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The Genesis of the People's Procuratorate in Communist China 1949–1951*

Published online by Cambridge University Press:  17 February 2009

George Ginsburgs  and
Arthur Stahnke
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Extract

When the Chinese Communists finally consummated their seizure of power in mainland China, one of the first tasks which faced them was that of elaborating a formal institutional structure for the exercise of regular public authority. Indeed, while the new leadership now undoubtedly enjoyed de facto control over the country and the mass of the people, it found itself quite destitute of those normal channels of state regulation and administrative management which serve to bestow legitimacy on a claimant to the role of national government and to distinguish a duly constituted, relatively stable political order from an altogether fluid interlude of revolutionary action predicated on ad hoc use of organised force under a central direction. The Party soon moved to make up for this grave deficiency by creating, on paper at least, a complex mechanism of state administration to back up its bid for recognition as the official spokesman for the Chinese nation and, concurrently, provide it with the wherewithal to play that role effectively.

Type
Research Article
Information
The China Quarterly , Volume 20 , December 1964 , pp. 1 - 37
Copyright
Copyright © The China Quarterly 1964

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References

1 Text in The Important Documents of the First Plenary Session of the Chinese PPCC (Peking: Foreign Languages Press, 1949)Google Scholar, and Blaustein, A. P. (ed.), Fundamental Legal Documents of Communist China (South Hackensack, N.J.: Rothman, 1962), pp. 34–53Google Scholar; text in Russian in Kovalev, E. F. (ed.), Zakonodatelnye akty Kitaiskoi Narodnoi Respubliki (Moscow: Izatelstvo Inostrannoi Literatury, 1952), pp. 50–65.Google Scholar

2 Text in The Important Documents of the First Plenary Session of the Chinese PPCC; Blaustein, A. P. (ed.), op. cit., pp. 104–114Google Scholar; Kovalev, E. F. (ed.), op. cit., pp. 41–49.Google Scholar

3 The above account is drawn from the “Explanatory Report on ‘Provisional Regulations Governing the Organisation of the Office of the People's Procurator-General’ and ‘General Regulations Governing the Organisation of Offices of the People's Procurators of Various Levels’” by Li Liu-ju, Deputy Procurator-General, delivered at the 12th meeting of the Central People's Government Council, September 3, 1951, and published in Jen-min Jih-pao (People's Daily), September 5, 1951Google Scholar. English translation in Current Background (CB) (Hong Kong: United States Consulate General), No. 183.Google Scholar

4 Text in People's Daily, September 5, 1951; CB, No. 183.Google Scholar

5 Arturov, O. A., Gosudarstvennyi stroi Kitaiskoi Narodnoi Respubliki (Moscow: Izdatelstvo “Pravda,” 1951), p. 24Google Scholar; Sudarikov, N., “Organy yustitsii Kitaiskoi Narodnoi Respubliki,” Sotsialisticheskaya Zakonnost, 1951, No. 10, p. 48.Google Scholar

6 Text in People's Daily, September 29, 1954; Blaustein, A. P. (ed.), op. cit., pp. 144–152Google Scholar; text in Russian in Sudarikov, N. G. (ed.), Konstitutsiya i osnovnye zakonodatelnye akty Kitaiskoi Narodnoi Respubliki (Moscow: Izdatelstvo Inostrannoi Literatury, 1955), pp. 670–676.Google Scholar

7 Lunev, A. E., Sud, prokuratura i gosudarstvennyi kontrol v Kitaiskoi Narodnoi Respublike (Moscow: Gosyurizdat, 1956), p. 52.Google Scholar Conversely, members of the procuratorial apparatus enter corresponding collegia of other government agencies. Thus, according to Sudarikov, N. G., “Organizatsiya suda i prokuratury Kitaiskoi Narodnoi Respubliki,” Sotsialisticheskaya zakonnost, 1952, No. 5, p. 54: “In the judicial committee formed within the Supreme People's Court are included not only the leading workers of the Supreme People's Court, but also the Minister of Justice, the Procurator of the Republic and certain other public functionaries not working in the organs of justice.”Google Scholar

8 Li, Liu-ju, op. cit., People's Daily, September 5, 1951; CB, No. 183.Google Scholar

9 Lunev, A. E., op. cit., p. 55Google Scholar. According to Sudarikov, N. G., op. cit. (note 5), p. 48: “In June 1951, the State Administrative Council, the Supreme People's Court and the Supreme People's Procuratorate adopted the decision on the formation of local political-legal committees in the large administrative regions and provinces.”Google Scholar

