Voluntary Surrender and Confession in China’s Legal System – From the Empire to the People’s Republic

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A magistrate holds court (late 19th century. Author unknown. Public domain, via Wikimedia Commons)

China’s Televised Confessions

On January 17 Gui Minhai, a Chinese-born Swedish citizen, made a high-profile confession on China Central Television (CCTV), saying that he had turned himself to the authorities voluntarily. He confessed to having caused the death of a 20-year-old woman while drunk-driving back in 2003. According to China’s state media, Gui had subsequently fled mainland China with fake documents. “Returning to the Chinese mainland and surrendering was my personal choice and had nothing to do with anyone else”, the 52-year-old said. “I don’t want any individual or institutions, including Sweden, to interfere in anything to do with my return”.

Gui Minhai had mysteriously disappeared from his home in Pattaya, Thailand, on 17 October 2015. A camera in his Thai condo showed him that day as he came back home carrying groceries. Shortly afterwards, he drove away together with a man who had been waiting for him in the garage. According to Gui’s daughter, he suddenly stopped communicating with her. She did not know what had happened until she received an e-mail from Lee Bo, one of her father’s business associates: “Your dad has gone missing”, Lee wrote. “We’re afraid he was taken by Chinese agents for political reasons”. It has been suggested that Gui’s alleged abduction may be part of “Operation Fox Hunt“, launched by Xi Jinping in 2014 with the aim of forcibly repatriating Chinese citizens wanted by the government, including political dissidents. Thailand’s immigration authorities had no record of Gui leaving the country, a circumstance that contradicts Gui’s claim of having returned to China voluntarily. Continue reading

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Legalism And Leninism In China’s Constitutional History

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The National People’s Convention met in the Great Hall of National Central University in Nanjing on May 5, 1931. Seven days later the Convention adopted the Provisional Constitution (photo by unknown author, via Wikimedia Commons)

When the Qing Dynasty was overthrown in 1911 and the Republic of China (ROC) was proclaimed, the revolutionaries led by Sun Yat-sen embarked on an ambitious experiment to modernise the country according to liberal Western ideals of democracy, human rights and division of powers. The new Republican government issued a Provisional Constitution which guaranteed progressive democratic rights, including judicial independence. However, after the first elections held in 1913, general Yuan Shikai unlawfully seized power and suppressed the elected parliamentary majority. Sun Yat-sen and his party, the Guomindang, were forced into underground opposition. When Yuan died in 1916, the central government fell apart, and regional warlords created personal fiefdoms in which they ruled like monarchs.

The 1912 Constitution was inspired by the ideals of the American and French revolutions. But the failure of democracy, the repression suffered at the hands of Yuan Shikai and the warlords, and the threat of foreign imperialism convinced Sun Yat-sen that democracy in China was unattainable as a short-term goal. He observed with keen interest the events of the Russian revolution, and the triumph of the Communists led by Lenin seemed to him an example of a revolutionary party that had succeeded where the Guomindang had failed. Sun asked for Soviet help, and Russian advisers were sent to China to reorganise the Guomindang on the basis of Leninist principles. Continue reading

Legalist Tradition And Criminal Law – Republic Of China vs People’s Republic Of China

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The original Constitutional Drafting Committee of the newly founded Republic of China, photographed on the steps of the Temple of Heaven in Beijing, where the Draft was completed in 1913 (photo by Rowanwindwhistlerhttp://www.archive.org/details/thefightforthere14345gut, CC BY-SA 3.0 via Wikimedia Commons)

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). Continue reading

Law In Post-Mao China: Confucianism, Legalism, Imperial Traditions

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The Great Hall of the People, Beijing (photo by Thomas.fanghaenel, licenced under CC BY-SA 3.0 via Wikipedia Commons)

