Witness the first birth of new criminal law Chinese hardships In 2012 01 months 18 days   Henan news

[Review new Chinese of criminal law, the process of the hardships, the twists and turns, let people be filled with a thousand regrets: a introduced but192The penal code provisions (article number is the least in the world, from the criminal code)1954Years10The NPC Standing Committee law chamber on drafting the date, to1979Years7Month6Promulgated, has unexpectedly pregnant25Years. According to informed sources, in fact the criminal law drafting work time only5More than a year, as long as19Years has been at a standstill, it also created new Chinese established30Years, China not a passage of the penal code. According to China legal professionals memories, the early founding of new Chinese, "anti corruption Ordinance", "marriage law" immediately issued.1954Promulgated "people's Republic of China Constitution", and the drafting of the criminal law at the beginning of the same year. The legal system of this period is the development well.1955Years,1956In the "criminal law draft" has a "military criminal law". According to "new weekly" the article quoted the relevant data, in the1956Years, Mao Zedong said, "criminal law" why premature issued? In the reformation of the students is not holding the "Six Laws" (name, people to common law books generally contains six types of legal common) with the Kuomintang to do? Because the leader of such a sentence, the people's Republic of China's first law, has been postponed until1979Years before formally promulgated. A legal profession with emotion: "a country in China30Only the first criminal law for many years, it is rare in the history of world legal system, because all the beheaded, prison without a law as the basis, this is very terrible. Therefore, the cultural revolution in those who be brutal and inhuman things did not happen by chance."]

25 years of tortuous legislative Road

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Review new China legislation, has existed for 60 years, the process of the hardships, the twists and turns, let people be filled with a thousand regrets: a introduced only 192 provisions of the penal code (article number is the least in the contemporary world criminal code), from 1954 October, the NPC Standing Committee Law Drafting counting chamber promulgated in July 6, 1979, to, has unexpectedly gave birth to 25 years old! In fact, the criminal law drafting work time only 5 years, more than 19 years has been at a standstill, it also creates new Chinese was founded 30 years, Chinese not a passage of the penal code, which is rare in the history of world legal system.

A method to the country, this concept has become a consensus, the birth of the processes behind the criminal law, after numerous and repeated. Personal sorrow and joy who can understand? Reporter special interview law scholar Mr. Gao Mingxuan, he participated in and witnessed the birth of new Chinese criminal law, deep, high old about diverse rough year.

Gao Mingxuan, born in 1928, China famous jurist, educator, Professor of law, criminal law professional first doctoral tutor. Honorary president of deputy director of the academic committee and criminal law will Chinese Law Association, honorary chairman of the vice chairman of the International Association of criminal law and China branch. Has participated in the 1979 Criminal Law draft and the penal code in 1997 revision, many involved in the formulation of China the highest judicial organ research and consulting work of criminal judicial interpretation.

26 years of age to participate in the formulation of criminal law

In February 28, 1949, the CPC Central Committee issued the "about abolishing and determine the Jiefang District judicial principle instruction", announced the abolition of the six laws and all reactionary laws. In 1950, the drafting of the new criminal code of China preparations began, the responsibility of Legal Committee of the Central People's government. Legal Committee has set up a special committee on the drafting of the outline of the criminal law, the criminal law not only translation of the Soviet Union and the people's democracy and law, Germany, the United States and other countries, and large amounts of data collected and the criminal law legislation since the establishment of the new Chinese China history and revolutionary base. In 1950, the legal committee drafted the "people's Republic of China draft outline of the criminal law", a total of 157; to 1954 September, and draw up the "PRC Criminal Law Draft Guidelines" (draft). Because of the ongoing war, the reform of the land system, the suppression of counter revolutionaries and the movement against the "three evils", "five evils" movement, national attention has not focused on the legislative work, so the two manuscript has not been put on the legislative process, not to solicit public opinion.

1954 September held the first meeting of the first session of the National People's Congress, through the China first constitution and "National People's Congress of the people's Republic of China Law" 5 organization, marking the China legal construction entered a new stage. This year in October, general office of the NPC Standing Committee law office has started the drafting of the criminal code. Gao Mingxuan said, I was only 26 years old, of Renmin University of China law students after graduation, just stayed one year as a teacher, he was transferred to the legal department, while working to participate in the drafting of the criminal law. Wu Xinyu is director of the legal department at the time, his superior is in charge of the law of Peng Zhen. The criminal law about the drafting of a total of 20 people, only about a dozen people resident. Legal team members are largely around the city transferred Bureau leadership of secretary of county Party committee, for example, there are many, are the local people, but there is still a lack of legal knowledge. For I from middle school to university, graduate students have read the law, is one of it, and sometimes they'll ask me to give you a lecture, popularize legal knowledge, Wu Xinyu sometimes come and listen to.

