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The Language of Communist China's Criminal Law

Published online by Cambridge University Press:  23 March 2011

David Finkelstein
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It is no wonder that the world is baffled by Communist China's “cultural Revolution.” Not only do the specialists who are skilled in reading between the lines of Chinese Communist utterances disagree about many aspects of the present upheaval, those whose task it is merely to read the. plain lines themselves also seem unable to agree even on the basic meaning of what they are reading. We are informed, for instance, that “eight Red Guards and a member of the Pioneers … had been killed by ‘class enemies,’ according to a Red Guard announcement.” Later we are told of “doubts about a report that nine youths were killed last week. Chinese-language experts said the characters on a poster reporting the incident could mean also that the nine young Chinese had been injured.” There were more doubts about whether Lo Jui-ch'ing was “taken away” or was “arrested” and still more about whether T'ao Chu was “led” or “dragged” through the streets.

Type
New Developments in Western Studies of Chinese Law: A Symposium
Information
The Journal of Asian Studies , Volume 27 , Issue 3 , May 1968 , pp. 503 - 521
Copyright
Copyright © Association for Asian Studies, Inc. 1968

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References

1 Dr. W. W. Yen, quoted in Ogden, C. K., Debabelization, London (1931), p. 132.Google Scholar

2 New York Times, August 28, 1966, p. 1.Google Scholar

3 New York Times, August 31, 1966, p. 8.Google Scholar

4 New York Times, December 24, 1966, p. 1.Google Scholar

5 New York Times, January 6, 1967, p. 2.Google Scholar

6 Karlgren, Bernhard, The Chinese Language (New York, 1949), p. 59.Google Scholar

7 Fuller, Lon, The Morality of Law (New Haven and New London, 1964), p. 39.Google Scholar

8 Berman, Harold, “Law and Language”Google Scholar (unpublished manuscript).

9 Attempts to define current Chinese legal terminology are further impeded by the fact that, to the best of this writer's knowledge, no legal dictionaries have been published by the Chinese Communists.

10 It is clear, for example, that Communist Chinese statutes, though themselves far from exemplifying perfect legal draftsmanship, are, generally speaking, written with somewhat more care than the average article in a Chinese legal journal

11 The legal language has, of course, not remained static during the years the Chinese Communists have been in power. It would be premature, however, to attempt a periodization study at this time.

12 Ogden, C. K. and Richards, I. A., The Meaning of Meaning (New York, 1956), p. 25.Google Scholar

13 Common Program of the Chinese People's Political Consultative Conference, art. 17, Sept. 29, 1949 [1949–50 (1)], chung-yang jen-min cheng-fu fa-ling hui-pien [hereinafter cited as FLHP], p. 19.

14 Schlauch, Margaret, “The Soviet Linguistic Controversy,” New World Review, August, 1951Google Scholar. Reprinted in Stalin, Joseph, Marxism and Linguistics (New York, 1951), p. 58.Google Scholar

15 The first letter, published on June 20, was followed by four more on June 29, July 11, July 22 and July 28, respectively. They have all been reprinted in Stalin, op. cit. supra note 14.

16 Stalin, ma-k'o-szu chu-i yü yü-yen hsüeh wen-t'i [Marxism and Problems of Linguistics] (Peking, 1950). The pamphlet actually contains only the first three of Stalin's five letters. A second edition was published in January, 1953. By March, 1957, there had been ten printings.

17 Stalin, , op. cit., supra note 14, p. 37.Google Scholar

18 Id. p. 10.

19 Hu Shih was later involved, though he did not instigate, the so-called “mass language” movement. Although the name might suggest a class view of language, the movement has been described as simply “an extension and refinement of the old … ‘vernacular language’ ” movement. DeFrancis, John, Nationalism and Language Reform in China (Princeton, 1950), p. 112.Google Scholar

20 Interestingly enough, the vernacular “national language” had come under attack in the early nineteen thirties for its “bureaucratic taint.” DeFrancis, op. cit., supra note 19, p. 231. The few principals involved, however, were not misguided Marxists; they were just opponents of those who advocated subordinating China's dialects to one standard language.

21 It might be argued that if the “Latinxua” movement eventually succeeds, the Chinese will have effectively discarded their present language, and not just changed its form. For by cutting off access to the literature of the past, they would be eliminating a major obstacle to arbitrary redefinition of terminology.

22 See Shih Liang (Minister of Justice), “Thoroughly Break Up the Attack of the Rightists on the Administration of Justice,” kuang-ming jih-pao (hereinafter cited as Enlightenment Daily), Aug. 31, 1957, p. 1.

