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Pre-1949 Development of the Communist Chinese System of Justice*

Published online by Cambridge University Press:  17 February 2009

Shao-Chuan Leng
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Extract

Before establishing the People's Republic of China in 1949, the Chinese Communists through the years had instituted revolutionary laws and courts in areas under their control. Many features of “socialist legality” in Communist China today have their roots back in the early years of the revolution. In this article I shall attempt to examine the pre–1949 development of the system of “people's justice” through: the Soviet period, 1927–34, the Yenan period, 1935–45, and the post-war period 1945–49.

Type
Chinese Communist History and Historiography
Information
The China Quarterly , Volume 30 , April 1967 , pp. 93 - 114
Copyright
Copyright © The China Quarterly 1967

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References

1 Ti-i-tz'u kuo-nei ko-ming chan-cheng shih-ch'i ti nung-min yun-tung (The Peasant Movement in the Period of the First Revolutionary Civil War) (Peking: People's Publishing House, 1953), pp. 309–380Google Scholar; Tse-tung, Mao, “Report of an Investigation into the Peasant Movement in Hunan,” Selected Works (New York: International Publishers, 1954), I, pp. 33–59Google Scholar.

2 The Peasant Movement in the First Civil War, pp. 355–356.

3 Tse-tung, Mao, Selected Works, pp. 23, 44, 54–55Google Scholar.

4 Ch'i, Yang, “A Preliminary Discussion of the Development of the People's Criminal Law during the New Democratic Stage,” Fa-hsüeh (Jurisprudence) (Shanghai), No. 3, 1957, p. 40Google Scholar.

5 Ibid.;Tse-tung, Mao, Selected Works, pp. 35–39Google Scholar.

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7 A district of Kwangtung province.

8 Eto, Shinkichi, “Hai-lu-feng—The First Chinese Soviet Government (Part 2),” The China Quarterly, No. 9 (01–03, 1962), pp. 166, 169CrossRefGoogle Scholar.

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10 The Hai-feng Soviet government had a judicial committee of nine men; each ch'ii government had a judicial committee of five men; each hsiang government had a judge.Shau-po, Ch'an, ed., Hai-lu-feng Ch'ih-huo-chi (A Record of Red Calamities in Hai-lu-feng) (Canton, 1932), pp. 76–77Google Scholar.

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14 Text in Ch'ih-fei fan-tung wen-chien hui-pien (A Collection of Red Bandit Reactionary Documents), completed under the sponsorship of General Ch'en Ch'eng, 1935, reprinted in Taipei, 1960, V, pp. 1609–1612.

15 English text in Yakhontoff, Victor A., The Chinese Soviets (New York: Coward-McCann, 1934), pp. 217–221Google Scholar, checked against the Chinese text inHung-chi chou-pao (Red Flag Weekly), No. 25, 12 4 ?, 1931, pp. 2–7Google Scholar.

16 Chinese texts in Red Bandit Reactionary Documents, III, pp. 922–927; Vol. 5, pp. 1342–1356, 1594–1602, 1629–1635. Translations of the Land and Labour Laws are available in Yakhontoff, , Chinese Soviets, pp. 221–235Google Scholar.

17 For the texts of these two Organic Laws, see Red Bandit Reactionary Documents, III, pp. 682–691, 725–793.

18 Articles 1–5. At the time of uprisings, the revolutionary masses would have the right to take direct action against the local bullies, landlords, and others. Article 6.

19 Text of this procedure is available in Red Bandit Reactionary Documents, V, pp. 1613–1616.

20 For instance, Mao Tse-tung described this struggle in his report before the Second National Soviet Congress in 1934. Yakhontoff, , Chinese Soviets, p. 261Google Scholar.

21 Text of this Regulation is available in Red Bandit Reactionary Documents, V, pp. 1629–1635, also in Shth-sou Collection (General Ch'en Ch'eng's private collection of Chinese Communist documents relative to the Kiangsi Soviet period, on microfilm at Harvard's East Asian Research Center and the Hoover Institute), 008.542/2837.