We divided into 3 groups, I caught a group, the formulation of general everyone sitting around the table, write specific setting specific charges, each group is responsible for a piece of, return to their thinking, and then met to discuss. Sometimes to the units for research, such as we develop "accident" related articles, in relation to a number of factories and mines, railway safety production, is now the equivalent of harm public security crime, ran many times the traffic department and other relevant departments, the detailed investigation and study, so as to develop reference.

Establishment of criminal law in 1979, we mainly refer to the period of the Republic of China's "criminal law" of the Republic of China, as well as the translation of the penal code, which is the main reference system of criminal law of the Soviet union. The most important reference is the Supreme People's Court on 1956 to do a summary of the work, they collected since the new Chinese established more than 1 cases, to count of all courts apply charges, punishment and sentencing range, the more than 90 charges of criminal law 5 principal types, 3 additional punishment, these is absorbed by the criminal code in 1979. Secondly, there are all the 1953 to 1954 Tianjin city court case summary, is also an important first hand information.

Mao Zedong said: "now is not the law not defy laws human and divine"

The birth to the criminal law in 1979, before the new draft law Chinese a total of 38 manuscripts, of which the most famous is the twenty-second and the thirty-third draft. Because of these two criminal law draft are sent to the central, the Law Committee and the leaders of the review.

We all agreed, modify some provisions of the law, print it out, then becomes a draft. The average one month out of a new release, speed is relatively fast, in 1957 June, wrote the twenty-second draft, submitted to the central leadership of the Law Committee, Chairman Mao said to also see, evaluation well, went to people's Congress every one has a copy, and in the first session of the National People's Congress fourth meeting a resolution, agreed to the twenty-second draft of criminal law as a draft published trial.

But soon the summer of 1957, the anti rightist struggle began, legal Jieshou when its impact, such as participation in the drafting of the constitution law as Qian Duansheng, Fei Xiaotong's brother, Peking University Law Department Director Fei Qing and other legal persons have been made right. Some provisions of the law has been out of struggle, such as the "presumption of innocence" is criticized, said to be the legal thought of the bourgeoisie; in criminal law "criminal" concept, is directly from the "Republic of China" in criminal law transplant, has also been criticized. Criminal law drafting work therefore paused, suffer its first major setback.

The penal code did not pass, the central setting a new China first single criminal law "of the people's Republic of China Regulations on punishing counter revolution" in 1951, and promulgated the "Regulations of the people's Republic of China to punish corruption", "the people's Republic of China against the national currency of provisional Regulations" for a total of 3 separate criminal law regulations, in addition, the field of criminal law has no other laws and regulations. At the time of the courts, such as guilt free the three "Regulations", the verdict will be directly fill in the judgement: crime and sentencing, no quoted legal basis. Wait until the twenty-second draft spread, although it was not released into the formal law, but we know that, in the actual case, the court judgement on the main reference twenty-second draft, played a certain role.

Then followed three years of natural disasters, criminal law once again for the delay, the stop is 5 years. Until 1962 March, Comrade Mao Zedong on legislative work pointed out: "the criminal law to civil law not only, also need, now is not defy laws human and divine, no law, criminal law, civil law must make." Inspired by this conversation spirit, in May the same year, the NPC Standing Committee law chambers again based on the twenty-second draft revision. After major modifications repeated and repeated comments, to October 9, 1963, wrote the thirty-third draft of criminal law draft.

In my opinion, is relatively flat and the 22 draft, 33 draft is to strict to the weight change, because at that time the class struggle ideology is still very strong. The 33 draft be considered mature, and then reported to a central, the then Minister of public security Xie Fuzhi leadership of the central political group were considered in the 33 draft, by the Political Bureau of the Central Committee review, Chairman Mao is said to have seen the nod, the central thought published trial, but this is not like the 22 draft submitted to the National People's Congress review.

Soon after, in 1964 the "four clean ups" movement soon started with vigour and vitality, are in the countryside, I was also in xi'an. Then in 1966 the "Cultural Revolution" swept the Chinese, legal system construction also suffered a crowning calamity. For a time, can be described as "chaos cloud Feidu, Wang Ling side as a peak", illegal detention, lynching flooding. The socialist legal system construction in this period is impossible, criminal law making work is remain stagnant, so the thirty-third draft would have put it away unheeded, a sleep that is 15 years in the file box.

After 25 long years, the first criminal law finally emerge as the times require

After the "Cultural Revolution" period "defy laws human and divine", people urgently need a stable legal environment, especially the environmental criminal law. Crushing the "Gang of four", legal work beginning to receive attention. Especially in 1978, Deng Xiaoping a conversation in October said: "in the past, before the" Cultural Revolution ", worked on criminal law draft, after several revisions, ready to publish. The "four clean ups" way, things down." Now "very need to engage in institutions, centralized, to study this problem, the drafting of relevant laws". In 1978 December, China Communist Party held its eleven plenary meeting, the meeting clearly pointed out: "in order to safeguard the people's democracy, we must strengthen the socialist legal system, the democratization, legalization, so that the system and the law has the stability, continuity and great authority, according to the law, the law, strict law enforcement, illegal." The drafting work is undoubtedly an important guide and a strong push for the criminal code. A new China penal code is.

