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

China Quarterly

Volumn , Issue 153, 1998, Pages 31-48

  Fu, H L ^a  

^a NONE

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EID: 0348193770     PISSN: 03057410     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0305741000002976     Document Type: Article

References (87)

1. For studies of the CPL 1979 in English language, see Albert H. Y. Chen, An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths, 1992), ch. 9; Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993); Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China: Analysis and Documents (Albany: State University of New York Press, 1985).
2. For studies of the CPL 1979 in English language, see Albert H. Y. Chen, An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths, 1992), ch. 9; Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993); Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China: Analysis and Documents (Albany: State University of New York Press, 1985).
3. For studies of the CPL 1979 in English language, see Albert H. Y. Chen, An Introduction to the Legal System of the People's Republic of China (Singapore: Butterworths, 1992), ch. 9; Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics (New York: Lawyers Committee for Human Rights, 1993); Shao-chuan Leng and Hungdah Chiu, Criminal Justice in Post-Mao China: Analysis and Documents (Albany: State University of New York Press, 1985).
4. The new law became effective on 1 January 1997. For commentaries on the Amendment, see H. L. Fu "Criminal Procedure Law," in Wang Chengguan and Zhang Xianchu (eds.), Introduction to Chinese Law (Hong Kong: Sweet & Maxwell Asia, 1997); 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).
5. The new law became effective on 1 January 1997. For commentaries on the Amendment, see H. L. Fu "Criminal Procedure Law," in Wang Chengguan and Zhang Xianchu (eds.), Introduction to Chinese Law (Hong Kong: Sweet & Maxwell Asia, 1997); 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).
6. 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."
7. Art. 125, Constitution of the People's Republic of China.
8. Zhang Sihan, "Several proposals on the reform of the model of trial," Zhongguo faxue (Chinese Legal Studies), No. 5 (1994), p. 47.
9. Lawyers Committee for Human Rights, Opening to Reform? p. 1.
10. 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).
11. 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.).
12. Art. 108, CPL 1979.
13. Art. 109.
14. 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. Zhao Binzhi, "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, July 1995). 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.
15. 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 Xu Jincun, Lüshi xue (Studies on Lawyers) (Chengdu: Sichuan People's Press, 1994).
16. Zhao Ying, "The position of defence lawyers in criminal litigation," in Ministry of Justice (ed.), Zhongguo sifa xingzheng de lilun yu shijian (Theory and Practice of Judicial Administration in China) (Beijing: Ministry of Justice, 1992), p. 1361. This book includes the abridged version of more than 1,000 published articles and conference papers related to the work of the Ministry.
17. Jiang Daijing "Protecting lawyers' rights in criminal litigation," in Ministry of Justice, Theory and Practice, p. 1367.
18. Ministry of Justice, "Notice on making full use of lawyers in severely striking down on crimes (14 October 1983)," Zhonghua renmin gongheguo falü guifanxing jieshi jicheng (Compilation of Normative Interpretations of Law of the People's Republic of China) (Changchun: Jilin People's Press, 1990), pp. 1730-31 (hereinafter Compilation of Normative Interpretations).
19. Ibid.
20. Jiang Daijing, "Protecting lawyers' rights."
21. Tan Zhen, "On pre-trial communication," in Ministry of Justice, Theory and Practice, p. 1380.
22. Zhen Dong, "Lawyers no longer officials," China Law, No. 1 (1994), p. 30.
23. See H. L. Fu and Richard Cullen, Media LaW in the PRC (Hong Kong: Asia Law and Practice, 1996), ch. 6. Carlos Wing-Hung Lo, "Criminal justice reform in post-crisis China: a human rights perspective," Hong Kong Law Journal, No. 27 (1997), p. 90.
24. See H. L. Fu and Richard Cullen, Media LaW in the PRC (Hong Kong: Asia Law and Practice, 1996), ch. 6. Carlos Wing-Hung Lo, "Criminal justice reform in post-crisis China: a human rights perspective," Hong Kong Law Journal, No. 27 (1997), p. 90.
25. Ibid. H. L. Fu, "Sedition and political dissidence: towards legitimate dissidence in China?" Hong Kong Law Journal, No. 26 (1996), p. 210; Human Rights Watch, Slamming the Door On Dissent: Wang Dan's Trial (New York: Human Rights Watch, 1996).
