Military Law in Communist China Development. Structure and Function

• Author: by Captain David C. Rodeamel
• Pages: 01

1. INTRODUCTION

The United States' relationship with the People's Republic of China (PRO has evolved over the past thirty-five years from one of armed conflict, through a cautious period of detente, and into the present era of limited but developing cooperation. China's armed forces, the largest in the world, remain of great interest and importance.'While studies of China's legal system have appeared in the West with in-creasing frequency, surprisingly little has been written concerning its military legal system.2 Admittedly, several difficulties arise in attempting such a study. Until recently, the primary problem with studying Chinese law has been finding it. Especially during the Cultural Revolution (1966.19761, law was virtually entirely displaced by rule through policies and directives of the Chinese Communist Pany (CCP). Secondly, sensitivity about "state secrets" is especially acute in the PRC Documents concerning the militaly, to include military law, are generally classified, and relatively few have emerged from China. Nevertheless, from those source documents which have become available, from official policy statements, and from accounts of military trials, an adequate representation may be drawn of the de-

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velopment, structure and function of the military legal System of Communist China

The general functions ofa system of military law are to govern the persons within the military and to maintain discipline 60 as to assure the accomplishment of assigned tasks.4 The functions of the Chinese Communist military legal structure are significantly broader, largely due to the unique political characteristics of the Chinese People's Liberation Army (PLK As Mao Tse-tung wote m 1929. "the Chinese Red Army IS an armed body for carrying out the political tasks of the revalutian."6 The role of military law and discipline thus assumes a broader aspect in this politicized army, which is reflected in the defimtmn of military discipline from the authontative Chinese military dictionary Ci Hal

A standard with which the armed forces must comply to guarantee political, organizational, and operational consis-tency The military discipline of the Chinese People's Liberation Army IS based on political ConscLousness and 1s the guarantee that the revolutionary line will be carried out. ItIS a basic factor in combat effectiveness.'

As will be shorn herem, there are two main functions of the Chinese Communist military legal system. (1) to maintain a hlgh degree of political unity between the CCP and the PLA: and (21 to mamtam military order and discipline and thereby increase military potential. In response to changed political conditions or periods of crisis, the military legal system has on occasion been called upon to enlarge its legal and administrative jurisdictions to include the civil sector under

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its authority Military Tribunals ofMilitary Control Committees have constituted the legal authority for large areas of Communist China during significant periods of its history, when conditions of what may be termed "martial law" prevailed. At the same time, the military legal system has had the continuing task of maintaining order and discipline within the PLA itself.

This article will examine the development, structure, and function of the Chinese Communist military legal system in its broader sense, to include its political and martial law roles. To limit this study to an artificially namow exammation of the maintenance of internal discipline alone would distort the significance and role of military law in Communist China.

11. HISTORICAL FRAMEWORK

To understand the role of the military legal system of Communist China, it is first necessary to gain a basic appreciation of certain concepts within the broader milieu of traditional Chinese law. The legal Byatem of the People's Republic of China 18 not merely com. munist law, but also Chinese law. Although the legal system of the PRC has drawn heavily from Soviet sources, it also retains, to a significant degree, many of the distinctive feeatures of China's o m legal heritage. It mut, therefore, be analyzed in the context of Chinese history.

Much of China's historical legal development is typified by the continuing tension inherent in a dichotomy of two competing models of law. These models have been labeled, an the one hand, "external,"8 ''farmal,"9 or 'Turd""; on the other, "internal," "in-formal," "mobilizational," or "societal." The jural model stands for formalized, codified rules of universal application, enforced by a re. gularized judicial system. The societal model stands far the applieation of internalized societal norms and customary values, enforced in a particularized fashion (depending an one's class or social atatus1 by extrajudicial agencies and social organizations.

'Vietar LI, The Evalutian and D~v~JaprwnI

!he Chinese Leg01 Syetem, I" China' 'J Cohen The Crimrnal Process I" the People'a Republic of China, 1949.1963. at Management of B Rsvolutionary Society 221 (J Lindbeek ed 1971)9" ilOfZll_" _.""",

'"Lubman, Form and Fvnetbm zn the Chincae Cnm~noi Pimeas, 69 Colm L. Rev

"Leng, The Role o / L w an !he People's Reppublic ai Chino Aa ReiiPcrrng ,Ma0 Tie-535, 566 (1969)lung's InRumer. 63 J Crim L. & Cnmlnolom 366 11977).

