« 이전계속 »
intended an attitude in which the citizen voluntarily adheres to the law and does so with full, conscious understanding of the fact that his adherence is to the mutual advantage of himself and the society in which he lives. The Communist Chinese attempt to cultivate this attitude in the populace by various methods, most of which can be included under the rubric of propaganda.
The Communist Chinese take as a fundamental approach to legal documents the perhaps not so evident principle that the citizen must understand the content of a legal document before he can self-consciously apply it to his own life. In part to assure their being understood by the common man, legal documents in the PRC are written in plain language and a simple style. In a discussion of how to write decisions, a handbook issued by the secretariat of the Peking Municipal People's Court states some principles which apply equally to the texts of Communist Chinese criminal laws. The statement reads:
A decision is a document meant for the public. It should be so written as to be understood not only by the litigants but also by people not involved in the case. Therefore, not only must the facts be clearly presented in decisions, but the language used must be in a popular style. Ordinary stereotyped expressions for legal documents should be avoided. A successfully written decision must be easily understood by those who are able to read general material. It should also be easily understood by those who listen
to the reading of the document. Accustomed as he is to complex documents written in technical legal language, the Westerner perhaps cannot help looking askance upon Communist Chinese legal documents, in which it appears to him that plainness and simplicity have been carried many times to the point of sloppiness. Nonetheless, one cannot totally reject the notion that legal documents should be intelligible to the average citizen who is held responsible for adherence to their contents.
The Communist Chinese authorities take full advantage of their control of all the media in the country to bring about awareness of the provisions of state laws. Discussion of a particular law may precede its promulgation or even its final drafting by several months. Typically, discussion in the media begins with pointing out a problem or a situation constituting an obstacle to the progress ef socialism. Gradually is created the impression of the necessity of action, often legal, to remedy the problem or situation. At an appropriate time the text of a draft legal measure often is introduced for widespread, organized popular diseussion. The regime at times goes through the motions of accepting criticism, limited in scope, of this draft. Sometime later, the final version of a draft so discussed and criticized will be promulgated, following which there is further discussion of the manner in which the statute in question is in the interests of the people, that is, the way in which it will advance or protect socialism.
In the case of a criminal statute, the regime often makes public examples of some of those punished under its provisions. If formal trials precede the meting out of punishment, the trials will be featured in media reports. Particularly in the early days of the Communist government, mass attendance at these trials often was solicited.
The Communist Chinese press also devotes considerable attention to reports of those criminals who have reformed in the process of their punishment. Typically, the person so reformed testifies to his past evils, describes his new life and his new way of thinking, and expresses his gratitude to the regime for having helped him to effect a transformation. Members of his family sometimes also outpour their amazement at the "new man" and their gratitude to the regime.
The educational role of the criminal law is carried out in two ways other than those discussed above under the general heading of propaganda. One of these wars is that of encouraging the citizens to assume some responsibility for enforcement of the criminal law. Citizens are urged to observe others conscienHously and to report any violations known to them. During the excesses of the Cultural Revolution, some citizens apparently went beyond observation and Proparting to actual detention and meting out of punishment.
Another approach is that of bringing the average citizen into the judicial proress as a "people's assessor.” Modeled after similar participants in the Boviet judicial process, the "people's assessor” is a layman elected to share the
:Pet-ching shih jen min fa şüan pi shu ch'n (Secretariat of the Peking Municipal Ponlee Conrt). comp., Jen min ssu fa kung tso chü yü [Some Aspects of the People's Jadleial Work), Peking, 1950, p. 25-26.
bench with the judge in the trying of certain types of cases and to have equal voice with the judge in deciding questions of both law and fact. In principle the ratio between assessors and judges for each case is two to one and decisions are reached by majority vote. Active participation by the people's assessors in the judicial process is said by the Communist Chinese to yield many benefits, among them increased popular respect for the law and the courts. The media, as of would expect, have given considerable publicity to the experience of various las assessors in sitting on the bench.
