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Voluntary Surrender and Confession in Chinese Law: The Problem of Continuity
Abstract
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.
... 1046-771 BC), a compilation of ancient Chinese history, which has the statement that offenders who have voluntarily surrendered shall not be sentenced to the capital penalty even though they have committed the most severe crimes (ji dao ji jue gu; shi nai bu ke sha) (Li & Jin, 2010). However, the statement was more regarded as the origin of "voluntary surrender" (zi shou) in modern Chinese laws (Yang, 2015), which was different from but always mixed with the "voluntary confession" (tan bai) contained in the "leniency to those who confess" (Rickett, 1971). More documents date the voluntary confession's prototype back to the Tang Dynasty (618-907) when the voluntary confession system appeared as an extension and refinement of the voluntary surrender system. ...
... For example, the Provisional New Criminal Code, mainly compiled under the guidance of a Japanese legal expert Okada Asataro, was promulgated by the Beiyang Government and implemented in 1912 (Yang, 2009). It stipulated that defendants who voluntarily surrender and confess to the authorities before their offense is discovered shall have the original punishment reduced by one degree (Rickett, 1971). Then, the Nationalist Government promulgated the 1928 and 1935 Criminal Code of the ROC, which included similar statements on voluntary surrender and voluntary confession to the 1912 criminal code (Rickett, 1971). ...
... It stipulated that defendants who voluntarily surrender and confess to the authorities before their offense is discovered shall have the original punishment reduced by one degree (Rickett, 1971). Then, the Nationalist Government promulgated the 1928 and 1935 Criminal Code of the ROC, which included similar statements on voluntary surrender and voluntary confession to the 1912 criminal code (Rickett, 1971). Communist-controlled China (1927-1949, established by the Chinese Communist Party (CCP), also stipulated provisions for the confession system. ...
... The Tang Code provided detailed statutory clarifications of penalty reduction or remission for offenders who confessed or surrendered voluntarily according to the seriousness of their offences(Rickett 1971;Ren 2007). ...
This paper addresses Chinese interrogation rules from historical and comparative perspectives by relating them to the very different development of interrogation procedure in Europe. A fuller understanding of the evolution of the rules in both contexts is relevant to the present day controversy concerning the universal versus relative nature of interrogation fairness. The comparative analysis reveals that, in fact, the influence of ancient Greek and Chinese civilizations resulted in a great difference between Europe and China regarding legal cultures and institutional arrangements for criminal interrogation procedure. Considering future legal reforms in China, and given the very different historical and institutional context, the likelihood seems low that an ‘autonomous version’ of the right to remain silent and the privilege against self-incrimination will develop on China’s very different soil. However, traditional native resources are also available to legal reformers to ensure a cooperative interviewing style in criminal questioning, and eliminate police-coerced confessions.
... The Tang Code provided detailed statutory clarifications of penalty reduction or remission for offenders who confessed or surrendered voluntarily according to the seriousness of their offences(Rickett, 1971;Ren, 1997). ...
This paper presents a historical analysis of Chinese legal theories and the evolution of criminal interrogation rules from the pre-Han to the reform era. A fuller understanding of the evolution of rules is doubtless relevant to the present day’s controversy in China’s legal reforms surrounding the right to remain silent during interrogation and the privilege against self-incrimination. The historical analysis reveals that the imperial social context which once morally legitimized judicial torture in Chinese criminal justice is very much alive even today. For future legal reforms in China, there are barriers in the current social context, which seem to be unconducive for the right to remain silent and the privilege against self-incrimination. But, traditional native resources are also available to legal reformers to ensure better protection of the rights of the suspect subject to police interrogation, and to eliminate police-coerced confessions.
In the historical context of the confrontation between the Shaan-Gan-Ning Border Region and the Guomindang-controlled areas, the system of “turning oneself in” 自首 greatly impacted the struggle between the Guomindang and the Chinese Communist Party. This system was not only a “soft” means of governance that weakened the enemy without resorting to force, but also a weapon in the struggle to obtain secret information, to divide and rule, and to expand power. As a part of the political system in the border region, the policy of leniency toward offenders was widely used. In actual practice, there were not only special criminal laws for dealing with confessors to specified crimes, but also some unusual forms, such as “public confession declarations” 坦白布告 and even “confession campaigns” 坦白运动. Since the system was applied in an environment of confrontation and struggle, its instrumentalist side became increasingly prominent, while its theoretical moralism side became progressively weaker. On the one hand, this revolutionary change differentiates it from its traditional counterpart rooted in Confucianism as reflected in the practical moralism of traditional Chinese law; on the other hand, the continuity and change of the practice may reveal the historical basis for its growing degeneration.
On July 1, 1979, during the Second Session of the Fifth National People's Congress of the People's Republic of China (PRC), seven important laws were passed. Among these new laws were complete codes of criminal law and criminal procedure.
The approval of these laws—particularly the codes of criminal law and procedure—is, to anyone with more than a casual interest in the PRC's legal system, an act of great significance. The Chinese themselves certainly view this event as being quite important and have devoted considerable time and effort to propagandizing its meaning for their society.
