Die Rezeption der deutschen Strafrechtslehre und Strafvorschriften in der VR China

Abstract

The possibility and content of reception of German criminal law in China and the problem of the application of German legal dogma are examined in this article. The possibility of reception refers to the advantages of pervasive dogma in the German criminal code. This pragmatic quality has played a significant role in the reception of the German criminal code in Japan, South Korea and Taiwan. As for the content of reception, it is shown that Chinese criminal law does not proceed from a formal definition of crime. Thus the principle of punishment according to guilt and the principle of legality are proposed for reception; the introduction of sections establishing mistakes of fact and law, omissions and abolishment of the possibility of analogy in criminal law are also proposed. Further additions to fill the gaps in the Chinese penal code are indispensable. Lastly, the problem of application, i.e. the "kneading process" is explored with particular regard to the cultural differences in ways of thinking.