Preventive Penalisation in China: Background, Adverse Impacts and Judicial Restrictionand Restriction

Abstract

Recent criminal law reforms in China show a noticeable preventive character by criminalising preparatory activities, lowering conviction threshold and imposing crime prevention obligation on legal persons, especially internet service providers. Timely preventive penalisation is necessary because it responds to a requirement of modern society to prevent invisible yet destructive risks in almost every corner of industrial activities. Meanwhile, preventive penalisation puts criminal law and citizens in danger too, because punishing formally unlawful conducts that cause no harm to society leads to not only injustice in criminal justice but also ineffective allocation of precious resources. Chinese legislation gives enough space and choices to judiciary to prevent adverse impact of preventive penalisation in practice. Unfortunately, the absence of a common recognition of this obligation and collective action shows that there is still a long way to go before establishment of a check and balance mechanism between seemingly unstoppable preventive penalisation and criminal justice.