Article 17 of the Common Program
Text
Article 17 of the Common Program

All laws, decrees and judicial systems of the Guomindang reactionary government which oppress the people shall be abolished. Laws and decrees protecting the people shall be enacted and the people's judicial system shall be established.


Already on February 28, 1949 The CCP decides to abolish the old laws of the GMD government in the “recently liberated areas”.
Document: 28-02-1949 Instructions concerning Abolishing the Six Codes of the Guomindang and Determining Judicial Principles for the Liberated Areas
This rejection of the laws and judicial system of the GMD, does not mean the new government starts with a blank sheet. On the one hand they have gained experience before 1949 in the areas which they governed “Many of the laws issued after Liberation—such as the Land Reform Law, the Marriage Law, the various labour laws and the organic laws of legal and quasi-legal bodies, such as the court and the mediation committee had their origins in the pre-Liberation period.”
Li Victor H. (1970). The role of law in communist China. The China Quarterly, 44. Pages 76-77
Before 1949 the party had already governed more than 90 million people.
On the other hand they could copy the Soviet Union model. “During the decade of 1950-60, legal education in China was totally under the guidance of Soviet experts. China not only sent a large number of law students to the Soviet Union, but also invited many Soviet experts to teach in China. For some law-related courses, Soviet textbooks were used in schools.”
Fan Gang & Xin Chunying (1998). The Role of Law and Legal Institutions in Asian Economic Development: The Case of China Patterns of Change in the Legal System and Socio-Economy. Development Discussion Paper 664. Harvard Institute for International Development. Page 4
Besides several laws, without political implications are still in force, for example laws regulating traffic.
In 1949
Wang Ming
Wang Ming (1904-1974)
a CCP party leader, heads a working group of 41 politicians and lawyers who are drafting new legislation. Several juridical writings are publicized and new legal training programs are started. “Although new personnel were recruited and given brief training courses, a substantial backlog of housing, labour, property, debt, family and other cases confronted the courts from the very outset and led the regime, after screening out obvious undesirables, to retain many Nationalist judicial officials to help dispose of this workload. As of 1952, there were still approximately 6,000 holdovers among the 28,000 cadres who staffed the judiciary.”
Cohen Jerome (1969). The party and the courts: 1949-1959. The China Quarterly, 38. Page 130
September 1949 a new law school is established in Beijing. It provides a year's course for lawyers, jurists, and professors of law schools.

New judicial system...

From July 26 till August 11, 1950 the ministry of justice organizes a congress to discuss and solve the problem in the judicial system. Some of these measures are “the need to expand the central law courses organised in the Ministry of Justice, as well as to expand the institute of new jurisprudence the chief purpose of which was to re-educate lawyers of the old school. It was also recognised as indispensable that courses for the preparation of judicial-procuratorial cadres be organised in the large administrative regions (in the North-Eastern, Central-Southern, Eastern, South-Central and North- Western regions) and in the larger provinces. In addition, a number of proposals were heard for the improvement of the work of the law faculties which functioned in most of the public and private universities of China. Hitherto, law faculties had worked without maintaining any ties with the organs of justice, stood aloof from routine tasks which were handled by the courts and the procuratorate and consequently turned out the kind of cadres that were not suitable for work in the new, democratic organs of justice.”
Cited in Ginsburgs George & Stahnke Arthur (1965). The people's procuratorate in communist China: The period of maturation, 1951-54, The China Quarterly, 24. Page 57

The emphasis within the judicial work lies on political matters and not on the daily routine. As long as the struggle against the counterrevolutionary is going on,
Shen Junru
Shen Junru (1875-1963) President of the Supreme People’s Court (1949-1954)Chinese lawyer
, states in 1951 "Our judicial work must serve political ends actively, and must be brought to bear on current central political tasks and mass movements." To "safeguard the fruits of revolution," political-legal cadres were called upon to conduct mass trials and struggle meetings.”
Cited in Tao Lung-Sheng (1974). Politics and law enforcement in China: 1949-1970. The American Journal of Comparative Law, 22, (4). Page 715
A year before he defines the judicial work as "to suppress resolutely, sternly and in good time all counter-revolutionary activities which undermine agrarian reform, production and the people's democratic reconstruction, and to suppress the resistance of reactionary classes; [and to] protect the gains of land reform, pro- duction, reconstruction and democratic order".
Cited in Thomas S. B(1950). Government and Administration in China Today. Pacific Affairs, 23, 3. 267

New legislation...

