Journal of Criminal Law and Criminology Volume 68 Article 3 Issue 3 September

Fall 1977 Criminal Punishment in Mainland : A Study of Some Province Documents Hungdah Chiu

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Recommended Citation Hungdah Chiu, Criminal Punishment in : A Study of Some Yunnan Province Documents, 68 J. Crim. L. & Criminology 374 (1977)

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CRIMINAL PUNISHMENT IN MAINLAND CHINA: A STUDY OF SOME YUNNAN PROVINCE DOCUMENTS

HUNGDAH CHIU*

4 INTRODUCTION versities. Except for a Canadian hockey team, In an era of information explosion, one of none of the visitors appeared to have acquired the most serious problems for doing research any legal document or law teaching materials is to find enough time to search and to digest in the course of their visits. In the academic voluminous materials. A student of Chinese circle, although a course on is law fortunately does not have to face this being offered at six or more American law prob- 5 lem. He does, however, face a more frustrating schools, there have been only a few articles on problem: the lack of sufficient information or post-1966 PRC law and almost none of these research materials concerning legal develop- papers has resorted to recent PRC legal docu- .6 ments in the People's Republic of China (PRC). ments Since the outbreak of the Recently I have acquired a number of post- in 1966, almost no scholarly writings on law 1966 PRC legal documents from various have appeared in the PRC. The only PRC law sources. These documents include court judg- journal, Cheng-fa yen-chiu (Studies in Politics ments, decisions rendered by the People's Lib- and Law), ceased to appear in mid-1966. 1 The eration Army (PLA), reports on crimes issued official PRC compilation of laws and decrees, by local revolutionary committees or public Chung-hua jen-min kung-ho-kuo fa-kuei hui-pien security organs, and others. An analysis of (Collection of Laws and Decrees of the PRC), these documents, together with information has not appeared since 1964, after thirteen gathered from foreign visitors, former resi- volumes covering the period 1954-1963. Since dents of the PRC, and other sources, should the reopening of the PRC to foreign visitors in provide a general picture of criminal justice in the early 1970's, thousands of foreigners have the PRC, although conclusions derived from a visited the PRC. Despite the voluminous publi- study limited to these limited sources must, to cations arising out of these visits, there have a certain extent, be tentative. This article at- been only a few reports on the law in the tempts to use the above-stated sources to study PRC.2 While a few visitors did interview some an important aspect of the PRC's criminal jus- judicial cadres or law professors and acquired tice: the types of anti-social acts which the PRC some interesting and useful information con- considers to be criminal and the types of sanc- cerning PRC law, 3 they were not generally tions imposed on offenders. In order to make allowed to see the courts in criminal trial, the this analysis more incisive, I have limited the prisons, or legal education classes in the uni- 4 The team sighted a judicial judgment posted on a wall in Harbin, northern Manchuria, and the case was later noted in the New York Times. See Burns, * Professor of Law, University of Maryland School Racketeers Prey on China Systems, N.Y. Times Jan. 28, of Law. 1974, at 5 col. 1. For a partial translation of this I Two other law journals, HUA-TUNG CHENG-FA judgment, see Hungdah Chiu, The Judicial System HSUEN-PAO ( Journal on Politics and Law) Under the New PRC Constitution, in THE NEW CONSTI- and FA-HSDJEH (Science of Law), ceased to publish TUTION OF COMMUNIST CHINA: COMPARATIVE ANAL- long before the outbreak of the Cultural Revolution. YsIs 113-14 (M. Lindsay ed. 1976). 2 See, e.g., Cheng Huan, Law in China: Will the Harvard, Columbia, University of Maryland, People Please Take the Stand?, 75 FAR EASTERN ECON. Washington University (St. Louis), University of Cal- REV. 14 (1972); Cohen, Chinese Law: At the Crossroads, ifornia at Berkeley and Stanford. 59 A.B.A.J. 42 (1973); and Crockett, CriminalJustice 6 The only article which deals with post-1966 PRC in China, 59JUDIcATuRE 240 (1975). These are among law in significant length is Tao-tai Hsia, The Tenth the few reports on law in mainland China. Party Congressand FutureDevelopments of Law in China, See, e.g., Ruge, An Interview with Chinese Legal in HOUSE COMM. FOR FOREIGN AFFAIRS, SINO-SOvIET Officials, 1975 CHINA Q. 118 (No. 61) and Lamb, An CONFLICT- AND THE OIL CRISIS, IN HEARINGS Interview with Chinese Legal Officials, 1976 CHINA Q. BEFORE SUB-COMM. ON ASIAN AND PACIFIC AFFAIRS, 323 (No. 66). 93 Cong., 1st & 2d Sess. 390 (1973-74). 1977] CRIMINAL PUNISHMENT IN MAINLAND CHINA use of PRC documents to those which come studies: from Yunnan Province in the southwest part [a] trip to the People's Republic of China can be of China. All PRC documents analyzed in this highly misleading under certain conditions, and verified as authentic by for- article have been it is my personal conviction that the accounts of mer residents of the PRC and, whenever possi- some returnees have beeii marked either by an ble, by former residents of Yunnan Province. extraordinary naivit6 or deeply rooted commit- ments. To be sure, one's response to what one CRIME IN THE PRC sees, in China or elsewhere, is particularly gov- Until very recently,7 there have been very erned by one's personal, political and cultural few reports on crimes in the PRC and some biases, and none of us can free ourselves totally visitors, conducted on guided tours, have even from such biases. It is always hazardous, more- over, for the totally uninitiated to take any obtained the impression that the PRC has gen- managed trip.O Yet I strongly disagree with erally solved one of the most serious social those who regard a trip to the People's Republic problems facing all societies-crime. An Amer- as meaningless for the American scholars. If ican judge, after visiting the PRC in 1975, approached with seriousness and some rigor in expressed the view that "in this new society [of preparation, it can be an important learning the PRC] ... serious crime is a rarity, juvenile experience, and valuable for certain specific delinquency nearly nonexistent and lawyers research purposes, albeit, in no sense a substi- virtually unnecessary."'8 In response to ques- tute for the other research sources [such as tions concerning crime in China, submitted by original primary source materials represented this judge and members of his group, some by Communist journals, newspapers, leaflets, law professors at Peking University explained and party directives and resolutions, and inter- views]." the reasons for the low crime rate in the follow- ing terms: The assertion that crime is no longer a seri- Crime is an expression of the existence of the ous social problem in China is certainly not class struggle. So long as classes exist in a society true. In many places open to foreign visitors, there will be crime. one sees barred windows, walls with spikes on In old China crime was a very serious prob- the top, crops guarded by barbed wire, and lem. There were gangs, robbery, prostitution, watchmen on duty; bicycles, the most common opium, etc. But the reforms brought about by means of transportation, are always locked our socialist society have changed all of this and when parked. These precautions all indicate crime has been greatly reduced because the people feel more secure. There still are some that some Chinese, having failed to be trans- crimes, but for the most part they are counter- formed into Mao Tse-tung's New Man, do steal revolutionary cases involving persons who have from each other. Other evidence of crime in been influenced by the exploiting class's ideasf the PRC comes from official PRC documents, local broadcasts, court judgments or other legal While the above observation and the infor- documents smuggled out of China, observation mation gathered from a visit to the PRC are by sharp foreign visitors12 and information sup- useful in studying Chinese law, one must real- plied by former residents. The types of crimes ize the limitations involved in such resources. Professor Robert A. Scalpino has said concern- 10 No foreigners, including diplomats, can freely ing the value of visitors' reports in Chinese travel in China. See 2 J. COHEN & HUNGDAH CHIU, PEOPLE'S CHINA AND INTERNATIONAL LAw: A Docu- 7 See, e.g., Munro, Hints of Unease and Indiscipline MENTARY STUDY 1017 (1974). See also Adie, Pilgrimsto Appear in China, N.Y. Times, July 26, 1976, at 1, col. China, 10 CHINA REPORT 15 (1974). 