THE LEGAL SYSTEM OF THE PEOPLE'S REPUBLIC OF CHINA

Information on the legal system of the People’s Republic of China

(PRC) available to outsiders has always been limited; in the years since the

onset of the Cultural Revolution in 1966 it has been even more meager. Prior

to the Cultural Revolution outsiders gleaned information primarily from

articles in mainland newspapers, from a small number of articles on legal

topics appearing in legal and non-legal journals, and from a limited number

of legal monographs, including statutory compilations presenting what ihe

regime considered to be its most significant legislation. During the Cultural

Revolution coverage of the legal system in newspapers appeared mainly in the

semi-underground tabloids published by various Red Guard organizations, not

the major official newspapers, and consisted largely of statements of the

radical critique of the personnel, practices, and theoretical approach of the

public security (police) organs. In the years since the Cultural Revolution

the newspapers have been practically silent on the subject of law and the legal

system. Along with other academic journals, China's law journals ceased pub¬

lication during the Cultural Revolution; while the publication of journals in

some areas, such as public health and archaeology, has since resumed, no law

journal has appeared. The publication of legal monographs, which had never

been sizeable, had been dwindling in the years before the Cultural Revolution

and of course ceased during the Cultural Revolution itself, when publication

in the PRC was devoted almost exclusively to works by or about Mao Tse-tung.

We know of only two legal monographs which have appeared in the post-Cultural

Revolution period, one a compilation of water transport regulations and the

other a compilation of harbor regulations; both of these compilations being

confined to narrowly technical subjects, neigher touches upon the areas of

the law in which most outsiders are interested* Since 1964 no new volume

has been added to the basic statutory compilation which gave comprehensive

treatment to all areas of Chinese law*

Since mainland publications have not included discussion of legal topics

in recent years, we have become almost entirely dependent for our information

upon the facts and impressions Western visitors glean from conversations and

tours in the PRC. Though the degree of the control may vary from visitor to

visitor, it nonetheless remains basically true that PRC officials control what

the Western visitor learns about the legal system; the control means that our

knowledge is incomplete, even sketchy, and, as alyays, the incompleteness

entails distortion of the reality of the whole. Ifee reader should regard

these statements about the source of our information as caveats to bear in

mind when assessing the description of the legal system that follows,

Prom the information available including a few reports by Western visit¬

ors to the PRC, some of them specialists in Chinese 1*«, one pieces together

a picture of a situation in which extra-judicial groups are playing a major

role in the resolution of conflictual situations, both civil and criminal,

while the scope of the activities of the courts has been reduced, and in which,

in overall terms, the importance of law, legality, and legal institutions, as

conceived bf by most Westerners, has beenddowngraded to the point of becoming

an area of practical non-concern for the time being* These accounts indicate

that, as before the Cultural Revolution, a variety of extra-judicial groups,

3-

including those termed ’’mediation committees,” dispose of most interpersonal

disputes and instances of misbehavior and handle At least the initial stages

of civil matters such as divorce. While the Chinese discuss the activities

of the extra-judicial institutions willingly and extensively, the role of the

courts in the post-Cultural Revolution period, especially in criminal matters,

has largely been hidden behind a veil of official silence. One Western

visitor, Jerome Cohen, the arvard specialist in Chinese law, stated that the

jurisdiction of the courts "seems virtually confined to reviewing serious

criminal cases—how cursorily, one cannot say," but he did not provide any y specific substantiation of his statement. Chinese officials and hence

Western visitors are also generally silent on the present scope of and pos¬

sible controls over the activities of the public security (police) organs.

While one report that the procuracy had been abolished in the 1960*3 seems ?/

to be groundless, it is true that the procuracy Is no longer being mentioned,

leaving one to wonder to what extend the functions of the procuracy are being

discharged,

Unlike university education in other disciplines, legal education has

not resumed since its suspension during the Cultural Revolution. Western

visitors, with few exceptions, have been denied permission to meet law

teachers and researchers. The Institute of Law of the Chinese Academy of

3/ Sciences was reported in mid-1972 not to have resumed its reaearch,

y* Layyers were reported to have vanished as a producing professional species.

In a report published in the New York Times on November 25, 1973,

C. L. Sulzberger excerpted general statements on crime and punishment made by

-4-

two Chines© officials during separate conversations with him; these statements

do not reveal any striking departures from the preOCultural Revolution

situation. Chu Mu-chih, a member of the Central Committee of the Chinese

Communist Party and head of the official New China News Agency, explained

that crime was not reported in the press because it was "not in the mainstream

of life." Chu continued:

We let the people know about such eases by other methods, In our country, if there is a serious criminal case it is not just a police matter. The masses take part in investigating it. A court, when making judgment, explains its views to the people and they explain their reactions. We do not have a jury system, In major cases the public sometimes puts out public notices [apparently about its attitude toward the crime]*

Chu indicated that capital punishment, generally by shooting, was still

carried out in the ease of serious crimes, but that there existed, as before,

the possibility of postponement of execution for one or two years pending

evidence of rehabilitation; the sentence was immediately executed, however,

if the crime disgusted the people, Another official, Tu Chin-chang of the

Yenan revolutionary committee statedtthat thieves were dealt with by the public

security organs, but were released "after criticism and education" of unstated

duration, "Class enemies or those cases of rare refusal to recant," he stated,

however, were jailed. Without commenting upon the activities of the courts,

Chu indicated that the judges in his area were elected by the people. If

such is the case in Yenan and elsewhere, the 1954 Law Governing the Organization

of the Courts is no longer being applied, for it calls for election by the

people's congress of the corresponding level in the case of court presidents

and appointment of lwwer level judges. Sulzberger reports that "there are no

longer any career judges."

