In a previous post we have demonstrated that the Constitution of the People’s Republic of China (PRC) contains fundamental elements which are consistent with, if not directly derived from, Legalist principles. In this chapter we shall analyse and compare the Legalist elements contained in the criminal codes of the Republic of China (ROC) and of the PRC.
Legalism and the Criminal Code of the Republic of China
In 1911 the Xinhai Revolution overthrew the Qing Dynasty which had ruled China for over 260 years. On January 1st, 1912, the leader of the insurgents, Sun Yat-sen, proclaimed the foundation of the Republic of China (ROC). On March 11 the government promulgated the Provisional Constitution of the Republic of China (中華民國臨時约法). The Constitution embodied Sun’s political ideals, which he later enshrined in the Three Principles of the People. Sun had been educated in the United States and his worldview had been shaped by the three major Western ideologies of the 18th, 19th and early 20th century, namely nationalism, democracy and socialism. In his Three Principles, Sun tried to synthesize these three political currents in order to revitalise and strengthen China.
The Provisional ROC Constitution was heavily influenced by Western liberal democratic ideals, most especially the principle of free popular elections, of protection of individual freedoms and rights, and of division of powers, including judicial independence (法官獨立). Article 51 stated: “Higher government authorities shall not interfere with the independent work of judges” (法官獨立審判不受上級官廳之干涉).
However, the legal system of the ROC from 1912 to 1927 presents a contradiction between progressive, liberal attempts at judicial reform and the bitter realities of the warlord era, in which brute force de facto counted more than the law. Moreover, lack of public funding made it hard to establish a comprehensive judicial system. Most remarkably, no criminal code was compiled during the warlord era and the ROC authorities had to rely on the draft criminal code issued during the last decade of the Qing Dynasty. A few words must now be said about the laws of the late empire, because they are of paramount importance for the work of jurists and intellectuals in the early Republican era.
The invasion of China by foreign armies during the Boxer Rebellion (1899-1901) deeply damaged the power and prestige of the Qing. Recognising the need for reform, the Qing government tried to reform and modernise the state apparatus, including the judicial system, by learning from the West. In 1901 the imperial government issued an edict which urged government officials to devote themselves
fully to China’s revitalization, to suppress vigorously the use of the terms ‘new’ and ‘old’, and to blend together the best of what is Chinese and what is foreign [and to] scrutinize Chinese and Western governmental systems with regard to all dynastic regulations, national administration, official affairs, matters related to people’s livelihood, modern schools, systems of examination, military organization, and financial administration.
Duly weigh what should be kept and what abolished, what new methods should be adopted and what old ones retained. By every available means of knowledge and observation, seek out how to renew our national strength, how to produce men of real talent, how to expand state revenues, and how to revitalize the military (quoted in: Xiaoqun Xu: Trial of Modernity: Judicial Reform in Early Twentieth-Century China 1901-1937, 2008, p. 25, my emphasis).
These attempts at modernising and strengthening China are known by the term New Policies. The New Policies reforms produced a legal system that incorporated elements of Western jurisprudence, most especially the protection of the individual rights of the citizens. The sudden collapse of the Qing Empire compelled the ROC to build upon Qing law. There was simply not enough time for the Republican government to create an entirely new law code from scratch. During the Xinhai Revolution, when Chinese provinces declared their independence from the central government in Beijing, local officials had to rely on the existing administrative system.
For instance, in late October 1911 the justice department of Jiangsu Province under governor Zheng Yan issued an edict to the effect that the draft criminal code of 1910 – a product of the New Policies years – should be applied in criminal cases. After assuming the office of President of the ROC in 1912, Yuan Shikai issued a similar order, instructing the courts that until new laws were promulgated the draft criminal code of the Qing should remain in use, with the exception of the laws which contradicted the Republican form of government (see Xu 2008, p. 55). But the chaos and political division of the warlord era made the drafting of new legal codes impossible. Consequently, China did not have a new criminal code until the late 1920s (see C. Stephen Hsu: Understanding China’s Legal System, 2003, p. 252).
In 1927 the Guomindang under the leadership of Chiang Kai-shek seized power. Soon afterwards the government set about the task of revising the Constitution and compiling a criminal code. The judicial reforms of the Guomindang show a political retrogression in terms of civil liberties and human rights. In fact, in the warlord era the Guomindang had undergone a process of militarisation and “Leninisation“. Because the warlords had de facto dismantled Republican institutions, Sun Yat-sen had come to believe that China was not yet ripe for democracy. He formulated the theory of the “three revolutionary” stages:
The fault [of our revolution] was the failure to enforce the revolutionary fundamentals. The revolutionary fundamentals … divide the course of revolution into three stages: first, military rule; second, political tutelage; third, constitutional government. These are the inevitable stages leading from malgovernment to good government, and none of them should be overlooked (quoted in: Leng Shao-Chuan and Norman D. Palmer: Sun Yat-Sen and Communism, 1960, p. 37, my emphasis).
