What has always made the state a hell on earth has been precisely that man has tried to make it his heaven.

   —F. Hoelderlin

Thus we have abandoned whatever good things the old order of society could provide but have not profited from what our present state can offer; we have destroyed an aristocratic society, and settling down complacently among the ruins of the old building, we seem to want to stay there like that forever.

   —Tocqueville

In place of the old bourgeois society, with its classes and class antagonisms, we shall have an association in which the free development of each is the condition for the free development of all.

   —Marx and Engels

I. Introduction

The revolutionary triumph of communism in China in 1949 made the world’s most populous country the subject of a gigantic political, legal, social, and economic experiment. Unavoidably, the criminal procedure is one of the main battlefields of such an experiment.

This experiment began as early as 1926, when “people’s justice” appeared in Hunan province where a revolutionary peasant’s movement was developed by the Chinese Communists. Special tribunals were set up to try local bullies, bad gentry, and unlawful landlords. Methods used against the counterrevolutionary elements (反革命分子) included humiliating parades, struggle meetings, imprisonment and executions. Mao Tse-tung (毛泽东), the first Chairman of the People’s Republic of China, justified such ruthless punishments in the following terms:

Proper limits have to be exceeded in order to right a wrong, or else the wrong cannot be righted.

The first judiciary of the Chinese Communist Party was established in 1931 with the establishment of the Provisional Soviet Republic (临时苏维埃) based on Jiangxi Province. From the very beginning, the primary task of the “People’s Courts” was not to resolve conflicts arising from people living in the Soviet Republic region, but to “protect the socialist order against class enemies and counterrevolutionaries” .

From 1935, after the Red Army’s Long March, the establishment of the Chinese Communist Party transferred from Jiangxi Province to Shanxi Province, and the Border Region Government (边区政府) replaced the Soviet Republic Government (苏维埃政府). Here, the three-echelon hierarchy of the judicial system, including a high court, its branch courts, and local courts or county justice bureaus, was established. As integral parts of the governments of corresponding levels, each of the “People’s Courts” accepted the leadership of political authorities, and the tendency towards “judicial independence” was corrected by appointing the prefecture to act concurrently as the head of a branch high court, and appointing the county magistrate to act concurrently as the head of the local court. At the same time, the adjudication committee, which from the very beginning had the final say in cases of high importance and was composed of party cadres, government and court officials, was established within the court in 1943. This committee powerfully guaranteed the enforcement of the party’s policies in the People’s Courts.

During the Civil-War period, the major tasks for the People’s Court were to support the revolutionary struggle and punish “war criminals”, counterrevolutionaries and enemy agents. On October 10th, 1947, General Chu Te (朱德) issued an order for the arrest, trial and punishment of the “war criminals” headed by Chiang Kai-shek (蒋介石), and the confiscation of all their properties and bureaucratic capital. At the same time, the renewed Outline of Land Law provided for the confiscation of landlords’ as well as rich peasants’ properties without compensation. When speaking before a conference on April 1st, 1948, Mao Tse-tung admitted that,

In the fierce struggles in the land reform of the past year, . . . in certain places some landlords and rich peasants were needlessly put to death, and the bad elements in the rural areas were able to exploit the situation to take revenge and foully murdered a number of working people.

Thus before the CCP seized the state power, the criminal procedure was somewhat moderated.

All of these experiences formed the foundation for the fundamental features of the judicial system that had taken shape by 1949. Despite the fact that the newly established Government had abolished all laws created by its Nationalist predecessor, a new legal system was not immediately established. Instead, the provisional constitution, the Common Program, the Organic Law of the Central People’s Government, and the Organic Law of the Chinese People’s Political Consultative Conference presented detailed blueprints of the formal structure of the new government. During this period a uniform, nation-wide system of People’s Courts was developed in China; but in consolidating its rules and carrying out land reform and other policies the Chinese Communist Party relied mainly on political campaigns, mass mobilization and red terror, and not on the law.

From August 1952 until Spring 1953, the Chinese Communist Party commenced a judicial reform movement aiming to ensure the political reliability of court personnel and to solidify the foundation of socialist legality. However, this undertaking was less concerned with the matters of reform, and the movement was also described as “a fierce political and ideological struggle” conducted on the political-legal front. After the reform movement, only twenty percent of those who had worked under the Kuomin Tang (国民党) regime were retained in their posts.

