[ { "id": 209464, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 121, "title": "RAS-1982", "content_text": "THE NEW CONSTITUTION AND\n\nCHINA'S EMERGING LEGAL SYSTEM\n\nIN PERSPECTIVE\n\nW. ALLYN RICKETT*\n\nOn December 4, 1982, China's National People's Congress (NPC) adopted the fourth and perhaps most favourable constitution since 1949 in terms of paper guarantees for the protection of individual citizens against the arbitrary abuse of Party and state power. When coupled with such laws as the Criminal Code and Criminal Code of Procedure, promulgated in July 1979 and implemented in January 1980, there is some room for optimism that China has embarked on a path toward a stable legal system and the provision of basic guarantees for the rights of its citizens. However, given China's traditional disregard of individual rights and the almost constant state of political turmoil prevailing throughout this century, not to mention the Chinese Communists' generally negative attitude toward jural or formal law in the past, such optimism may well prove to have been undeserved. It might be worthwhile to look briefly at previous efforts on the part of the Chinese Communists to establish some semblance of a stable legal system before trying to reach any conclusions about the future.\n\nThe early judicial experience of the Chinese Communists, which began with the special tribunals set up in Hunan in 1926-27 to try \"bad elements,\" can at best be described by Mao Zedong's own words \"zao de hen\" [extremely crude]. It was not until November 1931 with the founding of the Chinese Soviet Republic in Jiangxi that any real attempt was made by the Communists to establish a formal body of law and judicial procedure. During this and the following Yenan period, laws were promulgated and legal institutions established, but this took place within the context of violent revolutionary struggle and the war of resistance against Japan. Moreover, judicial personnel\n\n* Professor Rickett is Professor of Chinese Studies at the University of Pennsylvania.", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 }, { "id": 209474, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 131, "title": "RAS-1982", "content_text": "109\n\nproletariat,\" under the leadership of the CCP. It confirmed many of the changes which had taken place in China's legal system since 1958, including the elimination of the procuratorate and Ministry of Justice as well as such individual rights as that of the accused to a defense and an open trial.\n\nHowever, the 1975 Constitution was to have a short life. 1976 was one of the most traumatic years in modern Chinese history. Zhou Enlai died in January and an intense struggle erupted between his supporters and the Gang of Four. Mao himself died in September, in October the Gang of Four headed by Mao's wife Jiang Qing was arrested, and China entered a whole new era with the re-emergence and rise to power of Zhou's chosen successor, Deng Xiaoping, beginning in the summer of 1977.\n\nIn March 1978 a third Constitution was adopted which restored many of the provisions dealing with the legal system contained in the 1954 Constitution, including the Ministry of Justice, procuratorate, the use of people's assessors, and the right to defense and open trial. Article 47 also stipulates that “No citizen may be arrested except by decision of the people's courts or with the sanction of the people's procuratorate.\" Far more important than the Constitution itself were the various steps taken by the new leadership to rectify the excesses of the past, and a series of new laws designed to provide a stable base for a rational legal system.\n\nAccording to published reports, some 110,000 persons who had been detained as “rightists\" were released in June 1978, and by the end of June 1980 people's courts at various levels had reviewed over 1.13 million criminal convictions meted out during the Cultural Revolution and redressed over 251,000 of them.10 In early 1979, political and civil rights were restored to landlords and rich peasants and their descendants as long as they supported socialism. Also, in July 1979, the NPC adopted seven major laws including a Criminal Code, a Criminal Code of Procedure, an Organic Law of People's Courts, and an Organic Law of People's Procuratorates, which took effect in January 1980. By the end of 1980, there were over twenty law departments and institutes producing personnel to meet the needs of the new system. A system of people's lawyers was reinstituted in 1979 and legal", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 }, { "id": 209475, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 132, "title": "RAS-1982", "content_text": "110\n\nW. ALLYN RICKETT\n\nadvisory offices were established in most cities throughout the country. The year 1979 also witnessed the beginnings of a major nationwide campaign to publicize the new laws and explain the rights and obligations of citizens contained therein. An impressive number of legal publications have appeared, including an increasing number of law journals. Numerous delegations of Chinese lawyers have visited abroad, and a number of Chinese students have been sent abroad to study Western law.