Chinese Criminal Research Articles

Emerging judicial autonomy and procedural due process in the PRC? An empirical study of China’s exclusionary rule

ABSTRACT Drawing upon a quantitative empirical analysis spanning ten years of judicial decisions, this paper assesses the implementation of an exclusionary rule in the People’s Republic of China (PRC). It tests the effectiveness of the relevant articles of the Chinese Criminal Procedure Amendment of 2012 (providing for exclusion of illegally obtained evidence). It considers 1,558 trial court decisions, appeals, and remands concerning the nascent exclusionary rule, compared to exclusion practices prior to the amendment’s enactment. It considers trends in use, types of cases, types of remedies afforded, and the basis for exclusion. The data disclose that the initial negative assumptions of many scholars and stakeholders were largely groundless, as this cause of action has become commonly used, resulting in significant numbers of retrials, reversals, and partial reversals. This paper also draws upon a literature search of Chinese law scholars to develop a set of rational categories for assessing early pessimism over the legislation’s viability. Principally, this consists of four core legal objections: exclusion conflicts with the PRC’s absence of rights against self-incrimination; lack of constitutionally mandated exclusionary protections; generic lack of judicial autonomy; and the lack of legal counsel. The empirical data offer a clear picture that these factors have failed to meaningfully impede the operation and functioning of the Chinese Criminal Procedure Amendment, and perhaps surprisingly, after more than six years, exclusion is now an intrinsic part of the PRC criminal justice landscape. This paper concludes that, despite reversals of liberal policies within political bodies of the PRC, what emerges in the judiciary is an otherwise counterintuitive growth of judicial autonomy, professionalism, and deference to procedural due process.

Analysis of Review of the Principles of Law and Justice Principles in Indonesia (Study on the Constitutional Court's Decision Number 66 / Pu-XIII / 2015)

This study aims to find out how the basic idea of ​​the existence of a Reviewing Institution in criminal proceedings in realizing legal certainty and justice; Implications of the decision of the Constitutional Court Number 66/PU-XIII / 2015 and the formulation policy on future review of the Criminal Procedure Code. This research is normative legal research. The approach used is the law approach; conceptual approach and comparative approach. The results of this study are: In accordance with the nature of the final and binding decision of the constitutional court, the Constitutional Court Decision Number 66 / PU-XIII / 2015 refers to the fundamental principle that justice is the highest legal objective. Citizens' rights as guaranteed by the constitution must not be restricted because they are guaranteed by the constitution. Based on a comparative formulation study in several countries such as in the Chinese Criminal Procedure Code and the Dutch Criminal Procedure Code, the regulatory norms regarding the number of times the Submission of Judicial Review may be submitted are not formulated but the KUHAP of the two countries further regulates in detail the mechanisms and procedures for the Judicial Review. Then the policy formulation of norms for reviewing the KUHAP in the future in addition to referring to the comparison but also must be constitutional in accordance with the decision of the Constitutional Court Number 66 / PUU-XIII / 2015.

Procedural Justice and the Fair Trial in Contemporary Chinese Criminal Justice, by Elisa Nesossi and Susan Trevaskes. Leiden: Brill, 2018. vii+92 pp. €70.00/US$84.00 (paper and eBook).

Previous articleNext article No AccessReviewsProcedural Justice and the Fair Trial in Contemporary Chinese Criminal Justice, by Elisa Nesossi and Susan Trevaskes. Leiden: Brill, 2018. vii+92 pp. €70.00/US$84.00 (paper and eBook).Hualing FuHualing FuUniversity of Hong Kong Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The China Journal Volume 82July 2019 Published on behalf of the Australian Centre on China in the World at the Australian National University Article DOIhttps://doi.org/10.1086/703297 Views: 57Total views on this site For permission to reuse, please contact [email protected]PDF download Crossref reports no articles citing this article.

Procedural Justice and the Fair Trial in Contemporary Chinese Criminal Justice

AbstractThis review examines the literature on procedural justice and the fair trial over the past two decades in the People’s Republic of China. Part 1 gives a wide-angle view of the key political events and developments that have shaped the experience of procedural justice and the fair trial in contemporary China. It provides a storyline that explains the political environment in which these concepts have developed over time. Part 2 examines how scholars understand the legal structures of the criminal process in relation to China’s political culture. Part 3 presents scholarly views on three enduring problems relating to the fair trial: the presumption of innocence, interrogational torture, and the role of lawyers in the criminal trial process.Procedural justice is a particularly pertinent issue today in China, because Xi Jinping’s yifa zhiguo 依法治国 (governing the nation in accordance with the law) governance platform seeks to embed a greater appreciation for procedural justice in criminal justice decision-making, to correct a politicolegal tradition overwhelmingly focused on substantive justice. Overall, the literature reviewed in this article points to the serious limitations in overcoming the politicolegal barriers to justice reforms that remain intact in the system, despite nearly four decades of constant reform.