Blaustein
Blaustein Albert P. (1962). Fundamental legal documents of communist China. South Hackensack, NJ. Page X
, divides the laws made between 1949 and 1954 in 3 categories: constitutional, organic and formal laws. The constitutional laws are the Common Program of 1949 and the Constitution of 1954. The organic laws describe the power, organization and procedures of administrative bodies of government. In the period before 1954 they regulate the CPPCC and the CPGC, in the period after 1954 5 organic laws regulate the NPC, the State Council, the tribunals and the local People’s Congresses.
The formal laws can be categorized in laws dealing with political crimes, corruption and crimes against persons. The law on punishment of counterrevolutionary activities promulgated on February 7, 1951 is an example of the first category. The second category can be represented by the law on punishment for impairment of state currency. The law concerning the strict prohibition of opium and other narcotics of February 24, 1950 represent the third type. The most important formal laws are the Marriage Law, see Article 6, the Land Reform law, see Article 27 and the Trade Union law, see Article 32.
The main purpose of the legalisation in People's Republic of China is not to rule conflicts and/or safeguarding the rights and interests of the individual but to protect the political aims of the CCP. An article in the newspaper Yangtse Daily underlines this concept. "It is impossible to talk of justice in isolation from Party principles. Whatever agrees with Party principles is just; whatever disagrees with Party principles is unjust."
Yangtse Daily. Wuhan Party Committee November 30, 1951 puts in a different way “The law of the people's State is a weapon in the hand of the people to be used to punish subversive elements of all sorts and is by no means something mysterious and abstruse" (People's Daily. Peking, March 21, 1952.) Cited in Communist legal systems (1960)

There is no Criminal Code, the new laws are vaguely described and also the punishment is not clear. This leaves the possibility for the government and CCP to adjust the laws to their interests and in extreme cases, to personal interests, in particular those of Mao Zedong.
“The natural result of the imprecision and uncertainty in the law and penal system is the creation of fear and terror in the country which effectively put people off the idea of acting or attempting to act against the will of the state, the Party and ultimately the leaders.”
Chu Fun-ling Carlye (1994). Criminal punishment and ideology in the People's Republic of China 1949 – 1976. MA thesis, The university of Hong Kong. Page 17
The decrees are often not made public and are constantly revised or changed. Mao Zedong explains in June 1949 in his "On the People's Democratic Dictatorship". "if people break the law, they will be punished, imprisoned or even sentenced to death. But these will be individual cases, differing in principle from the dictatorship imposed against the reactionaries as a class."
Document: 30-06-1949 Mao Zedong On the people’s dictatorship"
On May 11, 1951
Peng Zhen
Peng Zhen (1902-1997) First Secretary of the Beijing Committee of the CCP (1949-1966)
remarks “… the laws of the country were still incomplete. He contended, however, that there should be no hurry to fix "complete and detailed" law codes which were "neither mature nor urgently necessary." He asserted that laws should be made in accordance with the central tasks of the moment and the pressing problems of people's needs, and should be based on a synthesis of model and mature experience. He added that laws should proceed gradually from simple to complex, from general rules to detailed articles, and from single statutes to codes.27”
Cited in Wei Henri (1955). Courts and police in communist China to 1952. Series I, No. 1, 1952, of "Studies in Chinese Communism". Page 11

Besides having the wrong class background, people can also be arrested for having wrong ideas, incorrect attitude, little dedication, and having voluntary or involuntary contacts with wrong people. Even party members are not excluded from this system and can become enemies of the state.

Punishment...

