Punishment In China Research Articles

Retention or Abolition of the Death Penalty and Public Opinion on the Death Penalty

The discussion on the death penaltys retention or repeal has been going on for a long time, and there are different views on the retention and elimination of the death punishment. Despite the international trend toward abolition, certain countries, like China, Japan, and the United States, continue to use the death sentence, and all three countries have conducted public opinion surveys on the abolition of the death sentence, and public opinion has a certain influence on the death penalty reform. This article will compare the views of Beccaria and Bentham, the representatives of abolitionism, and Kant and Hegel, the representatives of capital punishment retention, review the outcomes of popular opinion surveys on capital punishment in China, the United States, and Japan, analyze the characteristics of public opinion, and discuss the interaction between capital punishment retention and abolition and public opinion. The study about the value of public views in terms of the death sentence reform is of reference significance to the issue of whether the death penalty should be retained or abolished.

Contributors

Previous article FreeContributorsPDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinked InRedditEmailQR Code SectionsMoreJingyang Huang (黄靖洋) is a PhD candidate in the Division of Social Science at Hong Kong University of Science and Technology. His research interests include comparative political economy, Chinese politics, especially local development and government-business relations in China. His dissertation is about China’s security-industrial complex.Enshen Li (李恩深) is senior lecturer at the School of Law, The University of Queensland. His research interests lie primarily in the fields of criminal justice, criminology and sociolegal studies, with a special focus on criminal law and punishment in China. He is the author of Punishment in Contemporary China: Its Evolution, Development and Change (2018) and has published in British Journal of Criminology, Law & Social Inquiry, Social & Legal Studies, Terrorism and Political Violence, and Columbia Journal of Asian Law, among others.Susan McCarthy is professor of political science and program director of Asian & Asian American studies at Providence College in Rhode Island. Her research focuses on the politics of religion and ethnicity in contemporary China.Yuan Teng (滕媛) is assistant professor in the Faculty of Education, Central China Normal University. Her research focuses on sociology of education, rural education, and rural community development in China.Kellee S. Tsai (蔡欣怡) is dean of humanities and social science and chair professor of social science at Hong Kong University of Science and Technology. Her research interests include the political economy of contemporary China, subnational development, informal institutions, and reverse migration in China and India. Recent publications include a coedited volume, Evolutionary Governance in China: State-Society Relations under Authoritarianism (2021), and articles in China Quarterly, Journal of Contemporary China, Politics & Society, Studies in Comparative and International Development, and World Development.Dan Wang (王丹) is associate professor in the Faculty of Education at the University of Hong Kong. She has expertise in the sociology of education. Her current research focuses on issues of education and community development in rural China.Yinxian Zhang (张尹霰) is assistant professor of sociology at Queens College in the City University of New York (CUNY). Her research focuses on political opinion, ideology, and the online public sphere in both authoritarian and non-authoritarian settings. Previous article DetailsFiguresReferencesCited by The China Journal Volume 88July 2022 Published on behalf of the Australian Centre on China in the World at the Australian National University Article DOIhttps://doi.org/10.1086/721029 Views: 243Total views on this site © 2022 The Australian National University. All rights reserved.PDF download Crossref reports no articles citing this article.

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.

The Distinction between Corporal Punishment and Justifiable Defense in School Punishment in China: An Analysis of a Case of Corporal Punishment

The purpose of this paper is to distinguish teachers’ justifiable defense behavior from corporal punishment in the specific practice of educational punishment. Not all the bad behaviors of primary and middle school students can be solved by civilized punishment that does not contain any physical force. On some specific occasions, it is objectively inevitable for teachers to implement disciplinary measures containing physical tangible force. According to the provisions of criminal law and civil law, anyone can carry out self-defense against bad behavior or illegal infringement committed by minor students. Primary and secondary schools bear the supplementary liability for failing to fulfill their management responsibilities for the illegal infringement among students on campus. The punishment for the illegal infringement of minor students is not only the due meaning of the education law, the teacher law and the compulsory education law, but also the inevitable requirement of the right of educational punishment. Therefore, it is necessary to clearly distinguish the punishment of physical tangible force in educational punishment from corporal punishment, and recognize the punishment of physical tangible force in a specific situation as a justifiable defense.

