Police Powers and Control in the People's Republic of China: The History of Shoushen


POLICE POWERS AND CONTROL
IN THE PEOPLE'S REPUBLIC OF CHINA:

THE HISTORY OF SHOUSHEN

KAM C. WONG'

I. INTRODUCTION

In 1961, the public security bureau of the People's Republic of China
("PRC" or "China") adopted a measure called shourong shencha
("shoushen"), meaning "sheltering for examination," to deal with the
increasing flow of migrants throughout China.' Shoushen was designed as
a measure whereby the police could detain and investigate suspected
criminals who had no known status or confirmed residence or suspected
"itinerant criminals" (liucuan fan).2

In the 1960s, shoushen was used primarily as a means of population
control. By the 1980s, it was being used to promote criminal justice and
social control. More recently, shoushen has been used as a measure for
collecting debts. Shoushen was never a legislatively sanctioned police
power, being at all times since its inception purely an administrative
measure. Shoushen was never officially adopted by the National People's
Congress ("NPC") or by the NPC Standing Committee, but shoushen
received favorable legal interpretations from the NPC.' As originally

* B.A. (Hons.) 1975, Indiana University; J.D. 1977; Dip., National Institute of Trial

Advocacy, 1980; M.A. 1988, Ph.D. candidate, State University of New York (Albany) - School of
Criminal Justice; Member, State of Michigan Bar. I thank the Universities Service Center (USC) at
the Chinese University of Hong Kong for offering me a challenging place to collect my data and
nurture my thoughts as a visiting scholar (1993-1994). Particularly, I thank Dr. Hsin Chi Huan, the
Director, and Ms. Jean Hung the Assistant Director of the USC. for their indefatigable help and
assistance. An abbreviated version of this paper has been presented at the usc as a luncheon seminar,
entitled: "PRC police powers and control" and as a staff seminar at the Senior Command Course,
Staff Training Institute, Correctional Services Department. Hong Kong. I am indebted to the
participants of the seminars who gave me valuable feedback.

1. For a brief history of shourong shencha [hereinafter "shoushen"], see Wang Cuihua
Bufu Suxian Diqu Xingzhengshu Gongan Chu Shourong Shencha An [7 he case of Wang Cuihua's
Refusal to Accept Sheltering for Examination by the Su Couniy District Government Administration
Police Office] [hereinafter "Case of Wang Cuihua"], in ZHONGGUO SHENPAN ANU YAOLAN
[IMPORTANT OVERVIEW OF CHINESE ADJUDICATED CASES] 1183 (1992) (hereinafter "IPORTANT
OVERVIEV OF CHINESE CASES"].

2. Guanyu Jian Qiangzhi Laodong He Shouron Shencha Liang Xiang Cuoshi Tongyi Yu
Laodong Jiaoyang De Tongzhi, Guofa (1980) 56 Hao [Circular Regarding the Merger of Labor
Reform and Investigative Detention, State Council (1980) No. 56] (promulgated February 29, 1980)
[hereinafter "State Council Circular"], in ZHONGGUO JINGCHA FALU FAGUI GUIZHANG SHIYI
DAQUAN [COMPILATION OF INTERPRETATIONS OF CHINESE POuCE LAWS, REGULATIONS AND RULES]
618-19 (1993).

3. Chuanguo Renda Changweihui Fazhi Gongzuo Weiyuanhui, Guanyu Ruhe Lijie He
Zhixing Falu Ruogan Wend De Jieda (Er) [Regarding Answers to Certain Questions Concerning
the Understanding and Execution of the Law (2)] (promulgated March 2, 1988) (hereinafter "Jiangxi
Province Answers"], in ZHONGHUA REN IN GONGHEGuO FALu GUIFANXING JIESHI JICHENG

(ZENGBU BEN) [ANNOTATED COMPmIAToN OFTHE LAWS AND RESTiCInVE INTERPRErATios OFTE



COLUMBIA JOURNAL OF ASIAN 4W

conceived, shoushen had few procedural safeguards. Eventually, the State
Council and the Ministry of Public Security issued a number of directives
concerning the proper use of shoushen, including directives covering the
jurisdictional scope, approval authority, time limits, and administration of
the practice of shoushen. However, these directives were largely
inconsistent, unclear, over-broad, and open-ended.4 The NPC Standing
Committee, the State Council, the Supreme People's Court, the Supreme
People's Procuracy, and the Ministry of Public Security all attempted to
control the exercise of shoushen, but met with little success.

On March 17, 1996, the NPC adopted the amended Criminal
Procedure Law of the People's Republic of China5 ("Criminal Procedure
Law"). The Criminal Procedure Law, while not mentioning shoushen by
name, acknowledges the functional necessity of the shoushen type of
investigative powers and accordingly provides for its regulation and
control.' With this in mind, the Criminal Procedure Law places all public
security coercive measures,7 including shoushen,8 under one unified
procedural control scheme. Henceforth the public security authority "must

PEOPLE'S REPUBLIC OF CHINA (SUPPLEMENT)] [hereinafter "COMPILATION OF LAWS AND RESTRICTIVE
INTERPRETATIONS OF THE PRC (SUPPLEMENT)"] at 8-9 (1991) (explaining that the NPC Standing
Committee has approved the use of shoushen, citing approvingly a circular promulgated in response
to a legal issue brought forth by the Jiangxi Province People's Congress Standing Committee). See
Guanyu Yange Kongii Shiyong Shourong Shencha Shouduan De Tongzhi, Gongfa (1985) 50 Hao
[Circular Regarding the Serious Control Over the Use of the Sheltering for Examination Measure,
Public Security (1985) No. 50] (promulgated July 31, 1985) [hereinafter "1985 Public Security
Circular"].

4. Chen Weidong & Zhang Tao, Shourong Shencha De Ruogan Wenti Yanjiu [Research
Into Certain Questions Regarding Sheltering for Examination], ZHONGGUO FAXUE [CHINESE LEGAL
SCIENCE], Feb. 1992, at 82-87 [hereinafter "Chen & Zhang I"].

5. The Criminal Procedure Law of the People's Republic of China adopted by the Second
Session of the Fifth National People's Congress [hereinafter "NPC"] on July 1, 1979 [hereinafter
"Criminal Procedure Law"] was amended in accordance with the "Decision on Amending The
Criminal Procedure Law of the People's Republic of China" made by the Fourth Session of the Eighth
NPC on March 17, 1996. For an unofficial English translation, see FBIS-CHI-96-069, April 9, 1996.
For a detailed discussion of the amended Criminal Procedural Law, see LAWYERS COMMITTEE FOR
HUMAN RIGHTS, OPENING TO REFORM? AN ANALYSIS OF CHINA'S REVISED CRIMINAL PROCEDURE

LAW (1996).
6. For a detailed discussion, see "Legislative response to shoushen in 1996" infra.
7. See generally Chapter VI Coercive Measures, the Criminal Procedure Law, supra note

5. The term coercive measure is not defined. Article 50 provides a contextual understanding of
coercive measures: "People's courts, people's procuratorates, and public security organs, according
to circumstances of the case, may summon a criminal suspect or defendant for detention, allow him
to obtain a guarantor and await trial out of custody, or allow him to live at home under surveillance."
Coercive measures thus conceived included police summon, investigative detention, home
surveillance, and prosecution arrest.

8. See supra note 3.

[ 10:367



POLICE POWERS AND CONTROL IN CHINA

strictly observe this law and relevant provisions" in investigating, arresting,
and detaining suspects.9

This paper explores the historical development of shoushen as an
exercise of police powers in China up to the present time. Part II details the
historical development, abuses and control of shoushen. Part I describes
the latest NPC effort in regulating and controlling the shoushen in
promulgating the amended Criminal Procedure Law. Part IV concludes by
observing that the Criminal Procedure Law is just the latest chapter in the
PRC's continuous effort to control abuse of police powers.

IX. THE H/STORY OF SHOUSHEN

A. Developments Through 1980

Shoushen was originally conceived in 1961. On November 31, 1961,
the Ministry of Public Security filed a report with the Chinese Communist
Party Central Committee entitled "A Report Regarding Resolutely
Stopping the Free Movement of the Population," calling attention to the
growing "mangliu" (floating population) problem facing China, and calling
for effective and immediate management and control of the population."0

The report noted that as a result of three years of natural catastrophes, from
1959-1961, the rural population had increasingly migrated into the cities
for food, shelter, and jobs; in short, for survival and a better life." The

9. See Criminal Procedure Law, Chapter 1, Article 3, paragraph 3, which provides, in
pertinent part: "In conducting criminal proceedings, the people's courts, the people's procuratorates,
and the public security organs must strictly observe this law and relevant provisions of other laws."
See also Article 14: "The people's courts, the people's procuratorates, and the public security organs
shall safeguard the procedural rights that participants in proceedings enjoy according to the law."

