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8.09.2015

Scattered Thoughts on Xi Jinping's Hot Words


Since January 2015 at least, the official website of the Chinese Communist Party has been carrying articles on the vocabulary Xi Jinping uses to talk about corruption and politics writ large. Two examples are "Xi Jinping's Anticorruption Great Vernacular" (习近平的反腐“大白话”), and “Two years' of Xi Jinping's hot words” (这两年,习近平带火的12个热词). These and similar articles have gone unnoticed, perhaps because they are a collection of quotes from Xi Jinping's books (as the one on the Three Severe and Three Real ), and therefore they are deemed to provide little factual information on ongoing events. 


It is well known how Xi Jinping's prose and speeches are often enhanced by quotations from the classics. His references to Confucius and other past philosophers have led commentators to advance the theses of a comeback of Confucian ideas, or the resurrection of legalist philosophies, or both. These comments and analyses apart, Xi Jinping's quotations are normally taken with more than just a grain of skepticism. Western scholars of Chinese law-and-politics have interpreted his references to the past as signaling the enduring influence of Maoism, albeit under a different guise. Alternatively, Xi's quotes have been dismissed as Communist gobbledygook, ridiculed or outright ignored. Not everybody reads the Renmin Ribao or Qiushi on a regular basis - these publications do not make an easy reading. Sometimes, even Chinese friends admit to not knowing what locutions such as “Three Severe and Three Real” or “Three Represents” mean. 


The launch of new values, policies or coordinated actions (the Four Nevers, the Three Severe and Three Real, Socialist Core Values, Balancing Severity and Leniency etc.) has been normally met either with indifference or with criticism.  Criticism has moved along two lines. 


The first one of them holds that the vagueness and broadness of labels as “The Four Nevers” or any other legal or political formulation are intentional, and used to reach certain outcomes. The choice of a vague language can indeed be intentional but, statements to the effect that the choice of vague words in the law, or of a vague term to refer to a policy are indeed intentional carry with them the important implication that readers can glimpse inside the mind of the author, and come to know why the author made such a choice. The point of whether the author's intention can be known, and how, remains debated - with such debates taking place outside of the domain of Chinese law. Various approaches, evidences and techniques may be used to know the author's intention. This endeavour is valuable if and only if it is assumed that the intention of those who first named a policy or drafted a piece of legislation is knowable, and that their intention is more important than the intention of those who interpret and implement policies, or enforce the law. Aside from this, polysemy is a property of all those words that have not just one but multiple meanings. “Vagueness” may be an inherent feature of language as such, rather than being a prerogative of post-1949 Chinese political language, or a deliberate choice of the law-maker. 


This feature of language raises the question about the methods Western scholars of Chinese law and Chinese politics are using to deal with pluralities and ambiguities of meaning in political-legal language. A significant risk is that the encounter with words which are ambiguous, polysemic or vague may prompt the Western interpreter to single out only one of their meanings, normally the meaning that is closer to the political and legal context within which the Western interpreter operates, and use that meaning either to tease out alleged contradictions internal policy, or to provide an interpretation of what “Balancing Severity and Leniency” (kuanyan xiangji 宽严相济) or “Socialist Core Values” means. As a result, the Western interpreter will either move a rhetorical challenge to a policy, or else construct an interpretation that may not correspond to how “Balancing Severity and Leniency” is understood and used by all those who, having spent years in the criminal justice system, and having had ample exposure to this chengyu in their daily lives, have a tacit knowledge of what “Balancing Severity of Leniency” refers to. 


The second line of criticism has denounced the periodic resurfacing of quotes from the classics as signalling a return to ideologies of the past, such as Confucianism, Legalism, or Maoism. That a quote such as “balancing severity and leniency” (kuanyan xiangji 宽严相济) appears in political discourse may not necessarily signal that, rhetorical moves apart, Confucianism is making a comeback as an ideology. An understanding of what “balancing severity and leniency” meant in this or that classical text should be propaedeutic to any further analysis of criminal policy. This understanding should be augmented by the consideration that any vocabulary, no matter how broad and rich it may be, will always be limited in its scope. Given how words that can be used to express new ideas in political discourse are given and limited, changes in policy can only be articulated through pre-existing words, four-letter words (chengyu), quotations from the classics, or by drawing on China's tradition of political slogans. 