\n\nThe new system, with some minor changes, harks back to that instituted in 1954. The Ministry of Justice is responsible for the general administration of justice and the training of judicial cadres. The court system is composed of the Supreme People's Court, Higher People's Courts, Intermediate People's Courts, and Basic People's Courts. There are also special courts: military, railway transport, water transport, forestry, as well as special branch courts dealing with economic affairs. There is a two-trial (one appeal) system, and trials are open unless they involve state secrets, matters of personal shame such as rape, or juveniles. As in the 1950s, judges, except in minor civil and criminal cases or where otherwise specified by law, are assisted by elected lay assessors, who are members of the trial court and enjoy equal rights with its judges when the judges perform their duties in court. Court presidents are elected by people's congresses at various levels while judges are appointed by the standing committees of these congresses. Courts are no longer accountable to local governments, but only to the people's congress of their constituency. The Supreme Court has been given an expanded role over its 1954 predecessor. While only the Standing Committee of the NPC has the authority to interpret the Constitution and other laws, the Supreme Court can give explanations on questions concerning the specific application of laws and decrees in judicial procedure. It also must rule on all death sentences.12\n\nThe right of defense is spelled out in the Criminal Code of Procedure, which provides that the accused may either defend himself or request the assistance of a relative or guardian, a member of his unit, people's organization, or other citizens approved by the court, or a lawyer. Lawyers function under provisions contained in Articles 28 and 29 of the Criminal Code of Procedure and \"The Provisional Regulations Governing the", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 }, { "id": 209476, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 133, "title": "RAS-1982", "content_text": "111\n\nWork of Lawyers of the People's Republic of China” adopted by the Standing Committee of the NPC in August 1980. Their duties are to give help to government organizations, enterprises and other undertakings, social bodies, people's communes, and ordinary citizens so as to ensure the just implementation of the law, and to defend the interests of the state and the collective and legitimate rights and interests of citizens. As pointed out in an article appearing in the Beijing Review: Lawyers are state legal workers who work in legal advisory offices which provide their leadership and pay their salaries. Unlike lawyers in capitalist countries who work for their clients, lawyers in China proceed from the stand of the people and safeguard the correct implementation of the law and the legitimate rights of litigants.15\n\nOther protections are provided by the Criminal Code and Criminal Code of Procedure: Articles 136 and 137 of the former forbid the use of torture to extract confessions and gathering a crowd for purposes of \"beating, smashing, and looting,\" while article 32 of the latter forbids the extortion of confessions by torture or duress and the collection of evidence by threat, enticement, deceit or other illegal means. Article 35 of the Criminal Code of Procedure goes on to state that in handing down judgments stress shall be laid on the weight of the evidence, and \"when there is only a statement by the accused and no other evidence available, the accused shall not be considered guilty and sentenced.\" The Criminal Code also attempts to deal with two serious problems of the past: Article 9 provides that the law shall not be applied retroactively, and Article 135 prescribes severe punishment for state functionaries who intentionally bring false charges against people. The Criminal Code of Procedure (Articles 43-52) further establishes detailed procedures governing arrest and detention, requiring warrants for arrests, eliminating secret arrests, and setting strict conditions and time limits under which a person may be held without a proper warrant authorized by the procuratorate.\n\nThe Criminal Code is based on drafts prepared in the mid-1950s which in turn appear to have been based on the 1926 Soviet RSFSR Criminal Code. This later Code, replaced in the Soviet Union in 1958, was severely criticised in its day, and it is", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 }, { "id": 209478, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 135, "title": "RAS-1982", "content_text": "113\n\nof informal, so-called non-criminal sanctions which could be imposed by other bodies than the courts. In November 1979, the Standing Committee of the NPC adopted a resolution to revive the August 1957 \"Decision of the State Council of the PRC Relating to Problems of Rehabilitation Through Labour,\" which permitted administrative agencies to confine a wide range of offenders including vagrants, hooligans, persons committing minor crimes, and counter-revolutionaries and antisocial reactionaries who have committed minor offenses to forced labour without trial for a period of up to four years.14 To administer this programme Rehabilitation Through Labour Committees have been established at the local level consisting now of representatives from local bureaus of public security, labour, and civil affairs.15 The reason for reviving this Decision was ostensibly to provide local people with a weapon to combat the rapid increase in crime (largely involving young people) which occurred after the Cultural Revolution, but numerous