中華民国刑法改正過程における保安処分論議

It was in 1928 that the Republic of China put into effect a new criminal code during its Nanjing Decade, which was further revised in 1935. Within this revision process, the drafting of a new section on security measures became an important topic. While the research to date has argued that the adoption of security measures was contemplated either for the purpose of upholding the Guoming-dang’s dictatorial powers or in consideration of international trends of the time, the author suggests that both views need to be reexamined and thus focuses the present article on the debate that was carried on throughout the criminal code revision process during the Nanjing Decade, in order to deepen the analysis of the backdrop on which the section on security measures was established. Leading up to the enactment of the 1935 Revised Code, after the setting up of a Criminal Code Commission in 1931, the revision work began with a study of the criminal codes of various nations, the gathering of expert opinions in both the fields of jurisprudence and law enforcement and a field survey of China’s judicial and correctional systems, followed by the completion of a draft of the revised code, which was then submitted to the Ministry of Legislation for deliberation, lasting between October and December of 1934. The discussion concerning security measures under them that had already been conducted by legal experts prior to the enactment of the 1928 Code would greatly influence the establishment of the new section to the Revised Code. While that discussion had lauded such points as a concentrated emphasis on the rehabilitation of criminals under the measures, concern was expressed about the difficulty in enforcing them and the risk and harm posed by the government’s arbitrary actions concerning them; however, the deliberators at the Ministry of Legislation, marked by differing degrees of enthusiasm about such problems, failed to address them. That being said, in the end, the inclusion of the section of security measures shows a rising of consciousness among both jurists and legislators concerning the function of the criminal code in social defense and correcting the practice of incarcerating criminals on an indefinite basis. Therefore, in this sense, the new section did not blindly follow contemporary international trends, but rather was written based on serious discussions about the real situation that existed within Republican China.