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9 Peking U. L.J. 1 (2021)

handle is hein.journals/pekulj9 and id is 1 raw text is: PEKING UNIVERSITY LAW JOURNAL 2021, VOL. 9, NO. 1, 1-21 https://doi.org/10.1080/20517483.2021.1978676 Routledge Taylor & Francis Group 8 OPEN ACCESS Drafting a commentary on the Chinese Criminal Code - German reflections on a Chinese desideratum Michael Bohlanderabc aChair in Comparative and International Criminal Law, Durham Law School, Durham UK; bInternational Co-Investigating Judge, Extraordinary Chambers in the Courts of Cambodia, Phnom Penh, Cambodia; Judge, Kosovo Specialist Chambers, The Hague, The Netherlands ABSTRACT KEYWORDS Chinese criminal law scholars have increasingly been establishing Chinese Criminal Code; code links with colleagues in other jurisdictions and drawing benefits commentary; German from comparative research, and more than anything else with commentary tradition; those from Germany. This appears to be based on the fact that academia and practice both Germany and China are at their core civil law systems, and that German scholarship in criminal law tends to have historically had, and still to have, a reputation abroad for a high degree of doctrinal sophistication that may appeal to other legal systems with a similar conceptual DNA. One major factor which keeps recurring in the recent Chinese debate is the dramatically increasing level of interest in a particularly Teutonic tool of legal scholarship, the code commentary. This paper will first interrogate the development of the debate in China about the introduction of commentaries, followed by a look at the German system in particular, in order to find out whether and how it might benefit the discussion in China. Finally, against that background the paper will try to map out some of the conceptual challenges a Chinese endeavour will face, given the current climate of a gradual paradigm shift from the overcome Soviet-based law to a new framework that is, however, still lacking sharp contours. Introduction Chinese criminal law and its reform have been in the focus of Western comparative research and writings for a long time. In more modern times, comparative engagement - in many instances aided by Chinese scholars - took place from the late nineteenth and early twentieth centuries in the pre-Republic reform period until 1949, and that period has still been the object of more recent research.' Coverage in Western academia CONTACT Michael Bohlander michael.bohlander@durham.ac.uk 'See, for example, Ernest Alabaster, Notes and Commentaries on Chinese Criminal Law (Luzac & Co., 1899) (reviews at (1900) The Journal of the Royal Asiatic Society of Great Britain and Ireland 148 ff. and P Fauconnet, Review of: Ernest Alabaster, Notes and Commentaries on Chinese Criminal Law, Luzac & Co., 1899, L'annee sociologique, T.4 (1899-1900) 398 ff).; Gustavus Ohlinger, 'Some Leading Principles of Chinese Law' (1910) 8 Michigan Law Review 199 ff.; 'The New Chinese Criminal Code' (1914) 5 Journal of the American Institute of Criminal Law and Criminology 598 ff.; Chi-Yu Cheng, 'The Chinese Theory of Criminal Law' (1948) 39 Journal of Criminal Law and Criminology 461 ff; Geoffrey MacCormack, 'Law and Punishment in the Earliest Chinese Thought' (1985) 20 Irish Jurist 334 ff.; Robert © 2021 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way.

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