The Criminal Process in the People's Republic of China, 1949-1963: An Introduction

The Criminal Process in the People's Republic of China, 1949-1963: An Introduction

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The revolutionary triumph of communism in China in 1949 made the world's most populous country the subject of a gigantic political, social, and economic experiment. China also has been the subject of a significant legal experiment. Is the People's Republic of China an example of “’lawless unlimited power’ expressing itself solely in unpredictable and patternless interventions” in the lives of its people? Has the People’s Republic sought to attain Marx's vision of the ultimate withering away of the state and of the law? Has Mao Tse-tung preferred Soviet practice to Marxist preaching? If so, which Soviet model has he chosen to follow - that of Stalin or that of Stalin's heirs? To what extent has it been possible to transplant a foreign legal system into the world's oldest surviving legal tradition? Should today's Chinese legal system 'be viewed as a unique amalgam of Communist politics and Chinese culture? To what extent has the system demonstrated a capacity for change since 1949? What has been the direction of that change, and what are the prospects for the future? Western legal scholars are merely beginning to wrestle with such large questions, and at this stage one can only suggest hypotheses and raise problems for future research. This volume represents the fruits of a preliminary inquiry into one aspect of contemporary Chinese law—the criminal process. The emphasis is on the process itself, but a good deal of attention is necessarily devoted to substantive criminal law as well as to the modes of its application. The volume consists of three parts. The first is an introductory essay that provides an overview of the evolution and operation of the criminal process from 1949 through 1963. The second part, which constitutes the bulk of the book, systematically presents primary source materials that permit more detailed consideration of problems raised in the introduction. These materials include relevant excerpts from legal documents such as the Constitution, statutes, and other rules and regulations of the People's Republic; from official policy statements; from a treatise on criminal law that has been prepared to assist Chinese judicial officials; and from articles in Chinese law reviews, academic and popular journals, and national and local newspapers. In order to shed light on the law in action as well as the law on the books, I have also included many selections from the written and oral accounts of persons who have lived in or visited the People's Republic. Finally, to suggest the historical and comparative perspective essential for further understanding, I have reprinted at the beginning of Part II a brilliant but little-known essay by Professor Benjamin I. Schwartz, and in various places have reprinted other historical and comparative materials. It is my hope that Part II, from which I have taught my classes at Harvard Law School for the past three years, may be useful for purposes of instruction at the many other law schools and universities that have become interested in Communist law in general and Chinese law in particular. It may also constitute a helpful sourcebook for scholars of Chinese affairs and for comparatists in several academic disciplines. Because existing English translations of Chinese legal materials have been not only limited in quantity but also inadequate in quality, considerable effort has been made in this volume to provide translations that are accurate and yet not unduly clumsy. This has not been a simple job. Franz Schurmann has pointed out that the categories and language of Chinese Communist ideology are precise and carefully used by those who purvey the ideology. Unfortunately, Chinese Communist legal terminology has not attained the same degree of precision, and it is not unusual, especially in local newspapers, for legal terms to be employed loosely or opaquely. Moreover, given the outside observer's limited access to the contemporary Chinese legal system, it would hardly be surprising if he failed to grasp the meaning assigned to certain legal terms, including those that have been invoked by previous regimes but that now have new meanings. The principal contribution of Part III is an English-Chinese glossary of the major legal and institutional terms translated in Part II. This glossary does not in any sense purport to be a dictionary. It merely indicates the English terms that have been found to suit the meanings of the Chinese terms in the particular contexts in which they appear. Although the English equivalents given are certainly not the only ones that could have been devised, they are, it is hoped, adequate to the extremely difficult task of finding linguistic analogies between the terms used by systems as different as the Anglo-American and the Chinese Communist. To the extent permitted by the Chinese text, these equivalents have been consistently employed throughout. Thus, for example, each time the Chinese term tiao-chieh wei-yuan-hui appears, it has been rendered as “mediation committee” rather than as “conciliation committee,” “reconcilement commission,” or “arbitration council”; on the other hand, the term shen-p'an appears sometimes as “adjudication” and at other times as “trial,” depending upon the particular context. Part III also contains a bibliography of the sources drawn upon in Parts I and II and a modest number of English language books and articles that are pertinent to an understanding of the criminal process in mainland China. The extracts in Part II appear without their original footnotes except where I have considered the footnotes to be of particular importance. I have presented the English translations of other students only where the original Chinese text has not been available to me. The titles or positions by which the authors of extracts are sometimes identified are those they held at the time the given extract was published. The Chinese characters in the glossary were inscribed by Mr. Wang Yeh-chien, and the glossary was typed by Mrs. Bertha Ezell. I am greatly indebted to David Finkelstein for his talented and unflagging assistance in translation.

Publication Date

1968

The Criminal Process in the People's Republic of China, 1949-1963: An Introduction

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