22 The People's Commissariat of Justice, Directive on the Work of Judicial Organs, Jui-chin, June 1, 1933, pp. 8–9, Shih-sou Collection, 008.548/3449.

23 Ibid., pp. 7, 9.

24 The People's Commissariat of Justice, The Work Plan for 5 Months (August-December), July 20, 1933, p. 4, Shih-sou Collection, 008.548/1027.

25 A list of courses offered in the training class of the Kiangsi Provincial Judicial Department is in Ts'ai-p'an hui-Kan (Judicial Magazine), No. 2 (07 9, 1933), p. 2Google Scholar, Shih-sou Collection, 008.54105/1732.

26 The Central Executive Committee's Instruction No. 6 of December 1931 and the People's Commissariat of Justice's Directive of June 1, 1933, contained such orders.

27 In his report to the Soviet Congress, Yakhontoff, , Chinese Soviets, p. 262Google Scholar.

28 Red Bandit Reactionary Documents, V, p. 1620.

29 Ibid., pp. 1656–1667.

30 “Circuit Courts organised by Various County Judicial Departments,” Chiang-hsisheng ts”ai-p'an pu pan-yüeh-k'an (The Kiangsi Provincial Judicial Department Fortnightly), No. 7 (10, 1933), p. 2Google Scholar, Shih-sou Collection, 008.54105/1732.

31 The Kiangsi Provincial Judicial Department's Directive (June 28, 1933) in Judicial Magazine, No. 2, p. 1; Conclusions of the Conference on the Land Investigation Drive (June 1933) in Guide on the Land Investigation Drive, Shih-sou Collection, 008.743/4063–3 c. 1; The Resolution of the Second Congress of Chinese Soviets (1934) in Gudoshnikov, L. M., Legal Organs of the People's Republic (trans, from Russian), Joint Publication Research Service (JPRS), No. 1698-N, 1959, pp. 8–9Google Scholar.

32 Judicial Work as Planned by the Hsin-kuo County Judicial Department, December 31, 1933, pp. 4–5, Shih-sou Collection, 008.548/7767.

33 Consult the sources cited in note 31.

34 Judicial Magazine, No. 2, p. 3.

35 Tse-tung, Mao, “Conclusion of the First Phase of the Land Investigation Movement,” Hung Ch'i (Red Flag), No. 61 (10 30, 1933), pp. 46–48Google Scholar.

36 As provided in the Temporary Regulations on the Organisation and Procedure of Judicial Departments in 1932, V. Chugunov, Ye., Criminal Court Proceedings in the Chinese People's Republic, JPRS, No. 4595, 1961, p. 2Google Scholar; and the Temporary Regulations on the Organisation of Soviet Military Tribunals (Arts. 12–13), Red Bandit Reactionary Documents, V, p. 1625.

37 Provided by the Regulations cited above. Chugunov, pp. 2–3, and Red Bandit Reactionary Documents, V, p. 1626.

38 Hsi-wu, Ma, “The People's Judicial Work in the Shensi-Kansu-Ninghsia Border Region during the State of the New Democratic Revolution,” Cheng-fa yen-chiu (Studies in Political Science and Law) (Peking), No. 1, 1955, p. 13Google Scholar.

39 In his report to the Second Soviet Congress, Yakhontoff, p. 262.

40 People's Commissariat of Justice, Directive on the Work of Judicial Organs, note 22, above, p. 13.

41 Red Bandit Reactionary Documents, III, 3, 794.

42 The period of War Communism usually refers to the years of 1917–21 in the Bolshevik Revolution. For discussion of soviet law in those years see Berman, Harold J., Justice in Russia (Cambridge, Mass.: Harvard Un. Press, 1950), pp. 21–24Google Scholar, and Guins, George C., Soviet Law and Soviet Society (The Hague: Nijhoff, 1954), pp. 62–64CrossRefGoogle Scholar.

