受贿犯罪的新态势与推定对策

李伟迪

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内容提要 国家工作人员与亲属共同受贿，已经成为新时期受贿犯罪的稳定形式。因为检察机关很难证明犯罪嫌疑人之间的共同故意，此类犯罪规避法律制裁的成功率很高。其多米诺骨效应，与受贿的“高压”、“高发”有直接关系。针对此类犯罪，笔者主张，犯罪嫌疑人拒绝承认共同受贿的故意时，检察机关根据请托人的证言，亲属收受财物的事实，请托人与工作人员的公务关系，推定国家工作人员与其亲属共谋受贿的故意，但犯罪嫌疑人或被告人提出相当证明力反证的除外。
关键词 国家工作人员 亲属 共同受贿 故意 推定
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最高检正义网“贪官档案”公布的贪官中,国家工作人员（下称工作人员）与亲属共同受贿的比例为81％；浙江和山东等纪检部门向新闻界披露，夫妻联手作案率高达90％以上； 湖南省近三年发生13件厅级干部受贿大案,其中12件是工作人员与亲属共同受贿，受贿金额少则几百万元，高则达二千多万元。官员与亲属勾结受贿 ，以前也有，国外也有，但高达90％的比例，是近年受贿犯罪的主要特征。亲属参与工作人员的受贿，已经成为受贿的主要形式。 此类受贿的手法是，由工作人员负责为行贿人办事，亲属负责收受贿赂，如果案发，工作人员坚决不承认知道亲属收受之事，声称没有受贿故意。受贿人之间因为有亲属关系，便于形成分工受贿的意图；外界对受贿人之间受贿意图的形成和存在知之甚少，甚至根本不知道；在接受侦查讯问中，亲属基于利益的关联性，一般只承认自己收受了财物，不会承认将收受之事告知了工作人员。许某某案就是典型，中纪委、最高检、浙江高检，都将许某某案定性为受贿和滥用职权嫌疑，但宁波市检仅以滥用职权罪起诉，因为无法证明许某某对自己的妻儿收受他人700万元财物的明知。 因此，纪检检察很难取得共同受贿故意存在的证据，虽有行贿人证言、贿赂物证、公务关系证据，但无法满足受贿罪的认定条件。靠“心理战”等侦查技巧取得证据，不能有效地揭露、制裁和预防受贿犯罪，因此犯罪嫌疑人规避法律制裁的成功率很高。据湖南省某检察院统计，判决有罪案只占受贿举报数的0.89％，而举报数仅是怀疑数的极小部分。 从工作人员与亲属共同受贿的角度看，反贿的法律已经异化成受贿的诱饵。此类受贿的高成功率，已经成为受贿的催化剂，与受贿的“高压”、“高发”有直接关系。

一、工作人员与亲属共同受贿故意的内容
根据主观要件的基本要素，受贿故意由取得他人财物的的认识因素、意志因素和利用职权为他人谋取利益的认识因素、意志因素构成。取得他人财物的故意和利用职务之便为他人谋取利益的故意之间应具有关联性，基于请托人向工作人员提出了请托事项这一事实，产生收受财物故意和为他人谋取利益故意。取得财物的故意与利用职务之便为他人谋取利益的故意之间应具有因果性，即利用职务之便为他人谋取利益的故意是原因，取得他人财物故意是结果；或者取得他人财物是原因，利用职务之便为他人谋取利益是结果。
工作人员与亲属共同受贿犯罪中，工作人员利用亲属这个中间环节，把受贿犯罪复合行为分解为两个单一行为，一是工作人员利用职务之便为他人谋取利益，另一个是家属负责取得财物，这两个行为，由一个共同的犯罪故意指引，但这个共同的犯罪故意，存在于两个以上犯罪嫌疑人之间，因此必须从工作人员与亲属两方面考察共同受贿故意的内容。
（一）亲属对利用职务之便的明知
司法实践中，亲属一般知道自己利用了工作人员的职务之便，但也可能没有意识到：第一，请托人把行贿的用意隐藏得很深，只是以看朋友、老领导、老邻居、老同学等名义给亲属送礼，请亲属代收并转达工作人员，工作人员在知道亲属收受礼物后，并没有向亲属挑明请托人的真实用意，那么，亲属可能始终不知道自己利用了工作人员的职务之便。第二，工作人员要求请托人把贿赂交给自己的亲属时，不要暴露事实真象，以免节外生枝，亲属很可能一直以为是朋友的馈赠，从而不具有对利用职务之便的明知。因为亲属始终不知道客观上自己是利用工作人员职务之便，主观上没有利用职务之便的意思，所以不能认定共同受贿罪，而只能以受贿罪制裁工作人员。
亲属打着工作人员的旗号，向请托人索要或勒索财物，而工作人员并不知道，也没有“授权”，这能否认定为利用职务之便的明知？可以，因为亲属利用工作人员职务之便的方式是“虚拟的”，与工作人员本人利用自己职务之便不同，那是实在的。但是根据此种情况，并不能认定亲属的受贿罪，因为主体不合格。如果索要数额较大，可定诈骗罪；如果勒索数额较大，可定敲诈勒索罪。
亲属对利用职务之便的明知，有五层含义：请托人给我这笔财物，目的是为了利用工作人员的职权；如果我收下这笔财物，可能促成工作人员利用职务之便为请托人谋取利益；如果工作人员没有拥有请托人所需要的职权，请托人不会给我送交财物；作为权钱交易，我能占有这笔财物；占有这笔财物是由自己和工作人员共同完成的。
从实践中看，亲属对自己利用工作人员职务之便的明知，有以下几种形式：第一，按生活常识得知，请托人收受请托人的财物时，虽然请托人没有言明真实意图，但是亲属明白请托人利用工作人员职权的目的，送礼人不明讲，是为了避免某些麻烦，大家心照不宣。第二，请托人明确告知，自己有事想请工作人员帮忙，希望亲属在工作人员面前“美言”。第三，工作人员告知亲属，有人找他办事，如果请托人来送财物就收下；甚至暗示亲属在请托人没有主动送礼时，可以适当地提示请托人。第四，按惯例而明知，请托人在送礼时没有明确告知亲属利用工作人员职务之便的意图，工作人员也没有告知亲属请托人的意图，但请托人、工作人员和亲属在以前有过类似的“合作”。第五，经第三人提醒，亲属明白请托人的真实意图。
（二）亲属利用工作人员职务之便的决意
如果亲属明知请托人利用工作人员职务之便的意图，作为后续心理活动，会出现三种状态：拒绝请托人的请求；对请托人的请求不置可否，既不表示愿意帮忙，也不表示拒绝，实际上是婉拒，或者亲属害怕工作人员批评而不敢表态；承诺或默认为请托人“说话”。
