A new constitution intended to provide a structural basis for the return to socialist legality was adopted at the Fifth National People's Congress in March 1978. Legal reform was deemed essential not only to prevent a return to power of the radicals but also to provide the legal structure for the economic development of the country envisioned by the party leadership.

The 1978 state constitution reaffirmed the principle--deleted in the 1975 state constitution--of the equality of all citizens before the law. It guaranteed the right to a public trial, except in cases involving national security, sex offenses, or minors, and reaffirmed a citizen's right to offer a defense--also omitted in 1975.

The National People's Congress called for new criminal, procedural, civil, and economic codes as quickly as possible, using the new state constitution as a guide. The delegates quoted Mao as having said in 1962 that "we not only need a criminal code but also a civil code," and they invoked Mao's authority against those who viewed regularizing the legal system as counterrevolutionary.

In November 1978 the Law Institute of the Chinese Academy of Social Sciences, working in conjunction with the Legal Affairs Commission of the National People's Congress proposed strengthening the socialist legal system, which, it explained, was based on democracy, socialist principles, and the worker-peasant alliance. The institute added that the system should be formulated, enforced, and used by the people for economic development and against groups such as the Gang of Four. The 1978 state constitution gave the National People's Congress sole authority to interpret, promulgate, and change laws. It also reestablished the people's procuratorates and made them responsible both to the procuratorate at the next higher level and to the people's government at the same level, as they had been before 1954.

In mid-1979 China promulgated a series of new statutes that included the country's first criminal law, the first criminal procedure law, and updated laws on courts and procuratorates. Extensive preparations preceded the announcements. Beginning in early 1979, for example, the media hosted debates on subjects such as judicial independence, presumption of innocence, and equality of all citizens before the law. A national conference of procuratorates in January 1979 stressed the need for thorough investigations in all cases and respect for evidence. The participants in the conference warned that extorted confessions would no longer be accepted and that the police could not make arrests without procuratorate approval. If circumstances did not permit prior approval, the approval had to be obtained after the fact or the detainee had to be released.

Judicial work conferences were held throughout China to make recommendations to the National People's Congress concerning an independent judiciary. According to the recommendations, Chinese courts in the future would base their judgments on the law, while continuing to "work under unified leadership of the local party committees." In short, party po 1e65 olicy no longer would be the equivalent of the law, but judicial independence in China could still be modified by party guidance.

Peng Zhen, director of the Legal Affairs Commission and active in the reform efforts of the early 1960s, announced the new laws in June 1979 and had them published shortly thereafter. According to Peng's announcement, the laws were based on 1954 and 1963 drafts and provided a foundation for the socialist legal system and, ultimately, social democracy. He affirmed that the judiciary would be independent and subject only to the law that all individuals, no matter how senior, would be equal before the law and that party members and cadres would have to forego special treatment and set an example for the people. In November 1979 Peng was appointed secretary general of the Standing Committee of the Fifth National People's Congress, a position from which he could control the reconstruction of the legal system.

Among the laws approved by the Second Session of the Fifth National People's Congress to take effect January 1, 1980, was the Organic Law of the Local People's Congresses and the Local People's Governments. The revolutionary committees, which had assumed judicial authority in the 1967-76 period, were eliminated their authority was assumed by local people's governments, and judicial responsibility was returned to the appropriate courts.

The Electoral Law for the National People's Congress and Local People's Congresses, also to take effect January 1, 1980, provided for the direct election of some procurators and judges. The Organic Law of the People's Courts was designed to create a more orderly environment and to assure the people that the chaotic years of the Cultural Revolution, with no courts and no legal guarantees, were over. The law, a revised version of 1954 drafts, guaranteed the accused equality before the law regardless of race, nationality, sex, social background, or religious beliefs and gave people the right to a lawyer. In certain cases, the lawyer would be court-appointed. The law called for independence of the judiciary from political interference. Courts were free to establish judicial committees to assist them in difficult cases, and there were provisions for citizens to be elected as assessors to participate with judges in adjudicating cases. The local language was to be the medium for conducting court proceedings and writing court decisions. Cases involving the death penalty were to be reviewed by the Supreme People's Court, and all defendants were entitled to appeal to the next higher court.

The Organic Law of the People's Procuratorates, an amended version of a 1954 law, made procurators responsible for supervising law enforcement by the police, courts, and administrative agencies. The procuratorate was linked to China's past in that it functioned like the censorial system of imperial China. It served as the eyes and ears of the government, just as the censorial system was the watchdog for the emperor.

The procurators were elected by local people's congresses and approved by the next higher procuratorial level to handle only criminal cases. The independence of the procuratorates was constitutionally guaranteed. Still, their responsibilities were difficult, especially in any case involving a high party official. According to the new law, procuratorates at all levels had to establish procuratorial committees, practice democratic centralism (see Glossary), and make decisions through discussion. Ideally, a procuratorate at a lower level would be led, rather than dictated to, by one at the next higher level. Each procuratorate was responsible to the standing committee of the people's congress at the corresponding level.

The 1980 Criminal Law was intended to protect state property as well as the personal and property rights of citizens against unlawful infringement by any person or institution. It safeguarded the fundamental rights stipulated in the 1978 state constitution and prescribed penalties for counterrevolutionary activities (crimes against the state) and other criminal offenses. Prevention of crime and rehabilitation through education (taking into account actual conditions in China in 1979) were stressed. Illegal incarcerations, fabrications, prosecutions, and intimidation were forbidden, but the provisions of the law did not apply retroactively.

The Criminal Law contained a provision prohibiting the criminal prosecution of a person who had "reactionary," that is, antiparty, ideas but who had committed no "reactionary" actions. As Peng Zhen pointed out in late 1979, because "most contradictions were among the people," involving constructive criticism not antagonistic to the party or state, punishment was inappropriate (see Policy Toward Intellectuals , ch. 4). As in some other areas of the law, the actual judicial disposition appeared at times to be at variance with this particular principle.

The law defined criminal acts and distinguished between actual crimes and accidents. It also established a statute of limitations both to demonstrate the "humanitarian spirit" of the penal code and to permit law enforcement officials to concentrate on crimes for which evidence was still available. The law retained the important legal principle of analogy, according to which acts not specifically defined might be considered crimes. Criminal charges could not be brought unless there was evidence that a crime had been committed the sole basis for prosecution was verifiable evidence. The law also defined basic understandable rules of evidence. The death penalty could be imposed for flagrant counterrevolutionary acts and for homicide, arson, criminal intent in causing explosions, and other offenses of this nature. The 1983 revision of the law considerably increased the number of offenses punishable by the death penalty.

The Law on Criminal Procedure was promulgated to reform judicial procedures in enforcing the Criminal Law. It was designed to educate citizens, establish judicial jurisdictions, and streamline judicial appeal and review. The law described the relationship between public security organs (investigations and provisional apprehensions), the procuratorates (arrest approvals, possible procuratorial investigations, prosecutions and supervision of the police and penal institutions), and the courts (trials and sentencing). It also guaranteed the accused the right to make a defense at a public trial with an advocate present.

The public security organs, procuratorates, and courts had to base their judgments on verified evidence using the law as a measure. There were strict time limits on court and police actions to prevent overly lengthy detention.

Data as of July 1987