Models of Criminal Procedure System 9811936501, 9789811936500

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Ruihua Chen

MODELS OF CRIMINAL PROCEDURE SYSTEM

Models of Criminal Procedure System

Ruihua Chen

Models of Criminal Procedure System

Ruihua Chen School of Law Peking University Beijing, China Translated by Yong Gao Beijing International Studies University Beijing, China

ISBN 978-981-19-3650-0 ISBN 978-981-19-3651-7 (eBook) https://doi.org/10.1007/978-981-19-3651-7 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

Preface

There is nothing more to cherish in life than the experience of a “first time.” The English version of my book, titled “Models of criminal procedure system,” will soon be published. This is the first time I have published an academic work overseas, and the publisher is the prestigious Springer. In the upcoming future, overseas readers can read this book to learn about the progress of China’s criminal justice reform and the theoretical explorations made by Chinese criminal procedure scholars and to form a new impression of Chinese criminal procedure. This has tremendous benefits for communicating legal knowledge and promoting academic legal research. The book includes two parts, “Systems” and “Models.” It discusses the main problems of China’s criminal procedure system, outlines the criminal justice reform in the past thirty years, and provides a theoretical summary and commentary on the models that have been developed in China’s criminal procedure system. The issues discussed in the book involve the formalization of court trials due to the system of transferring case files, the malfunction of criminal procedures, the arbitrary disposal of case-related property by the judiciary, the dilemma of criminal defense, etc. With the gradual advancement of criminal justice reform, these issues have been brought to the attention of reform policymakers. They have been gradually addressed to some extent at the institutional level. As criminal justice reform moves forward, reform policymakers begin to focus on and address these issues. Since the 1990s, our criminal justice system has undergone many significant changes: the “criminal trial pattern reform” in 1996, the “sentencing procedure reform” in 2000, the “criminal evidence legislation” in 2010, the “criminal reconciliation reform” in 2000, the “system of leniency for pleading guilty and accepting punishment” in 2014, and the “non-prosecution reform” in 2020; the “trial centrism reform” in 2014, and the “trial substantiation reform” at present. Such large-scale institutional reforms are very rare in the history of China’s contemporary legal system. The continued advancement of criminal justice reform has presented researchers with many significant topics that need to be studied. Faced with the endless institutional difficulties and new problems brought about by one institutional reform after another, legal researchers should make theoretical responses, summarize the

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laws of institutional change, reveal the constraints behind the systems and practices, and make their academic contributions. Since 2000, I have used the social science method and the research idea of “from theory experience” to explore the above system and reform issues. I have published dozens of academic papers and several academic books. To provide overseas readers with a comprehensive and objective understanding of China’s criminal justice reform and to familiarize them with the theoretical work done by Chinese legal scholars, I have selected a dozen representative academic papers and made them the content of this book. In the “Systems” part, the book summarizes the experience of China’s trial model reform and sentencing procedure reform, analyzes the three forms of criminal trials, and discusses the basic issues in “conviction trial,” “sentencing trial,” and “procedural trial”. An analysis of the evolution and development of the case file transfer system reveals the impact of the case file transcripts on the “formalization of the trial” phenomenon. By discussing five aspects, the current situation of the problem of criminal procedure failure is analyzed, and the main causes of this phenomenon are revealed. The study on the disposal of case-related property by judicial organs summarizes the experience of China’s reform of the case-related property recovery system. It puts forward the theory and reform idea of the “action in rem”. A review of the evolution of the criminal defense system over the past forty years demonstrates the main problems of criminal defense. It presents the main issues for the future development of this system. In the “Models” part, the book provides a typological and theoretical overview of the criminal procedure system. By analyzing the system of leniency for pleading guilty and accepting punishment, criminal reconciliation, and compliance-based nonprosecution, it proposes the theories of the “public cooperation model,” “private cooperation model,” and “compliance incentive model.” By discussing the current status and reform trends of the civil incidental action system, it summarizes the system into three institutional models: “civil action priority over criminal action,” “criminal action priority over civil action,” and “separation of criminal and civil actions” and predicts the future model choice of this system. With the progress of China’s criminal evidence legislation since 2010, the exclusionary rule has been established and has undergone continuous changes. This book summarizes this system as “mandatory exclusionary rule,” “discretionary exclusionary rule,” and “curable exclusionary rule.” It provides a theoretical review of the formation, characteristics, and future direction of these three rule models. The translator of this book, Dr. Gao Yong, is an expert in litigation law who graduated from Peking University Law School and is currently an associate professor at Beijing International Studies University. It took three years for Ms. Gao to translate the book. I want to express my gratitude for her dedication to academic translation and the tremendous work she has put in. Since the late 1970s, China’s legal framework and judicial system have undergone tremendous and profound changes along with the continuous reform and opening-up and rapid economic development. To date, this change is still in a continuous process. Amid this rare “great change,” Chinese legal researchers should use social science