«»5—

Further evidence of the current situation in criminal justice on the

mainland is contained in a seemingly genuine document published by the

Nationalist Chinese in Chung yang flih pao [Central Daily News, Taipei] on

October 24, 1973* The document, dated August 5, 1973, is alleged to be a

reproduction of an announcement of the Tientsin Municipality Intermediate

Peopled Court. It reports the sentencing of 29 persons to terms ranging

from 15 years imprisonment to life imprisonment or to death. Most of the c

crimes described involved sexual offenses against young women sent to the

countryside to participate in labor. The document makes no statement about

any trial proceedings which may have preceded the sentencing. (ne gathers

from the brief description of the various offenses that very similar acts

received varying sentences. For example, one man who was the head of public

security and concurrently the responsible person of the Woods and Carden Corps

of a commune near Tientsin was said to have committed adultery and to have

raped two young women between 1970 and 1972; he was sentenced to death and

immediately executed. Another sprson who was in charge of the commune kiln

was said to have taken advantage of his post and used false pretenses in the

rape of a young woman whom he subsequently forced to continue to participate

in the sexual relationship and for whom he made abortion arrangements; his

sentence was 15 years. ; The document does not cite a statute as being the legal

basis of the punishment, [As far as we know, the PRC does not have a statute

prescribing punishment for major crimes such as murder, arson, and rape, unless

it can be demonstrated or construed that they were committed for counterrevolu¬

tionary purposes, in which ease they would come under the 1951 Statute on the

Punishment of Counterrevolutionary Activity expressly or by analogy to a

specified crime]. If the death sentence mentioned above was carried out

immediately, it was in disregard of the provision of Article 11 of the 1954

Law Governing the Organization of the Courts [hereafter referred to as the

Court Law] that the judgment of an intermediate court in a case of capital

punishment must be submitted to the higher people*s court for approval even

If no party appeals or applies for re-examination, llie document indicates,

however, that the sentences were approved by the Tientsin Municipal Revolu¬

tionary Coianittee. The involvement in the sentencing of the municipal revolu¬

tionary committee, which is the executive organ of the city government, is

also not in accordance with the provisions of the Court Law, While this

1954 statute provides that ’’the people’s courts administer justice independ¬

ently, subject only to the law," it also specifies that local people’s courts

are responsible to and report to local people’s congresses. The court in this

instance seems to have become openlyaaccountable instead to the revolutionary

committee, perhaps in part because the local people’s congresses may not have

been convening.

A Hovember 11, 1973, report in the New York Times contains statements

about the activities of the courts in divorce cases, but the account is not

clear on the courts* role. In describing the course of a hypothetical request

for a divorce, Hsueh Pao-hua, identified as a graduate of the National Politi¬

cal Science and Law School in Peking and a senior judicial official of

Kwangtung province, Indicated that the couple first would discuss the

7-

possibility of divorce with the mediation committee in their place of resi¬

dence • If the mediation committee decided against divorce, Hsueh stated,

the spouse wanting the divorce would have the right to bring the r$4u®st to

the court. At another point in the article, however, he is reported to have

stated that, in the case of marriages which the mediation committee has

decided cannot be saved, the couple goes to register their separation with

the district or commune revolutionary committee, which "examines the case and

determines whether the marriage can be saved through reasoning and education."

It hence is unclear whether the revolutionary committee or the court teas the

power to make the final determination in divorce cases. Jerome Cohen wrote

in 1972 that "street revolutionary committees in Peking and Shanghai reported

fcbt only that they were now charged with responsibility for registering mar¬

riages and uncontested divorces (previously the task of the superior city

district government) but that they also had the power to grant divorce even

if one of the^spouses opposed it (a power previously enjoyed exclusively by

the courts).”

The one description we have of divorce proceedings in a court indicate

that they differ very little from what we know of the activities of the extra¬

judicial groups. One of the rare Westerners permitted to enter a mainland

court observed a divorce hearing. The hearing before the judge took place in

the factory where the husband was employed, with friends and co-workers

participating in the proceedings, in large part by voicing ideological criti¬

cisms of the couple’s difficulties. The couple’s relationship was not an

example, in the view of their friends, of the proper socialist outlook, as it

-8-

included the husband’s past infidelity and beating of his wife and the wife’s

refusal or inability to refrain from condemning her spouse’s infidelity in

terms that provoked his attacks. The judge in this instance denied the

divorce, and the couple pledged to improve their attitude toward their marriage.

This ruling seems to confirm the statement of the Kwan&tung judicial official

mentioned above that in China ’’divorce is not granted lightly.” The official

is reported, however, to have added that the courts took into consideration

§J whether "feeling existed between the husband and wife.”

While taciturn in recent years about the activities of the courts, the

Chinese have eagerly displayed the activities of the extra-judicial groups

which participate in the resolution of conflictual situations. Communist

Chinese society is highly organized. Every person is a part of one or

several organizational networks by virtue of his place of residence, his

place of employment, his age groups sex, or interests, and any or all of

these organizations can be mobilized to participate in the disposition of a

troublesome situation in which he is involved. The two groups that are most

frequently mentioned as participating in the extra-judicial disposition of

disputes and misbehavior are the street revolutionary comaiittee, including

the residents’ committees subordinate to it, and the mediation committee men¬

tioned above by the Kwangtung judicial official in connection with the handling

of a request for divorce. The establishment of the street revolutionary

committee (known as city street offices prior to the Cultural Revolution), the

residents’ committees, and the mediation committees was called for in three

separate statutes all issued in 1954, and these groups still appear to be

functioning essentially according to the provisions of these statutes.