A Probe into Testimony Stylesin Chinese Criminal Trials: A Narrative Structure Perspective

The present study based on Labov rsquo s narrative theory focuses on how witnesses rsquo involvement affects their narrative reconstruction of the criminal trial Witnesses rsquo involvement is first subcategorized and there are two circumstances concerning their involvements one being single suspect versus victim s crime and the other multi suspects versus victim s crime The present study takes four witness statements from a single suspect assault case as data to further analyze the effects exerted bydifferent witness involvementson witness testimonies and theircorresponding representations Results of the analysis indicate that how witnesses are involved in the criminal event exert different effects on their testimony styles in three aspects narrative structure participant distribution and language strategies The results of this study further reveal that the more legal responsibility a witness is likely to take for the criminal event the more transformations he would make in his narrative reconstruction of the crime

The Past and Present of the Chinese Civil and Criminal Justice Systems

This article starts with the entirety of the Chinese “justice system,” past and present, to reconsider informal justice (among the people) and formal justice (of the state), emphasizing especially the interdependence, overlap, and interaction of the civil and criminal justice systems. It then compares the justice system to the analytical framework employed by the “Rule of Law Index” of the World Justice Project (WJP), to bring out the similarities and differences between the “Sinitic legal tradition” and modern Western justice, and also the sharp contrasts between Chinese mediation and Western “alternative dispute resolution” (ADR). The purpose of the article is to demonstrate how a number of influential common assumptions are mistaken, and how the Sinitic legal tradition remains important in contemporary justice, not just of China but also the other major “East Asian civilization” countries. The purpose is to search for a path that would go beyond the either/or binary opposition between the Chinese and the Western, and the past and the present.

On the Definition of Crimes Committed by Chinese Mafia-Style Criminal Gangs

On the Definition of Crimes Committed by Chinese Mafia-Style Criminal Gangs

Chinese criminal trials: a comprehensive empirical inquiry

In the past decade, research on Chinese criminal justice has witnessed a notable shift from broad–brush doctrinal overviews to fine–grained empirical studies using social science methods. With different research agendas, both criminal procedure law professors in China and social scientists overseas (mostly criminologists and socio–legal researchers) have begun to collect and analyze empirical data on various aspects of the criminal justice system. Ni He’s new book Chinese Criminal Trials is a recent product of this new trend. While many existing books on the Chinese criminal justice system focus on one specific aspect of it, such as policing, court trial, or criminal defense, He’s study provides a comprehensive examination of the system with both historical length and empirical breadth. The book opens with a short but ambitious overview of the historical context of Chinese criminal justice from antiquity to modernity. The author traces the legacy of the Chinese legal system and its institutional arrangements in Imperial China, such as the yamen and bureaucratic norms. Then he proceeds to analyze the socio–legal context of the contemporary Chinese criminal justice system in terms of the “tripartite rules” (pp.39–46), namely, rule of man, rule by law, and rule of law. These two parts are mainly based on the secondary literature on Chinese law, with occasional references to general social theorists such as Montesquieu, Parsons, Merton, and Inglehart in explaining the structural and cultural transformations of the so–called “Chinese legality” (pp. 10–14). The core empirical findings are reported in Part III, arguably the most exciting and valuable part of the book. The research is based on a pilot study in a southeast province of China during 2009–2011, funded by the MacArthur Foundation. The data consist of three components: (1) a survey of 642 legal professionals in the province, including 348 practicing attorneys, 177 criminal justice practitioners (i.e., those working in the police, procuracy, or court), and others working in the state or private sectors; (2)325 criminal trial observations; and, (3) 149 complete criminal case files. This excellent combination of complementary data sources provide the author a great opportunity to Crime Law Soc Change (2014) 62:87–89 DOI 10.1007/s10611-014-9521-y

Chinese Criminal Procedure Reform of 2012 ‒ How Much Reform Did it Bring?

Article Chinese Criminal Procedure Reform of 2012 ‒ How Much Reform Did it Bring? was published on October 1, 2014 in the journal Zeitschrift für die gesamte Strafrechtswissenschaft (volume 126, issue 3).

Chinese Criminal Procedure Reform of 2012 How Much Reform did it Bring?

The 2012 reform of the Chinese Criminal Procedure Code may be taken as evidence that a new democratic openness has pervaded Chinese political and social life. The protection of individual rights was improved. On the other hand, traditional powers of the police were retained and sometimes extended. This article will offer critical comments on some of the most important changes the 2012 reform brought. At the same time, the article will indicate alternative solutions that can be found in other countries and that might serve as a model for further changes of the Chinese system. The following problems will be discussed: The exclusionary rules that were added to the Code suffer from several shortcomings. The newly introduced privilege against self-incrimination is irreconcilable with the traditional duty of the suspect to tell the truth. To retain the prosecutor's power to decide on arrest is hardly in line with international law and the law of other countries. The new residential confinement at a “designated residence” must be considered unsupervised police custody – an official measure that does not exist anywhere else. General wide and uncontrolled investigatory powers of the police would have needed restriction. As criminal justice systems must be considered living organisms that develop in dynamic ways, there is hope that problems left by the 2012 revision will be solved by future reforms.