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research methods to observe “empirical facts,” discover the constraints behind institutions, practices, and changes, reveal problems, and propose and argue theories. As a personal witness and researcher of China’s legal reform, I will continue to follow the above-mentioned academic principles and make my theoretical contributions. Beijing, China April 2022

Ruihua Chen

Contents

Part I 1

2

Systems

Three Forms of Criminal Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.1 Diversification of Criminal Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2 Conviction Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.1 Nature of Conviction Trial . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.2 Reform of Conviction Trial . . . . . . . . . . . . . . . . . . . . . . . . . 1.2.3 Litigation Structure of Conviction Trial . . . . . . . . . . . . . . 1.3 Sentencing Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.1 Nature of Sentencing Trial . . . . . . . . . . . . . . . . . . . . . . . . . 1.3.2 Sentencing Trial in Ordinary Procedure . . . . . . . . . . . . . . 1.3.3 Sentencing Trial in Summary Procedure . . . . . . . . . . . . . 1.4 Procedural Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.1 Nature of Procedural Trial . . . . . . . . . . . . . . . . . . . . . . . . . 1.4.2 Procedure of Exclusionary Rule . . . . . . . . . . . . . . . . . . . . . 1.4.3 Procedural Trial in Pretrial Meeting . . . . . . . . . . . . . . . . . 1.5 Impacts of Three Forms of Criminal Trials . . . . . . . . . . . . . . . . . . . 1.5.1 Conviction Prosecution, Sentencing Prosecution and Procedural Prosecution . . . . . . . . . . . . . . . . . . . . . . . . 1.5.2 Innocence Defense, Sentencing Defense and Procedural Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.3 Three Objects of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.5.4 Three Identities of Investigators . . . . . . . . . . . . . . . . . . . . .

3 3 5 6 7 9 11 11 12 13 14 14 16 17 18

Evolution and Reflection of File Transfer System . . . . . . . . . . . . . . . . . 2.1 Evolution of File Transfer System . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Pretrial File Transfer System in 1979 . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Trial Model Reform in 1996 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Post-Trial File Transfer System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Reinstation of Pretrial File Transfer System . . . . . . . . . . . . . . . . . . 2.6 Several Deep-Seated Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

25 25 28 30 31 34 36

19 20 21 23

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2.6.1

2.7 3

Judicial Tradition of Judges Leading Evidence Investigation in Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6.2 Trial Model Centered on Case Files . . . . . . . . . . . . . . . . . 2.6.3 Making Verdicts Outside of Court . . . . . . . . . . . . . . . . . . . 2.6.4 Review System Based on Files . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

37 37 38 39 40

Case File Centrism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Court Investigation Centered on Case Files . . . . . . . . . . . . . . . . . . . 3.2.1 The Ways the Prosecutors Lead Court Investigation . . . . 3.2.2 Models of Reading Out the Case Files . . . . . . . . . . . . . . . 3.2.3 Court Investigation: Tripartite Game of Asymmetric Information . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Admissibility of Transcripts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Credibility of Case File . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Space for Criminal Evidence Law . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Ritualization, Theater Effect and Functions of Court Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.7 Reform of Court Trial System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

43 43 44 44 45

4

A Study on Criminal Procedure Malfunctions . . . . . . . . . . . . . . . . . . . . 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Implementation Mechanism of Criminal Procedure Law . . . . . . . 4.3 Costs of Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Losses Due to Following Procedures . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Two Legal Traditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Guarantee of Legal Procedures by Judicial System . . . . . . . . . . . . 4.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

61 61 63 66 70 75 78 82

5

Criminal Action in Rem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Nature of Criminal Action in Rem . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Procuratorates Initiate the Action . . . . . . . . . . . . . . . . . . . 5.2.2 The Object of Action in Rem is the Claim for Confiscating Illegal Property . . . . . . . . . . . . . . . . . . . . 5.2.3 Action in Rem Has a Unique Litigation Structure . . . . . . 5.2.4 Application of Mechanism of Proof in Civil Procedure to Action in Rem . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Action in Rem with Defendants Present . . . . . . . . . . . . . . . . . . . . . 5.3.1 Restriction on Judicial Discretion . . . . . . . . . . . . . . . . . . . 5.3.2 Maintenance of Procedural Justice . . . . . . . . . . . . . . . . . . 5.3.3 Realization of Trial Centrism. . . . . . . . . . . . . . . . . . . . . . . 5.3.4 Restoration of Judicial Credibility . . . . . . . . . . . . . . . . . . . 5.4 Two Models of Action in Rem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Independent Action in Rem . . . . . . . . . . . . . . . . . . . . . . . .

