NCJ Number
54838
Journal
Judicature Volume: 60 Issue: 8 Dated: (MARCH 1977) Pages: 395-402
Date Published
1977
Length
7 pages
Annotation
AN AMERICAN DISCUSSES THE CHINESE LEGAL SYSTEM, REFERRING TO HIS TALKS WITH CHINESE JURISTS DURING A 1976 VISIT TO PEKING.
Abstract
THE MAIN DIFFERENCE BETWEEN COMMON LAW SYSTEMS AND THE CHINESE LEGAL SYSTEM IS THAT THE FORMER FOCUSES ON INDIVIDUAL CASES AND INDIVIDUAL RIGHTS WHILE THE LATTER CONSIDERS INDIVIDUAL GUILT AND INNOCENCE SECONDARY TO THE COLLECTIVE INTERESTS OF THE PEOPLE. THE CHINESE SYSTEM DISTINGUISHES BETWEEN DISPUTES THAT ARISE AMONG THE PEOPLE AND THOSE THAT TAKE PLACE BETWEEN THE PEOPLE AND THEIR ENEMIES. AN IMPORTANT ASPECT OF ANY DISPUTE-RESOLVING MECHANISM IN CHINA IS ITS EDUCATIONAL FUNCTION. NEARLY ALL DISPUTES IN CHINA ALLEGEDLY ARE RESOLVED OUTSIDE THE FORMAL COURT STRUCTURE. REAL RESOLUTION OCCURS IN STRUGGLE SESSIONS (FORCED CONFRONTATIONS BETWEEN WRONGDOERS AND THE COMMUNITY), IN INFORMAL MEETINGS OF NEIGHBORHOOD PRODUCTION AND POLITICAL UNITS, AND IN WALL POSTER DEBATES. (WALL POSTERS ARE SUCH AN IMPORTANT FORUM IN CHINA THAT THEY ARE CONSTITUTIONALLY PROTECTED.) THE HANDLING OF A CASE IN WHICH A PERSON IS ACCUSED OF A CRIME--THE INVESTIGATION, THE DECISION AS TO HOW THE CASE SHOULD BE DEALT WITH, THE NEIGHBORHOOD TRIAL, THE SENTENCE--IS ILLUSTRATED IN A CASE STUDY RECOUNTED TO THE VISITOR BY A CHINESE JUDGE. THE CASE ALSO ILLUSTRATES HOW THE ACCUSED'S POLITICAL HISTORY AS WELL AS THE CRIME IS TAKEN INTO CONSIDERATION. ANALOGIES ARE DRAWN BETWEEN THE I.E., MEDICATION AND ARBITRATION PROCEDURES, ATTEMPTS BY JURIES TO REACH VERDICTS THAT REFLECT A GROUP CONSENSUS, SENTENCING THAT STRIVES TO REHABILITATE OFFENDERS AND KEEP THEM IN THE COMMUNITY. THE POSSIBILITY IS RAISED THAT A RELATIVELY MORE ORDERLY LEGAL SYSTEM (ALTHOUGH NOT A LEGALISTIC ONE IN THE WESTERN SENSE) MAY EMERGE AS A RESULT OF POLITICAL UPHEAVAL IN CHINA. (LKM)