Marketing Fragment 6 X 10.5.T65

Cambridge University Press 978-0-521-86940-9 - Legal Reform and Administrative Detention Powers in China Sarah Biddulph Index More information

INDEX

abuse of power lawfulness of specific administrative act detention for investigation 333 297–8 police (public security organs) 276, 280–1, lawyers and 303–5 312–3, 327, 361, 367 parties administration according to law 240–3, applicant 298–303 365 respondent 303 balance theory 244–5 Party leadership and 314–8 building basis of laws and rules 248–50 procedural issues 306–8 debates over purpose of administrative law scope of litigation and accepting a case 244–5 295–7 flexibility as problem of discretion 246–7 social order policy and 314–18 formalist approaches 243–4 withdrawal of applications 308–12, 327–30 redefining law and its values 250–6 administrative review 294–5, 318–20, 328, constraining scope of MPS rule-making 329 power 251–3 decisions 325 efforts by NPC to increase control over jurisdiction of review organs 324–5 legislation 250–1 lawfulness and appropriateness of specific regularising rule-making 253–5 administrative act 321–2 strengthening supervision over procedures 322–4 rule-making 255–6 scope of review 320–1 rule of law administration 245–6 age limits, Re-education through Labour administrative detention powers 3–6, 94, 149, (RETL) and 206 358–62 Alford, William 18 conceptual framework of study 18–20 Anti-Rightist Campaign 85, 86, 87, 92 continuities and discontinuities between arrest 64 reform and pre-reform era 353–8 asylums 6 institutional mechanisms for policy and rule formation 356–7 Bakken, Borge 100, 119, 126 significance of repetition with difference balance theory 244–5 for possibilities for legal change 357–8 Baum, Richard 45 social order policy context 354–6 Beijing criticisms 6 community organisations 112 historical context 61, 62, 92 crime in 132 legal characterisation 8–9 drug campaigns in 79 ‘legal field’ concept and 57–8, 362–71 prostitution in organisation of study 20–5 detention of prostitutes 74 questions and hypotheses of study 12–18 eradication measures 71–2 recent history 7–8 Bonnin, Michel 51 see also individual topics Bourdieu, Pierre 19, 26, 27, 28, 29, 30, 32, 33, administrative law, debates over purpose of 35, 36–40, 41, 42, 55, 57, 94, 363, 364, 244–5 367, 369, 371 administrative litigation 294–5, 328, 329 decisions 312–14 Campaign to Suppress Counter- independence in adjudication 314–18 revolutionaries 64–6, 67, 78, 81, 94, jurisdiction 310 128