The courts take into account the class the defendant belongs. The class status is thought to affect the mental state of the offender. An accused person with a bourgeois or middle class background is more likely to have counter-revolutionary intent than a state worker. See Article 7 on class status. According to Tao (1966) "It seems that by taking into account such factors as background and class composition, a person can be convicted of a crime involving counter-revolutionary intent regardless of his actual mental state."
Tao Lung-sheng (1966). Criminal Law of Communist China. Cornell Law Review, 52, 2. Page 58
The death penalty is one of the weapons against counterrevolutionaries, rapists, murders, destroyer of state property and drug traffickers. These last group of offenders “…were arrested and punished with great severity as their criminal offences were suspected of having links to counter-revolutionaries and overseas drug cartels. Drug users, on the other hand, were to be subject to detention for coercive rehabilitation.”
Li Enshen (2013). Crime control in China’s pre-trial system: A political ideology?, National Taiwan University Law Review 8, (1). Pages 153-154. "In fact, inconsistency and inefficiency were common during the first phase of the anti-drug campaign. . . . in reality, the Communists simply lacked the resources necessary to carry out this project completely and were too preoccupied with various other tasks they were facing—among which the most important were to revive the economy devastated by the civil war, to rebuild social order at home, and to fight the Americans in Korea.” "…the Communist Party launched a second, secret anti-drug crusade in the summer of 1952, including mass rallies and criminal trials focusing on stamping out widespread corruption. 123 Although the campaign enjoyed remarkable success, Zhou concedes that it was “postponed” in several minority and remote border areas—including parts of Yunnan province in the Golden Triangle." Zhou Yongming (1999), Anti-Drug Crusades in Twentieth Century China. Lanham, MD: Rowman & Littlefield. Page 96. For example "On August 30, 1952, the local Public Security Bureau (PSB) (of Zhanjiang) and a local unit of the PLA launched a coordinated strike, resulting in the arrest of 137 people and the registration of over 700 opium users (a minority were arrested, while most were sent for re-education or allowed to remain in Zhanjiang under surveillance) Pieragastini Steven (2017). State and Smuggling in Modern China: The Case of Guangzhouwan/Zhanjiang. Cross-Currents: East Asian History and Culture Review E-Journal No. 25 Pages 125-126
The death penalty can be carried out immediately or after 2 years. Persons, who receive this deal, can improve their attitude during their period of hard labor
Peng Zhen, “…so that the convicted kept alive will not eat his food in vain; he will be forced to produce grain" Renmin Ribao May 31,1951. May 8, 1951, The Decision of the CCP on the Policy of Application of the Death Sentence with a Two- Year Suspension to the Majority of Counterrevolutionaries.
and be sentenced to life imprisonment or to a fixed period.
In the course of time 2 systems of hard labour develop. There are forced labor camps where the prisoners are supposed to reform through labour (Laogai) and these camps are meant for “serious” political prisoners and for “normal” delinquents. See Table
Laogai institutes 1950-1954
.
Kaple (2006) describes that already at the end of 1949, SU experts provide advice on how best to implement reform-through-labor in the PRC as the Soviet Union had done earlier in the Gulag prison camps.
"The Soviet advisers were invited to participate in two pilot projects involving the use of reform-through-labor methods: one using agricultural labor at Qinghe Laogai Farm in Beijing; and the other using industrial labor at the Tianjin Municipal Prison (jianyu). The Soviet experts made many recommendations, based on Soviet experience and practices, on all aspects of the management of convict labor in the laogai camps and provided specific advice about how to make the reform-through-labor methods work more smoothly in the Chinese prisons and camps." Kaple Deborah Agents of Change Soviet Advisers and High Stalinist Management in China, 1949–1960. Journal of Cold War Studies, 18,1. Pages 9-10
The other forced labour camps (Laojiao) are meant for criminals who are convicted for minor crimes. The Laogai is an element of the People’ s Dictatorship. It uses existing prisons, which are changed into labour camps or newly built. In 1954 217 mines and construction workshops (water supply or railway construction) and also 640 agricultural companies are working as Laogai camps.
See for details “laogai handbook”, The Laogai Research Foundation Washington, DC 2008 and Frank Dikötter, “The Emergence of Labour Camps in Shandong Province, 1942-1950” China Quarterly, no. 175 2003
Besides these labour camps there are also thought-reform institutions, in which prostitutes, beggars, vagrants, and petty thieves are re-educated. “According to their captors, in 1949 these individuals vehemently resisted the state and sometimes successfully obstructed its efforts, but their rebellion was not categorized as counterrevolutionary… feudal, imperialist, and capitalist oppression had so damaged the Chinese nation that only a radical and revolutionary transformation could save it. Embedded in this construction, however, was the promise that revolution and reform would indeed bring salvation, and reeducators expected benign resistance to evaporate as thought reform progressed."
Smith Aminda M. (2013). Thought Reform and the Unreformable: Reeducation Centers and the Rhetoric of Opposition in the Early People's Republic of China. The Journal of Asian Studies, 72 Page 939
Smith describes "... during the first few weeks of the internment campaign, reeducators first focused on winning the hearts of their detainees: “We demonstrated caring and unity, and sincerely treated [the internees] with respect,” and after a short while, the internees’ “spirits were high” and there was a “harmonious atmosphere” in the institution. The internees’ 'fear turned into calm and their suffering turned into happiness.'" Smith Aminda M.(2012). The Dilemma of Thought Reform: Beijing Reformatories and the Origins of Reeducation through Labor, 1949–1957. Modern China 39, 2. Page 208 But she conitnues "...the numerous reports of internees who were bound, hung, humiliated, and even beaten to death by guards belie the claim that the relationship between reeducatees and their reeducators was one of mutual warmth." Page 210

Courts...

In 1949 mostly officers of the PLA take care of the administration of justice and of maintaining order. The courts have as main task the punishment of counterrevolutionaries. There are 3 kinds of courts.
In the military courts the judges are chosen by the PLA and/or CCP. In these courts public is allowed but the judges sentences. The operation of military tribunals in trying civilians under the 1951 Statute on Punishing Counterrevolutionaries is illustrated by an espionage case decided 17 August 1951 by the military court of the Peking Military Control Committee.

