“후기노동교양시대”에서의 중국 경범죄제도의 수립에 관한 성찰 = Reflections on the construction of China’s misdemeanor system in the “post-Laborre-educationera”

다국어 초록 (Multilingual Abstract)

There is no legal classification of misdemeanor and felony in Chinese Criminal Code, and there is no other misdemeanor law outside the Criminal Code.
The Criminal Code of China basically adopts the criminal establishment mode of the pattern that the offenses have the quality and quantity at the same time, therefore, if the majority of offenses cannot meet the requirement of constituting crime in quantity, it will be excluded from the crime field and be punished only by administrative punishment. In the relevant administrative penalty regulations, the Law on Penalties for Administration of Public Security is more applicable, which is similar to the Law of Punishment of Misdemeanor in South Korea, but it belongs to administrative law rather than criminal law, that is, the offenses stipulated in the law are administrative malfeasance, not the crime.
All along China’s criminal sanction system is composed of three poles: penalties for administration of public security-re-education through labor-criminal punishment, among which the objects of reeducation through labor are more complex, but generally they can be summed up as petty misdemeanors and serious administrative violations. From the formal perspective, the system of reeducation through Labor can play a role in linking criminal punishment with administrative punishment, and reconciling the field of criminalization and decriminalization, but because of its many problems, the system was abolished in 2013.
After the abolition of the re-education through labor, in order to make up the gap of punishment system, the ideas of constructing misdemeanor system became quite active. One of them advocated the enactment of misdemeanor law beyond the criminal code, which regulates the objects including part of the re-education through labor system’ objects, part of the Law on Penalties for Administration of Public Security’ objects and other offenses which need to be defined as misdemeanors, and prescribed a very simple trial procedure so that petty misdemeanors can also be heard by the court, this is a more powerful idea theoretically. However, considering the modesty of the criminal law and the China’s traditional legal culture, it is very rare in the Chinese academia to advocate the petty misdemeanor punishment being applicable for the public defecation, littering, noise nuisance, posting advertisement and so on, while which is stipulated in the Law of Punishment of Misdemeanor in South Korea.
Despite the part of the academia’s opinion of introducing the misdemeanor system, China’s legislature has been cautious about the misdemeanor law, fearing a sharp expansion of the criminal circle and a sharp increase in the number of people with criminal records. However, with the fact that drunken driving into penalty has received good preventive effect now, the legislature’s attitude is likely to change, that is, from the standpoint of the legislature, through misdemeanor, shaping the national normative awareness is not unacceptable.
This article suggests that the establishment of misdemeanor system conforms to the general direction of the development of the rule of law, but at present China doesn’t have the conditions to systematically construct the system of misdemeanor at all, now as far as possible within the existing institutional framework or not to subvert the existing system, through the establishment and improvement of relevant systems and regulations, China should gradually promote the construction of misdemeanor system.