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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
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