1. TRADITIONAL CHINESE LEGAL CONCEPTS12 The Confuuman philosophy that guided traditional China held that upright and benevolent personal behavior and proper observance of social relationships produced societal order and well-being. Upright behavior on the part of individuals would bring ordered harmony in their families, which would in turn lead to well.governed states and, ultimately, world peace.13 Thm behavior was governed by it (moral code, or customary iaw). The preference for moral persuasion and example over rule by harsh punishments and formalized codes was expressed by Confucius:

   Lead the people by laws and regulate them by penalties, and the people will try to keep out ofjail, but will have DO senseof shame Lead the people by virtue and restrain them by the rules of decorum (1~1, and the people will have a sense ot shame, and moreover will become good l4

   The Confucian philosophy was rivaled by the Legalist school of thought, which favored a harsh, punitive system of positive law (faP in order to maintain public order and create a strong state. The le. galists criticized 11 as being an unstable basis for government "since the li are unwritten, particularistic, and subject to arbitrary Inter. pretation."16

   While the Confucian philosophy eventually triumphed as the basis of traditional Chinese society, aspects of legalism were incorporated a8 well. Laws were primarily penal in emphasis, to punish violations afthe codified dominant Confucian ethical norms. The law was nevertheless rarely invoked to uphold these norms: only where moral persuasion and societal pressures had failed was the law needed. Law was mainly concerned with those acts of moral impropriety or cnmmal violence that were seen 88 violations of the whale social order and, ultimately, the entire harmonious order of the universe. "The belief that disastrous natural phenomena-floods, droughts, tem- "For B comorehemive treatment of law m traditions1 China. me D Bodde B C

   Mons Law i

   Imperial China 119671: Chu Tung-ti". Law and Society m Traditional China (1961). and S van der Sprenkel. Legal Institutiann I" Manchu China 11962:

   >,Ta Hruh (The Great Learnmil. in Masters of Chinese Polihcal Thouahl201, 202

   IS de Gram td 19131 I.Th 4""/4",1 "1 9

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   pests, insect pests-were the consequences of human disorder provided further theoretical justification for punishment of wrongdoers: they were a double menace to society.""

   Because the Chinese legal system was intended to protect societal harmony and punish those who violated the rules of good order and conduct, many of the protections that evolved in Western societies to guard the rights of individuals against the state failed to emerge in China. First, the concept that an accused is presumed innocent until proven guilty did not develop in China.'$ Second, there wag no pnnciple of equality before the law; rather, differing treatment was ac-corded based on the relative class and social status of the offender and vict~rn.'~

   Third, voluntary surrender and confession, in keeping with Confucian ethics, were atrangly encouraged and could be a mitigating factor in criminal eases; on the other hand, failure to confess was generally seen as obduracy and could constitute an aggravating factor.zQ Torture as a means of obtaining a confession during trials wa8 specifically allowed under the penal code of the Ch'ing dynasty (1644.1912)

   21 Fourth, if the laws did not specifically address a given

   offense or penalty, a magistrate could apply another statute by anal.

   Finally, there were no defense attorneys to assist the accused. Because the laws penalized as disruptors of tranquility bath those who incited others to institute court actions, as well as those who profited from them, the development of a legal profession was problemati~.~~

   Due to the harsh, punitive nature of the formal legal system, the people regarded it with distaste and fear. "Don't eat anything poisonous, and don't break the law," ran a Chinese proverb. Or again: "[Alvoid litigation; for once go to law and there 1s nothing hut tmuble '" The formal legal ~ystern wa8 therefore avoided to the greatest extent possible To resolve disputes and adjudicate minor offenses, an informal legal system of extrajudicial organs and procedures devel-

   aped, in keeping with the Confucian mandate that tranquility be maximized. The clan (tu%the guild, councils Of local gentry or elders, and other local institutions resolved most conflicts through...