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The Legal System and Criminal Responsibility of Intellectuals in the Peo­ Ple's Republic of China, 1949-1982 (Carlos Wing-Hung Lo) 125 Pp

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The Legal System and Criminal Responsibility of Intellectuals in the Peo­ Ple's Republic of China, 1949-1982 (Carlos Wing-Hung Lo) 125 Pp OccAsioNAl PApERs/ REpRiNTs SERiEs iN CoNTEMpoRARY 0 '• AsiAN STudiEs ' NUMBER 2 - 1985 (67) THE LEGAL SYSTEM AND CRIMINAL ,, RESPONSIBILITY .OF INTELLECTUALS IN I THE PEOPLE'S REPUBLIC OF CHINA • 1949-82 Carlos Wing-hung Lo ScltoolofLAw UNivERsiTy of MARylANd. " Occasional Papers/Reprint Series in Contemporary Asian Studies General Editor: Hungdah Chiu Executive Editors: Mitchell A. Silk and Jaw-ling Joanne Chang Managing Editor: Jaw-ling Joanne Chang Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor Lawrence W. Beer, Lafayette College Professor James Hsiung, New York University Dr. Lih-wu Han, Political Science Association of the Republic of China Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Professor Gottfried-Karl Kindermann, Center for International Politics, University of Munich, Federal Republic of Germany Professor Choon-ho Park, College of Law and East Asian Law of the Sea Institute, Korea University, Republic of Korea Published with the cooperation of the Maryland International Law Society All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, Maryland 21201 USA. All publications in this series reflect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion con­ tained therein. Subscription is US $15.00 for 6 issues (regardless of the price of individual issues) in the United States and Canada and $20.00 for overseas. Check should be addressed to OPRSCAS and sent to Professor Hungdah Chiu. Price for single copy of this issue: US $5.00 © 1985 by Occasional Papers/Reprint Series in Contemporary Asian Studies, Inc. ISSN 0730-0107 ISBN 0-942182-69-3 U.S. Library of Congress Catalog No. 85-072571 Occasional Papers/Reprints Series in Conte!pOrary Asian Studies Rote on New Editorial and Publication Policy The Occasional Papers/Reprints Series in Contemporary Asian Studies wishes to inform its readers of two recently-adopted editorial and public'ltion policies. First, the Editorial Board reserves the right to assign lengthy pieces the status of two issues. The OPRSCAS encourages the submission of manuscripts on timely issues in contemporary Asian affairs, regardless of length. Last year, the OPRSCAS published three full-length oonographs, ranging from 150 to 300 pages. The Editorial Board has found, however, this new policy necessary in order to maintain publishing schedules. The policy is also in response to budgetary restraints. Second, please take note that the major concentration of the series will be in East Asia, specifically China (Mainland and Taiwan). Bungdab Cb iu July 1, 1985 - 1 - TBB LEGAL SYSTEM AND CRIMINAL RESPONSIBILITY OF INTBLLBCTOALS IN 'rBB PEOPLE'S REPUBLIC OF CHINA 1949-82 by Carlos Wing-hung Lo Baltimore: Occasional Papers/Reprints Series in Contemporary Asian Studies, 1985 Table of Contents Page Abstract .................................................... v Acknowledgements •••••••••••••••••••••••••••••••••••••••••••• vii Introduction • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 1 Purposes of the Study ••••••••••••••••••••••••••••••••••••••• 2 The Significance of the Study ••••••••••••••••••••••••••••••• 2 Limitations of the Study •••••••••••••••••••••••••••••••••••• 3 Source and the Organization of the Study.................... 3 Chapter One: Conception of the Legal System and the Sources of Criminal Responsibility of the Intellectuals: The Case of China •••••••••••••••••••••• ,6 A. The Communist Conception of Legality: Mao versus Deng • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 7 1. Mao's Conception of the Legal System........... 7 2. Deng Xiaoping's Conception of the Legal System • 10 B. The Sources of Criminal Responsibility of Chinese Intellectuals within the Single Party Communist Regime ••••••••••••••••••••••••••••• 19 Chapter Two: The Characteristics of the Legal System in Communist China: Change and Continuity ••••••••••••• 27 A. Relationship between the Party and the Judiciary 27 1. The Redefinition of Party Leadership and'the Assertion of Judicial Independence ••••••••••••• 27 2. Recruitment and Staffing ••••••••••••••••••••••• 29 3. Party Policy versus Law •••••••••••••••••••••••• 30 B. The Distinction of •Two Categories of Contradictions• versus the Principle of •All Are Equal Before the Law• ••••••••••••••••••••• 31 C. Legality Concerning