"… There was no provision for defense, and the defendants were not represented by defense counsel. The Public Security Bureau had already investigated and “proved with conclusive evidence” the guilt of the accused. Typically, all the defendants confessed their guilt….the court applied the statute (on Punishment for Counterrevolutionary Activity) retroactively, as all of the crimes were committed before the statute was enacted on 20 February 1951.”
Rodearmel David C. (1988). Military law in communist China: Development, structure and function. Military Law Review, 119. Page 36. Tao (1966) remarks "Other statutes do not have similar provisions, but Communist jurists maintain that their retroactivity"is indicated in the legislative reports. For example, the Anti-Corruption Act83 does not expressly provide that it is retroactive. But the legislative report points out that the act can be applied retroactively to those who offended its provisions before it came into force." Tao (1966). Criminal Law of Communist China. Page 55.
The second sort of courts are the People’s Tribunals, they have lay judges and audience participation. These tribunals are dealing with adversaries of big political campaigns, like the Land Reform. “..legal procedures were rarely followed, lawyers were not assigned for the accused, judges were in-sufficiently trained and inexperienced, records of trials were poorly kept,…”
Dikötter Frank (1997). Crime and punishment in post-liberation China: The prisoners of a Beijing gaol in the 1950s. The China Quarterly, 149. Page 149
The purpose of these tribunals is twofold, the political opponents receive their punishment and the political awareness of the people is enhanced and the people are actively backing the new regime.
“In 1951 alone, Peking held about thirty thousand mass trials, in which an estimated number of over three million people participated. Other major cities as well as rural areas all over the country also saw the extensive use of mass trials. In Tientsin, more than 20,000 mass trials were held, with the participation of over two million people.”
Tao Lung-Sheng (1974). Politics and law enforcement in China Page 717

This system of People’s Tribunals is stopped in 1952 at the moment the purging counterrevolutionaries Article 7 and Wufan Article 30 campaigns are ended, but from 1954 they are put in action at irregular intervals and from 1957 they are fully back in business.
The third courts are also People’s Tribunals with judges. These judges have a GMD background. They are present in cities and deal with minor crimes. They are put under dual control. "… a vertical control by a higher court and a horizontal control by a government council of the same level. Apparently, this dual control was designed to deprive the courts entirely of their “judicial independence. As a rule, the county courts were courts of first instance and the provincial courts were of second and final instance. Under particular circumstances, the first or third trial which was in the People's Supreme Court might be final. However, since the suspension of the right of appeal could be justified as a means to "effectively suppress counter-revolutionary activities and prevent cunning elements from taking advantage of the two-trial system to delay the settlement of a case," it was not unusual that the first-instance trial was the final one."
Lee Shane Rong (1973). The Legal System and Political Development in Communist China, 1949-1969. Ma thesis, Denton, Texas. Page 57
The role of lawyers is very limited in these 3 courts. "On the criminal side, the law was used largely as a tool of class struggle in the years immediately following the victory of the Communist Party. Justice was often dispensed by administrative agencies or by ad hoc people’s tribunals. To the extent lawyers were involved at all, their participation was limited to seeking leniency in punishment.”
Peerenboom Randall (2002). China’s long march toward rule of law. Cambridge University Press. Page 347

Reform campaign in the juridical sector...

In August 1952 the CCP starts a reform campaign in the juridical sector to eliminate the ‘old bourgeois’ ideas about legislation and law enforcement and to solve conflicts within the judiciary. “… the retained personnel and the new cadres had very different understandings of the nature of legal work. There was considerable conflict between the two groups over professional and personal styles. It is not difficult to imagine the differences and problems a former guerrilla squad leader would have in working with a colleague who was an Oxford or Sorbonne trained lawyer.”
Li Victor H. (1970). The role of law in communist China. Page 83
The large demand for judicial personnel forces the Communist leaders to continue to employ the personnel of the former GMD regime. Many of the retained officials have been suspected of disloyalty and are being purged. For example in October 1951, even before the start of the reform campaign “…according to one report, over two hundred court officials in Guangxi province, including judges, district attorneys, and jurors, who formerly served the Nationalist regime, were under suspicion and were arrested en masse as potential anti-revolutionaries.”
Wei Henri (1955). Courts and police in communist China to 1952. Page 11
Document:August 13, 1952 Shi Liang Report on Reform and Reorganization of the People’s Courts. September 3, 1951 Provisional Regulations Governing the Organization of people's court.
In his self-criticism Han Shuzhi, head of the court in Shanghai, tells "I failed to reform the organization of the court on the basis of Marxism-Leninism and the thought of Mao Zedong...and had not thoroughly mastered by application the little revolutionary knowledge I had learned,"
Dagong Bao September 14, 1952
During this reform campaign, which ends in April 1953, about 80% of the old GMD personnel loses their job. The people are asked to report (anonymously) any faults. "For instance in Tientsin, between September 9 and 18, 1952, 475 denunciatory reports were submitted to the office set up jointly by the people's courts, the people's procurator, and the people’s supervision committee, or were dropped (no doubt anonymously) into the special letter-box at the procurator’s office."
R. R. G.(1960) Communist Legal Systems. Page 9. During the campaign, masses were mobilized in a “measured” and “planned” fashion to report and expose “anti-revolutionary” court decisions or practices.41 “Mass line” was systematically introduced to courts.42 People’s assessors were invited to participate in the adjudication and people’s tribunals were established in villages and urban communities for the convenience of residents.43 “Cold cases” were dealt with expediency upon people’s demand.44 University law departments were repurposed for the training of political‐legal cadres.45 “Unsuitable” law teachers were either ex-pelled from universities or reallocated to teach other courses.46 Li Ling (2016).The Chinese Communist Party and People’s Courts: Judicial Dependence in China. American Journal of Comparative Law, 64,1. Page 6
The second judicial work conference in April 1953 ends the campaign and concludes “It hailed the Reform Movement as having laid a solid foundation for the consolidation of the People's Dictatorship and the strengthening of the people's judicial work in the New China and declared that the country was now ready for further development of the people's judicial system. It called for specific programmes at central and regional level to train judicial cadres and establish schools for them, for an extension of the use of people's assessors sitting with judges, for the creation of more special courts in factories, mines, railroads and waterways, and for more conciliation committees, more court activity on circuit among the people and for the creation of people's reception offices associated with the courts, to deal with letters, petitions, complaints and enquiries. It thus inaugurated a new period.”
Tay Alice Erh-Soon (1971). Law in communist China - part 2. Sydney law review 6. Page 353

