1. “Wu fa wu tian” is a favoured descriptive term.

2. All foreigners leaving their city of residence in China must obtain travel permits from the public security bureau. These must be shown both when purchasing train, plane or boat tickets, and upon arrival at one's destination.

3. “Unjustly” decided cases (yuan an) are those in which some injustice occurred that resulted in the conviction of the wrong person, i.e. the wrong person was arrested or convicted. A “falsely” decided case (jia an) is one which was intentionally concocted in order to frame an innocent person. “Mistakenly” decided cases (cuo an) involved some mistake in the procedural handling of the case. There is obviously some overlap among the categories. For example, a “falsely” decided case could easily fall into the more inclusive category of “mistakenly” decided cases.

4. Article 27 of the Law of the People's Republic of China on Election to the National People's Congress and local people's congresses requires that the number of candidates must exceed the quota of representatives to be directly elected by 50 to 100%. Previously, the number of candidates listed was often the same as the number of representatives to be elected. Thus, elections, when they were held at all, had little meaning. For an interesting case study on elections at the County People's Congress level, see “Election of deputies to a county people's congress,” Beijing Review, Vol. 23, No. 8 (25 February 1980), p. 11.Google Scholar

5. Throughout this paper, the conversion rate used is 1 renminbi (1 yuan) equals 0.66 U.S. dollars.

6. The young women who were temporarily assigned to work at the exhibition were not normally engaged in legal work. After the exhibition's closure they were to be given permanent work assignments not necessarily connected with law.

7. The original court decision may no longer have effect after the appeal is decided.

8. After the exhibition opened its doors to the public in December 1979, the Central Committee of the Chinese Communist Party submitted a proposal to the Standing Committee of the Fifth National People's Congress that the “four big rights” be deleted from Article 45 of the Constitution. At the time we attended the exhibition, the proposal was “scheduled for consideration” at the August 1980 session of the congress; but its ultimate adoption by the congress was regarded as a virtual certainty.

9. One might be tempted to say that this two-pronged mode of portrayal represents a deeper ambiguity in the Chinese attitude towards criminality and the law. Some such ambiguity may indeed exist. In the media and in everyday conversations about legal issues, criminals are often referred to generically; they are “criminal elements,” in the same way that other “elements” are part of the social system – “counter-revolutionary elements,” “newly risen exploitative elements,” etc. Seen from this point of view, the criminal is a somewhat inhuman, intrinsically evil creature. His “difference” is emphasized in order to make his rejection by society seem all the more necessary, and all the more total. Also, one must keep in mind the Maoist distinction between “contradictions among the people” (renmin neibu maodun) and “contradictions between the enemy and the people” (di wo maodun). Some criminal acts – counter-revolutionary acts in particular – are so heinous as to draw their perpetrators into the category of “enemy.” And the “enemy,” according to Maoist precepts, can be given no quarter. The dictatorship of the proletariat consists of democratic relations among the people and dictatorship over class enemies. So, in regard to some crimes, there is the possibility that the criminal-as-enemy-of-the-people concept will colour the way the perpetrator is perceived and the way his case is handled. On the other hand, there is the law's emphasis on equality and uniformity. All people are, in theory, equal before the law and possessed of the same rights. These concepts, as well as the notion of universally fixed legal procedures, are predicated upon a view of man as having some basic, inviolable human dignity. Absent sound legal justification, no person may be deprived of his or her rights. Doubtless, this type of ambiguous view of criminality exists in most societies. But, in this era, when the older Maoist precepts co-exist with the newer emphasis on democracy and legality, it may be particularly useful to bear this ambiguity in mind when analysing legal developments in China.

10. Jiliü jiancha weiyuanhui. This party organization was re-established at the national and local levels in late 1978. It is charged with investigating misbehaviour of Party members.

11. People's Daily, 3 April 1980.

12. Ration coupons issued to households are needed to buy such items as cotton and grain.

13. The special coupons which enable individuals to purchase bicycles are normally available only through one's work unit, and are often hard to come by.

14. The shangfang people are those who come to Beijing from the provinces to press the higher authorities for the redress of various grievances. A great influx of such people converged on the capital in late 1979, living in makeshift structures on the streets, clamouring to meet with officials and even staging demonstrations at the gate of Zhongnanhai, the seat of the State Council. The situation was chaotic, and thus presented a ripe opportunity for a confidence trickster.

15. Detention (Juyi) is a criminal penalty applied to those who commit relatively minor offences. The criminal is not sent away for punishment, but, rather, is held in detention by the public security organs in the vicinity of his residence or work unit. He continues to work and to receive appropriate compensation for his labour, and may return home for one or two days out of each month. The term of the sentence may vary from 15 days to six months.

16. Public control (guanzhi) is a light criminal penalty administered by the public security organs. The convicted criminal remains at his old job and in his old residence, but under the “supervision of the masses” and subject to “necessary restrictions of his freedom of action” imposed by the public security organs. Sentence terms range from three months to two years.

17. 4 June 1980.

18. Qiangzhi laodong. Forced labour is an administrative, not a criminal punishment. It is mandated in those cases where a wrong, but one not constituting a crime, has been committed. Hooliganism and negligent driving or operation of machinery are among those types of infringements for which terms of forced labour have been prescribed. Forced labour, unlike the labour carried out under the criminal penalty of detention, is carried out in areas specifically set aside for that purpose. Food is provided, but no salary. Terms range from one month to two years, with home leave of one or two days per month. The salient distinctions between this punishment and the criminal punishment of detention (see infra, fn. 15) have yet to be clarified. It has been pointed out that an important distinction is that an administrative punishment such as this does not go on one's record, and that therefore one who commits a crime after having served a term of forced labour will not be considered a recidivist; he will only be punished as a “first offender.” But according to some authorities, one who commits a crime after having served a term of criminal detention will also not be considered a recidivist. See, for example, Falü changshi shouce (The Handbook of General Legal Knowledge) (Beijing: Zhongguo qingnian chubanshe, 1979), pp. 80–81.Google Scholar

19. Article 10 of the Criminal Code specifically excludes from the definition of criminal behaviour acts resulting in insignificant harm to society.