10. Guanyu Jianjue Zhizhi Renkou Ziyou Liudong De Baogao [Report Regarding
Resolutely Stopping the Free Movement of the Population] (promulgated November 31, 1961). in
ZHA ZHENJIAN, ZHONGGUO FAZHI Sixm NAN (1949-1989)) [FORTY YEARS OF THE CHINESE LEIAL
SYSTEmi (1949-1989)] 286 (1989).

11. For a short account of the population 'tug-of-war' between urban and rural China, see
Ge Xiangrdan & Qiu Weiying, ZHONGGUO MINGONG CHAO [(CHINA'S LABOR WORKER EXODUS] 167
(1990) [hereinafter "CHINA'S LABOR WoKIER -XODUS]; Report to The Second Plenary Session of
the Seventh Central Committee of the Communist Party of China (promulgated March 5, 1949), in
IV SE.EcD WORKS OF MAO TsE TUNG 368-69 (1961); see also Guanyu Quanzhi Nongmin
Mangmu Liuru Chengshi De Zhishi [Instruction Regarding Dissuading Peasants From Blindly
Moving Into Cities] (promulgated April 17, 1953), in CHINA's LABOR WORKER EXODUS, supra, at
178; Jixu Quanche 'Guanyu Quanzhi Nongmin Mangmu Liuru Chengshi De Zhishi' De Tongzhi
[Circular on the Continued Implementation of 'Instruction Regarding Dissuading the Peasants
From Blindly Moving Into the City'] (promulgated March 12, 1954). id.; Guanyu Zhizhi Nongcun
Renkou Mangmu Weiliu De Zhishi (Directive Regarding Stopping the Peasant Population From
Blindly Flowing Outward] (promulgated December 18,1957), in RENNIN RIBAO [PEOPLE'S DAILY],

1996]



COLUMBIA JOURNAL OF ASIA N LA W

report suggested a three prong attack on the problem, including the use of
shoushen

1 2

Since its inception in 1961, shoushen has never been formally
incorporated into China's regulatory scheme concerning police powers.
The 1954 Regulations of the PRC on Arrest and Detention provided the
first set of regulations on police arrest powers but did not incorporate
shoushen 3 These regulations were replaced by the 1979 Regulations of
the PRC on Arrest and Detention ("1979 Arrest Regulation"). 14 On January
1, 1980, the PRC Criminal Procedure Law provided the first
comprehensive legal framework for the exercise of police investigative and
arrest powers.15 The PRC Criminal Procedure Law was clarified by
circulars and resolutions from the Supreme People's Court and Supreme
People's Procuratorates. t6 It was also supplemented by various directives,

December 19, 1957, at 1; Shelun: Zhizhi Nongcun Renkou Mangmu Weiliu [Editotial: Stopping the
Peasant Population from Blindly Flowing Outward], in RENMIN RIBAO [PEOPLE'S DAILY], Dec. 19,
1957, at 1.

12. The other two measures were: (1) stopping people from emigrating; and (2) perfecting
the control of transportation. See Zha, supra note 10, at 286.

13. Regulations of the PRC on Arrest and Detention (adopted at the third meeting of the
Standing Committee of the National People's Congress on December 20, 1954), translated in ARREST
AND DETENTION REGULATIONS OF THE PEOPLE'S REPUBLIC OF CHINA in FHKP, 1:239-242
[hereinafter "1954 Arrest Regulations"]. See Zhao Cangbi, Guanyu Xiugal 'Zhonghua Renmin
Gongheguo Dibu Juliu Tiaoli' De Shuo Ming [Explanation on the Revision of 'Arrest and Detention
Regulations I (promulgated February 21, 1979), in ZHONGHUA RENMIN GONGHEGUO LIFA SIFA JIESHI
ANu DAIQUAN [COMPENDIUM OFLEGISLATION, JUDICIAL INTERPRETATIONS AND CASE LAWS OF THE
PEOPLE'S REPUBLIC OF CHINA] 989-90 (1990) [hereinafter "COMPENDIUM OFLEGISLATION, JUDICIAL
INTERPRETATIONS AND CASE LAWS OFTHE PRC'] (explaining that the 1954 Arrest Regulations were
practically abandoned during the Lin period from 1966-76).

14. Zhonghua Renmin Gongheguo Daibu Juliu Tiaoli [Regulations of the People's
Republic of China on Arrest and Detention] (adopted at the Sixth Meeting of the Standing Committee
of the Fifth National People's Congress and promulgated for implementation by Order No. I of the
Standing Committee of the National People's Congress on February 23, 1979), in ZHONGHUA RENMIN
GONGHEGUO FALU QUANSHU [COLLECTION OF LAWS OF THE PEOPLE'S REPUBLIC OF CHINA]
[hereinafter "COLLECTION OF LAWS OF THE PRC"] 87-93 (1989) [hereinafter "1979 Arrest
Regulations']. For an English translation, see THE LAWS OF THE PEOPLE'S REPUBLIC OF CHINA
(1979-1982) (Beijing: Foreign Language Press) 47-49. 1979 Arrest Regulations, art. 15 ("[t]he
Regulations on Arrest and Detention of the People's Republic of China promulgated on December
20, 1954 shall be invalidated simultaneously").

15. Criminal Procedure Law of the People's Republic of China (adopted July 1, 1979),
translated in CRIMINAL PROCEDURE LAW OFTHE PEOPLE'S REPUBLIC OF CHINA, THE LAWS OFTHE
PRC (1979-1982) 120-50 (1987) [hereinafter "Criminal Procedure Law"]; see RESOLUTION OF THE
STANDING COMM=ITEE OF THE NPC ON THE PLAN FOR IMPLEMENTING THE CRIMINAL PROCEDURE
LAW (adopted April 16, 1980), id. at 198-99.

16. See Guanyu Renmin Jianchayuan Dibu Juliu Renfan You Gongan Jiguan Zhixing De
Tongzhi [Circular Regarding the Arrest and Detention of Prisoners by the People's Procuracy
Should Be Conducted by the Public Security Organs] (promulgated March 27, 1979), in ZHONGGUO
GONGAN BAKE QUANSHU [CHINESE PUBLIC SECURITY ENCYCLOPEDIA) [hereinafter "PUBLIC

[10:367



POLICE POWERS AND CONTROL IN CHINA

instructions, and orders from the Ministry of Public Security. However,
except for certain circulars and directives, none of these laws explicitly
sanction shoushen, and shoushen does not appear in the PRC Constitution
(1982), the PRC Criminal Procedure Law, the PRC Criminal law, or the
1979 Arrest Regulations.

At the Third Plenum of the Eleventh Central Committee in 1978, the
Chinese Communist Party ("Party") called generally for a more reliable
and accountable legal system.18 The Ministry of Public Security responded
with its first attempt to restrict what had been an unstructured shoushen
power. The Ministry of Public Security "Circular Regarding the
Reorganization and Strengthening of Shoushen for Itinerant Criminals"
provides a rudimentary procedural framework for the employment of
shoushen by the police.' The Circular provides that shoushen detention
should be centralized' and limited.2' Shoushen should follow strict
approval procedures with a time limit? The Circular was clearly
designed as an interim measure to address a growing concern over the use
of shoushen, allowing more time for experimentation and reflection.

SEcuRITY ENCYcLOPEDIA"] 831 (1989); Guanyu Renmin Fayuan Jueding Juliu Renfan You Gongan
Jiguan Ziixing De Juti Banfa De Tongzhi (Circular on Concrete Measures Requiring the Police to
Execute People's Court Decisions to Arrest an Offender] (promulgated March 27, 1979). id.

17. See Gonganju Yushen Gongzuo Guize (Ministry of Public Security Regulations on
Examination] (adopted August 20, 1979), in CoUMcrloN OF LAws OFTHE PRC, supra note 14, at
266-74; Gongan Jiguan Banli Xingshi Anjian Chengxu Guiding [Stipulations on Criminal Case
Handling Procedures by the Public Security Organs] (promulgated March 10, 1989), in ZHONGHUA
RENMIN GONGHEGUO JiANCHAYEwu QUANSHU [Tm COMPREHENSiVY BUSINEsS MANUALOF PRC
PROCURATORATE] 499-512 (1990) [hereinafter "BUsINESs MANUALOFTH!EPRC'].

18. See "Zhongguo gongchangdang di shjie zhongyang weiyuanhui disanci quani huiyi
gongbao" [Public declaration of the Chinese Communist Party, Eleventh Central Committee, Third
Plenary Session] (passed on December 22, 1978), in Di SHISAN JIE SANZHONG QUANHIl YILAI
ZHONGYAO WEnXIAN XUANBIAN [COLLECTION OF MWPORTANT DOCUMTS SINCE THE ELEvENTH
CENrRALCoMMnITEE,THiRDPENARYSESsION] (Thonggong zhongyang dangxiao chubanshe, 1931
(RJ 05321)), 1-11 ("In order to protect people's democracy, it is necessary to strengthen the socialist
legal system." at 11).