Despite their iconographically unchanging nature, Confucius or Hanfeizi quotes or even the “dagger handle” (刀把子 daobazi) of political-legal organs (a dagger handle which, according to Xi Jinping's quotations, should be firmly held within the hands of the Party), do acquire a different meaning over time. As it is being argued from various quarters in continental Europe, Eastern Europe and Russia, perhaps more nuanced attempts to understand the subtleties of the language of politics-and-law could be made.

8.04.2015

最高人民检察院职务犯罪侦查工作八项禁令

关于印发《最高人民检察院职务犯罪侦查工作八项禁令》的通知

各省、自治区、直辖市人民检察院,军事检察院,新疆生产建设兵团人民检察院:
  现将《最高人民检察院职务犯罪侦查工作八项禁令》印发给你们,请严格贯彻执行。
  最 高 人 民 检 察 院
  201584

  最高人民检察院职务犯罪侦查工作八项禁令


  为规范司法行为,防范违法违规办案,保障公正司法,依据《刑事诉讼法》、《人民检察院刑事诉讼规则(试行)》和《检察人员纪律处分条例(试行)》、《检察人员执法过错责任追究条例》,现颁布检察机关职务犯罪侦查工作必须严格执行的八项禁令:

  一、严禁擅自处置案件线索、随意初查和在初查中对被调查对象采取限制人身、财产权利的强制性措施。违反者给予警告、记过或者记大过处分;情节较重的,给予降级或者撤职处分;情节严重的,给予开除处分;构成犯罪的,依法追究刑事责任。

  二、严禁违法使用指定居所监视居住措施。对未报经上一级人民检察院审查批准,或扩大适用范围,或在不符合规定的场所等故意规避法律使用指定居所监视居住措施的,根据情节和后果追究决策者和执行者的纪律、法律责任。

  三、严禁违法干涉涉案企业正常生产经营活动。对非法插手工程建设、干预工程招投标,或非法插手经济纠纷,或超越职权办案,或接受赞助、报销费用、吃拿卡要等违法违纪行为,给予记过或者记大过处分;情节较重的,给予降级或者撤职处分;情节严重的,给予开除处分;构成犯罪的,依法追究刑事责任。

  四、严禁违法违规处理查封、扣押、冻结涉案财物。对任意查封、扣押、冻结公私财产,或不依法及时返还扣押、冻结款物,或侵吞、挪用、私分、私存、调换、外借、压价收购,或其他违法违规处理扣押、冻结款物及其孳息的,依纪依法追究决策者和执行者的纪律、法律责任。导致国家赔偿的,依法向责任人员追偿。

  五、严禁阻止或者妨碍律师依法会见犯罪嫌疑人。对于法律规定无需会见许可的案件,不得人为设置障碍,干扰、影响律师会见;对于特别重大贿赂犯罪案件,应根据办案情况合理安排律师会见。对违反规定限制、干扰、影响律师会见的,根据情节和后果,给予警告或记过处分。

  六、严禁在未全程同步录音录像情况下进行讯问。对于讯问活动没有执行全程同步录音录像的案件,不得移送审查起诉;已经移送审查起诉的,公诉部门有权拒绝受理或者退回侦查部门。

  七、严禁刑讯逼供以及其他非法取证行为。对于采取刑讯逼供和以威胁、引诱、欺骗等非法方法获取犯罪嫌疑人供述和证人证言的,一律不得作为证据使用;收集物证、书证不符合法定程序,可能影响司法公正,不能补正或者无法做出合理解释的,一律不得作为证据使用。违反者给予记过或者记大过处分;情节较重的,给予降级或者撤职处分;情节严重的,给予开除处分;构成犯罪的,依法追究刑事责任。

  八、严禁违反办案安全纪律。对违法违规办案或者严重不负责任造成犯罪嫌疑人脱逃、伤残、自杀或者证人伤残、自杀等办案安全事故的,对指挥者、执行者,一律先停职再依纪依法处理。


  对因管理不善或指挥不当导致检察人员违反上述八项禁令的,严肃追究领导责任。

Supreme People's Procuratorate Eight Prohibitions in the Investigation of Official Crimes



Notice issuing the "Supreme People's Procuratorate Eight Prohibitions in the Investigation of Official Crimes"

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

We hereby issue the "Supreme People's Procuratorate Eight Prohibitions in the Investigation of Official Crimes", please implement them strictly. 

