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CHINESE CRIMINAL DEFENSE MANUAL

  1. Pretrial Preparation (Investigation and Trial Prosecution)
  2. Developing a Defense for Trial
  3. Questioning the Witness
  4. Special Considerations in Juvenile Cases
  5. Cases Involving a Possible Death Penalty
  6. Motions

PRACTICE NOTES

  1. Changes and Effects: 8th Amendment

JUVENILE JUSTICE

CODES

LEGAL RESOURCES

LEGAL TRAINING RESOURCE CENTER


Background

Chinese civilization, dating back 3,500 years, has long been one of the world’s most innovative and influential societies. [1] The last Chinese dynasty, the Qing dynasty, was established in 1644 and was characterized by great expansionism, military prowess, and highly organized bureaucracy. However, the Qing dynasty was eventually forced to abdicate and a non-dynastic republic was erected in its place. This republic was plagued by a civil war fought between the Kuomintang (KMT) nationalists and the Chinese Communist Party (CCP), with ultimate victory being awarded to the CCP. In 1949, the CCP established the modern day People’s Republic of China led by Mao Zedong. China under Mao experienced extreme economic overhauls, as well as famine, poverty, and a severe cultural revolution. It wasn’t until Mao’s successor, Deng Xiaoping, reformed the communist agenda that China began to experience greater economic development and social improvements. Today, China is the world’s second largest economy after the United States and is expected to rise to first place within ten years. [2] Despite these advancements though, China still commits human rights violations by way of repressing political freedoms. 91.5% of the Chinese population is of Han descent and 70% of the population speaks the Mandarin dialect. Although the Chinese government affirms “freedom of religion”, only five religions are officially sanctioned. Nevertheless, about 31.4% of Chinese are practitioners of some religion. [3]

Type of system

The Chinese court system is based on a civil law system that was modeled off of Soviet legal principles. All Chinese laws are organized in a Criminal Code that contains all of the regulations and rules that are used to interpret criminal law.

The court system in China has four levels. The courts, in descending order are: the Supreme People’s Court, the Higher People’s Courts, the Intermediate People’s Courts, and the Basic People’s Courts. The People’s Supreme Court is solely supervisory in function and oversees the lower courts. The Higher People’s Court conducts hearings for major civil and criminal cases that are located within a province, autonomous region, or municipality directly under the authority of the government. The Higher People’s Court is also allowed to retry cases that have been appealed by the Intermediate People’s Court. The Intermediate People’s Court tries cases that involve counterrevolutionary crimes, life imprisonments, the death penalty, and situations involving foreigners.

In Chinese criminal cases, defendants do not have the right to a jury trial. In the situation of a homicide case, however, the verdict is delivered by a commission of the president, vice presidents, division chiefs, and other leading authorities of the court. This procedure is of particular irritation to lawyers who point out that those deciding the case are the people least familiar with the case.

Sources of Defendants’ rights

The Chinese Constitution, which was amended in 2003, does not have legal authority in court decisions. Nevertheless, Article 37 of the Constitution states that the freedom of Chinese citizens is absolute, that no one may be arrested without the approval of a public security office, and that no one may be unlawfully detained. Since the Chinese Constitution is not self-executing though, these rights do not necessarily protect citizens. [4]

Pre-trial phase

Once a criminal case has been filed against an individual, they are required to make a compelled appearance, or ju chuan. In this case, the defendant must report to the police station where they may be required to stay for up to 12 hours of questioning. During this time, the defendant does not have the right to legal counsel or communication with anyone. [5] Only after the questioning has been completed is the defendant informed of his right to legal counsel. [6] Despite this, the lawyer is still not entitled to help the suspect prepare a defense case, but may only provide legal support and advice. [7]

All Chinese suspects must be interrogated within 12 hours of their arrest or detention. Before posing any questions to the suspect, the police are required to ask him whether or not he has committed a crime and the circumstances of the situation. [8] Chinese law additionally prohibits the use of torture or other methods of obtaining evidence, but does not exempt evidence that has been illegally obtained. [9] This means that confessions obtained under torture or duress can be used in court even though torture itself is technically not legal. [10]

Court procedures

Chinese criminal procedure is divided into three stages, all of which are exclusively separate from each other. These stages are the investigation, the prosecution, and the trial. The investigation stage of criminal cases is conducted by the police, who at this time detain suspects, direct interrogations, gather evidence, and interview witnesses. During the investigation stage lawyers’ roles are severely limited, but Criminal Procedure Law states that lawyers are entitled to provide their clients with legal consultation, lodge petitions and complaints, and apply for bail on their clients’ behalf. [11]

After the investigation stage has been completed, the prosecution procedure begins. At this time, the investigators submit to the Procuratorate the evidence that they have gathered in order for the Procuratorate to decide whether the circumstances of the crime are clear and the evidence reliable. [12] During this stage, the defendant is entitled to legal counsel. However, few lawyers are assigned to the cases of indigent persons and often do not see the point in accessing their clients at such an early stage.