用什么标准衡量亲属形成了利用职务之便的决意？主要有二种方式：如果亲属明确答应请托人，就形成了决意；如果没有明确答应，则看亲属是否收受了财物，如收下，则表示有利用职务之便的决意。
当然，亲属把利用职务之便的决意贯彻到底，要看亲属是否向工作人员转达了请托人的意图。这个转达程序的完成，明示或暗示皆可。
（三）亲属确实知道收受的财物为贿赂
与利用职务之便相联系，亲属如果明知请托人想利用工作人员的职务之便，那么必然对所收受的财物的性质是明知的。“从司法实践看，行贿人向公职人员家属交付财物时，其家属不明来意时，一般都会表明其意图，明确提出请托事由，而不会放下财物不明不白地离开。因此，家属出面接受财物，对行贿人的目的意图是知道的，财物的贿赂性质是清楚的。” 笔者基本同意这种观点，但还必须种排除四种情况：第一，亲属与请托人以前是亲朋关系，也没有权钱交易的先例，请托人送交财物可以理解为礼尚往来。第二，请托人将财物送交亲属时，伪称请其代管或托管；亲属在不太长的合理期限内占有送交的财物，不管请托人的真实意图如何，亲属的主观状态可以理解为暂时保管。第三，请托人把贿赂的用意隐藏得很深，只是以朋友名义给亲属送礼，请亲属代收并转达工作人员，工作人员在知道亲属收受礼物后，并没有向亲属挑明请托人的真实用意，那么，亲属可能始终不知道自己收受的是贿赂。第四，工作人员要求请托人把贿赂交给自己的亲属时，不要暴露财物的贿赂性质，亲属很可能一直以为是朋友的馈赠，从而对贿赂的性质没有明知。
亲属对贿赂性质“明知”形成的分类：与工作人员预谋而明知；应工作人员告知而明知；应请托人告知而明知；应第三人告知而明知；按先例而明知；因猜测而明知。
（四）亲属形成了占有贿赂的决意
亲属形成对贿赂的明知以后，不一定形成受贿决意，只有当他最终接受财物并处置财物时，才形成占有贿赂的决意。这种决意的形成，除了亲属自己陈述和辩解外，外人是无法知道的，只在通过亲属的行为来判断，这就必然涉及亲属受贿的客观方面。形成决意的判断标准有二：亲属收下请托人的财物；以处理自己财物的方式处理该财物，例如把货币类财物，以自己的名义存入金融机构，或者投资，或者捐赠，或者购买商品。
（五）工作人员对利用职务之便的明知
工作人员在利用自己职务之便时，显然是明知的，但在利用他人的职务之便时，是否明知既利用了他人的职务之便，也利用了自己的职务之便？在司法实践中，很多工作人员只意识到其中之一，例如，甲工作人员受乙的请托，到丙工作人员处办事，甲可能认为这与自己的职务行为无关，或者认为丙工作人员是看在甲自己的面子上为乙办事，又没有接受乙的请托和财物，也不属于利用职务之便为请托人谋利的行为。那么，认定工作人员对利用职务之便的明知，应以明知利用自己职务之便还是明知利用他人职务之便为标准？笔者认为，利用他人职务之便时，必然同时利用了自己的职务之便，刑法第383条强调“利用本人职权或者地位形成的便利条件”和“通过其他国家工作人员职务上的行为”，原因就在于此。客观上如果只利用本人职务之便，谋利行为就不能完成，反之，如果只利用他人职务之便，也不能达到谋利目的，因此必然认定同时利用了本人和他人的职务之便。司法实务中把利用职务之便的明知作为免证事实对待,根据工作人员利用职务之便的行为，认定其有利用职务之便的明知，这与案件的客观真实不一致，出现认定事实与客观事实的矛盾，但是不能以工作人员不知利用了职务之便作为规避第383条的理由，实务中回避了这一矛盾。如何在理论上化解这一矛盾？笔者认为，可以把工作人员利用职务之便的“不知”理解为误解，因为刑法并不因为误解而免除刑事责任。因此利用职务之便时便有利用职务之意，利用他人职务之便时也有利用自己和他人职务之意。
利用职务之便的明知的内涵是什么？即工作人员认识到自己的行为是权钱交易，将损害自己的廉洁性和公务处理的正常秩序。如何界定工作人员产生了利用职务之便明知的时间？有二种情形：如果请托人直接向工作人员请求，明知就随之产生；如果是向第三人如亲属请求，随第三人向工作人员转达请求时产生。
（六）工作人员对利用职务之便的决意
认识到请托人或亲属要利用自己的职务之便，但是工作人员不一定就真正利用自己的职务之便，有一个选择的过程，有二个相反的选择结果：同意或不同意，如果同意，意味着形成了利用职务之便的决意。这种同意既可是明示，也可以是默认。
（七）工作人员对贿赂性质的“明知”。
在客观实际中，工作人员对亲属收受贿赂的“明知”，有以下几种表现形式：与亲属预谋：工作人员与其亲属在实行共同受贿行为以前，进行了预谋，那么工作人员对亲属收受贿赂的行为，应该知道。与请托人亲自约定：工作人员与请托人约定，满足请托人的要求，同时为了财物收受的便利，要求请托人将财物交给自己的亲属。亲属告知：起初工作人员不知道请托人行贿的意图和行为，请托人将财物交给工作人员亲属后，在适当时候以适当形式，亲属让工作人员了解了这一情况。请托人告知：请托人事先没有向工作人员打招呼，将财物送给亲属之后，将这一情况在适当时候以适当形式，让工作人员知道。亲眼看见：工作人员与请托人或者自己的亲属没有预谋，在请托人向自己的亲属送交财物的过程中，工作人员亲眼看见了这一行为。亲耳听说：工作人员与他人交往时，偶然听到请托人向自己的家属送了财物，如请托人与第三人说起，或请托人与自己的亲属说起，或自己的亲属之间说起，或第三人之间说起。惯例行为：在某个具体的请托人行为中，请托人、亲属和第三人没有告知工作人员收受财物的情况，但是在以前的生活和工作中，形成了一个请托惯例，例如，在第一次托过程中，请托人找到亲属，并送给财物，然后由亲属向工作人员说情，从而办成了事情，今后只要亲属很乐意为某个人办事，就知道亲属得到了好处；或者在第一次请托过程中，请托人先给亲属送交财物，然后去找工作人员办事，并暗示送交财物的行为，从而办成事情；今后只要同一请托人办事，请托人虽然没有暗示，但工作人员知道惯例，从而顺利为请托人办事。 猜测得知：工作人员根据请托人或者自己的亲属的言行举止，结合当时当地的背景以及其他情况，猜测自己的亲属得到了或将得到好处 。偶然发现：工作人员为请托人谋取利益的过程中或者前后，偶然发现自己亲属的财产状况发生了变化，经过间接了解，得知是请托人送交的财物。
