From the 'Lectric Law Library's Stacks
In the Halls of Justice the only justice is in the halls. ~Lenny Bruce
China is a large country with a total land area of 9.6 million square kilometres, and more than 1 billion people which amounts to one fourth of the world population.
People's Republic of China was established as a socialist country in 1949. Since then, efforts have been made to enact basic laws concerning criminal justice administration. It was in 1979, after the period of "Cultural Revolution" which lasted for ten years, that the Criminal Law and Criminal Procedure Law were enacted. At the same time, laws concerning the organization and function of the courts and public prosecution were also re-organized. Basic laws with regard to the lawyers, arrest and detention of the suspects, civil suit procedures, marriages, etc. have been established.
The Chinese Criminal Law takes the concept of Marxism, Leninism and Mao Zedong as its guide. It proclaims that its tasks are to use criminal punishments to struggle against all counter-revolutionary and other criminal acts in order to safeguard the system of the people's democratic dictatorship and the smooth progress of the course of socialist construction.
The Law takes the Constitution as its basis. Article 28 of the Constitution stipulates that "The State maintains public order and suppresses treasonable and other counter-revolutionary activities; it penalizes acts that endanger public security and disrupt the socialist economy and other criminal activities, and punishes and reforms criminals".
Since 1979, higher legal education has considerably developed through universities and other institutions. High priority is being given to publicizing information on the legal system through, eg. the China Law Journal, and many provincial and municipal journals, magazines and newspapers. Law education has been introduced in the primary, middle and other schools. Studies, symposia and public lectures are often organized in factories, mines, rural communes and brigades in order to give increased publicity to the Constitution and other laws.
The age for bearing criminal responsibility is sixteen. Minors under the age of fourteen are entirely exempted from criminal responsibility, even if they commit acts harmful to society. Minors aged fourteen but under the age of sixteen shall partially bear criminal responsibility, that is to say they are responsible criminally only in cases involving murder and manslaughter, serious injury, robbery, arson, habitual theft or other acts seriously undermining social order. For delinquents aged fourteen to seventeen but younger than eighteen, the Law requires a lenient punishment - to be specific, a lessor penalty within the range of the legally-prescribed punishment. When minors are not punished because they are under sixteen, the heads of their families or their guardians are to be ordered to subject them to discipline or when necessary, the minors may be given shelter or rehabilitation by the Government.
The crime rate in China has shown a drastic increase in recent years. Still China remains one of the countries with the lowest crime rate in the world. Of all the crimes reported, theft accounted for about 80%, but the violent crimes like murder and robbery were also up. Crimes associated with gangs abroad, such as trafficking in narcotics, smuggling of gold and relics, and counterfeiting of currency and credit cards also increased during 1988.
The Criminal Law provides that Principal Punishments are classified as control, criminal detention, fixed term imprisonment, life imprisonment and death penalty.
Control is a criminal penalty imposed for minor offences. The offender continues to work in his place of employment and continues to receive his normal wages, while undergoing the supervision of the public security organs (police) and the masses. He is required to make periodical reports on his circumstances to the public security organ concerned.
Criminal detention is a criminal penalty imposed for relatively minor offences, and totally different from pre-trial detention. The criminal on whom this penalty is imposed is deprived of his freedom and confined in a detention house by the local organ of public security rather than being put in prison. He may go home for one or two days each month and be paid for work. The term of fixed-term imprisonment is not less than six months and nor more than fifteen years. An offender sentenced to fixed term imprisonment or life imprisonment is to have his sentence executed in prison or in other place for reform through labour. Reform through labour is to be carried out on any offender who is imprisoned, as long as he has the ability to labour.
The death penalty is only to be applied to those offenders who commit the most heinous crimes. The Criminal Law provides for two types of death penalty viz. death penalty with two year suspension of execution and death penalty without suspension of execution. The Law stipulates that in the case of a criminal who should be sentenced to death, but for whom immediate execution is not essential, a two-year suspension of execution may be pronounced at the time the sentence of death is imposed; the criminal will be put into prison and reform-through-labour carried out and the results observed. If the criminal truly repents during the period of suspension, he is to be given a reduction of sentence to life imprisonment upon the expiration of the two-year period; and, if he not only truly repents but also demonstrates meritorious service, he is to be given a reduction of sentence to not less than fifteen years and not more than twenty years of fixed-term imprisonment upon the expiration of the period. Only those who have resisted reform in an odious manner, provided the evidence of such behaviour is verified, are to be executed upon a ruling or an approval of the Supreme Court.
