Three case studies: Based on the 2011 eighth amendment of criminal law
In China, enacting the Criminal Law Amendment Act as the major method of revising criminal law was designed to meet the needs of a rapidly developing society while maintaining the stability and predictability of the law. It is also one of the signs of progress in China’s criminal justice system. After the 1997 Criminal Law replaced the 1979 Criminal Law, the Chinese state made eight amendments up until 2011. In 2011, the eighth amendment, which is acknowledged as the most important amendment by a number of commentators, came into force with 50 provisions that changed the penalties for a variety of crimes that endanger public security', economic order and property rights.30 It is difficult to use one term to categorize the changes since the changes reflect multiple pursuits. The abolishment of 13 capital punishments (for the first time in Chinese history) was recognized as showing respect for liberal values.31 New community correction practices have also been introduced to address minor crimes or offenders ascribed with less responsibility, such as juveniles. Compared to former amendments, these changes reflect the progress in Chinese law towards more lenient and diversified penalties,32 while at the same time, the boundary of criminal law has been continuously expanded to criminalize new conduct, especially those acts closely associated with public well-being (the livelihood of the people).33 Penalties for violent crimes—such as terrorist attacks, gang crimes, crimes against state security and their associated minor offences—have been increasing over time. In criminalization, three changes manifest a preventive trend of crime control. This section will identify these changes and examine their similarities.
Three offences in Chinese criminal law
Crime of drunk driving
The first of the changes establishes impaired driving as a crime. Impaired driving is an offence in many countries like the US, the UK and Canada.34 In China, drunk driving or speeding without causing an accident was punished with administrative penalties.3’ However, with the eighth amendment of criminal law in 2011 it became a criminal offence against public security.36 Making the shift from an administrative offence to a criminal offence is a crucial transformation in China’s legal system. Only offences that seriously violate the public interest are “crimes.”
The imposition of public censure as well as the deprivation of liberty by criminal law is much more intense than the other punishments. Furthermore, due to the Chinese drinking culture, drunk driving, which was assumed to be a minor problem, is commonly regarded as a non-criminal offence in the public mind.37 The Chinese people are apt to worry about the expansion of state power if such endangerment behavior continues to be criminalized in the future.
In the jurisprudence of criminal law, drunk driving is preventive for several reasons. First, drunk driving is an endangerment crime that criminalizes the creation of an unacceptable risk of harm.38 “The driving is not itself harmful, and need not be directed toward increasing the risk of injur}' to others; it is criminalized primarily because it does increase that risk.”39 The primary purpose of establishing this as a crime is to prevent road accidents (the potential result of drunk driving); however, there is yet no established harm result for the crime itself. Though “modern criminal law is characterized by ‘bringing forward of criminal law in the sphere of endangerment’,”40 it is new in Chinese criminal law.
Second, this kind of “negligence/recklessness + risk” combination, which is distinct from the “negligence/recklessness + harm” model, applies more restrictions on the freedom of ordinary people. An offender is found guilty as a person with common consciousness who, even though without intent, leaves others at excess risk in road safety. The risks have become so grave that criminal law can no longer tolerate them.
Third, without “harm” as the defining rule, assessing risk must rely more on actuarial techniques. For instance, according to the Law on Road Traffic Safety, driving with an alcohol content in the blood that is 20-80 mg/100 ml is “driving after drinking,” while that exceeding 80 mg/100 ml is “drunk driving.” The judges also have to consider other circumstances such as the time and the place where the offences were committed to assess whether the conduct posed a risk to the public. Based on Article 13 of Chinese criminal law, “an act that is clearly of minor importance and little harm shall not be considered a crime”; if it is impossible for the conduct to generate any injur}' or property loss, then it is not a crime.
Before the enactment of the eighth amendment, it was the Road Traffic Safety Law of the People’s Republic of China and other associated regulations that penalized drunk driving without causing road accidents. Article 88 of the law establishes several administrative penalties such as warnings, fines, suspending or withholding the driver’s license, or taking the driver into custody. Regulation on the implementation of the law specifies the details of carrying out the penalties. However, since 2003, officials report that cases of drunk driving and speeding have separately exceeded 19 and 1 million per year nationwide, and the public’s awareness is growing.41 Since 2009, with the rising number of drunk-driving infractions and a series of notable cases that produced fatal accidents, some local courts found the offenders guilty of “crimes against public security through other dangerous means,” since under such circumstances they could be charged with detentions of more than ten years rather than less than seven years.42 At the same time, both internet comments and journal papers began to argue that existing administrative penalties for the offences were not compatible with the risks they actually generated, and demanded harsher punishments to prevent potential injuries.43 Under these circumstances, in order to prevent drunk driving more effectively under the amendment in 2011 (and besides the existing “traffic offence causing bodily harm or property damage”) a second provision was added to Article 133 as an offence of “dangerous driving”; that is, “A person who chases with other automobiles when driving on the road or commits drunk-driving shall be sentenced to criminal detention from one to six months and be concurrently given a fine, provided that the circumstances are grave.”44 The crime of drunk driving fills the gap in the former system that maintained the harm result as one requirement of committing a crime. With the crime of drunk driving, current traffic offences consist of the offence of drunk driving, traffic offences causing inquiry’ or property damage and using drunk driving conduct as the means to endanger public security. In this way, Chinese criminal law regulates road safety' more efficiently' by criminalizing drunk driving, both with and without road accidents, and with intention, negligence or recklessness.45
It may' be suggested that drunk driving criminalization is a common practice all over the world. For instance, Canadian driving offences include Drive Disqualified, Dangerous Driving (no injury'), Dangerous Driving (injury' occurs), Driving or Care or Control while Impaired or Over 80 mgs, Impaired Driving Causing Bodily' Harm and Impaired Driving Causing Death. In the UK, the Highway' Code sets penalties for a variety' of offences, such as causing death by dangerous driving, dangerous driving, careless and inconsiderate driving, driving while disqualified, speeding and traffic light offences. Other countries or districts, including Japan, Germany, Korea, Finland and Hong Kong, also have corresponding penalties for drunk driving.46 While it may' be true that drunk driving is common, this cannot be an argument for the crime of drunk driving not being preventive in the Chinese context. The concern lies in the shift from an administrative penalty' to a criminal penalty' in China, rather than having a penalty' or not. In addition, as the first endangerment crime in criminal law, it is a sign that creating risk without a purpose (which is distinct from traditional models focusing on either guilty intention or harm) can be criminalized as well.