2011 Conference – Principle of Legality

China's political and economic importance is steadily increasing. Sooner or later, China will once again become the great power that it was for almost 2000 years until the end of the 19th century. The long dominance of Chinese high culture was forcibly ended by the West when China, which had previously been relatively isolated, was forced to open up to other countries and the country was weakened by opium smuggling. Over the next 150 years, China - especially from its own perspective - was subjected to a variety of humiliations by the Western states and Japan, its internal structures were shaken and its economic basis shattered. After the Communist Party took power in 1949, this led to a self-imposed return to a state of severe isolation. Even today, a sceptical attitude towards any "interference" by other countries in internal affairs still prevails, which has a negative impact on international human rights policy.

However, there have been clear changes in recent years. As China's economic importance has grown, not only has its self-confidence increased, but also its willingness to open up to influences from the West.

This attitude, which is still characterised by scepticism but is following foreign developments with growing interest, is the basis for the inclusion of foreign legal systems in China's academic debate and legislation. The legal and, in particular, criminal law discussion in China is strongly characterised by comparative law activities; China is very interested in an exchange with legal scholars from other countries. German criminal law, in particular its fundamental principles and systematics, plays a central role here. As Chinese law already shows strong similarities to the continental European legal system, it also draws on continental European systems for possible improvements and further developments. At the same time, however, the country pays attention to its own peculiarities and cultural traditions when comparing and transferring foreign legal institutions, which certainly has an impact on the interpretation and implementation of foreign institutions.

Chinese law and its understanding of the fundamental principles of criminal law are also of great interest to the German criminal law debate. Dealing with the principle of legality in other cultures can broaden one's own perspective, break down traditional thought structures and help to open up new arguments. The problem areas in dealing with such principles can also differ in different cultures, which means that a transcultural discussion can lead to new insights for both sides.

This is where the planned conference will start: Using the principle of legality as an example, the aim is to discuss in detail how economic development, political framework conditions, religious and ideological backgrounds and other cultural circumstances influence legal principles, but are also influenced by them. The comparison of such different cultures as Germany and China promises to yield considerable insights in this regard. It should only be noted that the implementation of the principle of legality also has considerable political significance for a country like China.

The insights gained at this conference, which will be published in a conference volume, will not only be of use to the legal and social sciences. Overall, the exchange on the cultural background and effects of the principle of the rule of law will promote understanding of the other culture and the law rooted in it. The conference is a continuation of an academic symposium organised in Würzburg in 2008, which led to a strong expansion of cooperation between German and Chinese criminal law scholars.

To date, there are hardly any comprehensive analyses of Chinese criminal law, particularly in the German-language literature; only a few publications deal with Chinese criminal procedure law.

Systematically, Chinese criminal law is more akin to continental legal systems with their codified catalogue of norms than to the Anglo-Saxon common law system, which is based on precedents. For this reason, German criminal law is particularly well received there and is used as a benchmark and orientation for the further development of Chinese criminal law.

The criminal law system in China

i) (Criminal) law in imperial China

A look at history reveals clear similarities between the legal system in imperial China and today's Chinese law. However, some differences are also recognisable. The historical perspective simplifies the West's understanding of the development of Chinese law and the differences in the interpretation of basic principles of the rule of law, including and especially the principle of legality.

The rule of law in our sense was unknown in imperial China. The emperor based his position and exercise of power on the "Mandate of Heaven". He was the holder of supreme power in the legislative, executive and judicial branches and was above the law.
There was no equality before the law. A person's legal status was determined by their position in the strictly hierarchical Confucian social structure.
Confucianism emphasised the concept of duty, not law. The basis of society was not the individual, but the family, which stood above the individual. For this reason, there were no individual rights.
Law and morality were not clearly separated - society was governed by moral rules, law played a subordinate role.
As the emperor united the legislative, executive and judicial powers under the "Mandate of Heaven", law was seen as one of many instruments of state control. For this reason, there was no separation of powers in the Western sense.
Where there was law, it was usually criminal law. The penalties were severe and sometimes cruel.
There was no prohibition of analogy. The offences were open to broad interpretation by those in charge and could even be applied by analogy, so that citizens could not know in advance exactly what action would make them liable to prosecution.

ii) The development of today's Chinese criminal law

Traditional Chinese law is primarily criminal law. This area of law continued to be of particular importance even after the end of the empire. Immediately after the creation of the People's Republic of China in 1949, a new criminal law was to be enacted. However, this was prevented by the political turmoil in the first two decades of the People's Republic. It was only after Mao's death in 1979 that a code of criminal procedure and a penal code were finally enacted. These are still in force today, albeit with numerous amendments.

In the Criminal Code of 1979, analogy to the detriment of the offender was still expressly permitted: Section 79 stipulated that a crime that could not be subsumed under the literal interpretation of a statutory provision was to be sentenced in accordance with the provision that came closest to it. There was a restriction in that the analogue interpretation of criminal law could not be made by a court alone, but required the approval of the Supreme People's Court.