3; Butterfield, Robbers of China Bank Seem to be Folk n Scalapino, The Study of Chinese : An Heroes, N.Y. Times, Aug. 23, 1976, at 1, col. 1; and American Political Scientist's View, in PROCEEDINGS OF China: The Breakdown, NEWSWEEK, Sept. 6, 1976, at THE THIRD SINo-AMERICAN CONFERENCE ON MAIN- 26. After the devastating earthquake that rocked the LAND CHINA 69 (Chan Lien ed. 1974). The paper is Tang-shan area in in August 1976, the summarily reported inA Trip to ChinaCan Be Mislead- ing, 22 ASIAN STUDENT 1 (No. 7, 1973). authoritative Jen-min jih-pao (People's Daily) dis- 2 dosed in an editorial of September 2, 1976 that 1 See, e.g., Burns, supra note 4. In his visit to the looting occurred after the earthquakes. See Peking PRC in the summer of 1976, Professor Ramon H. Discloses Looting Occurred After Earthquake, N.Y. Myers of Stanford University also saw two posters in Times, Sept. 3, 1976, at A3, col. 1. a city in Kirin Province reporting criminal activities, 8 Crockett, supra note 2, at 247. mostly murder cases. Letter of Professor Myers to 9 Id. at 246. the author (Nov. 5, 1976). HUNGDAH CHIU [Vol. 68 disclosed in this manner include murder, rape, In addition to crimes commited by the youth robbery, bribery, theft, black marketeering, sent down to the countryside who sneak back speculating, faking official seals or documents, to the cities-the so called "black person or illegal selling of food or cloth coupons, adul- black household," i.e., officially non-existent tery, counterrevolutionary activities, and many persons in the cities-several recent PRC docu- others. ments have revealed the existence of a signifi- Juvenile or youth offenders (between the cant number of criminal acts committed by ages of sixteen and twenty-five) constitute a juveniles or youths below the age of twenty- significant portion of criminal offenders in the five. Among these documents, the most reveal- PRC. One of the main reasons for this dispro- ing one is a Yunnan Province document enti- portionate number of youth offenders is Mao tled "Severely Strike at the Destructive Activities Tse-tung's Hsia-fang policy of sending edu- of Counterrevolutionary and Various Criminal cated youths to settle in the rural or frontier Elements" issued in March 1973.15 With respect area. This policy has met with stiff resistance to juvenile or youth criminals, the document by the youth, and some of them have escaped stated: to the cities and resorted to criminal activities to maintain their living. The situation is de- In 1971 and 1972, the whole region of [Shih- mao]16 handled XXX cases of juvenile or youth scribed by a Western reporter as follows: offenders between the ages of 16 and 25. They Many of the youths sent to the countryside have constitute about 14% of the total offenders han- reportedly found it difficult to settle down in dled. The peculiar aspects of these juvenile or the far less comfortable circumstances of the youth offenders are as follows: commune .... 1. [Some of them] came from families of the If reassignment to the countryside were for a exploiting class and they resisted thought re- limited period only, desertions might not have form, persisted in a reactionary stand, showed become so numerous. But for most of the set- hostilities toward our party and the socialist tlers, the only authorized way back to the cities system, and engaged in various criminal activ- is by admission to a university, which is limited ites. Some engaged in current counterrevolu- to a tiny minority. tionary activities; some escaped abroad and joined the enemy camp by participating in There are no official figures on desertions, but American-Chiang special agent organization; one estimate is that there are in Peking as many some engaged in theft, hooliganism, rape and as 50,000 who have fled the communes, out of a other criminal activities.... total of about one million young people from Peking who have been sent to the countryside .... Daily), Aug. 2, 1973 (). See also M. London Without money and the coupons needed to & I. London, Prostitution in Hong Kong, Excerpts from purchase cotton, meat, fuel and cooking oil, the Interview Protocols, CHINA NEws ANALYSIS, July 9, basic means of subsistence is denied to the 1976 (No. 1046) (Hong Kong). A recent traveler's defectors unless they can pursuade their parents report said a notice in , Province or someone else to take them in. But this is announced the execution of a woman accused of risky in a society where neighbors often consider prostitution. China Said to Execute Man Who Defaced it their duty to inform the authorities of such Wall Poster, N.Y. Times, Nov. 15, 1976, at 5, col 1. 15 CHIEN-CHOEH TA-CHI FAN-KE-MING HO KO- violations. CHUNG HSING-SHIH FAN-TSUI FENG-TZU TI P'O-HUAI Consequently, defectors from the resettlement HUO-TUNG (Internal propaganda materials on law program are believed to be responsible for a and discipline), published jointly by the Military 13 sizable part of the current street crime. Control Committee over the Public Security Organ of Shih-mao Region, Yunnan Province, PLA and the People's Protection Section of the Shih-mao Region Other reports indicate that some young Revolutionary Committee, Yunnan Province (Mar. women who sneak back to the cities from the 14 1973) [hereinafter cited as Y-VIII]. Photocopy cf the countryside even engage in prostitution. document in my personal file. 16This region consists of five counties and four 11 Burns, Street Crime Up in Chinese Cities, N.Y. autonomous counties; it is not clear how many people Times, Jan. 11, 1974, at 7, col. 1. reside in this region. The Yunnan Province as a 14 See, e.g., a Reuters report from Canton, Aug. whole consists of 106 counties with a total population 21, 1973, where a foreign visitor saw a court notice of about 20 million. See I-CHIU-CH'I-SHIH CHUNG- sentencing a woman to five years labor reform for KUNG NIEN-PAO (Yearbook on Chinese Communism) running a prostitution business. Min Pao (Bright 1-48 (1974). 1977] CRIMINAL PUNISHMENT IN MAINLAND CHINA

2. [Some] gave up thought reform and forgot are only a few special criminal statutes dealing 21 their [class origin] and thus changed their class with special types of offenses. On May 13, character. At the beginning, they showed dissat- 1974, a German correspondent, Grerd Ruge, isfaction with the party and the socialist system, was able to interview five members of the then gradually [degenerated into) engaging in Kwangtung Institute of Law and Political Sci- current counterrevolutionary activities.... ence. They explained to him how the courts 3. [Some] craved for easy living and disliked can handle cases in the absence of a code. laboring, indulged themselves in comfortable They said: life, and embezzled state's and collective's prop- erty.... There is in the country now no published code 4. [Many homicide cases were committed by but we have individual regulations concerning con- these juvenile or youth offenders.] Some com- special penalties. For example, regulations mitted robbery and murder because of their cerning penalties against counterrevolution- greed for money; some killed a person because aries. of an adultery dispute; some killed their wife If the case is not covered by one of the special the because they [had an affair] with another regulations we deal with it according to woman; some are morally degenerated and policy of the Party.' killed their parents . . .17 [even] Although there is no "published code," The same document also discloses an inter- information gathered from interviews does in- esting phenomenon in Yunnan Province: the dicate the existence of unpublished regulations existence of illegal planting, smoking, or selling defining murder, rape, arson, and many other of opium. It even mentions the existence of a common crimes and setting forth the maximum 8 2 4 criminal gang engaged in opium trade.' and minimum penalties for each. Despite Another Yunnan Province document is en- searches in libraries and research institutions titled "Severely Strike at the Criminal Activities in Hong Kong, the republic of China on Tai- Undermining the [Program] of Sending Edu- wan, Japan, and the United States, the author cated Youth to the Mountain Area or Country- has been unable to obtain any copies of these side" issued on September 26, 1973.19 This regulations. Their contents remain a mystery. document discloses the existence of many sex- In view of the above stated situation, one ual offenses against young women sent down cannot be certain of what types of acts consti- 2 to the countryside. 