Already on February 28, 1949, The CCP decided to abolish the old laws of the GMD government in the “recently liberated areas”. This rejection of the laws and judicial system of the GMD does not mean the new government starts with a blank sheet. On the one hand, they have gained experience before 1949 in the areas that they governed “Many of the laws issued after Liberation—such as the Land Reform Law, the Marriage Law, the various labour laws and the organic laws of legal and quasi-legal bodies, such as the court and the mediation committee had their origins in the pre-Liberation period.” Before 1949, the party had already governed more than 90 million people. On the other hand, they could copy the Soviet Union model. “During the decade of 1950-60, legal education in China was totally under the guidance of Soviet experts. China not only sent a large number of law students to the Soviet Union, but also invited many Soviet experts to teach in China. For some law-related courses, Soviet textbooks were used in schools.” Besides, several laws without political implications are still in force, for example, laws regulating traffic. The formulation of article 17 gave the party an escape route, to keep some legislation of the GMD intact, because only laws which oppressed the people should be abrogated. "Fervent representations notwithstanding, the “old law standpoint” was not simply an orphaned relic of the past; rather, the Party had actively assimilated, transformed and appropriated it, giving it a new lease on life. That is why it took root in the base areas, outlasted the Nationalist regime, and endured in the PRC. The further forward in time one looks, the clearer that becomes. Between 1949 and 1957, elements from the old law recursively irritated the legal system,.." In 1949,
a CCP party leader, heads a working group of 41 politicians and lawyers who are drafting new legislation. Several juridical writings are publicized and new legal training programs are started. “Although new personnel were recruited and given brief training courses, a substantial backlog of housing, labour, property, debt, family and other cases confronted the courts from the very outset and led the regime, after screening out obvious undesirables, to retain many Nationalist judicial officials to help dispose of this workload. As of 1952, there were still approximately 6,000 holdovers among the 28,000 cadres who staffed the judiciary.” September 1949, a new law school is established in Beijing. It provides a year's course for lawyers, jurists, and professors of law schools. Tiffert (2015) remarks "The number of law schools and law departments in China dropped from 53 in 1949 to just eight by 1953, and their faculties and libraries had been broken up and dispersed. During the same period, enrollments fell from 7,338 to 3,908, only 1,740 of whom were in traditional undergraduate programs. The remaining 2,168 were enrolled in the shorter, polytechnic programs designed specifically to prepare skilled cadres for service in the field,..."
Wang Ming (1904-1974)
The emphasis within the judicial work lies on political matters and not on the daily routine and/or formal procedures. As long as the struggle against the counterrevolutionary is going on,
, stated in 1951 "Our judicial work must serve political ends actively, and must be brought to bear on current central political tasks and mass movements." To "safeguard the fruits of revolution," political-legal cadres were called upon to conduct mass trials and struggle meetings.” A year before, he defined the judicial work as "to suppress resolutely, sternly and in good time all counter-revolutionary activities which undermine agrarian reform, production and the people's democratic reconstruction, and to suppress the resistance of reactionary classes; [and to] protect the gains of land reform, production, reconstruction and democratic order". Li (2019) remarks "In the Party’s early history, dictating judicial outcomes had been an inherent feature of judicial practices. In Party-controlled border-regions during the 1930s, all court decisions on criminal cases had to be approved by Party committees before being issued.91Such “case-approval” practice continued to dominate court activities even after the establishment of the P.R.C in 1949.92At times, the police, procuratorate and courts, worked jointly together, led by the Party, on high-profile cases." Tiffert (2015) shows that the GMD regime, during the last years of its reign over mainland China, the practice of law was also political determinated. The result being that "The courts developed reputations for cronyism and corruption in adjudication and staffing. And those tasked by the CCP in 1949 with revolutionizing the Chinese judicial system, not a few of them veterans of it, shared in this ambivalent Republican heritage. As they tore it down with one hand, they sifted, amplified, and repurposed it with the other." The PRC inherited a shortage of judicial trained employees, a clustering of law schools in east and south China, Beijing and Tianjin, this led inevitable to a shortage of qualified personnel in the least developed areas of the country.
