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ABSTRACT
The Chinese legislation and criminal law theory research has already reflected the preventive idea, which is not the complete connotation of preventive criminal law, nor can fully meet the needs of national security governance. The characteristics of the preventive criminal law theory determine that the whole picture of this problem can only be presented by combining the substantive field and the penalty field of criminal law. Preventive detention refers to the liberty restriction measures taken after the execution of punishment for the purpose of preventing crimes, defending society and correcting crimes, mainly targeting perpetrators of violent crimes or sexual crimes and recidivist, based on their high social risk to the public interest and social security. Preventive detention not only balances the relationship between social defense and individual rights restriction but also provide the legal guarantee of national security governance, realising the positive interaction between freedom, development, security and order. There were some similar practice in history, and the resettlement education carried out in the field of anti-terrorism in recent years also have the nature of preventive detention.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Correction Statement
This article was originally published with errors, which have now been corrected in the online version. Please see Correction (http://dx.doi.org/10.1080/20517483.2023.2240605)
Notes
1 See Mingxuan Gao and Daocui Sun, ‘On the Concept of Preventive Criminal Law and Its Dogmatic Thinking’ (2018) 201 China Legal Science 166, 167.
2 Related discussion can be seen in Ronggong He, ‘Expansion of Preventive Criminal Law and Its Limitation’ (2017) 39 Chinese Journal of Law 138, 140.
3 See He (n 2) 138, 140.
4 Related discussion can be seen in Yanhong Liu, ‘The Development in the Practice of Positive Preventive Criminal Law in China: From the Perspective of the Amendment XII to the Criminal Law’ (2021) 173 Journal of Comparative Law 63, 67–69.
5 See Yuan Jia, Research of Preventive Detention Beijing: (China Social Science Press 2021) 6.
6 Shim Kyu-Seok, ‘Child Rapist Cho Doo-soon Released from Jail After 12 Years’ Korea JoongAng Daily (13 December 2020) <https://koreajoongangdaily.joins.com/2020/12/13/national/socialAffairs/Cho-Doosoon-Nayoung-rape/20201213181000542.html> accessed 8 March 2023.
7 The website of Cheong Wa Dae online petition platform in South Korea was opened in 19 August 2017, with the aim of gathering public opinions better through direct communication with citizens and reflecting them in government policies. Anyone could upload a petition anonymously to the platform, and those who supported the petition could sign it using a social media account. The government was required to give an official response to any petition that collected more than 200,000 signatures within 30 days.
8 Lee Hyo-jin, ‘What You Need to Know About Notorious Child Rapist Cho Doo-soon’ The Korea Times (18 September 2020) <https://www.koreatimes.co.kr/www/nation/2020/09/113_296292.html> accessed 8 March 2023.
9 Because the maximum term of imprisonment in South Korea at that time was 15 years, rape did not carry the death penalty.
10 Cho has 17 other criminal convictions dating from 1970, including sexual offenses and murder.
11 According to Article 10, Paragraph 2 of the Korean Criminal Code at that time, if a criminal lost the ability to distinguish basic things due to his unstable mental state, his sentence could be reduced. And this is supposed to protect the mentally ill, but it also includes the drunk.
12 Hyo-jin (n 8).
13 For example, in the case of sexual assault, the maximum sentence for the sexual assault against minors was raised from 15 years to 30 years, and then directly to 50 years, further upgraded to life imprisonment (without parole) in 2013. And the Article 20 of the Act on Special Cases Concerning the Punishment, etc. of Sexual Crimes revised in 2013 stipulates that, ‘If a sexual crime (excluding a crime as defined in Article 2 (1) 1) is committed in the state of mental disorder induced by drinking or use of medication, it may be excluded from the application of Articles 10 (1) and (2) and 11 of the Criminal Act’. Another example is the provision on electronic shackles. In 2010, South Korea amended the Act on the Electronic Monitoring of Specific Criminal Offenders to expand the time of wearing electronic anklets from 10 years to 30 years. In 2019, the 11th amendment is aimed at strengthening the management and supervision of electronic anklet wearers, which provides one-on-one contact between probation offices and sex offenders against minors.
14 See Lee Hyo-jin, ‘Electronic Anklets Fail to Prevent Crimes by Sex Offenders’ The Korea Times (30 August 2021) <https://www.koreatimes.co.kr/www/nation/2021/08/251_314739.html#:~:text=The%20government%20introduced%20the%20GPS-enabled%20electronic%20device%20in,officers%20to%20check%20their%20whereabouts%20in%20real%20time> accessed 8 March 2023.
