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Compare Chinese Criminal Law and Australian Criminal Code
发布时间：2015-10-29 发布人：admin
XU BULIN
1. Introduction
The criminal law is the oldest and largest one in the law family. Normally, the criminal law can simply be seen as a series of rules mainly concerned with matters of crime and criminal penalty, in which the crime is the prohibited behaviour and any breach of the prohibition will incur the punishment. The criminal law, in formal, is ‘about the control of behaviour by the state, backed up by the sanction of punishment.’[1]
The Australian law including criminal law carried forward the traditions of the English law, and it thus belongs to the Common Law system. China, in the general sense, can similarly be regarded as a Civil Law system country, where the law originally accepted some legal traditions directly from Russia and indirectly from the main land of Europe.
Some foundational principles are commonly followed by countries in two legal systems. These principles incline laws towards some similarity of characteristics in the whole. However, the differences of laws in different countries, even in the same legal system, are still obvious, because the law has no any exception to base on the certain social background, and therefore it is restricted by particular cultural and legal traditions. One example is rape of crime, according to the rules of s61H of Crimes Act NSW, a range of criminal subject of rape can be extended so that it might take place between couple, even between man and man or woman and woman. However, it might be hardly to be accepted by Chinese cultures and traditions.
2. Crime
The crime, as Sir John Smith considered, ‘has always been regarded by courts as a moral wrong and conduct demanding retribution. The law is based on an assumption that, in the absence of evidence to the country, people are able to choose whether to do criminal acts or not and that a person who chooses to commit a crime is responsible for the resulting evil and deserves punishment.’[2] There are two kinds of definition of crime in China. One is a legislative definition described in Article 13 of the criminal law of the People’s Republic of China[3]; another is in academic area, where the crime is normally defined as an act that substantively threatens the certain social relations and is formally listed in the criminal law, in which it is endued with culpability and must be punished.
2.1 Elements of Offence
2.1.1 Elements of Offence: Actus reus and Mens rea
Two elements, actus reus and mens rea, should be considered and proved before an act is regarded as a crime. ‘The division of criminal responsibility into two broad categories, the actus reus and the mens rea, reflects the modernist splitting of mend and body’[4]. ‘Elements of offence’ is also called ‘elements of criminal responsibility’[5] or ‘typical crime’[6], as well as ‘elements of crime’[7].
Actus reus, an objective ground of criminal responsibility, is the guilty conduct, which is prohibited by criminal law and involves voluntary commission of an act or voluntary omission of a duty breaking the law. It is also known as “the ‘external’ events, or ‘physical’ element of a crime”[8]. Actus reus is generally divided into two types. One is the act, a basic element, identified as ‘the relevant act for the purposes of proving the crime’[9]. ‘Basically, for an act to voluntary it must be a product of the will, a conscious decision, and volitional behaviour’[10]. Another type of actus reus is the omission. The person may be criminally liable for omission, if he or she refuses to do something or chooses to do nothing when he or she is under a legal duty.
Mens rea, a mental element and a subjective ground of criminal liability, is the guilty mind, which is a state of culpability with requirement for a person to be criminally liable for a crime. Mens rea mainly involves intention, recklessness and negligence. At common law, the majority of offences have subjective mens rea requirement. This is, the focus is on what D actually intended or know.[11] In the case of intention, mens reashould be considered when confirming a person’s criminal liability: whether the ‘conduct is willed’; whether the person who acts has ‘knowledge or is aware of the circumstances’ in which he or she acts; whether the person has ‘foreseen the substantial risk of resulting consequence’, and whether the person ‘acts with the purpose or aim of bringing about those consequences’[12]. The law of recklessness requires a link between knowledge and behaviour. This link is subjective rather than objective, and in addition, the doctrine of recklessness requires a subjective link between knowledge and the consequence of behaviour. In the case of negligence, it is required that conduct fails to measure of the objective standard, ‘where D is judged according to his or her actions, rather than D’s state of mind.’[13]
2.1.2 Constitution of Crime in the Chinese Criminal Law
‘Constitution of crime’ is a very important conception in Chinese criminal law. It consists of four constitutive requirements to be used for determining whether or not any act is a crime. Four constitutive requirements are:
Criminal subject It is a person who is against criminal law with act or omission. A person regarded as a criminal must have criminal capacity. The following Persons cannot be the criminal subject, a) those who has not reached the age of 16 in the cases of common crimes, or 14 in the cases of some serious crimes namely intentional homicide, intentional assault and causing serious injury or death of victim, rape, robbery, drug- trafficking, arson, explosion or poisoning; b) those who are mental patient causing harmful consequences at a time when he is unable to recognize or control his own conduct (See, Article 16 – Article 18, Criminal Law of PRC). Furthermore, in some particular cases a person must have a certain status, for example, the subject of crime of acceptance of bribes must be an officer (See Article 385, Criminal Law of PRC).
