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 sad side. How to maintain the value of the application of criminal law at the same time to prevent it from becoming a vassal of political authority

    and the existing systems and habits of footnotes, is that we in the new century should always think about a problem. "[6 ] the face of impending "WTO" situation, such thinking has become more pressing of the reposted elsewhere in the paper for free download http://

     Second, the changes in the basic form of crime

     Contents and patterns of crime along with changes in social development. Among them, the impact of both traditions, but also changes in the concept of crime (Note: According to

    the customs of many ethnic groups habits, carried out in retaliation for the murder of murder is not only tolerated, but murder is seen as the most sacred responsibility of those of future generations ; in the course of history, a duel during the harsh sentences imposed, while the other time was lawful, and become the main form of legal proceedings; pagan, the Witch and sacrilegious was considered to be the most obvious crimes, but Today, all civilized nations of the Code, but never disappeared; in some countries, the law allows

    robbery weather forced landing of foreign vessels; Over the centuries, many are now moving towards a civilized nation Zeng Yi as its principal bandit bandit means of livelihood.) [7]. The provisions in the patterns of crime, Chinese criminal law

    changes have behaved quite frequently. Since 1979, after the promulgation and implementation of the Criminal Code, has issued 24 single criminal statutes, not only for the original crime and punishment in the Criminal Code was amended and

    increased a great deal of the original criminal law there is no charge. 1997 amendments to the Criminal Code, only the provisions of sub-rule from 1979 to 103 to 351, shows that the new charges has increased significantly. The main reason of this change is the reform and opening up led to changes in economic structures, resulting in a new legal needs. In "WTO accession," China's economic structure will be even greater changes, which affect the performance of the first impact of the economic life through the formation of social values.

    Affected by the impact of values, crime trends and types of corresponding changes will happen. According to estimates, the "WTO accession," the lives of ordinary people in the income and employment are severely affected. The people of income and

    employment status changes, trends and types of crime have a direct impact.

     (A) the total will show a slow upward trend in crime

     It is predicted that, "WTO accession," China's economy will be a great development, the gross national product will

    increase. While we can not say that social and economic development has led to an increase in crime, but in the process of social development, in particular the process of industrialization, the rise of crime has been confirmed. "As a

    region, industrialization, deviant, illegal and criminal acts are also up, regardless of the region exist in a socialist society or a capitalist society, or in a developing country." [8] Therefore, we must be fully prepared to face this reality. On the one hand, "We have an obligation to exercise extreme caution and not to any accusations of civilization, so to assert that the progress of civilization and the promotion of the crime." [3] (P162) on the other hand, a careful analysis of the process of social development, the causes of crime, and seek to control measures. In addition, the employment problem is another important factor affecting crime. In China's "accession", the employment problem will become a serious social problem in the long run, employment opportunities will

    increase, but it will cause short-term employment crisis. Due

    to lower agricultural tariffs, China's agricultural market will be a great impact on foreign agricultural products, a large number of rural surplus labor force will occur, they

    loiter in the village or the influx of city, will become a hidden danger to social order. In the cities, traditional industries and infant industries will also be a result of comparison with foreign industry is not competitive enough, leaving large numbers of workers into unemployment. Even in the future, conditions of employment can only be with the higher levels of knowledge and skills of personnel, to a large number of low-level in terms of the peasants and the urban unemployed, unemployment continues to threaten their basic

    survival. The existence of a large number of unemployed

    persons, a deterioration in living conditions are extremely prone to crime groups. Therefore, the slow rise in the total amount of crime would be difficult to change the trend.

     (B) the type of crime, form of the structure and performance will change

     Based on the traditional types of crime analysis, mainly as follows:

     1. Endangering national security will be a new form of crime. The social reality of economic globalization in order

    to overthrow the armed forces and the seizure of state power in ways less and less based on a growing economic power to seize and control a country's real control. This kind of harm to national security will not only be easily overlooked, but

    are often overlooked. We are faced with armed resistance to foreign enemies would be courageous, but for hand-held U.S.

    dollars to invest in the name of economic aggression against the powers may be neglected. It is worthy of attention.

