Peking University Law Journal最新文献

{"title":"Preventive criminalization: legislation and issues in China","authors":"Ronggong He","doi":"10.1080/20517483.2023.2223846","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223846","url":null,"abstract":"ABSTRACT Preventive criminalization is one of the most noteworthy legislative phenomena in China, exhibiting structural differences from the basic principles of criminalization and the traditional risk prevention function of criminal law, focusing mainly on the areas of counterterrorism and cybercrime. The advancement of the criminal law defense against new types of crime is necessary, but there is also an implied risk of expanding and blurring the boundaries of criminal law intervention. The trend towards preventive criminalization is inevitable in our country, guided by a positive view of criminal law. The addition of preventive criminal law provisions in future legislation should reasonably balance the relationship between social protection and civil rights, avoiding excessive intervention of criminal law on the grounds of prevention.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"334 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133796671","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Preventive turn in criminal law","authors":"S. Melander","doi":"10.1080/20517483.2023.2223843","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223843","url":null,"abstract":"ABSTRACT Preventive turn in criminal law has been an important discussion topic in recent years. In many significant scholarly contributions, the nature of criminal justice system has been seen to be in transition from reactive measures to various preventive measures and from rights-based approach to more effective measures. Also various legislative examples from many countries illustrate that many other, often also dubious, means than criminal law are used in preventing unwanted behaviour. This development conceivably affects the foundations of the criminal justice system since the state’s response to unwanted behaviour may be founded on different objectives than criminal justice system traditionally has endorsed. The concept of preventive turn of criminal law is, however, somewhat loose and ambiguous and it has been given different meaning in scholarly discussion. In this article, the concept of preventive turn of criminal law is examined in light of the different meanings given to it in the scholarly discussion. In addition, article discusses administrative sanctioning as an alternative to criminal legislation and legislative and other endeavours to recidivism of dangerous offenders. The article is founded on liberal model of criminal law, which has stressed the role of individual autonomy and dignity and also the importance of procedural safeguards. The examples of preventive turn may risk these traditional liberal foundations of criminal justice system when the states are searching for more effective means in preventing unwanted behaviour. Traditional liberal foundations of the criminal justice system may be at risk when more effective solutions are sought. This article, thus, also seeks to examine whether it is possible to construct a rights-based liberal approach towards preventive turn of criminal law in which the liberal foundations of criminal law are proportioned to preventive measures.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"03 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130055486","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Reflections on the internationalization and regionalization of criminal policy – towards global views of criminal law theory","authors":"Raimo Lahti","doi":"10.1080/20517483.2023.2223841","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223841","url":null,"abstract":"ABSTRACT The introductory article of Raimo Lahti starts with the description of Finnish–Chinese colloquia on criminal law 2016–2022, i.e. the cooperation in criminal sciences between the Peking University and the University of Helsinki. The author continues with the analysis of trends towards internationalization and regionalization of criminal policy and criminal justice – more generally, towards global law. The need of comparative criminal law is emphasized. The author's examples are mostly from the Nordic countries and Finland. He also prioritizes the examination of criminal law theory in transition and invites to express global views on criminal law theory.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126554199","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legislative practice of preventive detention in China","authors":"Jia-Pei Yuan","doi":"10.1080/20517483.2023.2223848","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223848","url":null,"abstract":"ABSTRACT The Chinese legislation and criminal law theory research has already reflected the preventive idea, which is not the complete connotation of preventive criminal law, nor can fully meet the needs of national security governance. The characteristics of the preventive criminal law theory determine that the whole picture of this problem can only be presented by combining the substantive field and the penalty field of criminal law. Preventive detention refers to the liberty restriction measures taken after the execution of punishment for the purpose of preventing crimes, defending society and correcting crimes, mainly targeting perpetrators of violent crimes or sexual crimes and recidivist, based on their high social risk to the public interest and social security. Preventive detention not only balances the relationship between social defense and individual rights restriction but also provide the legal guarantee of national security governance, realising the positive interaction between freedom, development, security and order. There were some similar practice in history, and the resettlement education carried out in the field of anti-terrorism in recent years also have the nature of preventive detention.