State Ideology Transition and Procedure Model Reformation: China's Criminal Procedure Law and Its Revisions

• Author: Yi Yanyou
• Pages: 159-222

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2012] CRIMINAL PROCEDURE LAW 159

159

STATE IDEOLOGY TRANSITION AND PROCEDURE MODEL

REFORMATION: CHINA’S CRIMINAL PROCEDURE LAW

AND ITS REVISIONS

YI Yanyou

What has always made the state a hell on earth has been

precisely that man has tried to make it his heaven.

—F. Hoelderlin1

Thus we have abandoned whatever good things the old

order of society could provide but have not profited from what

our present state can offer; we have destroyed an aristocratic

society, and settling down complacently among the ruins of the

old building, we seem to want to stay there like that forever.

—Tocqueville2

In place of the old bourgeois society, with its classes and

class antagonisms, we shall have an association in which the

free development of each is the condition for the free

development of all.

—Marx and Engels3

I. INTRODUCTION

The revolutionary triumph of communism in China in 1949 made

the world’s most populous country the subject of a gigantic political,

legal, social, and economic experiment. Unavoidably, the criminal

procedure is one of the main battlefields of such an experiment.

 Associate Professor at Tsinghua University Law School.

1 F. Hoelderlin, cited in F.A. HAYEK, THE ROAD TO SERFDOM 28 (preface to 1956 edition) (50 th

anniversar ed., Univ. Chicago Press, 1994).

2 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 16 (J.P. Mayer ed., George Lawrence

trans., Perennial Classics, 2000).

3 Communist Manifesto, 1848, in From MARX TO MAO AND MARCHAIS: DOCUMENTS ON THE

DEVELOPMENT OF COMMUNIST VARIATIONS 1-37 (Dan N. Jacobs ed., 1979). It is noticeable that the

original expression of Marx and Engels is that the free development of each i s the condition for the free

development of all. Regretably, in China, this statement is always interpreted in a way that the causal

relationship is reversed: the free development of all are the condition for free development of each.

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160 TSINGHUA CHINA LAW REVIEW [Vol. 4:155

This experiment began as early as 1926, when “people’s justice”

appeared in Hunan province where a revolutionary peasant’s

movement was developed by the Chinese Communists.4 Special

tribunals were set up to try local bullies, bad gentry, and unlawful

landlords. Methods used against the counterrevolutionary elements

(反革命分子) included humiliating parades, struggle meetings,

imprisonment and executions. Mao Tse-tung (毛泽东), the first

Chairman of the People’s Republic of China, justified such ruthless

punishments in the following terms:

Proper limits have to be exceeded in order to right a

wrong, or else the wrong cannot be righted.5

The first judiciary of the Chinese Communist Party was

established in 1931 with the establishment of the Provisional Soviet

Republic (临时苏维埃) based on Jiangxi Province. From the very

beginning, the primary task of the “People’s Courts” was not to

resolve conflicts arising from people living in the Soviet Republic

region, but to “protect the socialist order against class enemies and

counterrevolutionaries”6.

From 1935, after the Red Army’s Long March, the establishment

of the Chinese Communist Party transferred from Jiangxi Province to

Shanxi Province, and the Border Region Government (边区政府)

replaced the Soviet Republic Government (苏维埃政府). Here, the

three-echelon hierarchy of the judicial system, including a high

court, its branch courts, and local courts or county justice bureaus,

was established. As integral parts of the governments of

corresponding levels, each of the “People’s Courts” accepted the

leadership of political authorities, and the tendency towards “judicial

independence” was corrected by appointing the prefecture to act

concurrently as the head of a branch high court, and appointing the

county magistrate to act concurrently as the head of the local court.

At the same time, the adjudication committee, which from the very

beginning had the final say in cases of high importance and was

composed of party cadres, government and court officials, was

established within the court in 1943. This committee powerfully

guaranteed the enforcement of the party’s policies in the People’s

Courts.

During the Civil-War period, the major tasks for the People’s

Court were to support the revolutionary struggle and punish “war

4 SHAO-CHUAN LENG, JUSTICE IN COMMUNIST CHINA 1 (1967).

5 Mao Tse-tung, Report of an Investigation into the Peasant Movement in Hunan, in I SELECTED

WORKS OF MAO TSE-TUNG 29 (1965).

6 LENG, supra note 4, at 6.

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2012] CRIMINAL PROCEDURE LAW 161

criminals”, counterrevolutionaries and enemy agents. On October

10th, 1947, General Chu Te (朱德) issued an order for the arrest, trial

and punishment of the “war criminals” headed by Chiang Kai-shek

(蒋介石), and the confiscation of all their properties and bureaucratic

capital.7 At the same time, the renewed Outline of Land Law

provided for the confiscation of landlords’ as well as rich peasants’

properties without compensation. 8 When speaking before a

conference on April 1st, 1948, Mao Tse-tung admitted that,

In the fierce struggles in the land reform of the past

year, . . . in certain places some landlords and rich peasants

were needlessly put to death, and the bad elements in the rural

areas were able to exploit the situation to take revenge and

foully murdered a number of working people.9

Thus before the CCP seized the state power, the criminal

procedure was somewhat moderated.

All of these experiences formed the foundation for the

fundamental features of the judicial system that had taken shape by

1949. Despite the fact that the newly established Government had

abolished all laws created by its Nationalist predecessor, a new legal

system was not immediately established. Instead, the provisional

constitution, the Common Program, 10 the Organic Law of the

Central People’s Government,11 and the Organic Law of the Chinese

People’s Political Consultative Conference 12 presented detailed

blueprints of the formal structure of the new government. During

this period a uniform, nation-wide system of People’s Courts was

developed in China; but in consolidating its rules and carrying out

land reform and other policies the Chinese Communist Party relied

7 Mao Tse-tung, Manifesto of the Chinese People’s Liberation Army, in IV SELECTED WORKS OF

MAO TSE-TUNG 150 (1961).

8 Zhongguo Tudi Fa Dagang (中国土地法大纲) [Outlines of the Land Law] (promulgated by the

Central Comm., Chinese Communist Party, Oct. 10, 1947, effective Oct. 10, 1947), in Zhongguo Tudi

Fa Dagang (中国土地法大纲) [Outlines of the Land Law] 3, 5, art. 8 (1948).

9 Mao Tse-tung, Speech at a Conference of Cadres in the Shansi-Suiyuan Liberated Area, in IV

SELECTED WORKS OF MAO TES-TUNG 229 (1961).

10 Zhongguo Renmin Zhengzhi Xieshang Huiyi Gongtong Gangling (中国人民政治协商会议共

同纲领) [ The Common Program of the Chinese People’s Political Consultative Conference]

(promulgated by the Chinese People’s Political Consultative Conference, Sept. 29, 1949, effective Sept.

29, 1949) art. 17 (Chinalawinfo).

11 Zhongyang Renmin Zhengfu Zuzhi Fa (中央人民政府组织法) [Organic Law of the Central

People’s Government] (promulgated by the Chinese People’s Political Consultative Conference, Sept.

29, 1949, effective Sept. 29, 1949) (Chinalawinfo).

12 Zhongguo Renmin Zhengzhi Xieshang Huiyi Zuzhi Fa ( 中国人民政治协商会议组织法)

[Organic Law of the Chinese People’s Political Consultative Conference] (Chinese People’s Political

Consultative Conference, Sept. 29, 1949, effective Sept. 29, 1949) (Chinalawinfo).