The Making of Chinese Criminal Law: The Preventive Shift in the Context of the Eighth Amendment

Description

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. Cover Half Title Series Page Title Page Copyright Page Table of Contents List of figures List of tables List of abbreviations Preface Acknowledgments Chapter 1 Introduction 1.1 The Chinese landscape 1.2 Literature review 1.2.1 Chinese scholarship 1.2.2 Western scholarship 1.3 Methodology 1.4 Book structure Notes Chapter 2 Reforms in Chinese criminal law and their implications 2.1 Conceptualization of “crime prevention” 2.1.1 Crime prevention in the Chinese context 2.1.2 Crime prevention in the Western context 2.2 Three case studies: Based on the 2011 eighth amendment of criminal law 2.2.1 Three offences in Chinese criminal law 2.2.1.1 Crime of drunk driving 2.2.1.2 Crime of manufacturing and selling fake medications 2.2.1.3 Crime of environmental pollution 2.2.2 Similarities among the changes 2.2.3 Weak constraints of the law 2.3 Analytical framework of risk society and its limitations Notes Chapter 3 The history of lawmaking and the multiple streams approach 3.1 Legislative initiative, bill passing and final amendments 3.1.1 Amendment on the crime of drunk driving 3.1.2 Amendment on the crime of manufacturing and selling fake medications 3.1.3 Amendment on the crime of environmental pollution 3.2 Applying John Kingdon’s theory in the Chinese context Notes Chapter 4 Problem stream for Chinese criminal lawmaking 4.1 Studies of nationally known cases as focusing events 4.1.1 Three case studies 4.1.2 The public, the media and the government 4.2 Opinions of netizens on focusing events and Chinese criminal law 4.2.1 Rapid growth of the Chinese internet: Social background 4.2.2 Netizen opinions on focusing events 4.3 Public sense of security in the surveys 4.3.1 Public sense of security: Based on survey results 4.3.2 Reasons for public satisfaction and divergence from internet sentiment 4.4 Conclusion Notes Chapter 5 Policy stream for Chinese criminal lawmaking 5.1 Roles of the specialists in the policy stream 5.1.1 Proposal drafting specialists: The policy entrepreneurs 5.1.2 Adaption and refinement of Kingdon’s model 5.2 Legal concerns of the proposals Notes Chapter 6 Political stream for Chinese criminal lawmaking: Role of the CCP and the bureaucracy 6.1 The role of the CCP in Chinese criminal lawmaking 6.2 The role of other participants in the legislative process 6.2.1 The NPC 6.2.2 The judicial system 6.2.3 The administration 6.2.4 The media 6.2.5 The legal experts 6.3 Conclusion Notes Chapter 7 The role of the state in the criminal justice system: Through a comparative perspective 7.1 Risk control in the Western criminal justice system 7.1.1 Conceptualizing risk in the Western criminal justice system 7.1.2 State’s role of risk control in the Western social context 7.2 Risk control in the Chinese criminal justice system 7.2.1 The “it works” belief in criminal justice in China 7.2.2 The Chinese mixed problem-solving approach 7.3 Conclusion Notes Chapter 8 Policy window of Chinese criminal lawmaking and conclusion 8.1 Legal renewal: Easily opened windows for law reforms 8.1.1 Frequent coupling of the streams 8.1.2 Two important streams for legal renewals 8.1.2.1 Public influences: Public mood and public participation 8.1.2.2 Political influences: Focusing on social stability and public security 8.2 Reflections on Chinese criminal justice 8.2.1 Will an authoritarian regime necessarily lead to harsh penalties? 8.2.2 Is China an exclusive or inclusive society? 8.3 Conclusion 8.4 Changes after the eighth amendment Notes Bibliography Index