Social Sciences in China, 2020

Vol. 41, No. 4, 2020

Criminalization and the Improvement of the Punishment System

(Abstract)

Shi Yan’an

China’s existing punishment system is rational in that it accords with realities and is based on historical continuity. Any adjustments should only be premised on maintaining its basic framework and upholding the spirit of the rule of law while promoting equitable human rights protection and efficient social governance. That is, the administrative detention stipulated in such administrative laws as the Public Security Administrative Penalties Law should be abolished; the type of penalty in these laws should optimized; and at the same time all penalties aimed at depriving people of their liberty should be transferred to the Criminal Law. Whether deprivation of liberty is involved should be made the criterion for distinguishing the range of adjustments to the Criminal Law and those administrative laws that stipulate penalties. Therefore, judgments of the punishability (strafbarkeit) of criminal penalties should be made the main basis for adjusting the de jure boundaries of the scope of the Criminal Law. We should develop a rational and balanced criminalization path and a reasonable and just system of punishment.

Keywords: punishment system, criminalization, deprivation of liberty, exclusionary criminal penalty