On the Principle of Economic Criminal Law andocial Function among the Criminalization of Misuse of Payment Cards
Date Issued
2009
Date
2009
Author(s)
Wang, Jiang-Jia
Abstract
This seven-chapter dissertation, On the Principle of Economic Criminal Law and Social Function among the Criminalization of Misuse of Payment Cards, aims to explore the criminalizing process of the misuse of payment cards as well as to dig out the true meanings behind such process.o solve the so-called “payment cards crime” and relevant emerging worsening social problems, Taiwan, Japan and Germany have made amendments in corresponding articles of their Criminal laws in recent years. The core conception of these amendments, in a larger sense, derives from the protection of the function of payment cards system. Specifically, to keep up with the development of technologies in this Information Era of modern society and the ever-expanding functions of payment cards, punitive measures of criminal law become urgent and inevitable to protect the civil contract relationship and to prevent high system risks therein.n a larger sense, these criminalization processes and legislations also reflect the changes of the purposes and functions of criminal law. Since 1970’s, the protective function of legal interests in criminal law have gradually emerged and become a supplement to the traditional punitive functions of criminal law. This trend can be observed especially in the phenomena of the legislation of economic criminal law.ake the legislation of payment cards crime for an example. It not only challenged the conventional role of criminal law in this modern risk society, but also protected the order of economic system which stems from the essence of capitalism. On the other hand, the self-limitation feature of traditional theory of criminal law has its role to prevent the legislative protection of payment cards system from going too far. To resolve this dilemma, the author adopted a new methodology, the functional system analysis, which has two origins. One is the system theory of the German sociologist N. Luhmann who regarded law as a whole and and autopoietic (self-productive) system. The other is the theory of functional analysis adopted in criminal law in 1970’ by scholars both in Japan and Germany.n chapter one, the author illustrated his methodology in detail. Since the criminal law can be observed from the social communication system perspective and the autopoiesis system perspective, the author analyzed the payment cards problems in the following four dimensions: of interpretation, of social function, of criminal policy and of idea and value.n chapter two, the author compared and analyzed the criminal policy and interpretation of articles in the criminalization of payment cards crime in Taiwan, Japan, and Germany. The author further confirmed the necessity of the deeper vision of criminal law, which led to the next three chapters.n chapter three, the author firstly analyzed the relationship between the criminal law and the modern society. From the view of legal sociology, the functions of criminal law which were influenced by the theory of modern risk society have been expanded and extended, so has its role been essentially changed from mere punishment to crime-prevention and the protection of individual safety as well as the security of the whole society. However, this change did bring conflicts in criminal law. The most obvious examples are large amount of legislations of economic criminal law which can be found in the aforementioned three nations after 1970’.n chapter four, the author described the system of economic criminal law. After World War II, with the fast development in economics and technology, a lot of economic crimes have dramatically occurred. To maintain the order of economics, which can be generally identified to competitive order of Capitalism, the economic law and criminal law have got their important positions, so did the payment cards get unique roles because the payment system surrounds payment cards has become an inevitable ring of economic environment.n chapter five, the author analyzed the essential function of payment cards. As mentioned in earlier chapters, the systems of law and economics are both regarded as communication systems and the payment cards are functioned as the medium of communication between traders and actors in the society. On the other way, there were several media which have been also protected by criminal law. All of their functions stem from money which is the basic component of economic system under Capitalism. Besides money, documents, securities and even payment cards play their media function role in social communication. In this Information era of modern society, this functional media have become more and more symbolic , complex and convenient, therefore follow the risks as well. So the media function of communication in the society justifies the criminal punishment to the misuse of payment cards. But such kind of functional protection is not unlimited. Since it is criminal law, there are traditional self-limitations in it. These are the original values and ideas of criminal law system.In chapter six, the author made a deeper inquiry of the methodology mentioned in Chapter 1. The system functional analysis is not only for payment cards but also for the entire criminal law, economic criminal law and this modern society. Two independent and autopoietic systems can only communicate with each other by a special way called ‘coupling’. And only through reflection to system self (closed), it can be opened to other system or outer society (i.e. environment) and resolve conflicts and troubles for the whole society. From this viewpoint, the theory of legal interests and the ultima ratio principle are key concepts for criminal law. n chapter seven, we re-analyze the protective necessity of payment cards system. In the view of outer and inner criminal system, integrating the consideration of function and self-identity of system, the author tries to explain the dilemma of criminal law in modern society and provides a better way for criminalization of payment cards.
Subjects
payment cards crime
economic criminal law
functional analysis of criminal law system
protective function of criminal law
system theory
risk society
SDGs
Type
thesis
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