Research On Amendments To China's Criminal Law

On October 1,1949,the People's Republic of China was proclaimed and the new China's criminal law has developed along with the political,economic,and social development of New China.In 1979,the Fifth National People's Congress passed the Criminal Law of the People's Republic of China(hereinafter the 1979 Criminal Code),ending the 30-year history without a criminal code in China.In 1997,the Eighth National People's Congress reviewed and approved the revised Criminal Law of the People's Republic of China(hereinafter the 1997 Criminal Code).Limited by historical conditions and legislative background,the stability and completeness of the Criminal Code should be relative.With the reform and development of the society,the Criminal Code will inevitably face necessary amendments,and the ways of amending the Criminal Code are constantly changing.The amendment and supplement of the Criminal Code in 1979 mainly adopted the single-line criminal law and the subsidiary criminal law.After adopting the only single-line criminal law amendment in 1997,the Criminal Code changed the criminal law with amendments attached to ten new criminal rules.The amendment made the amendment to the criminal law the only way to modify the criminal law in the future.Facing the multiple amendments of the Criminal Code in 1997,it is necessary to implement timely and reflection on its amendment methods,amendment trends,and revision ideas,in order to promote the scientificization of criminal legislation and amendment of criminal law.This article takes ten amendments to the criminal law as a sample,and on the basis of conducting an argumentative analysis of the amendments to the criminal law,it proposes the amendment model that the criminal law amendment should adhere to,summarizes the gains and losses of previous amendments to the criminal law,analyzes the development trend of the amendments to the criminal law,and proposes amendments to the criminal law.The idea that the case should adhere to and the restructuring of the main body that formulated the amendment to the criminal law.The first chapter of this article gives a general overview of the amendments to the criminal law.Based on the concept of legal amendment,the connotation of the amendment of the criminal law is defined,the history of the amendment of the criminal law outside China and China is examined,and various types of amendments to the criminal law are comprehensively compared.It is believed that the amendment of the criminal law of China should adhere to the model of the amendment of the criminal law.Basic information of the amendment as follows: First,define the connotation of the law modification and examine the history of criminal law modification within and outside the territory.On the basis of synthesizing various viewpoints,it is considered that the amendment of the criminal law is a legislative activity that the legislature perfects the existing criminal law by adding,deleting,replacing,etc.In accordance with statutory powers and procedures to adapt to social development and changes.The types of legal amendments include legal amendments and legal amendments.Law amendment is a way for the legislature to comprehensively amend.The 1997 Criminal Code of our country is a comprehensive amendment based on the 1979 Criminal Code.Legal amendment refers to the amendments made by the legislature to some of the provisions of the law,mainly partial or individual amendments.Legal amendments are also a type of legal amendment.Ten criminal law amendments promulgated by China belongs to this type.Traditional civil law countries basically modify their criminal laws through separate criminal laws,subsidiary criminal laws,amendments to some provisions of the criminal law,and comprehensive amendments to the criminal code.China 's legislature also has passed 24 separate criminal laws,set up subsidiary criminal law norms in 107 non-criminal laws,and made a series of additions and amendments to the 1979 Criminal Code.After the 1997 Penal Code was promulgated,the legislature,in addition to adopting a separate criminal law,mainly made amendments to the 1997 Penal Code.Second,it discusses the choice of the amendment mode of China's criminal law.Criminal law modification mode refers to the way in which legislators modify and improve the criminal code.The single-line criminal law has the advantages of flexibility,simplicity,pertinence,and its professionalism,but also has the disadvantages of large randomness and utilitarianism.As a result,there is a problem of application coordination between the single-line criminal law and the criminal code,which will actually damage the stability of the criminal law.The subsidiary criminal law has the advantages of strong coordination and outstanding professionalism,but it also leads to problems such as the poor connection between the criminal code and other laws,such as lack of system,and lack of supervision and control.The author believes that the amendment of the criminal law using the amendment model of the criminal law has certain advantages: first,the amendment of the criminal law by the amendment of the criminal law is beneficial to maintaining the unification of the rule of law;The amendment of the criminal law in the case is conducive to citizen recognition and judicial application.second,the amendment of the criminal law by