Abstract
This book provides readers with a comprehensive and systematic study of how the Chinese criminal process functions in practice. The strengths of this work include, but are not limited to, three major aspects.
The first contribution of this book is the warning against being over-optimistic towards the amendment of criminal procedure rules in China, because these well-intentioned changes were culturally contextualised and one runs the risk of missing the real motives of actors in criminal justice (p. 447). The authors aimed to measure the extent to which actual operation deviated from the positive rules of the 1996 Criminal Procedure Law (hereafter the 1996 CPL). For example, an adversarial trial system was instituted in the 1996 criminal justice reform. However, the authors’ interviews with judges revealed that judges had not been removed from pre-trial case preparation and substantive examination of case materials before trial (p. 149). In fact, the judges developed their own informal practices, assisting the prosecutors in ascertaining the truth (pp. 164, 291). This indicates that inter-agency connections play an important role in conditioning the operation of criminal procedure rules. Again, supplementing the summary procedure in the 1996 CPL was meant to simplify the work of judges. However, as the authors indicate, it increased the workload of judges because a single judge bears the sole responsibility of adjudication, requesting the opinions from the accused, prosecutors and the defence counsels, deciding whether the summary procedure should be applied and ascertaining the truth of the case (p. 207).
The 1996 CPL was amended in accordance with the decision adopted at the 5th session of the 11th National People’s Congress on March 14, 2012, and became invalid in 2013. Accordingly, the empirical data and evidence presented by the authors might not be appropriate for assessing the successor to the 1996 CPL. However, in terms of its explanatory and analytical function, this book is not out of date. It was widely agreed that amending the CPL did not inevitably generate satisfactory changes in the everyday practice of procedural actors, let alone those cases with a certain political importance (p. 451). As the authors imply, the ‘ingrained habits and attitudes of state officials may subvert the reforms’ (p. 12). Some serious problems still exist in Chinese criminal justice practice, such as ‘xian-ding hou-shen’ (verdict first, trial second, p. 6), ‘tan-bai cong-kuan, kang-ju cong-yan’ (leniency to those who confess their crimes and severity to those who refuse to, p. 17) and ‘kou-gong shi zheng-ju zhi wang’ (confession is king, p. 66).
The second strength of this book is the systematic use of an empirical approach to examining Chinese criminal procedure (p. 19). The authors point out that most of the statistics and qualitative data on criminal cases used to back up theoretical analysis in China were neither reliable nor accessible (p. 18). In the English legal literature, there was no such an ambitious study on the day-to-day running of the criminal justice system throughout China subsequent to the 1996 reforms (p. 462). The book under review fills the gap and has been so far the only major empirical piece of work in English that critically examines the contemporary Chinese criminal process. The empirical information throughout this book was derived from data based upon case dossiers, interviews with the key state actors at work (more precisely judges and prosecutors) and defence lawyers, and the direct observation of criminal cases on a long-term basis (p. 261).
Compared with a limited number of recent influential books in Chinese, which empirically studied the Chinese criminal justice process (e.g. Chen, 2001; Zuo, 2009), this book reveals the close relationship between criminal justice policy in China and its political climate, in a straightforward manner. In the process of examining criminal justice, the authors also looked at its underlying political economy and core value system to gain a deeper insight (p. 451). As authors argued, the focus of this book was to place their findings in a broader socio-legal framework (p. 14). In contrast, Chinese proceduralists have often avoided involving themselves in political and ideological debate or used very general or vague words (e.g. ‘leftist thought’) to describe the context of the Chinese criminal justice system.
The third contribution of this book is the revelation of certain peculiar practices in Chinese criminal justice which I, as a Chinese domestic criminal proceduralist, have not sufficiently noticed or studied yet. For one thing, among the criminal justice agencies, the police are claimed by the authors to be the dominant force during the whole process (p. 423). It is understandable that the procuratorate and the court tend to follow police decisions in a system with an inquisitorial tradition. However, surprisingly, the authors demonstrated that the police probably use powers beyond the principle of criminal procedure law (pp. 63–64). For example, pursuant to art, 140 of the 1996 CPL, the procuratorate should exercise legal control over investigation by remanding the case to the police for supplementary investigation if the procuratorate feel it necessary. However, the authors claim that, due to the pressure from the quotas and performance indicators, the police might have ignored the requests for supplementary investigation, but little could be done by the procuratorate (p. 423). Similarly, the procuratorate might notify the police to file a case where the reasons provided by the police for not doing so were untenable. However, the police might then disregard this notification and the procuratorate cannot do anything to enforce it (p. 423).
Correspondingly, the authors argue against an image widely held by Chinese jurists that the procuratorate may exercise its prosecutorial supervisory powers over the police and the court (p. 389). Besides the above example of the procuratorate’s lack of ability to monitor the police, the authors found that it was the judge who directed the prosecutors during the trial as in most other Western jurisdictions (p. 201). The prosecutors were even claimed by the authors to be ‘a subordinate class with a relatively poor self-image’ (p. 389).