19. Guanyu Zhengdun He Jiaqiang Dui Liucuan Fanzui Fenzi Shourong Shencha
Gongzuo De Tongzhi, Gongfa (1978) 87 Hao [Circular Regarding the Reorganization and
Strengthening of Shourong Shencha for Itinerant Criminals, Public Security (1978) No. 87]
(promulgated November 1, 1978), in PUBuc SECURrrY ENCYCLOPEDIA, supra note 16, at 224.

20. Id. (Shourong centers should be located only at local (difang) and city first class public
security organs. Those established at the county level are to be abolished).

21. Id (Shoushen should be used only against current liucuan fan or important liucuan
fan).

22. Id. (Shoushen should first be fully documented by the local police, then endorsed by
the fenju or county public security, and finally approved by the local or city public security bureaus.
Further, complicated cases should be discussed by the Shoushen leadership and approved by the local
or city public security bureaus.

23. Id. (Shourong should not last for more than one month).

19961



COLUMBIA JOURNAL OF ASIAN LAW

Beginning in 1978 and through 1980, the Supreme People's Court
used its constitutional interpretation power to issue eight key opinions
dealing with shoushen.24 Substantively, the Court's pronouncements served
as official endorsements of shoushen, previously a dubious legal practice.
In making explicit legal provision for offsetting time spent during shoushen
against subsequent criminal sentences, the Court implicitly acknowledged
the validity and legitimacy of shoushen. The Court also clarified that any
illegal investigative detention measure, no matter under what name or for
what purpose, constitutes a deprivation of freedom and may not be used.
The Court demonstrated its concern for the abusive uses and deleterious
effects of onerous powers of investigative detention, particularly during the
Gang of Four era. Thus, these opinions served important education and
propaganda functions.

The opinions of the Supreme People's Court affirm that by 1978,
shoushen had captured the attention of the PRC political leadership. The
political leadership was very concerned with the abuse of police
authority.' It was committed to putting any unfettered exercise of police
power, especially shoushen, under close scrutiny. The respective actions
taken on shoushen , first by the Ministry of Public Security and later by the
Supreme People's Court, should be read in the context of an overall
attempt, and a coordinated effort, by the political authority to limit the use
of the police power through law and education.26 And, in a still larger
context, they reflected the nation's attempt to introduce the "rule-of-law.'

24. See, e.g., Guanyu Zuifan Beibu Qian Zai Kanshou Suo Geli Shencha Riqi Kefou Zhedi
Xingqi De Pifu, Xian Gaofa (1978) 18 Hao Qingshi [Official Reply Regarding Whether the Time
Spent by Offenders During Investigative Separation in Detention Centers Can Be Used to Offset
Against a Criminal Sentence, Xian Higher People's Court (1978) Request for Instruction No. 18],
mentioned in CoMPILTION OF LAWS AND RESTRICTIVE INTERPRETATIONS OF THE PRC, at 121.

25. The concern with police abuse of power is best expressed in Peng Zhen's address to
the NPC in introducing the 'seven draft laws.' See Guanyu Qige Falu Caoan De Shuoming
(Explanation Regarding the Seven Draft Laws] (adopted July 26, 1979), in COMPENDIUM OF
LEGISLATION, JUDICIAL.INTERPRETATIONS AND CASE LAWS OFTHE PRC, supra note 13, at 55-57.

26. See RENMIN RUHEYU GONGAN DAJIADAO (How THE PEOPLE CAN DEAL WITH PuBlUC
SECURITY] 4-6 (1990) (describing the magnitude of police powers).

27. See Li Xue, Ln Woguo Xingshi Zhengce Yu Xingfa De Guanxi [A Discussion of the
Relationship Between Our Country's Criminal Policy and Criminal Law], FAXUE [LEGAL STUDIES],
Aug. 1992, at 91-97; ZHANG YoUYu, GUANYU SHEHui Zu FAZHi DE RUOGAN WETmn (REGARDING
CERTAIN QUESTIONS ON SOCIALIST LEGAL SYSTEM] (1980) (there continues to be debate about the
nature and functions of law in China). For a discussion of Peng Zhen's rule-by-law philosophy, see
Pitman B. Potter & Peng Zhen, Evolving Views on Party Organization and law, in CAROLE L.
HAMRIN & TIMOTHY CHEEK, CHINA'S ESTABISHMENT INTELLEcTuALs 21-51 (1986). For a more
recent study on Peng Then's rule-by-law philosophy, see PITMAN B. POTTER, FROM LENINIST
DISCIPLINETO SOCIALIST LEGALISM, IN USC SEMINAR SERIES No. 10 (Hong Kong Institute of Asia-
Pacific Studies, Chinese University of Hong Kong, 1995). During the anti-crime campaigns (1983-

[10:367



POLICE POWERS AND CONTROL IN CHINA

B. Shoushen in the 1980s

Since the economic opening of China in the 1980s, the police have
faced a sharply increasing crime ratel as police resources have shrunk and
police responsibilities have grown3, 9 Along with market reforms, the
number of economic crimes, such as theft and fraud, have increased. -0 One
of the most pressing problems is the mangliu3' and liucuan problem. 32

1987) criminal procedure rules were dispensed with to expedite the handling of criminals. See
Guanyu Xunsu Shenpan Yanzhong Weihai Shehui Zhian De Fanzui Fenzi De Chengxu (Regarding
the Procedure for Prompt Adjudication of Cases Involving Criminals Who Seriously Endanger
Public Security] (adopted Sept. 2, 1983), in ZHONGHUA RENMIN GONGHEGUO FALu GUIFANXING
JIESHI JICHENG [COMPILATION OF LAWS AND RESTRICTIVE INTERPRETATIONS OFTHEPRC] supra,
note 24 (1990).

28. Xin 7zongguo Fazhilianshe SishiNian Yao Lan: 1949-1988 (1990) [New China Legal
System Construction: Overview of Significant Events Over 40 Years: 1949.1988] 409 (1990) (the
concern with crime led to successive nationwide anti-crime champaign (1983-1987)). See Quanguo
Gaoji Renmin Fayuan Chang Zztotan Hui Jiyao [Summary of Nationwide Higher People's Court
President's Meeting] (published May 1, 1989). in COwMPLATION OF LAWS AND RES-RICIwE
INTERP ErATIONS OFTHEPRC (SUPPLEMENT), supra note 3, at 193-94. (demonstrating that overall
criminal cases handled by the people's courts during the first quarter of 1989 increased by 14.75,.
including an increase in major burglaries and thefts of 78.7%, robberies of 59.98%, and murders of
13.05%).

29. See GuanyuJiaqiang Gonglian FaBumen Fame Shoura Guanli He Baozheng Banan
Jingfei De Tongzh4 Cayizi (1990) 79 Hao [Circular Regarding Strengthening the Management of
Penalties and Confiscation and Guaranteeing of Case Handing Expenditure of the Police,
Procuratorate, Court Departments, Ministry of Finance (1990) No. 79] (promulgated October 9,
1990), in COMPnATION OF LAWS AND RESTRICTIONS OFTHE PRC (SUPPLEF-mET), supra note 3, at
12 (cited to by the Supreme People's Court, and alluding to problems of insufficient case handling
expenses leading to various illegal efforts to obtain operational funding, including the imposition of
fines instead of legal punishments). Id For a discussion on the changing role and responsibility of the
PRC police in the economic reform, see Kam C. Vong, Public Security Reform in China in the
1990s, CHINA REVIEV (1994), ch. 5, 5.5 to 5.44, esp. 1-5 (explaining that the PRC Police faces
changes in its mission, values, powers, structure and process).

30. Theft cases grew from 744,374 cases in 1981 to 1,122,105 cases in 1991. Serious
thefts grew from 16,873 cases in 1981 to 355,201 cases in 1994. Fraud cases grew from 18,665 in
1981 to 57,706 in 1994. For 1981 figures, see LAW YEAR BOOK OF CHINA (1987), 887, Table 18.
For 1994 figures, see LAw YEAR BOOK OF CHINA (1996), 1069, Table 1.

31. "Mangliu," meaning "blind flow," has come to signify a significant group of people,
mainly younger men, who move in and out of Chinese cities looking for work. See generally Li
Mengbai, LIUDONGRENKOU Di DACHENGSHI FAZHAN DE YINGXIANG HE DUICE [EPFECr OF
FLOATING POPULATION ON THE DEVELOPMENT OF BIG CITIES AND POSSIBLE SOLUTIONS] 32-74
(1991) (Statistical Analysis of the Problem); CHINA'S LABOR WORKER EXODUS, supra note 11, at
167-82 (humanistic account); Willy Wo, Comment, SOUTH CHINA MORNING POST, Aug. 10, 1993.
at 3 (describing mangliu as civilian workers, mostly rural peasants, who go to cities en masse to look
for job opportunities).