477

INDEX

Chen Jianfu 47 police and 225–7, 228, 230, 274, 363 Chen Weiguo 297 Comprehensive Management of Public Chen Yingchun 300 Order (CMPO) Committee 234–5 China Academy of Social Sciences (CASS), contest for control between MPS and Law Research Institute 52 local Party 238–9 Chiu Hongdah 44 Discipline Inspection Committee 286–7 Christian groups 205 enforcement policy 231–2 citizen complaints 279, 281, 288, 290–327 ideological leadership and professional administrative litigation 294–5, 328, 329 ethos 236–8 applicant 298–303 individual interference in police work decisions 312–14 239–40 independence in adjudication 314–18 organisation leadership over law lawfulness of specific administrative act enforcement 232–5 297–8 organisation leadership over public Party leadership and 314–18 security organs 235 procedural issues 306–8 Political-Legal Committee 232–4 respondent 303 supervision 284 scope of litigation and accepting a case prostitution eradication campaigns and 161, 295–7 165, 173 social order policy and 314–18 Re-education through Labour (RETL) and withdrawal of applications 308–12, 82–4, 87, 88, 89, 90, 194, 195, 209 327–30 reforms 341 administrative review 294–5, 318–20, 328, registration and control of politically 329 suspect and campaigns against decisions 325 counter-revolutionaries 63, 64–6 jurisdiction of review organs 324–5 ‘Six Evils’ campaign and 137, 162 lawfulness and appropriateness of specific socialist spiritual civilisation and 105, 118 administrative act 321–2 unauthorised migration from rural areas and procedures 322–4 91 scope of review 320–1 community organisations 111–14 expanding and regularising systems 291–4 mutual surveillance 90 letters and visits 290–1 policing and 110, 115 citizen empowerment 326–7 Re-education through Labour (RETL) and coercive drug rehabilitation 5, 9, 121, 152, 210–11 153, 179, 192, 356 social disorder programmes and 67 administrative review 294 social help and rescue for drug addiction legal basis 259, 262 180–1 management of detention centres and compensation 284, 325 revenue raising 188–91 complaints see citizen complaints procedural regulation 269 Comprehensive Management of Public Order procedures 187–8 (CMPO) 95, 103–5, 106, 107–9, 150, regulation 185–6 177, 194, 234–5, 287, 354, 369 targets 186–7 prostitution and 157 time limits 187 strengthening leadership 109 Cohen, Jerome 7 conceptual framework of study 18–20 collectivisation programme 86 Constitution of China (1982) 96, 248, 251, Communist Party (CCP) 5, 20, 31, 41, 43, 54, 266, 336, 342, 343 96, 192, 371 continuities and discontinuities between administrative litigation and 314–18 reform and pre-reform era 353–8 Central Committee (CCPCC) 10, 11, 31 institutional mechanisms for policy and rule Comprehensive Management of Public formation 356–7 Order (CMPO) and 104, 107 significance of repetition with difference for strengthening leadership 109 possibilities for legal change 357–8 detention for investigation and 335 social order policy context 354–6 drug addiction campaigns 78–9, 182 contradictions, theory of 68–70, 104, 144–5, Hard Strike campaigns and 125, 128, 130, 355 132, 133 control measures 65–6

478

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Cooney, Sean 34 legal basis 259, 262 corruption 97, 98, 99, 237, 239–40 management of detention centres and police 276 revenue raising 188–91 counter-revolutionaries 62 procedural regulation 269 Campaign to Suppress Counter- procedures 187–8 revolutionaries 64–6, 67, 78, 81, 94, regulation 185–6 128 targets 186–7 Re-education through Labour (RETL) and time limits 187 205–6 drug free communities 181 registration of 63 Re-education through Labour (RETL) and courts 181, 188, 196, 202 People’s Courts 8 re-emergence of problems after 1970s Hard Strike campaigns and 129 177–9, 191 Supreme People’s Court (SPC) 54, 317, 329 registration of drug users 77, 80, 179–80 administrative litigation and 300, 303, social help and rescue 180–1 306, 307 strategies against 76–81, 92, 354 detention for investigation and 336 Dutton, Michael 14, 15, 66, 67, 116, 355 legal basis of administrative detention powers and 258 economic crimes 99 see also administrative litigation economic modernisation programme 3, 39, 94, crime 62, 354 226, 369 characterisation of 96–7 inequalities and 97 contemporary problems 98–103 legal system and 46–51 high tides of 107 social changes and 94 international comparisons 100 education 61, 118–20 prevention 108, 114, 119 detention for 5, 9, 359 punishment 103, 122, 123 administrative review 294 death penalty 103 legal basis 258–9 security defence punishment 345–8, 350 procedural regulation 268 see also fines; Hard Strike campaigns prostitutes 74–6, 121, 152–3, 160–2, 165, specialist struggles and concerted action 359 against 135–6 work-study schools 6, 121 criminal justice system 3 see also Re-education through Labour Cui Ming 144 (RETL) Cultural Revolution 31, 41, 110 empowerment 326–7 Re-education through Labour (RETL) and ethnic minorities 196, 206 90 evidence administrative litigation 306 damages 326 detention for prostitutes and 172 death penalty 103 decisions Falun Gong 196, 205, 224, 305 administrative litigation 312–14 feudal superstitions 202 administrative review 325 fines 356 supervision of RETL decision 279–80, 281 drug users 192 Deng Xiaoping 3, 44, 99, 123, 124, 126, 127, prostitution 176 128, 144, 225, 355 flexibility as problem of discretion 246–7 detention centres 130 forced labour 81, 89 detention powers see administrative detention see also Re-education through Labour powers (RETL) dictatorship 69, 124, 125–7 formalist approaches 277 discretion, flexibility as problem of 246–7 administration according to law and 243–4 disillusionment 326–7 Fu Hualing 97, 113 Dowdle, Michael 53 drug addiction 8, 66, 93, 118 gambling 202 coercive drug rehabilitation 5, 9, 121, 152, Gao Kefeng 311 153, 179, 192, 356 Geng Weijun 296 administrative review 294 Goldsmith, Andrew 56