85 85 88 88

47 48 50 54 55 59

89 90 90 91 91 92 93 94 95 95

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5.5 5.6 5.7 5.8

5.4.2 Incidental Action in Rem . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Victims’ Participation in Action in Rem . . . . . . . . . . . . . . . . . . . . . 97 Litigation Status of Interested Parties . . . . . . . . . . . . . . . . . . . . . . . . 100 Procedural Guarantee of Action in Rem . . . . . . . . . . . . . . . . . . . . . 101 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

6

Retrospect and Prospect of Criminal Defense System in the Past Forty Years . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1 A Brief Review of Development of Criminal Defense System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Lawyers’ Role: From “State Law Practitioners” to “Legal Agents” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 Lawyers’ Participation: From “Court Defense” to “Whole Process Defense” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Defense Subjects: From “The Right to Defend” to “The Right to Get Help from Lawyers” . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Defense Effect: From “Obtaining Lawyers’ Help” to “Obtaining Effective Defense” . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.6 Protection of the Right to Defense: “Judicial Remedy” and “Legal Risk Prevention and Control” . . . . . . . . . . . . . . . . . . . . 6.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part II 7

105 105 108 113 117 121 125 129

Models

Negotiated Procedural Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 Limitations of Traditional Procedural Justice Theory . . . . . . . . . . 7.2.1 Does It Apply to Non-Confrontational Procedures? . . . . 7.2.2 Is the Out-Court Procedure Justified? . . . . . . . . . . . . . . . . 7.2.3 Are There Objective Standards for the Fairness of Results? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.4 Do the Parties not Care About the Result? . . . . . . . . . . . . 7.3 The Rise of Negotiated Justice and Its Disputes . . . . . . . . . . . . . . . 7.3.1 Sentencing Negotiation Procedure . . . . . . . . . . . . . . . . . . . 7.3.2 Criminal Reconciliation Procedure . . . . . . . . . . . . . . . . . . 7.3.3 Disputes Over Negotiated Justice Procedures . . . . . . . . . 7.4 The Theory of Negotiated Procedural Justice . . . . . . . . . . . . . . . . . 7.4.1 Basic Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Basic Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 Foundation of Negotiated Procedural Justice . . . . . . . . . . . . . . . . . 7.5.1 Litigation Subject Theory . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Rational Choice Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.3 Utilitarianism Philosophy . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Extended Application of Negotiated Procedural Justice . . . . . . . . 7.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

133 133 136 138 138 139 140 141 141 142 143 145 145 147 151 152 153 154 155 157

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8

9

Contents

Confrontation and Cooperation in Judicial Process—A New Theory of Criminal Procedure Model . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 Confrontational Justice and Cooperative Justice . . . . . . . . . . . . . . . 8.2 Parkers and Griffith’s Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Confrontational Justice and Its Limitations . . . . . . . . . . . . . . . . . . . 8.3.1 Basic Principles of Confrontational Justice . . . . . . . . . . . 8.3.2 Limitations of Confrontational Justice . . . . . . . . . . . . . . . 8.4 Minimum Cooperation Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 Negotiated Public Cooperation Model . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 Two Traditions of Negotiated Cooperative Justice . . . . . 8.5.2 The First Plea Bargaining Case in China . . . . . . . . . . . . . 8.5.3 Limits of Negotiated Public Cooperation Model . . . . . . . 8.6 Private Cooperation Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6.1 Emergence of Criminal Reconciliation in China . . . . . . . 8.6.2 What is Restorative Justice? . . . . . . . . . . . . . . . . . . . . . . . . 8.6.3 China’s Restorative Justice? . . . . . . . . . . . . . . . . . . . . . . . . 8.6.4 Revival of Accusatorial System? . . . . . . . . . . . . . . . . . . . . 8.7 A New Cooperative Justice Philosophy . . . . . . . . . . . . . . . . . . . . . . 8.7.1 Pragmatism Philosophy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.7.2 Judicial Justice Based on Cooperation . . . . . . . . . . . . . . . 8.7.3 The Third Legal Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

159 159 162 165 166 168 171 173 174 179 181 185 186 191 193 196 199 199 201 203

Private Cooperation Model in Criminal Procedure . . . . . . . . . . . . . . . 9.1 Emergence of Criminal Reconciliation . . . . . . . . . . . . . . . . . . . . . . 9.2 Three Models of Criminal Reconciliation . . . . . . . . . . . . . . . . . . . . 9.2.1 Defendant-Victim Self-Reconciliation Model . . . . . . . . . 9.2.2 Judicial Mediation Model . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.3 People’s Mediation Committee Model . . . . . . . . . . . . . . . 9.3 Practical Interests of Criminal Reconciliation . . . . . . . . . . . . . . . . . 9.3.1 Common Interests of the Offender and the Victim . . . . . 9.3.2 The Benefit of Judicial Organs . . . . . . . . . . . . . . . . . . . . . . 9.3.3 Social Harmony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Challenges of Criminal Reconciliation to Traditional Criminal Procedure Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.1 Confrontational Model and Cooperative Model . . . . . . . 9.4.2 The Model Centered on the Relationship Between the Victim and the Defendant . . . . . . . . . . . . . . . . . . . . . . . 9.4.3 Boundary Between Criminal Procedure and Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 The Future of Criminal Reconciliation . . . . . . . . . . . . . . . . . . . . . .