32. Guanyu Zai Daji Liucuan Fanzui Huodong Zhong Xuyao Zhuii Jige Wenti De Tongzhi
(Circular Regarding Paying Attention to Certain Questions When Cracking Down on Cases
Involving Itinerant Criminals] (promulgated December 13, 1989), in CO.MENDIUM OFLEGISLATION,
JUDICtALInERPRErATIONS AND CASELAWS OFTHE PRC, supra note 13, at 601-02 (explaining that

19963



COLUMBIA JOURNAL OF ASIAN LAW

The mangliu are part of an even larger group known as the "floating
population" (renkou liudong) who move in and out of the cities for a
variety of reasons, including visiting, shopping, conducting business or
working.33 This floating population problem is particularly serious for
certain regions of China, including coastal areas such as Guangzhou,
industrial cities such as Shanghai, economic zones such as Shenzhen, and
transportation hubs such as Beijing.'"

economic opening and social reforms led to a huge increase in population mobility, resulting in
itinerant criminals intermingling with the population and taking advantage of slack public security
controls).

33. The 'floating population' can be defined as those people who have no proper permanent
residence and stay in the city to conduct any number of activities, from social visits to business. See
Li Mengbai, supra note 31, at 6. A survey of 74 cities and township (43 cities and 31 towns) in 1986
showed mass movement of rural people into the cities and towns since the economic reform in 1979:

Table 1: People moving in cities and towns as a percentage of local residence
Year Big cities* Small Cities*

1977-1978
1979-1980
1981-1982
1983-1984
1985-1986

12.5%
19.5%
9.7%
15.6%
17.0%

12.6%
20.2%
19.8%
21.1%
23.6%

Towns

6.0%
12.5%
11.3%
12.0%
16.3%

Source: Zhongguo Renkou Qianyi Yu Chengshihua Yanjiu [Chinese Population Movement and
Urbanization Research] 8 (1988).
*Big cities include especially big cities, and small cities include medium size cities.

34. According to one survey, the average daily population movement into Shanghai in 1988
was 2.09 million people, into Beijing in 1988 was 1.31 million, into Guangzhou in 1989 was 1.30
million and into Wuhan in 1990 was 1.20 million. Li Mengbai, supra note 31, at 8.

[10:367



POLICE POWERS AND CONTROL IN CHINA

Statistically, mangliu are predominately male,35 below 35 years of
age,36 and have less than average education.' They are predominantly
manual laborers, and hold temporary or unstable jobs3 They
predominantly congregate in city centers or on the outskirts of town. 9

35. Table 2: Sex make up of mobile populations in 5 cities in 1988 (extracted from 11
cities)

Male

3804595
5568667
627033
616687
458967
342264

Female

1487251
260133
192618
297533
295608
161606

Li Mengbai, supra note 31, at 13.

36. Table 3: Age distribution of mobile population:

18-35 35-50

Ratio: female= 1

2.56
2.14
3.25
2.07
1.55
2.12

Male 100% 6.32% 55.6% 30.38% 7.7%
Female 100% 15.27% 54.01% 18.25% 12.48%

L

37. Table 4: Education achievement of Shanghai residents vs. mobile population (1988)

Educational achievement
illiterate

primary school
junior middle school
senior middle school

university
university graduates

Residents
7.0%
18.8%
41.3%
25.3%
5.6%
2.0%

Mobile population
9.4%

24.0%
47.6%
14.6%
3.3%
0.6%

See Li Mengbai, supra note 31, at 14.

38. A Beijing survey showed that 94% of the mobile population who moved there engaged
in building construction, restaurant services, agriculture trading, coal manufacturing and
transportation, refuse hauling, road maintenance, and toilet cleaning. They were not entitled to social
benefits and were subjected to the vicissitudes of the markets. See id. at 16.

39. Table 5: Beijing mobile population geographic distribution
Year Town Center Suburban District Remote Suburb
1979 63.56% 30.57% 5.87%
1987 17.5% 57.00% 25.50%

See Id. at 18.

Cities

Total
Shanghai
Beijing

Guanzhou
Wuhan

Hangzhou

19961



COLUMBIA JOURNAL OF ASIAN LAW

The mangliu population creates social problems as the massive influx
of non-local residents burdens the cities' limited physical infrastructure -

such as roads, communications, electrical utilities, and the water supply.
In addition, the limits of the cities' fragile social support services such as
birth control, education, medicine, food subsidies, public security, and
environmental protection are challenged and often surpassed.' Mangliu
exist outside the residential registration system.4' It has been suggested
that the mangliu problem destabilizes Chinese society and threatens the
normative order, resulting in recurring social harms.42 Mangliu criminals
are also disproportionately involved in more serious crimes.43 Mangliu are
also said to be populated with petty thieves, hooligans, gamblers, drug
addicts, and prostitutes, and living on the fringes of society and at the
expense of local communities.' 4 More significantly, crimes committed by
mangliu appear to be increasing.45

Shoushen came to the rescue as an all-purpose crime fighting and
social control device. Shoushen was used in the 1980s as a stop gap
measure between the failing traditional social control networks and the
nascent criminal justice system. A Ministry of Public Security circular
recognized that shoushen was designed to deal with "those who reside in

40. Id. at 58-73.
41. For an excellent discussion of the Chinese social control system, see MICHAELDUTTON,

POLICING AND PUNISHMENT IN CHINA (1992).
42. As demonstrates by the table below, they commit a disproportionate amount of crimes.

Table 6: Mobile criminals as a percentage of all criminals in seven major cities.

Cities Date Mobile criminals as a % of total
criminals

Hangzhou Jan. - Nov., 1989 90.0%
Shenyang 1988 69.8%

Guangzhou 1989 57.9%
Chongqing 1988 42.9%
Shanghai 1989 31.4%
Wuhan 1988 33.0%
Tianjin Jan. - July, 1989 23.0%

See Li Mengbai, supra note 31, at 49.

43. In 1989, mangliu criminals were responsible for 1/3 of all robberies, 1/8 of all murders,
and 2/3 of all serious fraud and misrepresentation cases in Shanghai. Id.

44. Id.
45. In Guangzhou, crimes by mangliu grew from 109 criminal arrests in 1983 to 5703 in

1988, an increase of 520%. Id. at 48. Similarly, in Shanghai, mangliu criminal arrests as a percentage
of the total arrests grew from 6.8% in 1983 (778 arrests) to 31.4% in 1989 (5285 arrests), an increase
of roughly 520 times. Id. at 160. The figures over seven years figures were: 6.8% in 1983; 10.8% in
1984; 11.3% in 1985; 17.8% in 1986; 19.9% in 1987; 29.9% in 1988; 31.4% 1989. Id.

[ 10:367



POLICE POWERS AND CONTROL IN CHINA

the village and have come to commit crimes in the cities, along the
railway, and at large factories and mines."6 Eventually, shoushen extended
the reach of the traditional rural social control -network into the urban
centers and brought administrative control to what was considered an
otherwise unruly and mobile crowd.

C. 1980 State Council Circular

The growing use of shoushen as an administrative social control and
crime fighting measure prompted the State Council to issue a circular
("State Council Circular") on February 19, 1980, providing for the
placement and treatment of shoushen persons in re-education camps.4

The State Council Circular defines the permissible scope and
jurisdictional reach of shoushen and sets forth some minimal guidelines for
its use. Essentially, it addresses the question, which had previously escaped
serious attention, of who the intended targets of shoushen are. The State
Council Circular has been interpreted to require that two separate
conditions be met before shoushen be allowed: the person must have
committed a minor legal violation or criminal conduct,43 and the person
must belong to at least one of the following five categories: (a) one who
does not give a true name or address; (b) one who is without a known
origin (laili burning); (c) one who is suspected of committing crimes from
place to place (licuan zuoan); (d) one who is suspected of committing

46. Guanyu Zuohao Laojiao Gongzuo De Baogao (Jielu) (Report Regarding Perfecting
Labor Education Work (Summary)], in GONGAN JIGuAN BANuI LAODONG JIAOYAN ANIAN FAGUI
HUMIAN [COLLECnON OFPUBUC SECURITY REGULATIONS ON HANDUNG LABOR EDUcmXIO:N CASES].
at 11-16 (1992) (calling for the expeditious handling of itinerant criminals, instructing against
prolonged investigations and advising against requiring unnecessary evidentiary proof, calling for the
preventing of suspected itinerant criminals from escaping and committing more crimes, allowing for
the uninterrupted investigation of suspects, and providing for the work, education and reform of a
group of economically displaced mangliu).

47. State Council Circular, supra note 2. See Guanyu Xian, Zhen Shoushen Laodong
Jiaoyan He Diqu Juban Laodong Jiaoyang Changsuo Wenti De Pifu, 80 Gongfa (Jiao) 137 Hao
[Official Reply to Question Regarding County, Township Labor Education Farm, and Local Area
Establishing Labor Education Farm, 80 Public Security (Education) No. 137] (by which all those
subject to shoushen were supposed to be processed at shoushen farms especially established for
shoushen, set up by the respective provinces, autonomous regions. independent cities and larger cities,
such that there is no separate facility for shoushen at the local level; the labor-education farm is to
be supervised and administered by a labor-reform committee which is staffed with people from civil
administration, public security and labor departments).