The Abuse of Guaranteed Pending Trial in the Chinese Criminal Process: A Violation of International Human Rights Law

Guaranteed pending trial (Qubao Houshen) is one of the coercive measures used by the Chinese authorities to release suspects on bail in the criminal process. Unlike the western general practices, this instrument is not characterized as a legal right of suspects, but an effective means to circumvent the procedural requirements of investigation and prosecution in the laws. Further, the abuse of guaranteed pending trial is in fragrant violation of minimal international standards of human rights protection in the criminal justice system. The article first examines the procedural and practical deficiencies of this measure in the Chinese context. It then argues that the Chinese authorities ought to reform guaranteed pending trial by bringing it in line with the relevant global norms. To achieve this goal, certain overseas models that have proven consistent with the international criteria of human rights protection are expected to be borrowed. It concludes that the mature western experiences are indeed of benefit to the reconstruction of the regulatory framework of guaranteed pending trial, but their embeddedness should be compatible with the Chinese legal and cultural particularities in order to maximize their adaptability. However, given the Chinese long-standing perception of denying individual human rights, the current guaranteed pending trial system may not be advanced along with the legal reforms, so a genuine bail mechanism is unlikely established in the Chinese criminal process in contemporary China.

Investigating Chinese Crime Entrepreneurs

This article gives a brief overview of how Chinese criminals, residing in the Netherlands, organize their illegal businesses. It will focus on the smuggling of precursor chemicals PMK and BMK, which are used for the production of MDMA and amphetamine respectively. The Chinese crime community that is being described here is predominantly Cantonese speaking. Chinese criminals from Hong Kong and the Guangdong province who live in Europe have been traditionally active in the smuggling of various illegal goods (they are not involved in human smuggling). Since the early 1990s, these criminals have shifted their attention to the trading of precursor chemicals that are smuggled from China. In describing the organization of their activities, the article will also address the backgrounds of the Chinese criminals and several cultural aspects that play a significant role in the way they organize their crimes. Finally, several recommendations will be put forward that have to be taken into account when investigating Chinese criminal groups.

Weiquan (Rights Protection) Lawyering in an Authoritarian State: Building a Culture of Public-Interest Lawyering

A group of private lawyers known as rights-protection (weiquan) lawyers are emerging in China showing keen interest in solving the cases affecting the public interest. These different types of weiquan lawyers helping public to shape the development of civil society.

Book Reviews

Books reviewed: China Dore J. Levy, Ideal and Actual in “The Story of the Stone”Gregor Benton (ed and trans), Chen Duxiu's Last Articles and Letters, 1937–1942Eileen Chang, The Rice‐Sprout SongEileen Chang, The Rouge Of The NorthAnne E. Mclaren, Chinese Popular Culture and Ming ChantefablesEdward S. Steinfeld, Forging Reform in China: the Fate of State‐Owned IndustryPeter Conn, Pearl S. Buck: a Cultural BiographyFlemming Christiansen and Zhang Junzuo (eds), Village INC. Chinese Rural Society in the 1990sHarold M. Tanner, Strike Hard! Anti‐Crime Campaigns and Chinese Criminal Justice 1979–1989 Japan, Korea Lonny E. Carlile and Mark C. Tilton (eds), Is Japan Really Changing Its Ways?: regulatory Reform and the Japanese Economy.Peter Katzenstein and Takashi Shiraishi (eds), Network Power: Japan and AsiaBernard Faure, The Red Thread: Buddhist Approaches to Sexuality South, West & Central Asia Vijay Mishra, Devotional Poetics and the Indian SublimeOliver Mendelsohn and Marika Vicziany, The Untouchables: subordination, Poverty and the State in Modern IndiaDonald S. Lopez, Jr, Prisoners of Shangri‐La: Tibetan Buddhism and the WestMelvyn C. Goldstein and Matthew T. Kapstein (eds), Buddhism in Contemporary Tibet, Religious Revival and Cultural IdentityPeter Richardus (ed), Tibetan Lives: three Himalayan AutobiographiesRamakrishna Puligandla, Fundamentals of Indian Philosophy Southeast Asia Paul Hutchcroft, Booty Capitalism: the Politics of Banking in the PhilippinesVedi Hadiz, Workers and the State in New Order IndonesiaPramoedya Ananta Toer, Tales from Djakarta: caricatures of Circumstances and their Human Beings General Asia Yayori Matsui, Women in the New Asia: from Pain to Power