26. Ibid. H. L. Fu, "Sedition and political dissidence: towards legitimate dissidence in China?" Hong Kong Law Journal, No. 26 (1996), p. 210; Human Rights Watch, Slamming the Door On Dissent: Wang Dan's Trial (New York: Human Rights Watch, 1996).
27. Ibid. H. L. Fu, "Sedition and political dissidence: towards legitimate dissidence in China?" Hong Kong Law Journal, No. 26 (1996), p. 210; Human Rights Watch, Slamming the Door On Dissent: Wang Dan's Trial (New York: Human Rights Watch, 1996).
28. Even this seven-day rule is violated by provincial legislation. In the Rules on Lawyers in Guangdong province and Anhui province, the notification period is shortened to three days. Art. 12, Several Provisions of Anhui Province on the Performance of Duties of Lawyers (1988); Art. 8, Several Provisions of Guangdong Province on the Performance of Duties of Lawyers (1987). Difangxing fagui xuanban (Selections of Local Regulations), p. 1651 and p. 2558 respectively.
29. Even this seven-day rule is violated by provincial legislation. In the Rules on Lawyers in Guangdong province and Anhui province, the notification period is shortened to three days. Art. 12, Several Provisions of Anhui Province on the Performance of Duties of Lawyers (1988); Art. 8, Several Provisions of Guangdong Province on the Performance of Duties of Lawyers (1987). Difangxing fagui xuanban (Selections of Local Regulations), p. 1651 and p. 2558 respectively.
30. Legislative Affairs Commission (LAC), National People's Congress Standing Committee, Submission of the Ministry of Justice on the Amendment of CPL 1996. The LAC held several consultation meetings with interested parties. The participants' submissions were summarized and distributed by the LAC. The nature of these documents is not clear. They are not publicized and their distribution is restricted to related government departments. But they are not formally classified as state secrets or internal materials. For a study of confidential information in China, see Fu and Cullen, Media Law, and Huai Yan and Suisheng Zhao, "Notes on China's confidential documents," The Journal of Contemporary China, No. 4 (1993), p. 75.
31. Legislative Affairs Commission (LAC), National People's Congress Standing Committee, Submission of the Ministry of Justice on the Amendment of CPL 1996. The LAC held several consultation meetings with interested parties. The participants' submissions were summarized and distributed by the LAC. The nature of these documents is not clear. They are not publicized and their distribution is restricted to related government departments. But they are not formally classified as state secrets or internal materials. For a study of confidential information in China, see Fu and Cullen, Media Law, and Huai Yan and Suisheng Zhao, "Notes on China's confidential documents," The Journal of Contemporary China, No. 4 (1993), p. 75.
32. Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics, p. 32.
33. LAC, Submission of the Ministry of Justice on the Amendment of CPL 1996.
34. LAC, Submission of Supreme People's Court on the Amendment of CPL 1996.
35. The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice, "Joint notice on several concrete provisions on lawyers participation in litigation (27 April 1981)," in Compilation of Normative Interpretations, pp. 1727-28 (hereinafter Joint Notice).
36. Zhou Guojun, "Discussion on the time when lawyers' intervention is allowed," Zhongguo lüshi (China Lawyer), (1994), p. 32.
37. National People's Congress Standing Committee, Decisions Regarding the Procedure for Prompt Adjudication of Cases Involving Criminals Who Seriously Endanger Public Order (1983).
38. Art. 29, CPL 1979.
39. Supreme People's Court and the State Administration of Protecting Secrets, Regulations on the State Secrets Involving the Work of the People's Courts and the Classification (1989). See Fu and Cullen, Media Law.
40. Supreme People's Court and the State Administration of Protecting Secrets, Regulations on the State Secrets Involving the Work of the People's Courts and the Classification (1989). See Fu and Cullen, Media Law.
41. Fang Deming, "Defence lawyers' right and duty in reviewing files," in Ministry of Justice, Theory and Practice, p. 1365.
42. Lawyers Committee for Human Rights, Criminal Justice with Chinese Characteristics.
43. Ministry of Justice and Ministry of Public Security, "Joint notice on the problem of lawyers meeting the defendants in custody (13 November 1956)," in Compilation of Normative Interpretations, pp. 1748-49. The Notice required a detention station to provide a separate room, if possible, for a lawyer to interview his client, so that the defendant "would not feel worried."