（八）工作人员占有贿赂的决意
工作人员明知亲属收受财物以后，不一定实施受贿行为，只有具备了下列情形之一，工作人员才形成占有贿赂的决意：使用或者处置贿赂；承诺利用自己的职务之便为请托人谋取利益；利用自己的职务便利实际地为请托人谋取利益。

二、工作人员与亲属共同受贿故意证明是检察机关很难突破的堡垒
（一） 工作人员与亲属共同受贿故意的特点
因为工作人员与亲属之间的亲缘关系，其共同受贿故意有明显的特征：
便利性：由于工作人员与亲属之间的密切关系，甚至就生活在一个家庭里，无论是心理上还是空间上，都有沟通的较好条件，达成共同受贿犯罪故意比较方便。甚至只通过一次交谈就形成了，二者之间既不要谈条件，也不必借助第三者，更不要借助复杂的物质基础，基本上是“嘴上功夫”。
简洁性：基于工作人员与亲属之间的信用关系，以及相互之间生活气息的熟悉，一句简短的话、一个简单的手势，甚至一个眼神，就能达成一个共同受贿的故意。 如果工作人员与亲属有共同受贿的先例，在后继的受贿犯罪中，工作人员和亲属达成新的犯罪故意非常容易，在一个亲属共同受贿案的侦查中，有这样一段对话：问：你代请托人向你父亲请求时，是否把收受贿赂的事情告诉了你父亲？答：没有。问：那你父亲为什么愿意为请托人谋利？答：父亲说过，没有送礼的就不要理他！这里，女儿只要请父亲办事，父女之间就达成了受贿的共同故意。而在普通共同犯罪中，犯罪嫌疑人之间的共同故意要经过较长时间和较多环节才能达成，首先犯罪嫌疑人之间要取得犯罪技能的了解，然后在犯罪的目的、手段、时间、地点、犯罪工具、联结方式、具体分工、赃物分配等方面都必须达成一致，才能形成共同故意。
封闭性：按辩证唯物主义的侦查观点，犯罪过程总会留下特定的痕迹，工作人员与亲属再狡猾，也必然会留下共谋的蛛丝蚂迹，这就为证据的获得提供了客观可能。但是亲属共同受贿的故意，不仅是隐晦的，而且是封闭的。工作人员与亲属生活在一个相对封闭的空间里面，他人不能随意介入，因此共同受贿犯罪意图形成过程，外人不能轻易看到；在侦查过程中，如果犯罪嫌疑人家里留下什么有形证据，也易及时处理，不至于让侦查机关拿到有罪证据。
稳定性：基于工作人员与亲属是特殊关系，一旦形成犯罪意图，就能比较稳定地存在，甚至成为一种惯例，配合默契，并不因众多的受贿分子落网而恐惧而放弃。而在普通犯罪中，共同犯罪嫌疑人之间的犯罪故意不可能稳定地存在，甚至犯罪集团之间的共同故意也不能达到这一境界。
（二）共同受贿故意很难证明
随着科技的发展和反贪斗争的强化，犯罪分子作案手段日趋隐蔽，反侦查、反审讯的经验亦愈加丰富，加之犯罪分子收受财物过程中证据的“一对一”特点，致使这类犯罪呈现出立案难、查证难、定罪难的新态势，形成或强化了某些特征：首先是单一性。受贿犯罪相对于其他犯罪，其证据有明显的特殊性，按刑法第42条的标准，一般只有四类：物证如受贿的赃物；书证，如行贿金额的记载、存款单、有价证券、产权证明和消费卡等；证人证言，如第三人的证言；供述和辩解：即请托人、亲属和工作人员的供述和辩解。在证据种类上比一般的七类少得多，这就决定了受贿犯罪比一般犯罪的取证难。从司法实践看，后三类又是四类证据中的主要来源，这三类可归结为言词证据。言词证据的特点是它的无形性，一般不会形成物理意义的证据，取得证据和固定证据相对困难，在所有的犯罪和亲属共同受贿犯罪中，是最难得到和判断的一种证据，也是最关键的证据。现在的贿赂犯罪，基本是一对一的形式，除行贿受贿双方以外没有第三人在场，所谓“三人不办事”，有些犯罪分子为了进一步掩盖犯罪，还演“双簧”，例如，请托人到工作人员办公室行贿，有意无意让他人看到，工作人员坚决不受，把贿赂如大额现金当场退给请托人，还严厉批评和警告请托人，事后，工作人员还煞有介事地向领导和纪检监察部门报告事情经过，暗地里却又把贿赂拿过来。甚至有一个税务巨贪，还把这些“拒贿”事迹编成剧本巡回演出，在这种情况下，似乎不仅不存在受贿证据，而且还有拒贿的证据，检察机关更难查实。其次是证明动力的稀缺性。绝大部分犯罪，都有特定的受害人，因而受害人的举报和证明是重要的证据来源，但是，“难以获得关于官员受贿的有用情报是一个基本问题，多数受贿罪本身就具有隐蔽和串通的性质，因此，通常很少有人控告。行贿受贿不会招致举报，因为双方都有罪，而且都从非法活动中捞到了好处。在敲诈勒索中，有一方可能是不情愿的，但也不会提出控告，因为公民对反腐败斗争缺乏信心。” 同时，请托人和工作人员作证时都有顾虑，从犯罪的关联性看，他们似乎是“拴在一根绳子上的两个蚂蚱”，无论受贿人还是行贿人，其有罪的供述和辩解，既能证明对方有罪，也证明自己有罪。因此行贿和受贿双方一般都不会主动举报对方，甚至在侦查过程中，如实回答的顾虑仍然较大。最后是不稳定性。在侦查初期，除行贿、受贿双方的供述或证言外，大都没有其他证据，“由犯罪嫌疑人说了算”。言词证据来源于对案件客观事实的反映，最初表现为证据主体对案件客观事实的感知基础上的映象，外化为言词形式，这个过程是一种主观见之于客观的能动活动，因此可能受到生理、心理、时间、地点、记忆能力、表达能力和利害关系等因素影响，可能出现偏差，对案件事实的陈述往往发生变化，甚至截然相反。贿赂犯罪案件中口供和证言的这种不稳定性，使证据本已单一的贿赂犯罪更加真假难辨，证据链条更加脆弱。
如果说受贿犯罪的证据难以取得，那么工作人员与亲属共同受贿的证据取得是难上加难。亲属共同受贿犯罪的嫌疑人，智商和文化层次较高，见多识广，心理素质较好，还具备一定的反侦查能力，正是看到了这个“漏洞”和“优势”，犯罪时以此作为规避法律的希望，案发以后，工作人员声称不知道亲属取得了请托人的财物，没有受贿的故意，不构成受贿罪，只承担对亲属教育不力的行政责任和党纪责任，从而逃避刑事制裁。