Due to the campaign there is a shortage of personnel and the courts can’t handle all cases. In 1954 some 1140 judges are reappointed after ‘sufficient’ training.
A different obstacle in the judicial work is the execution of the verdicts. The North China Division of the Supreme People’s Court makes mention "According to reports from all regions of North China, there is a great accumulation of unexecuted cases at the level of the court of first instance. . . . In some of these cases, it has been two or three years since judgment; in some, the party frequently runs to the court to apply for execution but the problem is not resolved; in some, the party asks, “Is there any law in the court?” and “Does the judgment count for anything?” — this has been the cause of great dissatisfaction among the masses."
Cited in Clarke Donald C (1996). Power and politics in the Chinese court system: the enforcement of civil judgments. Columbia journal of Asian law, 10. Page 1
During the second work conference Peng Zhen tells the audience the battle against the enemy of the revolution is almost won and the judiciary is ready to enter a new phase. The law enforcement at national and local level will be done by newly trained. Law enforcement agencies will be put in action at factories, mines and railway. "...all party committees should strengthen their supervision and inspection over the performance of courts and that a standing party committee member should be designated to oversee judicial affairs. … all judicial institutions should proactively and timely submit reports to party committees and strictly follow the request‐for‐instruction‐and‐report rule.”51"
Li (2016).The Chinese Communist Party and People’s Courts. Page 7
Special mediation teams are set up.
Document: February 25,1954 Provisional general rules of the PRC for the organization of people’s mediation committees
Huang (2006) describes the mediation theory as part of the mass line. "Maoist mediation was also couched within the ideology of the “mass line”: that is, judges do not just sit at court but must go down to the village to investigate the truth with the help of “the masses” and then resolve or “mediate” a case. Judges must rely on the masses because their eyes were “the clearest” (zuiliang) and because the justice system, like governance as a whole, was to proceed according to the formula “from the masses, to the masses.” This method was supposed to minimize “contradictions” between the leadership and the followers, the courts and the masses. By this ideology, judges would ascertain from the masses whether a marriage was worth reconciling and, if so, would call on them to help work things out. The judges would manage other disputes the same way, investigating to learn the truth from the masses and then working with them to resolve the dispute.
Huang Philip C. C.(2006). Court Mediation in China, Past and Present. Modern China, 32, 3. Page 286. Huang (2005) "...the judges, after talking with the petitioner and the defendant individually, were expected to “investigate” (diaocha) the facts of the case themselves, not just to render decisions in the courtroom. Doing so usually entailed going to the residence and workplace of the petitioner and defendant and talking to their “leaders” (lingdao). For rural petitioners, these might include the Party branch secretary and brigade head; for urban petitioners, the factory head, school principal, Party secretary, and the like, at the relevant work units. The judges would also talk to “the masses” (qunzhong), such as relatives, neighbors, and co-workers. They would seek to ascertain the facts and background of the situation, focusing especially on the nature of the marital relationship and its main problems (“contradictions,” maodun). Usually, they would also inquire into the character and general work and political “performance” (biaoxian)of the parties in question, factors taken into account in the court’s posture toward the case. Then the court would call in the parties concerned, usually first individually, to seek common ground and concessions required for agreement. This process would include not just the couple but also the parents, other important relatives, and the local leaders. Finally, if and when the terms of a “reconciliation” (hehao)11 had been more or less worked out, the judges would convene a formal “reconciliation meeting” (hehao hui), often involving the local leaders and relatives as well." Huang Philip C. C.(2005) Divorce Law Practices and the Origins, Myths, and Realities of Judicial “Mediation” in China. Mdern China,31,2. Page 157
In 1954 the regime introduces a system of courts and Higher People’s Courts which replaces the people’s tribunals. The emphasis shifts from eliminating the residues of the old regime to a “...second stage of its historical development, that of peaceful construction of the bases of a Socialist community. Literally overnight, the regime's hitherto essentially negative outlook was officially replaced by an ambitious positive programme for the further transformation of the country's social and economic fabric. For the bureaucracy, the switch meant both fresh operational goals and a different style of work from that which had been deemed suitable up till then.”
Ginsburgs George & Stahnke Arthur (1965). The people's procuratorate in communist China. Page 71
At the 8th party congress in 1956 Liu Shaoqi looks back to the period of 1949-1954 and states “During this period, the chief aim of the struggle was to liberate the people from reactionary rule and to free the productive forces of society from the bondage of old relations of production. The principal method of struggle was to lead the masses in direct action. Such laws in the nature of general principles were thus suited to the needs of the time." And he continues "Now, however, the period of revolutionary storm and stress is past…and the aim of our struggle is changed into one of safeguarding the successful development of the productive forces of society, a corresponding change in the methods of struggle will consequently have to follow, and a complete legal system becomes an absolute necessity.”
Document: eptember 15, 1956 Liu Shaoqi “The Political Report of the Central Committee of the Communist Party of China to the Eighth National Congress of the Communist Party of China”
Meanwhile Mao Zedong complains about the slowness of the revolution, which is mainly caused by “… comrades are tottering along like a woman with bound feet, always complaining that others are going too fast, too fast. They picked on trifles, made inappropriate complaints, expressed endless worries, and set countless pure norms and prohibiting rules, thinking that this is the correct way to guide the socialist mass movement in rural areas.”
Document:6 July 31, 1955 Mao Zedong "On the Cooperativization of Agriculture"
Mao Zedong is not an opponent of legislation, he also believes that a planned economy has to have rules. 66% out of the 4072 regulations, decrees and laws are related to the economy. "The Communist Government, indeed, had passed 4,072 laws and decrees in the eight years from October, 1949, to October, 1957;50 but these did not form any systematic, coherent or even consistent body of law. They were for the most part directed to particular situations and transitional problems; they were loosely and crudely drafted; many of those enacted during the "revolutionary period" between 1949 and 1953 were frankly designed to uphold the very counterpart of the rule of law."
Tay Alice Erh-Soon (1971). Law in communist China - part 2. Page 365