Before the birth of the criminal law and criminal law of 1979, after the 5 draft. In late February, the NPC Standing Committee was established, Tao Xijin was the leading. He is the one, in the law, organized thirty or forty people develop team. After the "Cultural Revolution", personnel changes, before the development of criminal law's team also are scattered, only high Xijiang and I two people along the way. The University Law from the Supreme Court, procuratorate three or four out of ten, which, compared to 1954, more professional team. Tao Xijin served in the Beijing military region of the Western Hills, led us out of the revised 1 draft, 2 draft revision. We later also with draft to solicit opinions, soldier points a few road, a group of 3 people, I and two other comrades went to Anhui and Jiangxi. In mid March 1979, Peng Zhen took over the leadership of criminal law drafting work, he of the previous 2 releases feel less satisfied, decided in thirty-third draft revised based on criminal law, combined with the new situation, new experiences and new problems, to seek the views of the relevant departments, made bigger modification, successively to three the manuscript.

The thirty-seventh draft was obtained in May 29th the Political Bureau of the Central Committee approved in principle, and then in the Legal Committee and plenary meeting of the fifth NPC Standing Committee eighth meeting to consider, but also made some changes and additions, thirty-eighth draft in the fifth session of the National People's Congress second conference unanimously. July 6th officially announced, and regulations shall be implemented as of January 1, 1980. The people's Republic of China announced the birth of the first penal code.

I was standing at the Great Hall of the people on the third floor, see through criminal law unanimously applauded, at that time also subconsciously looked at his watch, July 1, 1979 at four five in the afternoon, I will always remember this moment. The mood at that time so excited! The criminal did so much draft, after 25 years of time, finally released! I was already 51 years old, from more than 20 year old young man walked up to the age of fifty, this time almost beyond expression, as if the liberation.

Sad

Peng Zhen in the "legislation should adapt to the reform, open to" report said: "now USA, Europe, Japan in terms of legal disaster caused by flooding water. They are not law is not complete, but the disaster caused by flooding water. Some European friends advised us to prevent the disaster caused by flooding water law. Our method will not like them, something so trivial. Method, numerous. Fan, who also can not remember, call a person how to perform? So, law should be concise and to the point."

Develop the 1979 Criminal Law, the decision-making layer requires legislative terms must be easy to understand, to "easy to learn" the people of the nation, the provisions of the criminal law of simple and crude, but also not lost. Some provisions are too general, this also is afterwards "pocket crime". The most typical is the "hooliganism" as one, the so-called "hooliganism is a basket, what crime are loaded inside". Recent news reports China finally a "hooliganism" prisoner Niu Yuqiang, cause is just 18 year old and his friends grabbed a hat and a fight, it was the court to the crime of hooliganism sentenced to death with reprieve.

In 1981, I gave birth to the "PRC Criminal Law" and the birth of publishing. This is after the reform and opening up, Law Press published the first monograph of the first Indian law, more than 1 volumes, had a great response in the legal profession.

Behind this book also I deeply regret. Because when the teacher in Colleges and universities, research and the criminal law, I usually pay great attention to collecting data, since has participated in criminal law work, I carefully collected first draft to all data of 33 releases previous criminal law draft, some controversy and opinions which are annotated in the information, I will be bound, there are many pile up one and a half high.

During the "Cultural Revolution" critical "knowledge private", I have something to worry about at that time, plus the soon to be in Jiangxi, these data also take don't walk, put in the house lost how to do. The legal system of the year is the secret of professional, legal department reference room is top secret information room, I think there should be submitted to the insurance. But then the military propaganda team and gongxuandui people poured into the campus, they do not know, look at the stack said: "this have what use!" So a fire burnt up all. It's too bad! The only this set. Write "birth of the people's Republic of China criminal law and the birth of", according to my own was done two notebooks, a report and 1964 at the Department's legal system, to mobilize their own memory, written in a book. If those valuable information can stay, criminal law making development how clear! This can be said to be one thing in my life the most regrettable!

The 1979 Criminal law making has been revised. The 1997 new criminal law provisions, the number increased to 452, two times more than in 1979, charges more refined, so that the basis of the conviction and sentencing is more clear, detailed. Criminal law last revised in August 28, 2010, "PRC Criminal Law Amendment (eight)" submitted to the NPC Standing Committee through.

The new criminal code in 1997 the abolition of hooliganism, but the crime did not cancel not punished, but can be decomposed into the crime of affray, crime and several new charges, become more clear provisions. And it was known as the "three pocket crime" play the market be forgetful of one's duties crime, crime, also slowly fade out of history. The new criminal law has always been Chinese with "can not kill knew not to kill", such as the revised criminal law was canceled last year, 13 non violent economic crime death penalty, has reached the age of 75 to the old rules no longer apply death penalty. They reflect the development trend of the criminal law is more rational, more scientific, more humane. In the development of the times change, I believe that the law will also keep pace with the times and change.