“后劳教时代”构建中国轻罪制度的反思

There is no legal classification of "misdemeanor" and "felony" in Chinese CriminalCode, and there is no other misdemeanor law outside the Criminal Code. The Criminal Code of China basically adopts the criminal establishment modeof the pattern that the offenses have the "quality" and "quantity" at the same time,therefore, if the majority of offenses cannot meet the requirement of constitutingcrime in "quantity", it will be excluded from the crime field and be punished onlyby administrative punishment. In the relevant administrative penalty regulations, theLaw on Penalties for Administration of Public Security is more applicable, whichis similar to the Law of Punishment of Misdemeanor in South Korea, but itbelongs to administrative law rather than criminal law, that is, the offenses stipulatedin the law are administrative malfeasance, not the crime. All along China’s criminal sanction system is composed of three poles: penaltiesfor administration of public security-re-education through labor-criminal punishment,among which the objects of reeducation through labor are more complex, butgenerally they can be summed up as petty misdemeanors and serious administrativeviolations. From the formal perspective, the system of reeducation through Labor canplay a role in linking criminal punishment with administrative punishment, andreconciling the field of criminalization and decriminalization, but because of its manyproblems, the system was abolished in 2013. After the abolition of the re-education through labor, in order to make up the gapof punishment system, the ideas of constructing misdemeanor system became quite active. One of them advocated the enactment of misdemeanor law beyond thecriminal code, which regulates the objects including part of the re-education throughlabor system’ objects, part of the Law on Penalties for Administration of PublicSecurity’ objects and other offenses which need to be defined as misdemeanors, andprescribed a very simple trial procedure so that petty misdemeanors can also beheard by the court, this is a more powerful idea theoretically. However, consideringthe modesty of the criminal law and the China’s traditional legal culture, it is veryrare in the Chinese academia to advocate the petty misdemeanor punishment beingapplicable for the public defecation, littering, noise nuisance, posting advertisementand so on, while which is stipulated in the Law of Punishment of Misdemeanor inSouth Korea. Despite the part of the academia’s opinion of introducing the misdemeanor system,China’s legislature has been cautious about the misdemeanor law, fearing a sharpexpansion of the criminal circle and a sharp increase in the number of people withcriminal records. However, with the fact that drunken driving into penalty hasreceived good preventive effect now, the legislature’s attitude is likely to change, thatis, from the standpoint of the legislature, through misdemeanor, shaping the nationalnormative awareness is not unacceptable. This article suggests that the establishment of misdemeanor system conforms to thegeneral direction of the development of the rule of law, but at present China doesn’thave the conditions to systematically construct the system of misdemeanor at all, nowas far as possible within the existing institutional framework or not to subvert theexisting system, through the establishment and improvement of relevant systems andregulations, China should gradually promote the construction of misdemeanor system.