479

INDEX

governance, law as basis for 240–7 Jiang Bixin 308 Great Leap Forward 10 Jiang Zemin 4, 54, 241, 317 Gu Angran 338 Johnson, E. H. 236 Gu Xin 52 Jones, Carol 39, 40 Guangdong judges 56 drug addiction campaigns 182 judicial assistants 113 eradication measures against prostitution in jurisdiction 160 administrative litigation 310 administrative review 324–5 Hard Strike campaigns 10, 15, 49, 95, 99, 121, juvenile offenders, training for 6 150, 224, 233, 315, 355, 357 administrative detention and 139–41 Kahn-Freund, Otto 34 as antithetical to legal norms 145–8 Keith, Ronald 32, 50, 53 campaign of 1983–7 127–32, 141, 149 Kirkby, R. 91 background 124, 125–7 debates on continuing emphasis on ‘Hard labour disputes 97 Strike’ 141–3 law, rule of see rule of law as method of dealing with antagonistic lawyers 56 contradictions 124–5 administrative litigation and 303–5 police supervision in 286 Lee, Tianfu 14, 15, 116 prostitution and 157, 160, 163–5, 173, 176 legal basis of administrative detention powers Re-education through Labour (RETL) and 272, 297, 321–2, 358–60 139, 140, 206, 208–10 Administrative Litigation Law 257–60 subsequent campaigns (1996 and 2001–3) Administrative Punishments Law 260–4 132–5 beginnings 256–7 theory of contradictions and 144–5 coercive drug rehabilitation 259, 262 Harding, Harry 105 constitutionality of administrative Harmonious Society policy 4 detention powers 266 Hawes, Colin 53 detention for education 258–9 Henriot, Christian 75, 76 detention for investigation 334–5 Herschatter, Gail 76 legalisation of detention powers 358–60 HIV/AIDS 155, 172, 177 legalisation of environment 360–2 Hong Kong 40 legality of administrative detention powers household registration 63, 90–1 265–6 Hu Yaobang 121 Legislation Law 264–5 Huang Jie 291 Re-education through Labour (RETL) 260, Human Rights Watch 206 263 hypotheses of study 12–18 ‘legal field’ concept 19, 27–30, 362–71, 372 independence in adjudication 314–18 actors 365–6, 371 inequalities 4 adaptation to Chinese context 40–3 informants 115 administrative detention and 57–8 Internal Affairs Ministry 78 boundaries of the field 30–2, 364–5, 371 investigation, detention for 6, 8, 10–12 Bourdieu’s use of Weber’s view of legal debates about reform or abolition 335–8 domination and legitimation 36–40 demise of 332–40 competition over establishment of legal ‘Hard Strike’ campaigns and 139 norms 365–6 incorporation into CPL and ongoing emergence of legal field 363–4 interpretations 338–40 functioning 368–71 legal basis 334–5 growing force of law 366 problems with 332–4 legal production and legitimation 35–6 supervision of 287 limits to force of law 367–8 use of RETL for investigation 204 relative autonomy of legal field 32–5 Islam 206 legal reform see reforms legal service offices 113 Jayasuriya, Kanishka 47 legal system 3, 13, 18–20, 26–7 Jeffreys, Elaine 70, 155 actors 55–7

