Taro Okada And Modernization Of Criminal Law In China

Japanese criminal law scholar Okada Asa Taro was born in the first year of Meiji,when the first old criminal code of capitalism of Japan was formulated and then published.Under the promotion of the “from Asia for Europe " thoughts, Okada graduated from the Law School specializing in French law of the Tokyo Imperial University in 1891.Then he was dispatched to Germany, France, Italy for study. Wherein,the learning experience in the Germany Liszt laboratory not only makes his academic development get a qualitative leap,but also, by the spreading of the theoretical knowledge through his personal teaching in classroom, and his practical activity such as taking part in compiling the Japanese code and reforming and modifying the laws in late Qing dynasty, makes great influence on the theory development of Japanese criminal laws and the modernization of criminal laws in later Qing dynasty. His activities in China, focusing on the new criminal law drafts in the charge of him, especially leaves an enlightenment significance on the modernization of criminal laws in later Qing dynasty. The thesis intends to make a time-axis, and from several important satates of his life,including inheriting the subjective criminal law concepts,cultivating Chinese talents on law, participating the compiling of criminal law drafts in late Qing dynasty and the "etiquette dispute" with Chinese feudal ethics schools,comments his ups&downs in his academic life as a criminal law expert. Finally, the thesis settles down to the topic Okada’s significance onto the modernization of criminal laws in later Qing dynasty of China, with the hope to inspect the deep motivation of pioneering influence of Okada as a Japanese criminal law expert on Modern Chinese Criminal Law Reform, and to explore the important role Okada plays in the process of the criminal laws of late Qing dynasty towards independent and modern development by gett ing rid of the traditional Chinese feudal etiquette. Therefore, the subject of the article will be divided into five parts and the following will briefly describe the main study content of each part.The first part is the formation of Okada’s criminal laws ideas. This part is divided into two sections, namely the rise of international community subjective criminal law of Japan in the "from Asia for Europe",Okada’s criminal laws ideas.The thesis mainly introduces the Industry Crisis Japan faces for the development of capitalism and the rise of international community subjective criminal law. And the dramatic change Okada idea of criminal laws is mainly derived from his study in Germany, whose tendency is the new breed of doctrine and thinking basis point is subjectivism. In Japan,taught the criminal thinking of social evolution by his teacher Masaaki etc, his theory had already had the characteristics of social defense doctrine. After under the tutelage of Liszt in Germany, Okada’s social defense theory over the methodology is more clearly and strengthened. Moreover, later as aproponent in the reform of Japan’s criminal law, he had once played important role in revising and reforming of Japanese new criminal laws. The summary part from Japanese criminal law reform lead to criminal law reform in the late Qing dynasty.Focus on the basic motivation and possibilities of the criminal laws reform of late Qing dynasty,the role of Okada with the advanced criminal laws idea that have the important influence on Japanese criminal laws reform.The second part is to train personnel of the modern Chinese legal educators. This part is divided into two, namely the establishment of the Japanese law and politics crash depart and thelaw and politics educcation in Late Qing Dynasty, the Constitutional Movement of Qing dynasty and Okada;s visit to China. This part mainly regard the objective historical reasons why Okada’s criminal law ideas have an impact on the criminal law modernization in Late Qing Dynasty, as the analysis object, and the research center of the thesis is the Okada’s participation in the criminal law education of late Qing Dynasty. Firstly it analyze the fact that after the defeat of the Sino-Japanese war, more and more learners go to Japan and Japan set up the Hosei Express Chillicothe for Chinese students. The Handouts,teaching mode and training personnel during the study have far-reaching implications on the spreading of the Western modern legal thoughts. Served as a teacher of criminal law,Okada’s credit naturally can not be buried. Followed are the Institutional Reform under the Constitutional Monarchy Movement, Okada’s motivation to come to China, and his job as the instructors in the law school of the Metropolitan University and the participation of the revision of the law museum. The summary part focuses the analysis of Okada’s transferring of the advanced Western thought criminal law to Chinese intellectuals, through his active participation in the late Qing Dynasty law, which paves and lead to Okada’s important role in the grafting process of Chinese ancient criminal law system onto the advanced Western penal system.The third part is the practitioners participating in the compilation of later Qing Dynasty criminal law drafts. This section is divided into two, namely the criminal laws during the transition period & the new draft criminal law fixed by Okada, and the implementation of Okada idea of criminal laws. It mainly introduces Okada’s participation in editing the Qing dynasty criminal law drafts, whose basis is the comparative criminal law theory. And it adopts the strengths of each country’s Penal Code to abolish the old style system, and apply the advanced legislative principles and legislative experience to the new criminal law drafts, spreading the advanced western legal thought and making the new criminal law establish a modern legal system. Meanwhile, as a "new" criminal law scholar,Okada would advocate in the unimplemented criminal laws of Japan penal reform such as the application of probation etc into the new criminal law drafts. The above not onlyachieves his own ideas in criminal law, but also fulfills qualitative change of the Qing Dynasty’s criminal law drafts. From aspects like the the legislative principle and experience etc, the summary part mainly analyzes Okada’s contribution on the establishment of Late Qing Dynasty’s criminal laws. It also study that while the criminal law ideas of Okada are able to be achieved, they are also opposed by the etiquette thinking ingrained "sect ritual".The fourth part is about the defenders of the "No ritual punishment" proposition of the School of Law. This section is divided into two, namely the argument on preserving of the the School of Law and the enactment and implementation of criminal laws of the Qing Dynasty. With the center of the "Rape of women without a husband " abolition, the thesis discusses the relationship between the etiquette and law in Chinese traditional criminal laws and dwells upon the steering and controversy of the “Rape crime” in process of last Qing Dynasty’s reception of foreign laws. From the traditional etiquette and confusing the fact that how the concepts are impacted from the advanced western thinking, it tries to expound the tangle and the trend of the Chinse etiquette and law for thousands of years time. In the social change process, the confusion of value reconstruction and code choices is more significant. Through the analysis of the revision process of the new criminal law drafts and the followed results, the author probes into the its significance towards the establishment of the descendant criminal laws and the modernization of Chinese criminal law.The fifth part is the enlightenment of Chinese Modern Criminal Law. This section is divided into two, namely dominating influence on Criminal Law, and the dim twilight with the dedication returning. It mainly uses the quantity and quality change of criminal law monographs presented before or after the law revision, as the evidence to show the significance of Okada’s criminal law thoughts towards Chinese modern criminal law.However, he would dedicate this to China, and soon he returned to Japan. After separating himself from the high-speed development of Japanese criminal law for a long time, the analects he then published is very difficult to make big influence.In the summary part, the author will deeply demonstrate, as a actual reformer of criminal laws of late Qing Dynasty,the role he plays in the modernization of Chinese criminal law, promoting Chinese criminal law to change from yet-to-become state to sporadically coming into being state.