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China

The Legal System under the 1954 State Constitution

The state constitution promulgated in September 1954 attempted to set down in legal form the central tasks of the country in the transition period of the mid-1950s and to regulate China's strides toward socialism. The state constitution provided the framework of a legal system much like that in effect in the Soviet Union from 1921 to 1928. Much of the Soviet legal code was translated into Chinese, and Soviet legal experts helped rewrite it to suit Chinese conditions.

The 1954 state constitution gave the Standing Committee of the National People's Congress the power to appoint and dismiss judicial personnel and to enact legal codes. The state constitution protected individuals from arrest and detention unless approved by the people's procuratorates, and it granted citizens freedom of speech, correspondence, demonstration, and religious belief. Citizens could vote and could run for election. They also acquired the right to an education, work, rest, material assistance in old age, and the ability to lodge complaints with state agencies. Each citizen was granted the right to a public trial and to offer a defense aided by a "people's lawyer." Citizens were granted equality before the law, and women were guaranteed equal legal rights. Under the 1954 state constitution, local procuratorates that had been responsible both to the procuratorate at the next higher level and to the government at the corresponding level were responsible only to the procuratorate at the next higher level. Technically, the judiciary became independent, and the Supreme People's Court became the highest judicial organ of the state.

Additionally, a law codification commission was set up to draft the first criminal code of the People's Republic and to describe criminal liability in detail. A set of rules for the proper conduct for police and judicial personnel was established, and it became the "political task" of the courts to determine what was or was not an offense. A criminal law, a code of criminal procedure, and a civil code were drafted, but none of these were enacted until twenty-five years later.

To cope with the anticipated need for more lawyers, law schools expanded and revamped their curricula. A large quantity of legal books and journals reappeared for use by law students. Although all lawyers were supposed to be conversant in the current ideology, many developed into "legal specialists" with more concern for the law then for ideology. Although this viewpoint would be condemned in 1957 when the Soviet-style legal system was rejected, in 1954 it appeared that China had taken a first step toward an orderly administration of justice.

Between 1954 and 1957, much effort was expended to make the legal system work, but the underlying conflict between the specialists and the cadres, who were more concerned about ideology than the legal system, remained. By 1956 the situation had polarized. The specialists argued that the period of intense class struggle was over and that all people should now be considered equal before the law and the state constitution. The cadres, on the other hand, contended that class struggle would never end and that separate standards should be applied to class enemies. They saw the specialists as obstructing the revolution--trying to subvert the new state and restore the rights of old class enemies.

In 1956 Mao personally launched a mass movement under the classical slogan "Let a hundred flowers bloom, let the hundred schools of thought contend" (see The Transition to Socialism, 1953- 57 , ch. 1; Policy Toward Intellectuals , ch. 4). His essay "On the Correct Handling of Contradictions among the People," published in early 1957, encouraged people to vent their criticisms as long as they were "constructive" ("among the people") rather than "hateful and destructive" ("between the enemy and ourselves"). Mao was anxious to defuse the potential for a backlash against communist rule such as had occurred in Hungary and Poland.

The legal specialists were among the most vociferous critics of party and government policies. They complained that there were too few laws and that the National People's Congress was slow in enacting laws already drafted. They felt that legal institutions were maturing too slowly and that the poorly qualified cadres were obstructing the work of these institutions to suit their own political ends. The legal experts also spoke out against those, especially party members, who thought themselves above the law.

By August 1957 the criticisms of party and state policies were too broad and penetrating to be ignored. Mao and his supporters labeled the critics "rightists" and launched a campaign against them. Among the first victims of the Anti-Rightist Campaign were the specialists and their legal system. Mao objected to this system for several reasons--among them, his views that the Soviet model was too Westernized for China and that the judicial system was too constraining.

The specialists' proposals for a judiciary free from party and political interference were denounced and ridiculed. Mao did not want a judiciary that stood as an impartial arbiter between the party and anyone else. The principle of presumption of innocence was spurned, as was the notion that the law always should act "in the interest of the state and the people" rather than the party.

Many specialists were transferred to nonjudicial jobs and replaced by party cadres. All codification commissions stopped work, and no new laws were drafted. The number of law schools dropped sharply as most universities shifted their curriculum to more politically acceptable subjects. Later, during the Cultural Revolution (1966-76; see Glossary), almost all the remaining law schools were closed.

With the Anti-Rightist Campaign of mid-1957 and the Great Leap Forward (1958-60; see Glossary), a new mass line emerged. The Anti-Rightist Campaign halted the trend toward legal professionalism, which was seen as a threat to party control. The party leadership resolutely declared its power absolute in legal matters. The Great Leap Forward sought to rekindle revolutionary spirit among the people. The mass line, as it affected public order, advocated turning an increasing amount of control and judicial authority over to the masses. This meant greater involvement and authority for the neighborhood committees and grass-roots mass organizations.

The Anti-Rightist Campaign put an end to efforts that would have brought about some degree of judicial autonomy and safeguards for the accused, and the country moved toward police domination. By 1958 the police were empowered to impose sanctions as they saw fit. The party gave low priority to the courts, and, as many judicial functions were turned over to local administrative officials, few qualified people chose to stay with the still-operating courts. The number of public trials decreased, and by the early 1960s the court system had become mostly inactive. One unexpected by-product of the shift from formal legal organs to local administrative control was that criminal sentences became milder. Persons found guilty of grand theft, rape, or manslaughter were sentenced to only three to five years' imprisonment, and the death penalty rarely was imposed.

During the Great Leap Forward, the number of arrests, prosecutions, and convictions increased as the police dispensed justice "on the spot" for even minor offenses. Still, the excesses of the Great Leap Forward were milder than those of the 1949-52 period, when many of those arrested were summarily executed. Persons found guilty during the Great Leap Forward were regarded as educable. After 1960, during a brief period of ascendancy of the political moderates, there was some emphasis on rebuilding the judicial sector, but the Cultural Revolution nullified most of the progress that had been made under the 1954 state constitution.

Data as of July 1987


China - TABLE OF CONTENTS

  • China - Party and Government

  • China - The Political Process

  • China - Foreign Relations

  • China - Criminal Justice and Public Security

  • China - National Defense


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