the amendment of the criminal law is beneficial to restricting the power of legislators.Third,summarize and analyze the gains and losses and the general characteristics of the ten amendments to the criminal law.Combining the amendments to the Criminal Code by the amendments to the Criminal Law,the detailed quantitative comparative analysis of the number of amended articles,the number of additional(repeated)crimes,and the change in the composition of crimes,summarized the successes and failures of previous amendments to the Criminal Law,and demonstrated ten criminal laws.The individual and overall characteristics and trends of the amendment.The author believes that the amendments to the criminal law generally have three characteristics:(1)the general rule and sub-rule,extensive and concentrated.In order to ensure the unified value and logical unity of the Criminal Code,form the universality of the amendment,reduce the frequency of amendments,and expand the scope of application,the amendment of the criminal law has been extended from only the amendments to the criminal law rules to a combination of general rules and rules.In addition,the Criminal Law Amendment has different levels of amendments to the ten types of crimes in the Criminal Code for their varied needs,such as social development and changes in crime patterns.At the same time,it has a focus,a priority,and a broad and concentrated character.Furthermore,combining motivation and stability.On the one hand,during the period of rapid social transformation,criminal legislation actively developed criminal regulations for new types of crimes,actively responded to social concerns,and actively implemented criminal policies,reflecting the positive side of the amendment to the criminal law.On the other hand,the legislature also attaches great importance to the stability of the Criminal Code.Take the amendment to the criminal law as the only mode of amendment to the criminal law,adhere to the principle of modesty first and foremost,and rationally treat the draft amendments or recommendations of the criminal law proposed by practical departments,theoretical scholars,and the public.Generally speaking,the amendment of the Criminal Law to the Criminal Code is still based on stability.Moreover,combination of internationalization and localization.On the one hand,gradually reduce the death penalty punishment,increase the leniency treatment for the elderly and minors,reflect the humanitarian spirit of the criminal law and the concept of international criminal law for the protection of vulnerable groups;strengthen the internationalization of legislation on terrorist crimes and crimes of corruption and bribery.To achieve docking with relevant provisions of international treaties.On the other hand,in light of China's national conditions,legislation,and judicial practice,the community correction and life imprisonment system legislation reflect a localization setting that is different from other countries,and reflects the localization characteristics of China's criminal law amendments.The second chapter proposes that the amendment of China's criminal law presents the trend of expansion of the criminal circle.China's ten amendments to the criminal law basically show the main direction of the expansion of the criminal circle,and are mainly realized from three paths.(1)Add a new crime,and criminalize conduct that was not originally considered a crime.The first five amendments to the criminal law are plateaus for the creation of new crimes,with relatively few provisions for new crimes.From the beginning of the "Criminal Law Amendment(6)" to the present,the peak period of additional crimes has arrived.Although the "Criminal Law Amendment(10)" only adds one crime,it remains to be seen whether the inflection point of the additional crimes can be ushered in.(2)Expanding the subject of crime.The first is to expand the subject of the crime from a special subject to a general subject,the second is to expand the scope of the special subject,the third is to increase the unit as the subject of the crime on the basis of natural person crimes,and the fourth is to expand the unit crime to natural person crimes and unit crimes.(3)Lower the threshold for conviction.The amendments to the Criminal Law have expanded the scope of criminal targets and reduced the standard of constituent elements respectively,by reducing the behavioral criteria and reducing the threshold for some crimes.This article believes that the amendment of the criminal law is necessary for the expansion of the criminal circle.(1)Objective needs to strengthen social governance and social control.Countries in traditional civil law systems outside the region have recently strengthened their criminal legislation on terrorist crimes,financial crimes,cybercrimes and corruption and bribery crimes,and have appropriately expanded their criminal circles.The "post-ization" protection of traditional criminal law can no longer meet the needs,and criminal legislation increasingly pays attention to the "self-defence" protection.Affected by the theory of risk criminal law,the scope of legal interest protection is getting larger and larger,resulting in the continuous expansion of the criminal circle.