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China Return to Socialist Legality
A new constitution intended to provide a structural basis for
the return to socialist legality was adopted at the Fifth National
People's Congress in March 1978. Legal reform was deemed essential
not only to prevent a return to power of the radicals but also to
provide the legal structure for the economic development of the
country envisioned by the party leadership.
The 1978 state constitution reaffirmed the principle--deleted
in the 1975 state constitution--of the equality of all citizens
before the law. It guaranteed the right to a public trial, except
in cases involving national security, sex offenses, or minors, and
reaffirmed a citizen's right to offer a defense--also omitted in
1975.
The National People's Congress called for new criminal,
procedural, civil, and economic codes as quickly as possible, using
the new state constitution as a guide. The delegates quoted Mao as
having said in 1962 that "we not only need a criminal code but also
a civil code," and they invoked Mao's authority against those who
viewed regularizing the legal system as counterrevolutionary.
In November 1978 the Law Institute of the Chinese Academy of
Social Sciences, working in conjunction with the Legal Affairs
Commission of the National People's Congress proposed strengthening
the socialist legal system, which, it explained, was based on
democracy, socialist principles, and the worker-peasant alliance.
The institute added that the system should be formulated, enforced,
and used by the people for economic development and against groups
such as the Gang of Four. The 1978 state constitution gave the
National People's Congress sole authority to interpret, promulgate,
and change laws. It also reestablished the people's procuratorates
and made them responsible both to the procuratorate at the next
higher level and to the people's government at the same level, as
they had been before 1954.
In mid-1979 China promulgated a series of new statutes that
included the country's first criminal law, the first criminal
procedure law, and updated laws on courts and procuratorates.
Extensive preparations preceded the announcements. Beginning in
early 1979, for example, the media hosted debates on subjects such
as judicial independence, presumption of innocence, and equality of
all citizens before the law. A national conference of
procuratorates in January 1979 stressed the need for thorough
investigations in all cases and respect for evidence. The
participants in the conference warned that extorted confessions
would no longer be accepted and that the police could not make
arrests without procuratorate approval. If circumstances did not
permit prior approval, the approval had to be obtained after the
fact or the detainee had to be released.
Judicial work conferences were held throughout China to make
recommendations to the National People's Congress concerning an
independent judiciary. According to the recommendations, Chinese
courts in the future would base their judgments on the law, while
continuing to "work under unified leadership of the local party
committees." In short, party policy no longer would be the
equivalent of the law, but judicial independence in China could
still be modified by party guidance.
Peng Zhen, director of the Legal Affairs Commission and active
in the reform efforts of the early 1960s, announced the new laws in
June 1979 and had them published shortly thereafter. According to
Peng's announcement, the laws were based on 1954 and 1963 drafts
and provided a foundation for the socialist legal system and,
ultimately, social democracy. He affirmed that the judiciary would
be independent and subject only to the law; that all individuals,
no matter how senior, would be equal before the law; and that party
members and cadres would have to forego special treatment and set
an example for the people. In November 1979 Peng was appointed
secretary general of the Standing Committee of the Fifth National
People's Congress, a position from which he could control the
reconstruction of the legal system.
Among the laws approved by the Second Session of the Fifth
National People's Congress to take effect January 1, 1980, was the
Organic Law of the Local People's Congresses and the Local People's
Governments. The revolutionary committees, which had assumed
judicial authority in the 1967-76 period, were eliminated; their
authority was assumed by local people's governments, and judicial
responsibility was returned to the appropriate courts.
The Electoral Law for the National People's Congress and Local
People's Congresses, also to take effect January 1, 1980, provided
for the direct election of some procurators and judges. The Organic
Law of the People's Courts was designed to create a more orderly
environment and to assure the people that the chaotic years of the
Cultural Revolution, with no courts and no legal guarantees, were
over. The law, a revised version of 1954 drafts, guaranteed the
accused equality before the law regardless of race, nationality,
sex, social background, or religious beliefs and gave people the
right to a lawyer. In certain cases, the lawyer would be
court-appointed. The law called for independence of the judiciary
from political interference. Courts were free to establish judicial
committees to assist them in difficult cases, and there were
provisions for citizens to be elected as assessors to participate
with judges in adjudicating cases. The local language was to be the
medium for conducting court proceedings and writing court
decisions. Cases involving the death penalty were to be reviewed by
the Supreme People's Court, and all defendants were entitled to
appeal to the next higher court.
The Organic Law of the People's Procuratorates, an amended
version of a 1954 law, made procurators responsible for supervising
law enforcement by the police, courts, and administrative agencies.
The procuratorate was linked to China's past in that it functioned
like the censorial system of imperial China. It served as the eyes
and ears of the government, just as the censorial system was the
watchdog for the emperor.
The procurators were elected by local people's congresses and
approved by the next higher procuratorial level to handle only
criminal cases. The independence of the procuratorates was
constitutionally guaranteed. Still, their responsibilities were
difficult, especially in any case involving a high party official.
According to the new law, procuratorates at all levels had to
establish procuratorial committees, practice
democratic centralism (see Glossary),
and make decisions through discussion. Ideally, a
procuratorate at a lower level would be led, rather than dictated
to, by one at the next higher level. Each procuratorate was
responsible to the standing committee of the people's congress at
the corresponding level.
The 1980 Criminal Law was intended to protect state property as
well as the personal and property rights of citizens against
unlawful infringement by any person or institution. It safeguarded
the fundamental rights stipulated in the 1978 state constitution
and prescribed penalties for counterrevolutionary activities
(crimes against the state) and other criminal offenses. Prevention
of crime and rehabilitation through education (taking into account
actual conditions in China in 1979) were stressed. Illegal
incarcerations, fabrications, prosecutions, and intimidation were
forbidden, but the provisions of the law did not apply
retroactively.
The Criminal Law contained a provision prohibiting the criminal
prosecution of a person who had "reactionary," that is, antiparty,
ideas but who had committed no "reactionary" actions. As Peng Zhen
pointed out in late 1979, because "most contradictions were among
the people," involving constructive criticism not antagonistic to
the party or state, punishment was inappropriate
(see Policy Toward Intellectuals
, ch. 4). As in some other areas of the law, the
actual judicial disposition appeared at times to be at variance
with this particular principle.
The law defined criminal acts and distinguished between actual
crimes and accidents. It also established a statute of limitations
both to demonstrate the "humanitarian spirit" of the penal code and
to permit law enforcement officials to concentrate on crimes for
which evidence was still available. The law retained the important
legal principle of analogy, according to which acts not
specifically defined might be considered crimes. Criminal charges
could not be brought unless there was evidence that a crime had
been committed; the sole basis for prosecution was verifiable
evidence. The law also defined basic understandable rules of
evidence. The death penalty could be imposed for flagrant
counterrevolutionary acts and for homicide, arson, criminal intent
in causing explosions, and other offenses of this nature. The 1983
revision of the law considerably increased the number of offenses
punishable by the death penalty.
The Law on Criminal Procedure was promulgated to reform
judicial procedures in enforcing the Criminal Law. It was designed
to educate citizens, establish judicial jurisdictions, and
streamline judicial appeal and review. The law described the
relationship between public security organs (investigations and
provisional apprehensions), the procuratorates (arrest approvals,
possible procuratorial investigations, prosecutions and supervision
of the police and penal institutions), and the courts (trials and
sentencing). It also guaranteed the accused the right to make a
defense at a public trial with an advocate present.
The public security organs, procuratorates, and courts had to
base their judgments on verified evidence using the law as a
measure. There were strict time limits on court and police actions
to prevent overly lengthy detention.
Data as of July 1987
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