The area with thich a street revolutionary committee is concerned is

usually co-terminous with the area of a public security station; the popula¬

tion within wuch an area my be as high as 65,000 people. The members of the

street revolutionary committee, who under the provisions of the 1954 statute

were to be appointed by the executive organ at the ubban district level,

assist the municipal government in the management of activities related to

matters including education, medical care, sanitation, welfare, production,

§/ service facilities, and political propaganda. Each street revolutionary

committee is assisted in its work by a number of residents* committees, defined

by statute as '’mass, autonomous residents* organizations,” established with

reference to an area generally including from one hundred to six hundred

households. The tasks with which residents’ committees are specifically

charged include mediating disputes among residents; since the street revolu¬

tionary committees are responsible for guiding the work of the residents’

committees, they too would become involved in mediation of disputes. In the

rural communies there exist groups comparable in function to the city street

revolutionary and residents* coramittees.f

Cenwtal rules for the establishment of mediation committees in urban

and rural areas were enacted in early 1954. Although it has been stated that

these mediation committees apparently were absorbed into the structure of the

street revolutionary and residents* committees subsequently established in the

2/ urban areas, one recent report suggests that at present a network of media¬

tion committees exists throughout China at the production brigade level in the

10-

countryside and the street eommifcteslevel in urban areas in an imprecisely

defined relationship to the various organs of government at these and higher

levels. Whether or not the mediation committees exist as separate, formally

constituted entities or have had their functions assumed byobther structures,

such as the residents' committees, is not a question of major importance here,

for the evidence seems to indicate the extra-judicial disposition of disputes

and misbehavior proceeds along the same lines regardless of the group conduct¬

ing it,

10 According to the 1954 rules on the establishment of mediation committees,

the tasks of these committees were to be the mediation of ordinary civil disputes

among the people and minor criminal cases and the conduct of propaganda-

education concerning policies, law, and decrees. Their three to eleven members

were generally to be elected in the cities by representatives of the residents,

under the direc tionoftf the basic level people’s governments, and, in the

countryside, by the people’s congress of the village [the commune has since

replaced the village as the basic unit in the countryside]. As to the actual

conduct of mediation, the rules specify only that mediation must be in compli¬

ance with the policies, laws, and decrees of the people’s government, and that

the agreement of the parties must be obtained without coercion.

Bone of these 1954 statutes authorizes an extra-judicial group to impose

sanctions of any sort in their mediation activities, but it seems clear thaty

they have at their command a variety of sanctions, regarded as non-criminal,

involving varying degrees of social pressure, mandatory self-criticism and

11/ ideological education, and supervision of labor, In addition, as Cohen

points out, because the members of these groups also have responsibility for

the provision of a variety of social services and have ties with the public

security organs, their recommendations are likely to carry some weight even w in instances in which no specific sanction i® attached. Article 9 of the

1954 rules establishing the mediation committees provides that a people*s

court is to correct or annul actions of the mediation committees which

violate policies, law, or decrees, but the rules do not spell out how the

violation is to be brought to the court*s attention. The Kwangtung judicial

official mentioned above also indicated that the courts could reverse a ruling

of a mediation committee regarded as contrary to the laws of policies of the

Communist Party or the government, but he too did not indicate the manner in

a/ which such a reversal would be brought about. Imposition of the more

stringent sanctions at the command of these extra*judicial groups apparently

requires the prior approval of government and pacrty officials5 the Chinese

regard the Involvement of these officials in the mediation process as reduc¬

ing the risk of arbitrariness of sanction.

The extra-judicial groups are said to settle disputes andhhandle anti¬

social behavior primarily with a view toward the welfare oftthe socialist

collective involved. The process apparently begins with analysis of the dispute

or misbehavior from the standpoint of the official Ideology in order to deter*

mine in what sense the party or parties involved are falling short of proper

socialist conduct. The mediation may be conducted by onepperson, by several,

or before a committee, with friends and co-workers also participating* In

addition to hearing criticisms and suggestions from others, the person involved

•12

is expected toooffer his own criticisms of his behavior* Sanctions typically

involve self-criticism offered in greater and greater detail before larger

and larger groups, according to the seriousness of the problem being consider¬

ed, and the necessity of having one*s activities subjected to the scrutinyyoff

others at varying intervals.

The Chinese view the extra-judicial disposition of disputes and misbe¬

havior as having several advantages overccourt litigation. First, because the

mediation is conducted in the area of residence of the parties involved, the

parties do nothhave to take off as much time from work, and so production

does not suffer. Secondly, because the mediators are themselves residents of

the area in which the patties live, they are litetely to have some acquaintance

with the overall situation of the parties involved and will not arrive at a

position based upon narrow consideration of the immediate issues. Third, the

mediators can rely upon their own physical proximity and their ability to

mobilize other area residents in the application of social pressure on the

party or parties found somehow at fault. They also will be in a position to

learn or witness what efforts the person is making to accept the results of

the mediation.

The major question qhich has always been posed with respect to the

activities of the extra-judicial groups in the point at which a dispute or

misbehavior becomes serious enough to warrant the attention of the public

security organs or the courts. While the recent reports of Western visitors

tend to suggest that the activities of the extra-judicial organs in the civil

and criminal process have increased iomewhat in the post-Cultur&l Revolution

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w period, they do not shed much light upon the tjtpes of disputes and mis¬

behavior now being handled by these groups * One hence wonders whether the

reported confinement of the activities of the courts to the review of serious

criminal cases has resulted in an increase in the activities of the extra¬

judicial organs or an increase in the activities of the public security organs*

The public security organs cams under attack early in the Cultural

Revolution and subsequently fell even further from grace in the eyes of the

more radical Maoists for having sided with the military in the suppression

of "revolutionary" activity* One would not be warranted to assume without

reliable evidence, however, that the hostility of the radicals to the public

security apparatus during the Cultural Revolution, coupled with a possible

expansion in the activitiesoof the extra-judicial groups in recent years, has

significantly reduced the role of the public security organs in the handling

of crime* In fact, the apparent lack of concern on the mainland with the

question of legality, coupled wth silence on the subject of the procuracy,

which was charged at least formally with supervision of the legality of the

operations of the public security organs, suggests that it is possible that

the public security organs may now be operating with an even freer rein than

before the Cultural Revolution*

The picture of the PRC * s legal system in the post-Cultural Revolution

period which emerges from the available information thus shows it as having a

dual aspect* On the one hand, there is said to be significant popular parti¬

cipation in the disposition of disputes and misbehavior by extra-judicial

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groups and by the courts. On the other hand, the courts are said to be deal¬

ing almost exclusively with serious criminal cases, quite possibly in a

manner which does not offer the accused even the limited protection against

erroneous conviction and arbitrary sentence provided by existing statutes.