23 Jen-hai, Ni, “A Few Views on the Inheritability of Law,” Enlightenment Daily, April 1, 1957, p. 3.Google Scholar

24 “Northwest Carries Out Judicial Reform,” Enlightenment Daily, August 24, 1952.Google Scholar

25 Hung, Hsiao, “Can We Let the Old Law Revive?”, Enlightenment Daily, October 6, 1957, p. 2.Google Scholar

26 T'ao Hsi-chin, “A Discussion of Judicial Reform”, cheng-fa yen-chiu (Political-Legal Research [hereinafter cited as CFYC]), 1957 (5), p. 13.

27 See, for example, Lin Han-ta, “Looking at Language Reform from the Point of View of the Draft Constitution,” chung-kuo yü-wen (China's Language), No. 25 (July, 1954), p. 3.

28 Sec, for example, “Diligently Develop the Judicial Reform Movement,” nan-fang jih-pao (Southern Daily), Sept. 12, 1952; Hsiao Hung, supra note 25; and T'ao Hsi-chin, supra note 26. In the T'ao article phrases such as “contractual relationship,” “free will” and “private conduct” were also criticized for expressing “concepts of the old civil law which protected the rights and interests of the bourgeoisie.”

29 See, for example, Hsiao Hung, supra note 25 and “The Attitude of Pushing Away One's Work” (letter to the editor and reply), ch'ang-sha jih-pao (Changsha Daily), Sept. 11, 1956, p. 3.

30 See, for example, the Prison Act, art. 2 (1), tsui-hsin liu-fa ch'uan-shu (Newest Book of the Complete Six Laws [hereinafter cited as Six Laws], Taipei (1959), p. 220.

31 See, for example, the Code of Criminal Procedure, art. 100, Six Laws, op. cit., supra note 30, p. 279.

32 At least one mainland writer was still using the term “tzu-pai” in October, 1957. See Liu Ching-lin, “A Discussion of the Evidentiary Value of a Defendant's Confession,” Fa-hsüeh (Legal Study), 1957 (5), p. 41. More precisely, the term “t'an-pai” means “confession after discovery” as distinguished from “tzu-shou,” which means “confession before discovery” or “voluntary surrender.” Sec Ning Han-lin, “Voluntary Surrender in the Criminal Law of the People's Republic of China,” CFYC, 1957 (4), p. 12.

33 See, for example, the Criminal Code, art. 34 (1) Six Laws, op. cit., supra note 30, p. 234.

34 See, for example, the Criminal Code, art. 92, Id. p. 245.

35 See, for example, the Code of Criminal Procedure, Ch. 8, Six Laws, op. cit., supra note 30, pp. 278–79. “Chü-t'i” has often been mistranslated as “arrest without a warrant.” See, for example, the Code of Criminal Procedure, art. 75, The Laws of the Republic of China (Taipei, 1961), p. 1104.Google Scholar

36 See, for example, the Act of the People's Republic of China for Reform Through Labor [hereinafter cited as Labor Act], art. 9, Sept. 7, 1954 [1954], FLHP, p. 34.

37 See, for example, Labor Act, art. 8, supra note 36, p. 34. It should be recognized that this term prejudges the guilt of a suspect. According to one informant, the logic (or fairness) of this term was the subject of internal debate by legal cadres from 1953 to 1960, at which time a decision was made to discontinue its use. However, the term “fan-ken” (offender) was still being used synonymously with “pei-kao” (the accused) as late as 1962. See, for example, Chang Tzu-p'ei, “Several Problems in the Use of Evidence to Determine the Facts of a Case in Criminal Litigation,” CFYC, 1962 (4), p. 13.

It should be noted that the terms “i-chüeh” and “wei-chiieh” were used in the Ch'ing Code (ta-ch'ing lü-li) to mean, respectively, “already punished” and “not yet punished.” See, for example, the 1873 edition of the Code, ta-ch'ing lü-li hui-t'ung hsin-tsuan, reprinted in 1964, Taipei, vol. 4, 2951 (hsing-lü tu-sung: wu kao).

38 See, for example, T'an Cheng-wen, “Absorb Experience and Teaching, Impel A Great Leap For ward in Procuratorial Work,” CFYC, 1958 (3), p. 35.