In 1954, the first Constitution of the People’s Republic of China was enacted. The Constitution provided that “in administering justice the people’s courts are independent, subject only to the law”. However, the People’s Courts in Communist China have never been independent from the state and its government or the Communist party. After the Anti-Rightists Campaign (反右运动) in 1957, all of the judges and scholars who had argued for judicial independence were criticized and oppressed. The work of drawing up a comprehensive code of criminal procedure was also interrupted by this Campaign. Such efforts resumed in 1962 and by 1963 had resulted in a draft code of some 200 articles. When the political winds shifted once again in the mid-1960s, the draft was shelved.

During the Cultural Revolution (文化大革命) (1966-1976), all the major legal institutions were paralyzed and some, such as the Procuratorate and the Ministry of Justice, were formally abolished. Countless numbers of people, including many leading Party and state figures, were subjected to arbitrary imprisonment, torture and death.

After the third plenum of the eleventh committee (十一届三中全会), the Chinese Communist Party officially rejected the Maoist policy of “taking class struggle as the key link” (以阶级斗争为纲) and called for the rapid development of the legal system. The National People’s Congress responded the following July by passing seven major statutes, including the People’s Republic of China’s first Criminal Procedure Law. Seventeen years later, following the appeals of many legal scholars’, the 1979 Criminal Procedure Law was revised in 1996. On March 14, 2012, the Criminal Procedure Law was revised again.

For both Western scholars and Chinese scholars seeking to criticize or to praise the Law, it is vital to first understand China’s Criminal Procedure Law. In this sense, understanding is paramount. But the challenging question is this: how should the law be understood?

Traditional methods divided criminal procedure into three types: the accusatory system, the inquisitorial system, and the mixed system. Originally, this method was established to generalize characteristics of criminal procedures in the history of Continental Europe. However, common law legal scholars have used the dichotomy between adversary and inquisition to describe differences between legal procedures in civil law countries and common-law countries. Thus it makes these two terms confusing. Packer’s Two Models theory also provides a convenient method for modeling criminal procedures. Using the terms of “due process model” and “crime control model”, Packer captured the tension between substance and procedure in enforcing criminal law and described the implications of those models for the several stages from investigation to conviction. Both the traditional dichotomy and Packer’s Two Models theory made a significant contribution to describing as well as analyzing criminal procedures, but they did not fully elaborate the field of potential procedures. Instead, they suffered from many critiques. In fact, their methods are helpful in understanding the main characteristics of legal procedures, but they did not provide full explanations for these characteristics. To understand a legal procedure, scholars should deepen their research into ideological elements of the state and structural elements of the judicial system.

This essay thus tries to understand China’s criminal procedure and its reformation in a broader context, including the ideology of the state and the structure of the judicial officialdom. Unlike other scholars’ analysis, this article uses the terms “policy-implementing” procedure and “conflict-solving” procedure to describe the end of the legal process, and “hierarchical officialdom” and “coordinate officialdom”, to describe the official structure of the judiciary. All of these terms are developed in Damaska’s theory on modeling legal proceedings. Occasionally I will use the terms “adversarial procedure”, “inquisitorial procedure”, or, “crime control procedure” and “due process procedure”. As a vital part of this essay, I argue that the act of revising the Criminal Procedure Law embodies an effort from a policy-implementing procedure under hierarchical officialdom to a conflict-solving procedure under coordinate officialdom; and its further developments await further political system reformation.

Part II gives an introduction of Damaska’s theory, elaborating only on the necessary details. Part III gives a brief introduction of Marxism-Leninism and its enforcement in China as well as its influences in China’s criminal procedure. Part III also describes the hierarchical judicial officialdom established in the 1950s but inherited by the 1979 Criminal Procedure Law and the 1982 Constitution, and demonstrates some characteristics of the criminal procedure impacted by the structure of the judicial officialdom. Part IV provides context for the socio-political impact of the economic reformation commenced in 1979, gives an introduction of revisions of the Criminal Procedure Law in 1996, and argues that the 1996 revised Criminal Procedure Law and its further developments embody an effort from a policy-implementing procedure under hierarchical officialdom to a conflict-solving procedure under coordinate officialdom. Part V gives a detailed introduction on the background, experience, controversies and contents of revisions made on China’s Criminal Procedure Law in 2012, and gives a preliminary comment on these revisions. Part VI looks forward to the future of Chinese society, predicts possible practices and problems of China’s criminal procedure after the 2012 revision come into force in 2013, and provides suggestions for further development of China’s Criminal Procedure Law. Part VII presents concluding thoughts and concludes the paper.