Both of these two salient features of the present legal system evidence

the current predominance of what for the sake of convenience will here be

termed Maoist legal theory, at the heart of which lies precisely the notion

of popular resolution of most conflictual situations, coupfced with the imposi¬

tion of strigent punishment upon certain offenders by organs of the state not

subject to any set of standards curbing their freedom of action,

Maoist theory is at odds with many aspects of the legal system described

in the 1954 Constitution of the PBC and the various basic statutes governing

the courts, procuracy, and police, but it has grom the beginning been given

strong expression in the Communist Chinese legal system. Fence, although the

current s bate of the legal system of the PRC may involve many departures from

uhe s till nominally effective statutes which describe it, most of which date

from 1954, there is considerable continuity between the realities of the legal

system in the pre- and the poat-Cultural Revolution periods.

Che approach to law and the legal system that we have above termed

Maoist legal theory is a distinctive amalgam of traditional Chinese notions of

law, Marxist ideology, borrowings from the Societ Union, aspects of the thought

of Mao Tse-tung, and attitudes arising from adaptations to practical circum¬

stances. I'o weigh the influence of each element of the amalgam is a task of

considerable complexity, which her* will be avoided in favor of focusing only

■15

upon the aspects of the thought of Marx and Lenin and Mao Tse-tung which

have shaped the Bourse of development of the Chinese legal system.

Marx and Lenin rejected the notion of classic Western legal tteeory

that Justice ideally involves impartial laws lnpartially applied. To the

Marxis t-Leninist, law is an instrument which the ruling Has a uses in the \ ,

service of what it regards as its own interests* The rules of law are not V*

objective standards to which appeal is made in the case of conflict. Hie

rules of law do not lie outside of and transcend the interests of all the

classes in a society; they are expressions of the interests of that ciass

which is economically and hence politically dominant. The Marxist notion at

bottom is that all conflicts in the pre-Communist society are class conflicts

and that class conflicts are resolvable only by revolution. Prior to the

revolution, law is an instrument used by the ruling class to perpetuate the

status quo of oppression; subsequently, law is equally in the service of the

ruling class, but new it is used not to perpetuate capitalist exploitation,

but to advance socialism until communism is attained. With the advent of the

classless society of communism, law will "wither away,"

In keeping with this Marxist-Lenlsist conception of the nature of law,

Mao wrote in one of his major early essays, "©n the People’s Democratic

Dictatorship" (19^9)* that

[TheO army, police, and courts of theastate are instruments by which class oppresses class. To the hostile classes the state apparatus is the instrument of oppression. It is violent, and not ’benevolent.* 15/

The government of the PRC, Mao declared, was to be a people’s democratic

dictatorship in which the violence at the command of the state was to be

-16-

aimed at the class enemies who attempted to undermine the revolution, but in

which the "people," that is, those who supported the revolution, were to

enjoy the full freedoms of socialist democracy.

In another theoretical essay, published in 1957,in the wake of de-

Stalinization in the Soviet Union and an uprising In Hungary, Mfco elaborated

further on the concept of differential treatment of class enemies and the w people in the PRC, Mao postulated in "On the Correct Handling of Contra¬

dictions Among the People" that there we«e two types of contradictions (that

is, conflictual situations) in Chinese society: contradictions between the

people and the enemy, and contradictions among the people. Since these two

types of contradictions differed in nature, one being antagonistic to the

establishment of socialism and the other being non-antagonistic, they demanded

different types of resolutions. The antagonistic contradictions between the

people and the enemy demanded use of the coercive power of the dictatorship.

Mao stated: "In regard to the enemy, -the state] uses the method of dictator¬

ship, that is: It forbids them to take part in political activities for as

long asperiod of time as is necessary; it compels them to obey the laws of the

People’s Government and it compels them to work and to transform themselves w into new people through work,"

The dictatorial aspect of the people’s democratic dictatorship is not

to be subject to any eurbs upon Its actions. Chinese Communist jurists have

written In an important theoretical treatise that

18-

. . . force is a qualitative requisite for dictatorship. Another characteristic manifested by the dictatorship is that it is a regime unshackled by any laws or regulations. • * . Since laws and regulations are enacted by the ruling class and are instruments for the realization of dictatorship, if we say that the dictatorship is re¬ strained by law, then [our statement] will not be able to indicate that the dictatorship is the locus of the most powerful force oftthe ruling class, nor will it be bble to indicate that the dictatorship executes its business with the consideration of the interest of the ruling class in mind at all times. I ence we say the dic¬ tatorship is a regime unshackled by any laws. 18/

Within the ranks of the people, however, the method of resolution of

contradictions were to be democratic, that is, methods of persuasion and not

of compulsion. At the time of the writing (1957), the ’’people,” Mao stated,

comprised "all classes, strata and social groups which approve, support, and

work for the cause of socialist construction."

