112
W. ALLYN RICKETT
unfortunate that some of its worst features have been incorporated into the Chinese Code, including the use of analogy (Article 79) and a broad classification of "counter-revolutionary offenses.” Articles 90 to 104, dealing with such offenses require the court to determine the motive for a range of acts which might or might not have as their purpose "overthrowing the political power of the dictatorship of the proletariat." For example, Article 102 stipulates that "using counter-revolutionary slogans, leaflets or other means to spread propaganda inciting the overthrow of the political power of the dictatorship of the proletariat and the socialist system" is to be punished by a fixed-term imprisonment, detention, surveillance, or deprivation of political rights for not less than five years. Since the classification of a presumed offense as counter-revolutionary then depends on a subjective interpretation of motive in this type of case, it is difficult to know when the constitutionally guaranteed freedom of speech and press become counter-revolutionary.
It is understandable that since this is their first attempt to produce a general criminal code, the compilers were reluctant to give up the useful tool of analogy to cover any gaps in the law that might appear later on. The drafters of the Code were, however, not oblivious to the dangers inherent in the application of analogy and therefore stipulated that its use had to have the approval of a Higher People's Court. The articles dealing with counter-revolution are a far more serious matter. Again they are understandable given the turbulent history of modern China, the on-going civil war with the Kuomintang on Taiwan, and the hostile treatment accorded the People's Republic by most of the world throughout most of its history, not to mention the general paranoia which seems to take hold of most societies going through a revolution. However, it is precisely because of these articles and the psychological condition which produced them, that one continues to feel some concern for the future in spite of all the positive steps that have been taken since the fall of the Gang of Four.
This concern is further strengthened by another disturbing factor. I mentioned earlier that one of the characteristics of the period following the Anti-Rightist Movement was the development