Social Sciences in China (Chinese Edition)

No.11, 2013

The Analogy Invoked and the Debates over the Retention or Abolition of the Legal Principle of Crime and Punishment in Late Qing: Centering on the Endorsement of the Draft of the Criminal Code

(Abstract)

Li Qicheng

With a view to preventing judicial tyranny and introducing civilized systems, the analogy invoked was abolished in the code revision during the late Qing period. The legal principle of crime and punishment was established in the newly amended Draft of the Criminal Code. However, the draft triggered heated debates at the time of endorsement. Most of the endorsers preferred to retain the analogy invoked system, arguing that the law was insufficient to cover all circumstances and human sensations, and that the discretion of the judiciary might be abused. Against the backdrop of preparation for constitutionalism, adopting the Western legal principle of crime and punishment and abolishing the analogy invoked represented the general trends of the time. The code revisers managed to attain the goal by using the legal theory of evolution and focusing on the growing trend of constitutionalism. But as a compromise to the debates, the two parties agreed to edit the court decision cases to restrict the arbitrary discretion of the judiciary, which, however, went in vain. Practices as such may offer us with insights on how to perceive the relationship between specific systemic changes and the general social transformation, how to restrict effectively the arbitrary discretion of judges, how to edit the court decision cases, and how to promote legislative system changes with the use of judicial measures.