43 Wei-t'ien, Chang, “Only Hatred and No Forgiveness toward our Class Enemy,” Hung-se Chung-hua, No. 193 (05 5, 1934)Google Scholar, Shih-sou Collection, 008.1052/2125, VII.

44 Shansi-Chahar-Hopei, Border Region Administrative Committee, Hsien-hsing fa-ling hui-chi (Compendium of Current Laws and Directives), 1945, I, pp. 207–214, 341–344, 370–372Google Scholar. See also Stein, Gunther, The Challenge of Red China (New York: McGraw-Hill, 1945). p. 285Google Scholar.

45 Chinese Academy of Sciences, Shen-Kan-Ning pien-ch'ü ts'an-i-hui wen-hsien hui-chi (Compendium of Documents of the People's Political Council of the Shensi-KansuNinghsia Border Region) (Peking, 1958), pp. 59–61, 238–246, 332–333Google Scholar; SCH Border Region Administrative Committee, op. ctt., I, pp. 164–174, 313–315, 219–222Google Scholar.

46 For the organic regulations of the high court, its branch courts, and county justice bureau of the SKN Border Region, see Academy of Sciences, op. cit., pp. 61–65Google Scholar, and SKN Border Region Government, Shen-Kan-Ning pien-ch'ü cheng-ts'e t'iao-li hui-chi (Compendium of Policies and Regulations of the SKN Border Region) (Yenan, Staff Office, 1944), II, pp. 96–100Google Scholar. For the organic regulations of the courts of the SCH Border Region see SCH Border Region Administrative Committee, op. cit., I, pp. 46–52Google Scholar.

47 The Shensi-Kansu-Ninghsia Border Region had, for instance, besides the high court and three branch courts, 29 county justice bureaus and only one local court. (Ma Hsi-wu, note 38, above, p. 8.)

48 Chairman Lin Tsu-han's annual report on the work of the SKN Border Region Government, January 6, 1944, inGelder, Stuart, The Chinese Communists (London: Victor Gollancz, 1946), p. 137Google Scholar. For the Chinese text seeSKN Border Region Government, op. cit., II, pp. 25–27Google Scholar.

49 Hsi-wu, Ma, op. dt., p. 8Google Scholar.

50 In his report on the work of the SKN Border Region Government, 1939. See Chinese Academy of Sciences, op. cit., p. 27.

51 Stein, , Challenge of Red China, p. 287Google Scholar.

52 Yang Ch'i, note 4, above, p. 43; also a statement made by Chou Hsing, chief of the State Political Security Bureau, October 9, 1936, inSnow, Edgar, Random Notes on Red China (1936–1945) (Cambridge, Mass.: Harvard Un. Press, 1957), p. 43Google Scholar.

53 Academy of Sciences, op. cit., p. 104. A communist writer criticises this policy as being too lenient towards the traitors and enemy agents. Ch'i, Yang, op. cit., p. 43Google Scholar.

54 Ch'i, Yang, op. dt., p. 43Google Scholar.

55 Lin Po-ch'ü's statement in his report on the work of the SKN Border Region Government, 1941. Academy of Sciences, op. cit., p. 89.

56 Text in ibid., pp. 107–108.

57 Text in SCH Border Region Administrative Committee, op. cit., I, pp. 358–364Google Scholar.

58 See Lin Po-ch'ü's report in 1939 and the SKN Border Region's Program of Administration in 1941 (Art. 7) in Academy of Sciences, op. cit., pp. 27 and 104 respectively.

59 Hsi-wu, Ma, op. cit., p. 10Google Scholar.

60 Ibid., p. 11; “ Decision on the Improvement of Judicial Work,” SCH Border Region Administrative Committee, op. cit., II, pp. 688–689Google Scholar.

61 Forman, Harrison, Report from Red China (New York: H. Holt, 1945), pp. 102–103Google Scholar. Several changes have been made to conform to the standard romanisation of Chinese names. A similar case under the name of “Liu Shao-erh's Petition” is recorded in Strong, Anna Louise, The Chinese Conquer China (Garden City, N.Y.: Doubleday, 1949), pp. 182–183Google Scholar.

