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China

 
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China

THE PENAL SYSTEM

The Criminal Law that took effect on January 1, 1980, removed criminal punishment from the discretion of officials, whose arbitrary decisions were based on perceptions of the current party line, and established it on a legal basis. The specific provisions of that law listed eight categories of offenses.

The Statute on Punishment for Counterrevolutionary Activity approved under the Common Program in 1951 listed a wide range of counterrevolutionary offenses, punishable in most cases by the death penalty or life imprisonment. In subsequent years, especially during the Cultural Revolution, any activity that the party or government at any level considered a challenge to its authority could be termed counterrevolutionary. The 1980 law narrowed the scope of counterrevolutionary activity considerably and defined it as "any act jeopardizing the People's Republic of China, aimed at overthrowing the political power of the dictatorship of the proletariat and the socialist state." Under this category it included such specific offenses as espionage, insurrection, conspiracy to overthrow the government, instigating a member of the armed forces to turn traitor, or carrying out sabotage directed against the government.

Other offenses, in the order listed in the 1980 law, were transgressions of public security, defined as any acts which endanger people or public property; illegal possession of arms and ammunition; offenses against the socialist economic order, including smuggling and speculation; offenses against both the personal rights and the democratic rights of citizens, which range from homicide, rape, and kidnapping to libel; and offenses of encroachment on property, including robbery, theft, embezzlement, and fraud. There were also offenses against the public order, including obstruction of official business; mob disturbances; manufacture, sale, or transport of illegal drugs or pornography; vandalizing or illegally exporting cultural relics; offenses against marriage and the family, which include interference with the freedom of marriage and abandoning or maltreating children or aged or infirm relatives; and malfeasance, which specifically relates to state functionaries and includes such offenses as accepting bribes, divulging state secrets, dereliction of duty, and maltreatment of persons under detention or surveillance.

Under the 1980 law, these offenses were punishable when criminal liability could be ascribed. Criminal liability was attributed to intentional offenses and those acts of negligence specifically provided for by the law. There were principal and supplementary penalties. Principal penalties were public surveillance, detention, fixed-term imprisonment, life imprisonment, and death. Supplementary penalties were fines, deprivation of political rights, and confiscation of property. Supplementary penalties could be imposed exclusive of principal penalties. Foreigners could be deported with or without other penalties.

China retained the death penalty in the 1980s for certain serious crimes. The 1980 law required that death sentences be approved by the Supreme People's Court. This requirement was temporarily modified in 1981 to allow the higher people's courts of provinces, autonomous regions, and special municipalities to approve death sentences for murder, robbery, rape, bomb-throwing, arson, and sabotage. In 1983 this modification was made permanent. The death sentence was not imposed on anyone under eighteen years of age at the time of the crime nor "on a woman found to be pregnant during the trial." Criminals sentenced to death could be granted a stay of execution for two years, during which they might demonstrate their repentance and reform. In this case the sentence could be reduced. Mao was credited with having originated this idea, which some observers found cruel although it obviated many executions.

The overwhelming majority of prisoners were sentenced to hard labor. There were two categories of hard labor: the criminal penalty--"reform through labor"--imposed by the court and the administrative penalty-- "reeducation through labor"--imposed outside the court system. The former could be any fixed number of years, while the latter lasted three or four years. In fact, those with either kind of sentence ended up at the same camps, which were usually state farms or mines but occasionally were factory prisons in the city.

The November 1979 supplementary regulations on "reeducation through labor" created labor training administration committees consisting of members of the local government, public security bureau, and labor department. The police, government, or a work unit could recommend that an individual be assigned to such reeducation, and, if the labor training administration committee agreed, hard labor was imposed without further due process. The police reportedly made heavy use of the procedure, especially with urban youths, and probably used it to move unemployed, youthful, potential troublemakers out of the cities.

In the early 1980s, the people's procuratorates supervised the prisons, ensuring compliance with the law. Prisoners worked eight hours a day, six days a week, and had their food and clothing provided by the prison. They studied politics, law, state policies, and current events two hours daily, half of that in group discussion. They were forbidden to read anything not provided by the prison, to speak dialects not understood by the guards, or to keep cash, gold, jewelry, or other goods useful in an escape. Mail was censored, and generally only one visitor was allowed each month.

Prisoners were told that their sentences could be reduced if they showed signs of repentance and rendered meritorious service. Any number of reductions could be earned totaling up to one-half the original sentence, but at least ten years of a life sentence had to be served. Probation or parole involved surveillance by the public security bureau or a grass-roots organization to which the convict periodically reported.

Crime by youthful offenders has been a matter of grave concern to the post-Mao leadership. In common with most societies, nearly all those charged with violent crime have been under thirty-five years of age. Criminal law makes special provisions for juvenile offenders. Offenders between fourteen and sixteen years of age are to be held criminally liable only if they commit homicide, robbery, arson, or "other offenses which gravely jeopardize public order," and offenders between fourteen and eighteen years of age "shall be given a lighter or mitigated penalty." In most cases juvenile offenders charged with minor infractions are dealt with by neighborhood committees or other administrative means. In serious cases juvenile offenders usually are sent to one of the numerous reformatories reopened in most cities under the Ministry of Education beginning in 1978.

In 1987 the crime rate remained low by international standards, and Chinese cities were among the safest in the world. The court system had been reestablished, and standard criminal, procedural, civil, and economic codes had been developed. Law schools, closed since the late 1950s, had been reopened, and new ones had been established to meet the growing need for lawyers and judges. Law enforcement organizations had been reorganized, civilianized, and made answerable to the courts and the procuratorates. But it would be unrealistic to assume that the old system of rule by party fiat could be changed in a short period of time. Opposition to the changes was pervasive at every level of the party and the government. Even its strongest supporters insisted that the legal system must be developed in accordance with the four cardinal principles--upholding socialism, the dictatorship of the proletariat, the leadership of the Chinese Communist Party, and Marxism-Leninism-Mao Zedong Thought. Given these limitations, it was clear that although much progress had been made in replacing the Mao era's arbitrary rule with a solid legal system, much still remained to be done.

* * *

Readers interested in further information on law in traditional China should consult Law and Society in Traditional China by Ch'u T'ung-tsu and Law in Imperial China by Derk Bodde and Clarence Morris. Readers interested in studying traditional legal practices still in use in China should consult Phillip M. Chen's Law and Justice and Fu-shun Lin's Chinese Law Past and Present.

Justice in Communist China by Shao-chuan Leng and The Criminal Process in the People's Republic of China, 1949-1963 by Jerome Alan Cohen are good sources on legal developments in the early years of the People's Republic, and Shao-chuan Leng and Hungdah Chiu's Criminal Justice in Post-Mao China is an indispensable source for Chinese legal developments in the 1980s. Other extremely useful articles providing information on the criminal justice and penal systems can be found in various issues of Faxue Yanjiu (Studies in Law), Beijing Review, China News Analysis, and Foreign Broadcast Information Service, Daily Report:China. (For further information and complete citations, see Bibliography.)

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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