205 205 207 207 209 210 211 212 214 218

10 Public Cooperation Model in Criminal Procedure . . . . . . . . . . . . . . . . 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Characteristics of Sentencing Negotiation System . . . . . . . . . . . . . 10.2.1 Sentencing Negotiation Led by Prosecutors . . . . . . . . . . . 10.2.2 Negotiating Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

231 231 233 233 234

220 220 222 225 226

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10.2.3 Sequenced Lenient Sentencing Mechanism . . . . . . . . . . . 10.2.4 Participation of Duty Lawyers . . . . . . . . . . . . . . . . . . . . . . 10.2.5 Judges’ Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Foundation of Sentencing Negotiation System . . . . . . . . . . . . . . . . 10.3.1 Rational Allocation of Judicial Resources Through Sentencing Incentive Mechanism . . . . . . . . . . . . 10.3.2 A Win–win Situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 Substantive Procedural Justice . . . . . . . . . . . . . . . . . . . . . . Problems in Sentencing Negotiation System . . . . . . . . . . . . . . . . . . 10.4.1 Abuse of Power by Prosecutors . . . . . . . . . . . . . . . . . . . . . 10.4.2 Negotiation Between Prosecutors and the Suspects? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Limitations of Legal Assistance of Duty Lawyers . . . . . . 10.4.4 Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conceptual Challenges for the Sentencing Negotiation System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.1 Finding Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.2 Justice in Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.3 The Idea of Equality Before the Law . . . . . . . . . . . . . . . . 10.5.4 Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5.5 Status of Defendants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

235 236 238 240

11 Compliance Incentive Models in Criminal Procedure . . . . . . . . . . . . . 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 Two Models of Compliance-Based Non-prosecution . . . . . . . . . . . 11.2.1 Procuratorial Suggestion Model . . . . . . . . . . . . . . . . . . . . . 11.2.2 Conditional Non-prosecution Model . . . . . . . . . . . . . . . . . 11.2.3 Choice of Models of Compliance-Based Non-prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 Reasons for Establishing Compliance-Based Non-prosecution System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.1 Protecting Private Enterprises . . . . . . . . . . . . . . . . . . . . . . . 11.3.2 Compliance of Private Enterprise Business Model . . . . . 11.3.3 A New Way for Procuratorates to Participate in Social Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Controversies in the Compliance-Based Non-prosecution System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.1 Procuratorates’ Power to Impose Fines . . . . . . . . . . . . . . . 11.4.2 Compliance Supervision Period . . . . . . . . . . . . . . . . . . . . . 11.4.3 Procedural Interface Between Procuratorates and Public Security Organs . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.4 Procedural Interface Between Procuratorates and Administrative Supervisory Authorities . . . . . . . . . . 11.4.5 Effectiveness of Independent Supervisor System . . . . . .

253 253 255 256 257

10.3

10.4

10.5

10.6

240 241 243 244 245 245 246 247 248 248 249 250 250 251 251

261 262 262 263 265 266 266 267 268 269 270

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Contents

11.4.6 Object of Application of Compliance System . . . . . . . . . 11.5 Influence of Compliance-Based Non-prosecution on Criminal Procedure Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5.1 Effect of Compliance Incentive . . . . . . . . . . . . . . . . . . . . . 11.5.2 A New Crime Prevention Theory . . . . . . . . . . . . . . . . . . . . 11.5.3 Enterprise Self-regulation Theory . . . . . . . . . . . . . . . . . . . 11.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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12 Three Models of Incidental Civil Action . . . . . . . . . . . . . . . . . . . . . . . . . 12.1 Challenges of Incidental Civil Action . . . . . . . . . . . . . . . . . . . . . . . 12.2 “Criminal Action Priority over Civil Action” Model . . . . . . . . . . . 12.2.1 Theoretical Foundation of “Criminal Action Priority over Civil Action” Model . . . . . . . . . . . . . . . . . . . 12.2.2 Challenges of “Criminal Action Priority over Civil Action” Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2.3 Theoretical Reflection on “Criminal Action Priority over Civil Action” Model . . . . . . . . . . . . . . . . . . . 12.3 “Separation of Criminal and Civil Actions” Model . . . . . . . . . . . . 12.3.1 Main Reasons for “Separation of Criminal and Civil Actions” Model . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3.2 Some Reflections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 “Civil Action Priority over Criminal Action” Model . . . . . . . . . . . 12.4.1 Reasons for “Civil Action Priority over Criminal Action” Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.2 Legitimacy of “Civil Action Priority over Criminal Action” Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5 Choice of Criminal Incidental Civil Models . . . . . . . . . . . . . . . . . .

277 277 279

13 China’s Model of Exclusionary Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Mandatory Exclusion and Discretionary Exclusion . . . . . . . . . . . . 13.3 Curable Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 “Procedural Review First” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 Allocation of the Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 Conclusion: Laws Alone Do Not Implement Themselves . . . . . . .

