I remember a professor of criminal law once said that the criminal law of mainland China, although one of the more unique criminal laws in the world, is also one of the most difficult to learn. The system is mixed, the charges are chaotic, the language is verbose, the semantic accuracy is insufficient, and the penalties are excessively harsh, among other factors, making the compilation of several criminal laws in mainland China less than satisfactory.

Criminal law has existed since ancient times. The leaders of clan tribes, in order to maintain good and friendly relations between tribes and punish external invaders, inevitably established certain rules of punishment. With the integration and expansion of clans and the mixing of various tribes, rulers had to design a reasonable power system to maintain the order of rule, and criminal punishment measures were undoubtedly an important part of the power system. In slave societies, since the main targets of punishment were slaves who did not have independent personal rights or property rights and were treated as “objects,” the punishment measures were extremely cruel and violent, and could not be the same as the imprisonment and fines used in modern society. From the lightest branding and tattooing on the face, cutting off noses, to chopping off knees, castration, and even dismemberment, being torn apart by chariots, boiled in oil, and being burned alive, these tortures all demonstrated the supremacy of power and the order of rule. In feudal societies, due to the increased reliance on agricultural production and labor, it was no longer possible to impose cruel corporal punishments as in slave societies, so changes occurred in the punishments. Except for the death penalty, cruel punishments were removed, and flogging (using a whip, started by the nomadic people of the Northern Wei Dynasty), caning, imprisonment, and exile were added; the role of criminal law also transformed from pure terror and violence to a combination of ritual and punishment, balancing leniency and severity.

In ancient China, especially during the Zhou Dynasty and the Spring and Autumn period, rulers believed that morality, etiquette, trust, and benevolence could prevent crime, and that decrees could restrain crime, so there was no need for written criminal law to achieve the purpose of rule. Confucius advocated for rule by man and the absence of litigation, arguing that “if the law is unknown and its power is unfathomable, then the people will fear the ruler” (i.e., if people do not know the content of the law, then the law, as a tool for the ruler, has an unfathomable power). Shu Xiang also said that once people know the provisions of the criminal code, they will no longer value morality and etiquette, but will exploit loopholes in the legal provisions, and once they know whether officials judge cases reasonably and legally, public opinion will exert a strong supervisory force on officials, which will seriously infringe on the interests of the nobility. The non-promotion of written law made the act of publishing written law historically significant. The first compilation of written law in history was the casting of the criminal code by Zichan, the prime minister of the State of Zheng (actually “casting the criminal tripod,” but to distinguish it from the later “casting the criminal tripod” of the State of Jin, it became “casting the criminal code”).

The content of the cast criminal code was relatively simple and not limited to criminal law. It mainly stipulated methods for demarcating field boundaries and water channels, regulations for slandering government affairs, and three other types of regulations. More than 20 years later, Zhao Yang and Xun Yin of the State of Jin also cast a criminal tripod, but unlike Zichan, Zhao Yang and Xun Yin were low-level military generals at the time, and their overstepping in casting the criminal tripod was actually mixed with elements of court struggles, but this did not hinder the development of written law and the collapse of the concept of “punishment does not extend to the nobility, and etiquette does not extend to the common people” in the minds of the people. Later, the State of Jin split into Zhao, Han, and Wei, and these three states all inherited the tradition of written law well. Li Kui of the State of Wei even wrote a book called “The Book of Law,” which became the beginning of the systematic codification of the Chinese legal system.

“The Book of Law” includes six chapters: theft, banditry, net, capture, miscellaneous, and provisions, covering relevant content of criminal law and criminal procedure law, with a relatively complete and specific system, serving as a blueprint for later codes. Theft refers to crimes that harm the rule, banditry to crimes that harm the people, net to trial and litigation content, capture to investigation and pursuit methods, miscellaneous to other types of crimes, and provisions to the general provisions of criminal law. During the Cao Wei period, “provisions” were changed to “criminal names” and placed at the beginning of the criminal law; the Jin Dynasty added “legal examples” after “criminal names”; during the Northern Qi period, “criminal names” and “legal examples” were combined into “name and example law.” By the Yonghui period of Emperor Gaozong of Tang, criminal law had developed into twelve chapters, including name and example, guard and prohibition, official system, household and marriage, stables and warehouses, unauthorized mobilization, theft and banditry, fighting and litigation, fraud and forgery, miscellaneous laws, capture and escape, and judgment and prison, with 502 articles; plus the legal commentaries specifically compiled to explain the laws, the two constituted the most influential and successful code in Chinese history, “The Tang Code and Its Commentaries.” Later, the Ming and Qing dynasties generally made repairs and adjustments based on the Tang Code, without the huge changes seen in Europe and America. On the verge of collapse at the end of the Qing Dynasty, several codes were promulgated based on the systems of various countries, but it was too late, and they were not fully implemented before entering a period of chaos.