The word ‘tenkō’ has been applied at various times to everything from the Meiji intellectual’s rediscovery of Japanese culture to the post-war student activist’s acceptance of a job with Mitsubishi.1 It refers to the act of renouncing an ideological commitment under pressure. The current usage of the term originated in the 1930s, when the majority of imprisoned members of the Japan Communist Party publicly renounced their party affiliations. The fact that an ideological commitment was given up, and the fact that the persons involved were in prison because of that commitment, suggests that tenkō is related to thought control.
In 1935, a Chinese woman by the name of Shi Jianqiao murdered the notorious warlord Sun Chuanfang as he prayed in a Buddhist temple. This riveting work of history examines this well-publicized crime and the highly sensationalized trial of the killer. In a fascinating investigation of the media, political, and judicial records surrounding this cause célèbre, Eugenia Lean shows how Shi Jianqiao planned not only to avenge the death of her father, but also to attract media attention and galvanize public support. Lean traces the rise of a new sentiment-"public sympathy"-in early twentieth-century China, a sentiment that ultimately served to exonerate the assassin. The book sheds new light on the political significance of emotions, the powerful influence of sensational media, modern law in China, and the gendered nature of modernity.
This book reopens the question of consular jurisdiction and extraterritoriality in China and Japan. The book combines recent findings in Qing history on the nature of ethnicity and law with the history of the treaty ports in both China and Japan, especially Shanghai, Yokohama, and Nagasaki. Extraterritoriality was not implanted into East Asia as a ready-made product but developed in a dialogue with local precedents, local understandings of power, and local institutions, which are best understood within the complex triangular relationship between China, Japan and the West. A close reading of treaty texts and other relevant documents suggests that a Qing institution for the adjudication for Manchu-Chinese disputes served as the model for both the International Mixed Court in Shanghai and the extraterritorial arrangements in Sino-Japanese Treaty of Tianjin in 1871. The adaptability of Qing legal procedure provided for a relatively seamless transition into the treaty port era, which would have momentous consequences for China's national sovereignty in the twentieth century. There was no parallel to this development in the Japanese case. Instead, Japanese authorities chose not to integrate consular courts and mixed courts into the indigenous legal order, and as a consequence, consular jurisdiction remained an alien body in the Japanese state, and Japanese policymakers were determined to keep it that way.
Recent studies on the origins of various Chinese Communist administrative techniques have revealed a striking continuity between present methods and the Communists' pre-1949 experiments in the Kiangsi Soviet (1927–34) and in the Border Regions of the north-west (1935–45).1 The Kiangsi and Yenan experiences are particularly vital to an under-standing of the Party's penal theories, since it was during the 1927–49 period that the Communists formulated their policies concerning release, leniency, production, democratic management, education and thought reform. Of particular interest is the gradual elaboration, during a war-time situation, of their controversial procedures of thought control or “ brainwashing.” While a description of the development of these policies from 1927–49 is interesting in itself, this article aims in addition to analyse how changes in technique were a response to environmental and political factors. It can be shown that prison policies varied in a direct relationship to the changing economic, political and military environment; consequently, the present penal policies of the Chinese Communist Party (CCP) cannot be understood without reference to their origin in the physical and psychological environment of Kiangsi and Yenan.
At the end of WWII, U.S. occupation forces transformed Japan from an autocratic polity into a constitutional democracy. Part of the plan called for transplanting the constitutional right to silence for criminal defendants, to replace the traditional Japanese emphasis on confessions. The failure of this effort is the starting point in this essay for reflecting on the possibilities of ethical deliberation across cultures. It is argued that U.S. legal experts failed to appreciate what is compelling in the Japanese view that citizens have a moral duty to be accountable to one another for their conduct. To facilitate this appreciation, the essay assesses standard justifications of the right to silence in the U.S. and discusses the duty of confession in a context more accessible to U.S. scholars—college tribunals—which is a resource for reflecting on Japanese practice. Connecting these different contexts is the claim that, in determining whether a right (such as the right to silence) should be recognized or not, the crucial determinant is the nature of valued relationships. Rights are not freestanding attachments of individuals but constituent components of associational ideals.
It is no wonder that the world is baffled by Communist China's “cultural Revolution.” Not only do the specialists who are skilled in reading between the lines of Chinese Communist utterances disagree about many aspects of the present upheaval, those whose task it is merely to read the. plain lines themselves also seem unable to agree even on the basic meaning of what they are reading. We are informed, for instance, that “eight Red Guards and a member of the Pioneers … had been killed by ‘class enemies,’ according to a Red Guard announcement.” Later we are told of “doubts about a report that nine youths were killed last week. Chinese-language experts said the characters on a poster reporting the incident could mean also that the nine young Chinese had been injured.” There were more doubts about whether Lo Jui-ch'ing was “taken away” or was “arrested” and still more about whether T'ao Chu was “led” or “dragged” through the streets.
Voluntary Surrender in Chinese Law
- van der Valk