0 This phenomenon may tute criminal offenses in the PRC, and of the partially explain why some young women made punishment attached to each type of offense. every effort to sneak back to the cities. In the following, I have attempted to summa- rize the facts, charges and punishment imposed THE DEFINITION OF CRIMINAL ACTS IN THE PRC 21 There are only three major criminal statutes, While crime remains a serious social problem namely: (1) Act of the PRC for Punishment of Coun- terrevolutionaries (promulgated on Feb. 21, 1951), PRC, there is no criminal code; there in the (2) Act of the PRC for Punishment of Corruption 17Y-VIII,supra note 15, at 12-13. (promulgated on Apr. 21, 1952); and (3) Provisional 18 Id. at 10-11. Act for Punishment of Crimes that Endanger State '9 CHIEN-CHiJEH TA-CHI P'O-HUAI CHIH-SHIH CH'ING- Currency. The first two Acts were translated in J. NIEN SHANG-SHAN HSIA-HSIANG TI FAN-TSUI HUO- COHEN, THE CRIMINAL PROCESS IN THE PEOPLE'S TUNG, published by the People's Protection Section REPUBLIC OF CHINA, 1949-1963: AN INTRODUCTION of the Revolutionary Committee of Te-hung Auton- 299-302, 308-11 (1968). omous Chou for T'ai Nationality and Ch'ing-p'o m Ruge,supra note 3, at 119. Nationality, Yunnan Province (Sept. 26, 1973) [here- 2 According to the Kung Mingjih pao (Enlighten- inafter cited as Y-IX]. A not very literal translation ment Daily), Nov. 24, 1956, the Law Section of the under the tide Deal a Hard Blow to the Crimes Under- Standing Committee of the National People's Con- mining the Program of SendingEducated Youths to Rural gress was about to complete a draft criminal code at Areas appears in 11 IssuES & STUD. 111-15 (No. 3, that time. The draft code is divided into two parts, 1974). (The date that appeared in this translation General Principles and Parts, and altogether contains was mistakenly printed as Apr. 26, 1974). 14 chapters with 261 articles. 20 A Tientsin Court judgment of Aug. 5, 1973, 24 See COHEN, supra note 21, at 317. Interviews also also revealed a number of sexual offenses committed indicate that Party guidelines or instructions were against female youths sent down to the countryside. sometimes issued to change the minimum or maxi- For a partial translation of the judgment, see Hung- mum penalties provided in the unpublished regula- dah Chiu,supra note 4, at 111-12. tions. HUNGDAH CHIU [Vol. 68 on selected cases taken from a number of Examination of TABLE I shows that except Yunnan Province documents in order to find for the counterrevolutionary charges (Item out the types of offenses recognized in the XII), which are governed by the 1951 Act of PRC. For convenience of presentation, the the PRC for Punishment of Counterrevolu- study is presented in TABLE I. Some of the tionaries, 26 none of the remaining eleven types documents are presented as well in the appen- of charges is governed by any published stat- dix. utes. However, even in the absence of pub- lished statutes, an ordinary person with com- mon sense would know that rape, homicide, " Abbreviation of Source Materials: theft, opium trade or smuggling all of which YI = Translated in Document 1 of this pa- are generally recognized as criminal acts in per. most societies, are YII = Notice of the Chinese PLA Military criminal acts. Judged by Control Committee Over the Public that standard, the cases summarized above Security Organ, the Procuracy, and would reveal only two peculiar criminal of- the Court of City, Yunnan fenses in the PRC. Province, March 14, 1970. The first of these is the so-called offense of YIII = Notice of the Chinese PLA Military Control Committee (Section) over the undermining the marriage of a military service- Public Security Organ, the Procuracy, man (Fang-hai chiin-hun). In case No. 1-10, and the Court of Hsi-hsuan-pan-na the PRC'sjudiciary appears to extend the scope Chou and Ching-hung County, [Yun- of protection even to the engagement of a nan Province], [Chou is an administra- military serviceman. In that case a person who tive unit somewhat equivalent to a county in the minority area of a prov- had sexual relations with the fiancee of a mili- ince] Jan. 26, 1971. tary serviceman was subject to criminal sanc- YIII* = Those parts of YIII which have been tion.27 translated in Document 2. The second peculiar offense is the killing or YIV = Notice of the Chinese PLA Military Control Unit over the Public Security wounding of an ox or cow used for plowing Organ, the Procuracy, and the Court (P'o-huai keng-niu). The background of this of P'an-lung Borough, Kunming City, offense needs explanation. After the establish- Feb. 12, 1971. ment of the commune in 1958, all privately YV = Notice of the Chinese PLA Military owned oxen or cows became the property of Control Committee over Public Secu- rity Organs of Shih-mao Region, Yun- the commune. As a result, any injury done to nan Province, Feb. 11, 1972. these animals is, in the PRC view, in the nature YVI = Notice of the Chinese PLA Military of damaging collective property. In many rural Control Unit over the Public Security areas of China, there has always been a chronic Organ of Meng-lien County, Yunnan Province, Aug. 8, 1972. Part of this shortage of meat. Occasionally, some peasants notice is translated in Hungdah Chiu, intentionally wound or kill an ox or cow so that supra note 4, at 108-10. the meat can be distributed among the com- YVII = Notice of the Chinese PLA Military mune members. Needless to say, the killing of Control Committee over the Public a plowing ox or cow would reduce the number Security Organ of Shih-mao Region, Yunnan Province, Mar. 5, 1973. This of available oxen or cows used for plowing the notice is printed in Y-VIII, supra note field and affect the efficiency of farming. It is 15, at 3-5. for this reason that this act is a criminal offense YVIII = See footnote 15. in the PRC. YIX = See footnote 19. YX = Notice of Jui-li People's Court, Sept. However, in the PRC whether or not an 22, 1974. offense is specifically provided for in a pub- YX* = These parts of YX have been trans- lished statute is not juridically important. The lated in Document 4. reason for requiring a criminal offense to be YXI = Translated in Document 3. YXII = Notice of Bureau of Public Security explicitly provided in a published statute is of Yunnan Province, High People's based on the principle of "Nullum crimen sine Court of Yunnan Province, [and] Rev- lege, nulla poena sine lege" (there can be no olutionary Committee of Kunming Railway Bureau (Apr. 14, 1975). A not 26 See note 21,supra. very literal translation appears in 11 27 For a similar case reported in an interview, see IsSUES & STUD. 78-84 (No. 11, 1975). COHEN, supra note 21, at 324. CRIMINAL PUNISHMENT IN MAINLAND CHINA punishment of crime without a preexisting SPECIFIC TYPES OF PUNISHMENT law). But the PRC'sjudicial practice and theory The case summaries reported in TABLE I has categorically rejected this "bourgeois" the- also provide interesting information on the ory. Therefore, the most important PRC crim- principal kinds of criminal punishment applied inal legislation, the 1951 Act of the PRC for the by the PRC courts. While this problem has Punishment of Counterrevolutionaries, not been studied by ProfessorJerome Alan Cohen' the only does not define with great precision 28 and others, these case summaries nevertheless kinds of conduct that come within its reach, 2 9 shed some light on recent developments. The use of analogy but also explicitly permits the specific types of punishment revealed by the and the retroactive application of the Act to Yunnan case summaries are as follows: cover "pre-liberation" (1949) activities. 