在工作人员与亲属共同受贿犯罪的证据中，共同受贿故意的证据最难获得。亲属共同受贿犯罪的证据主要有三类，其中请托人的言词证据和亲属收受财物的物证，相对比较容易收集，主要有三个原因，其一，请托人在行贿以后，会产生法律制裁恐惧感，请托人与工作人员所在单位产生了或者存在过公务关系，因此一旦被检察机关传唤，其心理防线相对容易突破。其二，在强势侦查压力下，请托人有向检察机关作证的积极性，从根本上来说，请托人的行贿是被迫的，在心底对受贿行为有看法；请托人向检察机关作证，可以依法作为从轻、减轻或者免除自己刑事责任的依据，这与诉辩交易有相似的地方。 其三，亲属收受的财物情况，通过搜查和银行调查等措施可以掌握。总之，请托人的行贿行为和亲属收受财物的行为，客观上会产生一些社会联系和客观事实，这些联系和事实把请托人、亲属、工作人员和公务单位联系起来了，犯罪嫌疑人不能轻易隐瞒这些联系，为证据的获得提供了客观基础。
检查机关尽管找到了赃物，国家公务人员的亲属也承认接受了财物，请托人也承认自己行贿的行为，请托人与工作人员有公务关系，三个证据相互结合，形成了受贿犯罪的一段证据链条，但是仍然不能证明共同受贿犯罪构成的重要因素——工作人员对亲属收受财物的明知。因为在以上三类证据中，能证明工作人员知道贿赂的只有请托人的证言，分二种具体情况，第一，如果请托人把亲属接受财物的情况告知了工作人员，那么请托人就这个过程和内容的陈述是直接证据；第二，如果请托人没有直接告知工作人员，而是亲属承诺代为告知并代为说情，请托人就这一过程与内容的陈述是间接证据。根据这个直接证据或间接证据，不能确证工作人员明知亲属收受了财物，就不能确定工作人员与亲属共同受贿的故意，理由有二，其一，请托人的证言与工作人员及其亲属的辩解属于同一证据类型，其证明力相同，因此，就工作人员对亲属财物的认识状态的证据之间的矛盾是明显的。其二，孤证不能定罪原则，对案件主要事实的证明同样适用，在工作人员与亲属共同受贿犯罪中，共同受贿故意是最主要的待证事实，也是案件定性的关键，因此必然有充分证据证明。 不能认定共同受贿故意，就不能认定其受贿罪。如果没有造成国家和社会的重大损失，渎职罪也不能认定，其亲属也不构成受贿。如果其亲属没有索贿行为，也不能构成诈骗罪或者其他罪。犯罪嫌疑人最大的损失，是收受财物作为非法所得没收，受贿犯罪的风险化解为零。


Student:Dayong Zhou

dayong_77@hotmail.com


The Collectivizationa and De-collectivization in Rural China

周大勇 (Zhou,Dayong)

Abstract: the process of de-collectivization took place 25 years ago, however it was uncompleted, which determined that china has to make great effort to continue his rural reform, in order to liberate the peasant and the status of rural region as the Party promised. In China, the non-privatization reform occurred along with the de-collectivization was a uncompleted reform, which remains the defects of both collectivization and small-scale peasant economy, therefore it restricts the development of the rural society, however, the current system seems unable also reluctantly to change it. This paper intents to introduce the process of the collectivization and the most important rural reform in this century, namely the de-collectivization, the demonstrates the progression of de-collectivization, its characters as well as the problems left to be solve.
Keywords: collectivization De-collectivization collective ownership incomplete

Foreword
I am pleased that I am allowed to write the term paper about China. China was influenced by Marxism and walked in detour of history for half century. Before Marxism bankrupted in former Soviet Union and Eastern Europe countries, China had adopted a different way to reform from those countries. Because of the difference in aspects of historical evolution, political forms and natural environment, it’s hard to compare the rural society of China with these former socialism countries directly, also, the progression of collectivization and its end are different in two continents.