301 301 303 308 311 315 319

272 272 273 274 275

279 281 284 286 287 289 291 292 295 299

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327

Author and Translator

About the Author Ruihua Chen Peking University Law School, is the professor of law, a doctoral supervisor, and the director of the Academic Committee of Law School of Peking University. He is also an executive director of the China Law Society and the vice president of the China Procuratorate Society. He was awarded as one of the Top Ten Outstanding Young Jurists of the China Law Society and a distinguished professor under the Changjiang Scholar Award Program of the Ministry of Education. His research focuses on procedural law, evidence law, judicial system, and corporate compliance. He has authored many academic books, including The Original Theory of Criminal Trial, The Jurisprudence of Criminal Procedure, The Criminal Procedure Law, The Theory of Procedural Justice, The Theory of Procedural Sanctions, The Criminal Evidence Law, The Concept of Criminal Defense, The Art of Criminal Defense, and The Basic Theory of Corporate Compliance.

Translator Yong Gao is an associate professor of Law, Beijing International Studies University. She has translated and authored several books.

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Part I

Systems

Chapter 1

Three Forms of Criminal Trials

1.1 Diversification of Criminal Trials Traditional criminal trials aim to determine the criminal liability of the defendant. In this type of criminal trial, the prosecutor is responsible for filing an indictment on behalf of the state. The court is responsible for hearing the case to determine the guilt or innocence of the defendant and, if guilty, for making the sentencing decision. There was no separation between the conviction trial and the sentencing trial in a criminal trial in the past. The judge conducted a consecutive test to determine whether the defendant was guilty or not and to sentence the guilty defendant. Also, for procedural issues raised by the prosecution and the defense and for possible procedural defects in the trial, the courts usually neither held special hearings nor made specific decisions. However, with the gradual advancement of criminal justice reform, this situation has changed in recent years. With the “standardization of sentencing reform,” a “relatively independent sentencing procedure” has emerged in China’s criminal trial system.1 In this procedure, the procuratorate can make the sentencing suggestion to the court, and the victim and the defendant can submit sentencing opinions to the court. The court trial is divided into conviction and sentencing stages. At each stage, the parties argue on the issue of conviction and the issue of sentencing separately, and the court explains the grounds for conviction and sentence in its judgment separately. As a result, the court rules both on whether the defendant constituted a crime and the

1

On October 1, 2010, to standardize sentencing discretion and achieve balanced sentences, the Supreme People’s Court issued the Sentencing Guidelines for People’s Courts (hereinafter referred to as the Sentencing Guidelines), which introduced new sentencing methods and quantitative adjustment ratios for some ordinary sentencing circumstances. At the same time, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security and other administrative departments, issued the Provisions on the Regulation of Sentencing Procedures (hereinafter referred to as the Sentencing Procedures Provisions), which established relatively independent sentencing procedures. For a detailed analysis of the two judicial interpretations mentioned above, see Xiong Xuanguo. Understanding and application of sentencing guidelines and sentencing procedure rules. (2010). China Legal Publishing House, p. 1.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_1

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sentencing of the guilty defendant. Therefore, a criminal trial is separated into two stages: conviction trial and sentencing trial. The amended Criminal Procedure Law of 2012 (hereinafter referred to as the 2012 Criminal Procedure Law) established a unified summary procedure by combining the original summary procedure for minor cases and the “ordinary procedure for cases in which the defendant pleads guilty.” In this procedure, the defendant pleads guilty and agrees to be tried by the summary procedure. The facts of the case are clear, there is no dispute between the prosecution and the defense regarding the conviction, and the defendant waives the innocence defense. Thus, the conviction trial is greatly simplified. However, defendants often have expectations of “leniency” in such proceedings, and disputes arise between the prosecution and defense over the circumstances, type, and range of sentencing. Therefore, the court has to rule on the issue of sentencing. In the summary procedure, the court trial is just a sentencing trial. In the ordinary procedure, the defendant pleads not guilty, and the lawyer makes an innocence defense, so the court conducts a sentencing trial along with the conviction trial. In addition to the separation of conviction trial and sentencing trial, another type of trial has been separated from traditional criminal proceedings. The traditional criminal trial is a substantive trial centered on the defendant’s criminal liability. China’s judicial reforms have led to the separation of “procedural trial” from the traditional criminal proceeding. The “procedural trial” centers on procedural disputes between the prosecution and the defense.2 For example, the court may hold a procedural trial to decide such issues as whether to grant the defendant’s motion for recusal of the judge, whether to approve the party’s motion for a postponed trial of the case, how to rule on the jurisdiction, whether to grant the defendant’s motion for a supplementary identification or evaluation, and whether to exclude evidence. While not relevant to a defendant’s criminal liability, decisions on these issues may affect criminal trials. In 2010, the Supreme People’s Court, the Supreme People’s Procuratorate, and three administrative branches promulgated two criminal evidence regulations establishing rules to exclude evidence illegally obtained by investigators.3 The 2012 Criminal Procedure Law incorporated and adjusted these two evidence regulations, formally establishing the exclusionary rule. The law defines “illegal evidence” and provides the legal effect of excluding illegal evidence. In addition, the procedure of the exclusionary rule has been established, including the application for the exclusion of illegal evidence, preliminary examination, initiation of proceedings, allocation of the burden of proof, hearing and judicial remedy measures.