Such is the nexus of the thought that has been at odds with the realiza¬

tion in practice of the legal system outlined in basic organic statutes. The

tension between these basic Marxist-Leninist-Maoist motions and themmodel of

impartial justice outlined in t&feeorganic statutes varied in its intensity

from period to period, from type of case to type of case, and from case to

case of the same type, but the expression of the Farxist-Leninist-Iiaoist

theory was always sufficiently strong to have molded several of the more

salient features of the PRCfs legal system. An overview of these features

is as follows:

A conspicuous feature of Communist Chinese law has been a dearth of

statutes. Although a draft of a criminal code was circulated in 1955, and

plans for the drafting of a code of criminal procedure was mentioned, neither

>18'

appeared, and after 1957 the possibility of working of draft codes was no

longer discussed* The PKC hence has never had a code, substantive or proced¬

ural, criminal, civil, or commercial. Further, the major statutes of the

PRC are few, and there apparently are no statutes governing common crimes,

such as rape, theft, murder, and arson, Of greatest concern to the regime

have been the crimes termed counterrevolutionary, that is, those which somehow

are contrary to the existence of a communist government An China, For the

punishment of these crimes the Statute on Punishment for Counterrevolutionary

Activity was promulgated In 1951* Because what constitutes counterrevolution¬

ary activity is only nebulously defined therein and because provision is made

for its analogous application to crimes not specified, this statute has

bee cane the basic criminal statute of the PRC, and the regime has concerned

itself mainly with criminal,law. The vagueness of the definition of ’’counter¬

revolutionary activity” appearing tn this statute is also a characteristic of

Communist Chinese laws in general. Most are vaguely worded, loosely constructed

and brief to the point of sketchiness.

The deartii of statutes and the style in which existing ones are drafted

receive official justification. It would be premature and self-defeating,

spokesmen for the regime have maintained, to enact a corpus of law binding

upon a regime which must maintain maximum flexibility at a time when it is

still in a stage of learning from its own experience in creating a socialist

society, Iheysfcyle in which the laws that exist are drafted has been justified

in part as an attempt to insure that the masses understand the legal order with

which they are ejected to conform. The complex, technical style in which

—19"'

Western legislation is drafted has been heartily condemned as an attempt

to keep the law unintelligible to the masses and thereby to males it the

exclusive domain of a strati of lawyers who have something other than the

interests of the people at heart. Further, it has been maintained, Western

legal drafting creates the possibility of evading the intent and spfcfcit of

the law by finding a semantic or structural loophole. Finally, the Communist

Chinese have argued that Western style law tends to make the people litigious.

The statutory provisions notwithstanding, theprinciple of the indepen¬

dence of the courts has not been honored in Communist China with any consis¬

tency in practice or with any force in hheory. Far from being insulated

from political influences, Chinaee judges have been officially expeedid to

subordinate themselves to the policies oftthe Communist Party in general and

to the directives of Party officials in particular cases. The degree to which

the Party interfered directly in specific cases has barled over the years.

Before 1957, the year in which a campaign against "rightists," including jurists

who had called for adherence in practice to the statutory standards set for

the functioning of the legal system, was launched throughout China, the Party

generally interfered with a specific case when It felt that the case had

especial political significance, "political" being understood in broad terms.

Fhe frequency of Patty interference increased aftee the anti-rightist campaign.

According to a 195 ^ official treatise compiled by the Department of Law of the

19/ Chinese People's University in Peking, judicial organs must strictly observe

the wishes of the party committees regarding the examination and approval of

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cases and request Instructions from the committees. The decision of the

party committee, rather than that of the judicial cadres, Is to prevail In

cases of disagreement, and the fallowing procedure is prescribed:

If the cadres or organs assigned tohfcan&le the case consider

their opinions correct, they should positively and auto¬

matically submit such views to the party committee. If such

views are not adopted by the party committee, the dieis on

of the party committee must be resolutely obeyed. Of course

if necessary, the views [of legal cadres or organs] isgey by

presented to the upper level party committees and upper

level judicial organs for consideration. However, the

decision of the party committee must be obeyed. To disobey

the leadership of the party committee and to ignore its

decision are political errors. Intentionally not to submit views in time to the party committee is also a mistake

because the cases would thereby not be handled correctly, 20/

Except perhaps for the period during the Cultural Revolution when the

public security organs, procuratorates, and courts were under military control

and Party-military relations were steained to the point that the military

appeared to many to be an independent force in Chinese polities, the public

security organs and the procuratorates, and the courts have been under the

control of the Party, so that the system of checks and balances among these

organs defined in the organic statutes has functioned only to the degree and

only in the instances in which the Party choose to allow it to do so. Measur¬

ing that degree or defining those Instances is difficult; It can be observed,

however, that the functioning of the system of cheeks and balances among the

legal organs declined markedly after the launching of the 1957 anti-rightist

campaign. The extent to which it would have been allowed to operate to the

protection of an individual accused depended most likely on the nature of the

*is£X*

crime. The more "political" the crime, the fewer the guarantees the acused

enjoyed against arbitrary arrest, confinement, trAAl, sentencing, and

imprisonment.

Chinese jurists were explicitly expected to apply Mao’s theory on

contradiction to concrete cases under their consideration. One jurist stated

that in general most of the criminal cases which reached the court were mat*

ters of contradictions between the enemy and the people, hut since this was

not a hard and fast rule, every criminal case had to he first analyzed strictly

in accordance with a class viewpoint (i.e., it had to he determined whether

the accused was an enemy of the people or a member of the people). Similarly,

some civil eases were said to involve hiddenecontradictions between the enemy 21/

and the people.

