Article by Chin Kim
After it seized power in 1949, the Chinese Communist regime in mainland China repealed all the laws of the nationalist government because such laws stressed the interests of the bourgeois class and the feudal society. Nationalist laws were supplanted, however, not by new codes, but by a mixture of statutes, decrees, rules, orders and party resolutions. Although some important statutes have been enacted by the Communist regime since 1949, up until 1979, Communist China has not had a comprehensive criminal code, nor has it had any standard legal procedure. Indeed, it was very unusual for a modern state to function for three decades following its establishment without a codified legal system.
Chinese socialist law was a highly speculative area of study until 1979. This uncertainty largely was attributable to the unavailability of source materials and the recency of events. Since 1979, pieces have been falling into place, and we have been able to learn more about the evolution of Chinese socialist law from the creation of the People's Republic of China in 1949 and even from the establishment of the Chinese Soviet Republic in 1931. ‘Since 1977, China's new leaders, by their own admission, have considered the establishment of a legal system to be a task for the immediate future.’
The breakdown of legality during the Cultural Revolution was caused largely by kangaroo courts that convicted citizens of political transgressions. This breakdown apparently resulted in great distress and insecurity among the populace.
The ‘gang of four’ has been publicly attacked on this point. Their misuse of official power to promote their political ambitions is cited as a major rationale for employing a system of checks and balances over government in general, and for reinstating the People's Procuratorate in particular. As a part of this drive toward a more formalized legal system, a series of basic codes has been enacted.
New and revised laws and regulations are being adopted in an increasing number of areas. ‘The Chinese leadership hopes that an adherence to legality will both restore a sense of security to individual citizens and guard against factional use of state power in the future.’
The period from 1954 to mid-1957 was the height of China's legal development; there was considerable progress in the creation of the Chinese legal order, which was patterned primarily after the Soviet and East European models. This progress was interrupted by ‘the Anti-rightist campaign that began in mid-1957. After these purges the trend to return to the ‘revolutionary simplicity’ of society became dominant, undermining the concepts and institutions of law.' This trend continued until 1966. The years from 1966 to 1976, during the so-called Cultural Revolution, witnessed the dark age of legal development. Maoist values were imposed upon the population and society. Consequently, all the judicial organs became virtually defunct.
Today, development and strengthening of the Chinese legal system is an ongoing concern of the Deng Regime. Education of the public on socialist legality is to be effected through a five-year program. Party and state leaders are now obligated to attend a lecture series on socialist legality.
Written laws are basic source documents that comparative law specialists have to consult in order to consider those questions of derivation, deviation, and similarity and difference that are central in the study of comparative law. How much of Chinese socialist law is borrowed from the Soviet Union and other socialist countries? How much of the socialist law have the Chinese themselves created? Is there an identifiable heritage of traditional Chinese law in the current effective Chinese Socialist law?
To seek answers to these questions, this Article will examine the following subjects: constitutional law; Marxism-Leninism and Mao Zedong thought; independent judiciary and the Communist Party; trial and procuratorial committees; judges, Procuratorate and lawyers; traditional law; mediation; provisional and experimental law; marriage law; the Criminal Code; the Criminal Procedure Code; the Civil Procedure Code; the Civil Code; and economic law.
About the Author
Chin Kim. Professor of Law, California Western School of Law.
Citation
61 Tul. L. Rev. 1413 (1987)