44. Wu Jieming, "Preliminary discussion on pre-trial communication among lawyers, judges and procurators," in Ministry of Justice, Theory and Practice, p. 1376.
45. Ibid.
46. Ibid.
47. Zhang Zhanlin, "Lawyer's early involvement prevents a wrong conviction," Zhongguo lüshi (China Lawyer), No. 9(1994), p. 6.
48. "A lawyer suspected that a defendant in a murder case was a psychiatric patient. He raised the defence of insanity in the pre-trial meeting, but was rejected by the judge. Then the lawyer invited experts to explain the case to the judges. After a pre-trial psychiatric examination participated in by the judge, procurator and lawyer, the procuratorate withdrew its charge." Zhao Zhongqing, "The necessity of exchanging information between lawyers and judicial personnel at pre-trial stage," in Ministry of Justice, Theory and Practice, p. 1376.
49. Guo Zhongwu, "The position of defence lawyers in criminal litigation," in Ministry of Justice, Theory and Practice, p. 1359.
50. Art. 113, CPL 1979.
51. Art. 114.
52. Art. 116.
53. Art 117.
54. Yang Yinche, "Defence lawyers should have right to produce expert witness," Zhongguo lüshi (China Lawyer), No. 11 (1994), p. 8.
55. Art. 118, CPL 1979.
56. Xiao Shanren, "A person without legal qualification may not be a defender," in Ministry of Justice, Theory and Practice, p. 1319.
57. Qiao Bin and Sun Qikang, "A preliminary study of the psychology of the criminal lawyers," in Ministry of Justice, Theory and Practice, p. 1404.
58. Tan Zhen, "On pre-trial communication," p. 1380.
59. Qiao Bin and Sun Qikang, "A preliminary study,"
60. Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security and Ministry of Justice, "Joint notice on several supplementary provisions on lawyers participation in litigation (26 June 1986)," in Compilation of Normative Interpretations, p. 1736.
61. LAC, Submission of Supreme People's Court on the Amendment of CPL 1996.
62. LAC, Submission of Ministry of Justice on the Amendment of CPL 1996.
63. LAC, Submission of Supreme People's Procuratorate on the Amendment of CPL 1996.
64. LAC, Submission of Ministry of Public Security on the Amendment of CPL 1996.
65. Lawyers Committee for Human Rights, Opening to Reform?
66. Zhang Wei, "Several questions in lawyers' participation in criminal litigation," Zhongguo faxue (Chinese Legal Studies), No. 5 (1994), p. 40.
67. Li Baoyue, "On the question of lawyers' participation in criminal litigation," Zhengfa luntan (Forum of Politics and Law), No. 4 (1994), p. 72; and Li Baoyue, "On the time when lawyers can participate in criminal litigation," Zhongguo faxue (Chinese Legal Studies), No. 4 (1994), p. 98.
68. Li Baoyue, "On the question of lawyers' participation in criminal litigation," Zhengfa luntan (Forum of Politics and Law), No. 4 (1994), p. 72; and Li Baoyue, "On the time when lawyers can participate in criminal litigation," Zhongguo faxue (Chinese Legal Studies), No. 4 (1994), p. 98.
69. Art. 26, Lawyers' Regulations of Shenzhen Special Economic Region (draft). On file with the author.
70. Shenzhen Special Economic Zone, Lawyers' Regulations of Shenzhen Special Economic Zone (1995). On file with the author.
71. LAC, Submission of Supreme People's Court on the Amendment of CPL 1996.
72. Lu Fei, "Reforming the model of trials," Zhongguo faxue (Chinese Legal Studies), No. 5 (1994), p. 48.
73. 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.
74. Lu Fei, "Reforming the model of trials," pp. 47-49.
75. LAC, Submission of Supreme People's Procuratorate on the Amendment of CPL 1996.
76. Art. 150, CPL 1996.
77. Art. 149.
78. Art. 96.
79. Ibid.
80. Art. 38.
81. Interviews with lawyers from Beijing, January and February, 1997. See Lawyers Committee for Human Rights, Opening to Reform? p. 58.
82. 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.
83. Art. 66, CPL 1996.
84. 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 February 1995.
85. For a study of the inconsistency between China's National Security Law and the Implementing Rules for the National Security Law, see H. L. Fu and Richard Cullen, "National security law in China," Columbia Journal of Transnational Law, No. 34 (1996), p. 149.
86. Zhang Waiguo, "The abuse of 'residential supervision' in Beijing," Mingbao, 31 October 1996. 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).
87. Interview with three lawyers from Beijing, March 1997. They all predicted that the police proposal would meet strong resistance from the Chinese Bar.