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NCJ Number: 51971 Find in a Library
Title: WILL CHINA HAVE A FORMAL LEGAL SYSTEM?
Journal: AMERICAN BAR ASSOCIATION JOURNAL  Volume:64  Dated:(OCTOBER 1978)  Pages:1510-1515
Author(s): J A COHEN
Corporate Author: American Bar Association
United States of America
Date Published: 1978
Page Count: 6
Sponsoring Agency: American Bar Association
Format: Article
Language: English
Country: United States of America
Annotation: THE 1978 CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA INDICATES THAT THE GUIDING PRINCIPLE OF GOVERNMENT IN CHINA IS THE CONTROL OF ALL STATE FUNCTIONS BY THE COMMUNIST PARTY.
Abstract: THE LEADERSHIP OF THE PEOPLE'S REPUBLIC OF CHINA (P.R.C.) CHALLENGE THE CONCEPT THAT A FORMAL LEGAL SYSTEM WILL BE CREATED CONCURRENTLY WITH THE INDUSTRIALIZATION OF A MODERN COUNTRY. CHINA'S INITIAL LEGAL STRUCTURE WITH SUBSTANTIVE LAWS AND A COURT HIERARCHY, ABOLISHED DURING THE ANTIRIGHTIST CAMPAIGN OF 1957, WAS REPLACED WITH A SYSTEM BASED ON THE SOVIET MODEL BUT WITH A DISTINCT CHINESE CHARACTER THAT GAVE GREATER EMPHASIS TO LOCAL INSTITUTIONS SUCH AS COMMUNES AND FACTORIES FOR THE HANDLING OF INTERNAL DISPUTES. THIS SYSTEM GAVE THE POLICE BROAD AUTHORITY TO IMPOSE CRIMINAL SANCTIONS UNDER THE DIRECTION OF THE COMMUNIST PARTY, WITH THE COURTS ONLY ACTING TO IMPOSE THE SENTENCES RECOMMENDED BY THE PARTY. THE CULTURAL REVOLUTION OF 1966-1969 REDUCED THE POWER OF THE POLICE, AND ABOLISHED THE PROCURACY. THE 1975 CONSTITUTION ABOLISHED ANY STRUCTURE OF LEGALITY THAT BORE TRACES OF THE SOVIET METHOD, AND CALLED FOR A 'MASS LINE' IN THE TRYING OF CASES. FOR OVER A DECADE EXTRAJUDICIAL ORGANIZATIONS HANDLED LEGAL DISPUTES IN THE P.R.C. WITH DECISIONS REPRESENTING THE CURRENT PARTY LINE. WITH THE DEATH OF MAO THERE HAS BEEN THE REPRESSION OF THE RADICAL PARTY MEMBERS AND ESPECIALLY THE GANG OF FOUR WHO SUPPORTED MAO, AND REASSURANCES BY THE PRESENT LEADERSHIP THAT CERTAIN GUARANTEES OF INDIVIDUAL RIGHTS WILL BE HONORED. THE PROCESS OF DE-MAOIFICATION FOLLOWING MAO'S DEATH HAS RESULTED IN BOTH THE FIRST PUBLIC TRIALS IN CHINA IN SEVERAL YEARS, AND OFFICIAL LENIENCY TOWARDS CITIZENS WHOSE CRIMES WERE THE RESULT OF THE 'SINISTER LINE' OF THE MAOISTS. THE PRESENT TRIAL STRUCTURE EMPLOYS LAY COUNSEL DRAWN FROM THE POLICE FORCE AND THE DEFENDANT'S CO-WORKERS. THE TRIAL PROCEDURE IS FELT TO PROVIDE A VEHICLE FOR POLITICAL AND MORAL INSTRUCTION FOR THE MASSES, AND TO PROMOTE THE CURRENT CAMPAIGN AGAINST CORRUPTION. HOWEVER, IT IS IMPORTANT TO NOTE THAT PEKING IS NOT ABOUT TO ESTABLISH THE 'RULE OF LAW' IN A WESTERN SENSE. FUTURE EVENTS WILL DETERMINE WHETHER THE REFORMS OF 1978 CONSTITUTION WILL BE FULLY IMPLEMENTED, OR WHETHER THE PRESENT LEADERSHIP WILL CONTINUE THE ABUSES OF THE MAOISTS. ALTHOUGH A LEGAL SYSTEM THAT UTILIZES THE FULL RESOURCES OF THE CHINESE PEOPLE WOULD BE COSTLY TO A GOVERNMENT WITH SERIOUS ECONOMIC PROBLEMS, SUCH A SYSTEM IS CONSIDERED CRUCIAL FOR THE MAINTENANCE OF PUBLIC ENTHUSIASM, AND THE DISPELLING OF PUBLIC FEARS. (TWK)
Index Term(s): Alternative dispute settlement; China; Court personnel; Court reorganization; Court structure; Jurisprudence; Law enforcement; Law reform
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