2

For an early analysis of “procedural trial,” see Chen Ruihua. (2010). The theory of procedural sanction. China Legal Publishing House, p. 233. 3 In Jun. 2010, the Supreme People’s Court, the Supreme People’s Procurement, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly issued Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases and Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases, see Zhang Jun, ed. (2010). Understanding and applying the rules of criminal evidence. Law Press, p. 1.

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The 2012 Criminal Procedure Law also established a pretrial meeting procedure. The court convenes the prosecution and the defense before the trial to hear their views on procedural issues such as recusal, witness appearance list, and exclusion of illegal evidence, then decides on this basis. The pretrial meeting procedure, which has the character of a “preparatory court,” allows the prosecution and the defense to express their views and make motions on procedural issues. The court can decide on the procedural issues between the parties before the trial begins. According to the judicial interpretation promulgated by the Supreme People’s Court and the Supreme People’s Procuratorate, the disputed procedural matters to be discussed at the pretrial meeting may also include jurisdictional objections, request for gathering or submission of evidence, application of summary procedure, postponement of the trial, etc.4 Of course, it is still an open question whether the decisions made by the court on procedural issues at the pretrial meeting are binding on the court proceedings, and whether the prosecution and defense can re-raise or continue to argue these issues in the trial. Nevertheless, when the court brings the parties in at the pretrial stage to hear them and rule on procedural issues, a special judicial hearing is held before the trial, which serves as a “procedural trial.” Thus, the “standardization of sentencing reform” and the 2012 criminal procedural law have led to the diversification of judicial trials. After the prosecution is filed, the court can hear and decide on the conviction, sentencing and procedural disputes in separate proceedings. The “sentencing trial” and “procedural trial “ are separated from the traditional substantive trial, and the “conviction trial” becomes independent, which is a significant change in our criminal procedure system. This chapter examines the three forms of the criminal trial. It analyzes the nature, forms and structure of “conviction trial,” “sentencing trial” and “procedural trial” and points out the defects of these trials. Moreover, it gives theoretical explanations to some new issues that arise in the cross or parallel operation of the three trials, such as the prosecution model, the defense model, and the rules of evidence. Indeed, the three forms of trial exist in the first and second instances, death penalty review and even retrial proceedings. This chapter examines only the first instance trial for a more in-depth discussion. So, in this chapter, conviction trial, sentencing trial, and procedural trial refer to the first instance trial.

1.2 Conviction Trial The “standardization of sentencing reform” separates the sentencing trial from the conviction trial, creating a trial that focuses exclusively on the conviction. Indeed,

4

At a symposium on the judicial interpretation of the Criminal Procedure Law held by the Supreme People’s Court and the Supreme People’s Procuratorate, I found that judges and prosecutors were optimistic about the function of pretrial conferences to resolve procedural disputes and the expansion of issues that could be heard at this stage.

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the conviction trial and the sentencing trial are only relatively independent. Therefore, the same court investigates of the facts of the crime and the sentencing facts in the same court investigation procedure, hears the opinions of both sides on the issue of conviction and sentencing in the same court debate procedure, and determines the issue of conviction and sentencing in the same judgment. Therefore, a pure conviction trial does not exist. Meanwhile, the 2012 Criminal Procedure Law reforms the summary procedure, which applies to cases heard by the basic courts where the defendant pleads guilty and agrees to be tried by the summary procedure. In the summary procedure, the court does not conduct a comprehensive court investigation and court debate on the issue of conviction, so the conviction trial is omitted, and the summary procedure becomes a simple sentencing procedure. Consequently, conviction trial exists primarily in the ordinary procedure. The following analyzes nature, reform, and procedural structure of the conviction trial.

1.2.1 Nature of Conviction Trial The primary task of a conviction trial is to determine whether the defendant is guilty of the charged crime. According to the principle of “ no trial without complaint,” the prosecution is a prerequisite for a conviction trial, and the court may not hear cases that are not prosecuted. Thus, as a “petition for conviction,” the prosecution’s indictment contains three elements: the person charged, the facts, and the law. The indictment initiates the conviction trial, and defines the objective of the adjudication. As the adjudicator, the judge decides whether the defendant is guilty of the crime charged by the prosecution. In the conviction trial, the defendant is in the position to be charged and can exercise the right of defense with the help of defenders. In the ordinary procedure, the defendant may choose different roles. If the defendant pleads not guilty, he or she chooses the innocence defense in the conviction trial, raising a claim against the prosecution. If the defendant pleads guilty but does not agree to apply the summary procedure, he or she may waive the innocence defense or argue for a reduction in the seriousness of the charge from a felony to a minor one. Whether the defendant pleads innocent or guilty, he or she holds different opinions from the prosecution in the conviction trial. After the conviction trial, the court decides whether the defendant has committed a crime. Then, the conviction and sentencing decisions are written in the same judgment. The conviction decision contains two parts: facts and laws. In the fact-finding part, the court examines the evidence presented by the prosecution and defense to determine whether the prosecution’s proof of the facts meets the standard of proof. However, in the law part, the court applies the criminal law based on facts and determines the crime committed. The court decides whether the defendant is guilty or not, so there is always the possibility of an erroneous verdict in a conviction trial. There is a risk of wrongful conviction at the conviction trial. The procedural safeguards are established in the

1.2 Conviction Trial

7

criminal procedure law to avoid wrongful convictions. Procedural rules, including the presumption of innocence, the defense system, judicial proof, and the principle of directness and verbalism, help prevent wrongful convictions.