The first criminal law of the Republic of China was enacted and promulgated on March 10, 1928, known as the “Old Criminal Law” [Article 1 of the Implementation Law of the Criminal Law of the Republic of China], and was replaced by the current criminal law after less than seven years of implementation. The current criminal law of the Taiwan region has been in effect since January 1, 1935, and has undergone two major revisions in 1999 and 2005, as well as more than 20 minor revisions, containing two parts, 12+36 chapters, and 363 articles. In comparison, the criminal law of mainland China is also divided into general provisions and specific provisions, but into 10 chapters and 452 articles; it is speechless that the 452 articles of the mainland criminal law are expressed in 70,000 words, while the criminal law of the Taiwan region has only 33,000 words. Undoubtedly, fewer words represent higher legislative technology (no need for a large number of provisos for supplementation), and from this perspective, the mainland criminal law still has a long way to go. 70,000 words, even if cut in half, are still more than those of the Taiwan region.

My first impression of the criminal law of the Taiwan region is that it is concise, systematic, and standardized. The criminal law is divided into general provisions and specific provisions, with the first chapter of the general provisions originating from the legal examples of the Jin Dynasty, starting with the principle of legality, followed by the principles of retroactivity and jurisdiction. The criminal law of the Taiwan region well preserves the traditional Chinese thinking and expression methods, and also inherits the Han cultural tradition well, such as the crimes of desecrating sacrificial ceremonies, offenses against public morals, internal rebellion, external aggression, compulsory sexual intercourse, fraudulent sexual intercourse, etc.; the mainland either does not stipulate these (desecrating sacrificial ceremonies), or stipulates them vaguely (rape), or comes up with a bunch of charges to express the same type of crime (internal rebellion).

When I looked up the criminal law of the Taiwan region on a website of the complete six codes, I saw that all the legal provisions have detailed comparisons of old and new laws, reasons for amendments, special explanations for the provisions, and most importantly, precedents. I couldn’t help but sigh, no wonder studying criminal law in the mainland is so painful. Every criminal law scholar can subjectively interpret the criminal law, and every scholar can cite cases with different judgments for the same provision. Avoiding these unnecessary debates originally only required the legislative and judicial organs to be more conscientious and responsible. The cases and interpretations of the criminal law of the Taiwan region are continuous and inherited, meaning that since the implementation of this criminal law in 1935, important criminal law interpretations and cases have always been accessible to judges, lawyers, and the public at any time. Compared to the slightly mysterious criminal law discipline in the mainland, the almost opaque criminal investigation and trial, and the constantly repeated errors in the application of criminal law, this is already a great improvement. Further, for those working under the mainland criminal system, facing various erroneous criminal provisions, bizarre judicial interpretations, conflicts between old and new interpretations, and changes in policy lines, wanting to work and study well is indeed a kind of torture.

The criminal law of mainland China originates from Soviet criminal law, and many principles and concepts are relatively outdated. Article 2 of the criminal law of the Taiwan region, the principle of retroactivity, “After the judgment of punishment or security measures is determined, if it has not been executed or the execution has not been completed, and the law has changed to no longer punish the behavior or impose security measures, the punishment or security measures shall be exempted.” This article fully indicates that if the law at the time of the act considered it a crime, and later the law changed to no longer consider such behavior a crime, it should be exempted from execution. The provision of the mainland criminal law is: “Effective judgments made according to the law at the time before the implementation of this law shall continue to be valid.” Fundamentally maintaining the authority of criminal law. The criminal law of the Macau region also makes provisions like the criminal law of the Taiwan region: “If according to the law in effect at the time the fact was committed, the fact was punishable, and the new law removes it from the list of illegal acts, then the fact shall not be punished; in this case and if a sentence has been passed, even if the sentence has been determined, the execution of the sentence and its criminal effects must be terminated.” The amendment of criminal law is a serious and significant power, and the amendment of criminal law may lead to both favorable and unfavorable consequences for the actor. If the amendment of criminal law leads to unfavorable consequences for the old actor, it is natural not to apply the new law; if the amendment of criminal law leads to favorable consequences for the new actor, the old actor should also be equally taken care of, that is, to stop or not to implement the punishment imposed on the old act under the old law. The fundamental purpose of criminal law is not to punish crimes; the purpose of criminal law is a comprehensive consideration of interests, and punishing crimes (protecting the people) is only one of them.

Note: Since the current criminal law of the Taiwan region is called the “Criminal Law of the Republic of China,” promulgated in 1935 and revised many times, the “Criminal Law of the Republic of China” in the text refers to the criminal law currently in use in the Taiwan region.