48. This excludes the use of shoushen to deal with serious criminals, who should be
processed by compulsory measures under the PRC Criminal Procedure and corresponding Arrest and
Detention Regulations (1979).

19961



COLUMBIA JOURNAL OF ASIAN L4W

crimes repeatedly (duoci zuoan); or (e) one who is suspected of committing
crimes in a group (jiehuo zuoan).4 9

Having been promulgated by the State Council, the State Council
Circular is significant because it serves and has been cited as an
empowering administrative regulation for shoushen.50 While the State
Council Circular does not confront directly the issue of the legality of
shoushen, in providing for the placement of those subject to shoushen, it
arguably legitimizes the use of shoushen to deal with itinerant criminals.
The State Council Circular is also significant in that it provides, for the
firstitime, a clearly articulated operational definition of shoushen power,
defining when shoushen is to be used and to whom shoushen applies. It
further functions as a jurisdictional benchmark for the regulation and
control of its exercise.

However, the State Council Circular leaves many questions
unanswered, such as where the legal foundation of the power comes from,
whether the measure is to be regarded as criminal or administrative, how
the measure is to be reconciled with existing police powers to investigate,
detain, and arrest individuals under the PRC Criminal Procedure Law, and
which investigative measure is preferred when alternative measures are
available, as in the case with minor criminals, such that if both measures
may alternatively be used, such discretionary use of powers could properly
be controlled."

D. 1985 Ministry of Public Security Circular

Having become disturbed by the indiscriminate and abusive use of
shoushen in carrying out the then on-going anti-crime campaign, the
Ministry of Public Security released a report in 1985.52 The Ministry

49. See Case 104: "Weifa shoushen zhiren sunhai, yingdang peichang " (Harm resulting
from illegal sheltering for examining, should be compensated] (Liu Jiaqiang vs. Public Security of
A Certain City), in XINGZHENG PEICHANG ANLIE XUANPING (SELECTION OF ADMINISTRATIVE
COMPENSATION CASES) 179-84 (1992) [hereinafter "ADMINISTRATIVE COMPENSATION CASES"].

50. Guanyu Gongan Jiguan Guanche Shishi 'Xingcheng Susongfa' De Ruogan Wenti De
Tongzhi [Circular Regarding Certain Questions on the Thorough Implementation of the
'Administrative Procedure Law], in COMPILATION OF LAWS AND RESTRICTiVE INTERPRTATIONS

OF THE PRC (SUPPLEMENT), supra note 3, at 45-49 [hereinafter "Administrative Procedure Law
Circular"] (pronouncing that before any new shoushen law is promulgated, the public security is
supposed to follow the State Council Circular). See Guanyu Shoushen De Pifu Yiju De Fuyi Wenti
[On the Question Regarding the Reconsideration of the Determination Basis for Sheltering for
Examination], id. at 46.

51. See Chen & Zhang 1, supra note 4.
52. 1985 Public Security Circular, supra note 3.

[10:367



POLICE POWERS AND CONTROL IN CHINA

observed that shoushen had been inappropriately used over the past 20
years as a substitution for investigation (daijin), adjudication (daishen),
and punishment (daixing).s In response, the Ministry of Public Security
promulgated a circular ("1985 Public Security Circular"), defining
shoushen and detailing procedural guidelines for its use."

First, the 1985 Public Security Circular provides that the people's
procuratorate is responsible for shoushen supervision. In addition,
according to the 1985 Public Security Circular, shoushen should only be
used against itinerant criminals and criminal suspects who refuse to
disclose their true names, addresses, places of origin and backgrounds.
Shoushen should not be used against local offenders when their status is un-
mistaken or the evidence against them is clearly established. Also,
shoushen must be approved by the county level public security party
section or party committee.

Regarding the timing and duration of shoushen investigations, the
1985 Public Security Circular provides that shoushen subjects must be
questioned within twenty-four hours, and the family and work unit
(danwei) of the individual subject to shoushen must be informed within
twenty-four hours of the reasons for the shoushen and the location of the
investigation. Further, the shoushen examination must be completed within
one month. If the case is too complicated or involves an inter-province or
inter-regional crime, the shoushen period can be extended to two months
upon the approval of a higher level public security bureau. For a further
extension, the public security bureau or department of the province,
autonomous region or independent municipality must give its approval,
with the maximum period of shoushen not to exceed three months. The
time for calculating the shoushen period for suspects who refuse to give
their names or addresses commences when the name and address have been
established.

Regarding the examination itself, the 1985 Public Security Circular
provides that the examination should be based on evidence, and that
hitting, yelling, insults, and torture are not allowed. Those subject to
shoushen enjoy civil rights as guaranteed by the PRC Constitution and
laws. They are to be separated from regular criminals, given a right to
complain against any violation of their rights, and must be given adequate
food and lodging just like any other local suspect.

53. Id.
54. Id.

19961



COLUMBIA JOURNAL OFASIANLAW

Regarding the outcome of a shoushen investigation, the 1985 Public
Security Circular provides that those who are found guilty of crimes are to
be prosecuted according to the PRC Criminal Procedure Law, and should
be subject to labor education or administrative sanctions if they are deemed
necessary. In cases of wrongful detention, the mistake should be openly
acknowledged and steps taken to ameliorate any adverse consequences
(shanhou gongzuo).

The 1985 Public Security Circular replaced all previous circulars,
instructions, decisions, and notices on the subject matter of shoushen issued
by the national or local public security organs.55 The 1985 Public Security
Circular has since been accepted as the de facto "administrative procedure"
for shoushen. It was applied by the Public Security of Railroads, the Civil
Aviation Administration, and both the Ministries of Forestry and
Transportation.56 It has been referred to by the NPC Standing Committee, 7

adopted by the people's procuratorate, 58 cited by the people's courts, and
accepted by legal scholars:59

However, the 1985 Public Security Circular continued to fuel debate
over the nature, scope, interpretation and constitutionality of shoushen, the
main contention focusing on whether shoushen should be considered a
criminal or administrative measure, and whether there was a need to
provide for a separate administrative detention power beyond the powers
provided by the PRC Criminal Procedure Law.60

55. Id. art. 9 (providing that "[a]ll previous circulars and instructions by the Ministry of
Public Security or local public security bureaus are void to the extent to which they conflict with this
circular").

56. See Guanyu Tielu Ruhe Zhixing Dui Shoushen Duixiang Yanchang Shoushen Qixian
Shenpi Wenti De Qingshi Baogao De Pifu [Official Reply to Report Requesting for Instruction
Regarding How Railways Can Extend Sheltering for Examination Period for Examination Subjects]
October 16, 1985, in PuBnuc SECURrrY ENCYCLOPEDIA, supra note 16, at 879.

57. Jiangxi Province Answers, supra note 3.
58. Guanyu Renmin ianchayuan Zhijie Shouli Zhencha De Tanwu, Huilu, Qinquan, Duzhi

Deng FanzuiAnjian Bushiyong Shoushen De Tongzhi [Circular Regarding not Using Sheltering for
Examination for the Crimes of Corruption, Bribery, Infringement of Rights, and Dereliction of Duty
Cases Directly Investigated by the Supreme People's Procuracy] (promulgated 21 March, 1990)
[hereinafter "Supreme People's Procuratorate Circular"], in ZHONGGUO FALu NIANJIAN (1991)
[LAW YEARBOOK OF CHINA (1991)], at 623 (1991) (incorporating, by reference, the 1985 Public
Security Circular, supra note 2).

59. Chen Weidong & 2hang Tao, Zai Tan Shourong Shencha Buyi Feichu [The Taking-In
Examination System Must not be Abolished] in ZHONGGuO FAXUE, March, 1993, at 113 [hereinafter
"Chen & Zhang II"].

60. Wang Xinxin, Shoushen Zhidu Yingyu Feichu [The Taking-in and Examination System
Must be Abolished] in ZHONGGuO FAXUE, March, 1993, at 110. Chen & Zhang I, supra note 59, at
113.

