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Voluntary Surrender and Confession in Chinese Law: The Problem of Continuity

  • W. Allyn Rickett

A unique feature of traditional Chinese law was the provision by statute that an offender who voluntarily surrendered and confessed before discovery and who made full restitution was entitled to remsision of punishment. Offenders who physically harmed their victims or offended against die state itself by commiting treason or escaping across borders were not entitled to remission, but could receive a reduction of punishment. Under the Republic this provision, known as tzu-shou, was continued in name but materially changed in substance under the influence of Western law as introduced through Japan. In general, the rewards for voluntary surrender and confession were reduced to mere reduction of punishment, but the scope was broadened to include crimes such as homicide, for which restitution was impossible. When the Chinese Communists first began developing a legal system in the 1930's, they too adopted tzu-shou. However, under them it became primarily an instrument of political control and social and ideological reform. It has remained an important aspect of Communist law even to the present though its application has ceased to have any strict legal significance.

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1 See Bodde, Derk and Morris, Clarence, Law in Imperial China (Cambridge: Harvard University Press, 1967), pp. 9798. Staunton, George Thomas, Ta Tsing Leu Lee (London: Cadell & Davis, 1810; reprinted Taipei: Chʻeng-wen Publishing Co., 1966), pp. 488–490. For a vivid description of both legal and illegal tortures, see Doolittle, Justus, Social Life of the Chinese (New York: Harper & Brothers, 1865), I, 335346.

2 Other nations, such as Japan, which modeled their pre-modern legal system on that of China also adopted these provisions of Chinese law, and in some cases they have preserved them even in their modern, Western-based codes. See for example, the Japanese Criminal Code, Section 7, Article 42.

3 The precise meaning of “discovery” has varied from time to time but generally it has mean that the authorities had knowledge of both the fact of the offense and the identity of the offender.

4 Another such example is the Communists' use of mediation by semi-official “people's organizations” to deal with civil disputes and minor criminal offenses. See Cohen, Jerome Alan, The Criminal Process in the People's Republic of China 1949–1963: An Introduction (Cambridge: Harvard University Press, 1968), passim, and Lubman, Stanley, “Mao and Mediation: Politics and Dispute Resolution in Communist China,” California Law Review, 55, 5 (Nov. 1967), 12841359.

5 See, for example, James Legge's translation of Shu Ching or Book, of Documents. The Chinese Classics, III, 388.

6 Ssu-pu pei-yao edition, p. 16a. See Watson, Burton, Records of the Grand Historian of China (New York: Columbia University Press, 1961), II, 391.

7 For a translation and discussion of this Tʻang dynasty statute, see Kennedy, George Alexander, Die Rolle des Geständnisses im chinesischen Gesetz (Berlin, 1939).

8 Ta Chʻing lü-li hui-tʻung hsin-tsuan [Comprehensive New Edition of the Chʻing Law Code], ed. by Yao Yü-hsiang (Peking, 1873); reprinted Taipei: Wen-hai chʻu-pan she, 1964), I, 445 ff. For translations see Staunton, op. cit., pp. 27–28; Boulais, Guy, Manuel du code Chinois (Variétés sinologiques series, No. 55, Shanghai, 1924), pp. 6871; van der Valk, M. H., “Voluntary Surrender in Chinese Law,” Law in Eastern Europe, XIV (1967), 392394. For an extensive discussion of the law, see van der Valk's article, pp. 361–381. Van der Valk also points out several special and supplementary articles to the Code which slightly modify some of the general provisions summarized here. He also deals widi tzu-shou under the Republican and to a certain extent the Communist periods.

9 Another unique feature of traditional Chinese law provided that except in cases involving treason, close relatives were privileged by law to conceal each others' crimes. Indeed, children who testified against their parents or wives who testified against their husbands or parents-in-law were punished for doing so. See Bodde and Morris, op. cit., p. 40.

10 For a discussion of the five standard punishments: beating with a light stick, beating with a heavy stick, penal servitude, life exile, and death, and the varying degrees under each, see Bodde and Morris, op. cit., pp. 76–95.

11 See Hung-lieh, Yang, Chung-kuo fa-lü fa-ta shih (2 vols. Shanghai: Commercial Press, 1930), II, 893–94, and Meijer, Marinus Johan, The Introduction of Modern Criminal Law in China (Batavia, 1950).

12 For Chinese text see Tseng-ting ssu-fa li-kuei [Judicial Regulations, Enlarged Edition], ed. by Shao-sung, (Peking: Ministry of Justice, 1922).

13 For Chinese text see Tseng-ting kuo-min cheng-fu ssu-fa li-kuei [Judicial Regulations of the National Government, Enlarged Edition], ed. by Councilor's Office of the Ministry of Justice (Nan-king: Ministry of Justice, 1933).