Conclusion...

The big difference between the old and the new judicial system is the role it plays in society. In the old system legislation was an instrument of the government to maintain order in society. Most civil cases were handled by family councils and guild bosses. The state did not interfere in those affairs.
Under the new rule legislation has a different role, “… has socialized private property and thus changed the foundation of law. It uses legal instruments as a dynamic means to remold the society and to promote the economy. Party cadres represent the will of the state, which in reality is but a facade for the Party.”
Hsiao Gene T.(1965). The role of economic contracts in communist China. California law review, 53, (4). Page 1060
During this period the criminal process served as a blunt instrument of terror. Campaigns, as zhenfan (see Article 7), sanfan (see Article 18) and wufan (see chapter 4) are instruments to crush all sources of political opposition. "In short, the army, the police, and the regular and irregular courts implemented the directive of Chairman Mao to serve as instruments for oppressing the hostile classes and for inflicting "legalized" violence and lesser sanctions upon all those who were deemed to be "reactionaries" and "bad elements."
Cohen Jerome Alan (1968). The Criminal Process in the People's Republic of China, 1949-1963: An Introduction. Page 10




Literature Notes Documents...

2. Li Victor H. (1970). The role of law in communist China. The China Quarterly, 44. Pages 76-77 Back
3. Fan Gang & Xin Chunying (1998). The Role of Law and Legal Institutions in Asian Economic Development: The Case of China Patterns of Change in the Legal System and Socio-Economy. Development Discussion Paper 664. Harvard Institute for International Development. Page 4 Back
4. Cohen Jerome (1969). The party and the courts: 1949-1959. The China Quarterly, 38. Page 130 Back
5. Cited in Ginsburgs George & Stahnke Arthur (1965). The people's procuratorate in communist China: The period of maturation, 1951-54, The China Quarterly, 24. Page 57 Back
6. Cited in Tao Lung-Sheng (1974). Politics and law enforcement in China: 1949-1970. The American Journal of Comparative Law, 22, (4). Page 715 Back
7. Cited in Thomas S. B(1950). Government and Administration in China Today. Pacific Affairs, 23, 3. 267 Back
8. Blaustein Albert P. (1962). Fundamental legal documents of communist China. South Hackensack, NJ. Page X Back
9. Yangtse Daily. Wuhan Party Committee November 30, 1951 puts in a different way “The law of the people's State is a weapon in the hand of the people to be used to punish subversive elements of all sorts and is by no means something mysterious and abstruse" (People's Daily. Peking, March 21, 1952.) Cited in Communist legal systems (1960). Back
10. Chu Fun-ling Carlye (1994). Criminal punishment and ideology in the People's Republic of China 1949 – 1976. MA thesis, The university of Hong Kong. Page 17 Back
12. Cited in Wei Henri (1955). Courts and police in communist China to 1952. Series I, No. 1, 1952, of "Studies in Chinese Communism". Page 11 Back
13.Tao Lung-sheng (1966). Criminal Law of Communist China. Cornell Law Review, 52, 2. Page 58 Back
14. Li Enshen (2013). Crime control in China’s pre-trial system: A political ideology?, National Taiwan University Law Review 8, (1). Pages 153-154. "In fact, inconsistency and inefficiency were common during the first phase of the anti-drug campaign. . . . in reality, the Communists simply lacked the resources necessary to carry out this project completely and were too preoccupied with various other tasks they were facing—among which the most important were to revive the economy devastated by the civil war, to rebuild social order at home, and to fight the Americans in Korea.” "…the Communist Party launched a second, secret anti-drug crusade in the summer of 1952, including mass rallies and criminal trials focusing on stamping out widespread corruption. 123 Although the campaign enjoyed remarkable success, Zhou concedes that it was “postponed” in several minority and remote border areas—including parts of Yunnan province in the Golden Triangle." Zhou Yongming (1999), Anti-Drug Crusades in Twentieth Century China. Lanham, MD: Rowman & Littlefield. Page 96. For example "On August 30, 1952, the local Public Security Bureau (PSB) (of Zhanjiang) and a local unit of the PLA launched a coordinated strike, resulting in the arrest of 137 people and the registration of over 700 opium users (a minority were arrested, while most were sent for re-education or allowed to remain in Zhanjiang under surveillance) Pieragastini Steven (2017). State and Smuggling in Modern China: The Case of Guangzhouwan/Zhanjiang. Cross-Currents: East Asian History and Culture Review E-Journal No. 25 Pages 125-126 Back