Shen Junru (1875-1963) President of the Supreme People’s Court (1949-1954)Chinese lawyer
Blaustein, divides the laws made between 1949 and 1954 in 3 categories: constitutional, organic, and formal laws. The constitutional laws are the Common Program of 1949 and the Constitution of 1954. The organic laws describe the power, organization and procedures of administrative bodies of government. In the period before 1954 they regulate the CPPCC and the CPGC, in the period after 1954 5 organic laws regulate the NPC, the State Council, the tribunals and the local People’s Congresses.
The formal laws can be categorized in laws dealing with political crimes, corruption and crimes against persons. The law on punishment of counterrevolutionary activities promulgated on February 7, 1951, is an example of the first category. The second category can be represented by the law on punishment for impairment of state currency. The law concerning the strict prohibition of opium and other narcotics of February 24, 1950, represents the third type. The most important formal laws are the Marriage Law, see
The main purpose of legalization in People's Republic of China is not to rule conflicts and/or safeguarding the rights and interests of the individual but to protect the political aims of the CCP. An article in the newspaper Yangtse Daily underlines this concept. "It is impossible to talk of justice in isolation from Party principles. Whatever agrees with Party principles is just; whatever disagrees with Party principles is unjust."
There is no Criminal Code, the new laws are vaguely described, and the punishment is not clear. This leaves the possibility for the government and CCP to adjust the laws to their interests and in extreme cases, to personal interests, in particular those of Mao Zedong. The decrees are often not made public and are constantly revised or changed. Mao Zedong explained in June 1949 in his "On the People's Democratic Dictatorship". "...if people break the law, they will be punished, imprisoned or even sentenced to death. But these will be individual cases, differing in principle from the dictatorship imposed against the reactionaries as a class." On May 11, 1951,
remarks “… the laws of the country were still incomplete. He contended, however, that there should be no hurry to fix "complete and detailed" law codes which were "neither mature nor urgently necessary." He asserted that laws should be made in accordance with the central tasks of the moment and the pressing problems of people's needs, and should be based on a synthesis of model and mature experience. He added that laws should proceed gradually from simple to complex, from general rules to detailed articles, and from single statutes to codes.27”
Peng Zhen (1902-1997) First Secretary of the Beijing Committee of the CCP (1949-1966)
Besides having the wrong class background, people can also be arrested for having wrong ideas, incorrect attitudes, little dedication, and having voluntary or involuntary contact with wrong people. Even party members are not excluded from this system and can become enemies of the state.
The organic law of the central people's government of the PRC stipulates in article 5 The Central People's Government Council shall set up: …and the Supreme People's Court and the People's Procurator General's Office as the highest judicial and supervisory bodies of the country." Article 7 of this organic law states Central People's Government Council should also exercise the authority of appointment and removal of the Procurator-General, his deputies, and the members of the People's Procurator-General's Office. Chapter 5 of this law describes its functions and position. On October 19, 1949
is appointed as attorney general of the Supreme People’s Procuratorate.
Luo Ronghuan (1902-1963) CCP PLA
Li Liuru (1887-1973) CCP
are appointed deputy attorney general. Ginsburgs (1964) claims "Though a great step forward compared to what the earlier enactments had featured on this topic, the Organic Law still left unanswered more questions than it resolved. Nevertheless, it must be given due credit for expressly sanctioning, for the first time, the creation in the immediate future of a Procurator-General's Office to head a nation-wide agency." Ginsburg (1964) observes "...during the first two years of its existence the newly created office transacted very little actual business, in practice playing a minimal role in the momentous revolutionary upheaval directed from above which at this time had already begun to transform the ancient face of the country. "
Lan Gongwu (1887 -1957) nonparty
There are a couple of reasons for this minimal role of the procuratorate. First of all, acute shortage of qualified personnel to man the offices. The staff remaining from the GMD were not qualified for the tasks ahead. The introduction of this legal system was new to them. There has been no predecessor to the procuratorate in China.