Law, Crime, Punishment and Society

Reviews Law, Crime, Punishment and Society Greg Marquis Black Eyes All of the Time. Anne McGillivray and Brenda Comaskey. Toronto: University of Toronto Press, 1999. 200 pp. Discrimination and Denial. Systemic Racism in Ontario's Legal and justice Systems, 1892-1961. Clayton James Mosher. Toronto: University of Toronto Press, 1998. 230 pp. Essays in the History of Canadian Law VIH In Honour ofR.CX. Risk. Eds. G. Blaine Baker and Jim Phillips. Toronto: Osgoode Society, 1999. 585 pp. The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives. David Cayley. Toronto: House of Anansi Press Ltd., 1998. 388 pp. Final Appeal. Decision Making in Canadian Courts of Appeal. Ian Greene et al. Toronto: James Lorimer and Company Ltd., 1998. 235 pp. Justice in Paradise. Bruce Clark Montreal: McGill-Queen's University Press, 1999.371 pp. Making Sense of Sentencing. Eds. Julian V. Roberts and David P. Cole. Toronto: University of Toronto Press, 1999. 363 pp. Manufacturing Guilt- ngfi Convictions in Canada. Barrie Anderson with Dawn Anderson. Halifax Fernwood Press, 1998. 143 pp. Women on Guard: Discrimination and Harassment in Corrections. Maeve McMahon. Toronto: University of Toronto Press, 1999. 202 pp. Legal studies in Canada are experiencing a golden age as articles, anthologies and monographs produced by academics trained in the 1980s and 1990s continue to appear. Nine books, nearly 50 authors and more than 2,000 pages of text and notes later, this reviewer is suffering from intellectual fatigue, but the type that comes from a good workout. In terms of Canada's legal history, the Osgoode Society has been the leading force for publication for two decades. As of 1999 it had produced more than three dozen monographs or collections of essays. Its most recent anthology is edited by G. Blaine Baker and Jim Phillips, law professors who are also noted legal historians. Essays in the History of Canadian Law VIII evolved out of a 1998 conference dedicated to pioneering legal scholar R.C.B. Risk. In the 1970s the American-trained Risk published on the relationship between law and the economy in nineteenthcentury Ontario. Significantly, these essays did not appear in history publications, but in law journals. His work is largely unknown to most Canadian historians, but Risk has exerted an important influence on legal history scholars associated with law faculties. His stature is acknowledged by two scholars of international repute, Robert Gordon and David Sugarman, and his body of work and its effect are assessed in an insightful chapter by G. Blaine Baker. Most of the contributors to the Risk festschrift are involved with law schools, and the tone of most chapters tends towards classic legal history. Many of the contributions will challenge undergraduate students of history or criminal justice. Exceptions include Constance Backhouse's study of a racially motivated murder of a member of the Onyota'a:ka (Oneida) First Nation in 1902, a case study that underscores the lack of research on race and law in Canadian history. Hamar Foster's examination of Indian title in British Columbia and John McLaren's article on Chinese criminality in British Columbia from 1890 to 1920 also have broader appeal than mainstream legal history. White society racialized the Chinese not only through stereotypes, but through criminal law and law enforcement, especially in the areas of gambling, prostitution and opium smoking. McLaren indicates that although the Chinese in British Columbia were subjected to legal and bureaucratic racism, police harassment and informal discrimination, as a despised minority they also appealed to the rule of law and the courts for protection. On a more mundane level they utilized the civil courts for disputed commercial transactions. Because most criminal convictions against the Chinese were summary offences, it was rare for them to surface in appeal courts. …

Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979–1985. By Harold M. Tanner. Ithaca, N.Y.: Cornell University East Asia Program, 1999. x, 253 pp. $28.00 (cloth), $17.00 (paper).

Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979–1985. By Harold M. Tanner. Ithaca, N.Y.: Cornell University East Asia Program, 1999. x, 253 pp. $28.00 (cloth), $17.00 (paper).

Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985. Harold M. Tanner

Previous articleNext article No AccessReviewsStrike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985. Harold M. Tanner Murray Scot TannerMurray Scot Tanner Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The China Journal Volume 45Jan., 2001 Published on behalf of the Australian Centre on China in the World at the Australian National University Article DOIhttps://doi.org/10.2307/3182406 Views: 14Total views on this site Copyright 2001 The China JournalPDF download Crossref reports no articles citing this article.

Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985

Strike Hard! Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985

Strike Hard: Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985

Strike Hard: Anti-Crime Campaigns and Chinese Criminal Justice, 1979-1985

Evaluating the Chinese Criminal Justice System under International Human Rights Standards

Evaluating the Chinese Criminal Justice System under International Human Rights Standards