20. Chinese Criminal Code, Pt 11, Sect. 1, Art. 90.

21. The recent highly-publicized case of the editor Wei Jingsheng may be viewed as an example of this latter type of counter-revolutionary case. Although adjudicated before the new Criminal Code came into effect, the case was generally felt to be a preview of how counter-revolutionary crimes will be treated under the code. Wei, an editor of and chief contributor to the dissident journal Explorations (Tansuo), was convicted of “supplying a foreigner with Chinese military intelligence and carrying out counter-revolutionary incitement.” According to one view current among some legal specialists, Wei's expression of reactionary sentiment would in itself have been insufficient for conviction. But when taken together with his action – the supplying of military secrets to a foreigner - the presence of a counter-revolutionary motive could more readily be inferred.

22. The Zhongguo renmin laodong dang and the Zhongguo renmin qiyi jun, respectively.

23. The Three People’s Principles (Sanminjuyi) are the mainstay of Guomindang political doctrine.

24. Thus, several members of the legal profession, basing their views on different conceptions of the term “counter-revolutionary incitement,” have offered divergent interpretations of the Wei Jingsheng case. Some feel that Wei's writings, taken alone, did not amount to counter-revolutionary incitement (see infra, fn. 21). Others feel that his writings, which contained, among other phrases, an explicit exhortation to “seize” (duo) power from out of the hands of the current authorities, constituted incitement in and of themselves.

25. China's Criminal Procedure Code, promulgated in July 1979, came into effect 1 January 1980, and is being implemented in stages. The case which is described in this section took place in 1979 and therefore, strictly speaking, the provisions of the code do not apply. Nevertheless, the procedures illustrated by this case conform to the code's strictures.

26. Article 74 of the Criminal Procedure Code gives the public security bureau the authority to require an autopsy when the cause of death is unclear, as well as the power to summon the deceased's family to the scene of the crime.

27. This refers to the various procedures which take place from the time of arrest -usually at or just prior to the Li an stage - up to the time when a decision is made whether or not to institute charges. The public security bureau takes responsibility for these procedures.

28. Indeed, the use of the single word “investigation” is misleading. For example, the expressions shencha and Zhencha are both translated as “investigation”; yet, it is often essential to distinguish between these two terms. Before an arrest can be made or a case be put on file for investigation and prosecution (Li an), the circumstances of a complaint must be examined (shencha). This is not to be confused with the investigation, or Zhencha stage, during which evidence is collected, fact-finding is carried out, and the identity of the perpetrator is ascertained. Nonetheless, the earlier shencha work may involve some of these same activities, since enough facts must be gathered to enable a decision to be made as to the seriousness of the case. For further details see Falü changshi shouce (The Handbook of General Knowledge), p. 116.

29. “Report to the 14th Session of the Standing Committee of the Fifth National People's Congress,” as reported in Beijing Review, Vol. 23, No. 19 (12 May 1980), p. 7.

30. Criminal Procedure Code. Arts. 108 and 109.

31. Criminal Procedure Code, Art. 26.

32. Criminal Procedure Code, Art. 115.

33. Criminal Procedure Code, Art. 129.

34. Sixing liji zhixing. There are several special procedures which must be followed whenever this sentence is given. Most important among them is the requirement that the sentence be ratified by the Supreme People's Court. For further details, refer to Arts. 43–47 of the Criminal Code.

35. For example, Falü changshi shouce (The Handbook of General Legal Knowledge) contains the following: “Given that the open trial is a good form for the masses’ exercise of their democratic rights and for their supervision of adjudicatory work, the masses attending such trials should be permitted to speak, in an orderly fashion, and truly to act as supervisors. Those ways of acting and ways of thinking that entail merely ‘making gestures’ and ‘going through the motions,’ are incorrect.” Pp. 103–104.

36. These three specified types of cases are: cases involving national secrets, cases involving individuals’ personal affairs of an intimate nature, and cases involving defendants between the ages of 14 and 16. Cases involving 16 to 18 year-olds are also, in general, not to be tried in the open trial forum. Criminal Procedure Code, Pt. 111, Sect. 11, Chapt. 1, Art. 111.

37. A recent, highly publicized open trial was held in a peculiar “court”-the Hangzhou Gymnasium-before an audience of over 1,000. The trial was also given television coverage.

38. In his 18 June 1979 speech to the Fifth National People's Congress, Hua called for the expansion of legal education in China: “Jiaqiang Jazhi jiaoyu.”

39. It is possible, however, that written materials had been available at other times, or that they were still available to some people but not to us.

40. It would not be suitable, we were told, to hold an exhibition such as this in Beijing. When we asked why not, the rather cryptic reply was “There are too many foreigners and people from the provinces there.”

41. This is not to imply that law will entirely supplant mediation and social pressure. Mediation techniques, both formal and informal, discussion meetings, and other non-legal forms of dispute resolution are all integral parts of Chinese social organization. Their use is not only approved of, it is encouraged. What is discouraged, however, is the resort to extra-legal pressure tactics, the use of privilege and connections to “ride above the law,” and the smothering of legitimate grievances that results from the social and institutional inertia of families, units or communities.