480

INDEX

changing nature of legal instrumentalism migration, unauthorised migration from rural 43–55 areas 10, 91–2, 99 economic reform period 46–51 Ministry of Justice 113 revolutionary and bureaucratic justice constraining scope of MPS rule-making 1949–79 44–5 power 251–3 rule of law 51–5 Ministry of Public Security (MPS) 11, 20, 53, socialist legality 45–6 62, 123, 192, 272, 366, 368 disillusionment with 326–7 administration according to law and 242, ‘Hard Strike’ campaigns antithetical to 244 legal norms 145–8 administrative litigation and 302, 307, 312 see also administration according to law administrative review and 318–20, 321, legislating powers 322, 323 building basis of laws and rules 248–50 detention for investigation and 333, 334, redefining law and its values 250–6 337, 339, 340 constraining scope of MPS rule-making drug addiction campaigns 79, 177, 179, 180, power 251–3 183, 186, 188, 189–90 efforts by NPC to increase control over ‘Hard Strike’ campaigns and 131, 140 legislation 250–1 legal basis of administrative detention regularising rule-making 253–5 powers and 258, 260, 262, 264, 265 strengthening supervision over police and 229, 230, 238–9 rule-making 255–6 prisons and 67 Leng Shaochuan 44 procedural requirements and 269 leniency policy 64, 78 prostitution eradication campaigns and 156, letters and visits system of complaints 290–1 162, 166, 167, 170, 171, 173 Li Jinsheng 311 Re-education through Labour (RETL) and Li Lianjiang 326 89, 90, 195, 197, 198, 200, 210, 213, Li Peiyao 132 214, 215, 349, 360 Li Peng 135 registration of designated groups and 116 limitation periods ‘Six Evils’ campaign and 137, 138, 183, administrative litigation 306 201 administrative review 322 supervision of police and 278, 280–6, 287, Re-education through Labour (RETL) 328, 366 217–18 legal division 284–6 Lin Zhiqiu 32, 50, 53 as means of controlling local abuses litigation see administrative litigation 280–1 Liu Fuzhi 128 Public Security Supervision Committee Liu Shaoqi 87 282–4 Liu Zhihua 155 Ministry of Supervision 286–7 Lo, Carlos Wing-Hung 47 minorities 196, 206 local government modernisation administrative litigation and 316 economic modernisation programme 3, 39 police and 238 legal system and 46–51 supervision of police and 287–90, 329 legal system and 38, 40 local mediation 112–14 Lubman, Stanley 45, 49 National People’s Congress (NPC) 53 Luo Gan 137 detention for education and 359 Luo Ruiqing 62, 64, 72, 80, 84 drug addiction campaigns and 185 Lynch, Daniel 120 efforts to increase its control over legislation 250–1 Ma Dandan 172 ‘Hard Strike’ campaigns and 129 Ma Weigang 80, 93 legal basis of administrative detention McBarnet, Doreen 56 powers and 256, 259, 264, 273 McCormick, Barrett 38 police and 228 Mao Zedong 61, 68, 69, 70, 104, 105 prostitution eradication campaigns and mass incidents see protests (mass incidents) 168–9, 170, 173 mass-line of policing 68, 110, 114–16, 236 Re-education through Labour (RETL) and mediation 112–14, 308 85, 194, 342, 344, 345