62 Hsi-wu, Ma, op. dt., p. 12Google Scholar.

63 Ibid.

64 Stein, , Challenge of Red China, pp. 284–285Google Scholar.

65 For texts of these documents, seeSKN Border Region Government, op. tit., II, pp. 266–270Google Scholar, andSCH Border Region Administrative Committee, op. cit, I pp. 319–329Google Scholar.

66 The Border Regions also started to form commissions of arbitration under the county governments to resolve disputes concerning rent and interest. As opposed to mediators, the commissions of arbitration had compulsory authority and their decisions were binding. See“Directives on the work of the Commissions of Arbitration (1942),” SCH Border Region Administrative Committee, op. dt., I, pp. 179–182Google Scholar.

67 Stein, , Challenge of Red China, p. 289Google Scholar. See alsoForman, , Report from Red China, p. 102Google Scholar.

68 Hsi-wu, Ma, op. cit., p. 13Google Scholar.

69 See Lin Po-ch'ü's statements in Academy of Sciences, op. tit., p. 89, andGelder, , Chinese Communists, p. 137Google Scholar.

70 Chüeh-tsai, Hsieh, “Report of the Standing Committee of the People's Political Council of the SKN Border Region,” Academy of Sciences, op. tit., p. 197Google Scholar.

71 Ibid.

72 ibid.

73 Chüeh-tsai's, Hsieh statement in Academy of Sciences, op. cit., p. 197Google Scholar.

74 Lin's Statement in Gelder, , Chinese Communists, p. 138Google Scholar: “Instructions on the Improvement of Judicial Work, 1944,” SKN Border Region Government, op. cit., II, p. 273Google Scholar.

75 “Circulars on Judicial Work and the Production Movement, 1944,” SCH Border Region Administrative Committee, op. cit., II, pp. 692–693Google Scholar.

76 “Order concerning the Execution of the Resolution for the Improvement of the Judicial System, 1944,” ibid., pp. 686–687.

77 Lin Po-ch'ü's annual report on January 6, 1944,Gelder, , Chinese Communists, p. 139Google Scholar.

78 Academy of Sciences, op. cit., p. 294.

79 “The Declaration of the Chinese People's Liberation Army,” Mu-ch'ien hsing-shih ho wo-men ti jen-wu (The Current Situation and Our Tasks), edited by Liberation News Agency (Hong Kong: Hsin-hua Shu-tien, 1949), pp. 9–10Google Scholar.

80 Ibid., pp. 10–11. The question of prescription is mentioned in“Circulars Concerning Standards for Determining Punishment in Important Cases,” North China People's Government, Fa-ling hui-pien (Collection of Laws and Directives) (Peking: NCPG Secretariat, 1949), I, pp. 182–183Google Scholar.

81 Text in The Current Situation, pp. 14–19.

82 Kai-lung, Liao, From Yenan to Peking (Peking: Foreign Languages Press, 1954), p. 68Google Scholar.

83 Kuo-chün, Chao, Agrarian Policy of the Chinese Communist Party, 1921–1959 (Bombay: Asia Publishing House, 1960), pp. 78–80, 86, 90–91Google Scholar. It should be noted that at the end of 1947 the Central Committee reissued the tw o documents of the Kiangsi Soviet days (1933) on the classification of the status of various rural classes.Ibid., p. 79.

84 Pin-sun, Lo, Su-pei chen-hsiang (The True Picture of North Kiangsu) (Li-hsiang Publishing House, 1947), p. 150Google Scholar.

85 Belden, Jack, China Shakes the World (New York: Harper, 1949), pp. 182–185Google Scholar; Yu-ming, Pei, Wo lai-tzu Tung-pei nu-kung ying (I Came from the Slave-Labour Camps in thi Northeast) (Hong Kong: Asia Press, 1954), pp. 47–50Google Scholar.