In the previous post we have described the similarities and differences between Maoism and Legalism, and in particular we have shown the parallels between Maoist and Legalist doctrines regarding the establishment of an autocratic, centralised state. Moreover, we have demonstrated that Mao Zedong rejected Confucian values, which he viewed as “reactionary”. In this post we will show how the People’s Republic of China (PRC) in the post-Maoist era has preserved elements of Legalism, Leninism and of the imperial legal system; at the same time, however, it has also rediscovered Confucianism as a more humane and family-oriented ideology which helped the Communist state overcome the brutality and the excesses of Maoist class struggle. Beijing’s attempt at combining Legalism, Leninism, Maoism and ancient imperial traditions has created a state with ideologically inconsistent and weak foundations. Yet at the same time the Chinese Communist Party (CCP) has succeeded in preserving power and consensus exactly because it draws upon such broad and various traditions.

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Mao Zedong, Legalism and Confucianism – Similarities And Differences

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Red guards during the Cultural Revolution – Image by Belinsky (Public domain) via Wikimedia Commons

When Mao Zedong proclaimed the founding of the People’s Republic of China (PRC) on October 1, 1949, the Chinese Communist Party (CCP) stood before the tremendous task of rebuilding the state on the basis of Soviet-style Communist principles. Yet despite their desire to create a new China, Communist leaders drew on old political and social traditions which brought about a hybrid of ancient imperial policies and Communist doctrines. Other Chinese states, such as the Republic of China (ROC) on Taiwan as well as Singapore, have also incorporated traditional values and ideas into their state-building process. It is the purpose of the present and the following articles to show how the two most important ancient schools of thought – Legalism and Confucianism– have influenced the legal systems of contemporary states in the Chinese cultural sphere. First, we shall analyze the relationship between Maoism and Legalism; in the subsequent posts, we shall examine the rediscovery of Confucianism and the blending of Confucianism and Legalism in post-Mao China; and in the last post, we will see how the ROC and Singapore have assimilated and adapted Confucian tenets.

Mao Zedong And Legalism

According to Fu Zhengyuan, the” transplantation of Marxism-Leninism into the Chinese political tradition was a smooth and seamless process”. Numerous Western scholars, too, have noted how the political traditions of imperial China created a fertile ground for Communist ideology. In particular, the ancient philosophy of Legalism, with its emphasis on state power, wealth and strength, appears to have facilitated the creation of a totalitarian, centralised and oppressive government. Fu goes as far as to argue that the PRC is the realisation of a Legalist “utopia” (Zhengyuan Fu: China’s Legalists: The Earliest Totalitarians and Their Art of Ruling, 1996, p. 128).

As we have explained in a previous post, the Legalist school was a philosophy that aimed at creating a strong, rich and powerful state under the leadership of an absolute monarch. Legalism emphasized the establishment of a comprehensive legal system in order to rule the state effectively and to prevent uprisings. The laws should be harsh so as to instill fear in the people and make them ready to fight and die for their king, as only by such means would the state maintain an army capable of crushing its rivals. Internally, the Legalists were concerned with the threat of rebellion and treason. They believed that the legal system should reward the capable and punish the guilty so as to stamp out every attempt to subvert the state.

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China’s Legal System And The “Ten Abominations”

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Escape of Emperor Xuanzong of the Tang Dynasty during the An Lushan rebellion. In the Chinese legal system rebellion and treason were considered two of the “ten abominations” (by Li Zhaodao, Public Domain, wikimedia commons)

Before the overthrow of the Qing Dynasty in 1911, China’s legal system differed from that of liberal Western states in three major aspects: First, the apex of the entire legal system was the absolute monarch; it was the emperor who issued and abolished laws, and the most serious crimes of the legal code were those which endangered imperial dynastic rule and desecrated the emperor and his property. Second, Chinese law incorporated major principles of Confucian ideology, most notably its emphasis on the family, on filial piety and on strict social roles and hierarchies. Third, the imperial legal system was designed to impose social norms – mostly of Confucian origin – with the aim of creating a self-regulating society. These three aspects of imperial China’s legal system are reflected in what imperial legal codes called “the ten abominations” or “the ten evils” (十惡), which were classified as the most heinous of all crimes. Even the emperor himself could not pardon subjects who had been found guilty of committing them.

