An Example

In the era of globalization, foreigners committed crimes in the national territory are mainly subject to the sovereignty governance mode. The national penalty power is not the same to the nationals and the foreigners. Penalty to the nationals aims to confirm self-decision will of the community social contract, and obtain the basic conditions of returning to national community law and order; penalty to foreigners committed crimes within the territory aims to confirm self-decision will of participating in social life and signing the “residential contract”; and whether allow him to return to territorial social life depends on the judgment of his “contracting will” and “performance capabilities”. National penalty justice is the legitimate criminal law value applied under the sovereignty governance, and it should maintain consistency to global penalty justice to achieve a “negotiated justice”.

The Chinese Repositoryand Chinese Criminal Law in the Minds of Westerners of the 19th Century

The Chinese Repository was the first well-established comprehensive English language journal in China. Based on the exploration of The Chinese Repository, the article provides a general view and an analysis of the contents concerning the Chinese criminal law and other relevant information published thereon, summarizing the views of Chinese criminal law held by the Westerners of the 19thcentury and elaborating on the accountability and causes of the final consequence. Typical Westerners’ views of Chinese criminal law were as follows: There are too many provisions on violent crimes, especially on homicides, and as for homicides, whether murders or manslaughters, a life for a life was always a principle to be followed and the perpetrator had to be executed, with only few exceptions to that rule. Since the purpose of criminal punishment was to penalize rather than correct or educate criminals, the punishments were severe and among them, capital punishment was widely employed to cruel effect. The abuse of extortion was widespread and unlawful extortion or torture was common though prohibited. Laws in China, including criminal laws, lacked certainty, which was not only due to the arbitrariness in lawmaking and law-amending, but also to the excessive degree of discretion conferred on local government officers and given to the practice of implication (Zhu Lian), which reveals a certain backwardness and cruelty. These nearly »backward and barbarian« or »bloody and cruel« views of Chinese criminal law, though somewhat correct, are partial and imaginary to certain extent. These views rooted in the minds of Westerners at that time partly owe to the language obstacles, partly to the influences of West-centrism, the ideology of racial superiority, and conflicts or different ideas between the Chinese and Western t raditional o r historical legal systems. The Chinese Repository was the main, though not the only, widespread media between China and the West, through which the Westerners’ views of Chinese criminal law undoubtedly spread far and wide.

The unit crime in Chinese Criminal Law

The unit crime in Chinese Criminal Law

On the offences against the company capital systemin Chinese Criminal Law

On the offences against the company capital systemin Chinese Criminal Law

Criminal Defense in Chinese Courtrooms

Scholars in the field of Chinese criminal procedure law study have long decried the meager legal protection afforded to criminal defendants on trial and the hapless status of Chinese criminal defense attorneys in the courtroom. Unfortunately, very little empirical evidence was available to shed light on how criminal defense was carried out in Chinese courtrooms. Based on observations of 325 actual criminal trials from 55 District People's Courts in J province, this study provides an opportunity to understand the mundane work performed by Chinese criminal defense attorneys. In particular, this study describes how criminal defense attorneys prepare and present their cases (as measured in terms of bail request, overall trial preparation, examination of defendants and witnesses, presentation of evidence, and overall defense strategy), and analyzes the outcomes of their performance. In addition, this study examines the discernible impact of criminal defense work due to types of legal representation utilized (legal aid vs. privately retained attorneys), numbers of attorneys representing the client, and the gender composition of the attorneys.

Recasting Anti-commercial Bribery Provisions in Criminal Law

商业贿赂在中国的公职腐败案件中占有较大比重, 必将成为当前和今后反腐败 的重心。为了更好实现对公共权力约束的目的, 应当结合商业贿赂犯罪的特点和新表 现, 对中国刑法的反腐败罪名的构罪标准、具体评价尺度等微观内容进行调整, 以更 有效打击商业贿赂犯罪。关键词: 商业贿赂 刑法规制 机制重构 Commercial bribery makes up a high proportion of all corruption involving public functionaries in China. As such, it must be a present and future focus of the fight against corruption. In order to better achieve the objective of restraining public power, we should adjust the criteria for what constitutes the crime of corruption and the content of the specific assessment of this crime in Chinese criminal law in the light of the characteristics and new manifestations of commercial bribery, with a view to combating it more effectively.