Second, the new government was not interested in legal technicalities, they want their revolutionary policies to be implemented as soon as possible. Third and last, the regime has other canals to implement their plans easier and faster, namely the public security forces, various other instruments of administrative control, the Party, mass organizations and mass campaigns. "Between 1950 and 1953, in nationwide campaigns and movements, several social groups were singled out and isolated from the rest of society: landlords (the Land Reform Campaign, 1950 to 1952), counterrevolutionaries (the Campaign to Suppress Counterrevolutionaries, 1950 to 1951), corrupt bureaucrats (the Three-Anti's Campaign [anticorruption, antiwaste, antibureaucracy], 1952), capitalists and private entrepreneurs (the Five-Anti's Campaign [antibribery, anti-tax evasion, antifraud, antitheft of state property, anti-leakage of state economic secrets], 1952), and the educational sector and intellectuals more generally (the Thought Reform Campaign, 1951 and 1952)." In 1949, officers of the PLA mostly take care of the administration of justice and of maintaining order. Later on "during the period of land reform, several people were chosen from the Peasants’ Association to serve as judicial officers, whereas in cities, several people were chosen from trade unions and other people’s groups to serve as judicial officers." The courts have as main task the punishment of counterrevolutionaries. There are 3 kinds of courts. In the military courts, the judges are chosen by the PLA and/or CCP. In these courts, public is allowed but the judges sentences. The operation of military tribunals in trying civilians under the 1951 Statute on Punishing Counterrevolutionaries is illustrated by an espionage case decided 17 August 1951 by the military court of the Peking Military Control Committee. The second sort of courts are the People’s Tribunals, they have lay judges and audience participation. These tribunals are dealing with adversaries of big political campaigns, like the Land Reform. “..legal procedures were rarely followed, lawyers were not assigned for the accused, judges were in-sufficiently trained and inexperienced, records of trials were poorly kept,…” The purpose of these tribunals is twofold, the political opponents receive their punishment, and the political awareness of the people is enhanced, and the people are actively backing the new regime. They were ad hoc in nature and lasted only through the duration of a given campaign. “In 1951 alone, Peking held about thirty thousand mass trials, in which an estimated number of over three million people participated. Other major cities as well as rural areas all over the country also saw the extensive use of mass trials. In Tientsin, more than 20,000 mass trials were held, with the participation of over two million people.”
This system of People’s Tribunals is stopped in 1952 at the moment the purging counterrevolutionaries
In August 1952, the CCP started a reform campaign in the juridical sector to eliminate the ‘old bourgeois’ ideas about legislation and law enforcement and to solve conflicts within the judiciary. “… the retained personnel and the new cadres had very different understandings of the nature of legal work. There was considerable conflict between the two groups over professional and personal styles. It is not difficult to imagine the differences and problems a former guerrilla squad leader would have in working with a colleague who was an Oxford or Sorbonne trained lawyer.”
The people are asked to report (anonymously) any faults. "For instance in Tientsin, between September 9 and 18, 1952, 475 denunciatory reports were submitted to the office set up jointly by the people's courts, the people's procurator, and the people’s supervision committee, or were dropped (no doubt anonymously) into the special letter-box (检举箱) at the procurator’s office."
Due to the campaign, there is a shortage of personnel and the courts can not handle all cases. In 1954, some 1140 judges are reappointed after ‘sufficient’ training. A different obstacle in the judicial work is the execution of the verdicts. During the second work conference, Peng Zhen tells the audience the battle against the enemy of the revolution is almost won and the judiciary is ready to enter a new phase. The law enforcement at national and local level will be done by newly trained. Law enforcement agencies will be put in action at factories, mines, and railways. "...all party committees should strengthen their supervision and inspection over the performance of courts and that a standing party committee member should be designated to oversee judicial affairs. … all judicial institutions should proactively and timely submit reports to party committees and strictly follow the request‐for‐instruction‐and‐report rule.”51 Special mediation teams are set up. Huang (2006) describes the mediation theory as part of the mass line. "Maoist mediation was also couched within the ideology of the “mass line”: that is, judges do not just sit at court but must go down to the village to investigate the truth with the help of “the masses” and then resolve or “mediate” a case. Judges must rely on the masses because their eyes were “the clearest” (zuiliang) and because the justice system, like governance as a whole, was to proceed according to the formula “from the masses, to the masses.” This method was supposed to minimize “contradictions” between the leadership and the followers, the courts and the masses. By this ideology, judges would ascertain from the masses whether a marriage was worth reconciling and, if so, would call on them to help work things out. The judges would manage other disputes the same way, investigating to learn the truth from the masses and then working with them to resolve the dispute.