Furthermore, it is clear that the relationships between criminal justice agencies are systematically institutionalised in both principles and specific articles in the Chinese CPL, whereas western criminal procedure systems generally do not undertake this task, leaving it to constitutional or administrative law or pure politics. Although a general principle of ‘mutual cooperation and check of police, procuratorate and court’ is set out in the CPL, the authors critically imply that Chinese criminal justice agencies act in a system of cooperation with scarcely any restraint (p. 435). Based upon the analysis of institutionally-embedded bureaucracy, they argue that the state actors in criminal justice share certain common values which have a significant impact upon how they deal with the cases (p. 387). These institutions, which are in more or less a state of equilibrium, are reciprocal to varying degrees and have common interests in many areas (pp. 201, 423). Admittedly, criminal justice agencies are not a coalition of equals but also have antithetical interests and perspectives (p. 423). Disagreements amongst these agencies might be subject to disciplinary sanctions. For example, if the accused was acquitted by the court, the prosecutor might receive a black mark and thus miss his yearly bonus or receive other types of sanction, possibly followed by state compensation to the accused (p. 387).
The close relationships between state actors which the authors regard as an essential part of the architecture of the system makes the criminal defence counsels structurally marginalised (p. 190). Although this viewpoint is not new, the authors’ empirical findings for illustrating this point are interesting: it was noted that the defence counsels could do little for their clients prior to trial (p. 190); during the trial, the defence counsels usually tendered pleas in mitigation rather than exposing procedural deficiencies or providing ‘alternative case theories’ (p. 349), because the ‘trial’ was only a formality and the final verdict upon the accused was confirmed prior to the trial (p. 376); and at the appeal phase, the defence counsels might only influence the case through ‘out-of-court communications with the judicial organs’ (p. 17).
Compared with procedural sanctions, which have recently been advocated in Chinese academic circles as motivating procedural actors (Chen, 2005), the authors reveal that a disciplinary framework marked by internal performance indicators and quotas is dependable and cost-efficient (p. 452). For example, in an interview with one prosecutor, it was found that the police would be fined 100 RMB (around £10) if the case was remanded by the procuratorate for supplementary investigation. Again, if the final verdict of the court did not match the prosecution, the scores of the prosecutors would be deducted, perhaps followed by loss of a bonus and opportunities to be promoted (p. 132). As regards the quota system, the authors have taken summary procedure as an example again. The procuratorate might set a quota of a maximum of 10% of all cases for summary procedure applications. Once this quota was met, all the following cases would be dealt with according to ordinary procedure, no matter whether summary procedures were suitable or not (p. 207).
Nevertheless, this book is not perfect in all aspects. It is worth critically identifying these weak points from the perspective of a Chinese lawyer. First, whereas the title of this book is ‘Criminal Justice in China’, it only refers to the actual operation of criminal procedure. Administrative punishments, which deprive the criminal suspect of liberty in almost the same way as criminal penalties, complement the criminal justice system and have not been sufficiently discussed. Secondly, even if the subject reviewed in this book is confined to criminal procedure, it does not present a complete picture of Chinese criminal procedure in practice. Given the content of the 1996 CPL, the number of analytical grids throughout the 15 chapters in this book is certainly inadequate: certain procedures with Chinese characteristics, such as procedure for review of death sentences, or the execution procedure have not been mentioned. Thirdly, the authors indicate that there was no official code setting out rules of evidence (p. 213). This was not correct even before this book was published. On 30 May 2010, the Praesidium of the National People’s Congress, the Supreme People’s Court, the Supreme People’s Procuratorate and the Ministry of Public Security jointly enacted binding ‘guiding legal explanations’ (fa-lü jie-shi) providing detailed exclusionary rules, that is, ‘the Rules on Certain Issues Relating to the Exclusion of Illegal Evidence in Criminal Cases’ and ‘the Rules on Certain Issues Relating to Examining and Judging Evidence in Death Penalty Cases’.
Although the gap between the law-in-the-books and the-law-in-action has been analysed in this study, the authors do not deny the improvement of due process rights and the introduction of an adversarial direction to criminal justice reform. Further, it is acknowledged that written rules are not meaningless. As the authors suggest, state officials have to refer to the written rules to account for their behaviour (p. 451). Through the endeavours of legal reformers and an enhanced rule-of-law consciousness of procedural actors, this gap will be gradually bridged.
This book is an empirical mapping of Chinese criminal justice rather than a definitive or predictive work (p. 24). The methodologies throughout this book are quite different from the continental-originated technique of subsumption and logical-mathematical deduction widely used in Chinese literature on criminal procedure. The authors are much more concerned with the workability of criminal process in practice than its legislative technique. This book, with its many pragmatic features, may stimulate more empirical study of the Chinese criminal justice (p. 425), assisting readers in gaining further insights into this field.