30 Legal writing in the PRC also advocates this theory. (1) Criminal penalty exempted-e.g., case Nos. In judicial practice, even the discussion of 111-3 and IV-1. whether analogy or retroactivity should be used (2) Criminal penalty exempted but subject to and by the masses-e.g., is not relevant to an accused, because the PRC criticism education case Nos. 11-14 and 11-15. has only a few pieces of criminal legislation. It (3) Suspension of sentence-e.g., case No. VI-4. does not seem possible for legal personnel to In the Yunnan Province document analyzed make widespread use of the doctrine of analogy here, only one case resulting in suspension or retroactivity. Moreover, in rendering a sen- of sentence is reported. In that case the tence, a PRC court is not required to cite the accused was sentenced to two years with legal basis of its decision, except to include the sentence suspended for two years. It is not vague expression of "sentence ... according dear whether suspension of sentence can to law."31 In some cases, a PRC court will only only be applied to a criminal who has been read its judgment to an accused, without giving sentenced to no more than two years of imprisonment. A 1957 PRC lecture on crimi- him or her a written copy. 32 nal law suggested that only sentences of a 2' In practice, considerable confusion continues to duration less than three years can be sus- exist after the promulgation of the Act. In his famous pended.Y speech entitled Problems Relating to the Correct Han- (4) Control-e.g., case No. 11-5. Control is a dling of Contradictions Among the People, (address at special type of punishment applied by the the 11th enlarged meeting of the Supreme State PRC courts. According to a 1952 PRC law,ms Conference, Feb. 27, 1957), Mao said: "In the work a person under control shall be deprived of liquidating counterrevolutionaries, good people of such as the right to were mistaken for bad. Such things have happened some political rights before, and still happen today." COHEN, supra note vote, to be enlisted in the military service, 21, at 88. choice of residence, movement of house- 9 Article 16 of the Act provides: "Those who, with hold, and demonstration and procession. A a counterrevolutionary purpose, commit crimes not person under control should also engage in covered by the provisions of this Act may be given proper employment; he or she should ac- punishments prescribed for crimes [enumerated] in tively labor for production and should im- this Act which are comparable to the crimes commit- mediately report the counterrevolutionary ted." COHEN, supra note 21, at 302. A controlled person, 1 Article 18 of the Act provides: "The provisions activities of others. of this Act also apply to those who were counter- however, is not placed under the custody of revolutionary criminals before this Act was put into the PRC authorities. effect." Id. 1 Generally speaking, only with respect to some the government. The common analogy is the rubber cases relating to aliens did a people's court choose to band-a sentence can be stretched or abbreviated, cite statutory provisions to support its judgment. See, depending on dozens of nonobjective factors.... e.g., Judgment Against the Alleged U.S. Spies Downey- If, as in my [Bao's] case, the actual sentence was Fecteau decided by the Supreme People's Court on twelve years, they [the judges] may announce twenty Nov. 23, 1954, translated in PEOPLE'S CHINA 6-8 to him, or even life." BAO Ru-WANG (J. Pasqualini) (No. 24, Supp. 1954). Document 1 is among the few & R. CHELMINSKI, PRISONER OF MAO 99 (1973). -See COHEN, supra note 21, at 514-44. exceptional cases where a people's court did cite 34 statutory provisions to support its judgment. Id. at 523. 32 Information supplied by former residents of - Provisional Measures of the PRC for Control of mainland China. See also the following information Counterrevolutionaries (promulgated on July 17, supplied by a former PRC judge to Bao Ru-wang 1952), translated in COHEN, supra note 21, at 277-79. when both were in a Chinese prison: "There is For the application of this law by a PRC court, see nothing in China to limit the sentencing power of Document 1. HUNGDAH CHIU [Vol. 68

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In the 1952 laws, the term of control is (8) Death Penalty-There are two types of death limited to three years, but "may be extended penalty: one is immediate death (e.g., case when necessary." From several cases sum- Nos. II-I and 2, XII-3 and 12), and the marized in TABLE I, it appears that control other one is suspension of the execution for may be imposed by a PRC court for as long two years (e.g., case Nos. 11-3, 6 and 7). as five years (case Nos. XII-8 and 14). After the two year period of suspension of (5) Control plus putting a (hypothetical) bad execution, the criminal may be executed or element's hat on one's head-e.g., case No. resentenced to life imprisonment or other IV-5. Great effort has been made to make long-term imprisonment.' In some cases, this sanction appear to be a "new born thing" the criminal or his or her family has to pay of the Cultural Revolution. Before the Cul- the cost of two bullets (0.35 Jen-mi-pi each, tural Revolution, a person "wearing a bad about 0.17 U.S. dollars) used to execute the element's hat" was usually placed under su- criminal.39 pervised production or labor, that is to say, he or she was required to do more labor OTHER ISSUES IN THE ADMINISTRATION OF work under supervision than an ordinary CRIMINAL JUSTICE person. Moreover, such a person was re- The case summaries also reveal some limited quired to spend many evenings in study and meetings and to perform special labor proj- information on the PRC's practice with respect ects, during holidays or after his or her to some problems closely related to the PRC's regular working hours. criminal justice, such as criminal responsibility (6) Imprisonment for a fixed term-After the of the youth, evidence in criminal trials, and Cultural Revolution, there developed two reasons for increasing or decreasing punish- types of imprisonment for a fixed term. The ment. first type entails the execution of a criminal's In every civilized society, a person assumes fixed term sentence "under the supervision criminal responsibility only upon reaching a of the masses" (cases Nos. 1-9 and 10, 111-2, certain age. The PRC also follows this princi- IV-2). This is also a "new born thing" of the ple. A 1957 PRC criminal law book notes that Cultural Revolution. According to informa- PRC tion provided by former residents of main- until 1957, the "lacked a uniform criterion land China, this form of imprisonment was for the specific age at which minors assume originated by Mao. The exact content of this criminal responsibility." However, the book sanction is not clear, but information gath- concluded that relevant documents appear to ered from interviews gives the impression suggest that "fifteen years of age is in the that those so sentenced may serve their sen- period of complete assumption of criminal re- tence at home by engaging in supervised sponsibility."4 0 In the case summaries presented labor. The freedoms of such persons are in Table I the youngest offender sentenced to severely restricted in a manner similar to the criminal sanction is sixteen years old (case No. restrictions placed on persons under control. 2, 111-4). This appears to be the minimal age The maximum term of this sanction is not clear, but case No. 1-9 suggests that it can be for criminal responsibility. as long as 10 years. The legal materials from Yunnan Province The other type of imprisonment for a under analysis disclose very little concerning fixed term entails sending the criminal to evidence and fact finding at criminal trials. one of the many reform through labor camps There is no mention of the defense of the 36 for hard working. The maximum term of accused. For example, in a number of cases, this sanction appears to be 20 years. the reason for lenient treatment was either that (7) Life Imprisonment-None of the cases sum- the criminal "frankly confessed the crime" (e.g., marized indicated the imposition of life im- case Nos. 11-16, 111-2, 3, 5 and 9) or "showed a prisonment, but this does not mean that the good attitude toward confessing the crime" PRC no longer uses this type of punishment. (e.g., At least two recent cases decided by the case Nos. 11-14, 15 and 17). On the other courts in other provinces indicate that life hand, those who showed a "bad attitude toward 37 imprisonment is still in use. 38 According to PRC officials, only a few criminals sentenced to a suspended death penalty are actually 33 For a detailed case story, see BAO, supra note 32. executed at the'end of the two-year term. 1See, e.g., Harbin court judgment mentioned su- 39Information supplied by several former resi- pra note 4 and a Tientsin court judgment mentioned dents of the PRC. supra note 20. 