Rural china before collectivization
Collectivization was a mark system of the socialist state. Although in the era of Utopian socialism, Robert Owen for example has already attempted to set up the collective farm, but it wasn’t pursued by force strength of government. Even the founder of communism Marx didn’t agree that communism could be realized in undeveloped countries with extremely poor productivity . It was Russia, the serf country, in which Communist took power without adequate preparation; collectivization was implemented by force, in order to consolidate the rule in grass-root countryside. This experience has influenced China and Eastern Europe, because one of the merits of the collectivization lies in being easy to be managed, the other lies in being easy to deprive peasants.
China was a backward country, which suffered from ignorance and war for centuries. Throughout the centuries some 80 to 90 percent of the Chinese population were farmers and live in one of some 900,000 villages, which have an average population of from 1,000 to 2,000 people. Villages were not self-contained, self-sufficient units. Clusters of villages centered on small market towns, which linked them to the wider economy and society by providing not only opportunities to buy and sell but also opportunities for entertainment, information, social life, and a host of specialized services. The traditional Chinese elite, often referred to in English as the gentry dispersed across the country and often lived in rural areas, where they were the dominant figures on the local scene, normally ruled villages. Although they held land, which they rented to tenant farmers, they neither possessed large estates like European nobles nor held hereditary titles. However, they traditionally interpreted central policies and national values for villagers. As in feudal relationship, the peasants and gentry live depend on each other. Gentry provided land to poor peasants and tenant, and work with rich and middle peasants to secure the order in village, for instance opening school and building basic infrastructures to maintain there social status. In Chinese history, at the beginning of very dynasty, the land relationship between landlord and poor peasants were comparably fair, that meant, peasant have parcel farmland to live on. But land tended to be concentrated on end every dynasty, then there might be a peasant uprising led to a new dynasty and retribution of land. This is the basic clue of social evolution in China before communist period.
After the Chinese Communist Party came into power in mainland, it had to keep its promise, which it made during the period of war to encourage the peasant to join the army, that it would gave peasant their own land. The first major action took place from 1940s to early 1950s. June 1950, a new Land Reform Law of new People’s Republic was promulgated and stipulated nullification of the feudal land ownership system, and institutionalization of the system of land ownership by peasants, in which the Party sent agents to every village to carry out the land reform policy. This in itself was an unprecedented show of political power and the resolution of transform an old society. The reform was successful, because the peasants supported the policy; most of them had been waiting for the reform for long time. In the light of the reform law, land were redistribute from the landlords, land-owning trusts or wealthier families to the poor segments in the same village; village elites, who might be expected to go up against the Party and its programs were brought down; new leadership was established by poor peasants who showed the most loyalty to the party's goals; instead of kinship group or patron-client ties, class status became new relationship among villagers.
the process of Collectivization
However, the Party’s leaders were not satisfied with the privatization of land, at one hand, such ownership, according to the doctrine of socialism, should have been abolished in the state of socialism, at another hand, private ownership of small peasantry had no function of property accumulation for the country. At that time, in order to accelerate the construction of socialism, China had launched The First Five-Year Plan after the Soviet model; heavy industry development was profound stressed since the leaders of Communist Party regard socialist country as a country with developed industry sectors. However, the situation in early 1950s was not ideal for a new country. Pressing of needs for food in a country with burgeoning population, domestic capital for investment, and purchase of Soviet-supplied technology, capital equipment, and military hardware. To satisfy these needs, collectivize agriculture was put forward. Collectivization was regard as a method to turn countryside to stabile backing, which can be managed as semi-military and had rare contact with outside, so that the government could press the price of agricultural products by means of scissors difference between cities and countryside, and seize huge numbers of profit from agriculture economies to support the industrialization in city. At the same time, the government had already nationalized banking, industry, and even trade. Private enterprise was already virtually abolished in national wide.
Despite internal disagreement as to the speed of collectivization, preliminary collectivization was launched since 1952. China's peasantry saw Chairman Mao and the Communist Party as heroic much more than Russia's peasantry had seen Stalin and the Bolsheviks as heroes, and through 1956 the peasantry cooperated with the Party. There was none of the resistance and warfare that had accompanied the collectivization of agriculture in the Soviet Union.
The collectivization of agriculture was basically completed with the establishment of the people's communes in 1958. The People’s Commune system was defined as a unity of politics and production, in which all members of the commune jointly owned property. Essentially, the commune system was based on private contract of its members and the principle of voluntaries and mutual benefit, however, it turned out yet as coercive institutional arrangement, which was made by government with political power. In the movement to achieve the People’ s Commune, peasants had no choice whether or not to join.
Communes were designed as large, embracing scores of villages created by combining some 20 or 30 advanced producers' cooperatives of 20,000 to 30,000 members on average, in some cases the membership varied from as few as 6,000 to over 40,000. It was instituted as an organization with functions of the lowest level of local government and the highest level of organization in agricultural production. Communes consisted of three organizational levels: the central commune administration; the production brigade , and the production team, which generally consisted of around thirty families. This kind of institution was an organization of hierarchies, in which the commune acted as political unit and top manager, the brigades played role of co-coordinators between the commune and the basic production teams. The production team was basic units of production and accounting. Since the people’s commune system was a tool established to extract resources from agriculture sector for industrialization, as a result, it neglected peasants’ incentive completely. In order to let the people’s commune system run, the central government designed an relative effective mechanism to encourage managers in each hierarchy to work enthusiastically, yet, in each level, the managers were treated differently and there was a clear difference in aspects of identity and welfare between the managers of the commune and of the brigades or production teams.
The commune was defined as administrative organ and executed the central government’s orders, and paid from central government’s budget, therefore the managers in the level of commune were “state cadres” , that means they were formal governmental officials and got wage monthly. These state cadres could be promoted and became officials of governmental divisions in higher level. Brigades and production teams were collective economic organizations, their running expenses came from production teams’ tribute. Managers in brigades level were called “collective cadres” . They were remunerated in their own production teams according to their labor quotas. Their wage was paid in the form of products instead of money. Managers in production teams were“team cadres”, they were also members of the production team. They worked as peasant like their workmates, and were paid in products according to labor quotas. Team cadres could be promoted to collective cadres. Collective and team cadres had little possibilities to be promoted and became members of state cadres. Nevertheless, as collective and team cadres had some privileges. For example, collective managers had the power of assigning state’s delivery quotas and production tasks among production teams, they determined who could enrolled in state-owned factories, universities and army. The production team managers executed the power of assigning work and distributing products among collective members. Furthermore, in the period of many political movements and class struggles, the identity of cadre could protect their families, relatives and themselves from being denounced and bullied (Tan, 1999).