While in 1912 Sun wanted to realise democracy at once, the failure of this experiment convinced him that an authoritarian stage (what he called “political tutelage”) was necessary. Following Leninist guidelines, he came to view the Guomindang as an enlightened vanguard that had to rule dictatorially and educate the people in matters of political ideology. Here it must be remarked, however, that although Sun adopted Leninist methods of party centralism and militarism, he rejected Communism. Sun continued to profess the long-term goal of democracy, which was one of his Three Principles; he simply postponed its realisation because he argued that democracy was not possible in China under the circumstances that arose after 1912.
The new political outlook of the Guomindang which emerged from the warlord era brought it closer to Legalist principles. It is not possible to demonstrate that Guomindang jurists and lawmakers consciously drew upon Legalist ideas. It can merely be demonstrated that some of the fundamental principles of the Constitution and of the criminal code of the Guomindang government are consistent with Legalist tenets as they were formulated in imperial China’s legal codes, and most specifically in the so-called “ten abominations“.
In 1935 the Guomindang regime promulgated a new criminal code. Articles 100-119 deal with crimes of rebellion and treason, crimes which in imperial China were included in list of the “ten abominations”. We shall now examine Articles 100-104:
Chapter I
Article 100: Whoever attempts to sabotage the state system, to undermine the country’s territorial sovereignty, or to unlawfully subvert the constitution or the government, shall be sentenced to not less than seven years imprisonment. The ringleader(s) shall be punished with life imprisonment. Whoever prepares or conspires to commit the aforementioned crimes shall be sentenced to a prison term of not less than six months and not more than five years.
Art. 101: Whoever commits a crime of rebellion (暴動) as specified in the previous Article shall be sentenced to life imprisonment or to a prison term of not less than seven years. The ringleader(s) shall be sentenced to death or to life imprisonment. Whoever prepares or conspires to commit the aforementioned crimes shall be sentenced to a prison term of not less than one year and not more than seven years.
Art. 102: Whoever has committed a crime as specified in Article 100 and 101 and voluntarily surrenders to the authorities shall have his or her sentence reduced or remitted.
Art. 103: Whoever conspires with a foreign country or its agents with the intent of aiding that country or another country to wage war against the Republic of China shall be sentenced to death or life imprisonment. Any attempt to commit the crime specified in the previous paragraph shall be punished. Whoever prepares or conspires to commit the crime specified in this Article shall be sentenced to not less than thee years and not more than ten years imprisonment.
Articles 104 and 105 prescribe the punishment for ROC citizens who serve in the armed forces of or aid foreign countries which wage war against the ROC. We can clearly observe that the criminal code of the ROC presents the same concern of the Qing criminal code with the danger of rebellion, treason and foreign aggression. Since 1935 the ROC Criminal Code has been subjected to various amendments. However, Articles 100-104 have remained basically unchanged.
Legalism and the Criminal Code of the People’s Republic of China
A brief comparison of the ROC and PRC law codes manifests some fundamental differences but also similarities as far as their Legalist principles are concerned. Both criminal codes prioritize national security and the prevention of treason and rebellion. However, the ROC criminal code, following the state’s democratisation in the late 1980s and the 1990s, has proved to be suitable in a democratic environment, although some of its elements may be considered disputable. In any case, the current ROC criminal code, with the amendments that have been enacted over the decades, is contrary to Legalist principles in that it does not prohibit change of government.
The PRC criminal code, by contrast, is thoroughly consistent with Legalist principles because it enshrines one-party rule and punishes any attempt to change the government, whether by peaceful or violent means. Legalism sought to defend the ruling dynasty from rebellion and treason; the PRC criminal code simply replaces dynastic rule with party rule. It is also important to note – as we will see in the next post- that one-party rule is enshrined in the PRC Constitution itself, so that the criminal code, being consistent with the Constitution, also serves the purpose of regime-preservation. Let us examine some articles of the PRC criminal code:
Chapter I Tasks, Basic Principles, and Scope of Application of the Criminal Law
Article 1. This law is formulated in accordance with the Constitution and in light of the concrete experience of China launching a struggle against crime and the realities in the country, with a view to punishing crime and protecting the people.