the Deeming of Offenses and the Application of Penalties (Zuixing Fading Zhuyi) ••••• 33 D. Towards Depoliticization in the Distinction between Criminal and Non-Criminal •••••••••••••••••• 36 - i - Page E. From Mass Trials and Mass Movements to Open Trials and Strict Observance of Legal Procedures 38 Chapter Three: The Chinese Communists' Attitude and Policy Towards the Intellectuals ••••••••••••••••••••••• 45 A. The Communist Attitude towards the Intellectuals Under Mao • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 45 B. The Policy Towards the Intellectuals under Deng •••• 50 1. The Redefinition of the Class Status of the Intellectuals •••••••••••••••••••••••••••••• 52 2. The Reassertion of the Indispensable Role of Intellectuals in Socialist Construction •••••••• 54 3. The Guarantee of Certain Freedoms •••••••••••••• 55 4. The Creation of A Better Objective Environment for the Intellectuals •••••••••••••••••••••••••• 57 Chapter Four: Demands for Intellectual Freedom and Democratization of the Communist System •••••••••••••••• 64 A. Conditions in the Maoist Era before the Hu Feng Incident ••••••••••••••••••••••••••••••••••• 64 Case One-- The Hu Feng Incident ••••••••••••••••••••••• 66 A Brief Account of Hu Feng and his Relations with the CPC • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 66 The Demands of Hu Feng • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 66 1. The Attack on the "Five Daggers" ••••••••••••••• 66 2. Hu's Demand for Organizational Reform in the Literary Circle •••••••••••••••••••••••••••• 68 Case Two -- The Advocacy for Democratization of the Political System During the Hundred Flowers Campaign 69 1. The Attack on the Dlctatorship of Party Rule 69 2. The Abolition of One-Party Rule 71 3. The Demands for the Enlargement of the Role of Democratic Parties •••••••••••••••••••••••••• 71 4. The Demand for a Better Working Environment •••• 73 B. Democratizaton in Deng's Era 74 Case Three -- The Beijing Spring 74 - ii - Page The Perspective of Wei Jingsheng towards Democracy 75 1. Disclosing the Dictatorial Nature of the Communist Regime • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 75 2. Democracy --The Way for the Good Life ••••••••• 76 3. The Achievement of Democracy by Struggle ••••••• 77 Chapter Five: Justice in the Application of Law •••••••••••• 83 A. Justice Under Mao •••••••••••••••••••••••••••••••••• 83 Case One -- The Incident of the Hu Feng Counter- revolutionary Clique ••••••••••••••••••••••••••••••••••• 84 1. Politicization of the Issue •••••••••••••••••••• 84 a. The First Stage -- Ideologial Criticism 84 b. Political Accusation and Broadening of the Scope of Struggle ••••••••••••••••••••••• 85 i. Anti-Party Stage •••••••••••••••••••••••• 85 ii. The •counterrevolutionary• Stage 86 2. Counterrevolutionary Crime on the Basis of "Ideological Offenses• ••••••••••••••••••••••••• 87 3. Historical Background as a Source of Accusation • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 88 4. Lack of Legal Actions and Violation of Legal Practices • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 89 The Fate of Hu Feng and His Friends •••••••••••••••••••• 90 Case Two The Anti-Rightist Campaign ••••••••••••••••• 90 1. The Employment of a Political Campaign Against the Intellectuals •••••••••••••••••••••• 91 2. The Redefinition of the •Pr-inciple• and •Ideological Accusation• ••••••••••••••••••••••• 94 3. Historical Background as a Source of Accusation • • • . • . • . • . • . • • . • . 95 4. Violation of Legal Procedures •••••••••••••••••• 97 B. Justice Under Deng ••••••••••••••••••••••••••••••••• 98 Case Three-- The Trial of Wei Jingsheng ••••••••••••••• 98 1. Procedure 98 - iii - Page a. Legal Authority ............................. 98 Legal Sources of Arrest and Trial •••••••••••••• 98 The Legal Source of the Prosecution and Adjudication • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • 99 The Adjudication ............................... 100 b. Public Trial ................................ 101 c. The Right to Defense •••••••••••••••••••••••• 101 d. The Right to Appeal •..............•... · · · • • • 102 The Trial of Wei-- Substance •••••••••••••••••• 103 Chapter Six: Institutionalization of the Legal System and Democratization of the Political System: Limitations and Prospects •••••••••••••••••••••••••••••• 110 A. The Four Fundamental Principles under Deng ••••••••• 110 1. Socialist Road ••••••••••••••••••••••••••••••••• 110 2. Dictatorship of the Proletariat •••••••••••••••• 111 3. Leadership of the Party ···•···················· 111 4. Marxism-Leninism and Mao Zedong Thought
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