Journal of Criminal Law and Criminology Volume 68 Article 3 Issue 3 September Fall 1977 Criminal Punishment in Mainland China: A Study of Some Yunnan Province Documents Hungdah Chiu Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Hungdah Chiu, Criminal Punishment in Mainland China: A Study of Some Yunnan Province Documents, 68 J. Crim. L. & Criminology 374 (1977) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 68, No. 3 Copyright 0 1977 by Northwestern University School of Law Printed in U.S.A. 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 Chinese law 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 Cultural Revolution 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 (East China 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-JAPAN 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 Communism: An Heroes, N.Y. Times, Aug.