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Criminal Defence in China: The Possible Impact of the 1996 Criminal Procedural Law Reform*

Published online by Cambridge University Press:  12 February 2009

H. L. Fu
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Extract

Criminal procedure in China had been governed by the 1979 Criminal Procedure Law (CPL 1979). This was amended in 1996 (the Amendment). In many aspects, the Amendment introduces important changes to the previous procedures and significantly redistributes the existing division of powers within the criminal justice system. It restricts police power and the prosecution's discretion. It enhances the position of the court and differentiates the role of judges. It also offers more protection for the rights of the accused and enhances the position of defence lawyers in the criminal process in substantive and procedural aspects. Consequently criminal lawyers are expected to play a more active and meaningful role in criminal defence.

Type
Research Article
Information
The China Quarterly , Volume 153 , March 1998 , pp. 31 - 48
Copyright
Copyright © The China Quarterly 1998

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References

1. For studies of the CPL 1979 in English language, see Chen, Albert H. Y., An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths, 1992), ch. 9Google Scholar; Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993)Google Scholar; Leng, Shao-chuan and Chiu, Hungdah, Criminal Justice in Post-Mao China: Analysis and Documents (Albany: State University of New York Press, 1985).Google Scholar

2. The new law became effective on 1 January 1997. For commentaries on the Amendment, see Fu, H. L. “Criminal Procedure Law,” in Chengguan, Wang and Xianchu, Zhang (eds.), Introduction to Chinese Law (Hong Kong: Sweet & Maxwell Asia, 1997)Google Scholar; and Lawyers Committee for Human Rights, Opening to Reform? An Analysis of China's Revised Criminal Procedure Law (New York: Lawyers Committee for Human Rights, 1996).Google Scholar

3. Art. 12 of the Amendment expressly states that: “No one is guilty of a crime without a people's court rendering a judgment according to law.”

4. Art. 125, Constitution of the People's Republic of China.

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7. Except for “minor criminal cases and cases otherwise provided for by law” which can be tried by a single judge. Article 10, Organic Law of People's Court 1983 (OLPC).

8. Art. 11 of the OLPC states that the members of the judicial committee are appointed and removed by the Standing Committee of the People's Congresses at the corresponding levels, upon the recommendation of the presidents of these courts. The task of the judicial committee is to “practise democratic centralism,” including summing up judicial experience and discussing important or difficult cases. As a practice, a judicial committee includes the president of a court, the vice-presidents and judges in charge of the different divisions (criminal law, administrative law, etc.).

9. Art. 108, CPL 1979.

10. Art. 109.

11. In rare cases, a lawyer may be able to persuade the court to change its pre-determined verdict. In a recent trial, a trial court was persuaded to accept a not guilty defence after “repeated studies and with permission.” It is important to note that the defence lawyer in that case is a well-known criminal law professor and his personal influence had an effect. Binzhi, Zhao, “Correctly distinguish a violation of financial disciplines and the offence of embezzlement,” Zhongguo lüshi (China Lawyer), No. 3 (1995), p. 5 (interview with Professor Zhao Binzhi, 07 1995)Google Scholar. It is openly conceded by judges and lawyers interviewed by the author that a “well connected” lawyer will be useful for an accused. This article is partially based upon the author's informal and open-ended interviews with five judges, three prosecutors and 11 defence lawyers since 1995.

12. The system of criminal defence was formally set up in the People's Republic of China in January 1956. The system was met with hostility and abolished in late 1957. See Jincun, Xu, Lüshi xue (Studies on Lawyers) (Chengdu: Sichuan People's Press, 1994).Google Scholar

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16. Ibid.

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35. Jieming, Wu, “Preliminary discussion on pre-trial communication among lawyers, judges and procurators,”Google Scholar in Ministry of Justice, Theory and Practice, p. 1376.Google Scholar

36. Ibid.

37. Ibid.

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41. Art. 113, CPL 1979.

