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Reasons for the preventive shift of Chinese criminal law : using the eighth amendment as a case study Ji, Ying

Abstract

This dissertation concerns reasons for the preventive shift in Chinese criminal law; that is, the social, legal, and political rationales of the shift. It is inspired by the eighth amendment of Chinese criminal law in 2011 which amended several penalties related to road, drug, and environmental safety. The eighth amendment stemmed from a series of nationally-known incidents that triggered widespread public dissatisfaction with the rules and functions of the Chinese criminal justice system. This dissatisfaction would eventually result in a crisis of the government and the legal system. Based on John Kingdon’s theory of the multiple streams (“problems, policies and politics”), this dissertation seeks to explain the origins of the legislative process and its outcomes by examining the role of public opinion, policy experts, and political actors in the making of Chinese criminal law. It also uses practices of the UK and the US as references. The dissertation claims that in authoritarian China, the prominence of risk control through criminal justice methods is a state response to uncertainties generated through reforms under the Chinese Communist Party’s leadership. This shift is the result of Chinese criminal law making, driven by the policy of pursuing public security. Under the influence of such policy, the legislation not only acts quickly in response to public emotion, but also to the social control demands of the police. It also gains more support through the responsive and inclusive process of legislation, even though most of the time it remains a consultation with the elites in the framework set by the CCP. In China, the current legislation of criminal law enhances the CCP’s legitimacy. However, compared with the West, how to restrain the expansion of criminal law is a more critical issue for consideration for the authoritarian state like China.

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Attribution-NonCommercial-NoDerivs 2.5 Canada

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