China

CHINESE CRIMINAL DEFENSE MANUAL Pretrial Preparation (Investigation and Trial Prosecution) Developing a Defense for Trial Questioning the Witness Special Considerations in Juvenile Cases Cases Involving a Possible Death Penalty Motions LEGAL RESOURCES Chinese-English Legal Lexicon Rights and Obligations of Criminal Defense Lawyers JUVENILE JUSTICE Juvenile Justice Manual China (2021) A Handbook for Kids Rights(2018 revised) CODES Constitution of the People's Republic of China Chinese Criminal Law,2021 Chinese Procedure Criminal Law,2018 Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases China - Law on Lawyers and Legal Representation LEGAL TRAINING RESOURCE CENTER eLearning Courses for Chinese lawyers

Background

Chinese civilization, dating back 3,500 years, has long been one of the world’s most innovative and influential societies. The last Chinese dynasty, the Qing dynasty, was established in 1644 and was characterized by great expansionism, military prowess, and a highly organized bureaucracy. However, the Qing dynasty was eventually forced to abdicate and a non-dynastic republic was erected. A civil war plagued this republic and was fought between the Kuomintang (KMT) nationalists and the Chinese Communist Party (CCP), with the ultimate victory 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. Mao’s successor, Deng Xiaoping, reformed the communist agenda and China began to experience greater economic development and social improvements. Today, China is the world’s second-largest economy.

Type of system

China's criminal justice system consists of public security bureaus, procuratorates, courts, and correctional institutions. The respective roles of these branches are as follows: the public security branches are responsible for the investigation, detention, and preparatory examination of criminal cases; the people's procuratorates are responsible for approving arrest, conducting procuratorial work (including some investigation), and initiating public prosecution; the people's courts are responsible for adjudication; and the prison or other facilities are responsible for sentence execution.

The Chinese court system is based on a civil law system, modeled after Soviet and continental legal principles. China’s court system has four levels. The highest court is the Supreme People's Court which sits in Beijing. At the next level there are the Higher People's Courts which sit in the provinces, autonomous regions and special municipalities (i.e., Beijing, Shanghai, Chongqing and Tianjin). Then there are Intermediate People's Courts which sit at the prefecture level (a level of division between the province and county levels – most frequently, these are cities that are given prefecture status and the right to govern surrounding counties) and also in parts of provinces, autonomous regions, and special municipalities. There are also basic People's Courts in counties, towns, and districts. The jurisdiction of each of these courts depends on the nature and complexity of the case.

China’s criminal laws are codified in a Criminal Law (revised 2021), and in the regulations, rules, and opinions which are meant to further clarify and interpret various provisions of the Criminal Law. The criminal law process is governed by the Criminal Procedure Law (revised 2018), which also governs the rights of defendants and defenders.

There is no jury system in China. Criminal cases are heard either by a single judge, a panel of judges, or by a mixed panel of judges with lay people (“people’s assessors”). In regular cases, the mixed tribunal is composed of one professional judge and two people’s assessors. But in major cases, the mixed tribunal should contain three professional judges and four people’s assessors (see the 2018 People’s Assessors Law, art.16). In serious cases (including most homicide cases), a judicial committee composed of the president, vice presidents, division chiefs and other leading officials of the court will decide the case.

Legal Aid in China

Legal aid in China is governed by the Legal Aid Law which was introduced by the National People‘s Congress (NPC) Standing Committee in August 2021 and took effect in January 2022.

The judicial administrative department of the local government is tasked with setting up a legal aid agency, which will be responsible for the provision of legal aid (Legal Aid Law, Art.12). The work of the agency covers three aspects: accepting and reviewing applications for legal aid; appointing personnel to provide legal aid; and paying legal aid subsidies to legal aid personnel.

There are three types of legal aid personnel: lawyers, grass-roots legal service workers, and legal aid volunteers (Legal Aid Law, Art.12). Lawyers include both private lawyers from law firms and in-house lawyers at legal aid agencies. Legal aid services include: legal advice; drafting legal documents; criminal defense and representation; litigation and non-litigation representation in civil, administrative and state-compensation cases; legal assistance from duty lawyers; labor dispute mediation and arbitration representation; and other circumstances stipulated by laws, regulations and rules. (Legal Aid Law, Art.22)

In criminal cases, the suspect/defendant may apply for legal aid due to financial difficulties or other reasons, and the legal aid agency will review and decide whether to grant the aid (Legal Aid Law, Art.24). However, legal aid must be provided to the suspect/defendant if they belong to one of the following persons and has not entrusted an attorney for defense: minors; persons with visual, hearing, and speech disabilities; adults who cannot fully recognize their behavior; persons who may be sentenced to life imprisonment or death penalty; defendants in death penalty review cases applying for legal aid; defendants of a case tried in absentia; and other persons specified by laws and regulations. (Legal Aid Law, Art.25)

A duty lawyer system was created under the 2018 revision to the Criminal Procedure Law. Legal aid agencies may station duty lawyers at the people's courts, jails, and other places. If a criminal suspect or defendant has not appointed a defender, and a legal aid agency has not appointed a lawyer to defend him or her, a duty lawyer shall provide the criminal suspect or defendant with legal assistance including but not limited to legal advice, recommendations on the selection of procedures, application for the modification of compulsory measures, and offering opinions on the handling of the case (CPL, Art.36). The intent is that duty lawyers act in the interim until a defender is secured.

