On The Abortion Offence In The Late Qing Dynasty And The Republic Of China

During the legal changes in the late Qing Dynasty,Abortion Offence was first put forward in the "New Criminal Law Draft of Qing Dynasty".After the promulgation of "New Criminal Law of Qing Dynasty",Abortion Offence was formally incorporated into the Criminal Law.Although the laws of the Republic of China have been amended several times,the specific charges,Abortion Offence,has been retained in the Criminal Law.Combing the existing research results,it is found that the reasons why Abortion Offence were firstly incorporated in the Criminal Law and the effect of its social implementation still need to be solved.The reasons why the Abortion Offence were firstly incorporated in the Criminal Law in the Late Qing Dynasty can be divided into internal and external factors.The mainly internal causes is the universalization of abortion behavior.The purpose of Abortion Offence is to prohibit abortion,which is a harmful order and the behavior of undermine humanitarian.Minister of legislation`s legislative principles is another internal cause of the criminalization of abortion.One of the external causes is that the crime of abortion is the common law of the European and American countries during this period.And the second is to follow the example of Japan to complete the modernization of China's legal had become a consensus.With the effect of internal and external factors,the Abortion Offence were firstly incorporated in the Criminal Law in the Late Qing Dynasty,what it was a product that considered both on China's national conditions and the rules of the western countries.Based on the above legislative purposes,this Paper combed respectively the effect of social implementation and judicial practice of Abortion Offence.Then analyzed the practice situation from civil and official perspectives.It is found that a large number of needs for abortion are prohibited but ineffective;the law forbids parallel with privately abort;the awakening of the concept of birth control was in opposition to the traditional moral;The judiciary gradually acquiesce to widespread abortion and with a clear lighter tendency in the trial of abortion cases.Taking into account the above factors,it can be concluded that the explicit prohibition of the law has failed to reverse the vice of abortion.It has inherent rationality that the Abortion Offence had been firstly incorporated in the Criminal Law because of taking into account China's national conditions.But the Abortion Offence that rooted religious culture and Western legal theory lacks theoretical basis in China;neglects the real needs of people at that time;deviates from the development of the underlying society.Therefore,the above factors have contributed to the result that simple legal constraints failed to solve the social problem of the universalization of abortion.