Accession to WTO and China's criminal law theory of the development and adjustment of_316

By Herman Moore,2014-10-30 08:45
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Accession to WTO and China's criminal law theory of the development and adjustment of_316

    Accession to WTO and China's criminal law theory of the development and adjustment of

     Summary China's accession to WTO, criminal law theory must be adjusted accordingly. Normative concept of crime, regulate the protection of the interests of the basic concepts should be updated; will change the basic form of crime; the application of penalties will also make appropriate adjustments.

     Key Words WTO / Criminal Law Theory / patterns of crime

     "WTO" is not purely economic behavior, but will have an

    impact on all sectors of society overall behavior. Its development impact of the rule of law can be expressed in both direct and indirect.

     A direct impact from the "accession" itself. According to international practice, China's "accession", the general

    principles of law must be subject to the constraints. These principles include: (1) The principle of fair trade; (2) the principle of tariff concessions; (3) the principle of transparency; (4) for "state trading enterprise" principle;

    (5) non-discriminatory trade principles; (6) generally prohibits the principle of quantitative restrictions. [1] are inconsistent with WTO rules of laws, regulations and policies must be modified and supplemented.

     Indirect impact on economic development comes from

    changes in social ideology demands. "WTO accession," the new

    changes in the economic structure, will lead to globalization, ethical values, the formation of legal value, so that the legal system on the basis of the new social development and

    change. The indirect nature of this influence, decided to change the slow and gradual. However, we have no reason to ignore or disregard this effect, but should make corresponding countermeasures. On this premise, the research may occur in

    the field of criminal law changes and trends are not groundless, without loss of the release.

     1, the basic concept of an update

     Theoretical development in China's criminal law, a relatively weak link is the basic concept of conservative and

    narrow, and thus restricted the basic theory, opening up and development. "WTO accession," China's criminal law theory in the development of basic concepts will be given the role of an indirect change. Of concern mainly in:

     (A) the concept of crime in the specification, the class

    in which opposing views are still reflected in the existing legal norms are in need to make the necessary changes to

     The so-called norms of the concept of crime, that is enshrined in the Penal Code the concept of crime. As a

    fundamental question of criminal law, the concept of crime reflects the concept of legislators. China's criminal law in article 13 clearly states: "All endanger national sovereignty, territorial integrity and security, secession, subversion against the regime of people's democratic dictatorship and overthrow the socialist system, and disrupt social order and economic order, and violation of the state-owned property, or

    the working people the collective all of the property, violation of civil privately owned property, violation of

    personal rights, democratic rights and other rights, as well as other hazards of social behavior, according to law should be punished by the penalty, are criminal, but the circumstances are obviously minor, there is little risk of is

    not considered a crime. "This is China's Criminal Law provides that" the unity of essence and form of the definition of ","

    not only revealed the class nature of crime, social characteristics, but also reveal the characteristics of criminal law. "[2] in which the class nature feature is nothing but stressed that the socialist system, which followed since the former Soviet Union will be formed during the antagonism between socialism and capitalism, the concept of doing things. After decades of political struggle, the people,

    has been the formation of a certain mode of thinking, easy to make people habitually make judgments: capitalism is decadent, reactionary, socialism is an advanced and revolutionary. Consequently, the socialist criminal law to protect the

    socialist system, does not protect the capitalist-related

    things. This is certainly a narrow view of crime. Crime is a social phenomenon, rather than a class phenomenon. In any class society exists in both crimes. Looking abroad, criminal law theory, the nature of the crime, the majority of stress is "legal interests" of protection, that protection of the interests of existing laws constitutes a criminal violation. In comparison, the dividing line between socialism and capitalism can be used as different historical types of social systems to be studied, not to judge things as good or bad, or even as the distinction between Zuiyufeizui basis. In fact, the country's social life, which is "socialism", which is "capitalism", it is difficult to determine. Identification of

    the nature of the crime, "the legislators did not create the word, but borrowed from the public vocabulary, and they did not even give its definition, everything is right to classify them in certain conduct known as the crime. "[3] Therefore, in

    the final analysis, criminal behavior is divided interests of the rulers, in the perspective of law norms, that is, against the" legal interests "behavior. With "legal interest" concept phase of confrontation instead of the concept of China's

    accession to WTO, in particular, has a practical significance. In China's market liberalization, a large number of foreign companies, enterprises will be in China to develop and exploit. Among them, the vast majority of what we call "capitalism." Of these "capitalist" and "capitalists" in

