伪满时期日伪刑罚适用评析

Abstract

Manchukuo was established near northeastern district in March, 1932 by Japan as a puppet state and perished after Japan’s defeat in World War Ⅱ. During that 14 years, Manchukuo legislates laws, such as “The Security Police Act”, “Punishment of Rebels Act”, “Punishment of Local Rebels Act – Temporarily enact”, and “Bo-gap law-Temporarily enact”. In the mean time, there were many defects in the enforcement of the law. For example, laws were terribly cruel to anti-Japanese, the principle of legality was nominal, remolding of thought went against the subjectivist viewpoint of punishment, and Bo-gap law went against individual responsibility. This text is focused on the Manchukuo’s punishment that run counter to the criminal law, enforcement of punishment after trial, and standard for enforcement of punishment. 1. The Assaults Committed by Manchukuo(Cruel punishment for criminals) There had been two types of criminal offence in Manchucuo. One is that occurs between ordinary people. The reciprocal damage will be punished in any society. The other one is anti-Japan activity that can be deemed as a criminal act by the Japanese Empire, and also can be deemed as courageous resistance for Chinese. For these acts, Manchukuo treat them as a special criminal act and enforce punishments.2. The Principle of Legality(Just a tool of punishment) Manchukuo’s criminal code declares ‘the Principle of Legality’ in Article 1 but theory and practice are not the same thing. The Principle of legality requires both formality and substantivity. For example, according to the Article 2 of ‘Punishment of Local Rebels Act – Temporarily enact’, it sentences of death for all of these: crimes against public, murder, robbery, piracy, rape, and abscond. These cruel punishments are totally against the Principle of Legality and equity of crime and punishment. 3. Remolding of Thought(Against subjective viewpoint of punishment) The development history of theory of punishment is a competition between old-school and new-school. The old-school, in a subjective viewpoint, has based on the punishment in retribution and criminal liability for offender of legal interest. However, the new-school has adhered to objective viewpoint and put the criminal liability in the physical threat that occur from the criminal act. In an aspect of punishment, old-school has countenanced the punishment based on risk of the criminal act, but new-school has desired the prevention of repeated crime, the basis of criminal liability expands infinite. 4. Bo-gap Law(Emphasizing group responsibility) In the Criminal Law, responsibilities have been developed from group responsibility to personal responsibility, from consequences to subjectivity, and in modern society, responsibilities are recognized as all personal and subjective responsibilities. In Article 9 of “Bo-gap law-Temporarily enact “regulates the contents about the anti-personal responsibilities in modern society. In conclusion, during the 14 years of Manchukuo, these criminal laws were mostly focused on establishing the order with suppressing anti-Japan groups, and scarcely focused on general criminal acts.