One can say that the aim of all the matters discussed under the educational role of the law is prevention of crime. As it also can be argued that one of te primary purposes of having a published criminal code is prevention of crime, orja well may ask why the Communist Chinese have promulgated no criminal and enacted so few criminal statutes. The reasons for the absence of a crimini. code and a poverty of criminal statutes in the PRC are numerous and comples Here it is instructive to touch upon only two among these reasons. First, 1 appears to us justifiable to assume that the Communist Chinese leadership in sincere in its belief that fundamental social and economic reforms will do in comparably more to reduce crime than it could be hoped that any piece : corpus of criminal law would do. They appear to us to pay more than ija service to the Marxist tenet that crime is an environmental product. Second r. their approach to crime and the criminal law is perhaps colored by tradition. Chinese philosophy. In traditional China a distinction was maintained betw** To the concept of li (variously translated as morality, ethics, propriety) and til concept of lü (law). Li were the principles which guided and found express) in the conduct of the gentleman in all his dealings with others. Through his education he had absorbed li into the very core of his being. This absorption ? li made lü (law) unnecessary and perhaps even irrelevant to the conduct of ti! gentleman. To adopt a term from the modern Chinese Communists, one cou? say that the gentleman “self-consciously” did what was moral, correct, d! proper in every situation. With him there was no question of legality or illes. ity. But the uneducated, those who were not gentlemen, did not have li wirait them. If the state was to be properly governed, lii were essential because that mass of the people otherwise would have no guidelines for their behavior.
One can regard the Communist Chinese, through their intensive efforts in ideological education, as attempting to instill their own form of li in all tcitizens of the PRC. The "little red book” of Mao's thought which has figure so prominently in the life of the Communist Chinese citizen in recent years 3 perhaps the Communist Chinese equivalent of the Confucian Analects, the principal source of traditional li. If every citizen can come self-consciousls : follow the li of socialist life, if every citizen can become a "gentleman," the will be no need of law. Perhaps this traditional attitude underlies the fro, the Communist Chinese appear to have in the Marxist vision of communis... being the stage of society in which there will be no state and no law, but 15 which there will not be anarchy.
REIIABILITATION THROUGH LABOR
We have here to consider the Decision of the State Council of the Peop: * Republic of China Relating to Problems of Rehabilitation Through Labor. mulgated by the State Council, August 3, 1957, during the anti-rightist ca. paign which followed on the heels of the Hundred Flowers period of relat.. liberality in Communist China.
When the Communist Chinese assumed effective control of mainland China 1919, they were confronted with sizeable social, political, and crime prible? particularly in the cities, problems which had been aggravated by the dis tion attendant to long years of war. To cope with these problems, they put ima practice various procedures resembling those finally given a statutory hasia the above Decision. In his The Criminal Process in the People's Repu!!!, China, 1949-1963: An Introduction, Jerome Cohen alludes to these antecul.of the Decision :
Rehabilitation through labor grew out of a variety of experiments 4 took place in the years immediately preceding its formal enactment. Bei ning with the early 1970's, many government and Party cadres who me suspected of serious political deviations and of perhaps even harimpas counter-revolutionary sentiments were sent to "new life schools" in w: they were involuntarily confined while undergoing examination and
doctrination. In some places by 1956 the name of such schools had been changed to “rehabilitation through labor," reflecting the greater relative emphasis that had come to be placed upon physical labor in their "curriculum."
During its earliest years, the PRC also resorted to similar measures to meet the serious threat to public order that was posed by the prevalence of prostitutes, petty thieves, black marketeers, opium addicts, vagrants, and
other social parasites." The effectiveness of these antecedent measures, which one Western lawyer has characterized as "a ruthless solution of a social problem," were apparent to the Chinese themselves and to many of the foreign visitors, who frequently commented upon the marked diminution or absence of visible signs of petty criminal activity and the environment conducive to such activity.
