Also on the Appropriateness of Article 34 of the Draft Revision of the Public Security Administration Punishments Law
Recently, the Public Security Administration Punishments Law of the People's Republic of China underwent its first revision in 17 years since enactment. The fact that the Standing Committee of the National People's Congress released a "revision" draft rather than an "amendment" draft indicates that this legislative change is not a minor patch but a major overhaul. The most attention-grabbing and controversial provision is Article 34 of the revision draft, which for the first time includes acts that "harm the spirit of the Chinese nation or hurt the feelings of the Chinese people" within the scope of punishment, sparking debates across society, with many legal scholars among the opponents.
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[1] The Public Security Administration Punishments Law is a fundamental administrative law enacted by the state within China's legal system, with a legal nature similar to the Criminal Law in punishing acts that endanger public security. It is commonly referred to as the "mini criminal law" and in Western societies is often called "security measures." Its regulatory targets are acts that are socially harmful but not severe enough to warrant criminal punishment, yet still subject to public security administration penalties. For example, prostitution does not violate the Criminal Law and does not constitute a crime, but it violates the Public Security Administration Punishments Law. However, organizing, harboring, or introducing prostitution, due to its social harm reaching a level punishable by criminal law, constitutes a crime.
[2] Regarding the proposed revision of Article 34, which aims to include acts that harm the spirit of the Chinese nation or hurt the feelings of the Chinese people within the scope of public security penalties, many scholars have expressed objections. The prevailing view is that the article's vague wording could lead to arbitrary administrative power in enforcement, resulting in abuse of power and potentially intensifying conflicts between police and citizens. What does vague wording mean? We say that criminal laws (broadly including the Public Security Administration Punishments Law) are laws that deprive citizens of property rights, freedom, and even life, and their regulatory targets are human "acts." In a world of countless people and constant change, the manifestations of acts are diverse and unique. Take the common act of "intentional injury" as an example: "injury" can manifest in various behaviors, but which behaviors constitute "injury" must be defined by connotation and extension (including specific acts and consequences). Otherwise, even causing a single strand of hair to fall could be arbitrarily deemed intentional injury. Thus, criminal law has hierarchical judicial interpretations for minor injury, light injury, and serious injury. This is what we mean by criminal law needing substantive definitions of "harmful acts." In academic terms, legislation must define "elements of a crime," such as what constitutes "theft," "robbery," "harboring," or "organizing prostitution," which is also a challenge faced by the legislation of the Public Security Administration Punishments Law.
[1] In light of the above, what constitutes behavior that "undermines the spirit of the Chinese nation and hurts the feelings of the Chinese people"? In today's increasingly globalized world, where Eastern and Western cultures blend and Western culture continuously influences (perhaps an inappropriate term) the domestic sphere, what distinctions need to be made? Determining which behaviors that "harm national feelings and national spirit" should be punished is a serious issue that requires legislative resolution. We cannot help but ask: Does the use of Apple (iPhone) computers and phones by state administrative organs and their staff harm national feelings and national spirit? Does participation in Christmas parties by atheist Chinese Communist Party members harm national feelings and national spirit? Therefore, some scholars have proposed in legislative suggestions that "national spirit and national feelings belong to the realm of cultural and spiritual matters; the state can advocate for them, but should not enforce them through legal coercion."
[2] Criminal law is continuously improved with the development of society. We see that among many laws, the revision of the criminal law is the most frequent. Since its promulgation and implementation in 1997, it is about to welcome its twelfth amendment, which also confirms the legal maxim that "once a law is enacted, it lags behind the era it is in." Furthermore, criminal law differs from the analogical application in civil law. For example, if behavior A is not defined as a crime, but behavior B is a crime under criminal law, and when behavior A is similar to behavior B, behavior A constitutes crime B. This is a typical analogical application of law, which is not allowed under the principle of legality. For instance, although animal abuse currently has certain social harm, especially for pet lovers who, out of emotional factors, detest animal abuse, China's criminal law has not criminalized animal abuse. Therefore, the crime of "abuse" in criminal law cannot be applied by analogy. The reason is simple: criminalizing consequences that exceed the predictability of the public would result in people being punished under circumstances they could not foresee, creating risks in the application of penalties.
[3] In summary, the current draft revision of the Public Security Administration Punishments Law has a high degree of openness and unprecedented participation. So far, over 70,000 opinions have been received, reflecting the scientific, democratic, and open-door nature of legislation!
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