Research On The Mode Of Criminal Quantity In Chinese Criminal Law

There is not only the criminality of the act but also the quantitative requirementin the criminal constitution in Chinese criminal law. The act will be recognized as acrime when it satisfies the conditions of the quality and the quantity. This mode oflegislative quantitative requirements is called as "legislation regulates quality andquantity". Compared with China’s, most other countries’ mode of quantitativerequirement of criminal constitution is "legislation regulates quality, jurisdictionregulates quantity", which is the mode of jurisdictional quantitative requirements. Inthis mode, the quality of the act is only used to distinguish between crime andnon-crime. The act will be recognized as a crime when it satisfies the condition of thequality. And then in the judicial procedure, the act of slight quantity may be dealt asnon-crime.Different modes of quantitative requirement of criminal constitution influencethe various aspects of a country’s criminal legal. The mode of legislative quantitativerequirements which is a important part of criminal law theory should be paid attentionto Theory Circle in China. There is a discussion on the problem of Chinesemode——amend it or reestablish it as the other mode. In the author’s mind, the modeof jurisdictional quantitative requirements is the goal of improving China’s legalconstruction based on the criminal justice, protection of human rights and socialsecurity point of view. But the process to establish this mode is not a easy road. Themajor statement of the paper is to solve the difficult with the help of the theory oflegal transplantation, and to seek the present strategy under the goal of establishingthe mode of jurisdictional quantitative requirements.The paper is composed of four parts.The first chapter mainly introduces the mode of legislative quantitativerequirements in China. And the differences of the two modes in the legislation and practice will be understood after comparison in the way of legislation, the settlementof little-harm act and the classification of illegal type.The second chapter selects between the two modes from the perspective oftheory. The author holds the opinion that the two modes both have the advantages andthe disadvantages, after the analysis of advantages and disadvantages and remedialpossibilities, the judicial quantitative mode is more consistent with the pursuit of thevalue of modern criminal law through consideration to democracy, freedom, humanrights, modest and restrained spirit of criminal law.The third chapter analyses the difficulties of establishing the mode ofjurisdictional quantitative requirements in China. Due to the development of law,requirements of modernization of legal system, the need of globalization and thelimitations of the country society spontaneous development, it is inevitability of thetransplantation of law. But the difference and conflict between Chinese and westernlegal system and culture may cause the exclusion of foreign institutions by our society.Furthermore, the exclusion can’t be removed in the perfect way in a short period.Therefore, there are obstacles and limitations of China’s native environment toestablish the mode of jurisdictional quantitative requirements.The fourth chapter puts forward a proposal of localization strategy to solve thedifficulty of establishing the mode of jurisdictional quantitative requirements. In thispart, the author tries to use the experience of Japan who is similar to China in thetraditional society and the demand for legal transplantation. The key to success oflegal transplantation in Japan is the localization transplantation strategy. It is astrategy which makes the foreign institution to be close to localization by revising. Atthe same time, the native institution and society should be adjusted. Finally, the goalof promoting the native institution will be achieved. Then the author puts forward theview of the localization transplantation strategy to establish the mode of jurisdictionalquantitative requirements. First of all, it should pay attention reasonably to the nativeinstitution resource. Secondly, the mode of jurisdictional quantitative requirementsshould be looked upon in a rational way. The third, the local criminal institutionwhich can link up to the mode of jurisdictional quantitative requirements should beconstructed. At last, the society should accelerate to accept new factors. The modern legal consciousness should be strengthened while the traditional ideas of legal toolsshould be changed. Only in this way, the concept of rule of law can get the realpopularity. And the mode of jurisdictional quantitative requirements can beestablished successfully in the process of legislation, judicature and abiding by thelaw.