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"70 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127772974","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Opening speech for the third Chinese Finnish seminar","authors":"Genlin Liang","doi":"10.1080/20517483.2023.2223842","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223842","url":null,"abstract":"Dear colleagues from Finland and China, good morning and good afternoon! It is my great pleasure to attend the Third Chinese-Finnish Seminar on Criminal Law online with colleagues from Finland and China. With the joint efforts of both sides, we held the first and second Chinese-Finnish Seminar on Criminal Law in Helsinki in 2016 and in Beijing in 2018. According to the original plan, the third seminar was supposed to be held in Helsinki in 2020. But the outbreak of COVID-19 completely disrupted our arrangements. Even though the pandemic has been raging for three years, it is still not over. In particular, China is not yet open to the outside world, so we still unable to have offline face-to-face dialogues. Considering that the essence of human is social and the life of academic is communication, we have to hold this seminar online after delay of two years. The topic of this seminar is preventive criminal law. As an important proposition reflecting the postmodernity of criminal law, the specific performance and development trend of preventive criminal law may have significant national differences. However, it is still the common development trend of criminal law in all countries in the world today, and it is full of controversy because of the postmodernity characteristics, especially the erosion of classical liberal criminal law. The development of criminal law in China in recent years also shows an increasingly obvious preventive turn. On the one hand, legislators constantly amended the criminal law, added new charges, expanded the criminal circle, preposed the starting point of criminal law intervention, reduced the threshold of crime, blur the boundary between criminal law and civil law or administrative law, results-based criminal constitution increasingly gave way to dangerous standard and even conduct-based criminal constitution. The function of the secondary legal interest protection of criminal law and the system position of the law of last resort are under constant impact, and the criminal legislation is becoming more and more active. On the other hand, legislators are attaching more and more importance to the use of various legislative techniques to reduce the requirements for criminal proof, reduce the difficulty of the prosecution to charge crimes, and facilitate the flexible and efficient application of criminal law by the judiciary. I call it the invisible activation of criminal legislation. In addition, Chinese lawmakers have enacted a series of laws in recent years, including the Anti-Terrorism Law, the Anti-Organized Crime Law, the Cyber Security Law, the Data Security Law and the Personal Information Protection Law, which have further strengthened the preventive and comprehensive control of terrorist crimes, organized","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124347374","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Money laundering and terrorist financing as preventive criminalizations","authors":"K. Nuotio","doi":"10.1080/20517483.2023.2223845","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223845","url":null,"abstract":"ABSTRACT Modern times are marked by the march of preventive theories of punishment. Prevention is a promise of benefit, of social utility, as accordingly the practices of punishment promise us an impact on future offending. Preventionism has often been understood as a problem and even as a threat, since setting such a vague goal on our criminal law and criminal justice, we might risk loosening all the limiting principles concerning what can be done by means of criminal law. It is precisely these concerns that have triggered a growing interest in the topic. In the following, we will first present some historical lines of development which have prepared us for a turn towards prevention. Interventionist policies of the state towards society are nothing new themselves. My own take on the subject will be exemplified in a discussion of two recent areas of intensive international regulation: money laundering and terrorist financing.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124188607","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Rethink the basic idea of preventive criminal law","authors":"Dongyan Lao","doi":"10.1080/20517483.2023.2223844","DOIUrl":"https://doi.org/10.1080/20517483.2023.2223844","url":null,"abstract":"ABSTRACT Law is expected to shoulder the two-dimension values of meaning and function, and neither should be neglected. Witnessing the great changes and transformations taking place in the present society, this article attempts to explore how the doctrinal system of criminal law should respond to the propositions raised by the society and balance the two-dimension values of meaning and function. A reasonable doctrinal system should be able to not only improve its responsiveness to the external surroundings, but also maintain its autonomy itself. The basic idea of criminal law is a meta-theory which determines the direction of how to construct the doctrinal system of criminal law. From the perspective of the relationship between the dimension of function and the dimension of meaning of law, the basic ideas and its corresponding doctrinal systems of criminal law can be categorized as three schemes: the classical scheme (or autonomous scheme), the responsive scheme and the reflexive-functionalist scheme. This article put forwards the reflexive-functionalist scheme, and advocates an introduction of constitutional review in a substantive level, so as to achieve a balance between the two-dimension values of meaning and function in constructing the doctrinal system of criminal law.