10 Text in People's Daily, September 5, 1951; CB, No. 183.Google Scholar

11 Lunev, A. E., op. cit., p. 56Google Scholar. As in the collegium of the Central Office, the outside members of these lower committees were drawn from “among workers of organisations close to the procuratorate, for instance, the judiciary, the office of people's control of public security, etc.,” Sudarikov, N. G., op. cit. (note 7), p. 57.Google Scholar

12 Text in CB, No. 183.Google Scholar

13 One of these, for instance, involved the substitution of the word “oppose” for “protest” in connection with the procuratorate's action against erroneous decisions by the court, presumably because the term “oppose” from an ideological standpoint sounded more forceful than “protest.” This particular revision was noted separately by Li Liu-ju in his “Explanatory Report”: “In the original draft regulations, it was provided that offices of the people's procurators may ‘protest against any contra-judicial judgment made by the courts.’ This is now changed to read: ‘… Opposition to unwarranted or improper judgments made by judicial organs of various levels.’ As the people's judicial organs are entrusted with the task of safeguarding the interests of the State and the people, any illegal or improper judgment or decision they have made must be opposed and the issue brought to higher courts by offices of the people's procurators.…”Google Scholar

Where a judgment had become final, this opposition took the form of a “protest” which, prior to 1954, was lodged with the judicial organ responsible for the objectionable ruling, whereas after that date, protests could be submitted to higher judicial instances as well. Be that as it may, before 1954 such protests were rare and all involved the lower courts. As Lunev, A. E., op. cit. p. 34, n. 1, notes: “Prior to 1954 in the practice of the courts and the procuratorate of the CPR there were no cases of submission of protests to the Supreme People's Court against sentences which had entered into force. There existed the practice of review of cases in which the sentences had entered into force by the courts which handed down these sentences.”Google Scholar

14 Li, Liu-ju, op. cit., People's Daily, September 5, 1951; CB, No. 183.Google Scholar

15 Ibid.

16 Lunev, A. E., op. cit., p. 50.Google Scholar

17 Ibid.; Kondratiev, R. S. and Grachev, L. A., Gosudarstvennyi stroi Kitaiskoi Narodnoi Respubliki (Moscow: Gosyurizdat, 1959), p. 88.Google Scholar

18 Li, Liu-ju, op. cit., People's Daily, September 5, 1951; CB, No. 183.Google Scholar To the same effect, see the editorial “Strengthen and Consolidate the People's Revolutionary Legal System” in People's Daily, September 5, 1951, and CB, No. 183.Google Scholar

19 Lunev, A. E., op. cit., p. 50; idem, Sushchnost Konstitutsli Kitaiskoi Narodnoi Respubliki (Moscow: Gosyurizdat, 1958), p. 122.Google Scholar

20 Lunev, A. E., op. cit. (note 7), p. 50Google Scholar; idem, op. cit. (note 19), p. 122. A similar assertion is made in Kondratiev, R. S. and Grachev, L. A., op. cit., p. 88.Google Scholar

21 Voevodin, L. D., Gosudarstvennyi stroi Kitaiskoi Narodnoi Respubliki (Moscow: Gosyurizdat, 1956), pp. 209–210.Google Scholar

22 Arturov, O. A., op. cit., p. 23.Google Scholar

23 Chernilovskii, Z. M., Gosudarstvennyi stroi Kitaiskoi Narodnoi Respubliki (Moscow: Gosyurizdat, 1951), p. 85.Google Scholar

24 Ibid. See, also, the description in Arturov, O. A., op. cit., p. 23, of the duties of the procuratorate at the beginning: “They [the offices of the procuratorate] exercise supervision over the activity of the people's police and conduct cases of State prosecution, as well as help with the organisation of social prosecution which was carried out by people's social organisations.”Google Scholar

25 People's Daily, September 5, 1951; CB, No. 183.Google Scholar

26 Lunev, A. E., op. cit. (note 7), p. 53, n. 1Google Scholar. It was only in the autumn of 1953 that the Supreme People's Procuratorate began creating on a wide scale “experimental-model” offices with investigation departments and in the second half of 1956 that a draft of “Experimental procedures for conducting investigation work by the people's procuratorates of all levels” was completed, according to Chugunov, V. E., Ugolovnoe sudoproizvodstvo Kitaiskoi Narodnoi Respubliki (ocherki) (Moscow: Gosyurizdat, 1959), pp. 79–80.Google Scholar

27 Li, Liu-ju, op. cit., People's Daily, September 5, 1951Google Scholar; CB, No. 183. To the same effect, see Chou, Fang, Gosudarstvennye organy Kitaiskoi Narodnoi Respubliki, tr. from the Chinese by Gudoshnikov, L. M. and Shafir, M. A. (Moscow: Izdatelstvo Inostrannoi Literatury, 1958), p. 203. The original Chinese edition was published in Peking in 1957.Google Scholar

28 Lunev, A. E., op. cit. (note 7), p. 53.Google Scholar

29 ibid.

