A Comparative Study Of The Crime Of Willful And Malicious Injury

Both practice and theory of criminal law in mainland China attach enoughimportance to the Crime of Willful and Malicious Injury. Since the Criminal Law of1979, after the comprehensive revision in1997, the theoretical study and controversyabout the Crime of Intentional Injury, which include the constitution of crime, thestandard of incrimination, the distinction between it and intentional homicide,distinguishing criterion of minor and grievous bodily harm and other issues, have neverbeen interrupted. However, these studies are mainly based on the method of annotationand case analysis but not the comparative study, which always is used in thedemonstration process as one of arguments. Overall, specialized comparative research isstill in the stage of immaturity. This article intends to focus on the comparative study ofCrime of Intentional Injury.Comparative objects of this article come from Japan, Taiwan, France, Germany,Britain and the United States and based on the following grounds. Firstly, the CriminalLaw of China draws more from the Japanese Criminal Law system, and scholars alsokeep enthusiasm in studying it; Secondly, without language barriers, it is easy and accurate to study the Taiwan Criminal Law, which is the most typical and perfectcriminal system in Hong Kong, Macao and Taiwan regions; finally, as France andGermany are the representative of Civil law, the USA and Britain are that of CommonLaw. No matter the theory or practice of Criminal Law has been more mature. In orderto highlight the significance and value of comparison, the contents of the article willfocus on the main controversy of Chinese Criminal Law as followings. Primarily,boundaries of Intentional assault, intentional homicide and disturb crimes. Next, theboundary among intentional assault, intentional homicide and disturb crimes and othersimilar crimes. The third, the issue of attempt of Crime of intentional injury, and thenecessary of reference from the “assault crimes” stipulated in the foreign laws. The final,summarize characteristics of the legislation and theory of intentional injury crimes indifferent countries/regions by comparison, the article would like to reflect thedecriminalization and misdemeanors tendency of intentional injury.This article adopts the traditional structure for comparative study, to wit: above all,it will give a comprehensive introduction of legislation and research of the Crime ofWillful and Malicious Injury in China. In the next part, the paper will outline thecriminal legislation of other countries and different theories. In this part, not only therelevant provisions are cited, but also kinds of theoretical overviews are compared byintroducing the various forms of harm offenses (e.g. Acts of Violence Against/Assault,Mayhem, Serious Injury and Intentional Injury causing death) and various patterns ofcrime (e.g.the stopped pattern, quantity of crime…). Ultimately, the conclusion ofcomparison will be drawn.