39 See, for example, Liu Ching-lin, sufra note 32, p. 42.

40 All the terms cited in this paragraph can be found in Sun, E-tu Zen, ed., Ch'ing Administrative Terms, Cambridge (1961).CrossRefGoogle Scholar

41 In the RSFSR Criminal Code of 1926, “socially dangerous act” was made the equivalent of “crime” and “measures of social defense” replaced the word “punishment,” which was done away with alto gether. See Berman, Harold, Justice in the U. S. S. R. (New York, 1963), pp. 34, 56CrossRefGoogle Scholar and Herman, and Spindler, , Soviet Criminal Law and Procedure (Cambridge, 1966), pp. 24–26, 40–41.Google Scholar

42 See, for example, Ni Jen-hai, supra note 23 and Hsia-ho, Ch'eng, “Two Problems Concerning the Inheritability of Law,” Enlightenment Daily, May 13, 1957, p. 3.Google Scholar

43 See, for example, the Instructions of the Ministry of Interior Concerning the Work of Placing and Reforming City Vagrants [hereinafter cited as Instructions], July 11, 1956, 4 chung-hua jen-min kung-ho-kuo fa-kuei hui-pien [hereinafter cited as FKHP], p. 212. According to one informant, the meaning of the term shou-jung had begun to deteriorate even in pre-Communist China, inasmuch as the places which the Nationalists established for homeless people were not much better than prisons.

44 See, for example, Cheng Ching-i, ed., fa-lü ta-tz'u-shu (Dictionary of Legal Terms [hereinafter cited as Dictionary]), Shanghai (1936), vol. I, 1379–80.

45 See the Law of the People's Republic of China for the Organization of People's Courts [hereinafter cited as Court Law], Ch. 3, Sec. 2, Sept. 28, 1954, 1 FKHP, p. 132.

46 Sun, E-tu Zen, op. cit., supra note 40, p. 274.Google Scholar

47 See, for example, Instructions, supra note 43, p. 212, and Provisional Measures for Dealing with the Release of Reform Through Labor Criminals at the Expiration of Their Term of Imprisonment and for Placing Them and Getting Them Employment, Sept. 7, 1954, [1954] FLHP, p. 44.

48 Sun, E-tu Zen, op. cit., supra note 40, p. 16Google Scholar and Dictionary, supra note 44, vol. 2, 2100. Sun's translation of this term does not appear to be entirely accurate.

49 Schurmann, Franz, Ideology and Organization in Communist China (Berkeley, 1966), p. 58.Google Scholar

50 Id. pp. 59–60.

51 Fang, Achilles, “The Difficulty of Translation,” in Brower, R. A., ed., On Translation (Cambridge, 1959). p. 114.Google Scholar

52 See Court Law, art. 17, supra note 45, p. 127.

53 See, for example, Chang Hui, Li Ch'ang-ch'un and Tzu-p'ei, Chang, “These Arc Not the Basic Principles of Our Country's Criminal Litigation,” CFYC 1958 (4), p. 79.Google Scholar

54 See, for example, Tsc-chün, Liu, “Realizations From My Adjudication Work,” CFYC, 1959 (1), p. 50.Google Scholar

55 See Court Law, arts. 16, 21, 24 and 29, supra note 45, pp. 127, 128, 129 and 130, respectively.

56 1 FKHP, p. 240. This Act was promulgated on Dec. 20, 1954.

57 Cheng-wen, T'an, supra note 38, p. 36.Google Scholar

58 Id. p. 38.

59 Chung-hua jen-min kung-ho-kuo hsing-fa tsung-tse chiang-i [hereinafter cited as Lectures], edited by the Teaching and Research Office for Criminal Law of the Central Political-Legal Cadres' School (Peking, 1957), p. 114.

60 Id. p. 130.

61 Id. pp. 63–64.

62 The problem is not imaginary. See, for example, Liu Tse-chün, supra note 55, p. 51. For an interesting discussion of the “kill”-“murder” distinction see Sapir, Edward, “Language,” in Mandelbaum, David G., ed., Culture, Language and Personality (Berkeley, 1958), p. 36.Google Scholar

63 6 FKHP, p. 244. This Decision was promulgated on Aug. 3, 1957.

64 See art. 6 (2) of the Provisional Measures, July 20, 1956, 4 FKHP, p. 236. Although the term “shan-yang” alone means “care for” or “support” and is quite unrelated to divorce, an ex-Communist Chinese cadre confirms that, as in Nationalist China, the term “shan-yang-fei” is commonly used only with reference to the support given to a divorced woman by her ex-husband.

65 Mellinkoff, David, in The Language of the Law (Boston, 1963), p. 150Google Scholar, sums up “and-or” usage in Anglo-American law as follows: “And could mean or when or better served the person who had an and dropped into his lap.”