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"23 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122230674","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Unverified information and reconstruction of rumor regulation","authors":"Xudong Cao, Wenting Huang","doi":"10.1080/20517483.2023.2171594","DOIUrl":"https://doi.org/10.1080/20517483.2023.2171594","url":null,"abstract":"ABSTRACT Rumor is defined as false information under the framework of Chinese laws, but in practice, law enforcement agencies tend to incorporate unverified information into the regulation of rumor, which broadens the range of enforcement. Unverified information may be subjectively and honestly believed to be true, and it could be false, inaccurate or accurate in an objective manner. In contrast, rumor, circulated with subjective malice, will inevitably lead to objective falsehood. As an important part in the marketplace of ideas, the existence of unverified information can promote the discussion and exchange of thoughts from which facts and truth are derived. Common law and most civil law systems adopt a subjective criterion to judge whether speech can be regarded as legal. This article suggests that China law should adopt the following approach. It should be determined whether the speech is unverified information before further judgment is made. Specifically speaking, speech should be presumed as unverified information rather than rumor if it is not targeted at a specific subject, or it is aimed at a specific subject with public interest involved. Speech deemed as rumor should be curbed, and the rumormongers are punishable, while the dissemination of unverified information shall be restricted if there is objective and obvious inaccuracy but the speaker should not be punished.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"109 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124705748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The promise of the Internet for rural economic development in China: a study of agricultural e-commerce","authors":"Gao Wei, Klausner Claire","doi":"10.1080/20517483.2023.2171595","DOIUrl":"https://doi.org/10.1080/20517483.2023.2171595","url":null,"abstract":"ABSTRACT This study investigates the potential of e-commerce to enhance rural agricultural businesses by allowing farmers and producers of agricultural products to sell on platforms such as Taobao. Using a survey methodology, we analyze whether Internet sales enhance rural businesses in either of two ways – increasing producers’ profit margins by avoiding monopolistic or collusive local middlemen and reorganizing the supply chain in an efficient manner, and increasing sales volume by reaching a larger market. The study also investigates barriers that rural Internet sellers face. For the purpose of this study, we conducted field interviews with online shop owners and a nation-wide survey of rural agricultural online shops. The survey results confirm our hypothesis, and demonstrate that market forces – the increase of producers’ profit margins and the expansion of market, aided by government initiatives, have driven down barriers to rural e-commerce and created economic stimulus that benefits rural economic development and potentially eliminates poverty. The study also suggests that more can be done by the government in increasing e-commerce training, subsidizing shipping services in rural areas, and establishing local e-commerce associations. Recent research also conforms with our conclusions drawn from the survey results, beyond which, the evolution of platform economy has posed new challenges and further research is required.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"119 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127345551","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The rule by climate targets: the experience and legal pathways of China","authors":"Yang Xin","doi":"10.1080/20517483.2023.2171596","DOIUrl":"https://doi.org/10.1080/20517483.2023.2171596","url":null,"abstract":"ABSTRACT The international legal community is working together on exploring a legally sustainable and workable system for climate change. China's climate governance is distinguished by using targets to lead actions in society instead of legally binding laws. Meanwhile, the legalization of climate targets has become a unique feature of climate law globally, so there is naturally a discussion about Rule by Targets and the Rule of Law in climate governance in China. This article believes targets in climate law provide an opportunity for the reconciliation of Rule by Targets and the Rule of Law and possibly a climate rapprochement of liberal democratic states and authoritarian states in dealing with climate issues. This article aims to contribute to the discussion and shed light on how the target-approach works in climate governance in China. It does so by examining the legal background, the legislative, administrative and judicial branches, asserting that climate targets have legally binding force in China without comprehensive legislation. Moreover, this article specifically discusses the challenges with the legalization of climate targets in depth and further provides possibilities for a hybrid model of the climate legal system in China. As a result, China’s local governance experiences could contribute to the quest for a legal solution of global climate change.","PeriodicalId":108655,"journal":{"name":"Peking University Law Journal","volume":"52 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121558832","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}