[10:367



POLICE POWERS AND CONTROL IN CHINA

E. Limitation of Shoushen into the 1990s

Into the 1990s, the Chinese government has remained interested in
curbing abusive uses of the shoushen power.6' The overall trend has been
toward more restrictive uses of shoushen, and in particular, the trend has
moved away from using shoushen in commercial disputes.62 On September
8, 1990, the Ministry of Public Security, Supreme People's Procuracy, and
the Supreme People's Court issued a notice ("Notice"), summing up the
general sentiment against the use of shoushen in commercial cases.6 The
Notice cited twelve reported cases of illegal detention from Shenzhen,
Guangdong province in 1989, and noted that illegal detention cases had
arisen elsewhere. 64

61. See Yang Yichen, Zui Gao Renmin Jianchayuan Gongzuo Baogao [The Supreme
People's Procuratorate Work Report] (promulgated April 1, 1988), in ZHO,0GUO JtANCHA NIANlAN
(1989) 'PROCURATORIAL YEARBOOK OF CHNA (1989)], at 21-28; LAW YEARBOOK OF CHINA 802
(1991) (reporting on the Frst national Procuracy meeting on "rights violation" and dereliction of
duty, held in Beijing from April 3-9,1990); LAWYEARBOOKOF CHINA 720 (1992) (reporting on the
Second national procuracy meeting on "rights violation" and dereliction of duty held in Beijing from
May 18-23, 1990).

62. Guanyu Gongan Jiguan Bude Ferfa Yuequan Ganyu Jingji Anjian De Chuli Tongzhi,
(89) Gong (Zhi) Di 30 Hao [Circular Regarding the Fact that Public Security Organs Should not
Interfere Illegally with Commercial Dispute Cases], in COMPILATION OF LAyS AND RESTRICIVE
INTERPRETATIONS OF THE PRC, supra note 3, at 22 (a circular issued by the Ministry of Public
Security in April, 1989, strictly forbidding public security from using shoushen and other forms of
detention to interfere with commercial disputes). See Guanyu Chachu Zal Shangmao Huodong Z7ong
Yi Bangila, Kouliu Renzhi Deng Fangfa Bihuan Zhaiwu Feifa Jujin Taren De Anjian Tongbao,
Gaojainfa Fazi (1990) Di Er Hao (Circulation of Notice Regarding Investigating and Handling
Cases of Illegal Detention and Using of Kidnaping and Holding of Hostages to Coerce Repayment
of Debts in Commercial Activities], id. (in which the Supreme People's Procuracy reinforced the
general theme of the 1985 Public Security circular). See also Gonganbu guanyu yanjin gongan
jiguan chashoujingii doufen weifa zhuaren de tongzi [Ministry of Public Security Notice Regarding
Strictly Forbidding Public Security Organs in Interfering with Economic Disputes and Illegally
detaining People] (promulgated on April 25, 1992) (Gong Tong Zhi (1992) 50 hao) in ZHoNGGUo
JINGCHAFALuFAGUI GUIZItANG SHIn DAQUAN, 1327-1328. The Notice observed that the Circular
Regarding the Fact that Public Security Organs Should Not Interfere with Commercial Dispute Cases
has not been strictly followed. Public security organs was admonished to (1) stay away from
contractual cases and commercial disputes; (2) not use shourong shencha in commercial cases and
against foreigners; (3) not place commercial agents under custody as hostage for debt collection; (4)
follow proper procedures when conducting police business outside ones jurisdiction.) Id.. at 1328.

63. "Circular of Notice Regarding the Situation of Illegal Detention Cases in Commercial
and Trade Disputes " [Guanyu Zai Shangye AMaoyizhong Feifa Jujin Anjian Qingkuan de tongzhi]
in CoMPILATIONoFLAWs AND RESTRICTIVE INTERPRETATIONS OF THE PRC (SUppLEMiENT), supra,

note 3, at 20-22.
64. Four of the cases involved local people, four others involved people from other areas

of Guangdong, and the rest were from outside the province. Five of the 12 cases involved public
security and procuratorial officials.

19961



COLUMBIA JOURNAL OFASIAN LAW

After the discussion of the cases, the Notice went on to explain:

There were also some local public security officers and
procurators who exceeded their legal authority by unilaterally
protecting local economic interests in the handling of economic
disputes. They treated what should have been mere commercial
disputes as economic crimes and used illegal detention to help
certain work units or individuals collect their debts. These
practices violate state laws and party discipline. They severely
interfere with citizens' personal freedom and destroy the normal
functioning of the economic order. The public security organs,
procurator offices, and courts should pay special attention and
adopt effective measures to prevent and rectify the problem.65

On November 6, 1990, the Ministry of Public Security issued another
circular ("1990 Public Security Circular"), expounding the abuses of
shoushen in aiding local economic interests.' The 1990 Public Security
Circular noted that public security officers violated their jurisdictional
authority by treating contract and debt disputes as economic crimes
involving fraud and using shoushen and detention to coerce the repayment
of debts. In so doing, the 1990 Public Security Circular noted that public
security officers applied shoushen to the wrong people, and often detained
those people for three to four months, and sometimes even up to one or two
years, which is much longer than the one month period allowed by law.

The 1990s witnessed a tightening of control over who can carry out
shoushen, who can be made a target of shoushen, when one subject to
shoushen may be interrogated, how a target of shoushen can complain of
abuses, and what remedies were available to an aggrieved party.

On December 13, 1989, the Ministry of Public Security, Supreme
People's Procuracy, and Supreme People's Court issued a Circular dealing
with the handling of cases involving itinerant criminals ("Itinerant

65. ld See Guo Debing Bufu Xinjiang Jinghexian Gonganju Shoushen Juedingan [Case
of Guodebing Refusal to Except the Sheltering for Examination Determination of Xinjiang Province
Jinghe County Public Security Bureau] (1990) [hereinafter "Case of Guo Debing"], in IMPORTANT
OVERVIEW OF CHINESE CASES, supra note 1, at 1177.

66. Guanyu Qieshi Jiuzheng Gongan Jiguan Banli Zhapian Caiwu Anjian Zhong De
Buzheng Zhifeng De Zhongzhi [Circular Regarding Realistically Correcting Inappropriate Style of
Public Security Organs in Handling Swindling of Goods and Money Cases] (promulgated November
6, 1990), in COMPILATION OF LAWS AND RESTRICTIONS OF THE PRC (SUPPLEMENT), supra note 3,
at 103-6.

[10:367



POLICE POWERS AND CONTROL IN CHINA

Criminals Circular").6 The Itinerant Criminals Circular acknowledged the
difficulties in the investigation, arrest, prosecution, and adjudication of
such criminals. It called for the arrest and prosecution of itinerant criminals
when the facts are clear and basic evidence exists.6 On March 21, 1990,
the Supreme People's Procuracy issued a circular further clarifying in what
cases shoushen can be used ("Procuracy Circular").69 This circular prohibits
the use of shoushen for cases involving corruption, bribery, infringement
of rights or dereliction of duty. 0 In May 1990, the Minster of Public
Security issued a document admonishing public security at all levels not to
extend the scope of shoushen at will or illegally overstep the administrative
time limits on shoushen. The document also provides that any person
subject to shoushen may appeal the decision to impose shoushen to the next
level of public security authority. If a person subject to shoushen decides
to challenge the decision to impose shoushen, the shoushen process
continues except as provided by the PRC Administrative Procedure Law.1

In 1991, the Ministry of Public Security issued a circular to take
further steps to exercise control over the use of shoushen ("1991 Public

67. See Guanyu Zai Daji Liucuan Fanzui Huodong Zhong Xuyao Zhuyi Jige Wend De
Tongzhi [Circular Regarding Certain Questions on the Handling of Cases Involving Itinerant
Criminals ", in COMiPENDImi OFL1SLA ON, JuDiCiALNTmERPRETAoNS AND CASE LAWS OFmTm
PRC, supra note 13, at 601-2 (setting forth one of the most comprehensive definitions of itinerant
criminals: criminals who commit crimes across city and county jurisdictions, and particularly, either
those who commit a series of crimes across city and countyjurisdictions, or those ho commit crimes
in their places of residence but escape to other cities and towns and continue to commit other crimes;
itinerant criminals do not include those who are out of town tourists, businessmen, workers who
commit occasional crimes and those who, while living in a local area, commit crimes in cities and
towns across the border).

68. See Xu Youjun, Zhwngguo Xingshi Susong Yu Renquan [Chinese Criminal Process
and Human Rights], ZHONGWAIFAXuE(CHINESEANDFOREI3NLEGALSTUDIEs), Feb. 1992. at 38-43
(demonstrating the tension existing between protecting individual rights and advancing social
welfare).

69. Supreme People's Procuratorate Circular, supra note 58.
70. It is argued that 1985 Public Security Circular only authorizes the shoushen of

criminals without known name, address, or place of origin. Legally, the power does not apply to cases
of bribery, corruption, infringement of rights, and dereliction of duty because these offenses are
usually committed by state officials with clear identity and known address. Practically, there is little
need to resort to such power because state officials are not likely to escape investigation.

71. Guanyu Yinfa "Quanguo Gongan Fazhi Gongzuo Huiyi Jiyao" Tongzhi, Gong Fa
(1990) 10 Hao [Notice Regarding the Publication and Circulation of "Summary to National Public
Security Legal System Work Meeting" Public Security Release (1990) No. 10], (promulgated May.
1990), referenced in item 3 "Guanyu Shourong Shencha De Pifu Yiju He Fuyi Wenti" (Issue
concerning the basis for approving and reviewing of sheltering for examination] in Gonganbu
Guangyu Gongan Jiguan Guanche Shishi "Xingzheng Susong Fa" Rugan Wenti De Tongzhi
[Ministry of Public Security: Notice regarding certain questions on the thorough implementation
of the "Administrative Procedure Law"] in ZHONGGUO JINGCHA FALU FAGUI GUIzHANG SHIYi
DAQUAN, 963-967, 964.