42. Art. 114.

43. Art. 116.

44. Art. 117.

45. Yinche, Yang, “Defence lawyers should have right to produce expert witness,” Zhongguo lüshi (China Lawyer), No. 11 (1994), p. 8.Google Scholar

46. Art. 118, CPL 1979.

47. Shanren, Xiao, “A person without legal qualification may not be a defender,”Google Scholar in Ministry of Justice, Theory and Practice, p. 1319.Google Scholar

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53. LAC, Submission of Ministry of Justice on the Amendment of CPL 1996.

54. LAC, Submission of Supreme People's Procuratorate on the Amendment of CPL 1996.

55. LAC, Submission of Ministry of Public Security on the Amendment of CPL 1996.

56. Lawyers Committee for Human Rights, Opening to Reform?

57. Wei, Zhang, “Several questions in lawyers' participation in criminal litigation,” Zhongguo faxue (Chinese Legal Studies), No. 5 (1994), p. 40.Google Scholar

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59. Art. 26, Lawyers' Regulations of Shenzhen Special Economic Region (draft). On file with the author.

60. Shenzhen Special Economic Zone, Lawyers' Regulations of Shenzhen Special Economic Zone (1995)Google Scholar. On file with the author.

61. LAC, Submission of Supreme People's Court on the Amendment of CPL 1996.

62. Fei, Lu, “Reforming the model of trials,” Zhongguo faxue (Chinese Legal Studies), No. 5 (1994), p. 48.Google Scholar

63. Art. 15 of the Organic Law of People's Procuratorate (1983) provides: “In legal proceedings instituted by a people's procuratorate, the chief procurator or a procurator shall attend the court session, in the capacity of state prosecutor, to support the prosecution and exercise supervision over the court proceedings, and to determine whether they conform to the law.” According to Lu Fei (ibid.) from the Supreme People's Procuratorate, the procuratorate has the power to supervise the trial by raising objections whenever “there is something unlawful during the trial.” But the objection raised is often ignored by the court. Judges in Zhuhai admit that the procuratorate's supervision is not very useful.

64. Fei, Lu, “Reforming the model of trials,” pp. 47–49.Google Scholar

65. LAC, Submission of Supreme People's Procuratorate on the Amendment of CPL 1996.

66. Art. 150, CPL 1996.

67. Art. 149.

68. Art. 96.

69. Ibid.

70. Art. 38.

71. Interviews with lawyers from Beijing, January and February, 1997. See Lawyers Committee for Human Rights, Opening to Reform? p. 58.Google Scholar

72. A case shall be remanded for retrial in following circumstances: (1) the requirement for public trial is violated; (2) the requirement for withdrawal is violated; (3) the parties' lawful rights in litigation are deprived or unlawfully limited, and such deprivation and limitation may have prejudiced a fair trial; (4) the trial organs are not lawfully set up; or (5) there are violations of other rules regarding litigation procedures, and the violation may have affected a fair trial.

73. Art. 66, CPL 1996.

74. The Ministry of Justice is now formulating plans for legal aid in China. Pilot projects have been set up in Beijing and Guangdong. According to Shen Bailu, Head of the Department of Lawyers in the Ministry, China's legal aid will follow international experience and at the same time consider China's actual circumstances. The purpose of the proposed plan is to demonstrate the fairness and justice of the legal profession and force the legal profession to consider not only the economic effect of their profession but also the social impact. Thus the plan is both to serve those unable to afford lawyers and to enhance lawyers' public conscience and civic responsibility. Fazhi ribao, 22 02 1995.Google Scholar

75. For a study of the inconsistency between China's National Security Law and the Implementing Rules for the National Security Law, see Fu, H. L. and Cullen, Richard, “National security law in China,” Columbia Journal of Transnational Law, No. 34 (1996), p. 149.Google Scholar

76. Waiguo, Zhang, “The abuse of ‘residential supervision’ in Beijing,” Mingbao, 31 10 1996.Google Scholar Such practices are said to be popular now. In the Shenzhen Special Economic Zone, for example, the police have built at least one hotel-style detention centre, where a suspect is detained for a prolonged period of time under the name of “residential surveillance.” The suspect has to pay for the accommodation (interviews with lawyers from Shenzhen, May 1997).

77. Interview with three lawyers from Beijing, March 1997. They all predicted that the police proposal would meet strong resistance from the Chinese Bar.