Public Support for the Death Penalty in China: Less from the Populace but More from Elites

AbstractThis article is the first to report the nationwide public support rate for the death penalty in China. Using a national representative sample with 31,664 respondents, it shows that 68 per cent of China's citizens are for the death penalty, while 31 per cent are opposed to it. These numbers suggest that support for capital punishment in China, although strong, is much weaker than in some other East Asian jurisdictions and less than first assumed by commentators. However, contrary to previous notions that public support for the death penalty derives from uninformed popular prejudice, it is the elites in China – i.e. those who receive higher education – who are more in favour of the death penalty. Further empirical analyses suggest that this is not because of political ideology or fear of crime. Rather, the reason is likely that the elites know fewer, and sympathize less with, criminal offenders, who generally come from underprivileged groups. These findings challenge a range of prevailing perceptions of public attitudes to the death penalty in China, especially the culture explanation for the Chinese public's punitiveness, and have important policy implications.

Developmental Cascades of Preschoolers' Effortful Control, Externalizing Behaviors, and Parental Corporal Punishment in China.

This research examined the interrelations among children's effortful control, externalizing behaviors, and parental corporal punishment in China. Two hundred and five father-mother dyads of preschoolers (initial Mage = 3.73 years, 50% boys) completed measures of children's effortful control, externalizing behaviors, and parental corporal punishment at three time points with 1-year intervals in between. In developmental cascade models, only unidirectional direct relations between variables were found: preschoolers' effortful control negatively predicted externalizing behaviors a year later, and preschoolers' externalizing behaviors positively predicted maternal and paternal corporal punishment a year later. Moreover, although no direct relations between preschoolers' effortful control and parental corporal punishment were found, a potential indirect pathway from effortful control to paternal corporal punishment through externalizing behaviors was observed. The findings are discussed in terms of their cultural basis and highlight the importance of efforts to strengthen children's self-regulation during early childhood.

Body Count Politics: Quantification, Secrecy, and Capital Punishment in China

As quantification has become socially ubiquitous, the disclosure of numerical data emerges as a key feature of legal reform and global governance. Scholars document how seemingly value-neutral statistical indicators shape, and are shaped by, institutional interests. Although less attention has been paid to cases where states resist numerical disclosure, prohibitions on the disclosure of such indicators also produce social effects. This article extends scholarship on the governance effects of quantification to include secrecy by exploring the case of capital punishment data in China, which is reportedly the world’s leading executioner state. Amid a major death penalty reform effort, China steadfastly refuses international calls to publicly disclose relevant statistics. I analyze capital cases and draw on seventy-three interviews with legal insiders in China’s death penalty system to identify the impact of state efforts to conceal capital punishment indicators while undertaking reforms in three areas: transparency; legal representation; and criminal procedure. I show how tension between the disclosure and nondisclosure of death penalty numbers does not simply suppress data; it also shapes and becomes data, influencing both policy and action in the legal sphere in ways that are seemingly far removed from quantification.

Legal Treatment of Foreign Drug Offenders Who Face Capital Punishment in China

Between 2009 and 2015, China executed at least 19 foreigners for drug trafficking. This study examines some notable cases in which foreign drug offenders were death sentenced and executed in China and discusses issues exposed. It further contrasts international due process protection requirements for foreigners who face criminal charges based on China’s laws and shows that China’s laws largely comply with international standards, though there is the question on compliance in actions.

