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

"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." 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. Cover 1 Half Title 2 Series Page 3 Title Page 4 Copyright Page 5 Table of Contents 6 List of figures 9 List of tables 10 List of abbreviations 11 Preface 12 Acknowledgments 14 Chapter 1 Introduction 16 1.1 The Chinese landscape 16 1.2 Literature review 19 1.2.1 Chinese scholarship 20 1.2.2 Western scholarship 23 1.3 Methodology 26 1.4 Book structure 30 Notes 32 Chapter 2 Reforms in Chinese criminal law and their implications 39 2.1 Conceptualization of “crime prevention” 39 2.1.1 Crime prevention in the Chinese context 39 2.1.2 Crime prevention in the Western context 41 2.2 Three case studies: Based on the 2011 eighth amendment of criminal law 43 2.2.1 Three offences in Chinese criminal law 43 2.2.1.1 Crime of drunk driving 43 2.2.1.2 Crime of manufacturing and selling fake medications 45 2.2.1.3 Crime of environmental pollution 46 2.2.2 Similarities among the changes 47 2.2.3 Weak constraints of the law 50 2.3 Analytical framework of risk society and its limitations 51 Notes 55 Chapter 3 The history of lawmaking and the multiple streams approach 61 3.1 Legislative initiative, bill passing and final amendments 61 3.1.1 Amendment on the crime of drunk driving 62 3.1.2 Amendment on the crime of manufacturing and selling fake medications 63 3.1.3 Amendment on the crime of environmental pollution 64 3.2 Applying John Kingdon’s theory in the Chinese context 65 Notes 70 Chapter 4 Problem stream for Chinese criminal lawmaking 74 4.1 Studies of nationally known cases as focusing events 75 4.1.1 Three case studies 75 4.1.2 The public, the media and the government 77 4.2 Opinions of netizens on focusing events and Chinese criminal law 79 4.2.1 Rapid growth of the Chinese internet: Social background 79 4.2.2 Netizen opinions on focusing events 80 4.3 Public sense of security in the surveys 82 4.3.1 Public sense of security: Based on survey results 82 4.3.2 Reasons for public satisfaction and divergence from internet sentiment 85 4.4 Conclusion 88 Notes 90 Chapter 5 Policy stream for Chinese criminal lawmaking 94 5.1 Roles of the specialists in the policy stream 95 5.1.1 Proposal drafting specialists: The policy entrepreneurs 96 5.1.2 Adaption and refinement of Kingdon’s model 98 5.2 Legal concerns of the proposals 100 Notes 103 Chapter 6 Political stream for Chinese criminal lawmaking: Role of the CCP and the bureaucracy 106 6.1 The role of the CCP in Chinese criminal lawmaking 107 6.2 The role of other participants in the legislative process 110 6.2.1 The NPC 110 6.2.2 The judicial system 112 6.2.3 The administration 115 6.2.4 The media 118 6.2.5 The legal experts 121 6.3 Conclusion 124 Notes 127 Chapter 7 The role of the state in the criminal justice system: Through a comparative perspective 134 7.1 Risk control in the Western criminal justice system 134 7.1.1 Conceptualizing risk in the Western criminal justice system 134 7.1.2 State’s role of risk control in the Western social context 136 7.2 Risk control in the Chinese criminal justice system 138 7.2.1 The “it works” belief in criminal justice in China 138 7.2.2 The Chinese mixed problem-solving approach 143 7.3 Conclusion 144 Notes 145 Chapter 8 Policy window of Chinese criminal lawmaking and conclusion 149 8.1 Legal renewal: Easily opened windows for law reforms 150 8.1.1 Frequent coupling of the streams 150 8.1.2 Two important streams for legal renewals 151 8.1.2.1 Public influences: Public mood and public participation 152 8.1.2.2 Political influences: Focusing on social stability and public security 154 8.2 Reflections on Chinese criminal justice 156 8.2.1 Will an authoritarian regime necessarily lead to harsh penalties? 156 8.2.2 Is China an exclusive or inclusive society? 158 8.3 Conclusion 159 8.4 Changes after the eighth amendment 160 Notes 162 Bibliography 166 Index 182 Chinese,Criminal,Law;,Preventive,Justice;,Public,Opinion;,Chinese,Communist,Party Chinese Criminal Law,Preventive Justice,Public Opinion,Chinese Communist Party "By examining the reasons behind preventive criminalization of the 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 law making 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"-- Provided by publisher