Drafting a commentary on the Chinese Criminal Code – German reflections on a Chinese desideratum

Abstract

Chinese criminal law scholars have increasingly been establishing links with colleagues in other jurisdictions and drawing benefits from comparative research, and more than anything else with those from Germany. This appears to be based on the fact that 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.