reports indicate that the programme is also being used to suppress 1) dissidents without their being able to claim any of the rights prescribed for an accused in the Criminal Code of Procedure and 2) young people who are unwilling to accept the mores and life style of the older generation.16\n\nThere are also frequent newspaper reports which indicate that cadres are continuing to behave in the old pattern irrespective of what the law may say, detaining people illegally, setting up clandestine tribunals, arbitrarily interrogating people and even tying them up and marching them around to be struggled against, extorting confessions by torture, illegally searching people's homes and humiliating them. Lawyers, in spite of their status as state workers, are frequently treated as traitors, no better than the offenders themselves, when they try to defend their clients. To what extent these practices prevail or go unpunished is difficult to tell, but police brutality and judicial arrogance do not die easily in any society, not to mention one which in the past has provided ideological justification for such behaviour.\n\nGiven the long history of China's disregard for civil rights and the persistence of Anti-rightist ideology as well as the practical problems involved in re-educating cadres and enforcing the\n\nPage 114\n\nPage 135\n\nPage 136", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 }, { "id": 209481, "series_id": 26, "series_slug": "histsyn-rashkb-journal-engine", "series_title": "RASHKB Journal 皇家亞洲學會香港分會學刊", "series_use_hku_proxy": false, "document_key": "RAS-1982", "page_number": 138, "title": "RAS-1982", "content_text": "116\n\nW. ALLYN RICKETT\n\n' Mao Zedong, “Hunan nongmin yundong kaocha baokao,” Mao Zedong xuanji (Beijing: Renmin Chubanshe, 1964), 16.\n\n* See Patricia Griffin, The Chinese Communist Treatment of Counter-Revolutionaries: 1924-1949. Princeton: Princeton University Press, 1976.\n\nIt is interesting that in many cases involving homicide resulting from marriage or family problems, the accused was formally sentenced in accordance with the Marriage Law of June 1950, which in itself simply stated that persons guilty of such an offense would bear criminal responsibility before the law.\n\n\"The right of defense was provided for in Art. 12 of the \"Provisional Regulations of the Shanghai People's Court Governing the Disposal of Civil and Criminal Cases\" (Aug. 11, 1949) and in Art. 6 of the \"Organic Regulations of the People's Tribunals\" (July 20, 1950), but was left out of the \"Provisional Organic Regulations of the People's Courts\" (Sept. 3, 1950). I know of no case where defense was actually permitted during the pre-Constitution period. Even appeal was very rare. The first public notice of the use of lawyers that I know of involved thirteen American nationals charged with espionage who were tried and then released in November 1954 by a military tribunal.\n\n冉\n\n* According to an editorial in the Guangming Ribao (Jan. 27, 1957), by 1957 there were some 670 legal advisory offices with 2,100 professional lawyers scattered throughout the country. Fees were paid by clients to the legal advisory office according to their ability to pay. Lawyers were paid salaries by the advisory office. As a defense counsel, people's lawyers were not considered an agent of the accused. They constituted an independent party at the trial and were not bound by the will of the defendant. Their duty was to help clarify the facts and present whatever extenuating circumstances might assist the judges in rendering a fair sentence.\n\n* Codification had been called for as far back as the Yenan Period and in 1948 it was discussed by the Central Committee of the CCP. This led to the formation of a Law Codification Committee in 1950. However, nothing seems to have been done until after the passage of the Constitution. Finally in Nov. 1956 it was announced that a draft criminal code consisting of some 261 articles had been completed by the Law Section of the Standing Committee of the NPC and had been turned over to the Standing Committee's Bills Committee for discussion and amendments.\n\n* Renmin Ribao, Dec. 12, 1957 and Zhenfa yanjiu, 1958, No. 1, 18-23. * Zhengfa yanjiu, 1958, No. 1, 10-17.\n\n10 For an excellent survey of developments during the period 1978-80, see Shao-chuan Leng, \"Criminal Justice in Post-Mao China: Some Preliminary Observations,\" China Quarterly, 87 (Sept. 1981), 440-469.\n\n\"For an English translation of all seven laws, see Foreign Broadcast Information Service, Daily Report: PRC, 27 and 30 July 1979. The Criminal Code and Criminal Code of Procedure have also been translated by Jerome Cohen, The Journal of Criminal Law and Criminology, 73,1 (Spring 1982), 135-203, and by Chin Kim, The American Series of Foreign Penal Codes, No. 25 (Littleton, Colorado: Fred B. Rothman & Co., 1982).\n\n12 Article 43 of the Criminal Code limits the use of the death penalty to only \"the most heinous offenses\" (homicide, rape, arson, robbery, dike-breaching, planting explosives, embezzling public property, and counter-revolutionary crimes). It also stipulates that unless immediate execution is mandatory, a two-year reprieve may be granted. If the offender shows evidence of repentance, the death penalty may be converted to a life or term sentence.", "txt_file_path": "txt/dfo323lmgvd/RAS-1982.txt", "external_url": "https://digitalrepository.lib.hku.hk/catalog/mk61z420p", "rank": 0 } ]