Beginning with the 1996 reforms to the Chinese Criminal Procedure Law, Chinese trials have become increasingly adversarial in nature. These reforms guarantee greater rights to legal representation and include other measures intended to protect the right to a fair trial and to strengthen the role of lawyers. [13] Despite these improvements, Chinese lawyers still are not active players in trials.

All cases must go to trial even if the defendant has plead guilty. Although Chinese law dictates that lawyers must be assigned cases at least ten days prior to the trial [14], they are often not appointed cases until two to three days before the trial begins. In addition, the court has the right to subpoena witnesses to be questioned and cross-examined by both the prosecution and the defense. In reality though, witness statements are merely read aloud in court, depriving either the prosecution or the defense of the opportunity of cross-examination. The Chinese standard of proof states that “the facts are clear and the evidence is reliable and sufficient”. [15] Thus the accused person may be found innocent outright or by reason of insufficient evidence.

Chinese defendants do not have the right to remain silent. At both the pre-trial and trial stage they are required to answer all questions posed to them. Under the Criminal Procedure Law, defendants who either confess to their crimes or truthfully report their actions will be rewarded and treated more leniently by the court. [16] Thus, lawyers often ask their clients questions that are fairly prosecutorial in nature because they believe that if they confess to the crime they will receive a more favorable sentence.

Chinese courts are not limited to making decisions based solely on the charges filed. For example, even if the defendant is accused only of intentional injury a court may find the defendant guilty of murder if it believes that the defendant had the explicit intent to kill. Thus, lawyers must be prepared for all possible outcomes in a criminal case.

China guarantees the right to legal counsel, but most of the Chinese population is far too poor to hire sufficient legal aid. According to law though, only those who are juveniles, blind, deaf, and/or mute, and those facing the death penalty have the right to appointed counsel. Those who are financially unable to secure counsel are appointed representation based on a selective basis. Lawyers are rarely willing to represent defendants, however, as the pay is notoriously low, effective counsel is often difficult to achieve, criminal defense is regarded as risky activity, and criminal defense lawyers are not respected among within the legal community.

The Chinese law only guarantees lawyers to limited rights of discovery at the prosecution stage. [17] Discovery includes the right to judicial documents, but not the defendant’s statement, the statements of witnesses, and all other physical evidence.

Lawyers often play a small role in Chinese trials. Lawyers’ roles in Chinese trials are usually limited to asking for more lenient sentences and suggesting mitigating factors to the court. Lawyers rarely dispute anything that the prosecutor alleges against the defendant or to actually defend the client. Finally, lawyers are rarely allowed by police to collect evidence or to conduct any other activities that would help him develop a solid defense case.

Chinese judges often intentionally limit the role of the lawyer at trial. These judges see the lawyers as trivial and thus seek to make their work seem insignificant. For example, it is common for judges to refuse to allow a defense lawyer to present evidence or other opinions. They claim instead that that such information is inapplicable to the case at hand.

References

  1. Background Notes available at www.state.gov/r/pa/ei/bgn
  2. www.bbc.co.uk/news/business
  3. Background Notes available at www.state.gov/r/pa/ei/bgn
  4. Craig M. Bradley, Criminal Procedure A Worldwide Study 93 ( 2d ed., Carolina Academic Press 2007)
  5. Criminal Procedure Law Articles 90-96
  6. Criminal Procedure Law Article 96
  7. Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)
  8. Criminal Procedure Law Article 93
  9. Criminal Procedure Law Article 43
  10. Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)
  11. Criminal Procedure Law Article 96
  12. Criminal Procedure Law Article 137
  13. Criminal Procedure Law Articles 36, 96, 150, and 12
  14. Criminal Procedure Law Article 151
  15. Criminal Procedure Law Article 162
  16. Criminal Procedure Law Article 67,68
  17. Criminal Procedure Law Article 36

This page contains IBJ's English language materials for legal aid lawyers in China. For Chinese language materials, please go to chinadefensewiki.ibj.org


See Criminal Justice Systems Around the World

QUICK FACTS

  • The PRC reports that it has a total prison population of 1,620,000, but the US State Department estimates the population to be at approximately 2,500,000
  • For every 100,000 Chinese citizens, the PRC reports that there are 120 prisoners. However, the US State Department estimates that 186 is a more accurate number
  • China’s prison population consists of about 1.4% juvenile prisoners and approximately 100,000 pre-trial detainees (according to an estimate made by an East Asian criminal justice expert)
  • The Chinese Ministry of Justice reports that the PRC has 700 prison facilities. The US State Department additionally reports that China has 30 juvenile prisons and the Supreme People’s Procuratorate declares that China has 340 re-education-through-labor camps
  • Official prison capacity of re-education-through-labor camps is reported by the Supreme People’s Procuratorate to be 300,000. The occupancy level of these camps is approximated to be 87%


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