The term “ten abominations” was invented by the Legalist school in order to identify those crimes which the state considered most threatening to political and social order (see: Charles Benn: Daily Life in Traditional China: The Tang Dynasty, 2002, p. 197). The first nucleus of the “ten abominations” can be found in the law codes of the Northern Qi kingdom (550-577 AD), which divided crimes into ten categories (see Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 37). Confucian scholars initially rejected written laws as a means of governance. However, the idealism of early Confucian thought did not suit the emperors’ need for a stable and strong state. Beginning with the Han Dynasty, Confucian scholars incorporated Legalist doctrines into their philosophy of state-building. Confucians thus compiled law codes, but they infused them with their own moral and social philosophy. The first comprehensive legal code that has survived to this day is the Great Tang Code issued in 653 AD (see Patricia Buckley Ebrey: Chinese Civilization: A Sourcebook, 2009, p. 116). The following dynasties up until the Qing Dynasty built their legal system upon Tang law. In particular, the “ten abominations” remained almost unchanged throughout the centuries. We shall now examine the “ten abominations” as they were formulated in the last legal code of imperial China, i.e. that of the Qing Dynasty. Continue reading

Law In Imperial China – Confucianism And Legalism

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Killing the scholars and burning the books (anonymous 18th century Chinese painting depicting the alleged burning of books and killing of scholars under China’s first emperor Qin Shihuang; source: Wikipedia)

The legal system of imperial China developed from two schools of thought: Confucianism and Legalism. Although both of them exerted a deep influence on China’s state-building as well as on its moral and legal traditions, at the beginning these two philosophies were bitterly opposed to each other, as they were based on entirely different principles (see: Xin Ren: Tradition of the Law and Law of the Tradition: Law, State, and Social Control in China, 1997, p. 19).

Confucianism (儒家) originated from the teachings of Confucius (551 – 479 BC), a Chinese scholar, politician and philosopher who lived in the Spring and Autumn period. The main body of the Confucian canon comprises the Four Books and the Five Classics (四書五經), texts which have been traditionally attributed to Confucius himself, although their authorship is not ascertained beyond doubt.

Confucius’ philosophy revolved around two concepts: the nobleman and the establishment of a well-ordered society. The nobleman (君子, pinyin:  jūn zǐ  , also translated as “gentleman” and “superior man”) is a term that in ancient China referred to the son of a feudal lord. Confucius, however, gave this word a new meaning. For him, a nobleman was such by merit and not by birth. The nobleman is a righteous individual, an example of filial piety, humane behaviour, virtue and propriety (Ren 1997, pp. 19-20;  Lee Dian Rainey: Confucius & Confucianism: The Essentials, 2010, p. 42). Ideally, a well-ordered society is constituted of noblemen who put righteousness and propriety before selfishness and pettiness.

In the philosophy developed by Confucius and his followers, the law played a secondary role in shaping human behaviour. Instead of the legal system, early Confucian scholars emphasized the concepts of morality and ritualism. The term “ritual propriety” (禮, pinyin: lǐ), describes the “proper” social relationships and the set of rituals which regulate them. The fundamental social relationships are those between the emperor and his ministers, between father and son, between husband and wife, between brothers and between friends. Li “governs relationships between the ruling and the ruled, the senior and the junior, man and woman, and the blood-related and the acquainted” (Ren 1997, p. 20). Confucius placed great importance on language. He believed that for a society to function harmoniously all social relationships had to be named properly. This means that society needs social ranks and rituals so that each individual will constantly be made aware through language and rites which position he occupies in the social fabric and which behaviour is proper in dealing with others.