The most important change to Chinese criminal law since 1979 came in 1997 with the adaptation of the Criminal Code to the political and economic changes in China at the time. This new Criminal Code is available in an annotated German edition. The changes meant, among other things, a considerable increase in scope. The Special Part of the Criminal Code alone was expanded from 103 to 350 paragraphs.

This development of a strong diversification and specialisation of criminal norms, particularly in the area of commercial criminal law, can also be found in Western societies. Such a regulatory system harbours the danger of diluting the principle of the rule of law in modern criminal law. It is therefore all the more important to take a detailed look at fundamental principles such as the principle of legality, its development and practical implementation, in order to strengthen its significance for criminal law.

The principle of legality in China

In addition to the aforementioned risk of dilution of the rule of law, the sharp increase in the number of criminal provisions in China can also be interpreted as an attempt to fulfil the requirements of the prohibition of analogy and the principle of legal certainty under the conditions of a rapidly expanding and diversifying economy. The amendment to the Criminal Code also introduced the principle of legality and the prohibition of analogy. § Section 3 of the new Criminal Code of 1997 now expressly states: "If [an act] is expressly defined by law as a criminal offence, it shall be punished as a criminal offence in accordance with the statutory definition with [the penalty provided for]; if there is no express definition of [the act] as a criminal offence by law, it shall not be permissible to define [the act] as a criminal offence and impose a penalty".

Criminal law as a whole had to be adapted to these innovations. This also included the comprehensive and precise description of punishable offences, as it was no longer possible to create them by analogy with existing criminal laws.

The principle of legality can be broken down into four sub-principles:

criminal liability must be derived from the written law,
the law must be defined in such a way that the citizen can recognise what exactly is punishable,
any analogy is prohibited in criminal law,
it is inadmissible to enact retroactive criminal laws.

This content of the principle of legality is now recognised in principle in China. After the turmoil of the Cultural Revolution, which at times descended into complete lawlessness, the paramount importance of the principle of legality for the rule of law became clear. However, the political reality in a country where there is little support for liberal democracy and where concern for stability and economic growth is greater than the desire for civil and political freedom has had a considerable impact on the conceptualisation of the principle of legality. The rule of law is subject to different conditions in China than in Germany. While a liberal-democratic interpretation is practically self-evident and undisputed in European countries, there are four competing conceptions of the "rule of law" in China:

The state-centred-socialist concept
The neo-authoritarian concept
The communitarian concept
The liberal-democratic concept

Depending on the understanding of the rule of law or the "rule of law", the interpretation and practical implementation of the principle of legality is also conceivable in different ways in China.

Comparison between China and Germany

It is therefore clear that there are fundamental differences between Germany and China in the interpretation and practical application of the principle of legality. In Germany, the principle emerged against the backdrop of the Enlightenment in the context of an overall social upheaval, which included a stronger emphasis on individual rights, democratic elements and the reduction of state power. The separation of powers is understood here as a constitutive element of the rule of law and, from a Western perspective, the rule of law without democracy seems almost inconceivable. The principle of legality is thus embedded in a network of other principles to strengthen the position of the individual. Its exact observance can be monitored due to the separation of powers, its practical implementation is of considerable importance for the protection of the individual rights of citizens and is therefore carefully monitored.

This specific historical and cultural development leads to a special understanding of the principle of legality that cannot be easily transferred to other countries. The differences to a country like China, where the above-mentioned conceptions of the rule of law are in dispute, are of particular interest. The Communist Party is not interested in changing the state model. Section 2 of the Chinese Criminal Code primarily mentions state security and the power of the democratic dictatorship of the people as protected interests in the sense of criminal law, with private property and the personal rights of citizens taking second place.

China's tradition, which is characterised by Confucianism and the need to distinguish itself from Western culture, is also likely to have a significant influence on the future design and legitimisation of criminal law and thus also on the interpretation of the principle of legality. Nevertheless, the comparison of the theory and practice of this basic principle of criminal law between Germany and China is of considerable academic importance. For China, despite its cultural particularities, a comprehensive understanding of the origin and tradition, but also of the current Western implementation of the principle, is important. Only in this way can it find its own way of dealing with the principle of legality, knowing all the possibilities. Germany in particular is of interest in this respect. Not only did the principle of legality originate there, it is also part of the civil law system, just like China. China's two most important East Asian neighbours, Japan and South Korea, have adopted German criminal law to a considerable extent. German criminal law is easily accessible in China, as numerous German textbooks have been translated into Chinese in Taiwan. The strict separation in German jurisprudence between dogmatic and legal-political discussion suits the Chinese understanding of the task of the judiciary.

¹ Strupp, Michael: Das neue Strafgesetzbuch der VR China: Kommentar und Übersetzung. Institute for Asian Studies. Hamburg 1998.