0 See COHEN, supra note 21, at 345. 19771 CRIMINAL PUNISHMENT IN MAINLAND CHINA confessing the crime" (e.g., case Nos. IV-4 and ysis of the documents does provide a general 9) were given a more severe punishment. This view of the operation of the criminal justice policy would result in discouraging an accused system and enables one to discern a few of its from challenging the evidence presented by basic principles. the authorities against him or her. The imposition of criminal punishment in Another situation that can result in a reduced the PRC appears to rely on vague terminology, criminal punishment is voluntary surrender general party policy, and unpublished regula- (Tzu-shou). The PRC, in this respect, still fol- tions. These factors allow flexibility of interpre- lows the traditional Chinese legal practice un- tation at the discretion of the law enforcement der which a criminal who voluntarily surren- agencies. Thus, for example, the punishment ders receives a more lenient treatment (e.g., for the offense of theft can range from criticism case No. 11-4). and education by the masses (case No. 111-5) to In the case of co-offenders, one who is willing fifteen years imprisonment (case No. I1-6).41 to expose the crimd of the other would receive Similarly, punishment for committing the of- more lenient treatment (e.g., case No. IV-10) fense of homicide ranges from three years or would be exempt from criminal sanction (see imprisonment to the death penalty. e.g., Document 4) (Ma Cheng-pang's case). This practice of flexibility in imposing a Whether the class background of an accused criminal punishment for a specific offense may affects the degree of severity of punishment partially explain why the PRC does not want to against a criminal is not very clear. Information have a criminal code which would restrict the gathered from interviews; furthermore, is con- discretionary power of the judiciary. This ex- flicting. Some felt that class background was planation, however, raises another interesting an important factor, but others considered that question. Why, twenty-seven years after the the party's periodic guidelines may be a more establishment of the Communist regime, does important factor, although class character is the PRC still want to have such a flexible also one of the important factors in determin- judicial system? One answer is that this flexibil- ing the sentence. Among the 132 criminals ity is closely related to the Communist theory reported in the Yinnan Province documents of law and the Maoist view of permanent revo- (seventy-eight of which were summarized lution. either in the table or in the documentary parts According to the Communist legal theory, of this paper), twenty-two were specifically law is primarily an instrument of state policy. mentioned as coming from "black elements." Therefore, law has to be sufficiently flexible to The materials, except for a few cases (e.g., case be able to vary with the circumstances of the No. XII-13) are silent on the class background revolutionary state. In Mao's view of perma- of the remaining 110 criminals, and I was told nent revolution, China's status as a revolution- by several former residents in the PRC that ary state will continue forever. If this is the under such circumstances they were from the case, then class struggle must also continue "people" (five red categories). The information and the law, especially criminal law, must be as provided by the Yunnan materials does not flexible as possible so as to serve the needs of a warrant a definite answer to this question, constantly changing environment and its although in some cases it does indicate that changing political objective in liquidating class class background may be an important factor enemies. in deciding the severity of the punishment. Not ,ll PRC leaders have agreed with Mao's This factor seems especially relevant in the view. Some leaders, for example, deposed case of counterrevolutionary charges (e.g., case Chairran Liu Shao-ch'i and the former Mayor No. XII-10). of Peking, P'eng Chen, asserted that the "class struggle is out theory" and urged the enact- CONCLUDING UBSERVATIONS ment of a criminal code and other major legis- Needless to say, an analysis of a limited lation. number of PRC legal documents from the 41 On June 28, 1955, a PRC court sentenced a Yunnan Province still leaves many unanswered habitual thief to death. See Chiang-hsi jih-pao questions concerning practices with respect to (Kiangsi Daily), Judie 29, 1955, translated in COHEN, PRC criminal punishment. However, this anal- supra note 21, at 540-41. HUNGDAH CHIU [Vol. 68

It appears that the question of enacting a ary 1, 1959 and we find that: criminal code is closely related to the question In 1941, the defendant joined the San-ch' of class struggle in China. A widely publicized ing-t'uan. 44 In 1943, he passed a recruiting big-character poster put out by some educated examination [held by the Nationalist Govern- youths in Canton in 1974 demands that "the ment] and joined the 4th Regiment of the 'Fourth National People's Congress' should bogus Second Honor Division and served first stipulate in black and white that all the demo- as a lieutenant and then as a captain in charge cratic rights which the masses of people deserve of military supplies. In 1947, he joined Ch'ing- should be protected, and that dictatorship will pang [an underground group]. After liberation be exercised over the criminals who committed [in 1949], criminal Liu was arrested for commit- murder, arson, gangsterism, robbery and theft ting offenses such as harboring counterrevolu- and the elements who incited armed struggles tionary elements, abducting married women, and organized conspiratorial cliques."" faking [official] seals, and counterfeiting iden- A few weeks later, another poster, which tification documents used in escaping to Tient- was believed to be prepared by the PRC author- sin. Although he was leniently handled, he not ities, severely criticized, among other things, only did not repent but also showed extreme the above quoted exhortation for not mention- dissatisfaction toward our government. In ing the need for exercising dictatorship over 1957, he wrote an anonymous letter to the the landlords, bourgeoisie, rich peasants, righ- Provincial Council distorting and exaggerating tists and counterrevolutionaries, the so-called [certain facts]. He also organized a small reac- 43 five black elements . In view of this, as long as tionary group with T'ao Chu (already under the PRC insists on classifying the population arrest) and Li Lien-ching (already placed under into two major types, the five red elements and control)45 to engage in spreading rumors and the five black elements, it seems desirable, other destructive activities. They disseminated from the PRC's point of view, not to have a reactionary utterances such as, "Revolution criminal code to restrict the judiciary in its makes no sense, early revolution is no good as application of criminal punishment. late revolution, and the latter is no good as counter-revolution." [Translated literally from SELECTED DOCUMENTS the Chinese and the translator does not know Document 1 the real meaning of this sentence.] The defend- ant, moreover, was not satisfied with his wage Criminal Judgment of the Intermediate and spread the rumor by saying, "Other work- People's ers are at the third class, while he is at fourth Court of Kunming City of Yunnan Province class. First class people do office work, second Hsin (59) Chung-i-tzu No. 134 class people wait to eat, third class people wait Organ filing the Complaint: Yunnan Mining to receive money, and the fourth class just wait Machinery Factory. Defendant: Liu Chung-ho, for death." In addition, he actively instigated also named Liu Sung, male, thirty-three years and directed criminal T'ao to escape to Burma of age, of Han nationality, and a native of by telling T'ao, "You can cross [the national [Chinese character not legible]-chiang county boundary] by pretending to be hunting there." in Yunnan Province, poor peasant family back- He also said, "If I were as young as you are, I ground, with personal class status of worker, would have already crossed [the national middle school graduate cultural level, is a fitter boundary]." At work, the defendant was a at the Yunnan Mining Machinery Factory. He loafer. He failed to observe labor discipline has a previous criminal record. and incited others to do the same, saying, The Liu Chung-ho counterrevolutionary "There is nothing to be afraid of," or "Don't case was tried publicly by this Court on Febru- be afraid of being discharged," and so forth. 