(2)The need to transform the structure of criminal law from "strict but not severe" to "strict but not severe".The 1997 Criminal Code's inadequate system of crimes,rude design,and limited legislative technology have led to many long-term socially harmful violations being excluded from crimes.They cannot effectively punish crimes and protect legal benefits in a timely manner.At the same time,severe penalties lead to severe penalties and neglect of human rights protection.Only when the criminal circle is appropriately expanded,the criminal law network is tight,certain minor crimes are included in the criminal law,and under the premise of mitigation of the punishment,a "strict but not severe" criminal law structure as a whole can effectively achieve the purpose of criminal law.(3)To adjust the legal sanctions system after abolishing reeducation through labor.After the abolition of the reeducation-through-labor system,some behaviors that endangered society were criminalized.The criminal law included some "practice punishable by reeducation through labor" into the scope of regulation.The gradual expansion of the criminal circle was needed to make up for the loopholes in legal sanctions.In view of the continuous expansion of the criminal circle in the amendment of the criminal law,three aspects should be improved:(1)Rational response to public opinion.The amendment of the criminal law should respect and respond to public opinion,but it needs to treat irrational public opinion rationally.The amendment of the criminal law needs to respect the law of criminal legislation.Due to the response to public opinion should be limited.It cannot blindly satisfy the expression of public opinion,violate the principle of restraint in criminal law,and ultimately undermine the authority and stability of criminal law.(2)Avoid excessive moral criminalization.Criminal law should not be overly involved in immoral behaviors.Moral criminalization should be restricted under certain principles.First,it must be limited to universal morality,second,it must be limited to necessary morals,and third,it must adhere to the principle of moderation.The fourth is to be limited to the basis of wrongdoing and the result of infringement of legal benefits.(3)Restrict excessive preventive legislation.Preventive legislation in the amendment to the criminal law should be an exception.It should be regulated for "dangerous behaviors" rather than "risky behaviors." It should be limited to specific crime areas with "significant" danger.The third chapter proposes the amendment of China's criminal law showing the trend of people's livelihood.This article believes that the amendment of the people 's livelihood of the criminal law is the result of legislative practice to strengthen the protection of the people 's livelihood.It is the practice that promotes the formation and development of the theory.Its emergence and development have its inevitability.Theoretical research.China has passed five amendments to the criminal law to improve the protection of the people's livelihood rights in the Penal Code from five aspects,including childcare,protection of labor rights,protection of food safety rights,increased punishment for dangerous driving behaviors,and further protection of personal information.For the first time,amendments to the general provisions of the Criminal Code were involved.One of the important was to strengthen the protection of people's livelihood and improve the leniency treatment for crimes committed by the elderly.The protection of people's livelihood in the amendments to the Criminal Law is mainly reflected in the following points: Old people and young children.The "Criminal Law Amendment(8)" conforms to the development concept of "elderly" criminal law.The first is to increase the leniency provision for the elderly who have reached to the age of 75.The second is to conditionally exclude the application of the death penalty.Third,the probation conditions for probation were relaxed.Regarding the leniency treatment of minors,the following three aspects have been modified.The first is to eliminate recidivism.The second is to relax the probation conditions.The third is to waive the minor's previous report obligation.As to protect labor rights,In the context of the development of the internationalization of the labor criminal law,the amendments to China's criminal law have increasingly highlighted the protection of labor rights.The Criminal Law Amendment(4)adds the crime of employing child labor to engage in critical labor.The Criminal Law Amendment(6)amended the crime of major labor safety accidents.The Criminal Law Amendment(8)amended the crime of forced labor and added the crime of non-payment of labor compensation.Give full play to the role of the "security law" of the criminal law to further ensure social stability and promote harmonious labor relations.(3)Protecting food safety rights and interests.Taking full advantage of the last barrier of criminal law to protect food safety rights,and further preventing and punishing food safety crimes,has become one of the important contents of criminal law amendments in recent years.The Criminal Law Amendment(8)has amended the crime of producing and selling food that does not meet safety standards,the crime of producing and selling unhealthy and harmful food,and added the crime of malfeasance in food supervision.(4)Penalties for dangerous driving behavior.The Criminal Law Amendment(8)adds the crime of dangerous driving.The Criminal Law Amendment(9)amends the crime of dangerous driving,and further punishes behaviors such as injury,death and property damage caused by dangerous driving.