Understanding of Punishment in the Philosophical, Political and Legal Doctrines of Ancient China

Based on the analysis of the philosophical, political and legal doctrines of Ancient China – Taoism, Confucianism, Mo-tze’s guidelines, Mo-dze’s teachings, Legist and Orthodox Confucianism – the authors have demonstrated specific features of understanding the essence of punishment in the ancient Chinese society. The factors that influenced the establishment and development of the institution of punishment in China have been revealed. It has been noted that the specificity of the criminal legislation of the Ancient China was the fact that the reality of the threat to the current government was foremost taken into account while determining the punishment. The most dangerous were considered acts that threatened the ruler, less dangerous that threatened society. Therefore, all punishments can be divided into those that threatened the authority of government, and those that did not directly affect the interests of the ruler. The basic principles of implementing punishments have been defined.
 The authors have concluded that the philosophical teachings of Ancient China had significant differences from many political issues, but were similar in understanding the role and purpose of punishment. For the most part, the use of punishment was united into a single system with rewards, which had one purpose: to centralize and strengthen the ruler’s power, to liquidate his political opponents, and to curb the disobedience of the people in all its manifestations. Consequently, punishment was considered as one of the methods of managing a society. It has been noted that there was no understanding about the law in the ancient world. Punishment did not become a separate institution. There was a gradual formation of the institution of punishment. Religion and the morale of those times greatly influenced on that process.

Chinese Community Correction System and “De-labeling” - On the Jurisprudential Basis of Community Correction System from the Perspective of Label Theory

The community correction system is relatively mature in Western countries such as the UK and the USA. In recent years, it has gradually emerged in China and has been pushed from the pilot to the whole country. It has had an important impact on the transformation of the executi of punishment in China. And its development can not be separated from the strong support of label theory in criminology. The label theory cuts into the causes of crime from the interaction between the individual and the society, explains the causal relationship between the primary deviant behavior and the secondary deviant behavior, and holds that the penalty is a “label” for the perpetrator of the crime within the maximum scope of society. As a non-custodial punishment, the community correction system reflects the change of the execution mode of the penalty. Its implementation is based on the label theory. Compared with the traditional prison sentence, it has the effect of diluting the "label" and the implementation of community correction. It is the process of “de-labeling” from the community residents and the community correction objects themselves. The negative reaction of other people in the society to the deviant behavior and the change of the self-image of the perpetrator are two key links in the process of criminal label formation. Therefore, the community correction system should mainly aim at removing the prejudice of the community residents against the community correction offenders and improving the community correction offenders’ recognition of self-worth. And the community correction system should give full play to the influence of lightening the label.

Exploring the reciprocal relations between mothers' and fathers' use and attitudes of corporal punishment in China: A cross-lagged analysis.

Corporal punishment is a commonly used form of disciplinary technique. Sanctified parental attitudes of corporal punishment have been found to be a significant predictor of parental use of corporal punishment in previous research, while little is currently known about the reciprocal relations between parental use and their attitudes of corporal punishment. This research aimed to examine the reciprocal relations between mothers' and fathers' use and attitudes of corporal punishment in China. Data were collected on a total of 320 Chinese father-mother dyads with their children (10-11 years of age at baseline) through convenience sampling techniques at two time points, one year apart. Parents completed self-report measures of mothers' and fathers' use and attitudes of corporal punishment. Children completed self-report measures of parental corporal punishment. The cross-lagged analysis indicated that parental attitudes of corporal punishment in a given year predicted their use of corporal punishment in the subsequent year both for mothers (β = 0.15, p < .01) and fathers (β = 0.10, p < .05), while their corporal punishment in a given year did not predict their attitudes of it in the subsequent year (βs < 0.11, ps > .05). Findings indicate that the reciprocal relations do not emerge, with only attitude-behavior effects being evident for both mothers and fathers, while behavior-attitude effects were not present. Findings in the present study highlight the importance of changing both mothers' and fathers' favorable attitudes toward corporal punishment when conducting appropriate prevention intervention to decrease its use.