14 Chung-hua Min-kuo liu-fa li-yu pʻan chieh ta-chʻüan [The Comprehensive Collection of the Six Codes of the Republic of China, Including Rationale, Decisions, and Explanation], ed. by Kʻai-chou, Chʻen (Taipei: Ta-hsing yin-shu-kuan, 1958), III, 469475. The translation, done by Fuller, Lawrence W. and Fisher, Henry A., is taken from Laws of the Republic of China; First Series—Major Laws (Taipei, 1961). According to Chʻen, in order to qualify as tzu-shou the offender must (1) have committed the offense himself; (2) confessed before its discovery; (3) made such confession to the authorities or to the victim; (4) submitted himself for trial. Van der Valk, op. cit., pp. 385–391, discusses a number of special provisions which modify this general provision regarding tzu-shou.

15 Chung-hua min-kuo liu-fa li-yu pʻan chieh ta-chʻüan, III, 470–471.

16 Ibid., III, 474.

17 During the early years of the Meiji Restoration the influence of traditional Chinese law predominated. The general statute concerning tzu-shou contained in the Code of 1870 is very similar to that of Chʻing China. The revised version of this code published in 1873 contains some changes. For example, in Article 59 instead of outright remission of punishment the reward for voluntary surrender and confession was reduction by two degrees. The major change in Japanese criminal law took place in 1881 with the publication of a new code based on the Napoleonic Code of 1810. Here (Articles 85–88) the text of the law concerning tzu-shou was greatly shortened and the basic reward was limited to a reduction by one degree. The current law published in 1907 merely states (Article 42) that in case of tzu-shou punishment shall be reduced.

18 “Chia-chin su-fan kung-tso, chcng-chʻü erh- chʻi ko-ming chan-cheng yüan-man sheng-li” [Intensify the Work of Eradicating Counterrevolutionaries and Attaining Full Victory in the Second Revolutionary War]. Document No. 293 (Reel 14), p. 2, of the so-called Chʻen Chʻeng Collection (Shih- so-tzu-liao-shih kung-fei tzu-liao) microfilm by the Hoover Institution on War, Revolution, and Peace, Stanford, California.

19 “Kuan-yü su-chʻü su-fan kung-tso chüeh-yi an.” Chʻen Chʻeng Collection, Document No. 292 (Reel 14), p.

20 “Chung-yang kuan-yü su-fan kung-tso chien-yüeh chüeh-yi.” Chʻen Chʻeng Collection, Document No. 291 (Reel 14), p. 5.

21 “Chung-hua Su-wei-ai Kung-ho-kuo cheng-chih fan-ko-ming tʻiao-li (tsao-an).” Chʻen Chʻeng Collection, Document No. 281 (Reel 6).

22 Executive Committee order no. 26, “Cheng- chih tʻan-wu yü Iang-fei hsing-wei pan-fa.” Chʻen Chʻeng Collection, Document No. 1146 (Reel 16).

23 “Chung-hua Su-wei-ai Kung-ho-kuo cheng- chih fan-ko-ming tʻiao-li.” Contained in Su-wei-ai fa-tien;ti erh chi [Soviet Laws; Second Collection]. Chʻen Chʻeng Collection, Document No. 1146 (Reel 16).

24 Tai-hang chʻü ssu-fa kung-tso kai-kuang. Published by die Tʻai-hang Administrative Office, May 1946, pp. 2–3.

25 Ibid., pp. 47 ff. See also Chieh-fang jih-pao [Liberation Daily, Yenan], Jan. 16, 1945, p. 4, for a detailed description of the thought reform process then used in the prisons. It is almost identical with that I experienced while imprisoned in Peking during the years 1951–1955. See Allyn, and Rickett, Adele, Prisoners of Liberation (New York: Cameron Associates, 1957).

26 Kʻang-Jih Ken-chü-ti cheng-tsʻe tʻiao-li hui-chi, Shan-Kan-Ning chih pu [Compendium of Policies and Statutes of the Anti-Japanese Border Regions, Shensi-Kansu-Ninghsia Section]. Published by Shensi-Kansu-Ninghsia Border Region Government, Pref. dated July 18, 1942, III, 756.

27 See Hsien-hsing ja-lü hui-chi [Compendium of Current Laws], compiled by the Administrative Committee of the Shansi, Chahar, Hopei Border Region, 1945, pp. 207–210, 313–315, 365–367, 370–372; Kang-Jih Ken-chü-ti cheng-tsʻe tʻiao-li hui-chi, Chin-Chʻa-Chi chih pu [Compendium of Policies and Statutes of the Anti-Japanese Border Region, Shansi, Chahar, Hopei Section], pp. 458–460, 467–468, 471–475, and Shan-Kan-Ning chih pu, III, 733–735. 777–780.

28 This was reiterated in the “Common Program”of September 30, 1949, which served as a temporary constitution for the new People's Republic of China.

29 Selected Works of Mao Tse-tung (Peking: Foreign Languages Press, 1967), IV, 418.

30 ”Chung-hua Jen-min Kung-ho-kuo cheng-chih fan-ko-ming tʻiao-li,” contained in Chung-hua Jen-min Kung-ho-kuo fa-kuei hsüan-chi [Selected Laws and Regulations of the People's Republic of China] (Peking, 1957), pp. 257258. See also Blaustein, Albert P., Fundamental Legal Documents of Communist China (South Hackensack, New Jersey: Fred B. Rothman & Co., 1962), pp. 215221. Unfortunately, the translation he uses is faulty.