4 See Concerning Socialist Democracy and the Legal Furthermore, he ingratiated himself with ap- System -Dedicated to Chairman Mao and the Fourth Na- " Abbreviation of San-min-chu-i-ching-nien-t'uan tional People's Congress, (Nov. 10, 1974), translated in (Three Principles of the People's Youth Corps). This 12 ISSUES & STUD. 142-43 (No. 1, 1976). was a Nationalist youth organization. 43 See Concerning the Socialist Democracy and Legal 4 Control is a type of criminal sanction in the System (Dec. 3, 1974), in 12 ISSUEs & STUD. 132-33 PRC, see SPECIFIC TYPES OF PUNISHMENT, supra at (No. 2. 1976). 379 & 390. 1977] CRIMINAL PUNISHMENT IN MAINLAND CHINA prentices by teaching them to sing sexually swindlers, killers, arsonists, hooligan gangs and suggestive songs, with extremely deleterious the various bad elements who seriously under- effects. mine the social order. On the basis of the above stated fact, the Chinese People's Liberation Army defendant is indeed a current counterrevolu- The Military Control Committee (Section) tionary element and should be punished ac- of the Public Security Organ, the Procuratorial cording to law. In accordance with Article 3 of Organ, and the Court of Ching-hung County 47 the Provisional Measures for Controlling Coun- Hsi-hsuan-pan-na Chou 46 terrevolutionary Elements, this court renders Notice the following judgment: Under the guidance of Chairman Mao's Defendant Liu Chung-ho shall be placed great strategic guideline concerning "sharpen- under control for two years. ing [our] vigilance [against the enemy] and If the defendant disagrees with the judg- safeguarding our fatherland" and "making war ment, an appeal petition with a copy may be preparation, famine preparation and working filed with this Court within five days from the for the people"; the people of various nation- day after receipt of this judgment. The appeal alities of our Chou received the fighting year is to be made to the High People's Court of of 1971 amid the new high tide of socialist Yunnan Province. revolution and socialist reconstruction, and the February 1, 1959 The Criminal Tribunal of struggle of the people all over the world in the Intermediate People's opposing American imperialism and social im- Court of Kunming City of perialism. In the coming new year, we will Yunnan Province continue to raise high the great red flag of (Seal of the Court) Mao Tse-tung's thought, to creatively study Acting Judge Lin Liang-t'sai and apply Chairman Mao's philosophical March 1, 1959 thought, to grasp firmly two lines of struggling This copy is the same as the original. Clerk education, and to raise a new high tide of Yu Chung-lun industrial and agricultural production by a great leap forward through learning from the Document 2 Tachai agricultural experience, overtaking Supreme Directive the Tachai [production record] and surpassing Resolutely purge all bandits, special agents, the [production record set forth in the] outline. local despots and other counterrevolutionary The situation is very good and is getting better elements. and better. However, "the enemy will not per- In order to safeguard social order and the ish of themselves," they will resort to various interest of the broad [masses], it is also neces- means to engage in destruction and causing sary to exercise dictatorship over burglars, disturbances. In order to follow the great stra- tegic deployment of Chairman Mao, firmly put 4' The Measures were approved by the Govern- into full effect the various fighting roles [de- ment Administration Council on June 27, 1952 and cided by] the "Ninth [Party] Congress" and the promulgated by the Ministry of Public Security on "Second Session of the Ninth Central Commit- July 17, 1952. Article 3 provides: tee," to grasp firmly the movement of "strike The following counterrevolutionaries who his- torically committed evil acts and who, since one-oppose three," and continuously and liberation, have not demonstrated or proved forcefully to stroke at a handful of counter- their repentance and reform though they have revolutionary elements who undermined so- not engaged in current counterrevolutionary cialist revolution and reconstruction and ab- activity, must be given definite punishment; but, if the degree [of seriousness] of their evil acts 47 A Chou is a special administrative unit similar to does not require that they be arrested and a county in the PRC. sentenced, they all shall be controlled in accord- 48 Ta-chai is a Commune at Hsi yang County, ance with these measures: Shansi Province. The Ta-chai experience refers to a revolutionary spirit of hard work and self-reliance (5) Chiang [Kai-shek]'s bogus military and gov- exhibited by the Ta-chai Production Brigade in its ernment officials who persist in their reactionary outstanding success in wasteland reclamation and standpoint; (6) Other counterrevolutionaries agricultural development in the poverty stricken Ta- who should be controlled. chai area. HUNGDAH CHIU (Vol. 68 surdly attempted to restore capitalism, to fur- ies. His crime is serious and he is hereby sen- ther put into full effect the preparation for tenced to imprisonment for twenty years .... war, to consolidate national defense, to Current counterrevolutionary criminal Chang strengthen the dictatorship of the proletariat, Yao-tsung is a male, twenty-one years of age, and to safeguard the great fruits of the Great of Han nationality, landlord family back- Proletarian Cultural Revolution, [we] in ac- ground, and a native of City. Crimi- cordance with party policy and the demand of nal Chang has persisted in his reactionary the broad masses, [hereby announce] the sen- standpoint by drawing reactionary pictures, tencing according to law of a group of special composing reactionary poems, and writing re- agents and spy elements, collaborators with the actionary posters and slogans, to slander and enemy and traitorous elements, current coun- to make malicious attacks against our party terrevolutionary elements and killers, as fol- and the socialist system, and the headquarters lows: of the Proletariat, in an absurd attempt to American imperialist spy K'ang Lang-wang restore capitalism. After his crime was exposed is a male, thirty years of age, of T'ai nationality, by the masses, he tried to flee from the country and a native of the Man-t'ang production bri- for fear of punishment and in an attempt to gade, Ta-men-lung Commune, Ching-hung betray the [motherland] and to enter the service County, Yunnan Province. Criminal K'ang of the Soviet revisionists. He was captured by joined in the American imperialist spy organi- our army and people engaged in frontier de- zation in 1967. After receiving a simplified fense. The crime committed by criminal Chang training, assignment, money for secret activi- is serious. However, during the period of his ties, equipment and materials, he sneaked into detention, he nevertheless frankly confessed our country, actively collected our military, his criminal activities; [therefore], in accord- political, economic and Great Cultural Revolu- ance with the party policy of "dealing leniently tion information, and secretly took pictures of with those who confess and severely with those our important buildings and military installa- who resist," he is hereby sentenced to imprison- tions. [All information he collected and the ment for ten years. photos he took were] turned over to [an Amer- Current counterrevolutionary criminal Shih ican imperialist] secret agent and spy organiza- Li (?The Chinese character is not very legible), tion. He also attempted to buy over the dregs is a female, thirty-eight years of age, of Han of the society and to organize a