RESPONSIBILITY LINKS, FAIR LABELING, AND PROPORTIONALITY IN CHINA: COMPARING CHINA’S CRIMINAL LAW THEORY AND DOCTRINE

Dennis J. Baker, University of London - King's College

Abstract

This paper evaluates fair labeling in the areas of criminalization and punishment in China. We consider the justice of criminal labeling from a comparative perspective by examining several core offenses and comparing how these offenses would be labeled and punished in China, the United States, and Britain. Our analysis shows that collectivist conceptualizations of responsibility, which are deeply rooted in Chinese thinking, are yielding to more individualistic conceptions of justice. Notwithstanding this phenomenon, themes of collectivism and deterrence continue to influence criminalization and punishment decisions in China, especially where individual acts of wrongdoing aggregate to form serious harm. Our analysis is doctrinal in that instead of conducting a large empirical study, we examine several high-profile cases and outline the general theoretical distinctions between them. Our analysis focuses on three core areas of wrongdoing: bribery offenses, manslaughter, and the criminalization of those who are remotely connected to a primary harm. We examine the way China handles corruption and corporate criminality when they result in human fatalities and ask whether their approach is reconcilable with Western notions of justice and fairness. Thereafter, we analyze and compare the use of the proportionality principle in punishment by the Chinese and Westerners. We conclude that Western definitions of harm and proportionate punishment are not universal, nor even consistently adhered to in Britain and the U.S.