(5)Protect personal information.The "Criminal Law Amendment(7)" began to regulate the crimes of violating citizens' information by criminal law,and added the crime of selling,illegally providing citizens' personal information,and illegally obtaining citizens' personal information.In response to the new situation of the crime of violating the personal information of citizens,in order to make up for the shortcomings of the "Amendment of the Criminal Law(VII)",the "Amendment of the Criminal Law(IX)" once again amended and perfected the crime of violating the personal information of citizens and the subject expanded into a general subject,modified the crime composition of this crime,and increased the legal penalty for this crime.The fourth chapter proposes that the amendment of China's criminal law presents an international trend.The internationalization of the amendment of criminal law refers to the process by which countries all over the world work together to conclude international conventions based on the need to cooperatively fight against international crimes,or to conclude international conventions in accordance with the international community's consistent requirements for the protection of human rights.The basis of the internationalization of the amendment of the criminal law is mainly as follows: First,there is a common legal culture in the international community.The criminal law of each country embodies the legal culture that is accepted and recognized by the countries in the criminal law,so that the criminal law of each country is sharing the shared understanding,forming a development trend of international criminal law that draws on each other and connects with each other.The second is facing a common crime problem,that is,a new form of transnational crime has emerged,which has become increasingly serious with various types of crimes have also exhibited international characteristics.Third,it has a common value orientation,and human rights protection,as an important manifestation of the common interests of mankind,has been put to unprecedented heights.This article believes that the internationalization of the amendment of the criminal law should adhere to three principles: first,the principle of sovereign equality and international cooperation.In the international legal order,each country is an independent subject,and it should communicate on an equal basis on the basis of full respect for the sovereignty of each country.Countries need to carry out full communication and cooperation on the basis of equality,goodwill and mutual respect,and recognize the domestic application of international law through the sovereign power of each country,so as to achieve the same restriction and protection in international law.The second is to adhere to the principles of treaties.It is required that for internationally concluded legal treaties,the contracting parties must perform their treaty obligations in good faith in accordance with the law.From the perspective of good faith and fairness,it is not only limited to obeying the treaty words,but more importantly,fulfilling the obligations from the perspective of the spirit of the treaty.It cannot undermine the purpose of the treaty by any act,and it must be fully implemented.The third is to adhere to the principle of respect and protection of human rights.The most direct and fundamental subject of human rights protection is the sovereign state.The principle of respect and protection of human rights should become the basic principle to be observed in the process of internationalization of domestic criminal law amendments.On the legislative path of the internationalization of criminal law amendments,it mainly focuses on four aspects:(1)the internationalization of the protection of minors.International conventions mainly focus on the determination of the age of criminal responsibility of minors,the scope of criminal liability and the limitation of the way of minor criminal liability.The Criminal Law Amendment(8)has implemented the principles and requirements for the leniency treatment of minors in international conventions from three perspectives,namely,the system of recidivism of minors,probation system,and prior record storage system.(2)Internationalization of the protection of the right to life.International treaties mainly focus on the abolition and restriction of the death penalty.China 's legislature has begun to reform the death penalty system from the “Criminal Law Amendment(8)”.The “Criminal Law Amendment(9)” further extends the basic direction of reform and conforms to the international community 's concept of human rights protection for the abolition and limitation of the death penalty.(3)The internationalization of combating terrorist crimes.In accordance with the relevant requirements and spirit of international conventions,China 's legislature has adopted the Criminal Law Amendment(3)and Criminal Law Amendment(9)to comprehensively modify and supplement the provisions of the 1997 Criminal Code on terrorist crimes.In accordance with the requirements and spirit of the international treaties to which China is a party,the preparatory act related to crimes will be implemented,furthermore,additional crimes will be added,and criminal acts that were previously treated as accomplices will be treated separately as principal offenders.The criminal circle has been further expanded.The legislative model of "resulting offenders" or "situation offenders" has been changed to "behavioral offenders" by adding more crimes or modifying the composition of crimes.