15. Peng Zhen, “…so that the convicted kept alive will not eat his food in vain; he will be forced to produce grain" Renmin Ribao May 31,1951. 08-05-1951 The Decision of the CCP on the Policy of Application of the Death Sentence with a Two- Year Suspension to the Majority of Counterrevolutionaries. Back
17. "The Soviet advisers were invited to participate in two pilot projects involving the use of reform-through-labor methods: one using agricultural labor at Qinghe Laogai Farm in Beijing; and the other using industrial labor at the Tianjin Municipal Prison (jianyu). The Soviet experts made many recommendations, based on Soviet experience and practices, on all aspects of the management of convict labor in the laogai camps and provided specific advice about how to make the reform-through-labor methods work more smoothly in the Chinese prisons and camps." Kaple Deborah Agents of Change Soviet Advisers and High Stalinist Management in China, 1949–1960. Journal of Cold War Studies, 18,1. Pages 9-10 Back
18. See for details “laogai handbook”, The Laogai Research Foundation Washington, DC 2008 and Frank Dikötter, “The Emergence of Labour Camps in Shandong Province, 1942-1950” China Quarterly, no. 175 2003 Back
19. Smith Aminda M. (2013). Thought Reform and the Unreformable: Reeducation Centers and the Rhetoric of Opposition in the Early People's Republic of China. The Journal of Asian Studies, 72 Page 939 Back
20. Smith describes "... during the first few weeks of the internment campaign, reeducators first focused on winning the hearts of their detainees: “We demonstrated caring and unity, and sincerely treated [the internees] with respect,” and after a short while, the internees’ “spirits were high” and there was a “harmonious atmosphere” in the institution. The internees’ 'fear turned into calm and their suffering turned into happiness.'" Smith Aminda M.(2012). The Dilemma of Thought Reform: Beijing Reformatories and the Origins of Reeducation through Labor, 1949–1957. Modern China 39, 2. Page 208 But she conitnues "...the numerous reports of internees who were bound, hung, humiliated, and even beaten to death by guards belie the claim that the relationship between reeducatees and their reeducators was one of mutual warmth." Page 210 Back
21. Rodearmel David C. (1988). Military law in communist China: Development, structure and function. Military Law Review, 119. Page 36. Tao (1966) remarks "Other statutes do not have similar provisions, but Communist jurists maintain that their retroactivity"is indicated in the legislative reports. For example, the Anti-Corruption Act83 does not expressly provide that it is retroactive. But the legislative report points out that the act can be applied retroactively to those who offended its provisions before it came into force." Tao Lung-sheng (1966). Criminal Law of Communist China. Page 55. Back
22. Dikötter Frank (1997). Crime and punishment in post-liberation China: The prisoners of a Beijing gaol in the 1950s. The China Quarterly, 149. Page 149 Back
23. Tao Lung-Sheng (1974). Politics and law enforcement in China Page 717 Back
24. Lee Shane Rong (1973). The Legal System and Political Development in Communist China, 1949-1969. Ma thesis, Denton, Texas. Page 57 Back
25. Peerenboom Randall (2002). China’s long march toward rule of law. Cambridge University Press. Page 347 Back
26. Li Victor H. (1970). The role of law in communist China. Page 83 Back
27. Wei Henri (1955). Courts and police in communist China to 1952. Page 11 Back
29. Dagong Bao September 14, 1952 Back