counterrevolu- nationality, landlord family background, and a tionary armed band in an attempt to subvert native of Yuan-chiang County, Yunnan Prov- the dictatorship of the proletariat. His crime is ince. Eleven of her relatives had been sup- serious. However, after his arrest, he neverthe- pressed [by the People's Government]. Crimi- less frankly confessed [his criminal activities], nal Shih has persisted in her reactionary stand- and he is hereby sentenced to imprisonment point and has shown extreme hatred toward for 20 years. our party. Since 1962, she has spread reaction- American and Chiang spy K'ang Nan-lang is ary remarks many times to slander and to make a male, forty-six years of age, of T'ai national- malicious attacks against our party and the ity, and a native of the Man-ta-hei production socialist system. In the course of the Great brigade, Tan-meng-lung Commune, Ching- Cultural Revolution, she tried to reverse the hung County, Yunnan Province. Criminal verdict and to engage in class revenge. Al- K'ang has always craved the easy life and dis- though she was criticized and educated by the liked working and he has never been properly masses several times, she still refused to repent employed. He frequently crossed the national and to reform herself. [Criminal Shih] is hereby boundary to seek opium for smoking. [Later,] sentenced to be placed under control for five he was bought over by an American-Chiang years .... spy organization and became a member of it. The party's policy has always been "dealing He actively collected our military, political, leniently with those who confess and severely economic and cultural revolution information with those who resist" and "to give [the crimi- and instigated the masses to flee the country nal] an opportunity for rehabilitation." We and to become [special agents] of the imperial- severely warn a handful of class enemies: you ists, the revisionists and counter-revolutionar- have already fallen into the vast expanses of 19771 CRIMINAL PUNISHMENT IN MAINLAND CHINA

the ocean of people's war. Your only way out is to protect [the movement of] learning from to turn yourselves in and confess your crime. the Ta-chai agricultural experience, and to If you put up a stubborn resistance, you will grab revolution and promote production, crim- definitely be subjected to severe punishment inal Yen. Ying, .who started the forest fire, is by the iron fist of the dictatorship of the prole- hereby given a severe punishment of seven tariat. years imprisonment. (The sentence shall run January 26, 1971 from March 5,. 1974 through March 4, 1981.) Document 3 If the [criminal] disagrees with the judgment, Criminal Judgment of the [Basic] Peopies an appeal may be filed with this court within Court of Meng-hai County, Yunnan Province ten days from the second day after receipt of this judgment. The appeal is to be made to the (74) Hsin tzu No. 9. Judgment Against Crim- Intermediate People's Court of Hsi-hsuan pan- inal Yen Ying for Starting a Forest Fire. na Chou. Criminal Yen Ying, who started a forest fire, Copied by the Forest Station of Meng-hai is a male, nineteen years'old, of T'ai nationality, County. poor peasant family background, and himself September 14, 1974 of peasant element. He is a native of Man-kun Document 4 Stockade, Meng-hai Commune, Meng-hai Cbunty. Before committing this offense, he PEOPLE'S COURT OF JUI-LI COUNTY labored at Meng-ta-ta'i Production Brigade of Notice the Meng-hai Commune. Criminal Yen's spontaneous capitalistic [74] Jui-fa-pu No. 1 thinking is very pronounced. He has already Under the guidance of Chairman Mao's pro- 49 acquired two private plots totalling 1.42 mou. letarian revolutionary line, the movement to On February 24, 1974, he went to his private criticize' Lin [Piao] and Confucius of this plot, which is one kilometer from-the Meng-ta- county, like other places the country over, has t'ai Stockade, to open a 0.42 mou piece of land been victoriously carried out in a penetrating, for self-cultivation [without first obtaining offi- broad, and persistent manner. Under the im- cial permission]. Criminal Yen set a fire to petus of the movement to criticize Lin Piao clear the land. However, the fire first spread and Confucius Movement, the work for "grasp- to surrounding growth and theht to about 2000 ing revolution and promoting production, mou of national mountains and forests. 1500 work, and war preparation" in various fronts mou of national mountain and forests were has been flourishing and prospering. The situ- burned, resulting in the destruction of 180,000 ation is very good and is getting better and trees (30,000 large trees and 150,000 small triees) better. The dictatorship of the proletariat is and' twenty-six bunches of commune members' further consolidated. However, a handful of firewood. Although his act does not belong to class enemies inside and without the country the category of engaging in intentional destruc- are not reconciled to their defeat. They have tion [of state property], the consequence is, resorted to various means to ehgage in sabotage nevertheless, serious. It affected the movement and disruption, in an absurd attempt to subvert of "learning from Ta-chai's agricultural expe- the dictatorship of the proletarit and to restore rience" and also undermined [the movement capitali m. In order to safeguard and to de- of "I grabbing revolution and promoting pro- velop the magnificent achievements of the duction. J'] In order to strike at the sponta- neous force of capitalism, to safeguard the Chinese philosopher. His teachings became the basis movement to criticize Lin Piao and Confucius,50 of the moral system of Confucianism which prevailed ' A mou is about 7331/2 square yards. in China for two thousand years until-the rise of 50 In 1969, Lin Piao was Vice-Chairman of the Communism in China in 1949. The basic moral principle of-the system is the maintenance of jen Central Committee of the Communist Party of China, (roughly, sympathy) between men by keeping right Vice-Premier, and Minister of National Defense, and relationships: treat those who are subordinate to you heir-apparent designated by Chairman Mao. How- as you would be treated by those in positions superior ever, he was reported to have died in September to yours. Lin Piao was accused as a follower of 1971 following an alleged abortive attempt to assasi- Confucianism. A movement to criticize Lin Piao and nate Mao. Confucius (551-479 B.C.) was an ancient Confucius was started in the PRC in 1972. HUNGDAH CHIU [Vol. 68

Great Proletarian Cultural Revolution, to safe- with and who abused female educated youths guard the movement to criticize Lin Piao and sent to the mountain area or countryside, is Confucious, to strengthen and to consolidate hereby sentenced, according to law, to fifteen the dictatorship of the proletariat, and to de- years imprisonment. velop the excellent situation of revolution and production, [we] must firmly strike out against Chen Huai-hsing, a criminal who committed the destructive activities of active counterrevo- homicide, is a male, twenty-four years old, and lutionary elements and other criminal offend- a native of Fu-yuan County, Yunnan Province. ers. In accordance with the policy of the Party, Before his arrest, he worked at the 6th Battal- state law, and the strong demand of the broad ion, 1st Regiment of Yunnan Production and masses of the people, [this court], according to Construction Military Corps. law, passes sentence on twenty-one criminals, This criminal was a military affair staff including To Chfin, a special agent dispatched [member] of the Battalion [he served], because by the Chiang group. [The sentences] are of his lack of hereby announced as follows: seriousness in reading books and study and his laxness toward thought reform, he has been arrogant and high-handed [in his Hsu Yin-hung, a criminal who had illicit behavior] and has not performed his duty seri- sexual relations with and who persecuted fe- ously. At noon of July 30, 1973, four persons, male educated youth sent to mountain areas or including [this criminal] and Yang Tsai-k'o- to the countryside, is a male, thirty years of leader of a communication squad in the same age, and a native of Ch'i-tung County, Hunan Battalion -were playing poker at Yang's room Province. Before his arrest, he was a clerk at in the dormitory, three