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China's Legal Awakening

Legal Theory and Criminal Justice in Deng's Era

Carlos Wing-hung Lo

Publication Year: 1995

This book illustrates - through the analysis of more than two hundred criminal cases selected from Minzhu yu fazhi (Democracy and the Legal System) in the period 1979-89 - that the establishment of a formal criminal justice system and the development of an embryonic socialist theory of law in China reflect a genuine and widespread legal awakening.

Published by: Hong Kong University Press, HKU

Table of Contents

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pp. v-vi

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Foreword

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pp. vii-viii

The study of law in the Chinese People's Republic is both frustrating and exciting. Frustration derives from the fact that the dominant ideology in the Chinese People's Republic combines very uneasily four positions on law. The first of these is a communitarian view which sees recourse to law (fa) as evidence of the failure of prescribed social mores (or li). The second is an ultra-humanistic...

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Preface

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pp. ix-xii

A sweeping judicial reform has been undertaken by the Chinese Communist Party after its promulgation of the Communiqu

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Introduction

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pp. 1-14

More than a decade has passed since Deng Xiaoping commenced restructuring the Chinese legal system. In December 1978, a sweeping judicial reform was inaugurated with the promulgation of the Communiqu

Part 1. Marxism in Deng's China

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Ch. 1. The Impact of Ideological Upheaval on the Legal System in China

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pp. 17-32

Marxist ideology has been in a state of ferment since 1978. The debate on the criterion for evaluating truth in that year sparked off an enthusiastic discussion of Communist ideology.1 That ideological contention gathered momentum as the Party adopted a more liberal attitude on the ideological front at the end of 1978.2 In the ensuing years, China embarked on a process of...

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Ch. 2. Deng Xiaoping's Ideas on Law

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pp. 33-41

In an effort to remove the Maoist legacy of hostility towards law, Deng Xiaoping broke through the tendency towards legal nihilism and the so-called dominance of the 'two whatevers' in the aftermath of the Cultural Revolution. As a prominent victim in the heyday of lawlessness, he realized how miserable a country could be without law and democracy. Reviewing the past...

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Ch. 3. Chinese Jurists' Perspectives on Law

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pp. 43-68

The preceding chapter examined Deng Xiaoping's ideas on law. This chapter will discuss jurists' perspectives on law in post-Mao China. First, it will describe debates on 'the rule of persons' versus 'the rule of law' and the relationship between law and policy. It will then depict jurists' examination of the Chinese Marxist jurisprudence and consider arguments about the nature of...

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Part 2. Legal Reform and the Practice of Law: Case Studies in the Administration of Criminal Justice, 1979-1989

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pp. 69-72

As mentioned above, case materials are selected from Minzhu yu Jazhi from the first issue of 1979 to the sixth issue of 1989. In considering legal reform, these ten-and-a-half years under study will be divided into four periods. Since the scope of this study goes beyond criminal justice, each chapter on case studies will start with a documentary analysis of the state of legal construction...

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Ch. 4. In the Wake of the Third Plenum: The Inception of Legal Reform

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pp. 73-86

As we have seen, a strong commitment to establishing a legal order, expressed by the Party in the wake of the 1978 Third Plenum, resulted in priority being given to the establishment of a socialist legal system. The task was urgent, since the old legal system was in disarray; laws had lost their legitimacy and hence their binding power. Moreover, the judicial system, provided by...

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Ch. 5. The Prelude to Legal Order: The Inauguration of Criminal Justice, 1980-82

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pp. 87-132

The year 1980 was significant in the development of legal order in China. The National People's Congress busied itself with legislation; the scope of law-making extending to civil and economic laws and most important of all, the enforcement of criminal law according to the over-arching Criminal Procedure Law. Under scrutiny was the institutional strength of the existing system in dispensing...

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Ch. 6. On the Threshold of Legality: 1983-85

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pp. 133-190

The year 1983 was a watershed year. The adoption of the 1982 state Constitution brought legal security within China's reach. Unequivocally and unprecedentedly the Constitution was declared 'supreme': All state organs, the armed forces, all political parties and public organizations and all enterprises and undertakings in the country...

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Ch. 7. Legal Reform in Progress: The Emergence of a Legal Society, 1986-89

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pp. 191-244

After 1986, legal reform moved toward consolidation. Optimism about the development of a legal order took hold as Deng Xiaoping and the Chinese leadership insisted that forging a socialist legal system went hand in hand with socialist construction and modernization in general.1 The direction of legal reform was clear. However, the future of the entire reform programme...

Part 3. Towards a Chinese Socialist System and a Chinese Theory of Law

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Ch. 8. Principles, Theory and Practice of Socialist Law in the First Decade of Legal Reform

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pp. 247-269

The preceding chapters argued that legal reform and the revival of legal studies in China derived inspiration from the ideas of Deng Xiaoping. The development of a Chinese legal system owed much to him; and it was his views which sparked off jurisprudential debates. Deng's aim was to invigorate the orthodox 'Marxist theory of the state and law', a task long hampered by the Cultural...

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Ch. 9. The 1989 Student Democratic Movement: A Legal Perspective

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pp. 271-295

The Chinese socialist legal system developed steadily after its re-establishment by the Third Plenum in 1978, according to Deng Xiaoping's vision of political stability. A framework was secured for building socialism in a peaceful environment. For more than a decade, Communist Party leaders tried to reconcile Chinese Marxism with a positive notion of socialist law and for more...

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Ch. 10. Trials of Dissidents of the 1989 Democratic Movement: The Limits of Socialist Justice

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pp. 297-322

From the point of view of Deng and the hard-liners, the military crack-down was a successful operation, since China regained its 'hard-won' political stability — the regime's 'highest interest'. 1 As in all crisis situations, the Four Cardinal Principles provided the basis for Party leadership.2 Since order was stabilized, the newly reorganized Party was ready to resume intermittent socialist reform...

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Conclusion

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pp. 323-328

This study, covering the longest period of political stability enjoyed by China under Communist rule (1979-1993), has argued that China has entered an age characterized by the rule of law. A highly institutionalized legal system has been built up which functions on the basis of socialist legality. The Communist regime has undergone a legal awakening in which both Party leadership...

Appendix 1: Structure of the Criminal Justice System of the People's Republic of China

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pp. 329-

Appendix 2: Law and Regulations of the People's Republic of China for Criminal Justice, 1949-1993

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pp. 331-337

Glossary

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pp. 339-347

Bibliography

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pp. 349-364

Index to Case Studies

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pp. 365-367

Index

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pp. 369-388


E-ISBN-13: 9789882200654
Print-ISBN-13: 9789622093805

Page Count: 402
Publication Year: 1995