66 Lectures, supra note 60, p. no.

67 Ibid.

68 This interpretation is consistent with art. 27 of the Security Administration Punishment Act of the People's Republic of China, Oct. 22, 1957, 6 FKHP, p. 253: “No punishment shall be given to a mentally ill person who violates security administration at a time when he is unable to understand the nature of or control his own acts [emphasis added].”

69 Dictionary, supra note 44, Vol. 1, 539.

70 P'ing, Teng, “Law-Breaking Elements Among the People Definitely May Not All Be Treated as Objects of Dictatorship,” CFYC, 1958 (3), p. 75.Google Scholar

71 Lectures, supra note 60, p. 191.

72 Id., p. 192. See also Cohen, Jerome A., “The Criminal Process in the People's Republic of China: An Introduction,” Harvard Law Review, vol. 79, no. 3 (January, 1966), 492.CrossRefGoogle Scholar

73 Chia-chü, Wei, “Several Terms Related to Procuratorial Work,” CFYC, 1955 (2), p. 60.Google Scholar

74 See, for example, Cohen, supra note 72, pp. 471–72, 491 (footnote 45) and Bilancia, Philip, “Dictionary of Communist Chinese Legal Terms” (unpublished), p. 162Google Scholar (discussion of “ch'eng” [punishment] and related compounds states that distinctions are “not always meaningful” and “are sometimes disregarded in usage”). A Nationalist Chinese scholar has written that the definition of crimes in the PRC “is either very broad and imprecise or is not made at all.” T'ao, Lung-sheng, “The Criminal Law of Communist China,” Cornell Law Quarterly, vol. 52, no. 1 (Fall, 1966), 48.Google Scholar

75 Berman, and Spindler, , op. cit., supra note 41, p. 129.Google Scholar

76 Schurmann, , op. cit., supra note 50, p. 60.Google Scholar

77 See Shih Liang, supra note 22.

78 jih-pao, Yün-nan (Yunnan Daily), January 10, 1953.Google Scholar

79 jih-pao, Hsin-wen (News Daily, Shanghai), October 15, 1952.Google Scholar

80 Kuang, Cheng, “A Preliminary Scrutiny of My Old Law Viewpoint,” Enlightenment Daily, September ?, 1952.Google Scholar

81 See, for example, Shih Liang, supra note 22.

82 Both characters are pronounced “yü,” but the former is third tone and the latter is second tone.

83 Both characters are pronounced “mai,” but the former is third tone and the latter is fourth tone.

84 Both characters are third tone.

85 Ts'ao, Chin, “Judgments Should Be Written in a Serious Manner,” Enlightenment Daily, January 20, 1957.Google Scholar

86 The character “yin” connotes clandestine, not necessarily group, activity. Strictly speaking, the term “kung-mou” (literally, “plan together”) should be regarded as the only suitable equivalent for “conspiracy.” In fact, however, “yin mou” is often used to mean “kung-mou.” See, for example, Dictionary, supra note 44, vol. 1, p. 1380 and Lectures, supra note 60, p. 21.

87 It seems to mean simply “premeditated murder” in Tse-chün, Liu, supra note 55, p. 51.Google Scholar

88 But cf. Sun, E-tu Zen, op. cit. supra note 40, p. 287.Google Scholar

89 O'Brien, Justine, “From French to English,” in R. A. Brower, op. cit., supra note 52, p. 89.Google Scholar

90 The term “fa-ling” presents similar, though even more confusing, problems. It is perhaps a contraction of “fa lü yü ming ling” (laws and orders) but it is often used in series with “fa-la and translated as “decree.”

91 1 FKHP.

92 Likewise, there is no such thing as a “fa-ling” to be found in the “fa-ling hui-pien” [FLHP].

93 See, for example, The Arrest and Detention Act of the People's Republic of China, art. 5, supra note 57, p. 240. The definition of this term apparently does not embrace the act of “making false statements” (perjury) or that of “using false evidence.” See, for example, Six Laws, arts. 168, 169, supra note 30, p. 241 and Tzu-p'ei, Chang, supra note 37, p. 13.Google Scholar

94 See, for example, Six Laws, Ch. 10 (Title) supra note 30, p. 241.

95 See, for example, Dictionary, supra note 44, vol. 2, 1759 and Tzu-p'ei, Chang, supra note 37, p. 14.Google Scholar

96 See, for example, Dictionary, supra note 44, vol. 1, 22.

97 See, for example, Id. p. 27, and Ch'ien Szu, “A Criticism of the Views of Bourgeois International Law on the Question of the Population,” kuo-chi wen-t'i yen-chiu (Studies in International Problems), 1960 (5), p. 40.