(4)Internationalization of anti-corruption crimes.China has increased the crime of using influence to accept bribes,bribery against influential people,bribery crimes against foreign public officials and officials of international public organizations,and revised the criminal composition and statutory punishment of crimes of unknown source of huge amounts of property.The docking of the relevant provisions of the United Nations Convention against Corruption fulfilled its international obligations against corruption,but there were also some misalignments.The fifth chapter proposes that the amendments to our criminal law present a trend of diversified criminal sanctions.Criminal sanction measures and penalties are not a concept.Criminal sanction measures are specific measures for criminal offenders to obtain criminal sanctions,including two types of punishment measures and non-penal measures.It includes not only the main sentence rules and additional punishment stipulated in China's criminal code,but also preventive measures such as community correction system,employment prohibition and life imprisonment system.Through a comparative study of diversified criminal sanctions in France,Germany,Japan,and Italy,this article argues that there are three characteristics of extraterritorial criminal sanctions: First,the level of criminal sanctions.Extraterritorially basically adopts the design of criminal layered sanctions.According to the severity of the crime,all crimes are stratified in a vertical direction,and different sanctions or methods are adopted for misdemeanors and felonies.The second is the diversification of criminal sanctions lies in the four traditional civil law countries,the formulation of criminal sanctions reflects the characteristics of diversification.At the same time,the provisions for each type of punishment measures are more detailed.Considering the different forms of crime,we strive to achieve appropriate criminal punishment.Third,the mitigation of criminal sanctions.Penalties are widely applied in various countries,focusing on behavior correction,and making full use of security measures.China's criminal law gradually attaches importance to the reform of criminal sanction measures,and through the amendment of the criminal law,it further improves the relevant legislation of criminal sanction measures,which reflects the legislative trend of diversified criminal sanction measures.The first is to add preventive criminal sanctions,the second is to create a life imprisonment system,and the third is to add a community correction system.The diversification of criminal sanction measures has great practical significance:(1)the need for the development of modern penalty concepts.First,the need for mitigation of penalties.The criminal sanction measures in China's criminal law are mainly based on severe penalties and there are few types.No measures such as security sanctions are provided,which makes our country's options for mitigation of penalties smaller.The second is the need to give importance of preventing punishment.The legislature not only pays attention to the harmfulness of behaviors,but also effectively manages personal dangers.The diversification of criminal sanctions provides more choices for the function of criminal law.(2)Address the needs of crime development.The first is to meet the challenges brought by the strict French Open.The second is the need to implement the principle of adaptability of crime,responsibility,and punishment.Different levels of crimes require different sanctions.(3)The need to implement the criminal policy of leniency and strictness,which should overcome the shortcomings of singularity in handling criminal sanctions.The sixth chapter discusses the scientific improvement of China's criminal law amendment.In the practice of criminal law amendment,the academic circles have not yet formed a unified view of criminal law legislation,which lacks strong guidance for the practice of criminal law amendment.There are major controversies on how to define the boundaries of criminal offenses,how to achieve a balance between the free guarantee function and order maintenance function of the criminal law,and the delimitation of the size of the criminal circle.Even in the process of amending the criminal law,due to the influence of different views on the legislation of the criminal law,criminal legislation in different periods showed different legislative trends.Generally speaking,one party upholds the conservative and prudent criminal law legislation.Adhere to the principle of moderation in criminal law,resolutely oppose excessive criminalization of the criminal law,and oppose the expansion of the criminal circle.However,this type of legislative concept ignores the need for perfect development of the criminal law itself,the macro background of social development,and the huge differences on understanding of crimes at home and abroad.The other party upholds a proactive and preventive view of criminal law legislation.On the grounds of social transformation,risk society and internationalization of criminal law,it advocates adopting a