Exemptions from punishment in China and Thailand from the perspective of the theory of Leon Petrazyck

Exemptions from punishment in China and Thailand from the perspective of the theory of Leon Petrazyck

Exemptions from punishment in China and Thailand from the perspective of the theory of Leon Petrazycky

This paper compares legislative provisions of Chinese and Thai laws pertaining to exemptions from punishment. These exemptions must be distinguished from the exemptions from criminal liability. In the latter case, Chinese and Thai courts cannot inflict punishment on a person who is justified or excused in committing an act otherwise defined as a crime. In contrast, an exemption from punishment is granted by courts as an exercise of discretionary powers. Chinese and Thai laws bear similar characteristics in defining the exemptions from criminal liability, but differ significantly in the scope of discretionary powers of courts to exempt from punishments. Chinese law allows judges to have more discretion in not imposing penalties on an offender than Thai law does. The reason for the difference lies in a greater openness of Chinese law to moral considerations to be played in sentencing practices. Thai law is much more influenced by the philosophy of legal positivism. These similarities and differences are discussed in the light of the theory of Leon Petrazycki. It is argued that Petyrazycki’s concept of intuitive law as attributive imperatives is important in explaining and justifying the powers of the court not to inflict punishment if it meets the goals of criminal justice. From the viewpoint of the theory of Petrazycki, Chinese law can accommodate better the intuitive law of the public to the exigencies of various social situations. However, Petrazycki’s theory alone cannot override many reasons against giving judges extensive powers to apply their intuitive laws to exempt offenders from punishment. There is a plurality of psychological imperatives which may conflict with each other. To resolve those conflicts, it is necessary to draw on the idea of natural law. Even though Petrazycki did not explicitly argue for the existence of the natural law, its existence can be drawn from common psychological imperatives as well as from a striking similarity between various systems of criminal law in such diverse countries as China and Thailand. Many of the legal provisions of their laws display certain common legal paradigms that cannot be only accounted for by the adoption of the Western legal concepts.

Attitudes mediate the intergenerational transmission of corporal punishment in China

This research aimed to examine the intergenerational transmission of corporal punishment and the role of parents’ attitudes toward corporal punishment in the transmission processes in Chinese societies. Based on social-cognitive theory, it was hypothesized that parents' attitudes toward corporal punishment would mediate the transmission of corporal punishment. Seven hundred and eighty-five fathers and eight hundred and eleven mothers with elementary school-age children (data collected in winter 2009) were recruited through convenience sampling techniques. The Chinese version of Parent-Child Conflict Tactics Scale (CTSPC) and Attitude toward Physical Punishment Scale (ATPP) were used as the main assessment tools to measure parents' corporal punishment experiences in childhood, current use of corporal punishment and attitudes toward corporal punishment. Findings revealed that the strength of intergenerational transmission of corporal punishment was strong and parents' attitudes toward corporal punishment played a mediating role in the continuity of corporal punishment for both fathers and mothers in China. The findings highlighted the role of attitudes in the intergenerational transmission of corporal punishment within the Chinese cultural context and also suggested the need for intervention programs to focus on modification of maladaptive attitudes toward what is appropriate and effective discipline.

Scholarly Influence in Criminology and Criminal Justice of China

Scholarly influence in criminology and criminal justice (CCJ) is not a new topic. However, in terms of international scholarly influence in Chinese criminology, there still exists no relevant literature, though emphasis on studying China has been increasingly recognized by the international criminological academy. The current study conducts a comprehensive analysis of 191 CCJ articles on China from 20 mainstream CCJ journals and locates those who have done work on Chinese criminology. By productivity and citation analysis, we obtain several rankings of the scholarly influence in Chinese criminology. The most prolific individual identified by the current study is Jianhong Liu; the most productive institution is the City University of Hong Kong; the most-cited scholar is Steven Messner, and the most-cited work is Policing and Punishment in China: From Patriarchy to ‘The People’ by Michael Dutton. Though the current study focuses on Chinese criminology, few local mainland Chinese scholars and publications in Chinese are among the dominant contributions.

A Disappearing Act: the Evolution of China’s Administrative Detention System

This article traces the evolution of reeducation-through-labor (laojiao) as a form of administrative punishment in China in an effort to identify the critical junctures, events, and actors that have produced significant changes in the practice over time. Focusing most of its attention on the abolition of the RTL system announced in the Third Plenum Decision of 2013 and the subsequent use of a range of alternative institutions to house former RTL detainees, it outlines a shift toward more diverse and differentiated means of addressing both political opposition and social problems in China. In making this claim, the article suggests the emergence of a new approach of authoritarian control over the legal system, one capable of handling a wider assortment of offender-types and therefore better-able to protect CCP hegemony.