98 See, for example, “Is It Right for the Public Security Organ to Do This?” Hsin-hua jih-pao (New China Daily, Nanking), Oct. 28, 1956.

99 1 FKHP, p. 126.

100 Yang P'eng and Lin Ch'ih-chung, “Investigate Deeply, Handle Cases Conscientiously,” Fu-chien jih-pao (Fukien Daily), August 14, 1956.Google Scholar

101 In Nationalist China the term “t'i-shen” seems to be the equivalent for “habeas corpus.” See Six Laws, supra note 30, pp. 310–11Google Scholar. See also Dictionary, supra note 44, vol. 2, 1425.Google Scholar

102 “Answering Questions from Readers: On Trial Procedure in Criminal Cases,” Enlightenment Daily, March 11, 1955, p. 3.Google Scholar

103 See Cohen, , supra note 72, pp. 511–514.Google Scholar

104 Depending on the context, the term “shen-ch'a” can be translated cither as “examine” or “investigate.” In this instance, where it denotes the scrutinizing of evidence that has already been gathered, “examine” seems to be the more appropriate translation. But where it indicates the actual collection of evidence, “investigate” seems more appropriate. See p. 516, infra.

105 The article does not explicitly state that “yü-shen” is a contraction of “yu pei shen ch'a” (preparatory examination). Interpreted as “preparatory hearing” or “trial preparation,” the term could be an abbreviation for “yü-pei shen-li” or “yu-pei shen-p'an,” respectively. “Yü-shen” has been translated as “preliminary trial” in the China Law Review, vol. 3, no. 3 (January, 1927)Google Scholar, Table of Contents.

108 Dictionary, supra note 44, vol. 2, 1748.Google Scholar

107 See Cohen, , supra note 72, p. 500.Google Scholar

108 For a description of the procuracy's “investigation,” see Id. pp. 509–11.

109 Yang P'eng, supra note 100.

110 See Chia-chū, Wei, supra note 73, p. 60Google Scholar and “A Preliminary Understanding of Some Terms in Our Country's Law for the Organization of People's Courts and Law for the Organization of People's Procuracies,” CFYC, 1954, (4), p. 48.Google Scholar

111 See Herman, , op. cit., supra note 41, p. 302Google Scholar. Despite the fact that the Russian term (predvaritel'noe) has perhaps inaccurately been translated into English as “preliminary,” the Chinese “yü-pei” is best translated as “preparatory.” “Preliminary” would be an accurate translation if the term “yü-hsien” were used.

112 Wu-yün, Chang, “Smash Permanent Rules, Go 1000 Li in One Day,” CFYC, 1958 (5), p. 58.Google Scholar

113 Id. p. 59.

114 “Canton's Political-Legal Departments Experiment with Cooperation in Case Handling,” nan-fang jih-pao (Southern Daily), March 30, 1958.Google Scholar

115 Dictionary, supra note 44, vol. 2, 1883.Google Scholar

116 See Van Der Sprenkel, Sybille, Legal Institutions in Manchu China (London, 1962), pp. 66–67Google Scholar and Ch'ü, T'ung-tsu, Local Government in China under the Ch'ing (Cambridge, 1962) p. 116.CrossRefGoogle Scholar

117 See Ju-ch'i, Wang, “How the Enterprise Comrades' Courts Were Established in K'ai-luan Coal Mine,” jen-min jih-pao (People's Daily), April 19, 1954, p. 3.Google Scholar

118 See Yu-lan, Fung, A History of Chinese Philosophy (Derk Bodde, trans.) (Princeton, 1952), vol. 1, 59.Google Scholar

119 Yü, Lun (Confucian Analects), VI, 23Google Scholar. Cf. Waley's translation. Waley, Arthur, The Analects of Confucius (London, 1949), p. 120.Google Scholar

120 For an interesting discussion of the problems involved in fitting the Chinese language to Western political and legal concepts, see Purcell, Victor, Problems of Chinese Education, (London, 1936), pp. 129–60Google Scholar. See also, Wright, A. F., “The Chinese Language and Foreign Ideas,” in Studies in Chinese Thought, Wright, A. F., ed. (Chicago, 1953), pp. 286–303.Google Scholar

121 Two such compounds are discussed in Fairbank, John K., “How To Deal With the Chinese Revolution,” The New York Review of Books, February 17, 1966, p. 14.Google Scholar