Article 2. The tasks of the PRC Criminal Law are to use punishment struggle against all criminal acts to defend national security, the political power of the people’s democratic dictatorship, and the socialist system; to protect state-owned property and property collectively owned by the laboring masses; to protect citizens’ privately owned property; to protect citizens’ right of the person, democratic rights, and other rights; to maintain social and economic order; and to safeguard the smooth progress of the cause of socialist construction.
Chapter II Crimes
Section 1. Crimes and Criminal Responsibility
Article 13. All acts that endanger the sovereignty, territorial integrity, and security of the state; split the state; subvert the political power of the people’s democratic dictatorship and overthrow the socialist system; undermine social and economic order; violate property owned by the state or property collectively owned by the laboring masses; violate citizens’ privately owned property; infringe upon citizens’ rights of the person, democratic rights. and other rights; and other acts that endanger society, are crimes if according to law they should be criminally punished. However, if the circumstances are clearly minor and the harm is not great, they are not to be deemed crimes.
Article 56. A criminal element endangering state security shall be sentenced to deprivation of political rights as a supplementary punishment; a criminal element guilty of murder, rape, arson, explosion, spreading poison, or robbery who seriously undermines social order may also be sentenced to deprivation of political rights as a supplementary punishment.
Where deprivation of political rights is applied independently, stipulations in the Special Provisions of this Law shall be followed.
Chapter I Crimes of Endangering National Security
Article 102. Whoever colludes with foreign states in plotting to harm the motherland’s sovereignty, territorial integrity and security is to be sentenced to life imprisonment or not less than ten years of fixed-term imprisonment.
Whoever commits the crimes in the preceding paragraph in collusion with institutions, organization, or individuals outside the country shall be punished according to the stipulations in the preceding paragraph.
Article 103. Whoever organizes, plots, or acts to split the country or undermine national unification, the ringleader, or the one whose crime is grave, is to be sentenced to life imprisonment or not less than ten years of fixed-term imprisonment; other active participants are to be sentenced to not less than three but not more than 10 years of fixed-term imprisonment; and other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.
Whoever instigates to split the country and undermine national unification is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; ringleaders or those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment.
Article 104. Whoever organizes, plots, or carries out armed rebellion, or armed riots, the ringleaders, or those who crimes are grave, are to be sentenced to life imprisonment, or not less than 10 years of fixed-term imprisonment; the active participants are to be sentenced from not less than three to not more than 10 years of fixed-term imprisonment; and other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.
Whoever instigates, coerces, lures, and bribes state personnel, members of the armed forces, people’s police or people’s militia to carry out armed rebellion or armed riot are to be heavily punished according to the stipulations in the preceding paragraph.
Article 105. Whoever organizes, plots, or acts to subvert the political power of the state and overthrow the socialist system, the ringleaders or those whose crimes are grave are to be sentenced to life imprisonment, or not less than 10 years of fixed-term imprisonment; active participants are to be sentenced from not less than three years to not more than 10 years of fixed-term imprisonment; other participants are to be sentenced to not more than three years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights.
Whoever instigates the subversion of the political power of the state and overthrow the socialist system through spreading rumors, slandering, or other ways are to be sentenced to not more than five years of fixed-term imprisonment, criminal detention, control, or deprivation of political rights; the ringleaders and those whose crimes are grave are to be sentenced to not less than five years of fixed-term imprisonment.
Article 106. Whoever colludes with institutions, organizations, or individuals outside the country and commits crimes stipulated in Articles 103, 104, and 105 of this chapter are to be heavily punished according to the stipulations in the articles.
We can see that the PRC criminal code is far more heavy-handed than the ROC’s in punishing crimes of state subversion, rebellion and treason. Not only does the PRC criminal code enshrine one-party rule (since the references to the socialist system and the Constitution clearly allude to this), but it also includes crimes such a “splitting” the country or endangering national unification (meaning the territories that the PRC claims, including Taiwan and the South China Sea), and extremely vague crimes such as “spreading rumors, slandering, or other ways”.
Summing up the results of this analysis, we may conclude that the ROC criminal code contains articles dealing with rebellion and treason which are consistent with Legalist principles; however, the ROC criminal code guarantees all fundamental democratic rights and liberties so that the code itself in combination with the democratic ROC Constitution clearly departs from the Legalist belief in autocratic centralised state power under the leadership of a monarch. The PRC criminal code, by contrast, is thoroughly consistent with the Legalist ideal of an autocratic centralised state in which the ruling dynasty shall use the law as an instrument to protect itself from attempts to change the government.
china-journal.org 