Supreme People's Procuratorate

4 August 2015

Supreme People's Procuratorate Eight Prohibitions in the Investigation of Official Crimes

The Supreme People's Procuratorate Eight Prohibitions in the Investigation of Official Crimes are hereby issued on the basis of the "Criminal Procedure Law", the "Supreme People's Procuratorate Rules on Criminal Procedure (for trial implementation)" and the "Regulations on the Disciplinary Punishment of Procuratorial Personnel (for trial implementation)" to regulate judicial action, prevent the unlawful handling of cases, safeguard a just judiciary.

1. Handling leads to a case without permission, unsystematic preliminary investigation and the adoption of measures limiting personal freedom on a target of investigation during preliminary investigation are prohibited. Violators will receive a warning, a demerit or a major demerit. Where circumstances are rather serious, they will be demoted or removed from office. Where circumstances are particularly serious, they will be expelled. Where an offense is constituted, their criminal responsibility will be prosecuted according to the law. 

2. The unlawful use of residential surveillance at a designated place is prohibited. Where residential surveillance at a designated place is used without having been reported to, examined and approved by the next higher level People's Procuratorate, or where its scope of application is broadened, or where it is enforced at a place not in conformity with the rules, or where the law has intentionally been evaded, the disciplinary and legal responsibility of whoever has made strategic decisions and whoever has enforced them will be prosecuted according to the circumstances and the consequences. 

3. The unlawful interference in the normal business activity of enterprises involved in a case is prohibited. Whoever illegally interferes in construction projects, intervenes in a public project bid, or illegally interferes in commercial disputes, or handles a case exceeding his authority, or receives financial assistance, expenditure reimbursements, accepts banquet invitations or takes property or obstructs others to obtain bribes and commits other acts that violate the law and discipline will receive a demerit or a major demerit. Where circumstances are rather serious, they will be demoted or removed from office. Where circumstances are serious, they will be expelled. Where an offense is constituted, their criminal responsibility will be prosecuted according to the law. 

4. The unlawful disposal of property related to a case and that has been sealed, seized, or frozen is prohibited. Where private or public property is arbitrarily sealed, seized or frozen, or seized or frozen property is not promptly returned according to the law, or seized or frozen property and its fruits are embezzled, misappropriated, distributed, deposited, exchanged, lent out, purchased at a reduced price, or otherwise illegally disposed of, the disciplinary and legal responsibility of whoever has made strategic decisions and whoever has enforced them will be prosecuted according to discipline and the law. Where state compensation occurs, recovery will be pursued according to the law. 

5. Hindering or obstructing the lawful meeting between a lawyer and a criminal suspect is prohibited. In cases where the law stipulates that a meeting permit is not necessary, a meeting with a lawyer must not be interfered with or influenced by setting up artificial hindrances. In particularly big cases of corruption , meeting with a lawyer must be arranged reasonably according to the circumstances of case-handling. Whoever contravenes the rules and limits, interferes with or influences a meeting with a lawyer shall, according to the circumstances and the consequences, receive a warning or a major demerit. 

6. Conducing an interrogation without uninterrupted synchronous audio and video recording is prohibited. Cases where the uninterrupted and synchronous audio and video recording has not occurred shall not be transferred for examination before prosecution. Where such a case has already been transferred for examination before prosecution, prosecution departments are entitled to dismiss the case, or remand it to investigation departments. 

7. The extortion of a confession through torture and other acts of illegal collection of evidence are prohibited. Where a confession from a criminal suspect, and oral testimony from a witness have been obtained through torture and threat, enticement, deceit or other unlawful means they shall not be used as evidence. Where physical evidence and documentary evidence has been gathered outside of statutory procedure, and it may influence judicial fairness, and it cannot be integrated or it is not possible to give a reasonable explanation, it shall not be used as evidence. Violators will receive a warning, a demerit or a major demerit. Where circumstances are rather serious, they will be demoted or removed from office. Where circumstances are particularly serious, they will be expelled. Where an offense is constituted, their criminal responsibility will be prosecuted according to the law.

8. Violating the safety discipline of case-handling is prohibited. Where a case is handled unlawfully or gravely irresponsibly, causing a criminal suspect to escape, become wounded or commit suicide, or a witness to become wounded or commit suicide, or other safety incidents in case-handling, whoever has directed, enforced shall be first suspended from duties and then dealt with according to discipline and the law. 

Where bad management or improper conduct cause procuratorial personnel to violate the above eight prohibitions, the leader responsibility will be prosecuted.