     2. Against the personal rights of the violent crime rate will be reduced. "WTO" would spread the economic concept in our society and expand. The importance of economic interests and pursuits will be the fundamental values of society. Awareness of the value of human existence of two

    differentiation trends: First, because of society at large economy, has emerged as a pecuniary interest in killing, wounding cases. Second, the general economy of the social process, highlighted the unique nature of human values, which

    focus on human life, right to health. Either way, the concept of dominance, will have a kind of social consequences: missed from, the instinct of violence vent-type homicide, injury

    cases will be reduced.

     3. Involving property crimes or crimes to pursue economic

    interests will inevitably increase, and will be the main types of crime. "It is undeniable that those who have truly civilized countries, crime is reduced, or at least are

experiencing violence from the intelligence and cunning

    instead of the changes, such as pirates, bandits, revenge murders, honor killings, looting and arson of the most The original forms of crime are the ultimate doom. "[3] (P129) This situation has been confirmed by the development of industrialized countries. In the Second World War, "At that time despite the industrial countries in Western Europe and North America, long-term sustainability of economic

    prosperity, but crime, particularly property, economic crimes and an increase of Traffic Accident cases. An increase in

    burglary and robbery cases pose a particular problem. Although in line with the crime of murder, physical abuse has also risen, but the same scale as in property and economic crimes. "[8] (P263) in China since the reform and opening up, economic

    crimes, the number and type of rapid growth, it has proved the existence of this trend. In the old economic system, alternating process, because of institutional defects and vacuum, economic management is not standardized, and social decline in the prevention and control capabilities, are the reasons for the growth of economic crime. These shortcomings in a short time can be improved.

     4. Corruption, bribery and other job-related crimes will

    change the universal, multiple characteristics, showed

    concentration, severity characteristics. According to the World Trade Organization requirements, government action must change the past, changing policies, procedures and rules vague, gray and management conditions, so that behavior can make people predictable. Meanwhile, the presence of foreign companies, but also calls for the elimination of domestic sector monopoly. This would weaken the control of direct government intervention and the capacity of economic activity and individual sectors of the industry's monopoly position, in

    essence, reducing the power advantages of job-related crimes.

    With "rent-seeking theory," explains a reduction of rent-

    seeking officials, the capital, so that corruption and bribery narrow in scope. However, the Government and individual

    departments need to keep out of the country against the intervention in economic activities and control of power is still there, but within a certain range is quite large, which for a small number of people in power to the possibility of crime. Once they have their power by virtue of the

    implementation of corruption, bribery will inevitably large in

amount, and the extremely bad influence.

     5. Environmental problems become increasingly serious environmental crime will be re-understanding of the hazards.

    In nearly a century, the process of industrialization, environmental issues are seriously neglected. Human beings enjoy the convenience brought by industrialization, we also eat the bitter fruit it brings. We found that lurches violently to enjoy the pure, fresh, became a luxury. Although the pollution of the environment is defined as a crime, but the importance attached to environmental issues is not enough. In order to immediate economic interests at the expense of the environment is still a large number of events took place. We should recognize that environmental damage is not affecting the quality of life issue, but major problems affecting human survival. Damage to the environment and harm, and no less than public safety hazards. Only by fully understanding the

    seriousness of the problem is only possible to take the necessary measures for prevention and treatment.

     (C) In the economics of crime, the specific types of crime will be with the socio-economic and technological

    development, showing up for this change in consumption Peter

     According to the different factors, roughly the following changes:

     1. The use of high-tech crime, in particular, the use of computer-related crime will show a rising trend. The creation of human civilization, while the use of high-tech, high-tech

    has also been used by some criminals. This type of crime including the use of high-tech means of both the

    implementation of traditional crimes, such as the use of electronic scanning technology to steal other people

    Telecommunications Numbering profit; the use of advanced copy, production machinery, counterfeit or altered currency and so forth. Also includes new and emerging types of crime, such as the use of network and spreading computer viruses crime.

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