Subjective aspect of crime, a mental element, refers to subjective fault and deals with a guilty mind of the criminal object. It involves intention, omission and criminal motive, etc.
Objective aspect of crime it refers to a conduct made by the criminal subject. It may include act and omission, which is the cause to lead to a negative consequence.
Criminal object It refers to a certain social relations that is harmed by act or omission that the criminal subject made. It is involves, but quite different to target of crime. The target of crime is normally a certain person or property. The criminal object can be reflected by the fact that a target of crime is harmed.
2.2 Causation
In majority of cases such as result crimes, the causation is an important issue, where the prosecution is required to prove that the accused criminally caused a result. It is a foundation for asserting the accused of crime; on the other hand however, it is synchronously a defence for acquitting the accused of crime. By way of example, in White[14]case Defendant, a man, intended to murder his mother by putting potassium cyanide in her drink. His mother died shortly after drinking. Evidence showed that she died by reason of heart failure, but not of poison. The defendant had intention to murder and then, he acted. The consequence that his mother died actually occurred. However, ‘he did not cause it to occur and there was no actus reus of murder’[15]. The defendant was consequently acquitted of murder, but he was asserted guilty of attempt to murder.
The principle of causation is also important in China for trial of cases. A Chinese case, Jin Intended Assault case, is little similar to Whitecase. In 1986, defendant, Jin, strongly kicked victim on his abdomen because of jangle. A few hours late the victim died in hospital. The medical evidence showed that the victim had a serious disease of intestines, especially of his duodenum, that was an important cause for his death. In this case, the judges found that two factual cause, assault and disease, led to the consequence of victim’s death. The assault was a necessary cause to lead to death, but not sufficient. The defendant was finally penalized with crime of intended assault, but the rule of aggregated consequential offence was not considered.
2.3 Classification of Offences
Classification of offences is also called ‘elements of crime’[16] or ‘types of crime’[17]. For procedural purpose, the crimes can be classified as summery offences and indictable offences. According to the type of harm inflicted, the crimes can also be classified as crime against person and crime against property, and as well as crime against state, crime against public administration and public order, victimless crimes and regulatory offences, etc.
Indictable offence and summery offences Such classification can reflect a distinction between serious crimes, and less serious crimes. Indictable offences are some serious crimes such as murder, manslaughter and rape, which will be brought by prosecution and tried before a judge and jury. Under this circumstance, the judge will rule on question of law and the jury will rule on question of fact. Summery offences are some minor crimes such as many traffic offences, which may just be tried before magistrates (judicial officer), who will determine matters of both law and fact. The indictable offence is created by common law or by statute; the summery offences are created by Parliament only. In addition, some offences may be tried either ways – either on indictment or summarily.
Classification of particular kinds of crimes According to the type of harm inflicted, crimes can normally be classified as two major types: a) crimes against person, which refers to acts or omissions that harm other people involving homicide, assault, sexual offences and rape; and b) crimes against property, which means acts or omissions that damage or remove the property of other people’s mainly including larceny, deception offences and criminal damage such as arson. Robbery of crime is special one and it is normally regarded as a crime concerning with the property offence, because the criminal intend to unlawfully obtain property by stealing. However, many of robbery crimes take place with assault on other persons. Thus, there are two targets of robbery of crime, either property or other person, where to illegally obtain property is ultimate purpose and to assault other persons is a dependent purpose on obtaining.
Classification of crimes in the Chinese criminal law Classification of crimes in Chinese law is based on the theory of constitution of crime. Here the crimes are classified as ten categories, in accordance with each differentiated criminal objects, which are: crime of endangering national security, crimes of endangering public security, crimes of disrupting the order of the socialist market economy, crimes of infringing upon citizens’ right of the person and democratic rights, crimes of property violation, crime of obstructing the administration of public order, crimes of impairing the interests of national defence, crimes of embezzlement and bribery, crimes of dereliction of duty and crime of servicemen’s transgression of duties. For example, in the Part two specific provisions – Chapter III Crimes of disrupting the order of the socialist market economy of the criminal law (Article 140 – Article 169), the crimes have a common characteristics where the criminal object is the administrative authority of the state on economic market, which implies the administrative relationships between the state and the citizen. Under this Chapter, there are eight sections, which are divided according to different administrative relations, and each section contains some specific crimes. To compare section 2 (crimes of smuggling) with section 5 (crimes of financial fraud), for instance, the former undermines national administration on customs, and the latter undermines the administration on financial market. These administrative authorities all imply the social relationships in the certain areas.