At beginning, the commune itself was decorated as the representation of socialist society and had all merits of public ownership. Although nearly all the private property had been deprived, peasants had to praise the new system profusely. it was true, most poor peasants found that their lives changed, by eating in the public dining they didn’t need to worry about their own budget anymore, and by working together, they were not necessary to try their best. Following propaganda appeared in newspapers everyday:
The public dining halls are distributed in a way that members need walk only a few minutes from their homes to take their meals. On the freshly whitewashed walls of the one on Shihfuchien Street, a typical establishment, there is a big slogan in red, which reads, "High Spirits for Higher Production!" Its kitchen, to which the visitor is drawn by the aroma of food and the clatter of pots, is managed by Tu Hsiu-chen, the first volunteer cook, who has since learned large-scale catering from the chef at one of the city's restaurants.
The walls of the spacious dining room are decorated with paintings, as a home might be. Its tables and chairs, though simple, are scrubbed to a shining cleanliness. The food is fresh and tasty -- vegetables are grown by the commune itself. The staff make a special point of studying the diet and preferences of old people, children, nursing mothers and members with ailments. There is a separate room for parents with small children, provided with low tables for the little ones.( People’s Daily, 1958)
However, in practice, this ideal, extremely centralized form commune didn’t keep running well in most areas. Very soon it became clear that in most cases the communes were too clumsy to carry out successfully all the managerial and administrative functions that were assigned to them. The cooperative led to low-efficiency, the advantages of large-scale productivity didn’t arrive as peasants anticipated, productivity began to drop and discontent emerged. The reason lies in insufficient utilization of resources and lack of incentive of peasants. At one hand, the output of cooperation comes from all members’ work, in which the tribute of single household is difficult to be measured. So that opportunism like shirking happened naturally very frequently. An effective way to prevent shirking is to have all members supervised, but the seasonal work and spatial diversity of agricultural productive activities make it difficult to totally supervise. At the other hand, although brigade and production team cadres were obliged to complete state’s planning and all kinds of deliveries, the control right and residual claim of the people’s commune system were in the state’s hand, these cadres at grass-level could not design any reasonable incentive mechanism to encourage peasants to work hard and produce according to reasonable natural condition, such as soil, irrigation and farm year. The way left for brigade and team cadres was to punish peasants by struggling against them or maltreatment. But the brigade and team cadres also belonged to members of production teams, they and their families lived in the same community with their subordinates as well, so punishing peasants could also make themselves in trouble. Moreover, under the property rights structure of the commune system, the rest of output was not belong to the commune, brigade or even production team, but to the governments of higher level. This made the supervisors’ effort unrelated to any reward. As a result, even the supervisor himself has not enough incentive to work and shirk himself sometimes. In a word, under such conditions of poor supervision, in which all the work was distributed equally among all members at the lowest level--production team, shirking became every member’s rational choice and further weakening the efficiency of the system (Lin,1990).
De-collectivization
To prevent peasants from slow down, shrinking and escaping in work, and assure the system could keep on moving, the party collected all productive equipments and forbid members in people’s commune engaging in private production and business on the one hand, and at same time deprived peasants’ right of migrating from countryside to city or between districts by means of household registration on the other hand. Nevertheless, such policies had no effect on improving incentive of peasants, but they formed at least political press on very member of people’s commune, because it turned out that everyone’s only routine is to stay in the commune and finish one’s task. Without the right to leave or get better than others, peasants commonly chose to work with little effort, e.g. a passive method, to evade production tasks assigned by leader. Little accumulation and shirking made countryside widely fall into poverty , rare rural region had good conditions to develop industry or to improve commerce, infrastructures went worse, productivity sank quickly. The most serious crisis for agricultural collectivization happened between 1959 and 1961. GNP decreased from 213.8 billion Yuan in 1958 to 180.0 billion Yuan in 1962, with an average annual reduction of 15.1% in gross industrial production value and an average annual reduction of 19.3% in gross agricultural production value from 1958 to 1960. Owing to the serious shortage of food, a great famine took place in the whole country and at least 30 million residents died (Tan, 2000). Discontent with such system broke out, in some areas, peasants didn’t want to relied so heavily on orders from above and made so little allowance for local conditions or local initiative. The severe crisis forced the Party to adjust their policies. From 1961 on, commune functions were reduced to administration and co-ordination, production team was confirmed as the basic unit of accounting, certain production decision making was delegated to production teams, which were allowed to retain some income to overcome problems of egalitarianism; households again allowed to have small private plots and sidelines for planting vegetables, and a limited opening markets for transaction between urban and rural areas. However, these adjustments didn’t mean to change the system of people’s commune, but only to prevent peasants from rebel. From 1966 to 1976 China suffered the disaster of Cultural Revolution , there were large institutional swings took place in this period, in which co-operative moved from small to large and from team to brigade to commune again, local free markets, sidelines and private plots was prohibited again, and political factors had a great influence on production decisions.
In late 1970s, after the Leader Chairman Mao passed away, the requirement for improving agricultural productivity came alive. Administrators in provincial-level units with extensive regions of low yields and consequent low standards of living began experimenting with new forms of tenure and production. To avoid frontal conflicts of wide scope with government’s policies and the main ideology, a gradual approach was adopted. The first step of reform was to divide the production team into groups and to fix yield quotas for each group. Each group signed a contract with production team, the contractual items included the conditions of using land, laborers, farm tools and draft animals, the expenditure, labor contribution, rewards for excessive labor contribution and so on. After completing the tasks assigned by the production team, the output could be distributed among work groups according to their labor quotas. And then, the further solution was put forward, namely the typical form of fixing quotas called “all-round contract”, which was initiated by a few brave peasant secretly in Fengyang county of Anhui province. this contract regulated, household was allowed to cultivated a certain parcel farmland in the group, if grain quotas assigned by the state and the collective accumulation were accomplished, the household could own all the residual output. In the light of the contract, peasants were given directly stimulation to produce. The experiment was deemed successful and popular, and it soon spread to all districts.
