Bringing Chinese Law in Line with Western Standards?Problematizing“Chinese”and“Western”in the Late Qing Debate over the New Criminal Code of Great Qing

This article examines the intense debates over the New Criminal Code of Great Qing(Da-Qing xin xinglü)in the National Assembly(Zizheng yuan)during the Qing empire’s New Policy Reform(1901–11).The focus is on the conflict between those who drafted and supported the new code and those who expressed reservations,especially over reform of the laws on filial piety and fornication.The issue of reconfiguring the family and social order through law was closely related to the overarching agenda of twentieth century legal reform in China—making an empire that“ruled through the principle of filial piety”into a modern nation-state that had direct relationships with its citizens.More importantly,an analysis of the late Qing debate over family law enables this article to problematize such concepts as“Chinese”and“Western”during this crucial moment of China’s empire-to-nation transformation.It showcases the paradox of China’s modern-era reforms—a contradiction between imposing Western-inspired order with a largely indigenous logic and maintaining existing sociopolitical order in the name of preserving national identity.

The Thinking and Approaches of Criminal Law Legislation in a Transitional Period

In this transitional period,the concept of legally protected interests in Chinese criminal legislation is changing with the imposition of new control measures that endow criminal law with new functions,including taking an active part in social governance.Active legislation will not entail the systemic risk of excessive interference by criminal law.Criminalization does not conflict with criminal law’s concept of modest restraint.In terms of overall approach,we need to establish dynamic,rational and diversified legislative mechanisms for the future.In terms of specific methods,legislation must maintain an approach of actively intervention in the life of society,changing the current centralized legislative model.However,decentralized legislation should not necessarily adopt the tripartite model of the criminal code plus special enactments and auxiliary criminal law.Rather,it should construct a written criminal law system centered on the criminal code and supplemented by the law on minor offences,in parallel with criminal penalties and public security measures.This will produce a mechanism for the seamless incremental convergence of public security administrative punishment law,minor offences law,and criminal law.The net of justice is fine-meshed but its penalties are light.The addition of new crimes must uphold the rule of law,correspond to specific social situations,maintain an attitude of sensitivity and clarity toward lawlessness and regard criminal law as a last resort,in order to alleviate the pressures legislators currently face from the growing body of criminal law.