The provision of Article 76 of the 1954 Constitution that the accused

is to have the right to defense is spelled out at greater length in the provi¬

sion of Article 7 of the Court Law that

[t]he accused, besides personally defending his case, may designate advocates to defend it, or have it defended byaa close relative or guardian or by a citizen recommended by a people’s organization or approved by the people’s court. The people’s court may also, when it deems it necessary, appoint counsel for the accused, 22/

Tung Pi-wu, in his 1956 report to the National People’s Congress as

president of the Supreme People’s Court, admitted that in some cases the right

to defense had been restricted or forbidden. At that time Tung stressed that

23/ interference with the right to defense must end, but, when the political

climate drastically changed in mid-1957, the concept of defense counsel’s

"•22-

being an important, even essential, part of the judicial process, was largely-

shelved. In i960 a Communist Chinese jurist remarked candidly that:

, ... this institution [provision of the right to defense] stipulates that during the trial at the tribunal, the accused (criminal element) in a criminal case is allowed to defend himself provided that he does not violate policy and law and that he does not twist the facts. This provision is intended* to further investigate and prove the criminal act of the culprit through trial and the criminal’s defense# Examining through defense a criminal element’s attitude toward the admission of guilt for his criminal acts facilitates our meting out his punishment. In conclusion, the sole purpose of the provision ’the accused has the right to defense’ is to deal a blow to enemies more mercilessly, accurately, and staadily. 24/

With the purpose of the presence of defense counsel being officially viewed

in this way, tKeeposition of the lawyer in the PRC, never firmly entrenched

despite the state’s sponsbrship for a while of a collectivized bar tiayppES’

25/ association), began a decline in the late 1950’s that has ended in the

1970’s in the apparent demise of the legal profession as It Is understood in

the West.

The Communist Chinese have not felt constrained to apply the existing

laws consistently in cases involving a similar set of facts or even to follow

systematically the Western pattern of attempting to identify similar sets of

facts and binding precedents. Even before the Cultural Revolution, it was not

uninown for mainland officials to dispense even with citing the statute for

the violation of which a person has been arrested and convicted. The para¬

mount consideration always has been implementation of party policy, not

consistent application of the law, for, in the phrase of the Communist Party,

-23-

policy is the soul of law. Since there have been relatively frequent shifts

in policy, there also have been rather marked disparities in the handling of

cases in different areas and at different times.

The Communist Chinese have generally consideredtthe Western preoccupa¬

tion with exact adherence to substantive and procedural provisions and precise

definition of the facts and questions of law immediately at issue to be a

narrow and overly technical approach. This approach, they believe, results

not in the realization of justice, but in the triumph of a petty and r$gid

insistence upon fulfilling the letter of the law over real advancement of the

true interests of both the society and the parties to a case. The Chinese have

argued that the valid approach is to view the crime in relationshiptto the

situation of the society at the time of its commission and to view the criminal

in relationship to the social circumstances which produced him. Also to be

considered is the criminals attitude toward his crime, for the Communists

have maintained that the sincerely repentent criminal conscious of the social

relevance of his criminal behavior should be allowed the opportunity to rehabil¬

itate himself. In the Communist view, narrow consideration ofafacts, questions

of law, and precedents, and fastidiousness about adherence to the letter of the

law cannot produce social justice.

There has beenffairly constant tension in the Communist Chinese legal

systemin other areas, between what is termed "redness" and "expertness,"

"Redness" signifies an enthusiastic regard for the ideological aspects of one’s

work, while "expertness" refers to mastery of its technical aspects. The

"red" cadre holds ideological considerations to be paramount in his field of

-24

endeavor, while the "expert” cadre holds that the technical questions are the

most important. The Communist Chinese have usually combined on the staff of

any given group both technical experts and Party cadres with no knowledge of

the subject area concerned, but with what are considered to be admirable

political and ideological views. The debate over the reiitive importance of

"redness” and "expertness" thus has often tended to become a struggle between

different elements within the group concerned.

These statements can be illustrated with respect to the legal organs by

an account of the attacks of the radicals, who are "red” in calling for maximum

participation of the masses in the legal process, on the public security organs

during the Cultural Revolutinn. The radicals charged that, under the influence

of the former Minister of Public Security, Lo Jui-ching, the public security 26/

organs followed the "OGRJ line," that is, a style of work which placed primary

emphasis upon the use of specialized investigating techniques by expert crimi¬

nologists and detectives. This line was characterized as "a half-breed descended

from Sherlock Holmes—watch-dog of the British bourgeoisie, the plainclothes

agents of the Kuomlntang reactionaries, and K'uang Chung, faithful bodyguard of

?Z/ the landlord class of China*s feudal society.”

Although "expertness" has at times been emphasized as a desirable quality

In legal cadses, "redness" has on the whole been preferred, and, at present,

seems to be clearly prevailing.

We&terners regard the years between the promulgation of the Constitution

and organix statutes 6n 1954 and the onset of the anti-rightist movement in

■25-

1957 as the "golden age" of Chineseliww. During this period, as never since,

the leadership openly proclaimed that legal cadres -were falling short of the

standards imposed upon them by statute and expressed the state*s determinationn

to bring the activities of all the legal organs into conformity with the

formal standards. The opan support of the leadership for the formal legal

structure and standards probably reached its height at the Eighth National

Congress of the Chinese Communist Party in 1956* At the ongress, Liu Shao-ch*i,

then Vice Chairman of the CCP Central Committee, called for strict observance

of the law by all state organs, absolute protection of the civilrrights of any

citizen not violating the law, and strict implementation by thellegal organs

of the system of division of function and mutual supervision in legal affairs.

Tung Pi-wu, then President of the Supreme Court, called for completion of the

legal structure, especially through enactment of codes and basic special

statutes* The shortcomings of the system shortly thereafter were denounced

by the more liberal Chinese jurists, many of whom had training in Western law,

when the leadership encouraged popular criticism of tfee regime as part of the

22/ now famous undred Flowers* campaign. When these critics of the legal

system were silenced in the subsequent anti-rightist campaign, a period &n

the history of Chinese law closed. At no time since have officials or jurists

voiced concern as publicly or a strongly about legality in the PRC as occurred

during the period between 1954 and 1957. While the standards set for the legal

system in the 1954 legislation not repealed nor directly denounced as a whi&e,

the official concern thereafter was not that they be fulfilled.