At another side, political situation was appropriate with the reform form below. In the Eleventh National Party Congress, held August 12- 18, 1977 proclaimed the formal end of the Cultural Revolution, blamed it entirely on the Gang of Four , and reiterated that "the fundamental task of the party in the new historical period is to build China into a modern, powerful socialist country by the end of the twentieth century." The reformer Deng Xiaoping was elected as vice chairman and back to political stage and suggested a series of reform plans, though many contradictions still were apparent, change of policy was regarded as necessary. Rehabilitations of Deng's associates and others sympathetic to these reform plans were stepped up. Not only were some of those purged during the Cultural Revolution returned to power, but also individuals who had fallen from favor as early as the mid-1950s were rehabilitated. It was a time of increased political activism.
In November 1980, the Central Committee of Communist Party of China issued the document Some Issues of Further Reinforcing and Improving the Responsibility System in Agricultural Production. This article manifest the first time that the Party accepted the production responsibility systems developing in practice. In the document fixed output quotas of farmland for each group and responsibility contracts in some specialized obligations were indicated, at the same time, the fixed output quotas for household was also regarded as positive. Under the encouragement of government’s policy and related support measures, plenty of production responsibility systems developed very rapidly in rural areas. In 1981, a wide deeper reform called fixing the contribute quote for each household (bao gan dao hu), which was much more radical, was implemented. In accordance to the system, all collective lands in production teams were to be distributed among households based on their population or laborers. The households could manage the lands, made production decisions by themselves, and bore the results. When tasks assigned by upper government and the collective accumulation, e.g. a certain quantity of grain and livestock, were completed, the remained products could be owned by the households and not distributed among members in the production team. Moreover, if the household made sure that they have enough ration, they had right to sell the left grain to state owned agricultural enterprises or consume them as they want, usually feeding livestock or making wine for example. That meant the model from Fengyang was finally admitted by Party. In October 1983, the Party and the State Counsel issued the document Notice of Separating the Co-operative from Politics and Setting Up the Township Government and required the cooperative to separate from local government. The act ordered that the people's communes were replaced by administrative townships. By the end of 1984, 98% of production teams had taken the reform of Household Responsibility System. It was until then, the collectivization system was dismantled completely.
Some Characters of De-collectivization and Problems left
No restitution
Yet, de-collectivization and the implement of the household responsibility system is neither a reform of the ownership of land nor a process of privatization. As we have mentioned above, after the Communist Party set up its own government in 1949, it started land reform and distributed lands to the poor from landlords and rich peasants. Peasant acquired parcels of land according to the labor forces, then land were registered under name of each household. Before the eve of collectivization, most of lands in rural China were legally privately owned. But when de-collectivization began, peasants did not get back their former lands again. The household responsibility system only distribute the right of manage and benefit of lands among households according to their population or laborers. So, the de-collectivization in China did not like that in most of East European countries such as Bulgaria, Czech, Hungary, Poland, Romania and Slovakia, but like that in Albania. That is to say, there was no restitution of land. However, in former East European Countries, whether restitution was implemented or not, the de-collectivization had symbiosis with privatization. In China, although during the process of de-collectivization there were in reality some opinions that lands should be restituted, such voices were not accepted, nor even discussed.
The reasons why restitution of land in the de-collectivization of rural China did not happen may lie in some historic reasons. First of all, although peasants in China had private ownership over lands before the collectivization, large percent of peasants owned farmlands that did not belong to them before, they obtain them from political transformation. Theoretically, violence can’t consist the legal reason of transfer of ownership over real estate, therefore even after the terrorize during the land reform at beginning of 1950s, the private ownership of lands, which was made out by the communist government, had not yet became stable and commonly accepted. However, the former landlord class had rooted off during the political movement, land contacts and register books of land title had been destroyed, no one dare to challenge the power of Communist Party anymore. Since the collectivization began soon after the land reform, the new established owner relationship was broken again, when de-collectivization came about, without supports from the central government, most of peasants only took the household responsibility system as another chance of equally distributing lands, just like the land reform in 1949. As to descendants of former landlord class, they might have not forgotten the experience of their poor ancestors’: claiming private right before the Party which regarding public ownership as universal truth is a dangerous deal.
Secondly, different from most country in former communist east European countries , in which farmers’ nominal ownership of lands was remained, even though their lands were requisitioned in collective farms without any payment, and so that it was easy for peasants in these countries to take back the land when the collective farms went over. On the contrary, in China, private ownership of land was totally abolished as soon as the people’s commune system was set up, after 20 years, the collective ownership had already fest basis. As a result, the transaction costs of restitution so high as to wipe it out. That means, even a peasant want to take back the former farmland which belonged to them, it’s very hard to him to collect the relevant evidences to support his claim, moreover, there was no legal justice process to support such application. So normal farmer would rather to accept the Household Responsibility System.
Finally, the key reason lies in the socialism system itself. Even though the Communist Party of had poor performance in leading the country and its people to wealth and happiness during socialist revolution, Chinese people have taken socialism as the characteristic of the country for grant, after all the slogan “ Socialism saved China” has been deeply impressed. So that even after the Culture Revolution, most people still propped up the Party. The Party led the rural reform and decided the de-collectivization. However, the reform is a “liberation of the rural productivity”, which suit the requirement of the Party. Because the Chinese Communist Party insisted that his mission is to realize socialism, and socialism is based on public ownership system. Collective ownership was deemed as one form of public ownership in rural regions, so that as China kept on the road of realizing socialism, “land in rural areas belong to collective” was certainly remained after rural reform, and regulated in the Constitution of 1982, which is valid till now.