3. Punishment and Criminal Justice
The punishment is a legal result due to committing crime, which is made by court’s sentence after trialling and hearing. In gaining an overview of the criminal justice process, Hazel B. Kerper indicated, it might be helpful to keep in mind the seven major functions.[18] This is a same characteristic in all modern countries. The differences, between Common Law and the Chinese law system, consist in justice process - procedures of investigating, trial, hearing and sentencing, where the police, prosecutor, judge, and sometimes jury play the different roles. Two of main differences are as the following:
Arrest ‘An arrest is represented as a deprivation of liberty, and thus there must be limits places on the power of arrest and its exercise’[19]. A warrant of arrest is issued by Magistrates’ Court in Australia, but in China it is granted by prosecutorial organization.
Trial It has been mentioned above that crimes can be divided into two types, summery offence and indictable offence. The former is tried before a magistrate at local court and need ‘to be proved beyond a reasonable doubt by the prosecution’;[20] the latter ‘generally has a preliminary hearing or committal proceedings’[21] and it is tried judge and jury at Country Court or Supreme Court. Furthermore, the summery offence is normally ended in a shorter period. In China, all criminal cases are tried by judges. The common cases are tried by at least 3 judges to maximum of to judges and the time limited is 1 month (sometimes can be extended to two months and half) for trial. The simple crimes are tried by one judge and there is a time limit of 20 days. (See Article 147, 168, 174 & 178 of Criminal Procedure Law of PRC)
4. Criminal Liability
In common law, criminal liability is concerned with four aspects: a) legal capacity to commit a crime; b) conduct element of crime, or actus reus; c) fault element, or mens rea; d) the absence of defence.[22] Here, actus reus and mens rea are central points. Thus, the criminal liability might be regarded to base on a conduct of crime and normally to relate to metal element of crime and subjective fault. It is normally attached to willed conduct. One exception is made by statute, where a person might be liable without requirement of mens rea, he or she will be required to reasonably act under a legal duty.
As Gillies remarked in book of the Criminal law, ‘Crime does not exist in the abstract. It exists to be applied against the person whose conduct satisfies the test comprised in its definition, so that the person may be punished.’[23] In the eyes of criminal justices and practices, this description is extremely true. However, in the theoretical sense, criminal liability directly and absolutely contacts crime with punishment, it means that if a person has acted criminally, he or she is not ‘probably’ punished; rather the punishment must be deserved and enforced.
Criminal liability has attracted numerous attentions in China and is generally studied in the legal philosophical area. What is the criminal liability? More than ten sorts of answers have been created by Chinese scholars, six of which are more influential, they are:
a) Liability reflects a general social relation between state and criminals,[24] accepting the theory from Russia;
b) Liability refers to a legal result due to criminal offences[25];
c) Liability is a responsibility held by criminal to accept the punishment[26].
d) Liability is a negative assessment and declaration made by state to criminal and criminal conduct[27];
e) Liability is a state or place where the criminal is penalized[28];
f) Liability is a punitive burden assumed by criminal[29].
In my opinion, some of which showed in my article Opinion of Criminal Liability published in 1999, the criminal liability in narrow sense means a legal result that is taken by criminal; in broad sense it refers to that a relations or connection of crime and criminal penalty. The extension of this conception is relations between all particular crimes and all appropriate penalties, both of which are listed in the criminal law. This view bases on the following considerations:
a) The crime is regarded as an evil conduct prohibited by state. Content of crime itself changes with the change of people’s mind and social need.
b) The penalty is a method and approach of punishment, which is put in criminal law by state in order to penalize the criminal and awe the potential criminals. It also changes going with social development.
c) Crime and penalty are taken together by authority of state, which enacts an absolute connection between them. The contents of crime probably changes and the methods of penalty probably changes, but the relations and connection of crime and penalty has never changed since criminal law appeared.
d) The liability appears synchronously with the criminal law. It looks like a strong hand to draw criminal toward the penalty. The law identifies that if any one commits crime, he or she will be punished, it can also describe that any criminal will fall into criminal liability, cannot get any exception.
In sum, the state enacts the criminal law, which clearly shows that what conducts are crimes and which penalty will be applied. Liability relates two issues, both crime and penalty, and connects them directly, necessarily and tightly.