Corporate Criminal Responsibility in China: Legislations and Its Deficiency

The Chinese corporate criminal responsibility is featured by the “Double Punishments” imposed both on the Unit who commit a crime and the persons who are directly in charge. As an attributable liability, corporate criminal responsibility requires more precise and detailed principles of attribution in the national criminal law. Unfortunately, it has not archived yet in Chinese Criminal Law. As well, at current, only one kind of monetary penalty, the fine, can be imposed on the Unit who commit a crime. It is far from enough to prevent corporate offences. On enumerating and analyzing Chinese criminal legislations concerning corporate criminal responsibility, the author finds the main deficiency in it and recommend on how to perfect it.

Credit card fraud under Chinese criminal law

Credit card fraud is a new type of fraud amended into the Criminal Law of China in 1997. The “credit card” under credit card fraud is interpreted as a very board concept, which includes debit card and virtually all electronic payment cards used in ordinary payment, credit loan, transfer and settlement of account, cash deposit and withdrawal. Therefore, it is necessary for the legislature to revise “credit card” under this special fraud into “electronic payment card,” and “credit card fraud” into “electronic payment card fraud,” which will be understood easily and precisely. “Use” and “fraudulent use” of credit card under this fraud is defined as ordinary use of credit card, including withdrawal cash with authentic or forged credit card from ATMs. It is unreasonable to define “malicious overdraft” as a form of credit card fraud under the Chinese Criminal Law. In the future amendment, this kind of criminal conduct shall be separated as independent named as “malicious overdraft” or “abuse of credit card” under the Criminal Law with less stiff statutory punishment than that of credit card fraud. Besides, under the Chinese Criminal Law, stealing credit card and using it is held as “theft,” which is neither reasonable nor logical. Therefore, it should be revised in the future criminal law.

Research on the judicial review and variation of sentence for the death penalty with a suspension of execution in Chinese criminal law

The imposition of a death penalty with a suspension of execution (DPSE) for two years, and the procedure for judicial review of the DPSE both demonstrate the Chinese policies of “reduction in use of the death penalty,” “cautious application of the death penalty,” and “tempering justice with mercy.” In recent years, the number of cases in which the defendant was sentenced to death and immediately executed has declined, whereas the number of cases in which a DPSE sentence was given has increased. In China, judicial theory and practice generally emphasize the importance of the judicial review procedure in cases where the sentence is a death penalty with immediate execution. However, less attention has been paid to the procedures for review and variation of sentence in DPSE cases. Judicial review for DPSE sometimes exists in name only, and is sometimes overlooked altogether, which is inappropriate for a penalty of this severity. There are also serious shortcomings in the laws regulating the review procedure for the DPSE, which lack provisions specifying the consequences for serious violations of due process during trial, nor do they completely reflect the principle of in dubio pro reo. In the procedure for variation of the DPSE sentence, the relevant laws do not adequately uphold the defendant’s right to a defense or participation in the process. There are also difficulties regarding the time limits on ruling on a commutation of sentence. In order to make the procedure more reliable and guarantee the substantive rights of defendants sentenced to the DPSE, the relevant laws require a number of modifications and improvements.

Retrospection and perspective: Chinese criminal procedure law (1979–2009)

The Criminal Procedure Law was promulgated 30 years ago, which is an important starting point for the construction of Chinese Criminal Procedure Law system, and its first amendment in 1996 further adapted to the demand of democracy, the rule of law and social reforms, which might be viewed as a milestone in the history of Chinese criminal justice though the core issues here had not been thoroughly solved. Thereafter, three inherent defects remain in Chinese criminal justice, for which China has also taken initiatives to further amend the Criminal Procedure Law. However, there are various challenges and dilemmas in further amendments to the Criminal Procedure Law, including lack of a constitutional basis, lack of complementary judicial reforms, departmentalism in legislation and restraints of traditional ideas. The orientation of reforms shall be further improvement of the adversary system, focusing on complying with international conventions and coordinating with the results of the institutional reforms of justice in China.