1996]



COLUMBIA JOURNAL OF ASIAN LAW

Security Circular").7 2 The 1991 Public Security Circular largely reiterates
rules proscribed in the 1985 Public Security Circular regarding the time
limits within which shoushen must be completed.73

On July 29, 1992, the Ministry of Public Security issued a definitive
statement to clarify the jurisdictional ambiguity between the State Council
Circular and 1985 Public Security Circular. In response to a query by the
Jiangsu public security bureau,74 the Ministry of Public Security clearly and
unequivocally endorsed the jurisdictional requirement of the State Council
Circular in making the shoushen applicable to "four targets" (si zhong
duixiang).75

A more recent attempt to control the wrongful use of shoushen has
been made through administrative law.76 The PRC Constitution (1982)
provides a cause of action for compensation against the government for
administrative wrongdoing.77 The PRC Administrative Procedure Law

72. See Case of Guo Debing, supra note 65 (citing Guanyu Jinyibu Kongzhi Shiyong
Shoushen Shouduan De Tongzhi [Circular Regarding Further Steps to Exercise Serious Control of
the Use of Shoushen Measure]), ((91) Gongfa 37 Hao Wenjian).

73. First, those subject to shoushen must be examined within the first 24 hours after
detention. Second, those found to be inappropriate subjects for shoushen should be released promptly.
Third, suitable shoushen subjects should not be examined for more than the legal time limit, i.e. one
month unless under exceptional circumstances; fourth, no shoushen should be extended over three
months.

74. "Guangyu Shourong Shencha Fanwei Wenti De Qingshi Baogao " (Su Gong Ting (95)
211 Hao) ["'Request (for Instruction) and Report Regarding the Jurisdictional Scope of Shelter for
Examination"] in "Gonganbu Guanyu Dui Shourong Shencha Fanwei Wenti de Pifu" [Ministry of
Public Security: Reply Concerning the Question of Scope in Sheltering for Examination] (Gongfu
Zhi (1992) 6 Hao) in ZHONGGUO JINGCHA FALU FAGUI GUIZHANG SHImi DAQUAN [CHINA
ENCYCLOPEDIA OF LAWS, REGULATIONS AND RULES REGARDING POLICE], at 950.

75. Id. The Ministry of Public Security issued another clarifying statement on the
jurisdictional scope of shoushen. In reliance to an inquiry by Sichuan province public security bureau
- "Guanyu Dui Fazheng Daolu Jiaotung Shigu Taoyi De Jidongche Jiashiyuan Kefu Shiyong Shencha
Shouduan Qingshi" [Request (for Instruction) Regarding Whether Sheltering for Examination
Measure can Be Used Against Drivers of Motor Vehicle Accidents Who Fleed] - the Ministry of
Public Security cited 1985 Public Security Circular and "Guangyu Jinyibu Yange Kongzhi Shiyong
Shourong Shencha Shouduan De Tongzhi" [Notice on Further Serious Control of the Use of
Sheltering for Examination Measures] (Gong Tong Zhi (1991) 37 Hao) in issuing the opinion that
only drivers who refused to give true name and address or otherwise with unknown background
should be sheltered for examination, while others should be released. See Gonganbu Guanyu Dui
Jiaotung Shigu Hou Taoyi De Jidongche Jiashiyuan Shiyong Shencha Shouduan Qingshi P if"
[Reply to Request Regarding Using Sheltering For Examination against Motor Vehicle Drivers Who
Fleed from the Scene of Traffic Accident] Id., at 951.

76. Wang Liming, Lun Wanshan Qinquanfa Chuangfian Fazhi Shehui De Guanxi [A
Discussion on the Relationship Between Perfection of the Law of Tort and Building a Legal Society],
FAxUE [LEGAL STUDIES], July, 1992, at 14-19.

77. CONSTITUTION OFTHEPEOPLE'S REPUBLIC OF-CHINA, art. 41(3) (adopted Dec. 4, 1982)

("Citizens who have suffered losses through infringement of their civil rights by any state organ or
functionary have the right to compensation in accordance with the law."), translated in

[10:367



POLICE POWERS AND CONTROL IN CHINA

allows an aggrieved person to sue the government for administrative
wrongdoing.78 The Supreme People's Court has since issued comments
providing that any person can challenge the public security's decision to
practice shoushen administratively in court.79

Subsequently, the legal status of shoushen was put into doubt by the
People's Supreme Procuratorate in an official reply to an inquiry from the
Guangdong province regarding whether an escaped shoushen person should
be prosecuted as an escapee under the Criminal Law.o The Supreme
People's Procuratorate answered that one subject to shoushen who escapes
should be prosecuted and punished as an escapee, but opined that further
prosecution and additional penalties are only warranted for a guilty escapee
and not for an innocent one.

In March 1996 the PRC political leadership and policy makers took
a dramatic step forward to control the abuse of police powers, including
that of shoushen, when the NPC adopted the amended Criminal Procedure
Law. We now turn to a discussion of how the Criminal Procedure Law
regulates and controls shoushen as an investigative power.

CONSTITUTION OFTHE PEOPLE'S REPUBLIC OF CHINA AND AMENDMENTS TO THE CONSTITUTION OF
THEPEOPLE'S REPUBLIC OF CHINA 11 (Legislative Affairs Commission of the Standing Committee
of the National People's Congress ed.,2d ed. 1990) [hereinafter "CONSTrTUTION'"; see Hu Xiaohua,
Guanyu Goujia Xingzheng Qinquan Sunhai Peichang Zeren De Goucheng Yu Xianzhi Wend [On
the Question of Constitution and Limitation of Compensation of State Administrative Infringement
ofRights], FAXUE [LEGAL STUD)IES], July, 1992, at 86-89.

78. ADMINISTRATIVE PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA (adopted
April 4,1989), art. 2, translated in ADMNi~msRAnvE PROCEDURE LAW OFTHE PEOPLE'S REPUBLC
OF CHINA (Legislative Affairs Commission of the Standing Committee of the National People's
Congress ed., 2d ed., 1990) (gives citizens the right to sue in the court when their legal rights have
been violated by administrative actions); id., art. 11(1) and 11(2) (providing that a person can file a
complaint challenging any coercive measures which deprive one's liberty or restrict one's freedom);
see ZHONGHUARIEIN GONHEGUO BAIFA SHI ANLE QUANSHU [EXPLANATION OF 100 PRC LAWs
AND CASES] (1993), at 1077-1129 [hereinafter "PRC LAWS AND CASES"]; Hu Xiaohua. supra note
77 (identifying the five necessary elements for the successful prosecution of an action brought under
the Administrative Procedure Law).

79. GUANYu GUANCHEZHIXING ZHONGHUA RENMIN GONGHEGUO XINZHEN SUXONG FA'

RUGAN WENTI DE YIJIAN (SHDING) [COMIENTS ON CERTAIN QUESTIONS REGARDING RESOLUTE
EXECUTION OF PRC ADMINISTRATIVE LAW].

80. Guanyu Shoushen Jancha Renyuan De Taopao Xingwei Shifou Z/udsu Wenti De Pifu
[Official Reply Regarding the Question of Whether the Escape Conduct of Sheltering for
Examination Persons Should be Prosecuted], in BUSINESS iANUAL OFTHE PRC, supra note 17, at
1171. Article 161 of the Criminal Law provides that "a criminal who escapes after being arrested or
held in custody according to law" will receive an additional sentence on top of that for the original
offense.

1996]



COLUMBIA JOURNAL OFASIANLAW

Ill. LEGISLATIVE RESPONSE TO SHOUSHEN IN 1996

The final chapter to the shoushen saga was written in 1996. On
March 17, 1996 the NPC adopted the Criminal Procedure Law of the
People's Republic of China. The law was passed to promote socialist
legality as well as to protect people's rights. 8' The Criminal Procedure
Law, while not mentioning shoushen by name, effectively places all public
security coercive measures, including shoushen,8 2 under one unified
procedural control scheme. Henceforth the public security authority "must
strictly observe this law and relevant provisions" in investigating,
arresting, and detaining suspects.8 3

Jurisdictionally, the Criminal Procedure Law specifically authorizes
the public security organs to detain active criminals or major suspects
under the following circumstances:

"(6) If he/she does not reveal his/her true name and address or
his/her identity is unclear.
(7) If there is strong suspicion that he/she is a person who goes
from place to place committing crimes.... ' '

81. Article 2 provides, in pertinent part: "The tasks of the Criminal Procedure Law of the
People's Republic of China are to guarantee accurate and timely clarification of the facts of crimes,
to apply the law correctly, to punish criminal elements, to safeguard innocent people from criminal
prosecution ... to protect the citizens' ...rights..." See also Article 14: "The people's courts, the
people's procuratorates, and the public security organs shall safeguard the procedural rights that
participants in proceedings enjoy according to the law."

