Difference between revisions of "Chinese Law Primer"
From Criminal Defense Wiki
Jump to navigationJump to search| (3 intermediate revisions by one other user not shown) | |||
| Line 53: | Line 53: | ||
==Court's Discretion in Determining Judgment== | ==Court's Discretion in Determining Judgment== | ||
| − | In China, the court is not limited in making its judgment, to the charges in a criminal case. Thus, for example, if the prosecutor charges the defendant with intentional injury because though the victim died the prosecutor does not believe the defendant had the requisite intent to kill the victim - a court may find the defendant guilty of murder if it believes the defendant had the requisite intent to kill | + | In China, the court is not limited in making its judgment, to the charges in a criminal case. Thus, for example, if the prosecutor charges the defendant with intentional injury because though the victim died the prosecutor does not believe the defendant had the requisite intent to kill the victim - a court may find the defendant guilty of murder if it believes the defendant had the requisite intent to kill. |
| + | |||
| + | ==Right to Counsel== | ||
| + | China's guarantee of the right to counsel in criminal cases is still in its nascent stages. The vast majority of criminal defendants are too poor to hire their own attorney. Moreover, under Chinese law, only juveniles, accused persons who are unable to hire legal representation because of blindness, deafness, and/ or muteness, and those facing the death penalty have the right to appointed counsel. In all other cases in which the accused is financially unable to hire an attorney, the appointment of counsel is discretionary. Since 1996, China has created a governmental system of legal aid; however, though there are now over 3,000 legal aid centers, less than half of these employ full-time government legal aid lawyers (in a few jurisdictions, full-time legal aid workers - those who have graduated university with a BA in law though who have not yet passed the National Bar Examination - may handle criminal cases). With the establishment of a system of legal aid, indigent defendants have begun receiving representation in criminal cases. But there is still a long way to go before all persons facing imprisonment are guaranteed assistance of counsel. The All-China Lawyers Association recently estimated that only 10% of criminal defendants nationwide are represented by an attorney at trial. | ||
| + | |||
| + | Chinese lawyers give many reasons for the small number of criminal defendants represented by counsel. First, it is generally recognized that fees for criminal cases are prohibitively low, and many attorneys prefer more lucrative areas of practice. Second, as described in more detail below, it is often difficult for defense attorneys to mount a meaningful criminal defense for their clients. Third, lawyers in China view criminal defense as a "high risk" activity. Many lawyers fear persecution under Article 306 and other forms of harassment by law enforcement groups if they too zealously defend their clients, thus they are unwilling to engage in criminal defense work. Finally and perhaps most importantly, is the fact that criminal defense work is not well respected by lawyers. Given that defendants are often indigent and their societal status is low, defenders feel discouraged to engage in such work, or to zealously defend their clients. In China, there is not yet a strong spirit of public service like there is in other western countries. Undoubtedly, this has a lot to do with the fact that China is still very much a developing nation. Although there is a new burgeoning class of wealthy wage earners, the majority of the country is beset by rural poverty. Quite clearly, the economic conditions have prevented the formation of any long standing tradition of public interest law, social services or welfare. As such, legal aid defenders receive very little validation or moral support. In addition to building lawyers skills, it should be a major component and essential part of the training program to instill them with a broader sense of the value and necessity of their work, and their vital role in the criminal system. By providing such inspiration, the program can impel these lawyers to expand their minds and open their hearts to the poor. | ||
| + | |||
| + | At present, there are, also, no standards or guidelines for ensuring competent counsel. In practice, legal aid cases may be handled by any attorney available to receive appointment. And unfortunately, these attorneys, all too often, lack the experience, training and resources to handle criminal cases. This often occurs as lawyers are conducting their practices without any direction or professional expectation. | ||
| + | |||
| + | ==Discovery Process== | ||
| + | |||
| + | Under Chinese law, defense counsel is entitled to receive only limited discovery at the prosecution examination stage (see Article 36 of the Criminal Procedure Law). At this stage, discovery is limited to judicial documents such as the bill of prosecution and warrants of detention and arrest (not included are the defendant's statement, statements of witnesses, and all physical evidence). After the prosecutor files charges with the court they will transfer to the court all the main evidence in the case (in practice, much is withheld from the court file; exculpatory evidence is routinely withheld as is evidence that the prosecution has determined not crucial to its case). At the trial stage, the lawyer can freely go to the court to get copies of all evidence the prosecutor has placed in the court file. If the lawyer wants additional documents, they have the right to make an application to request the prosecutor provide this evidence to the defense. | ||
| + | |||
| + | ==Investigation Process== | ||
| + | |||
| + | |||
==Court Structure and Process== | ==Court Structure and Process== | ||
| Line 69: | Line 84: | ||
There is no jury system in China. Instead, these judges are the theoretical decision makers. In serious cases (including most homicide cases) however, a judicial committee composed of the president, vice presidents, division chiefs and other leading officials of the court will decide the case. Thus, many lawyers lament that those who decide the case are neither familiar with the facts or the arguments, as they were not present at the trial. In some instances, the court itself is held accountable to the local communist party who will place pressure on the court to come to a particular decision in a case, therein demonstrating the glaring fact that China is well away from establishing an independent judiciary. However, the majority of criminal cases do not involve strong interests or concerns, thus judges are more free to make independent decisions, and lawyers to have a great impact on the case. | There is no jury system in China. Instead, these judges are the theoretical decision makers. In serious cases (including most homicide cases) however, a judicial committee composed of the president, vice presidents, division chiefs and other leading officials of the court will decide the case. Thus, many lawyers lament that those who decide the case are neither familiar with the facts or the arguments, as they were not present at the trial. In some instances, the court itself is held accountable to the local communist party who will place pressure on the court to come to a particular decision in a case, therein demonstrating the glaring fact that China is well away from establishing an independent judiciary. However, the majority of criminal cases do not involve strong interests or concerns, thus judges are more free to make independent decisions, and lawyers to have a great impact on the case. | ||
| + | |||
| + | |||
| + | ---- | ||
| + | See [[China]] | ||