1.2.2 Reform of Conviction Trial The 1996 Criminal Procedure Law reformed the “criminal trial pattern “, mainly focusing on the conviction trial. The so-called “trial model reform” is the “conviction trial model” reform. In 2010, the Supreme People’s Court led a “standardization of sentencing reform” that separated the sentencing trial from the conviction trial. After two years, the new Criminal Procedure Law reformed the conviction trial pattern. This reform includes five areas: first, the pretrial file transfer system was restored; second, a pretrial meeting system was established; third, a unified summary procedure was established in the trial of the basic courts; fourth, a system of witnesses, evaluators and experts to testify in court has been established; fifth, the trial period of the court has been extended.5 These reforms have had an impact on the conviction trial. A brief analysis of this is provided below. The 2012 Criminal Procedure Law restored the pretrial file transfer system, requiring the procuratorate to transfer the indictment and all case files to the court at the time of prosecution. In contrast to the 1996 criminal procedure law, which required the procuratorate to submit to the court only “copies or photographs of the main evidence,” “a list of witnesses,” and “a list of evidence,” the 2012 criminal procedure law restored the original system of transferring all case files created by the 1979 criminal procedure law, meaning that parts of the 1996 “trial model reform” were abolished. The criminal procedure law reverted to its 1979 form to a certain extent. With the new rules, judges can consult all case files before trial for adequate pretrial preparation, and defense attorneys can access case files to prepare for their defense in court. However, when judges consult all case files before trial, they are likely to reach a prejudgment of the defendant’s guilt, which may undermine the effectiveness of the innocence defense in the court trial. Second, the pretrial meeting system established by the 2012 Criminal Procedure Law has a significant impact on the conviction trial. By resolving procedural issues such as recusal, jurisdiction, application of the summary procedure, and exclusion of illegal evidence with the participation of the prosecution and the defense, the court can reduce the number of adjournments and hear the issue of conviction without interruption. In addition, at the pretrial conference, the list of witnesses and evaluators to testify in court is confirmed, and the defendant can gather evidence and request adjournments, which allows the court to prepare for the conviction trial and maintain fair play between the prosecution and defense, thereby focusing on the issue of conviction. 5

For a detailed analysis of these reforms, see Lang Sheng, ed. (2010) Revision and application of criminal procedure law. Law Press China, p. 1.

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Third, the reform of the summary procedure in the 2012 Criminal Procedure Law has made it possible for the basic courts to apply the summary procedure to cases where the defendant pleads guilty. The application of the summary procedure has significantly reduced the scope of application of conviction trial, so that conviction trial is mainly found in the ordinary procedure. Thus, there is a conviction trial only when the defendant pleads not guilty or does not agree to the application of the summary procedure. Fourth, in the past, the court generally did not summon witnesses and experts to testify in court, so the court examined the testimony of witnesses mainly by listening to the interrogation transcripts read by the prosecutors, and examined experts’ opinions by consulting the written files. As a result, a court hearing has become a formality, or even a “ritual of conviction” carried out primarily through consulting written documents and administrative approvals.6 The 2012 Criminal Procedure Law established a system for witnesses, experts, and evaluators to testify in court to address this issue. According to this system, where a party raises any objection to the transcript of the testimony, which has a significant impact on the conviction and sentencing of a case, the witness shall testify in court if the court deems it necessary. The court may force the witness to testify in court if the witness refuses to testify in court without justifiable reasons after being notified by the court. Where the prosecutor or defendant raises any objection to an expert opinion, the expert shall testify in court if the court deems it necessary. If the expert refuses to do so after being notified by the court, the expert opinion may not be used as a basis for deciding the case. In addition, the prosecutor or the defendant may request the court to call a person with the expertise to testify in court to offer an opinion on the expert opinion. With the implementation of these rules, the traditional method of consulting written testimony was abandoned. Under the principle of directness and verbalism, the court hears oral statements from witnesses and evaluators to discover facts based on first-hand information. This trial method may free the court from reliance on the transcript of testimony and written expert opinions, avoiding errors in evidence review and fact-finding. The 2012 criminal procedure law extends the trial period. For cases applying ordinary procedures, the trial period of the first instance is three months. For a case with the possibility of a death penalty or a case with an incidental civil action, the period of trial may be extended to 6 months. Extended trial periods allow courts to prepare for trial and hear cases sufficiently, rather than rushing through trials to save time. This also allows the defendants and their lawyers to prepare adequately for the trial so that motions such as excluding illegal evidence, summoning witnesses to testify in court, and gathering evidence can be filed. This also allows sufficient court time to review and decide on such motions. To a certain extent, a fair trial and the prevention of wrongful convictions are based on adequate judicial resources. A suitable and generous trial period is an essential part of judicial resources.