The Criminal Law provides for the following supplementary punishments: fines, deprivation of political rights, and confiscation of property. These supplementary punishments may also be applied independently.
The people's procuratorates (public prosecutors) are responsible for initiating public prosecution. The people's procuratorates have the power to investigate criminal cases as well as the power to make decisions of prosecution, non-prosecution or exemption from prosecution in each criminal case considering the evidence of the case and nature and circumstances of the crime.
The people's courts are responsible for adjudication, and no other bodies are given the power to adjudicate criminal cases. The number of professional judges as of 31 December 1986 was 137,066, out of which 19,897 were female judges. More than 144,000 employees are working in the judicial system.
In Chinese prison services, there have been various new ways of mobilizing public participation in helping re-mould prisoners. For example, famous scholars, writers, educators, artists, musicians and sportspeople are invited to call on prisoners, and encourage them to make more efforts to reform themselves; former prisoners who have been already integrated into the society after release are organized to persuade current inmates to re-mould themselves; family members, relatives and friends of the prisoners are encouraged and provided with every facility to admonish and educate them.
In China, supervision of offenders both during the suspension of execution of sentence and after release on parole is carried out by the public security organ (police). Probationers and parolees are turned over by the public security organ to a work unit or a basic level organization. The policeman in charge of the community shall supervise their daily life, their work and ideological trend and encourage their consciousness to become law-abiding citizens. Meanwhile the policeman shall keep in touch with their neighbours if they conduct any law- breaking activities.
The Criminal Procedure Law stipulates that, in hearing a case of public prosecution, the people's court shall announce judgement within one month after accepting the case, and it may extend one month and one-half at the latest. Accordingly, pre-trial detention is not considered to pose any serious problem.
There are several diversion schemes to imprisonment.
Police are empowered to give warnings or to impose a certain limited amount of fines (not more than 200 yuan) to the criminals who have committed minor offences (Security Control and Enforcement Law). This warning and fine are regarded as a final sanction imposed by the police and they need not send the case to either the public prosecutor nor the court. This system is applicable to various types of minor offences including theft, embezzlement, fraud, assault, gambling, violations of traffic regulations and various types of public disturbances. If the person who receives this summary sanction is dissatisfied with the disposition, he/she can appeal to the higher police organ and finally to the courts. This scheme is fully utilized as an alternative and diversion to the formal criminal justice procedure and imprisonment.
At prosecution stage, public prosecutors are empowered to grant exemption from prosecution, considering the gravity of the crime and other circumstantial factors, even if there is enough evidence to convict the suspect. According to the Criminal Law, suspension of sentence may be pronounced for an offender who has been sentenced to criminal detention or to fixed-term imprisonment for not more than three years according to the circumstances of his/her crime and his/her demonstration of repentance, and where it is considered that applying a suspended sentence will not result in further harm to society.
An offender sentenced to fixed term imprisonment of which not less than half has been executed, or an offender sentenced to life imprisonment of which not less than ten years have been actually executed, may be granted parole if he/she demonstrates true repentance and will not cause further harm to society. If special circumstances exist, the above restrictions relating to the term executed need not be imposed.
During the period of suspension of sentence and parole, the offender is placed under the supervision of the public security organ (police), and the public security organ utilizes the mass organization of the community to help watch the offender's daily behaviour and lead him/her to become a law-abiding citizen.
It is said that the number of the revocation of suspension of sentence and parole because of the committal of new crime is very small, and that this type of community based treatment has been proving very successful, although clear statistics are not available in this regard.
Reform through Labour
Offenders who have been sentenced to detention, fixed-term imprisonment, life imprisonment or the death penalty with suspension of execution, provided that they can work, are obligated to work. Under the basic policy of "reform through labour", emphasis is placed on educating and redeeming prisoners to law abiding citizens through daily labour in the institutions. The purpose of this policy is considered to re-mould their ideology, freeing them from bad influence and habits, and to resocialize them into someone who can live on their own labour and are useful to society. Labour is considered to be a principal measure of reforming criminals, though it is not the only one.
The system of reform-through labour has been said to be effective and successful over the past forty years. It is reported that, according to some sample statistics, among those who have served a term of imprisonment, 4-6% of them committed a crime again after release.
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