31 “Fang-hai kuo-chia huo-pi chih-tsui chan- hsing tʻiao-li,” contained in Chung-hua Jen-min Kung-ho-kuo fa-kuei hsüan-chi, p. 269. See Blaustein, op. cit., p. 233. Again the translation is faulty.

32 “Chung-hua Jen-min Kung-ho-kuo cheng-chih tʻan-wu tʻiao-li,” Article 5, contained in Chung-hua Jen-min Kung-ho-kuo fa-kuei hsüan-chi, p. 265. See Blaustein, op. cit., pp. 227–233. Again the translation is faulty. An administrative punishment meant a demotion in rank or position, or a demerit against one's record.

33 Chung-hua Jen-min Kung-ho-kuo hsing-fa tsung-tse chiang-yi [Lectures on the General Principles of Criminal Law in the People's Republic of China], prepared by the Department of Criminal Law Teaching of the Central School of Politics and Law for Cadres (Peking, 1958), pp. 220221. Translated by Joint Publications Research Services: 13331, March 30, 1962 (Washington, D. C: U. S. Department of Commerce, Office of Technical Services), pp. 191–192.

34 The Three-Anti or San-fan Movement was waged among government officials, personnel of state-owned industries, and members of the Communist Party against corruption, waste, and bureaucracy. Businessmen were the target of the Five-Anti or Wu-fan Movement in an attack on bribery, tax evasion, theft of state assets, cheating in labor and materials, and stealing state economic intelligence.

35 According to the Shanghai Chieh-fang jih-pao [Liberation Daily], February 1, 1952, p. 2, over 9,000 Five-Anti offenders who had made confessions were exempted from punishment.

36 See the speech by the then Minister of Public Security, Lo Jui-chʻing, in the Peking Kuang-ming jih-pao [Enlightenment Daily] of February 2, 1952, p. 1.

37 Kuang-ming jih-pao, February 2, 1952, p. I.

39 In these cases merit involved either the exposure of crimes committed by other persons or exceptional performance in their own work subsequent to the commission of their offense plus a willingness to make compensation for the amount embezzled or accepted in bribes.

40 See for example, the case of a Kuomintang spy, Chang Yi, who was sent to the mainland to carry out espionage in 1954. He turned himself in in February 1956 and as a result was not only exempted from punishment but was given a “material” reward because in addition to making a full confession of his own activities he exposed a number of other Kuomintang agents and counterrevolutionaries. Kuang-ming jih-pao, April 24, 1956, p. 1.

41 pp. 191–192.

42 1957. No. 4, pp. 10–18. A translation by the author is soon to appear in the English-language journal Chinese Law and Government.

43 For a discussion of the effects of the Anti-Rightist Movement see Cohen, op. cit., pp. 14–18 and passim.

44 Ning, op. cit., p. 11.1.

45 Ibid. In many of the cases accepted as tzu-shou appearing in die press, the offender had been urged to make his confession by friends, relatives or even members of his work unit who had discovered his offense. See, for example, the case of a son who successfully urged his father to turn himself in. Kuang-ming jih-pao, May 15, 1956, p. 3.

46 Ibid., p. 11.2. Ning states that in eighty percent of the cases of voluntary confession during the campaign to wipe out counterrevolutionaries in 1955–56, the authorities already had substantial evidence against the offender.

47 Ibid., p. 16.1.

48 Ning, p. 13.1.

49 Ning, p. 13.1–2, cites the cases of a counterrevolutionary who, after being arrested in February 1950, killed a militiaman and escaped with his gun. In December of the same year he was arrested and brought to trial only to escape again. In October 1955 he surrendered and made a voluntary confession but the court refused to consider this as a case of tzu-shou.

50 Ibid., p. 12.1.

51 Ibid., p. 14.1–2.

52 Ibid., p. 15.1–2.

53 Ibid., p. 17.1–2.

54 Ibid., p. 12.2.

55 Ibid., p. 10.1.

56 See Cohen, op. cit., pp. 238–353 and 587–639.

57 For a discussion of this language problem in general, see Finkelstein, David, “The Language of Communist China's Criminal Law,” The Journal of Asian Studies, XXVIII, 3 (May 1968), 503521.

58 The China Quarterly, 27 (July–Sept. 1966), 192.

59 Kuo later came under attack but was able to weather the storm which swept away most of the other cultural leaders, and at the twentieth anniversary ceremonies (October 1, 1969) was reported among the important personages attending.

60 See the account of Ma Sitson in Life, June 2, 1967, pp. 25–26. According to this account, Ma felt he had nothing to confess even though it should have been clear to him that the Central Music Academy of which he was president, was certain to be attacked as a bourgeois institution and even though he had been drawing a salary as president of the Academy for several years without performing any duties in that capacity. After his friends urged him to make a confession, he had his daughter write one for him which still did not admit to any wrong but simply expressed a willingness to reform.

61 Delivered April I and adopted April 14, 1969. See Peking Review, Special Issue, April 28, 1969, pp. 21–22.

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