1

Tanner (1999)- Strike Hard!

Criminal Law and Criminal Procedure Law of the PRC→ The laws bring to mind Chairman’s
Mao’s ​voluntarist ​reading of Marxism, although not his methods of spiritual regeneration.
(6)

Socialist legal system on the basis of the Soviet mode→

● Underlying faith in the ​malleability ​of the individual

● Assumption of an ​instrumentalist ​view of law
● Assumption that a ​direct ​relationship exists between the moral and ​spiritual ​uplift of the
nation and the ​economic ​tasks of development ​(6)

1st Criminal Law- 6 August 1979: ​Soviet Criminal Code; Marxism-Leninism; Mao’s Thought;
CultRev lessons (German law filtered through the Soviet Union and China’s historical
experience)

Specific Provisions: Crimes of-

● Counterrevolution
● Endangering Public Security
● Undermining ​Socialist ​Economic Order
● Infringing upon the Rights of ​Person ​and the Democratic Rights of Citizens
● Property Violation
● Disrupting the Order of Social Administration
● Disrupting ​Marriage ​and the ​family
● Dereliction of Duty

Plans for Criminal Code 1950-1952, two drafts (Outline and Principles produced) but
promulgation of the law itself deemed not right→ Still undergoing the process of socialist
transformation & purges in legal sphere -JUDICIAL REFORM MOVEMENT- of unreliable
“old society’ elements.
(7)

Timeline:

● 1st Constitution of PRC- 1954

Legal Section of the General Office of the Standing Committee of the National People’s
Congress drafting the criminal code
 2

● 1957- 22nd draft is sent to the Legal Committee of the Party Center and the Party
Secretariat for revision

● Mao unleashes the ​Anti-Rightist ​movement (denounce and purge critics of the
Communist Party)
Anti-Rightist movement consequence: ​↓ law and lawyers, ↑ Policy (Party) is the guide to
apply coercive power

● 1961-1962​: (7000 Cadres Work Conference), Legal Affairs Office & Party Center’s
Politico-Legal Affairs Group revises the ​22nd ​draft, ​33rd ​draft sent to the Politburo and
Mao → (33rd draft, desire to produce in the offender an attitude of regret and reform
underlined → taking into consideration both facts/circumstances/intention of the crime
and the situation of the criminal as well as ​penitential attitude. (13)

Socialist Education Mass Movement​, followed by ​CultRev

● 1978: ​Deng Xiaoping→ Central Politico-Legal Affairs Group organizes Draft Criminal
Law Revision Team to construct the legal system (based on the 33rd draft)

● 1979​: 3 drafts produced, the 2nd passes in principle by the ​Politburo o​ f the ​Central
Committee→ ​Legal System Committee​→ ​Standing Committee of the NPC
(revised)→ ​2nd Session of the 5th NPC

● August 1, 1979 (passed); August 6 (promulgated); January 1, 1980 goes into effect
(8)

Drafting process ​25 years​; ​5 years ​across ​3 decades​; ideas and experiences from the 1950s,
1960s and 1970s inform the Criminal Law of 1979

Major legal concepts and definitions from the 1950s; repudiation of the laws and institutions of
the Republican period; resemblance to the Soviet Code of 1928- ​arrangement into sections of
General and Special Provisions, COUNTERREVOLUTION ↑↑↑ of particular offences

Marxist-Leninist ideology (instrumentalist philosophy):

Crime ​is a product of class society (​political​) therefore ​law ​is in an ​instrument ​to reduce and
eliminate crime as the dictatorship of the proletariat guides society through socialism
(transitional stage) to the communist ideal
 3

↑↑↑ protection of socialist property; counterrevolution most serious offense; punishment

not retributionary but designed to reform the offender and instruct the general public (?)
(9)

Any protection of individual rights is compromised by the continued assumption that the law
functions as an instrument for social transformation.​ (16)

Post-Mao Chinese authorities considered the increasing rate of serious crime to be inimical to
economic development and socialist order.