Rights of Defendants

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. However, since the Chinese Constitution is not self-executing, these rights do not necessarily protect citizens.

General Rights of the Criminal Defendant

• The right to use their ethnic language and script to conduct litigation. (Criminal Procedure Law (hereinafter “CPL”), Art.9)
• The right to submit an accusation against adjudicators, procurators and investigators who infringe on citizen's procedural rights and cause personal insult. (CPL, Art.14)
• The right to request the recusal of adjudicators, procurators and investigators. (CPL, Art.29)
• The right to a defender. (CPL, Art.33)
• The right to a legal aid lawyer if qualified (CPL, Art.35)
• The right to represent him/herself (CPL, Art.33)
• The right to meet with a duty lawyer. (CPL, Art.26)
• The right to meet and communicate with a lawyer. (CPL, Art.39)
• The right to refuse the defenders' continued defense, and separately retain a defender for his defense. (CPL, Art.45)
• The right to a publicly announced decision to not prosecute, and the right to be released immediately. (CPL, Art.178)
• The right to not be compelled to prove one’s own guilt (CPL, Art.52)

Investigation Stage & Prosecution Stage

• The right to an audio or video recording of the interrogation process. (CPL, Art.123)
• The right to not be tortured. (CPL, Art.52)
• The right to not be threatened, lured, deceived, or subjected to other illegal methods of obtaining evidence. (CPL, Art,56)
• The right to not be illegally detained to obtain evidence. (CPL, Arts.56,58)
• The right to refuse to answer questions that are not relevant to the case. (CPL, Art.120)
• Consecutive summonses and custodial summonses must not be used to covertly confine a criminal suspect. When suspects are summoned or put under custodial summons, their food, water and necessary rest time shall be ensured. (CPL, Art.119)
• The right of deaf or mute suspects to a person who understands sign language during the interrogation. (CPL, Art.121)
• The right to check, supplement or correct the interrogation record. (CPL, Art.122)
• The right of female suspects to be searched and inspected by female personnel or doctors. (CPL, Articles 132, 139)
• The right to a warrant of custody, arrest and search. (CPL, Articles 85, 93, 138)
• The right to apply for a change in compulsory measures. (CPL, Art.97)
• The right to bail. (CPL, Art.65)

Trial Stage

• The right to a public trial and defense. (CPL, Art.11)
• The right to not be found guilty except by the lawful judgment of a people's court. (CPL, Art.12)
• The right to apply to the court to have new witnesses notified to appear, to have new physical evidence collected, or to apply for a new evaluation or inquisition. (CPL, Art.197)
• The right to apply for the exclusion of illegally obtained evidence. (CPL, Articles 56, 58)
• Only evidence that has been presented, identified and cross-examined in court or has gone through other court inquiry procedures and has been verified can be used as a basis for conviction and sentencing. (CPL, Art.61, Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases, Art.4)
• The right of persons who have not reached the age of eighteen at the time the crime is committed, women who are pregnant at the time of adjudication, or over the age of 75 at the time of trial to not be sentenced to death. (Criminal Law, Art.49)
• In the trial of a death penalty case, the defendant's criminal facts must be ascertained based on conclusive and sufficient evidence. (Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases, Art.5)
• The right to appeal and right to apply for trial supervision. (CPL, Articles 227, 252)

Rights of Defenders

Since the 2016 trial-centered reform within the criminal procedure system, defense lawyers have been given a more active and independent role in the judicial system. The role and rights of the defense lawyer include:

• Defense lawyers may provide legal assistance to criminal suspects in the investigation phase, represent them in appeals and accusations, apply for modification of compulsory measures, learn the charges and circumstances from the investigating organs and submit corresponding comments into the files. (CPL, Art.38)
• During legal representation, defense lawyers have the right to preserve the confidentiality of their client's information and relevant circumstances that they learn during the course of performing their professional activities, except for matters related to national or public security or a crime that may endanger others. (CPL, Art. 48)
• Defense lawyers have the right to meet and communicate with the detained suspects within 48 hours of a formal request to the detention centers, and the meeting is protected by confidentiality. (CPL, Art. 39)
• When the case is transferred to prosecution, the defender has the right to review and verify the evidence and other case file materials. (CPL, Art. 40)
• When a defense lawyer finds a piece of evidence that may exonerate or acquit a criminal suspect, the defense lawyer can request a public security organ, people's procuratorate, or the people's court to collect it. (CPL, Arts. 41 and 42)
• Defense lawyers can also conduct investigations and interviews on his or her own. (CPL, Art. 43)
• Throughout the investigation process, defense lawyers can submit written opinions to the investigation organs and include their notes in the case file upon its transfer to the prosecution. (CPL, Art. 161)
• Most importantly, defense lawyers can apply to exclude illegal evidence gathered during the investigation process, such as confessions coerced by force or torture. (CPL, Arts. 56 and 58)

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. Only after the questioning has been completed is the defendant informed of his right to legal counsel. Despite this, the lawyer is still not entitled to help the suspect prepare a defense case, but may only provide legal support and advice.

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. Chinese law additionally prohibits the use of torture or other methods of obtaining evidence, but does not exempt evidence that has been illegally obtained. This means that confessions obtained under torture or duress can be used in court even though torture itself is technically not legal.

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.

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. 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. 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 , 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”. 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. 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. 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

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

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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%