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The New Criminal Law of the People's Republic of China The New Criminal Law of the People's Republic of China M. J. Meijer Chinese Law, University of Leyden On 1 July 1979 at the second session of the Fifth National People's Congress (NPC), the draft of the new criminal law was endorsed. It has come into force on 1 January 1980, and is the first comprehensive law of its kind since all laws of the former government of China were abolished in 1949.' Since the establishment of the People's Republic of China, several laws governing specific crimes have been promulgated, such as the Law on the Punishment of Counterrevolutionary Activities of 1951, the Law on the Punishment of Corruption of 1952, the Law on Narcotics of 1950, and the Law on the Undermining of the Monetary System of 1951. The Marriage Law of 1950 also contains some penal provisions. A more general law was the Law on Punishments aimed at Ensuring the Maintenance of Public Peace (also translated as the Security Administration Punishment Act (SAPA)) of 1957,2 which covered minor offenses. This was the main body of formal criminal law, though it does not mean that other offenses were not punished. There was a great number of ordinances, regulations, "methods of dealing with", directives, "model cases", and so on, destined only for official use to guide the judicial cadres in the administration of criminal justice. Jerome A. Cohen has tried to give us an impression of this body of internal guidance material in his book The Criminal Process in the People's Republic of China, 1949-1963. The Marriage Law was a revolutionary instrument meant to bring about change in the family system and the position of women in general. The laws against corruption and counterrevolutionary activities were promulgated after intensive campaigns during which the people concerned had been exposed to violence and crude forms of punishment; the laws were said to "sum up the revolutionary experiences". The largely unpublished guidance material prob- ably implies much experimentation, and portions of this material may have been applicable only in parts of the enormous realm that is China. It should be kept in mind that in China the law traditionally has been con- sidered a tool of government, a technical device. As religion formerly was in the West, ethics and education in morality in traditional China were far more ef- fective in keeping the citizens on the right track. Social censure and stigma were the important sanctions for bad behavior in those times. The communist appeal to morality-communist morality of course-is strongly reminiscent of the Con- fucianist ancestors' preference for ruling the people "by shame" (including put- ting them to shame). The techniques of educating the subjects in the doctrine of ( Sijthoff & Noordhoff, Alphen aan den Rijn, The Netherlands 6 Rev. Soc. Law 1980 No. 2, pp. 125-139 0165-0300 /80/02 /0125-15$00.20/0 Review of Socialist Law public criticism and humiliation all fit into traditional patterns. And yet, tradi- tional China did have a very respectable legal system and a long legal history, even though the Chinese never attributed divine qualities to justice. It may be said that the attitude of the communist regime towards law has been ambivalent; but for those whose goal was a well regulated stable state, the legal patchwork of the early 1950s was far from satisfactory. Long debates were held on the question whether or not the laws of the Kuo-min-tang government could to a certain extent be "inherited". 3 Soviet advisers were employed. In 1956, the periodical Studies in Politics and Law was full of articles advocating the estab- lishment of a good legal system and the education of judicial cadres. All these voices became mute after May 1957. The system of internal guidance continued, but an undercurrent in favor of codification of at least the criminal law neverthe- less persisted. A portion of the veil covering this work was lifted by Mr. P'eng Chen (Peng Zhen), the Director of the Commission of Legal Affairs of the NPC, in his speech introducing the draft of the new criminal law, where he revealed that this was the 33rd draft of its kind, and that Mao Tse Tung had approved another draft in 1963.' Probably that draft had never made it to the Congress because of other urgent matters such as the Cultural Revolution and, in its wake, the Lin P'iao affair and the "Gang of Four". Why then, was it now the time to lay the bill before the Congress? Mr. P'eng Chen's commentary on the law does not shed much light on that problem. According to P'eng, law must fulfill a role in the modernization of the socialist system, guarantee the prosecution of counterrevolutionary crimes, re- move the barriers to the positive attitude of the people to modernization and creativity, and protect the people's rights, person, and property. The com- mentary is very guarded and prudent. When we look into the new legal pe- riodical, Fa-xue yanjiu (Studies of Law), we find more outspoken views. One article attacks legal nihilism, which is laid at the door of Lin P'iao and the "Gang of Four", because they are at the moment te convenient scapegoats. In fact, however, the author's criticism seems to encompass the time before the Cultural Revolution as well. According to him, the Gang adhered to "legal nihilism", which is based on anarchism, and which seems to be a special feature of the petty bourgeois class. They misinterpreted the thesis that law will wither away when the power of the state disappears and that law is dependent on the struc- ture of society. They were wrong in assesing the objective nature of society and misread history. They replaced law by policy and instituted an inquisition, judging people by their thoughts and not by their deeds. They held the view that law bound the hand and feet of the masses. "For 10 years they poisoned the minds of our people." On the contrary, says the author, law is necessary during the dictatorship of the proletariat since it protects the achievements of the revolution; law and revolution are perfectly reconcilable. The New Criminal Code of the PRC Law is an essential tool for modernization. International law has always been especially neglected, and China should be mindful of the oppression of the imperialists in the past. In times when on the international scene important changes have occurred, it would be a matter of the greatest urgency to train personnel in the field of international law. China must strive to set up a com- plete legal system and to train the personnel for maintaining and further de- veloping it.5 Other articles are in the same vein. They also demand freedom of legal research, the old problem of "inheritability" again appears, and the study of legal history is promoted in order to acquire more insight into the essence of the law, naturally all in the Marxist-Leninist interpretation. The need for individ- ual research in law and a wider interest is thus clearly discernible. P'eng Chen in his address to the National Congress also stressed the problem of enforcement of the law. He finds the solution in "putting the law into the hands of 900 million people in order to check state organs and individuals and to struggle against violations". Special organizations must be set up and a powerful professional contingent trained for that task. "The law must become the watch- word for the entire people and the Communist Party." Perhaps stability is an ugly word for a country which calls itself dedicated to the revolution, but it seems that the present government is bent in the first place on establishing a firm basis of law and creating an atmosphere in which accord- ing to an old phrase "the officials know what rules to apply and the people what to stand in awe of". The law must restore respect for and confidence in the government in order that it may proceed with the urgent tasks of modernization and of instilling in the people the desire to exert themselves. The law which must aid the government in this task contains 192 articles, divided into two parts-general provisions and specific provisions. Part One: General Provisions The first two articles of the general provisions state the character and the aim of the law. Among the usual phraseology, we find that "the law reflects a policy of combining correction with leniency" (art. 1), and that apart from protecting publicly and collectively owned property it also affords safeguards for the "law- ful private property of the citizens". For a definition of such lawful private property, we have to turn to the last of the general provisions (art. 82) which says that it means: "the legitimate income, savings, houses and other means of livelihood and private plots of land, livestock and trees which belong to the individual and his family according to law". However, the PRC Constitution of 1978 says in Article 7: "Provided that the absolute predominance of the col- lective economy of the people's communes is assured, commune members may farm small plots of land for personal needs, engage in limited sideline produc- Review of Socialist Law tion, and in pastoral areas they may also keep livestock for personal needs". 6 This seems to be something different from private property. The rest of the first section of Chapter I is devoted to the scope of the applicability of the law, which is generally confined to Chinese territory. The special position of diplomats is recognized.
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