The Decision of the State Council of the People's Republic of China Relating to Problems of Rehabilitation Through Labor makes various categories of persons subject to certain sanctions, which, although involving confinement and subjection to a stringent regimen of “rehabilitation,” are not characterized as criminal sanctions. The constitutional basis of these non-criminal sanctions is Article 100 of the Constitution of the People's Republic of China of September 20, 1954, which reads:
Article 100. Citizens of the People's Republic of China must abide by the
respect social ethics. The various categories of persons subject to the Decision's sanctions are, in general, characterized by non-productivity. These categories are:
1. The following kinds of persons shall be provided shelter and their rehabilitation through labor shall be carried out:
(1) Those who do not engage in proper employment, those who behave like hooligans, and those who, although they steal, swindle, or engage in other such acts, are not pursued for criminal responsibility, who violate security administration and whom repeated education fails to change;
(2) Those counterrevolutionaries and antisocialist reactionaries who, because their crimes are minor, are not pursued for criminal responsibility, who receive the sanction of expulsion from an organ, organization, enterprise, school or other such unit and who are without a way of earning a
(3) Those persons who have the capacity to labor but who for a long period refuse to labor or who destroy discipline and interfere with public order, and who [thus] receive the sanction of expulsion from an organ, organization, enterprise, school, or other such unit and who have no way of earning a livelihood ;
(4) Those who do not obey work assignments or arrangements for getting them employment or for transferring them to other employment, or those who do not accept the admonition to engage in labor and production, who ceaselessly and unreasonably make trouble and interfere with public
affairs and whom repeated education fails to change.o A person subjected to rehabilitation through labor was not charged with any crime and was not tried by any judicial body. The procedures for making a terson liable to rehabilitation through labor are described in section 3 of the
3. If a person must be rehabilitated through labor, the application for rehabilitation through labor must be made by a civil affairs or a public Becurity department; by the organ, organization, enterprise, school, or other such unit in which he is located: or by the head of his family or his giardian. The application shall be submitted to the people's council of the province, autonomous region, or city directly under the central authority,
or to an organ that has been authorized by them, for approval.? A person's confinement under the provisions of the Decision is an administra
Jerome Alan Cohen. The Criminal Process in the People's Republic of China, 1949188: An Introduction, Cambridge, Mass.: Harvard l'niversity Press, 1969, p. 239.
L.C. B. Gower, "Looking at Chinese Justice: A Diary of Three weeks Behind the Im furtain," in ihid, p. 243.
: Fundamental Legal" Documents of Communist China, prited by Albert P. Blaustein, & **b Hackensack, New Jersey: Fred B. Rothman & Co., 1962, p. 31. * Cohen, op. rit., p. 249. Coben, op. cit., p. 250.
tive action which can be initiated by various individuals or groups having contact with him. Those confined apparently had little or no recourse to appeal of the administrative action.
The Decision sketches in general terms in section 2 the nature of the regimen to which those being rehabilitated were to be subjected :
2. Rehabilitation through labor is a measure of a coercive nature for carrying out the education and reform of persons receiving it. It is also a method of arranging their getting employment.
Persons who receive rehabilitation through labor shall be paid an appropriate salary in accordance with the results of their labor. Moreover, in the exercise of discretion a part of their salary may be deducted in order to provide for the maintenance expenses of their family members or to serve as a reserve fund that will enable them to have a family and an occupation.
During the period of rehabilitation through labor, persons who receive it must observe the discipline prescribed by organs of rehabilitation through labor. Those who violate this discipline shall receive administrative sanctions. Those who violate the law and commit crimes shall be dealt with in accordance with law.
As for the aspect of administering education, the guideline of combining labor and production with political education shall be adopted. Moreover, discipline and a system shall be prescribed for them to observe in order to help them establish [in their minds) the concepts of patriotic observance of law and of the glory of labor, learn labor and production skills, and cultivate the habit of loving labor, so that they become self-supporting
laborers who participate in socialist construction. The period of confinement is left unstated in the Decision, which provides only that:
4. If during the period of rehabilitation through labor a person who receives it behaves well and has the conditions for getting employment, he may, with the approval of the organ of rehabilitation through labor, separately (independently] get employment. If the unit, head of the family, or guardian that originally made the application for the person's rehabilit: tion through labor asks to take him back so that it can assume responsibility for disciplining him, the organs of rehabilitation through labor may also,
giving consideration to the circumstances, approve the request." The implication seems to be that a person will be confined until he has been rehabilitated, though what constitutes the criteria of the rehabilitated state is vague. Cohen reports that "several former public security officers who have left China since the spring of 1962 have said that shortly before that time the government issued instructions that limited the term of rehabilitation through labor to three years."
