The Absence Of New China's Criminal Code And Countermeasures Of Criminal Legislation And Criminal Justice-A Study From 1949 To 1979

This Thesis presents a study on China's tortuous historical process on the criminal legislation and the development of criminal rule of law over 30 years since the establishment of the new China, which covers a historical period from 1949 to 1979. The author uses the new China's enactment and failure of each proposed criminal draft code as clues, refers to a large number of historical documents, CPC historical materials and various criminal legislative documentations during that period and applies comprehensive research methods including jurisprudence, history, sociology and comparative study.Unlike most scholars who"separate criminal legislation research and criminal justice research"or"merely make a general study on new China's legal system", the author of this thesis specifically singled out the 30 years'criminal legislation history and makes an in-depth analysis with a fresh point of view. First of all, the author divides the 30 years historical process of new China's criminal code enactment into different periods, and makes a comprehensive description and expatiation on each period, prospectively, with regard to the drafting process, reasons of the suspension, remedies from the existing criminal legislation and countermeasures in the criminal justice under such particular period. Then, the author evaluates the effectiveness and shortcomings of each countermeasure. Furthermore, with emphasis on the debates of legislative issues which made by scholars in different periods, changes of the legal ideology in the central government and political movement's impact on criminal legislation, the author tries to restore the real history and shows the readers the actual legal environment in the absence of effective criminal legal system during that period, which then prepares to come to the conclusion.At the end of the thesis, the author makes a multi-angled expatiation on the reasons of the 30 years'absence of criminal code in the new China, precisely criticizes and discusses legal issues reflected therein, and analyzes the possible countermeasures which may fill the gap in the criminal legal system, such as the use of other legislative documents, judicial means, criminal policies and mass movement etc. Finally, the author hopes to find out some useful illuminations through the study on the new China's tortuous development path of"learning from the West– cutting off the history and abandoning foreign models– learning from the West again", to inspire the contemporary legal system construction of China.