Reform And Practices Of Criminal Trial In The Rear Area During Anti-Japanese War

Based on the judicial files in the collections of Chongqing Archives, this thesisundertake the approaches of the legal history and sociology to present the actual status ofcriminal justice in the war-unaffected area during the anti-Japanese war from the prospectiveof system and judicial practices. Meanwhile, the author explains the characteristic of thecriminal judicial in the war time and also tries to undermine its legal value and socialsignificance. This paper is special and unique for its adaptation of large amount of originaljudicial files to study on the judicial practices of criminal trials that is less concerned by theacademics during the period of anti-Japanese war at the war-unaffected area.In November,1937, the national government moved to Chongqing as the war capital forthe purpose of long-term resistance. Afterwards, the Party, government and militaryauthorities and a large number of factories and schools followed the national government toChongqing. The Chongqing centered anti-Japanese strategy began shown its form. Then,government agencies, industrial and mining enterprises and officials, community leaders andlegal elite, together with industrial workers migrated to Chongqing which caused thechongqing urban population dramatically increased.War-generated refugees poured into the war-unaffected area which led to theunemployment rate climbing and homeless refugees and social unstable factors increasing.Corruption and bureaucratic capital heist disabled the national government wartime economiccontrol policy and caused soaring prices and inflation in the war-unaffected area. Peopledlived in a miserable life, the social polarization was worsening, and the social contradictionswere increasingly sharp. To centralize resistance strength, purify the urban living environment,and stable social order in time of war, the national government and the Chongqinggovernment abolished the corrupt customs of drug abuse, whore and gambling and promotedsocial relief. They advocated "the new life movement" as the criterion of new customs. All ofthese comprehensive management and measures had a positive effect on the Anti-JapaneseWar. However, the social and economic environment was greatly changed by the war,accompanied with the low efficiency of national government administration and corruptbureaucracy, coupled with the growing gap between rich and poor, together with the feudalforces of gang and the impact of the new lifestyle and the collapse of the traditional moral, thecriminal and illegal behavior was increasing rapidly, which directly led to the war-unaffected area criminal dispute increased continuously. The criminal case at courts of all levels wasrising year by year. The serious crime situation harmed the political, economic and socialorder of the war-unaffected area and damaged the national government military interests anddirectly destroyed people’s safety and property security which was against the anti-Japanesewar. Therefore, to depress all forms of crime is becoming another way to support theanti-Japanese war at the war-unaffected area.Facing the complicated and changing social situation and arduous task of theAnti-Japanese War and with reference to the actual war time social, and economic status, thenational government carried out a large scale of legislation adjustment in the substantive lawand procedural law trying to adapt to the war-time situation, stable the social order andregulate various social relations. The national government also introduced a large number ofcriminal liability clause and protected interests of ruling class by means of judicialpunishment. In particular, the national government introduced a large number of laws andregulations (special law), part of which were titled the words as "wartime" and "very period”.Meanwhile, the government introduced or revised the criminal charges on corruption, robbers,collaborators and drug abuse, breach of food administration, breach of military service,violation of price controls, violation of illegal salt regulations, violation of state laws,violation of income tax. At the same time the national government took effort to simplify thelitigation procedure and adopt the remedy measures. Nevertheless, the national governmentconsidered that judicial judgment was not sufficient to cope with the upheaval situation.Constrained by law, the court took cumbersome process to close the case in long time span.Thus, the national government tried to strengthen the military court to limit judicialjurisdiction and handed most of the special criminal case to a military court. During the timeof war, military court could handle the criminal case in an efficient way. However, it wasconstantly questioned because of its simple procedure, one-sided pursuit of quick close andignoring the procedure and evidence which led to the case was closed in haste and fraud way.Under the pressure of foreign affairs and the requirement of the politics, the nationalgovernment issued the Special criminal litigation regulation in1944(the final stage ofanti-Japanese war) which ruled that the special criminal case with the exception of soldierdefendant shall shift to common court.Before the outbreak