30 Li, Liu-ju, op. cit., People's Daily, September 5, 1951; CB, No. 183.Google Scholar

31 Editorial “Improve the Work of the Procuratorate,” People's Daily, January 12, 1951.Google Scholar

32 Li, Liu-ju, op. cit., People's Daily, September 5, 1951; CB, No. 183.Google Scholar

33 Lunev, A. E., op. cit. (note 7), p. 55.Google Scholar

34 Idem, op. cit. (note 19), p. 123.Google Scholar

35 Lunev, A. E., op. cit. (note 7), p. 51.Google Scholar

36 Editorial, “Strengthen and Consolidate the People's Revolutionary Legal System,” People's Daily, September 5, 1951; CB, No. 183, p. 4.Google Scholar

37 The procuratorate is occasionally likened to the old censorate, but, if there was in Communist China's administrative system a successor to that institution, the Committee on People's Control would seem to be a better candidate for the job than the procuratorate. See, for example, Siu-Kia-Pei, , “La structure administrative en Chine à travers les âges,” Revue internationale des sciences administratives, 1952, No. 4, pp. 752–787, at 783–784.Google Scholar

38 e.g., Editorial, “Strengthen and Consolidate the People's Revolutionary Legal System,” People's Daily, September 5, 1951Google Scholar; Li, Liu-ju, loc. cit.Google Scholar

39 Editorial, “Strengthen the Procuratorate's Work to Safeguard National Construction,” People's Daily, May 21, 1954Google Scholar; Survey of China Mainland Press (SCMP) (Hong Kong: United States Consulate General), No. 821.Google Scholar

40 Li, Liu-ju, op. cit., People's Daily, September 5, 1951Google Scholar; CB, No. 183. See, too, Voevodin, L. D., op. cit., p. 209: “In the organisation and operation of the organs of the people's procuratorate was used the experience of the Soviet procuratorate. At the same time, the people's procuratorate of the CPR is built in accordance with concrete conditions existing in the land.”Google Scholar

41 Chou, Fang, op. cit., p. 206.Google Scholar

42 e.g., Voevodin, L. D., op. cit., pp. 209–210Google Scholar; Kondratiev, R. S. and Grachev, L. A., op. cit., 88–89.Google Scholar

43 People's China, 1954, No. 19, p. 30Google Scholar; Documents of the First Session of the First National People's Congress of the People's Republic of China (Peking: Foreign Languages Press, 1955), p. 64Google Scholar. Cf. Lunev, A. E., op. cit. (note 19), p. 123: “The complexity and tremendous State importance of the tasks entrusted to the procuratorate of the CPR demands the collective experience of many people. The organisation of the leadership of the procuratorate on collegial principles in the CPR has fully justified itself.” Idem, op. cit. (note 7), p. 52.Google Scholar

44 Chou, Fang, op. cit., p. 205.Google Scholar

45 For an analysis of this phenomenon in the practice of the Soviet procuratorate, see Ginsburgs, G., “The Soviet Procuracy and Forty Years of Socialist Legality,” American Slavic and East European Review, 1959, No. 1, pp. 34–62.CrossRefGoogle Scholar

46 Chou, Fang, op. cit., pp. 203–204Google Scholar. Cf. the report on the 2nd National Conference on procurators' work held between March 17 and April 10, 1954, which adopted a resolution that “requested leading Party and government organs to strengthen their leadership over the procurators' work,” “Policy and Task of Procurators' Work Defined at National Conference,” People's Daily, May 21, 1954; SCMP, No. 821.Google Scholar

47 Text in Vedomosti Verkhovnogo Soveta SSSR, 1959, No. 9Google Scholar; Materialy k izucheniyu kursa “Organizatsiya Suda i Prokuratury v SSSR” (Moscow: 1960), pp. 146–147.Google Scholar

48 Chou, Fang, op. cit., pp. 204–205.Google Scholar

49 SCMP, No. 789, citing NCNA, Peking, April 1, 1954. According to A. E. Lunev, op. cit. (note 7), p. 49, prior to July 1954, there were in Communist China, in addition to the territorial units of the procuratorate, extra procuratorates on “railroad lines and in sea ports.”Google Scholar

50 Lunev, A. E., op. cit. (note 7), p. 49.Google Scholar