82. See note 88, infra.
83. See Criminal Procedure Law, Chapter 1, Article 3, paragraph 3 which provides in

pertinent part: "In conducting criminal proceedings, the people's courts, the people's procuratorates,
and the public security organs must strictly observe this law and relevant provisions of other laws."
See also Article 14: "The people's courts, the people's procuratorates, and the public security organs
shall safeguard the procedural rights that participants in proceedings enjoy according to the law."

84. Article 61 provides: "Public security organs may first detain an active criminal or a
major suspect under any of the following circumstances:
(1) If he is preparing to commit a crime, is committing a crime, or is discovered immediately after
committing a crime.
(2) If he is identified as having committed a crime by the victim or by an eyewitness on the scene.
(3) If he is discovered to have criminal evidence near his person or at his residence.
(4) If after committing the crime, he attempts to commit suicide or to escape, or if he is a fugitive.
(5) If he may possibly destroy or fabricate evidence, or conspire to make false confessions.
(6) If he does not reveal his true name and address, or his identity is unclear.
(7) If there is strong suspicion that he is a person who goes from place to place committing
crimes, who repeatedly committed crimes, or who teamed up with others to commit crimes.

[10:367



POLICE POWERS AND CONTROL IN CHINA

The above jurisdictional provisions echo the shoushen language in the
State Council Circular8" and the 1985 Public Security Circular." These
provisions are a major departure from past legal policy and administrative
practice dealing with shoushen.87 The NPC clearly and unequivocally
acknowledged shoushen as a proper exercise of police investigative
powers, and to be regulated by the Criminal Procedure Law.

Procedurally, the Criminal Procedure Law provides clear and explicit
guidelines for investigative detention including shoushen. It prescribes the
jurisdictional limits for investigative detention (Article 61), procedure for
detention (Article 64), procedure during detention (Article 65), procedure
for release (Article 65), procedure for arrest (Article 69), procedure for
extension of detention (Article 69), procedure for challenging illegal
detention (Article 75) and procedure for oversights (Article 76).

Generally, under the Criminal Procedure Law all investigative
detentions must be accompanied by a detention warrant. The police, with
a few exceptions, must inform the detainee's family or work unit of his
arrest within 24 hours. 9 The procedure during an investigative detention
is strictly prescribed by Article 65:

The public security organ should conduct an interrogation of the
detained person within 24 hours after detention. When it is
discovered that he should not have been detained, the detained
person must be released immediately and be issued a release
certificate.'

85. See note 2, supra.
86. See note 3, supra.
87. See Part 11, The History of Shoushen, supra.
88. Article 64 provides:
When a public security organ is detaining a person, it must produce a detention
warrant.

The family of the detained persons or his unit shall be notified 24 hours after detention
of the reasons for detention and the place of custody, except in circumstances where
notification would hinder investigation or there is no way to notify them.

It is clear that this provision will be of little use in protecting the rights of one group of
shoushen targeted criminals, ie. "a person who goes from place to place committing crimes; who
repeatedly committed crimes ..." (Article 61(6)).

89. Id.
90. See also Article 9, para. 2 to the Police Law which provides that investigative detention

by the police should not exceed 24 hours, and with the approval of the next level of public security
organs, no more than 48 hours. The Police Law provides for a shorter initial detention period (12
hours) before approval is necessary.

1996]



COLUMBIA JOURNAL OF ASIAN ML4W

Specifically, the Criminal Procedure Law provides strict time limits
to guide the proper exercise of and effective supervisory control over
investigative detention powers. Investigative detentions, under normal
circumstances, should last no more than 72 hours, at which time a formal
request for arrest approval should be made to the procuratorates. An
extension of one to four days is possible, but only under special
circumstances.9 1 This can be further extended for 30 days in cases involving
"a major suspect who is on the run and who allegedly commits crimes
repeatedly." '

The Criminal Procedure Law sets forth outer limits for investigative
detention. The period for holding the crime suspect in custody during
investigation may not exceed two months, with a possible extension for
another one month period with the approval of the prosecurtorate at the
next level if the case is complicated. 3 Beyond this outer limit, an extension
can only be granted by provincial autonomous regional, and municipal
people's procuratorate for special types of cases, which include "major and
complicated cases in which the suspect's crimes have been committed at
various locations."'94 It is significant to observe that the Criminal Procedure
Law makes clear that the procedural time clock on criminals or suspects

91. Article 69 provides: "In cases where a public security organ considers it necessary to
arrest a detained person, it shall, within three days after detention, submit a request to the people's
procuratorate for review and approval. Under special circumstances, the time for requesting review
and approval may be extended by one to four days." What constitutes special circumstances is not
defined under the Criminal Procedure Law. In light of the comprehensive nature of the law, it does
not appear to be the intent of the NPC to allow for a liberal interpretation of "special circumstances."

92. Article 69, para. 2 provides: "For a major suspect who is on the run, who repeatedly
commits crimes, or who partners with others to commit crimes, the time for requesting review and
approval may be extended by up to 30 days." A liberal construction of this provision will include all
"licuanfan" who by definition are wandering criminals from place to place (itinerant criminals.)

93. Article 124 provides in pertinent part: "The period for holding a crime suspect in
custody during investigation may not exceed two months. If a case is complicated and cannot be
concluded before the period expires, the period may be extended by one month with the approval of
the procuratorate at the next level up."

94. Article 126: "If investigation of any of the following cases cannot be concluded within
the period specified by Article 124 of this law, the period may be extended by two months with the
approval of or decision by a provincial, autonomous regional, or municipal people's procuratorate:
(1) A major and complicated case in a remote region with very poor transport facilities; (2) A major
criminal gang case; (3) A major and complicated case in which the suspect's crime has been
committed at various locations; (4) A major and complicated case involving a broad spectrum of
crimes for which evidence is difficult to obtain."

[10:367



POLICE PO WERS AND CONTROL IN CHINA

detained for investigation does not start to run if the criminal suspect
refuses to disclose his true name, address, and identity."95

The Criminal Procedure Law also provides for citizen challenge and
official supervision of any illegal exercise of investigative detention
powers. First, the aggrieved citizen has a right to file a complaint against
the police.' Article 75 of the Criminal Procedure Law provides the
aggrieved citizen with a statutory avenue to challenge any illegal detention:

A suspect or a defendant and his or her legal representative and
close relatives, or counsels appointed by a suspect and the
defendant, have the right to demand rescission of the coercive
measures taken by ... the public security organ that have exceed
the legal limit. The ...public security organ shall release the
suspect or defendant against whom the coercive measures
exceeding the legal limit have been taken..."

The people's procuratorate is also charged with the responsibility of
rectifying any illegal investigation activities in the process of reviewing and
approving arrests by the public security.'

IV. CONCLUSION

In this paper, I have attempted to trace the historical development of
shoushen from a well intended social control device to a much abused
police power. The paper ends appropriately with the passage of the
amended Criminal Procedure Law on March 17, 1996. The NPC, in
promulgating the Criminal Procedure Law, effectively brought all police
investigative powers under one roof. In so doing, the NPC clearly
demonstrated its resolution in bringing law and order to the widespread

95. Article 128 provides, in pertinent part: "If the criminal suspect refuses to disclose his
true name, address, and identity, the period under which he can be held in custody starts from the date
identity is clarified ...." If this provision is literally applied, the Criminal Procedure Law will be of
little use in protecting a large group of criminal suspects against prolonged investigative detention.,
e.g. those from the mangliu ranks; this is the same problem which existed under the shoushen
investigative system.

96. Article 14, para. 3: "Participants in proceedings have the right to bring complaints
against ... investigators for acts that violate their procedural rights as citizens..."

97. Article 76: "In the course of its work of reviewing and approving arrests, if a people's
procuratorate discovers that there are illegalities in the investigation activities of a public security
organ, it shall notify the public security organ to rectify them, and the public security organ shall
notify the people's procuratorate of the circumstances of the correction."

19961



COLUMBIA JOURNAL OF ASIAN 4W

abuse of police powers in the PRC, particularly the misuse of shoushen.
This is a propitious beginning. What remains to be seen is how the
Criminal Procedure Law will be received and applied in the field. If our
own experience with legal control over police misconduct is any guide,98

the Criminal Procedure Law is just another chapter in the long fight against
shoushen abuses.

98. WI.AM A. GELLER (ed.), LOCAL GOVERNMENT POUCE MANAGEMENT (1991). 11-13.
("The police response to the High Court's rulings of the 1960s was largely one of bitterness and
outrage: criminals would have all the advantage; police would be shackled and impotent to deal with
serious crime..." )

[ 10:367