"In fact, inconsistency and inefficiency were common during the first phase of the anti-drug campaign. . . . in reality, the Communists simply lacked the resources necessary to carry out this project completely and were too preoccupied with various other tasks they were facing—among which the most important were to revive the economy devastated by the civil war, to rebuild social order at home, and to fight the Americans in Korea.” "…the Communist Party launched a second, secret anti-drug crusade in the summer of 1952, including mass rallies and criminal trials focusing on stamping out widespread corruption. 123 Although the campaign enjoyed remarkable success, Zhou concedes that it was “postponed” in several minority and remote border areas—including parts of Yunnan province in the Golden Triangle." Zhou (1999). Page 96.
For example "On August 30, 1952, the local Public Security Bureau (PSB) (of Zhanjiang) and a local unit of the PLA launched a coordinated strike, resulting in the arrest of 137 people and the registration of over 700 opium users (a minority were arrested, while most were sent for re-education or allowed to remain in Zhanjiang under surveillance) Pieragastini (2017). Pages 125-126
08-05-1951 The Decision of the CCP on the Policy of Application of the Death Sentence with a Two- Year Suspension to the Majority of Counterrevolutionaries.
Other decisions: "Instructions of the Central Ministry of Public Security on Handling Female, Juvenile and Elderly Prisoners" in October 1951,
"Supplementary Directive on Tacking Female, Sick and Disabled Criminals" in 1952
"Regulations of the East China Military and Political Commission on Land Reform Completed Area Control and Reform of Landlords" on 20-07-1951
"Regulations on the Registration of Secret Agents and Other Counter-Revolutionaries of Reactionary Party Groups in Central South District" on 11-08-1951,
At the 3rd national conference on public security works May 10, 1951 the basics of the laogai system are determined. This results in two regulations: Labor reform policies August 26, 1954 and Temporary disciplinary methods for the release of criminals completing their terms and for the implementation of forced job placement. August 29, 1954
"By the end of 1951, more than 2 million individuals were imprisoned, 670,000 of which were in the new labor camps, where they were required to contribute through labor to their own upkeep." Walder (2015). Page 66.
26-08-1954 Regulations of the People's Republic of China on Labor Reform
"Probably the most controversial paragraph in the 1954 Statute on Laogai was Article 62. This article provided the basis for the so-called forced job placement system, or jiuye.103 It stated that those prisoners who wished to remain in the camp area, whose services were needed, who had no residential registration and no job to return to, or who could be settled in sparsely populated areas, should continue to be employed by their local laogai unit.104 Consequently, the majority of prisoners who had completed their sentences were kept in the camps as “free convicts” for the rest of their lives." Deckwitz (2012). Page 24.
In 1953, the Second National Conference on Laogai expanded the reach of its prison system by instituting the policy of “keeping many and freeing few” and ordered every laogai unit to retain at least 70 percent of prisoners after the completion of their sentences,
Tao (1966) remarks "Other statutes do not have similar provisions, but Communist jurists maintain that their retroactivity" is indicated in the legislative reports. For example, the Anti-Corruption Act83 does not expressly provide that it is retroactive. But the legislative report points out that the act can be applied retroactively to those who offended its provisions before it came into force." Tao (1966). Page 55.
03-09-1951 Provisional Regulations Governing the Organization of people's court
During the campaign, masses were mobilized in a “measured” and “planned” fashion to report and expose “anti-revolutionary” court decisions or practices.41 “Mass line” was systematically introduced to courts.42 People’s assessors were invited to participate in the adjudication and people’s tribunals were established in villages and urban communities for the convenience of residents.
See for example RMRB 23-08-1952 "The Northwest District launches judicial reform work, Xi'an City mobilizes the masses to report illegal acts of judicial personnel"
28-02-1949 Instructions concerning Abolishing the Six Codes of the Guomindang and Determining Judicial Principles for the Liberated Areas
20-07-1950 General Rules for the Organization of the People's Courts
03-09-1951 Provisional Regulations Governing the Organization of people's court
03-09-1951 Provisional Regulations Governing the Organization of the Office of the People’s Procurator General' of the CPG
03-09-1951 General rules for the organization of local people’s procuratorates at all levels
28-08-1951 Statute on labor re-education.
10-08-1952 Provisional Regulations Governing the Organizational Security Committees
22-03-1954 Provisional general rules of the PRC for the organization of people’s mediation committees
31-12-1954 Act of the PRC for the organization of city residents committees
31-12-1954 Act of the PRC for the organization of public security stations
31-12-1954 Act of the PRC for the organization of city street offices