Punishment in Effigy: An aesthetics of torment versus a pedagogy of pain inGeorges Bataille and Eric Garner

At least twice, Georges Bataille commented briefly but memorably on photographs he owned of a Chinese prisoner being executed by dismemberment. The history of this punishment in China, known as lingchi, or “the death by a thousand cuts,” ended around the same time the photographs were taken, but Bataille’s comments evinced a modern sensibility of punishment that is aesthetic rather than pedagogical, and which Bataille often theorized with reference to the Marquis de Sade. In the contemporary US, this regime is intimately connected with the visual stigmatics of racism, and has resulted in two contrasting phenomena: capital executions giving way to solitary confinement, and the extrajudicial public killings of unarmed black people by police. In this paper, the purposes of hidden and visible torture by the state are compared through examples taken from premodern China, early modern Europe, and the contemporary United States, and interpreted with reference to psychoanalytic and post-psychoanalytic philosophy.

Towards the Lenient Justice? A Rise of ‘Harmonious’ Penality in Contemporary China

Punishment in China has long been considered to be punitive; however, changes in Chinese criminal justice and penal policy since the early 2000s may reflect a move towards leniency. This is perhaps most evident in a new criminal justice policy of ‘Balancing Leniency and Harshness’ in the context of building a ‘socialist harmonious society’. This paper discusses the recent shifts in policy and practice in China’s minor case disposition system over the last decade. It focuses on de-criminalization and de-incarceration—the criminal justice strategies that state agencies have adopted to deal with minor offenders—to explain why and how a more lenient approach has arisen in the contemporary era and offers a critical examination of these two penal perspectives.

Intergenerational transmission of corporal punishment in China: the moderating role of marital satisfaction and gender.

The goal of this study was to examine the intergenerational patterns in the transmission of parental corporal punishment in China and the moderating effects of marital satisfaction (of the second generation: G2) and gender (of three generations: G1, G2 and G3) on these patterns. Six hundred thirty-five father-mother dyads with preschool-aged children were recruited to participate in this survey. The results provided evidence of cross-generational continuity in parental corporal punishment in Chinese society and also supported the hypothesis that same-gender continuity in parental corporal punishment is stronger than cross-gender continuity. Moreover, it was found that marital satisfaction moderated the transmission of parental corporal punishment, and there were some interesting gender differences in the moderator effect. Specifically, marital satisfaction buffered the transmission of corporal punishment from grandmothers to mothers of daughters and to fathers of sons but strengthened the transmission from grandfathers to fathers of sons. The findings broaden our understanding of the factors and processes that account for both discontinuity and continuity in parental corporal punishment, particularly within the Chinese cultural context.

(Responsibility Links, Fair Labeling, and Proportionality in China: Comparing Chinaas Criminal Law Theory and Doctrine)

Chinese Abstract: 本文研究了罪刑相应理论及其在中国刑法中定罪、惩罚方面的应用。我们从比较法角度 对于定罪的司法实践进行了研究,考量了几个核心犯罪以及中、美、英三国对于这些犯罪如 何定罪、惩罚。我们研究发现,在中国根深蒂固的集体主义责任观正在被更加个人主义的正 义观所取代。尽管如此,集体主义和报应主义仍继续影响着中国的定罪和惩罚,尤其是在个 人的不法行为导致了严重结果的情形下。我们研究了几个备受瞩目的案件并指出了它们在基 本理论层面的不同,因而我们的研究是理论探讨而非实证分析。我们主要对三类犯罪进行了 分析:贿赂犯罪,非蓄谋杀人罪,以及与犯罪结果联系轻微之人的犯罪。我们探讨了在出现 死亡结果时中国对贪腐犯罪和法人犯罪的处理方式,以及其是否与西方的公平正义观念相吻 合。随后,我们探讨了相当性原则在中西方刑罚中的应用。我们的结论是,西方理论下的损 害原则和相当性原则并非全世界通用,即使在美国和英国也没有一以贯之。English Abstract: This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especiallywhere individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S. Chinese translation.