481

INDEX

National People’s Congress (NPC) (cont.) political boundaries 225–7 Standing Committee (NPCSC) 11, 52, 53 ‘Six Evils’ campaign and 136 supervision of police and 287–90 social order powers 109–23 administrative powers 120–3 O’Brien, Kevin 97, 326 regulation and education 109–20 supervision see supervision of police Parsons, Talcott 37 political targets, Re-education through Labour Peerenboom, Randall 16, 304 (RETL) 205–6 Pei Minxin 41, 54, 304, 310, 326 pornography 137 Peng Zhen 49, 71, 72, 96, 123, 124, 128, 129, Potter, Pitman 41, 205, 232, 233 147, 194, 226, 231, 232, 233, 240, 275, prevention of crime 108, 114, 119 314–15 prisons 67 people’s communes 86 procedures People’s Courts 8 administrative litigation 306–8 ‘Hard Strike’ campaigns and 129 administrative review 322–4 People’s Procurate 8 coercive drug rehabilitation 187–8 police (public security organs) 3, 4, 8, 14, detention of prostitutes 171–3 56–7, 95, 223–4, 272, 368 procedural requirements 273 abuse of power 276, 280–1, 312–13, 327, importance of procedural regularity 361, 367 267–8 administrative litigation and 310, 311, 315 next steps 269–71 community organisations and 110, 115 strengthening of procedural regulations corruption 276 268–9 crime and 100, 102, 107 Re-education through Labour (RETL) detention powers see administrative changing examination and approval detention powers procedures 210–11 drug addiction campaigns and 180, 191 problems with approval process 214–15 ‘Hard Strike’ campaigns and 127, 128, 129, public security organs examination and 141, 142–3 approval 211–14 household registration and 91 recent reforms 215–17 informants 115 professors of law 55 local mediation and 113 proportionality principle 147 mass-line of policing 68, 110, 114–16, 236 prostitution 8, 66, 93 Party leadership over 225–7, 230, 274, 363 definition 168–9 Comprehensive Management of Public detention of prostitutes 92, 141, 157, 191, Order (CMPO) Committee 234–5 356 contest for control between MPS and detention for education 74–6, 121, local Party 238–9 152–3, 160–2, 165, 359 Discipline Inspection Committee 286–7 legal basis 258–9 enforcement policy 231–2 legal elasticity 173–6 ideological leadership and professional procedural regulation 268 ethos 236–8 procedures 171–3 individual interference in police work regulation 165–7 239–40 targets 167–70 organisation leadership over law time limits 170 enforcement 232–5 eradication measures 70–3, 156–8, 354 organisation leadership over public Beijing 71–2 security organs 235 concerted action against ‘Yellow Evils’ Political-Legal Committee 232–4 and ‘Six Evils’ 1989–90 162–3 supervision 284 ‘Hard Strike’ campaigns 157, 160, 163–5, prostitution eradication campaigns and 154, 173, 176 155, 166, 173, 191 Shanghai 72–3 protests and 98 specialist struggles against prostitution Re-education through Labour (RETL) and from 1986 160–2 212 fines 176 reforms 227 Re-education through Labour (RETL) and People’s Police Law 1995 228–30 157, 201–2

482

INDEX

re-emergence in 1970s 153–5, 191 reforms 372 sexually transmitted diseases (STDs) and administrative detention powers 331–2, 72, 75, 155, 156, 158, 159, 172 350, 353, 370 protests (mass incidents) 97–8, 120 creation of security defence punishment Re-education through Labour (RETL) 345–8, 350 targeting protesters 205–6 detention for investigation 332–40 public opinion, crime 103 law as forum of debates about 340–1 public security organs see police ongoing legislative reform 348–50 punishment 103, 122, 123 Re-education through Labour (RETL) death penalty 103 215–17, 341–5, 350 security defence punishment 345–8, 350 police (public security organs) 227 see also fines; ‘Hard Strike’ campaigns People’s Police Law 1995 228–30 political boundaries 225–7 questioning, detention for 6 see also economic modernisation programme rationality 36, 37, 40 registration reactionary elements see designated groups 116–18, 355 counter-revolutionaries; rightists drug users 77, 80, 179–80 Re-education through Labour (RETL) 5, 8, 9, households 63, 90–1 92, 121, 122, 193–4, 218–19, 315, 349, prostitutes 156 354, 357, 360–2 regulation administrative litigation on 297, 307, 312 coercive drug rehabilitation 185–6 administrative review 294, 320 detention of prostitutes 165–7 controlling scope since 1961 87–90 procedural 268–9 detention for investigation and 334 Re-education through Labour (RETL) 341 development 81–4 social order powers 109–20 drug addiction and 181, 188, 196, 202 see also supervision of police ‘Hard Strike’ campaigns and 139, 140, 206, repatriation, detention for 6, 331 208–10 review see administrative review legal basis 260, 263 revolutionary justice 44–5 legislative basis and expansion from 1957 rightists, Re-education through Labour 85–7 (RETL) for 85, 92 limitation and time limits 217–18 Ruan Chongwu 131 procedures rule of law 51–5, 357, 361 changing examination and approval administration according to law 240–3, procedures 210–11 365 problems with approval process 214–15 balance theory 244–5 public security organs examination and building basis of laws and rules 248–50 approval 211–14 debates over purpose of administrative recent reforms 215–17 law 244–5 prostitution and 157, 201–2 flexibility as problem of discretion 246–7 reforms 215–17, 341–5, 350 formalist approaches 243–4 legislation 343–5 redefining law and its values 250–6 proposals 342–3 rule of law administration 245–6 reinvigoration after 1979 194–5 law as basis for governance 240–7 supervision of decision 279–80, 281 targets 195, 356 security defence punishment 345–8, 350 age limits 206 sexually transmitted diseases (STDs) consolidation of 207–8 drug addiction and 177 expanding geographical limits 203–4 prostitution and 72, 75, 155, 156, 158, 159, expanding scope of targets from 1980 172 196–8 Shanghai, prostitution in minor offences 198–201 detention of prostitutes 74–5, 141, 158–9 political targets and protesters 205–6 eradication measures 72–3, 163 social evils 201–3 ‘Six Evils’ campaign 136–9, 162, 163, 183, use of RETL for investigation 204 201, 208 re-education through labour law 343–5 social changes 94, 96