-26-

During the Cultural Revolution, howeger, the formal foundation of the

legal system was directly attached "by the radicals* A polemical essay appear¬

ing in July 1968 in a publication of a Canton Red Guard (Maoist) group in

effect dismisses the legal system areated in 195** as the counterrevolutionary

product of Liu Shao-ch *i, P'eng Chen, and Lo Jui-ching, in the following

terms:

Therefore, at the instruction of Liu Shao-ch*i, a law- making body was organized. Under the auspices of P‘eng Chen, the ’'Organic Law of Procuratorates and the Organic Law of Law Courts'' were cast forth In 195*** Following this, they created public opinion in a big way and clamored for ’strengthening the legal system,* The feudal, capitalist and revisionist sets of layyer and notary public system, legal procedure, judiciary proceedings, etc,, were adopted wholesale. Many bureaucratic organs were set up, and the old legal concepts were inherited and spread for the pnnpose of corrupting socialism and rival¬ ing the proletarian dictatorship, 30/

In addition to his other errors, Liu Shao-ch*1 thus became identified with

the legal structure created in 195** and with an approach to law and legality

that the radical Maoists regarded as anathema. It became apparent that a

Chinese Communist's approach to the legal system could be related to his

stance on a very basic ideological question. Depending upon one’s stance,

toward this question, one was identified as a Maoist or a follower of Liu

Shao-ch*i, The basic question was that of the class struggle in China.

With the basic completion of the socialization of agriculture and

industry by 1906, Liu is said tohaveheld, the primary task of the Party and

State Is no longer the suppession of classes opposed to socialism, but instead

the development of the country's economy in an orderly fashion. Previously, the

main contradiction in the PRC was that between the proletariat, that is, in

—2Y"

Communist Chinese terms, those groups which support socialism and the

bourgeoisie, those groups which oppose socialism. The main contradiction now

is that between the "advanced socialist system and the backward productive

forces of society." Since the enonomic base for the landlord and capitalist

classes has been basically eliminated, Chinese society win no longer be

rent by severe class conflict, and the state need no longer be primarily

concerned with rooting out counterrevolutionaries* The primary concerns of

the legal system hence will not be punishing counterrevolutionaries, but

instead protecting the civil rights and freedoms of law-abiding citizens in

the interests of maintaining a normal social life and fostering production.

For this purpose, we need adequate substantive and procedurall&aw&a&d strict

observance of the law by everyone, especially those in power in the State and

the Party* As a model for our lews, we can look to the various codes of the

Soviet Union. To draft, imp!ament, enforce, and apply these laws, we need

trained specialists.

Liu’s doctrine of the extinction of the class struggle aas anathema to

the Maoist. To them the main contradiction in Chinese society fees remained

that between the bourgeoisie and the proletariat, despite the fact that the

economic base for the existence of class enemies, that is, the system of

private ownership, has been eliminated. The Maoists have identified class

enemies not by their ownership or even necessarily their former ownership of

private property, but by their holding certain views which, if given expression,

would undermine the socialist system in China and lead to an attempt, though

a futile one, to restore capitalism.

As long as class struggle has not been extinguished, Mao holds, the

main taskoof the Party and the State remains the suppression of class enemies,

for their activities threaten the very existence of the socialist system in

China, The legal system hence must continue to be primarily concerned with

the apprehension and punishment of counterrevolutionaries, and the Marxist-

Leninist-Maoist features of the law described above must be emphasized.

The conflict over the nature of the law and the legal system that came

into the opendduring the Cultural Revolution has not been fully resolved in

the People1 s Republic of China, even though Liu Shao-eh*i has been completely

removed from power. Rather than having been resolved, the whole question of

law seems to have been put into abeyance. The 1954 statutes defining the

legal structure and standards have not been formally abrogated and supplanted

by new ones embodying a proper socialist legal order; but, at the same time,

many of their provisions are no longer being obeeeyed. Ihe system that exists

is essentially that envisioned by the Maoists in that its salient features

are presented as being significant participation of extra-judicial groups

using basically persuasive techniques in the resolution of conflicts and the

disposition of cases of serious crime by courts and police in a manner which

does not suggest that either is operating under a set of strict procedural

controls.

While all groups within the leadership (radicals, moderates, and military)

appear to give at least tacit approval to the existence of such a system, their

silence about law and the legal system may be as much an indication of

conscious avoidance of the issue as genuine approval of the existing system.

-29-

The issues that crop up in any discussion of what should he the nature of the

law and thelAegal institutions are, in fact, -very basic issues that affect

other political areas which are known to be sensitive, he controversy between

the Maoists and those identified as followers of Liu make it apparent that

taking a stance toward the legal system necessitates taking a stance toward

what is the basic contradiction in Chinese society. Since a leaderfs defini¬

tion of the basic tasks of the party and State flows from his definition of the

basic contradiction, it may be that the figures in the reportedly unstable

leadership coalition are postponing the fundamental decisions about the legal

system in order to avoid having th take a clear-cut stance toward what should

be the tasks (i,e», policies) of the state and party*

Themaatter of the law and the legal system received no mention at the^

10th K&tion&i Congress of the Chinese Communist Party held in August 1973*

The silence was significant, for law normally has been a topic for discussion

at the Congress, It seems unlikely that the question of the future nature

and role of law In Chinese society will be opened for public discussion by the

leadership as 3>ong as the leadership itself is comprised of an essentially

unstable coalition of various groups held together in large part byaa common

allegiance to the aged Chairman Mao#

one cannot assume that all groups within the leadership fully support

the legal system in its current form. But one would be unwarranted to assume

that any of these groups, if given full and free rein, would introduce oi

aeinstitute basically Western features, such as the adoption of codes, increased

-30-

actual independence of the judiciary, a meaningful system of checks and

"balances among the legal organs, etc* 'there isnno evidence to suggest that

any group within the leadership regard the lack of expression or minimal

expression of these Western features in the PEC’s legal syst ms as being its

in^portant flaws*

Prepared by Kathryn A* liaun jv Legal Research Assistant Far Eastern Law Division Law Library, Library of Congress Washington, D.C* 205^0 June 1974

