The Debate on Rehabilitative Measures in the Enactment Process of the Criminal Code of the Republic of China

Throughout the process of developing modern Western-style criminal law in China since the late Qing period, the principle of legality in criminal law was always emphasized. Establishing the new chapter on rehabilitative measures in the Republic of China’s Criminal Code enacted and promulgated in 1935 (the 1935 Criminal Code) implied that the provisions that could be inconsistent with the principle were established in 1930s China. It was not a big change in fact, as many such provisions were already contained in the 1928 Criminal Code or earlier versions. Moreover, it could not be said to be a great departure from the principle, compared with the cases of Germany, Italy, and others, because the new chapter focused primarily on dealing with criminal conduct by persons of irresponsibility or limited responsibility. The creation of the chapter on rehabilitative measures was not simply an imitation of foreign laws but rather a selection and adjustment of the institutions necessary for China at the time. Discussions concerning rehabilitative measures had been ongoing among Chinese jurists even before the 1928 Criminal Code, which might have influenced the creation of the chapter, while the content of the rehabilitative measure provisions was not a major topic at the Legislative Yuan meetings. As evidenced by the differences in temperature between those discussions, much work remained to be done regarding the implementation of rehabilitative measures. Full-fledged implementation was difficult considering the actual situation in China at that time, and it could be said that although the provisions of rehabilitative measures were prepared in the code, the consideration of specific methods for their implementation was postponed.