Chinese Law Primer

China's criminal justice system consists of public security bureaus, procurates, courts and correctional institutions. At the central level, the Ministry of Public Security and the Ministry of Justice administer China's police and correctional institutions, respectively. The Supreme People's Court is the highest judicial branch in the country. The Supreme People's Procuratorate is the highest state branch of legal supervision (In China, people's procuratorates are authorized to supervise court trials of criminal cases. Procuratorial supervision over criminal proceedings refers to legal supervision that aims to ensure criminal proceedings conducted by people's courts coincide with procedures prescribed by law and that verdicts and rulings passed by people's courts conform to the relevant legal provisions.) with prosecution as its main function. 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 procurates are responsible for approving arrest, conducting procuratorial work (including investigation) and initiating public prosecution; the people's courts are responsible for adjudication; and the prison or other facilities are responsible for sentence execution.

Indigent Criminal Defense System

The legal aid system in China was first established in 1994, aiming to offer free or inexpensive legal services to citizens who have financial difficulties. On December 16, 1996, the National Legal Aid Center of the Ministry of Justice was established to promote the development of legal aid bodies nationwide and to monitor their operations. Since 1996, the National Legal Aid Center has established over 3000 legal aid centers throughout the country. The legal aid centers are responsible for providing legal services in civil, criminal and administrative cases. In criminal proceedings, the accused, if he/ she is a juvenile, deaf mute or is facing the death penalty, shall be entitled to legal aid. In all other cases, the provision of counsel is discretionary.

Function of Legal Aid Centers

There are, in a strict sense, no public defender offices in China. All legal aid centers handle both civil and criminal cases. In turn, the lawyers at these centers are not specialists; they handle any and all types of cases. This structure, or lack thereof, magnifies many of the problems that the system needs to rectify. First, considering the large population of China, the provision of legal aid still lags far behind the demand. Second, the operation and quality of legal aid centers varies greatly from place to place. The reason is that there is no national law to unify and standardize the structure, operating procedures and sources of funding of the legal aid centers. Third, many local governments lack funds to set up legal aid centers. Fourth, the quality of lawyers cannot be ensured. Fifth, there is no mechanism to ensure the independence of legal aid centers.

Stages of the Criminal Process

In China, the criminal process is divided into three distinct stages; the investigation stage, the prosecution examination stage and the trial stage. The demarcation between each of these stages is important as the rights and privileges of both defense counsel and the accused are significantly limited during pre-trial investigation and prosecution examination stages. Though Chinese law does grant lawyers the right to enter criminal proceedings and to meet with their clients during the investigation and prosecution examination stages, their function is significantly curtailed. Moreover, in practice many lawyers are not assigned to the case until a few days before trial leaving the defense lawyer with little time to prepare an adequate defense.

Investigation Stage

In China, as elsewhere, the investigation stage is often the most important part of the criminal process. Most criminal offenses in China are investigated by the Public Security Bureau (police department). Criminal offenses committed by government officials, employees, and agencies, however, are investigated directly by the People's Procuratorate. It is during the investigation stage that investigators (public security officers or procurators) detain and interrogate (often repeatedly) the accused, and otherwise gather evidence and interview witnesses. The investigation stage can last months in China, or even years, during which time the accused is generally held in detention. Though theoretically entitled to bail, few persons are released pending trial. Lawyers, as well as police and prosecution officials often argue that the defense lawyers' function is so curtailed during the investigation stage, that there is no purpose in seeking appointment or being retained until a later stage in the process.

Though defense lawyer's rights are limited by law during the investigation stage, there is nevertheless substantial work that can be done to begin to prepare for the client's defense at trial. According to China's Criminal Procedure Law, the scope of the services that lawyers may offer include providing legal consultation to the client, bringing petitions and complaints on the client's behalf, and applying for bail for the client (see Criminal Procedure Law, art. 96). During this time, lawyers may file petitions or complaints in cases where their client has been tortured or their rights have otherwise been violated. Moreover, though the lawyer will not yet have access to the prosecutor's files, or be able to investigate the facts of the case, he/ she can provide invaluable advice and counsel to his/ her client; obtain all relevant facts and circumstances of the case known to the client; begin to build a relationship with the client which will aid the lawyer's ability to lawfully advocate for the client's rights and interests; and otherwise begin to prepare his/ her defense for trial.

