Preventive criminalization: legislation and issues in China

ABSTRACT

Preventive criminalization is one of the most noteworthy legislative phenomena in China, exhibiting structural differences from the basic principles of criminalization and the traditional risk prevention function of criminal law, focusing mainly on the areas of counterterrorism and cybercrime. The advancement of the criminal law defense against new types of crime is necessary, but there is also an implied risk of expanding and blurring the boundaries of criminal law intervention. The trend towards preventive criminalization is inevitable in our country, guided by a positive view of criminal law. The addition of preventive criminal law provisions in future legislation should reasonably balance the relationship between social protection and civil rights, avoiding excessive intervention of criminal law on the grounds of prevention.

KEYWORDS:

• Preventive criminalization
• counterterrorism
• cybercrime
• a positive view of criminal law

Disclosure statement

This article is based on a keynote speech by the author at the third China-Finland Academic Forum on Criminal Law held on 4 December 2022.

Notes

1 Jonathan Herring, Criminal Law: Text, Case And Materials (Oxford University Press 2012); also see Andrew Ashworth and Lucia Zedner, ‘Defending the Criminal Law: Reflections on the Changing Character of Crime，Procedure’ (2008) 2 Criminal Law and Philosophy 21–51.

2 See Michael Allen, Textbook on Criminal Law (Oxford University Press 2011).

3 See Sun Xiangstean, ‘A Public Law Reflection on the Structure of Information Content Regulation on Online Platforms,’ (2022) 2 Global Law Review 133.

4 See Dieter Grimm, Prevention in Constitutional Perspective (Law Press, 2012).

5 See Rik Peeters, ‘The Price of Prevention: The preventive turn in crime policy and its consequence for role of state’, (2015)17 Punishment and Society163, 167–168.

6 Erik Hilgendorf, German Criminal Law from Tradition to Modernity (Beijing University Press 2015).

7 See Cheng Xiao, ‘The Security Obligations of Network Service Providers’ Rule of Law Daily (China, 2022) 9.