children, including Li 10th Company, 3rd Battalion, l1th Regiment Yun-shan (thirteen years old), went to watch of Yunnan Production and Construction Mili- the game. When watching the game, Li spoke tary Corps. out the kind of cards Chen's partner had. Chen This criminal is a morally degenerate person was very annoyed and threatened Li by saying: and a confirmed hooligan. He acted indecently "Don't say anything, if you say anything again, toward or had illicit sexual relations with female I'll take a gun and shoot you to death!" He youths several times. In 1968, he acted as a then took Yung's fifty calibre submachine gun, match-maker to deceive a female youth and which was leaning on the side of the bed, then had illicit sexual relations with her several pointed the gun at Li and pulled the trigger in times. In 1972, and thereafter, he had sexual order to scare Li. [Unfortunately], a shot was relations several times with married woman fired which hit Li Yun-shan right in the head, XXX and thus undermined the marriage rela- whereon Li fell down and died. His criminal tion of another person. Most serious of all, act is serious and Chen Huai-hsing, a criminal after the distribution of Central Party Docu- 51 who committed homicide, is hereby sentenced, ment (73) No. 21, he still refused to repent. according to law, to twenty years imprison- Pretending to show concern over educated ment. youth and resorting to despicable means such as corrupt bourgeois idea, money and material inducement, he used his position and power to Ma Shao-wu, a criminal who committed an have illicit sexual relations with one, and to act offense concerning opium, alias Ma Kuo-hsiao indecently toward three, female educated or Liu Hua-ch'ang, is a male, twenty years of youths. He, therefore, seriously undermined age, and a native of Yung-chien Commune, Chairman Mao's great strategic measure of Wei-shan County, Yunnan Province. "sending educated youth to villages." Since This criminal had serious bourgeois thought, January 1973, he embezzled more than 1100 craved the easy life and disliked working. In 52 Jen-min-pi of public funds by way of faking May 1973, he sold ten ounces of opium and bills ... and other means. His criminal acts made a big profit. In February 1974, he used are serious, people are very indignant, and his counterfeited certificates and pretended to be crimes have had a bad influence. Hsu Yfin- a government official on a business trip to Jui- hung, a criminal who had illicit sexual relations li [County] and purchased 130 ounces of opium 51 The translator is unable to locate this document. there and attempted to carry the opium and 52 $1 jen-min-pi is about U.S. $0.50. four smuggled watches to Wei-shan [County] 19771 CRIMINAL PUNISHMENT IN MAINLAND CHINA for sale. He was caught in flagrante delicto by This criminal was very lax toward his thought [our security force on this way to Wei-shan]. reform, craved the easy life and disliked work- After going to prison, he did not [cooperate in ing. He frequently crossed the national bound- confessing] his crime and showed an attitude ary to engage in smuggling, speculating and of resistance. Ma shao-wu, a criminal who com- profiteering activities. In 1970 and thereafter, mitted offenses involving opium, is hereby se- this criminal illegally purchased at Kunming, verely sentenced, according to law, to fifteen Pao-shan and other places, industrial prod- years imprisonment. All money and articles he ucts53 such as more than twenty covers of com- illegally acquired are hereby confiscated. forter and pad sheets, liberation shoes, flash- Ma P'in-liang, alias Wang Ch'ao-ming, a lights, and basins, and carried them out of the criminal who committed offenses involving country and sold them. Then he bought six opium, is a male, twenty-seven years of age, smuggled watches there, carried them to and a native of Yung-p'ing [Production] Bri- Kunming, sold them there and thus acquired a gade, Yung-chien Commune, Wei-shan big profit of more than 400 Jen-min-pi. At the County, Yunnan Province. same time, he also twice illegally sold twenty Ma Cheng-pang, an offender in the same kilograms of mercury, a contraband proscribed case, alias Chao Cheng-hua, is a male, thirty- by the state. Moreover, this criminal frequently three years of age, and a native of Yung-p'ing loafed about in different places to engage in [Production] Brigade, Yung-chien Commune, pickpocketing, stealing and gambling activities, Wei-shan County, Yunnan Province. and thus seriously disturbed social order. Hu Criminal Ma P'in-liang made a profit by Ch'ing-sheng, a criminal who engaged in smug- purchasing six more ounces of opium for Ma gling, is hereby sentenced, according to law, to XX in December 1972. In February 1974, by five years imprisonment. using counterfeited certificates, the two crimi- The Party policy has always been one of nals pretended to be government officials on a "dealing leniently with those who confess and business trip to Jui-li [County] and purchased severely with those who resist," and "the ring- 325 ounces of opium and a watch there in an leader must be punished, while those who were attempt to carry them to the interior for sale. forced to participate in the criminal activities They were caught in flagrante delicto by [our shall not be prosecuted." We severely warn the security force on their way to the interior]. In handfuls of class enemies and criminals: Your the course of detention and investigation, Ma only way out is to stop doing evil, give your- P'in-liang did not [cooperate in confessing] his selves up, and to become a new person. If you crime and showed an attitude of resistance; want to resist desperately and continue your criminal Ma Cheng-pang, however, frankly evil activities, you will be subject to severe confessed his crime, actively exposed the crim- punishment by the dictatorship of the proletar- inal acts of his accomplice [in the same case], iat. thereby exhibited meritorious behavior. In ac- The people of all nationalities throughout cordance with the spirit of Party policy of the country must further study and" carry out "dealing leniently with those who confess and the spirit of "The Tenth Party Congress," 54 severely with those who resist," Ma P'in-liang, firmly recall Chairman Mao's teaching of a criminal who committed an offense involving "never forget class struggle." We must rely on opium, is hereby severely sentenced, according the Party's basic line as the key: persist in to law, to fifteen years imprisonment. As for "seriously reading books and study so as to criminal Ma Cheng-pang, he is leniently ex- master Marxism," continue developing the empted from criminal punishment. All money 5'In the PRC, many industrial products are ra- and articles illegally acquired by the two crimi- tioned, one has to present enough industrial coupons nals are hereby confiscated. before he can purchase a certain industrial product such as a pair of shoes. 5'The Tenth Party Congress was held in Peking Hu Ch'ing-sheng, a criminal who committed in Aug. 24-28, 1973 and promulgated a revised the offense of smuggling, is a male, twenty-two Constitution of the Communist Party of China. The years of age, and a native of Ching-te County, Congress supported an earlier decision of the Party's Anhwei Province. Before his arrest, Central Committee to expel Lin Piao from the Party he lived at and called upon the people to support the theory of O-o [Production] Brigade,, Chieh-hsiang Com- continuing revolution under the dictatorship of the mune, Jui-li County. proletariat. HUNGDAH CHIU [Vol. 68 movement to criticize Lin Piao and Confucius the enemy situation, closely watch the new in a penetrating, broad, and sustaining way, direction of class struggle, strike against the and to raise a new high tide of "[the movement destructive activities of a handful of class ene- of] learning from the Ta-chai agricultural ex- mies, so as to further consolidate and perience." We should also further raise our strengthen the dictatorship of the proletariat. awareness of class struggle, struggle to [find [Let us] "grasp revolution, and promote pro- the correct party line], and the [theory of] duction, work, and war preparation," unite continuing revolution under the dictatorship together, and achieve an even bigger victory. of the proletariat, increase our awareness of September 22, 1974.