86 Strong, , The Chinese Conquer China, pp. 185–187Google Scholar; Chiao, Huang, Hsieh-hsing szu-i (Four Blood-stained Counties) (Hong Kong: Asia Press, 1953), pp. 25–29Google Scholar.

87 Various types of torture used by the communists are described by a refugee in Ts'un-k'un, Ma, Chung-kuo ch'ih-se nei-mu (Inside Red China) (Taipei: Cheng-chung Shu-chu, 1950), pp. 40–43Google Scholar.

88 The Current Situation, op. cit., p. 89.

89 Ibid., pp. 70–71.

90 For the organisation of the people's courts in north China, see North China People's Government, op. dt., I, pp. 11–12, 179–180, 184–185Google Scholar.

91 Professor Chu An-ping's account of Kuan-ch'a (Observer), as reported in The China Weekly Review, January 14, 1950, p. 113.

92 Hsi-wu, Ma, op. cit., p. 13Google Scholar.

93 This inadequacy was clearly admitted by the president of the Peking Municipal People's Court in 1949. Secretariat of the Peking Municipal People's Court, Jen-min szu-fa kung-tso chü-yü (Illustrative Examples of People's Judicial Work) (Peking: Hsin-hua Shu-tien, 1950), p. 7Google Scholar.

94 Gudoshnikov, , Legal Organs of the People's Republic, p. 22Google Scholar.

95 Tung Pi-wu's report on the work of the North China People's Government. See North China People's Government, op. cit., I, p. 213Google Scholar.

96 The text of Mao's statement is in Chiang ko-ming chin-hsing tao-ti (Carry out the Revolution to the Successful End), edited by Liberation News Agency (Shanghai: Hsin-hua Shu-tien, 1949), pp. 18–22Google Scholar. An explanation for the decision to abolish the Kuomintang's legal system was given by the New China News Agency on February 14, 1949. Ibid., pp. 24–28.

97 Hsi-wu, Ma, op. cit., p. 14Google Scholar.

98 Text in North China People's Government, op. cit., I, p. 181Google Scholar.

99 Stated in both the directive of the Central Committee of the CCP in February 1949 and the instruction of the People's Government of North China on April 1, 1949.

100 For instance, see laws and regulations contained in North China People's Government, op. cit., IGoogle Scholar, and inShang-hai chieh-fang i-nien (One Year after Shanghais Liberation) (Shanghai: Liberation Daily Company, 1940), Part IIIGoogle Scholar.

101 See Kuo-chun, Chao, Agrarian Policy, pp. 79–89Google Scholar, for same detailed discussion.

102 The text of the proclamation is in Chung-kuo jen-min chieh-fang-chun ju-ch'eng cheng-ts'e (The Chinese People's Liberation Army's Policy on Entering Cities) (Peking: Hsin-hua she, 1949), pp. 44–46Google Scholar. Compare with “Directive on Protection of Newly-Liberated Cities” (Northeast Bureau, CCP, June 10, 1948), in ibid., pp. 37–43.

103 North China People's Government, op. cit., I, p. 7Google Scholar.

104 For the text of these regulations, see One Year After Shanghai's Liberation, Part III, pp. 13–16.

105 The leading counter-revolutionaries, however, must be punished severely. “Circu-lars Concerning Standards for Determining Punishment in Important Cases,” North China People's Government, op. cit., I, p. 182Google Scholar.

106 “Circular Order o n the Establishment of the System of Review in Criminal Proceedings,” ibid., p. 184. Art. 19 of the judicial procedures of the Shanghai people's court required the review of all death sentences by the Military Control Committee of Shanghai.

107 “Decision o n the Conciliation of Civil Disputes,” North China People's Government, op. cit., I, p. 186Google Scholar. In “Report o n the Work of the Government,” February, 1949, ibid., p. 213, Chairman Tu Pi-wu of the North China People's Government pointed out that marriage disputes constituted more than 60 per cent, of the civil cases in north China.

108 “Decision on the Conciliation of Civil Disputes,” op. cit., p. 186.