|
Deliberation on adjusting Chinese criminal law structure
LIU Renwen
Front Law Chin. 2008, 3 (4): 477-493.
https://doi.org/10.1007/s11463-008-0022-8
There are two problems with regard to the structure of Chinese criminal law. Firstly, the crimes that are defined in the Chinese criminal code are approximately equal to the felonies that are defined in the western criminal codes, while re-education through labor and penalty for administration of public security similar to the misdemeanors and violations in western countries respectively are not included in the Chinese criminal code, and meanwhile the security measures have not been systematized. Secondly, crimes and penalties, except in criminal law, can not be prescribed in administrative laws and economic laws, and such single track system of conviction and sentencing fails to satisfy the current social situation in which the number of mala prohibia has increased so much. The way to reform Chinese criminal law structure: Firstly, it is to establish a double track system, where mala prohibia should be prescribed in the related administrative laws or economic laws; secondly, a comprehensive criminal code should be reformulated in which felonies, misdemeanors, violations and security measures are all included.
Related Articles |
Metrics
|
|
Sentencing and computation of punishment —On “computerized sentencing”
YU Ping
Front Law Chin. 2008, 3 (4): 507-524.
https://doi.org/10.1007/s11463-008-0024-6
Sentencing has long been a neglected area of analysis by both China’s academic and judicial circles. Nominally, there are no specific prescriptions in China’s criminal law regarding sentencing; in practice, however, courts arbitrarily integrate sentencing into the conviction proceedings of criminal trials. This lack of established specificity, when coupled with variation in the practice of different courts in various localities, has led to a general lack of transparency and substantial discrepancies in sentencing. Though some critics of the current system propose to unify the sentencing practice by adopting “computerized sentencing”, it is important to keep in mind that a sentencing system must necessarily be a dynamic process. As such, the focus and goal of sentencing should not merely be to compute a final punishment; rather, the system must justly reflect the society’s final evaluation of the offender and the crime. It is difficult to imagine that one-dimensional system as computerized sentencing can take into account the multitude of factors in considering a crime. Therefore, although it is necessary that the sentencing process should be separated from the conviction process, a “computerized” system may not be the best alternative.
Related Articles |
Metrics
|
|
On property with personality interests
YI Jiming , ZHOU Qiong
Front Law Chin. 2008, 3 (4): 556-582.
https://doi.org/10.1007/s11463-008-0027-3
The traditional theory of property and tort law generally denies personality interests in property. In recent years, legislative and judicial practices at home and abroad have turned to care for personality interests in property and to protect it. The property with personality interests can be classified into four categories, namely, (a) property with personality symbolism, (b) property with specific human emotion, (c) property originated from specific human body, and (d) intellectual property from specific human wisdom, the first two of which internalize external matters and the last two externalize the inherent self. Comparing with fungible property, the property with personality interests on the basic of facts and law shall be more protected in legislative and judicial practices.
Related Articles |
Metrics
|
|
Interpreting the legislation connotation of water resource regulations
XING Hongfei , XU Jinhai
Front Law Chin. 2008, 3 (4): 600-610.
https://doi.org/10.1007/s11463-008-0029-1
Water resources have the functions as domestic water, resource water and environmental water, on the basis of which the legislative framework of water resource regulations shall be studied. Firstly, domestic water shall be deemed as property right and the legislation shall protect the realization of the fundamental human rights for use of domestic water. Secondly, with respect to resource water, an independent water resource regulatory agency shall be established; and meanwhile, the legislation shall promote the construction of water right market based on property rights and improve the utility of water resources. Thirdly, since environmental water is one of the public goods, the legislation shall create a path of privatization in implementing mechanism for realizing the use of environmental water and the franchising system provides a practical solution to privatization of environmental water.
Related Articles |
Metrics
|
10 articles
|