Chinese Penal Law: A Legal-Historical Overview

中國刑罰法律:一個法史概觀

Student thesis: Doctoral Thesis

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Award date19 Jan 2021

Abstract

The development of the penal law of the People’s Republic of China coincides and reflects the rise and fall of the various dynasties in Chinese history, and also reflects the social life and culture of the Chinese people from ancient China to date. This doctoral thesis makes an informed contribution to the current Chinese penal law and the existing literature on this topic, by offering a comprehensive anthology of its development from its ancient origins to date. This is an important and valuable contribution as historical materials otherwise not available in English are presented in a contextualised, relational, and accessible format, allowing for a thorough-going analysis of the past, in order to better understand the present, and to ultimately anticipate future developments (in Chinese penal law). The research questions underpinning this doctoral thesis include the following: What systemic and jurisprudential changes informed the development of contemporary Chinese penal law? And to what extent are they still informing current modern penal law? In addressing these research questions, both a legal-historical and a socio-legal approach are utilised. In Part A of the thesis, historical materials and sources are used to trace the legal development of Chinese penal law from the Xia Dynasty (circa 2100 B.C. – 1600 B.C.) to the founding of the People’s Republic of China in 1949. And in Part B of this thesis, a socio-legal approach is utilised in contextualising the findings and observations revealed in Part A of the thesis with reference to three broad themes; kinship and punishment, mutilation punishments, and the centrality and prevalence of the death penalty in Chinese penal law. These findings are ultimately linked to contemporary Chinese penal law, and also allow for anticipatory projections on the future development of the Chinese penal law. In the final instance, this thesis highlights the long-lasting and continued influence of Chinese history, society, and values on the Chinese penal law, and re-establishes the distinctiveness of the Chinese (penal) legal system as a discrete legal tradition.