The Making of Chinese Criminal Law

The Preventive Shift in the Context of the Eighth Amendment

Ying Ji

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000351224
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

By examining the reasons behind the preventive criminalization of Chinese criminal law, this book argues that the shift of criminal law generates popular expectations of legislative participation, and meets punitive demands of the public, but the expansion of criminal law lacks effective constraints, which will keep restricting people's freedom in the future.

The book is inspired by the eighth amendment of Chinese criminal law in 2011, which amended several penalties related to road, drug and environmental safety. It is on the eighth amendment that subsequent amendments have been based. The amendment stemmed from a series of nationally known incidents that triggered widespread public dissatisfaction with the Chinese criminal justice system. Based on John Kingdon's theory of the multiple streams, the book explains the origins of the legislative process and its outcomes by examining the role of public opinion, policy experts and political actors in the making of Chinese criminal law. It argues that in authoritarian China, the prominence of risk control through criminal justice methods is a state response to uncertainties generated through reforms under the CCP's leadership. The process of criminal lawmaking has become more responsive and inclusive than ever before, even though it remains a consultation with the elites within the framework set by the Chinese Communist Party (CCP), including representatives of the Lianghui, government ministries, academics and others. The process enhances the CCP's legitimacy by not only generating popular expectations of legislative participation, but also by meeting the punitive demands of the public.

The book will be of interest to academics and researchers in the areas of Chinese criminal law and comparative law.

1 Introduction

This book uses case studies as the main research method. The three case studies include revisions to the offences of drunk driving, manufacturing and selling fake medications and environmental protection in the eighth amendment. The eighth amendment reflects several trends in criminal law, and these three cases are the most explicit examples of proactive development. Based on these revisions, the book will be able to carry out an analysis of past events, which have an ongoing impact on the current society.

This book is about reasons for the preventive shift in Chinese criminal law, that is, the social, legal and political rationales of the shift. It is inspired in part by the eighth amendment of Chinese criminal law in 2011 which amended several penalties related to road, drug and environmental safety. The eighth amendment stemmed from a series of nationally known incidents that triggered widespread public dissatisfaction with the rules and functions of the Chinese criminal justice system. This dissatisfaction would eventually result in a crisis of the government and the legal system. Based on Kingdon’s theory of the multiple streams—“problems, policies and politics”—this book seeks to explain the origins of the legislative process and its outcomes by examining the role of public opinion, policy experts and political actors in the making of Chinese criminal law. It argues that in authoritarian China, the prominence of risk control through criminal justice methods is a state response to uncertainties generated through reforms under the Chinese Communist Party (CCP)’s leadership. The process of criminal lawmaking has become more responsive and inclusive than ever before, even though it remains a consultation with the elites within the framework set by the CCP, including representatives of the Two Sessions (the National People’s Congress and Chinese People’s Political Consultative Conferences), government ministries, academics and others. The process enhances the CCP’s legitimacy by not only generating popular expectations of legislative participation, but also by meeting the punitive demands of the public.

1.1 The Chinese landscape

Amendments to Chinese criminal law—as the most visible sign of change in the institutional arrangement of criminal policies and sanctions in China—provide a sound case study of Chinese criminal justice. Scholars usually argue that amendments are driven by multiple pursuits, such as adhering to the policy of combining justice with mercy, solving problems of public livelihoods and following international rules.¹ But a core characteristic of the eighth amendment is that it expands the boundary of criminal law by not only increasing the penalties for several existing offences, but also by criminalizing a number of minor offences. For instance, a prominent characteristic of this eighth amendment is that it comprises several minor offences justified by the requirement of crime prevention—particularly the rationale of risk control—symbolizing the further growth of preventive justice in the field of criminal justice in China.² The amendment also provides additional reasons for expanding state power in the name of public security governance.³

In this amendment, three changes constitute the present development of preventive justice in criminal law, in which the role of “result” in actus reus becomes less important. Most of the changes are focused on fields related to public well-being, such as road and drug safety, and environmental protection. The first and foremost change is the “crime of endangerment”; endangerment offenses criminalize the creation of unacceptable “risks.”⁴ This “risk-liability” (in contrast to harm-liability) includes offenses of explicit endangerment, such as impaired driving in Article 133(a): “A person who races with other automobiles when driving on the road or commits drunk-driving shall be sentenced to criminal detention and be concurrently given a fine, provided that the circumstances are grave.”⁵ Second, in the case of the crime of manufacturing or selling fake medications, the eighth amendment presumes that the behavior is risky, so committing the offence simply requires identifying behaviors rather than further evaluation of the seriousness (real harm) of the actions. Third is the amendment of the crime of discharging, dumping or disposing of radioactive waste, waste containing pathogens of infectious diseases or toxic substances. Committing serious environmental incidents was a compulsory element for this offence before, but in this amendment simply seriously polluting the environment is enough to receive the same sentences. That is, whether the action has generated a serious incident or not is unimportant. With the components of crime offences having been changed, “result-crimes” in criminal law are replaced by crimes manifested in a “behavioral” mode (as “conduct crimes”).