FOOTNOTES

1/ Jerome Alan Cohen, "Chinese Law: At the Crossroads," China Quarterly, No. 53 (January/March, 1973), p. 139- ——

2] Charles Sulzhurger mentions the supposed abolition of the procuracy in a report in the New York Times on November 25, 1973- The report seems to be groundless since the 1970 Draft of the Revised Constitution of the Peopled Republic of China still contained a brief reference to "the exercise of procuratorial and trial authority" and since late in the Cultural Revolution the radicals continued to include the procuracy in their calls for the smashing of the legal orgpns.

3/ Cohen, "Chinese Law: At the Crossroads,” p, 140.

4/ Ibid.

5/ Ibid., p. l4l.

6/ New York Times, November 11, 1973.

jjj The text of the Act of the PRC for the Organization of City Street Offices, promulgated by the Chairman of the People's Republic of China on December 31, 195}+, is in Chung hua jen min kung ho kuo fa kuei hui pien [Compilation of the Laws and Regulations of the People’s Republic of China] Vol. 1, Peking, 1956, p. 171-172. The text of the Act of the PRC for the Organization of City Residents' Committees, promulgated by the Chairman of the PRC, December 31, 195^+, is in the same source, p. 173-175. The Provis¬ ional General Rules of the PRC for the Organization of People’s Mediation Committees is in Chung yang jen min cheng fu fa ling hui pien [Compilation of laws and decrees of the Central People's Government], Vol. 5, Peking, 1955, p. 47-48.

8/ Cohen, "Chinese Law: At the Crossroads," p. l4l.

9/ Jerome A. Cohen, The Criminal Process in the People's Republic of China 1949-1963, Cambridge, Mass.: Harvard University Press, 1968, p.~123.

10/ See above, note 7*

1y Cohen, "Chinese Law: At the Crossroads," p. l4l.

12/ Cohen, Criminal Process, p. 110.

13/ New York Times, November 11, 1973.

14/ Cohen, "Chinese Law: At the Crossroads," p. 140.

Footnotes --2

15/ Mao Tse-tung, Lun jen min min chu chuan cheng [On the People’s Democratic Dictatorship], Peking, 1953, p. 10-11.

16/ Mao Tse-thng, On the Correct Handling of Contradictions Among the People. Peking, 1957*

17/ Ibid., p. 20.

18/ Chung kuo jen min ta hsueh, fa lu hsi, kuo chia yu fa ch’uan li lun chiao yen shih [Office of Teaching and Research on State and Law, Department of Law, Chinese People’s University], Lun jen min min chu chuan cheng ho jen min min chu fa chih [On the People’s Democratic Dictatorship and the People's Democratic Legal System], Peking, 1958, p. 7-8.

19/ The treatise is On the People’s Democratic Dictatorship and the People’s Democratic Legal System; see above, note 18.

20/ Ibid., p. 225.,

21/ Mao Jung-kuang, "On Handling Cases from the Viewpoint of Class Analysis," Fa Hsiieh [Jurisprudence], Peking, No. 7, 1958, p. 9.

22/ The text of both the Court Law and the 195*+ Constitution are found in English translation in Fundamental Legal Documents of Communist China, edited by Albert P. Blaustein, South Hackensack, New Jersey: Fred B. Rothman & Co., 1962,

23/ The text of Tung's speech entitled "Further Strengthen the Legality of the State, and Protect the Enterprises of Socialist Construction, " appeared in Jen min shou ts’e 1957 [People’s Handbook for 1957], Peking, 1957, p. 78-81

24/ Shen Ch’i-ssu, "Criticism of the ’Argument Principle’ of Bourgeois Criminal Procedure," Cheng fa yen chiu [Political-Legal Research], Peking, No. 1, i960, p. 34.

25/ For treatment of the collectivized bar in the PRC, see Tao-tai Hsia, Guide to Selected Legal Sources of Mainland China, Washington, D.C.: Library of Congress, 1967, pp. 48-62.

26/ OGPU is the acronym for Obedinennoe gosundarstvennoe politicheskoe upravlenie [Joint State Political Administration], the Soviet security police created in 1923 as a result of the reorganization of the state poli¬ tical administration; subsequently known as the NKVD and still later as NVD,

27/ Shanghai Wen-hui Pao, June 5* 1968; English translation in Survey of the China Mainland Press, No. 4210, July 3, 1968, p. 1.

Footnotes --3

28/ The text of Liu’s and Tung’s speeches are in Eighth National Congress of the Communist Party of China, Vol. 1: Documents, Peking: Foreign Languages Press, 19561

29/ For discussion of the Hundred Flowers period in relationship to Chinese law, see Hsia, op. cit., p. l6 et seq.

30/ "Completely Smash the Feudal, Capitalist and Revisionist Legal Systems," Canton Fan P’eng Lo Hei hsien, No. 2, July 1968; English transla tion in Selections from China Mainland Magazines, No. 625 September 3 1968, p. 23.

31/ For discussion of the Tenth Party Congress, see China News Analysis, No. 932, September 7, 1973. ~~.