PREMIUM LEGAL RESOURCES
ASK A LAWYER
The present Criminal Law and Criminal Law Procedure of the People's
Republic of China is only 15 years old. These laws were enacted in
the aftermath of Deng Xiaoping's seizure of power from the Gang of
Four by the Second Session of the Fifth National People's Congress,
July 1 1979, and have been effective since January 1, 1980.
However, these laws should not be regarded as the sole source of the
Chinese criminal law but only as its basic framework. At the outset,
it was intended that this document be supplemented as "socialist
construction" progressed. There was very little to prepare a system
which had been described as "Law without lawyers"1 for the rapid
loosening up of its social structure. Revolutionary China had drafted
laws envisioning the gradual withering of the State as Marxism took
hold. As Liu Chu, an electrical engineer until 1979 and one of the
Department of Treaties and Law's new legislative draftsmen, remarked,
"At first there were a lot of problems. The Chinese approach is to
write laws which follow what is happening in practice not the other
way around."2 For example many "capitalist economic crimes", which
are now the most publicised convictions, were not included in the
Other provisions must be considered then; the Constitution (there
have been two in the last 10 years), laws relating to public security
and public order, acts establishing specific courts and regulating
the powers and activities of law enforcement officers, and most
significantly "directives". Without this last source, the enactments
of the People's Congress cannot be regarded as providing a
satisfactory statement or arguably even foundation of the criminal
law. This therefore has to be the starting point for any
understanding of the ideological environment in which the Chinese
criminal lawyer operates.
Directives are contained in the speeches of Deng Xiaoping and other
Party leaders, in newspaper editorials, Party decisions and
"inspired" articles in legal journals. They reflect the current
ideological trends that expressly underpin any interpretation of the
Law. Article 1 of the Criminal Law indicates the guiding role of this
type of authority;
"The criminal law of the People's Republic of China, which takes
Marxism-Leninism-Mao Zedong thought as its guide and the Constitution
as its basis, is formulated in accordance with the policy of
combining punishment with leniency and in light of actual
circumstances and the concrete experiences of all our country's
ethnic groups in carrying out the people's democratic dictatorship
led by the proletariat and based on the worker-peasant alliance, that
is, the dictatorship of the proletariat, and in conducting socialist
revolution and socialist reconstruction."3
The guiding thought referred to in the statute above is the pretext
upon which a policy statement or editorial by one of the Party
leaders will stand as a clear new interpretation of the law. The
means by which this is most commonly effected now is by a clear
reference to such sources in a judgement (or even dissenting
judgement) of the People's Supreme Court.
1 Victor Li, "Law without lawyers," Boulder, Colo.: Westview Press,
2 Diana Bentley, "China's engineer of change," from Global Law and
Business (July/August 1994) p.12
3 Trans. Jerome Cohen, "The Criminal Law and the Criminal Law
Procedure of China," Beijing: Foreign Languages Press, 1990
Subsequent cases will then take the relevant opinion into account. It
has been argued that this is the beginnings of a form of case law in
China. As the maturity of China's legal system grows, there is less
of a need for directives to fill areas previously unlegislated for.
The new function of directives, as the experience of China's legal
community has grown, is to provide guidance in the interpretation of
existing laws. Areas where the "old" style of Justice Ministry
implemented directive is used would therefore include such matters as
a new policy (according to the principle above of combining leniency
with punishment) on deciding which cases call for the death penalty.1
The "new" type of judicially implemented directive would cover an
issue such as the meaning of "intoxication".2
This area of the Criminal Law is dealt with by the Criminal Procedure
Law.3 The structure of the People's Courts is divided by
administrative region (province, autonomous region, or centrally-
controlled municipality). In addition to the Supreme People's Court
with national jurisdiction, there are three levels of court in each
province. The Basic, Intermediate and Higher Courts. The jurisdiction
as courts of first instance is as follows;
i. Basic People's Courts: cases other than corruption, violation of
citizen's rights, and the dereliction of duty that are not to be
dealt with by higher courts (Articles 13,14).
ii. Intermediate People's Courts: Counterrevolutionary cases (i.e.
treason, political crimes), cases involving foreigners, and cases
with a possible sentence of life imprisonment or death (Article 15).
iii. Higher People's Courts: Major crimes with an impact on the
entire administrative region (Article 16).
iv. Supreme People's Court: Major crimes with an impact on the entire
country (Article 17).
The excepted Basic People's Court cases above may only be brought by
a public prosecutor (Article 13), other cases may be brought by a
citizen as well as by an organ of the state (Article 59). The case
will be under the jurisdiction of the people's court in the place
where the crime was committed (Article 19), unless there are reasons
for transfer or directions from a superior court. All cases have a
right to a single appeal (Article 129).