The above changes share a few common features. First, the focus on the punishment of harms is replaced by risk prevention. The justification for criminal sanctions or increased criminal sentences is preventive, aiming to reduce the risks of such behavior. This differs from the traditional emphasis on punishing based on the harm already caused. Second, the role of the “result” is reduced when defining offences. With the increased number of “conduct crimes,” an offence simply requires the existence of criminal conduct instead of a substantial result. In this way, the paradigms of criminal intent and acts are clearly different. For example, with the crime of endangerment, reckless crime without harm is criminalized.⁶ Third, given that inchoate crimes, preparatory crimes, crimes of membership and crimes of possession are all acts falling short of causing actual harm, preventive offences are not new in Chinese criminal law. However, distinct from the other preventive designs, the changes all focus on risks directed at the general public’s security. Such security involves road safety, drug safety and environmental safety, areas that are closely related to the public well-being. As a matter of fact, besides criminal law, this pursuit of public security can also be identified in Chinese criminal procedure law and administrative law, which keep introducing procedural restrictions on crime suspects who endanger national security or public security, or engage in terrorist activity.⁷ Thus, in Chinese criminal law, the preventive amendments manifest the regulatory uses of Chinese criminal law that will give rise to the idea of prevention being the primary justification in the near future. It is possible that more changes will take place to “shift the orientation of crime control away from traditional, reactive strategies towards more prospective and preventive measures designed to maximize security.”⁸ The offense of risk creation in particular, which diverges from the other two in its explicit seeking to control “risk,” has the potential to bring about theoretical and practical changes in the penal field; for instance, new definitions of the fault element in liability, new criteria for criminal behavior without traditional “harm,” and the relationship between the seriousness of the criminal offense and the proportionality of the punishment.

Focusing on these transformations, this book seeks to analyze the reasons behind this preventive criminalization in the field of Chinese criminal justice. The book concentrates on explaining how risk, as a legal form of knowledge, has emerged in Chinese criminal law. How can such changes be explained in terms of transformations taking place within the state and social structure? By examining the social, legal and political rationales of the eighth amendment of Chinese criminal law, this book will shed light on key characteristics of the Chinese criminal justice system, as well as the landscape of contemporary society. The overall question this book will explore is: what are the rationales behind this preventive shift in Chinese criminal law? It examines the social, legal and political elements that contribute to the shift. The other two sub-questions that the book will examine contextualize the Chinese transformations in the global environment, since the preventive shift is not limited to China. What are the particular state and social structures that make Chinese lawmaking distinct from that of other countries? What are the similarities in legislation between China and the West, such as the UK and the US, even accounting for their social and political differences?

As a matter of fact, Western criminological scholarship from the UK and the US sheds light on similar changes in the context of Western criminal justice. Since the 1990s, some Western societies such as the UK and the US have been going through a preventive rise. A large part of Western criminological literature claims that crime prevention has become “increasingly prominent ever the past twenty years,”⁹ and “central to the government’s law and order policy.”¹⁰ For instance, in the UK, Anti-Social Behaviour Orders (ASBOs), control orders and serious crime prevention orders generate a variety of academic discussions about the shift in criminal justice. Besides Britain, “parallels can be drawn with developments elsewhere, not least the introduction of Control Orders (modeled closely on the British example) in Australia and the deployment of civil containment against sexual offenders in the US.”¹¹ In the US, the preventive shift is shown not only through anti-terrorism laws, but also through civil orders against sexual offenders and violent offenders.¹² Western research provides background information on the criminal justice system in a general sense. A variety of comparative studies of criminal justice have been carried out between the US and the UK.¹³ Rarely has the comparison been carried out between that of the West and China. Instead, China is commonly studied as an authoritarian country, whose political structure and social landscape are distinct from liberal democratic countries.¹⁴ Thus examining Chinese criminal justice with a globalized view, using practices of the West as evidence, is a new attempt. Interpreting what others are actually trying to do is essential even if – or especially if – the social actors we are studying do not have, nor could have, all the answers to our – or even to their – problems.¹⁵ On the one hand, comparative studies between Chinese and Western criminal justice shed light on the characteristics of the Chinese lawmaking and practices. On the other hand, a Chinese case study not only tests to what extent Western theorization could explain the experiences of other districts, but also complicates the global understanding of crime prevention and risk control due to its special social context consisting of the current complex development status, the authoritarian regime, the large population and other factors that are specific to developing countries or to China.

In all, focusing on how law and institutions have developed in China, the book will investigate the impact of multiple factors on criminal law in an attempt to understand the fundamental problems in Chinese society and potential future transformations. The next section will address existing literature on this topic, including from China and other countries such as the US, the UK and Australia. The literature review intends to provide an analysis of the literature of the preventive shift of criminal justice both in China and the West. Reviews of the Chinese literature summarize current Eastern scholarship on the preventive shift ...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• List of figures
• List of tables
• List of abbreviations
• Preface
• Acknowledgments
• 1 Introduction
• 2 Reforms in Chinese criminal law and their implications
• 3 The history of lawmaking and the multiple streams approach
• 4 Problem stream for Chinese criminal lawmaking
• 5 Policy stream for Chinese criminal lawmaking
• 6 Political stream for Chinese criminal lawmaking: Role of the CCP and the bureaucracy
• 7 The role of the state in the criminal justice system: Through a comparative perspective
• 8 Policy window of Chinese criminal lawmaking and conclusion
• Bibliography
• Index