Sentence of life without parole: Proposal for the revision of Chinese criminal law in the context of the elimination of death penalty

Death penalty has no alternative. Life without parole (LWOP) has been put forward to nullify the death penalty in China. Practically speaking, LWOP can satisfy the emotional demand of the public so as to nullify the death penalty. LWOP has strong rationales from both retributive and preventive perspectives. Actually, the relation between death penalty and LWOP is just a question, which should be at the top level punishment. Compared with death penalty, LWOP has other advantages such as lower cost burden and more practicability.

Exploration of Probation in Chinese Criminal Law

288 Federal Sentencing Reporter, Vol. 22, No. 4, pp. 288–293, ISSN 1053-9867 electronic ISSN 1533-8363. ©2010 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2010.22.4.288. Exploration of Probation in Chinese Criminal Law

Study on the Historical Evolution of Chinese System of Voluntary Surrender

The voluntary surrender system of China budded in the Western Zhou Dynasty and matured in the Tang Dynasty, and its concept was first confirmed when the law amendment was implemented in the end period of Qing Dynasty. The 1997 Chinese Criminal Law defined the system of voluntary surrender in detail, and it has been one of special systems in the Chinese legal system. Because the understanding of the historical evolution of the voluntary surrender system is very important for the present jurisdiction and the perfection of the voluntary surrender system, so the course of the voluntary surrender system developing from nothing, becoming better and approaching perfection day by day was unscrambled from the historical view in the article for references.

The Long Arm of Qing Law? Qing Dynasty Homicide Rulings in Republican Courts

The legal reform initiated during the Republican period brought sweeping changes to Chinese criminal law. Among those changes were increased discretionary powers afforded to judges when determining sentences. An examination of homicide cases in the Republican courts shows that when new Republican-era laws contradicted notions of justice carried over from late imperial society, jurists were able to use these newly expanded powers at sentencing to re-create Qing rulings and thereby bring Republican-era criminal justice closer to the judicial norms of the late imperial period.

Deliberation on adjusting Chinese criminal law structure

There are two problems with regard to the structure of Chinese criminal law. Firstly, the crimes that are defined in the Chinese criminal code are approximately equal to the felonies that are defined in the western criminal codes, while re-education through labor and penalty for administration of public security similar to the misdemeanors and violations in western countries respectively are not included in the Chinese criminal code, and meanwhile the security measures have not been systematized. Secondly, crimes and penalties, except in criminal law, can not be prescribed in administrative laws and economic laws, and such single track system of conviction and sentencing fails to satisfy the current social situation in which the number of mala prohibia has increased so much. The way to reform Chinese criminal law structure: Firstly, it is to establish a double track system, where mala prohibia should be prescribed in the related administrative laws or economic laws; secondly, a comprehensive criminal code should be reformulated in which felonies, misdemeanors, violations and security measures are all included.

Human Rights Perspective to Minority Rights and Protection in Chinese Criminal Law

Human Rights Perspective to Minority Rights and Protection in Chinese Criminal Law

Weiquan (Rights Protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering

A group of private lawyers known as rights-protection (weiquan) lawyers are emerging in China showing keen interest in solving the cases affecting the public interest. These different types of weiquan lawyers helping public to shape the development of civil society.

Is Money Laundering a True Problem in China?

Money laundering was stipulated as an offense by Chinese criminal law more than 10 years ago. However, the judicial situation is such that no one has yet been prosecuted for it. This article describes the phenomena that are closely related to money laundering, namely the current situation of the predicate offences and other factors conducive to money laundering such as corruption, underground bank shops, and shell companies. Based on these facts, the article infers that money laundering is a real problem in China. Then it explores the reasons why case examples of money laundering are not available. Finally, this article presents some of the factors necessary in the investigation of money laundering.

Chinese criminal law concerning money laundering

Traces the evolution of criminal law against money laundering to the UN Convention Against Illicit Traffic in Drugs and Psychotropic Substances 1988, which required member countries to stipulate a domestic offence of concealing drug trafficking proceeds; this was ratified in China and followed by the Decision on Suppressing Drug Dealing 1990. Outlines subsequent Amendments of the Chinese Criminal Code which from 1997 have expanded money laundering control; the predicate offences cover smuggling, organised crime, terrorism and drug‐related crime, and sentences have been increased. Explains the principles behind this legislation, including the concept of scienter as the mens rea, ie the obligation to know that money has originated from a predicate offence, and the five types of money laundering behaviour under the Code; punishments involve loss of freedom, fines, and confiscation of illegal gains.