15 Vgl. Roxin, Strafrecht AT, Bd.I,4. Aufl., 2006, § 3 Rn. 37–43.
16 BVerfG (E 45,187,253f).
17 Vgl. Franz von Liszt, Der Zweckgedanke im Strafrecht, ZStW 3:1–47 (1883).
18 See Franz von Liszt, Lehrbuch des deutschen Strafrechts, translated by Xu Jiusheng (Beijing: Law Press·China 2000) 18–19.
19 See Enrico Ferri, Criminal Sociology, translated by Jianan Guo (Beijing: People’s Public Security University of China Press 2004) 276.
20 See Kechang Ma (ed.), History of Modern Western Criminal Law Theory (Beijing: China People’s Public Security University Press 2008) 457.
21 See Tieke Xian, ‘Gramatica and “Principles of Social Defense”’ (1993) 4 Chinese Legal Science 106,107.
22 See Marc Ansel, New Criminal Law Theory, translated by Lu Jianping (Hongkong: Cosmos Books Ltd. 1990) 235.
23 Lombroso classified criminals into following categories: born criminals, occasional criminals, habitual criminals, criminals by passion, insane criminals and epileptoid criminals.
24 See Cesare Lombroso, The Criminal Man, translated by Huang Feng (Beijing: China Legal Publishing House 2005) 333.
25 See David P. Farrington, Rolf Loeber and Maria M. Ttofi, ‘Risk and Protective Factors for Offending’ in David P. Farrington and Brandon C. Welsh (eds), The Oxford Handbook of Crime Prevention (Oxford Academic 2012) 46–69.
26 See Fenglin Fan, General Theory of Penalty (Beijing: China University of Political Science and Law Press 1994) 501.
27 See the individual communications received and considered by the Human Rights Committee, such as Rameka v. New Zealand (Communication No. 1090/2002); Dean v. New Zealand (Communication No. 1512/2006); A v. Australia (Communication No. 560/1993), etc. Cases considered by the European Court of Human Rights, such as M v. Germany App No. 19359/04 (ECHR 17 December 2009); Haiden v. Germany App No. 6587/04 (ECHR 13 January 2011); Bergmann v. Germany App No. 23279/14 (ECHR 7 January 2016), etc.
28 Covenant Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
29 Covenant Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
30 Covenant Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
31 See Gaston Stefani et al., Droit pénal général, translated by Jiezhen Luo (Beijing: China University of Political Science and Law Press 1998) 436.
32 Ibid 439–440.
33 See Shantian Lin, Criminal Law (Taipei: Taiwan Commercial Publishing House 1983) 339.
34 This Penal Code is still applied in the Taiwan province of China, so the relevant provisions remain in force with several revises.
35 See Tenghuan Weng, Comparative Study of Security Punishments in World Criminal Law (Beijing: Commercial Press 1936) 494.
36 Jin Wang, Theory of Chinese Criminal Law (Beijing: China Fangzheng Publishing House 2005) 540.
37 This article has been abolished in the current ‘Criminal Code' applied in Taiwan Province, and a new Article 91-1 has been added to establish the compulsory treatment for the sexual offender.
38 According to the Vocational Education and Training in Xinjiang (White paper 2019), the trainees at the centers fall into three categories:
1. People who were incited, coerced or induced into participating in terrorist or extremist activities, or people who participated in terrorist or extremist activities in circumstances that were not serious enough to constitute a crime;
2. People who were incited, coerced or induced into participating in terrorist or extremist activities, or people who participated in terrorist or extremist activities that posed a real danger but did not cause actual harm, whose subjective culpability was not deep, who acknowledged their offences and were contrite about their past actions and thus do not need to be sentenced to or can be exempted from punishment, and who have demonstrated the willingness to receive training;
3. People who were convicted and received prison sentence for terrorist or extremist crimes and after serving their sentences, have been assessed as still posing a potential threat to society, and who have been ordered by people’s courts in accordance with the law to receive education at the centers.
39 The target of the vocational skill training is solving the problems of the lack of occupational skills and employment difficulties, including many kinds of courses, such as food processing, hairdressing and beauty services, e-commerce and so on. The centers also provide practical training to improve the trainees’ operational skills, which is a part of education, not obligatory labour.
40 See Vocational Education and Training in Xinjiang (White paper 2019).
41 The law was amended again in 2018, so the articles quoted below are numbered as the 2018 version.