엄벌주의 현황에 대한 고찰 - 중국의 아동 관련 범죄를 중심으로 -

Abstract

With the validity of Criminal Law’s preventive function is facing questions after 1980s, neoclassical Retributive theory and Severe Criminal Punishment Theory came on stage. And advocating harsh punishment, which could call it ‘harsh-punishmentism’ is becoming a trend around the world especially after 911 Terror Attack. It is not an exaggeration to say that the keynote of Korean criminal policies in recent years ‘harsh-punishmentism’, and even in China, who was drawing up light punishment in last few years, the ‘harsh-punishmentism’ is on its way especially in the cases of the crimes against children. This paper analyzed the trend of harsh punishment in Chinese criminal law system, and claims that our human society had stepped into a new stage which could call it the Risikogesellschaft and Die Granulare Gesellschaft. But the Retributive theory and the Preventive Criminal Law Theory, which ruled by traditional rechtsstaats but making the victims outsider, are no longer adapt to the new stage, and this is the main reason for the rising of ‘harsh-punishmentism’. In new era, for maintaining human dignity and the solidarity between human beings, some crimes should be punished far more severely, but we should also alert Hostile Criminal Law which cut apart the human society into just ‘our’ and ‘enemy’. For national security and development, China maintains one-party dictatorship so the risk of abuse of power is higher than typical democracies. Furthermore, China recognizes class struggle by its constitution, and it means that allowing ‘harsh-punishmentism’ to some degree in China is like walking on thin ice. But if we could always alert it in our mind, reject Hostile Criminal Law, insist on judicial independence and raising awareness of the rule of law, China can also get rid of ruling society with severe punishment, then find its own pattern and standards adapt to the development of society.