of the national resistance, the national government judicial systemhad become more and more mature in the perspective of the origin, structure and legislation technology of the judicial judgment, the establishment of the new court and the requirementfor capable judges. However, under the condition of high crime frequency and the increasingcriminal rate and coupled with court shorthanded and funds inadequacy, its shortcoming of“overlap in trial, complex in procedure and cost in waste” made the court at all levels work inlow efficiency and the cases were suspended and dragged for judicial judgment. Therefore,driven by a variety of internal and external forces, the national government began to recognizethe necessity and urgency of wartime legal reform, and carried out a series of adjustment andreform to adapt to the new situation result from the changeable society. For the purpose ofstrengthening the anti-Japanese strength, and better function of the judicial system for theanti-Japanese war, the national government took the wartime and the local condition intoconsideration and took adjustment on the criminal justice system which mainly concludedsimplify the judicial procedure, trial assizes, improve procuratorial system, set up the localcourt and assigned counsel etc.By analysising the specific criminal cases based on the wartime Chongqing judicial fileof courts at all levels, we can see that the national government’s criminal justice system hasthe distinctive wartime features, such as the tendency of heavy penalty, the priority of judicialefficiency, the simplified procedure and the tolerance on duty crime, transfer cases tojurisdiction etc. By studying the criminal trial reform and practice at the war-unaffected area,we can find war criminal trial practice has completed the following tasks at thewar-unaffected area: First, punishing the crime directly related to the war, such as punishingthe traitors and spies severely for the purpose of better resistance, punishing the malpracticeon military service for better recruit resources guarantee, punishing the behavior of break thesoldier’s marriage for the unity of the troops and punishing the behavior of illegal taxcollection and theft military supply to ensure of logistics supply and military victory. Second,severely punishing the crime and dissolve all kinds of disputes to maintain social order andguarantee public personal property security. Such as the management of official corruptionand malfeasance has objectively promoted the bureaucracy readjust and restricted theadministrative power to ensure the good wartime political environment. Third, punishing thebehavior of wartime economic regulation to guarantee the stable economic environment andrepresent the national general mobilization policy. Fourth, the lawsuit efficiency is improvedand the civil dispute is properly handled which reduces the burdens of parties, promote thejudicial prestige and reveal the equity of the law and justice. A variety of criminal trial reform related measures has been implemented and the unity of social effect and the legal effect havebeen achieved. For instance, the trial procedure is simplified, the efficiency of lawsuit hasgreatly improved, the cost is reduced and social resources are saved. Implementation of themilitary trial punishes the criminal activities in a fast and severe manner which maintains thesocial order. The procurator is motivated to impeach the crime to maintain social stability. Theaccumulated cases have been reduced and the process of case trial has been accelerated toappease public mind and resolve disputes etc.The criminal trial reform and the criminal punishment practice had its own distinctivefeatures under specific historical conditions and social background, which complied with therequirement of the age, conformed to the social, political, economical and cultural practice inthe war-unaffected area and represented certain progress value. Regardless of that, it still hadsome historical limitations, such as the pursuit of efficiency during the process of criminaltrial without proper protection of the victims’ rights and offender’s rational procedural rights,thus, both parties’ litigation rights were constrained. In the special criminal cases, thedefendant’s right of appealing was deprived, judicial supervision procedures were simplifiedand the execution was fast in action which made the criminal trial become the tool to maintainthe Kuomintang dictatorship rule. The national government has been flaunt judicialindependence was constantly decay and the judicial subject to the single demand of thepolitical, military and administration. The concept of judicial independence they used toproud of was becoming as a utilitarian tool and so forth. These were worthy of reflection andreference.To fully reveal the actual criminal trial practice at the war-unaffected area and to deepenthe litigation system, it’s for sure that this paper also needs to be supplemented and incited,especially the litigation file at other area during the anti-Japanese war. In addition, it’s alsonecessary to further study the influence of the national government war criminal trial practiceon the post war criminal legal system and the criminal legal system of People’s Republic ofChina.