proactive and preventive view of criminal law legislation.However,this type of legislation concept blurs the boundary between the legislative summary and the legislative guidance,and it is not desirable to take the short-term trend of legislation as the concept of guiding the legislation.It runs counter to the traditional concept of criminal law,violates the modest doctrine of criminal law,violates the principle of legal punishment for crimes,and violates the principle of adaptability of crime,responsibility,and punishment.It is wrong to think that the active involvement of criminal law is the rigid demand of society,and it does not give it an opportunity to adjust its law.In the end,it is not in line with the spirit of the era of ruling the country by law and protecting human rights.This article believes that we should adhere to the rational view of criminal law and promote it from the following three aspects.First,we must implement the modest doctrine of the criminal law,correct the universalism of the criminal law,correct the excessive instrumentalist of the criminal law,and correct the severe punishment.Criminal legislation needs to consider the necessity,feasibility and mitigation of criminal punishment.The second is to implement a criminal policy of leniency and strictness,which is conducive to the unification of punishment retribution and the purpose of prevention,it is conducive to the coordination of limited penal resources,and to achieve the balance of social and personal interests.According to China's current national conditions and the development of criminal law,it is necessary to adhere to the criminal policy of leniency and strictness for a long time,criminalize the criminal policy of leniency and strictness,explore the stratification of crimes,apply the object of leniency to the type of crime,and continue to promote the leniency of punishment.Mitigation and diversification of criminal sanctions.The third is to implement the concept of human rights protection.Promote the legislative of the criminal law for human rights protection,further limit and abolish the death penalty,further improve the leniency system for special groups,and further improve the non-custodial penalty.Aiming at the improvement of the right to make amendments to the criminal law,this article proposes that the right to make amendments to the criminal law should be restructured.There is a large controversy over the power to formulate amendments to the criminal law,which mainly revolves around whether the main body for the formulation of the amendments to the criminal law in China is the "monolithic body" with the National People's Congress as its sole body,or the "second body" with the National People's Congress and its Standing Committee as the body.Meta-subject and under the "dual subject" of the legislative subject of the amendment to the criminal law,how do the positions and powers of the two subjects be defined and developed.The reality is that the Standing Committee of the National People's Congress has played the main role of criminal legislation.It has a tendency to oversee the legislative power of the Basic Law of the National People's Congress,and there are problems of irregularities in the subject,limits and extent of amendments to the criminal law.The first is to revise the main and secondary disorder of the main body.Of the 11 amendments to the criminal law of the National People's Congress,which has been the maker of the criminal law,invariably,they have been circumvented from participating in the amendment of the criminal law.The second is out of control of the correction limit.As many as 97 crimes have been amended and amended in previous criminal laws,accounting for 23.15%.The proportion of amended crimes in the previous amendments has clearly increased,and the rate of increase has been rapid.The third is the improper degree of correction.The "Criminal Law Amendment(8)" has involved the revision of the general provisions of the Criminal Law,coupled with the qualitative changes brought about by the quantitative changes of previous Criminal Law amendments,resulting in a degree of anomie in the amendment of the Criminal Law.The basic principles and basic principles of the Criminal Law the system was challenged.The experience of extraterritorial criminal law modification shows that there can be only one legislature to amend the criminal law,that is,the highest legislature exercises the right to amend the criminal law and implements strict legislative procedures.Based on this experience,it is necessary to return the power to make amendments to the Criminal Law to the National People's Congress.This paper argues that the power to make amendments to the criminal law should be restructured,and the path of restricted power under the "dual subject" is more in line with the needs of China's laws and actual national conditions.Restrict the conditional criminal amendment power of the Standing Committee of the National People's Congress,that is,restrict the amendment of the general provisions of the criminal law and restrict the creation of new crimes.In the end,the amendment order of the NPC and the NPC Standing Committee as exceptions was established.The amendments to the criminal law formulated by the NPC Standing Committee can only be limited to the necessary amendments to the criminal law subdivisions under very urgent circumstances.