Chinese law does little to define the scope of the permissible content of attorney-client meetings at the investigation stage, stating vaguely that lawyers may "enquire about the case" (see Criminal Procedure Law, art. 96). However, subsequent rules promulgated by the All-China Lawyers Association (China's national bar association) have provided more guidance. Article 28 of the Rules Governing the Handling of Criminal Cases by Lawyers provides that "in interviewing a criminal suspect [during the investigation stage], a lawyer may obtain from the criminal suspect information on relevant circumstances of the case, including":

1. The criminal suspect's physical conditions;
2. Whether and in what manner the suspect participated in the alleged crime;
3. If the suspect admits guilt, a declaration of the facts and circumstances important to determining the level of the crime and sentencing;
4. If the suspect does not admit guilt, a declaration of his defense;
5. Whether the legal methods of the detention are lawful, and whether the procedure conforms to the law;
6. Whether the suspect's personal or procedural rights were violated subsequent to his detention;
7. Other information that the lawyer needs to know.

Prosecution Examination Stage

After gathering evidence, the investigators (either the Public Security Bureau or the Procuratorate) submit evidence to the Procuratorate section in charge of approving prosecutions. The standard of review for the Procuratorate is "whether the facts and circumstances of the crime are clear, whether the evidence is reliable and sufficient, and whether the charge and the nature of the crime is correctly determined" (Criminal Procedure Law, art. 137). The prosecutor must also decide whether it is a case in which "criminal responsibility should not be investigated." In making these determinations, the prosecutor must interrogate the suspect and his or her representative, and consult with the victim and his or her representative. If, during this review, the prosecutor discovers that any illegal method was used during investigation, the prosecutor may refer the conduct of the investigator to the appropriate disciplinary authority. If the misconduct rises to the level of a criminal offense, it is referred to the appropriate section of the Procuratorate for investigation (Criminal Procedure Law, art. 76).

Despite the fact that accused persons have the right to counsel at the prosecution examination stage, few lawyers are assigned to represent the indigent accused during this time period. Many legal aid attorneys, following past practice, are reticent to accept cases earlier than the trial stage. Many are concerned that such advocacy would result in more work and greater expense on their part, and little additional benefit would be afforded to the accused (defense attorneys will receive only the charging document and other limited information at the prosecution examination stage. They will not be entitled to more complete discovery until the trial stage)

Court Structure and Process

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.

Appeals

Litigants are generally limited to one appeal, on the theory of finality of judgment by two trials. (There are exceptions to this rule. In some cases there is a third appeal. The litigant can also appeal to the people's procuratorate [prosecutor's office] and the court for reconsideration of the case. Additionally, there are a number of more informal procedures of appeal). In theory, cases on appeal are to be reviewed de novo as to both law and facts. Accordingly, the trial and appeal process are referred to as a trial of first instance (trial) and a trial of second instance (appeal). In practice, however, courts routinely conduct only a paper review of the court file, utilizing the following language in article 187 of the Criminal Procedure Law as justification: "after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem, [a court] thinks the criminal facts are clear" it is not required to hold a separate hearing in the case.

From a judgment or order of first instance of a local people's court, a party may bring an appeal to the people's court at the next highest level, and the people's procuratorate may protest a court decision to the people's court at the next highest level. (Note: There is no principle of double jeopardy in China. The people's procuratorate can appeal an acquittal). Judgments or orders of first instance of the local people's courts at various levels become legally effective if, within the prescribed period for appeal, no party makes an appeal.

Unlike its American counterpart, China's Supreme People's Court does not actively hear cases. Instead, it functions primarily as an administrative organ, supervising lower courts and issuing opinions on various provisions of law. The Higher People's Court holds preliminary hearings for major civil and criminal cases of a province, an autonomous region or municipality directly under the Central Government. It also conducts retrials or second trials when the people's procuratorate disputes the judgment or the defendant appeals against the verdict or ruling by the Intermediate People's Court at the first trial level. The Intermediate People's Court hears cases of counterrevolutionary crimes and cases involving life imprisonment and the death penalty, as well as actions against foreigners or Chinese who infringe upon the legitimate rights and interests of foreigners. It handles civil and criminal cases in an appellate capacity when the people's procuratorate disputes the judgment or the defendant appeals against the verdict or ruling delivered by the people's court at the trial level.

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.