At the time of de-collectivization, the dissolution of people’s commune and the wide implement of responsibility system were regard as a great innovation. According to the statistic, The Household Responsibility System did bring about a more prosperous agriculture in China. From 1978 to 1984, grain output in China increased at an annual average rate of 5% and the gross value of agriculture by 7.7% (Lin, 1997). In contrast with former European countries, the de-collectivization seems bring more benefit to Chinese peasants at beginning. So that at that time, rare peasant did realize that such a reform without transformation of ownership was incompletely. However, The natural shortcomings of the de-collectivization would surely bring a series of problems.
institutional problem: land distribution
As we showed above, the de-collectivization ran smoothly and the introduction of Household Responsibility System has got a great success, although it could not address everything as only an institutional innovation. After several years of practice, it has been already proved that there are a number of weaknesses and limitations remained from the incompletely de-collectivization. One has to confirm, that the collective ownership and contract system led to the inequity in both economic and political features.
In economic view, during the de-collectivization, farmland was distributed to individual households in form of fragmented farming units. The principle of land distribution was derived directly from collective ownership. Farmland in a village was owned by all of its members collectively. As a result, every member had equal right to claim on distribution of the land according to certain norm, which was based primarily on the size of the peasant family. In reality of China with abundant population and limited land, the amount can be distributed to each household was very small. Moreover, land differed from each other in terms of soil fertility, irrigation conditions, location and so on. In many cases, a household had to obtain pieces of land from each of the grades. as a result, the sum was not only insufficient but also disjointed and scattered around villages. Large areas of cultivated land were wasted in the form of paths and boundaries separating households' contract field. A survey conducted by the Chinese Ministry of Agriculture indicated that in 1986, among 7983 sample villages from 29 provinces, average cultivated area per household was 0.466 ha (7 mu) fragmented into 5.85 plots, each plot on average 0.08 ha (1.2 mu) (Ministry of Agriculture of China, 1993) . This fragmented structure of family farming has remained largely untouched after implement of contract system and has detained the possibilities of using relatively advanced mechanical agricultural equipment and infrastructures.
Under such system, farmers turned to be short-term in action. According to the distribute rule of land in household responsibility system, land is to distribute depended only on villager status, babies and villagers' new-comer such as newly married bride from other villages were all eligible claimants, which having equal rights to share equal amounts of land in this village; on the contrary, when a villager left or died, the right of land claim would automatically withdraw. As population increased, villages had to readjust the distribution structure, which further subdivided the farmland . The endless redistribution of farmland resulted in many problems, including: 1) the situation of a small and fragmented farming structure further deteriorated; 2) worrying about the risk of losing their land as well as investment, farmers had little incentives to improve land conservation and agricultural infrastructure - irrigated land, one of the most significant components of agricultural infrastructure in China, remained almost unchanged during the 1980s; 3) farmers over-exploited the soil to pursue short-term profits; 4) the course of land redistribution was also costly, it required labor and time in organization and execution. (Chen, 1999)
Another problem is that farmland was generally badly endowed with the appropriate human capital. Since egalitarianism was the general leading principle rule, which gave little consideration to interfamily differences such as labor capability, education and individual preference . As a result, some large households with a incomplete labor force could have comparably much more land to cultivate, meanwhile other smaller households, above all those specialized in agriculture, could have only inadequate land for full employment. Such kind of problem was much worse in rural areas experiencing rapid township or village industry and urbanization. In those region there was often deterioration in the agricultural labor force since most of capable labors tended not to work at home as a farmer. There were many who did not give priority to cultivation and at times even let the land lie unused. Consequently, the farmland was underutilized .
Upon preceding analyzing, we can see that, in order to pursue egalitarianism on surface in distribution of land, in the process of the de-collectivization sacrificed economic efficiency. Thus, if the land was private, then those difference arouse from distribution will decease after enough time, because the free market will lead to equal efficiency through the choose of market. However, such political background lacked from beginning on, so that the shortcoming of a non-privatization de-collectivization can’t be corrected or even be enlarged because of problem of political system.
One of the main reason is political structure over the collective ownership. First at grass-root level, it was usually the village head, who takes the power to decide distribution since decentralization. So that the cadre family or their relations will surely benefit from the distribution. Having a cadre in the family seems to be a certain prerogative in using their political status to accumulate wealth. At one hand, Village cadres may allocate more fertile parts of the village land to themselves and determined more favorable grain sales quotas for themselves. And also, cadres have more opportunity to build personal relationship with higher level and other important departments, rural credit banks or transportation companies for example, so that they have more chance to obtain material benefit than normal peasants. As we see, most of collective enterprises and private economies in rural areas have tight relationship with local governments, at the basic level, with villager cadres, most rural enterprisers are villager leader themselves. Furthermore, cadres and their relations generally tend to break the policy of birth control, because they are capable to support more family members, and their kin will strengthen their economic and political power in return.
At another hand, though according to the election regulation of rural cadre in china, these village cadre should be elected directly by villagers, who have common interest in the community, this rule has been almost never put into practice. Under one Party system and public ownership system, all important resources are gathered in the Party’s hand, as a result, instead of election, the opinion from higher level plays a significant role, in order to carry ort the policy of Party efficiently. In fact, two factors determine the candidates in appointment of village head, one is the relationship with official of higher level, and the other is kinship. Consequently, cadre family takes all advantages to maintain their power and status through such appointment. So, cadres in rural China don’t represent the benefit of their village members, but the power of the Party as well as the family, there is no possibility for peasants to claim equality or save their from suffering as a peasant.
In a word, after a short flourish in rural China, which came along with the de-collectivization and the implement of Household Responsibility System, most peasants have to face the irrational occupation and distribution system of farmland and the political system, which is impossible to change. Besides there was strict limitation prevent peasants from abandoning their responsible land and rushing into cities, so that the peasants found it is hard to change their situation or turn it more better and free. This may explain why in rural china exists always the tendency of over population but the income of household began to decrease only after less than 10 years from the de-collectivization. As a result, land reform in China has emerged as a difficult issue in rural areas of exchange between social equality and economic efficiency. It seems obvious that since the mid-1980s the wide rural society has been caught in this predicament: where social equality or equity worsened, and at same time economic efficiency held back.. According to statistics, average net income in countryside has been slowed down for years. In 2000, the household average income only reached 272 dollars, but the Gini coefficient in China base in urban and rural areas rose from 0.21 in 1978 to more than 0. 46.