↓ Economic development & socialist order → ↑ Crime Rate

Principle of analogy (Article 79 of Criminal Law)​- if a crime is not expressly stipulated in the
Special Provisions of this law (art. 79) ​MAY BE determined and punished according to the most
analogous a​ rticle of the Special Provisions, ​BUT ​the matter shall be submitted to the Supreme
Court for approval. ​(17)

“There must be flexibility in applying principles.”- Mao

Tanner claims that the use of analogy in Chinese Communist law can be traced to the 1951 law
on the punishment of counter revolutionary crimes; even more so to the base area laws of the
1930s. ​(12, 17)

Pre-1949 Communist base areas→ 1957 (22nd Draft) 9 punishments ​(12)

1. Control
2. Criminal Detention
3. Fixed-term imprisonment
4. Life imprisonment
5. Death (2 years reprieve αναστολή)
6. Fines
7. Deprivation of political rights
8. Confiscation of property
9. Deportation

Criticism​: The ​principle of legal analogy did not originate in the Communist base area laws.
(16-17) ≠ ​Absolute Flexibility - t​he concept has been a central feature of Chinese criminal law
for centuries (until 1935). Its persistence implies something larger about Chinese statecraft than
the contemporary (maoist) twist​.
 4

Contradictions between enemy & the people ⇄ Contradictions between the people
themselves (changing definition according to historical context)

1950s-60s: class status of the criminal determines the offense and the punishment:

Crimes committed by a person considered of an ​enemy class background (antagonistic

contradictions) → ​↑ punishment ≠ crimes committed by people of working class origin→ ↓
punishment ​ (11)

CultRev 1966-1976: ​Breakdown of law system, attacking rhetorically and literally the public
security/ procuratorates/ courts → ​state lost its monopoly on violence and coercive power
(13)
Post-Mao: class struggle (experience of CultRev) will no longer be the prime determinant of the
nature of law and crime ​ (14)

↓ punishment for “counterrevolutionary” offenses ​(15)

↑individual rights (Chapter IV) [physical integrity rights] ​ ​(15-16)

Criminal Procedure Law 1979. Art. 3 COORDINATION BTW

1. Investigation, detention and preparatory examination of criminal cases- ​Public

Security organs
2. Arrest approval, procuratorial work-​ People’s Procuratorates
3. Adjudication- ​People’s Courts ​ (18)

1983: Responsibility for the administration of the labor reform and re-education camps
Ministry of Public Security → Ministry of Justice ​ ​ (21)

Standing Committee of the NPC- 3 types of legal interpretation (lack of definition of each made
labor division difficult)

1. Legislative interpretations (lifa jieshi)- issued only by the Standing Committee of the
NPC | definitions or supplements to existing law
2. Judicial interpretations (sifa jieshi)- issued individually or jointly by the Supreme
People’s Court (SPC) and/or the Supreme People’s Procuratorate (SPP) |concrete
 5

application of law in judicial or procuratorial work.If interpretations differ ​→ resolved

by Standing Committee NPC​ (rule by law)
3. Administrative interpretations (xingzheng jieshi)- issued by organs of the state e.g. the
Ministry of Public Security could issue administrative interpretations concerning the
enforcement of the Security Administration Punishment Act |application of law not
relevant to judicial or procuratorial work. ​(22-23)

Before 1985 SPC/SPP legal interpretations/ MPS joint statements- published mostly as
internal documents (neibu) ​[SONG DYNASTY]​ ≠ post 1985 legal interpretation openly
published as well (23)

SPC ​judicial interpretations→ draft interpretation sent to ​Policy Research Office​→ leaders of
SPC→ ​circulation ​[rubber stamping]​ to ​lower levels​ of the court system and scholars to solicit
opinions→ revision sent to the ​SPC Adjudication Committee ​(top leadership within ​SPC) →
APPROVAL (24)

Retroactive application of the law→​ cases open to revision| taking into consideration public
outrage for a light punishment ​ (25)

Jural ​(formal) model ⇄ ​Societal ​(informal) model (Policing in China| State & Society) ​ (25)

6 stages:

1. 1949-1953- ​↑Societal Model​; Revolutionary justice- administrative agencies and people

themselves ​[UNDER PARTY LEADERSHIP]
2. 1954-1957- ​↑Jural Model​; adoption of Constitution, laws, emphasis on class struggle
3. 1957-1960-​ ​↑Societal Model;​ formal law is attacked as bourgeois
4. 1961-1963-​ ​↑Jural Model;​ drafts
5. 1964-1977​-​↑↑↑↑↑↑↑↑↑Societal Model​; ​CultRev
6. 1978- ​↑↑↑↑↑↑Jural Model​; Criminal law, Criminal Procedure law ​(26)

Same contractions and expansions can be observed in the Soviet development of law (Richard
Baum) → ​Socialist legality born out of reluctance/ necessity; administering revolutionary
justice preferable ​ (27)

Gradual liberalization, repeal of draconian laws,↓ importance of confessions, ↑authority of

legal organs,​ Beria’s execution (Ministry of Internal Affairs) → Soviet Criminal Code and
Procedure law in 1958 | Shift towards punitive in 1961, continues into the Brezhnev era→
deliberate ↓↓↓↓↓↓class struggle in both systems