The defendant has the right to appoint a lawyer (Article 26), however
if he does not do so, the court has a discretion but no obligation to
appoint one on his behalf (Article 27). However, this provision must
be read in the context of Article 110, which provides that the
defendant is given notice of his right no less than 7 days before
trial. In many cases, this will be the defendant's first contact with
his relatives. The investigation, during which period the detained
defendant has no right to legal counsel, may take up to two months
(Article 92). The increase in lawyer's fees, although still under
strict statutory control, has put representation beyond some people's
means. I attended the interview, on Lawyers Information Day in August
1994 (a biannual day of free representation) in Anhui Province, of a
woman who waited for this chance to ask for advice on her son's
murder a month earlier.
In evidence, silence is conclusive proof of guilt if the
prosecution's evidence is otherwise reliable (Article 35). It is a
prosecutable offence not to give evidence where one has knowledge
about the circumstances of the case (Article 37).
There are new directives that curtail the right to a public trial,
and in the case of defendants below the age of 18, the case is almost
invariably held in private (Article 111). In these cases, the
defendant and his family are presented with a transcript of the
judgement (Article 121). Sentences are executed as soon as they
become legally effective (Article 157).
1 Article 43, amended by the the Decision of the Standing Committee
of the National People's Congress Regarding the Question of Approval
fo Cases involving Death Sentences June 10th 1981.
2 Article 15, "An intoxicated person who commits a crime shall bear
criminal responsibility." The statute has no table of definitions.
3 Cohen, op.cit.
The new policy on directives was partly implemented to recognise a
new stage in China's development that required an busier National
People's Congress to grant the People's Judiciary greater
independence. It was also compelled by the need to enforce a more
uniform interpretation of laws on the national courts. The immediate
problem was that many of the first judges were police or party
administrators with no legal background. Viewers of the recent film
about the bureaucratic nature of China's legal system, "The Story of
Qiu Ju," will remember that China's judges wear military uniform, and
in the less busy rural courts this mentality still prevails.
The most notable effect of this has been the tendency of some court
officials, as in traditional Chinese civil administration, to rely on
mediation to resolve disputes. In minor cases, this is expressly
provided for (Article 13 of the Criminal Procedure Law), as it is in
all civil cases. In many other areas, the local officials may also
attempt to resolve the dispute without going to court. The parties
are often unaware of their legal positions, and so perceptions of
"bargaining power" tend to be based on traditional values and
practices. In a 1993 Anhui Province case, a man received a mitigated
sentence for "intentional wounding" where he had killed a man for
raping his sister. These were the grounds for a claim of provocation
reducing the sentence from murder. However, the "provocation" in this
case had gone on for 3 years and no rape charge had ever been made.
The parents were unaware of their rights, and were advised to try
mediation even to the point of trying to force a marriage to avoid
the possibility of their daughter becoming a social outcast. Such
beliefs go back to the sayings of Confucius; "In hearing litigation,
I am no different from any other man. But if you insist on a
difference, it is, perhaps, that I try not to get the parties not to
resort to litigation in the first place."1
A further problem in imposing the rule of law, was that of delegated
legislation. In order to give the authorities of large municipalities
and special economic zones the tools to push the pace of development,
the government allowed them to initiate legislation. Where there was
a conflict with the national legislation, the national law prevailed.
The differences are now being solved by the courts rather than the
cumbersome congressional committee process.
A final feature of criminal prosecution, is the availability civil
damages for loss suffered as a result of the criminal act (Article 53
Criminal Procedure Law). In the case of murder, for example, the
victim's earning power will be one of the factors taken into account.
The family of a Shanghai construction worker could expect about
US$1000 in compensation.
The rise of juvenile crime in China, said by some sources to account
for 70% of all crime has re-opened the debate in China as to the
interpretation of Article 1 of the Criminal Law requiring punishment
to be balanced with leniency. With unemployment nearing 100 million,
there is huge pressure on the People's Judiciary to deal with the
problem. DIscussion surrounds the death penalty which is not
currently available for defendants under the age of 18 (Article 44),
although a two-year suspended sentence may be given to 16 year-olds.
Policy has generally favoured increasing rehabilitation programmes at
the expense of overburdening the crowded jails. The Criminal Law
makes a wide range of provisions for this, using many of the methods
used by traditional law (Articles 38,40). Under Qing dynasty law (and
the present law), the family situation of the offender might require
that the family business was run under surveillance rather than
detaining the offender pending investigation. It was believed that
this would help the offender and society at large to understand the
principles underlying the charges, and the benefits of justice
through the rule of law.2 Critically, suspicion of the law must be
overcome to counter the Confucian belief that, "Fathers cover up for
their sons, and sons cover up for their fathers. Uprightness is to be
found in such behaviour."3
1 Trans. D.C.Lau, "Confucius: The Analects," London: Penguin, 1979,
2 Zhang Weiren in National Taiwan University Journal of Law, Vol.17,
No.1, Dec.1987, p.63
3 D.C.Lau, op.cit., p.121
Text by Colin Graham (College of Law, London UK)
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.