    China's development of "capitalism", criminal or not to protect them? In order to regulate current criminal law as the basis, apparently unable to make a reasonable explanation. Only by abandoning the concept of class antagonism, re-

    establish a position with the concept of globalization in order to make criminal law to adapt to the needs of society.

     (B) in regulating the protection of the interests of the state-based concept is still dominated by the legal protection

    of the rights of individuals not placed enough emphasis

     The existing criminal law has always permeated with this idea: in the protection of property interests, the first protection of national, public property, and protection of the collective property, and finally the protection of personal property; in the protection of other interests, the same state first, then the collective, the last individual. Thus, in the protection of national interests and collective interests, they can sacrifice our personal interests are, of course,

    logic. Criminal law in the implementation process, often reflect on the rights of individuals to ignore or even ignored. This is a state-based concept of the planned economy

    period of continuity. The planned economy period, the entire

    social production and life are carried out under the national plan. Plan, organize production, circulation and consumption, in charge of national unity by the authority of the State at all levels of society to play a direct role. "No country, how

    can the small house" is the concept of national survival and development of the community-based soil. However, in a planned

    economy to a market economy, state-based concepts are being

    challenged. According to rules of market economy, the state should not be on the economic sphere, specific production direct intervention can only be implemented through the formulation of policies on economic macro-control. Government

    functions necessary to implement changes in three areas: from direct management to indirect management mainly based;

    dominated by the micro-management to macro management of the

    main; from project approval, fee-splitting sub-object shift

    planning, coordination, service and supervision [4] . In a market economy system, the state of social production does not

    make specific plans, producing what and how much production to adjust supply and demand by the market, from production units discretion. This requires that the State must guarantee the producers as individuals, in social life to enjoy full freedom

    and reliable protection in order to achieve market economy, free competition. The individual's role and influence are no longer submerged in the country's unification structure, but as the basic unit of different characteristics, play their respective roles. Only by fully protect the interests of the

    individual under the premise of economic freedom in order to play to market competition, the advantages of optimal allocation of resources, so that benefit the country. Any protection of national and collective interests as an excuse

    to infringe on individual interests, will result in the substance of the main competition, inequality, competition, freedom and equality can not be achieved, the market economy is just empty talk. It should be recognized that in a market

    economy under the conditions of "no small house, how can state" the importance of unconditional sacrifice individual interests to preserve the concept of national interest must change. Chinese Government in 1997 and in 1998 signed the "Economic, Social and Cultural Rights" and "Civil and Political Rights, the International Covenant", in respect for human rights on the road taken decisive step. In order to meet the needs of protection of human rights, criminal justice standards should be made to the corresponding investigation.

    First, the need to emphasize the value of human life can not for the protection of some people's survival, while the impact and expense of another part of the human right to life. United Nations and its Commission on Human Rights highlighted the

    "national, regional, national interests and not to protect the name of social order, while the imposition and execution of a part of the criminal's life, that can not be deprived of a small number of people's lives, as a safeguard national

    interests and the means of social order . "[5] Second, the need for property rights protection, to strengthen the protection of personal property, will be placed on the protection of personal property with other property of equal or even more important position to deal with. Only do the work of human rights protection in order for China's "accession" after the sound development of the economy to lay the legal basis for stability.

     The concept of adjustment is the basis for reform of the system. As the scholar noted, "In China, criminal law is a very strong political overtones of the social sciences, it always rise and fall of the country's political life, the rule of law relating to the status, resulting in criminal law scholars have been intentionally or unintentionally, to make their own Theoretical Study on the subject, serve our country and social development of the actual needs. This makes the study of China's Criminal Law of practicality with distinctive

character. this type of character, is the study of China's

    Criminal Law features and advantages, but also showed that the Chinese Criminal Law Study of the