483

INDEX

social disorder 4, 7, 61, 96, 97–8, 354 Re-education through Labour (RETL) 195, developing approaches to deal with 62–70 356 conceptual structure 68–70 age limits 206 registration and control of politically consolidation of 207–8 suspect and campaigns against expanding geographical limits counter-revolutionaries 63–8 203–4 social help and rescue, drug addiction 180–1 expanding scope of targets from 1980 social order powers 109–23, 149, 326–7, 196–8 354–6, 357 minor offences 198–201 administrative litigation and 314–18 political targets and protesters 205–6 administrative powers 120–3 social evils 201–3 institutional processes 356–7 use of RETL for investigation 204 regulation and education 109–20 Terdiman, Richard 29 socialist legality 45–6 time limits socialist spiritual civilisation 105–7, 118 administrative litigation 306 Soviet Union 45 administrative review 322 State Council 10 coercive drug rehabilitation 187 Sun Zhigang 332 detention of prostitutes 170 superstitions 202 Re-education through Labour (RETL) supervision of police 275–7, 366 217–8 Discipline Inspection Committee 286–7 Trevaskes, Susan 134 initiated by citizen complaint 279, 281, Trubek, David 27, 33, 39, 42, 46, 288, 290–327 56 administrative litigation 294–5, 328, 329 Turner, Karen 244 administrative review 294–5, 318–20, 328, 329 vagrancy 66, 91, 99 expanding and regularising systems 291–4 letters and visits 290–1 Wacquant, Loic 43 Ministry of Public Security (MPS) 287, 328 Wang Feiling 117 legal division 284–6 Wang Shouye 155 as means of controlling local abuses Weber, Max 36–40 280–1 Wen Jiabao 332 Public Security Supervision Committee Winkler, Edwin A. 14 282–4 work programmes 65 Ministry of Supervision 286–7 work-study schools 6, 121 NPC and local people’s congresses 287–90, 329 Xiao Yang 68, 145 strengthening 277–80 Xie Chuanyu 169 supervision of police and, Ministry of Public Xin Chunying 53 Security (MPS) 278, 280–6 Xu Xianming 345 supervision over rule-making 255–6 Suppression of Drugs Office 78 Yang Hongtai 135–6 Supreme People’s Court (SPC) 54, 317, 329 Ye Jianying 71 administrative litigation and 300, 303, 306, ‘Yellow Evils’, campaign against 162 307 Ying Songnian 313 detention for investigation and 336 young people legal basis of administrative detention crime/disorder and 97, 99, 120 powers and 258 Re-education through Labour (RETL) and surveillance 90 206 Yu Xingzhong 45 Tamanaha, Brian 38 Yunnan, drug addiction campaigns 182, Tanner, Harold 108, 126, 128 183 Tanner, Murray Scot 53, 54, 234 targets Zhang Qiong 136 coercive drug rehabilitation 186–7 Zhou Enlai 90 detention of prostitutes 167–70 Zhou Yongkang 227, 327 Zhu Rongji 241, 248

484