The Decision at many points thus seems to invite abuse, and various sources confirm that such abuse has occurred. notably in the form of forced confinement and “rehabilitation” of persons guilty only of an objectionable affinity to "bourgeois thinking." i.e., rightists. The Communist Chinese authorities and press, however, have consistently held to the view that rehabilitation through labor is a laudable and highly effective program. It is possible, however, that some of the abuses in the work of reforming vagrants described during the Hundred Flowers period in some official Instructions of the Ministry of Interior of the PRC also apply to the program of rehabilitation through labor, of which the work of reforming vagabonds was a precursor. The abuses noted in these official Instructions include the following:
(1) During the initial period some places were not clear as to the senpe of the classification "ragrant." and investigation work was not thorough enough-this led to some errors in providing shelter :
(3) In arranging for vagrants to participate in labor and production some places did not sufficiently comprehend and implement the guideline of combining reform with placement and ther only concerned themselves with present production nroblems and did not care about the needs of long-term placement:
(4) Als, some places executed the work too mechanically in the direction that considered agriculture to be paramount in placement and reform. and they placed on farms vagrants who were not snited to participate in agricultural production :
Thin., n. 249-2:30.
(5) Also, some places were not reasonable enough in the work of disciplining ragrants and in compensating them for their labor."
REFORM THROUGH LABOR
The second statute to be considered is the Act of the People's Republic of China for Reform through Labor (September 7, 1954), which is made applicable in its Article 1 to "all counterrevolutionary and other criminal offenders.” 12 The sanctions described in this document are criminal ones, as opposed to the noncriminal ones described in discussion of the previous Decision on rehabilitation through labor, and they are made applicable to offenders whose cases have already been adjudged. Such offenders are to be held in detention houses, prisons, or reform through labor discipline groups in accordance with the provisions of the following articles :
Article 8. Detention houses shall be (used) primariy for confining in custody offenders whose cases have not been adjudged. . .
Article 13. Prisons shall be [used] primarily for holding counterrevolutionary nffenders and other important criminal offenders whose cases have already been adjudged, who have been given suspended death sentences or life imprisonment, and for whom the execution of sentence by labor outside of prison would be inappropriate.
Article 19. Reform through labor discipline groups shall hold counterrevolutionary offenders and other criminal offenders whose cases have already been adjudged and for whom labor outside of prison is appropriate.13
With the possible exception of those confined in detention houses whose cases have not been adjudged, these three classes of offenders are subjected to reform through labor regimens comprised of (a) labor, often physical in nature; (b) political and ideological education; and (c) a “carrot-and-stick” system of rewards and punishments. We shall discuss these three aspects of the reform regimen individually after recording the following observation of Jerome Cohen:
**Both inside and outside the People's Republic reform through labor is the most publicized aspect of the criminal process in China. Chinese publications hare claimed that a blend of thought reform techniques and compulsory labor has achieved remarkable success in the correction and rehabilitation of criminal offenders. Some foreign observers have enthusiastically endorsed these claims. Others have indicted the system of penal administration for having Cruells subjected millions of prisoners to the worst of the abuses that are associated with the term "forced labor.” 14
The labor in which counterrevolutionary and other offenders engage during their punitive period apparently has been varied, though the emphasis perhaps has been upon gross physical tasks. The Act itself specifies that those in Prisons shall engage in "compulsory labor” and that those in reform through abor discipline groups shall engage in “planned participation in agriculture, Industry, construction work, and other such production" and finally that “provInres and cities shall establish reform through labor discipline groups on the basis of actual needs." 15 The Act also stipulates that: attention shall be paid to the cultivation of production skills and labor habits of offenders. During Trform through labor attention shall be paid to the full utilization of technical skills of offenders who have them.'
Article 52 of the Act states in part that: the time of actual labor for offenders generally shall be fixed at nine to ten hours each day. With seasonable productiin it may not exceed twelve hours. The time for sleep generally shall be fixed it eight hours."
In a Peking prison which he visited. Edgar Snow found that there were three prison factories (a hosiery mill, a mill for plastic articles, and a machine and Kertrical shop). Meng Chao-liang wrote in 1958 in the Communist Chinese friminal Cheng-fa yen-chiu (Political-Legal Research] that: Reform through labor agriculture is largely established along rivers, in lake
tia., p. 244. 2 Thid. p. 589. - Ibid., p. 590.
p. 588 .. p. 590-591.
Thin., p. 591.