Confucian scholars believed that human beings were inherently good and nature endowed them with four fundamental virtues: humanity (仁), righteousness (義), propriety (禮) and wisdom (知). According to Confucian thought, men’s wrongdoing and bad behaviour are the consequence of negative environmental influences and lack of proper education. Wrongdoers could be taught to feel ashamed of their improper actions through education and moral persuasion. If men were brought up in a system in which social roles and ranks were clearly defined through language and rites, they would naturally internalize proper social relationships and society would function harmoniously. From this viewpoint, human beings do not exist as free individuals, but they are only small parts of a complex network of social relations in which everyone must fulfill their duties as subjects of the emperor, as fathers and mothers, as husbands and wives etc.  (see Ren 1997, pp. 20-21). Confucians believed that if men acted according to ritual propriety and if the sovereign possessed all four fundamental virtues, then society would be prosperous and harmonious.

Contrary to Confucian belief in human beings’ inherent goodness, the Legalists assumed that men were by nature evil and that consequently they would commit crimes if state authority did not discipline them. Since human beings are selfish and greedy, the only way a state can function is by issuing laws and by severely punishing those who violate them. According to the Legalists, men are by nature unequal, since they differ in wealth, strength and status. However, the law should apply equally to all, so as to punish the guilty and reward the innocent (Ren 1997, p. 20). In the Book of Lord Shang, a classic of Legalist thought from the 3rd century BC, one reads:

If penalties are made heavy and rewards light, the ruler loves his people and they will die for him; but if rewards are made heavy and penalties light, the ruler does not love his people, nor will they die for him. When, in a prosperous country, penalties are applied, the people will reap profit and at the same time stand in awe; when rewards are applied, the people will reap profit and at the same time have love. A country that has no strength and that practises knowledge and cleverness, will certainly perish,2 but a fearful people, stimulated by penalties, will become brave, and a brave people, encouraged by rewards, will fight to the death. If fearful people become brave and brave people3 fight to the death (the country will have no match, having no match, it will be strong, and being strong it will attain supremacy (quoted from: Yang Shang: The Book of Lord Shang: A Classic of the Chinese School of Law, trans. J. J. L. Duyvendak, 1963, pp. 200-201).

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China’s Legal System – Communist or Feudal?

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Emblem of the People’s Court of the People’s Republic of China (source: Wikipedia)

 

 

On October 13, 2014, Yu Wensheng, a lawyer from Beijing, was arrested and detained by the police for 99 days . He was interrogated approximately 200 hundred times by 10 officers who worked in shifts night and day. Yu’s wrists were fastened behind his back with handcuffs.  “My hands were swollen and I felt so much pain that I didn’t want to live“, he told Amnesty International. “The police officers repeatedly yanked the handcuffs and I would scream“. Two days before his arrest, Yu had submitted a request to Beijing Fengtai Detention Centre for meeting one of his clients. The authorities had rejected Yu’s request without reason. As an act of protest, he stayed in front of the detention centre and later published a post online describing the incident. At around midnight the police forced him to leave, and on October 13 the Beijing Daxing District Public Security Bureau arrested him on charges of “disorderly behaviour” (寻衅滋事罪). Yu was denied access to his lawyers and his family. According to Albert Ho, chairperson of the China Human Rights Lawyers Concern Group, in the People’s Republic of China (PRC) “it is not uncommon for a lawyer to be made captive as a result of conducting his legal duties“. Cases of lawyers arrested without due procedures and tortured by state organs are numerous. It is estimated that since last year approximately 250 human rights lawyers have been detained or mysteriously went missing.

On 17 October 2015, 51-year-old Gui Minhai disappeared from his home in Pattaya, Thailand. Gui was a shareholder of Hong Kong-based publishing house ‘Mighty Current‘, which published salacious gossip books about high-rank officials of the Chinese Communist Party (CCP). Gui was born in China‘s Zhejiang Province and studied history at Beijing University. In 1988 he moved to Sweden and earned a PhD at Gothenburg University. After the Communist Party put down the Tiananmen student protests in 1989, Gui remained in Sweden and became a naturalised citizen. As the political climate relaxed in the 1990s, he returned to China and worked there for a few years, before entering the publishing business in 2012. A camera in his Thai condo showed him on October 17 as he came back home carrying groceries. Shortly afterwards, he drove away together with a man who had been waiting for him in the garage.  Continue reading