30. R. R. G.(1960) Communist Legal Systems. Page 9. During the campaign, masses were mobilized in a “measured” and “planned” fashion to report and expose “anti-revolutionary” court decisions or practices.41 “Mass line” was systematically introduced to courts.42 People’s assessors were invited to participate in the adjudication and people’s tribunals were established in villages and urban communities for the convenience of residents.43 “Cold cases” were dealt with expediency upon people’s demand.44 University law departments were repurposed for the training of political‐legal cadres.45 “Unsuitable” law teachers were either ex-pelled from universities or reallocated to teach other courses.46 Li Ling (2016).The Chinese Communist Party and People’s Courts: Judicial Dependence in China.  American Journal of Comparative Law, 64,1. Page 6 Back
31. Tay Alice Erh-Soon (1971). Law in communist China - part 2. Sydney law review 6. Page 353 Back
32. Cited in Clarke Donald C (1996). Power and politics in the Chinese court system: the enforcement of civil judgments. Columbia journal of Asian law, 10. Page 1 Back
33. Li (2016).The Chinese Communist Party and People’s Courts.  Page 7 Back
35. Huang (2005) "...the judges, after talking with the petitioner and the defendant individually, were expected to “investigate” (diaocha) the facts of the case themselves, not just to render decisions in the courtroom. Doing so usually entailed going to the residence and workplace of the petitioner and defendant and talking to their “leaders” (lingdao). For rural petitioners, these might include the Party branch secretary and brigade head; for urban petitioners, the factory head, school principal, Party secretary, and the like, at the relevant work units. The judges would also talk to “the masses” (qunzhong), such as relatives, neighbors, and co-workers. They would seek to ascertain the facts and background of the situation, focusing especially on the nature of the marital relationship and its main problems (“contradictions,” maodun). Usually, they would also inquire into the character and general work and political “performance” (biaoxian)of the parties in question, factors taken into account in the court’s posture toward the case. Then the court would call in the parties concerned, usually first individually, to seek common ground and concessions required for agreement. This process would include not just the couple but also the parents, other important relatives, and the local leaders. Finally, if and when the terms of a “reconciliation” (hehao)11 had been more or less worked out, the judges would convene a formal “reconciliation meeting” (hehao hui), often involving the local leaders and relatives as well." Huang Philip C. C.(2005) Divorce Law Practices and the Origins, Myths, and Realities of Judicial “Mediation” in China. Modern China,31,2. Page 157 Back
36. Ginsburgs George & Stahnke Arthur (1965). The people's procuratorate in communist China. Page 71 Back
39. Tay Alice Erh-Soon (1971). Law in communist China - part 2. Page 365 Back
40. Hsiao Gene T.(1965). The role of economic contracts in communist China. California law review, 53, (4). Page 1060 Back
41. Cohen Jerome Alan (1968). The Criminal Process in the People's Republic of China, 1949-1963: An Introduction. Page 10 Back

Documents....

  • 28-02-1949 Instructions concerning Abolishing the Six Codes of the Guomindang and Determining Judicial Principles for the Liberated Areas
  • 03-09-1951 Provisional Regulations Governing the Organization of the Office of the People’s Procurator General' of the CPG
  • 10-08-1952 Provisional Regulations Governing the Organizational Security Committees
  • 22-03-1954 Provisional general rules of the PRC for the organization of people’s mediation committees
  • 31-12-1954 Act of the PRC for the organization of city residents committees
  • 31-12-1954 Act of the PRC for the organization of public security stations
  • 31-12-1954 Act of the PRC for the organization of city street offices
  • Meetings....

  • 26-07-1950 – 11-08-1950: 1st National judicial work conference
  • 11-04-1953 – 25-04-1953: 2nd National judicial work conference
  • 17-03-1954 – 10-04-1954: 2nd national conference on procurators' work
  • Continue to Article 18