5. Conclusion
Because of the different legal traditions, cultures and social backgrounds, the criminal laws in different countries always have some special characteristics, no matter being from which countries even within the same law system. However, some foundational principles are samely fitted into criminal laws of all modern countries, for instance, ‘No one shall be deprived of liberty without due process of law’ has been accepted as a principle in every civilized countries. It as a constitutional principle has deeply influenced criminal law making and justice. Nowadays, law reform has increasingly absorbed some legal principles and legal techniques from other countries or other legal system. As a result, laws including the criminal law gradually display more and more similar characteristics although distinction will exist for ever.
(Totally, 3030 words)
Reference & Cases
Belinda Brassil, Legal Study, Pascal Press, 1996
Hazel B. Kerper, Introduction to the Criminal Justice System, Western Publishing Co, 1979, 2nd Edn
Journal of Legal Study, 1986 No 2
Marise Cremona, Criminal Law, Macmillan Education Ltd., 1989
Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, 2001, Second Edition
Peter Rush, Criminal Law, Butterworths, 1997
Sam Blay, Teaching Material, Faculty of Law, UTS
Sir John Smith, Smith & Hogan Criminal Law, Butterworths 1996, Eighth Edition
Chinese Books:
Gao Mingxuan, the Principle of Criminal Law, Part 1 of books
He Bingsong, Text Book of Criminal Law, Law Publisher Co, China
The Chinese Translation：H·A·B(别利亚耶夫) (Russia), Pandect of Russian Crimial Law, People Publisher Co. 1987
The Cyclopaedia - Law，Cyclopaedia Publisher, China, 1984
Wang Xiren, Criminal Liability, Journal of Laws Hebei, 1984 No 4
Zhang Jingying, Criminal Liability, Journal of Legal Study, 1987 No 2
Case: White, [1910], 2 KB 124
Case: Jin Intended Assault [1986] HPC China
[1] Marise Cremona, Criminal Law, Macmillan Education Ltd., 1989, P 4
[2] Sir John Smith, Smith & Hogan Criminal Law, Butterworths 1996, Eighth Edition, P 4
[3] The Criminal Law of the People Republic of China, Article 13: A crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, subverts the State power of the people's democratic dictatorship and overthrows the socialist system, undermines public and economic order, violates State-owned property, property collectively owned by the working people, or property privately owned by citizens, infringes on the citizens' rights of the person, their democratic or other rights, and any other act that endangers society and is subject to punishment according to law. However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.
[4] Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, Second Edition, P 12
[5] Same as 4
[6] Peter Rush, Criminal Law, Butterworths, 1997, P 62
[7] Sir John Smith, Smith & Hogan Criminal Law, Butterworths 1996, Eighth Edition, P 29
[8] Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, 2nd Edn, 2001, P 13
[9] Peter Rush, Criminal Law, Butterworths, 1997, P 64
[10] Peter Rush, Criminal Law, Butterworths, 1997, P 64
[11] Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, 2nd Edn, 2001, P 22
[12] Peter Rush, Criminal Law, 1997, P 71
[13] Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, Second Edition, P 22
[14] White, [1910], 2 KB 124
[15] Sir John Smith, Smith & Hogan Criminal Law, Butterworths 1996, 8th Edn, P 44
[16] Professor Sam Blay, Teaching Material, Faculty of Law, UTS, P 108
[17] Belinda Brassil, Legal Study, Pascal Press, 1996, P10
[18] Hazel B. Kerper, Introduction to the Criminal Justice System, Western Publishing Co, 1979, 2nd Edn, P 177
[19] Peter Rush, Criminal Law, Butterworths, 1997, P 34.
[20] Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, Second Edition, P 5
[21] Same as 17
[22] See: Penny Crofts, Essential Criminal Law, Cavendish Publishing (Australia) Pty Limited, Second Edition, P 11
[23] Peter Rush, Criminal Law, Butterworths, 1997, P 57. Quotation from P. Gillies’s Criminal law, 3rd Edn (Sydney: Law Book Co), P 5
[24] See: The Chinese Translation: H. A. B (别利亚耶夫), Pandect of Russian Crimial Law, People Publisher Co. 1987
[25] The Cyclopaedia - Law，Cyclopaedia Publisher, China, 1984, P 668. Also see, Wang Xiren, Criminal Liability, Journal of Laws Hebei, 1984 No 4
[26] See: Zhang Jingying, Criminal Liability, Journal of Legal Study, 1987 No 2
[27] See: Journal of Legal Study, 1986 No 2
[28] See: He Bingsong, Text Book of Criminal Law, Law Publisher Co, China
[29] See: Gao Mingxuan, the Principle of Criminal Law, Part 1 of books
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