6

For more discussions, see Gu Angran. (1996). Litigation, arbitration and state compensation system in china. Law Press. p. 20; Wang Shangxin. (1994). Some issues about revision of criminal procedure law. Chinese Journal of Law, 5.

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1.2.3 Litigation Structure of Conviction Trial Some elements of the adversarial system have been introduced into our criminal trial process through the 1996 “trial model reform.” However, the traditional ex officio procedural framework still exists, so China’s criminal trials have not entirely adopted the adversarial system, but have become a “mixed system.” According to mainstream jurisprudence, this pattern of the criminal trial is characterized by the “adversarial” or “argumentative” structure.7 After the “standardization of sentencing reform” in 2010 and the revision of the Criminal Procedure Law in 2012, what is the structure of the “conviction trial” separated from the traditional substantive trial? The conviction trial still maintains the structure of the hybrid system, which incorporates several elements of the ex officio and adversarial system, so that the parties and the judge control the proceedings respectively. However, the 2012 Criminal Procedure Law has increased the control of judges over the process of the court investigation and court debate and reduced the power of the prosecution and defense over the process, resulting in more weight being given to ex officio factors. The 1996 criminal procedure law limited the scope of case files that can be transferred to the court by the procuratorate and prohibited the procuratorate from transferring all case files to the court. Through this reform, the legislature sought to address the problem of “judges decide before trial” and to encourage judges to be passive during the trial. It was also hoped that instead of leading the investigation of evidence, judges would control the trial by organizing the process of presenting and verifying evidence and the debate process.8 However, judicial practice showed that this reform was unsuccessful. On the one hand, while judges became passive during the court investigation, prosecutors and defendants had no balanced control over the trial. The prosecution dominated the evidence investigation process, and the defense was unable to crossexamine the prosecution’s evidence effectively, but had to participate in a formalized process passively. The so-called “adversarial” trial became an evidence investigation process led and controlled by the prosecutor, with both the judge and the defendant losing control of the trial process. On the other hand, since 1998, the “post-trial transfer file system” allowed the prosecution to transfer all case files to the court after the court hearing, so that the judge could consult all case files before making a decision. It significantly impacted the conviction trial. It is difficult for a judge to find facts through a brief and cursory hearing. Which would the judge prefer, the sparse information obtained at trial, or the richer information included in the case file? At the very least, both have the potential to be the factual basis for a conviction verdict. Thus, the post-trial transfer file system and the prosecution-led evidence investigation procedure resulted in a

7

Zhang Jun. (1996). Some issues about the trial method in criminal cases. Chinese Legal Science, 3. 8 For the comments on the “reform of criminal trial method” in 1996, see Chen Ruihua. (2010). Chinese model of criminal procedure. Law Press, p. 159.

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pro forma court hearing. The judge’s internal conviction of guilt was based on the case file, not the trial process. The restrictions on the case files transferred by the prosecution in the 1996 Criminal Procedure Law failed to achieve the legislator’s expected goal and brought about some new problems. Before enacting the 2012 Criminal Procedure Law, many courts formed a tacit agreement with procuratorates to revert to the pretrial file transfer system. Although this practice violated the 1996 criminal procedure law, it was not resisted or challenged. It facilitated the court’s pretrial preparation, enabled lawyers to consult all case files before trial, and did not significantly impede the prosecution. The restoration of the pretrial file transfer system in the 2012 Criminal Procedure Law was a reform plan generally supported by judges, prosecutors, and lawyers. However, the restoration of the pretrial file transfer system led to the conviction trial moving toward ex officio, which hurt the 1996 “adversarial” trial model reform. Generally speaking, the file transfer system is a distinctive symbol of the ex officio, just as the “charge-statement-only doctrine” is an essential element of the adversarial system.9 Under the file transfer system, the judge consults the prosecution’s case file before the trial to understand the entire investigation and examination and prosecution process and be familiar with all the prosecution evidence. After consulting the case file, the judge may prejudge the prosecution’s evidence and factual findings and conclude that the defendant is guilty. In addition, compared to a judge who is not aware of any evidence before the trial, a judge who can consult all case files before the trial is more likely to control the court hearing, while restricting the parties’ evidence presentation, and cross-examination and debate. Through reading the file, the judge understands the prosecution’s evidence and the defects and shortcomings of the prosecution’s evidence system. To investigate the evidence in a targeted manner, the judge may prescribe the scope, order, and form of the court investigation, or even draft a trial outline to be followed at the conviction trial. By consulting the case file and pretrial preparation, the judge can control the court hearing, guide the prosecution and defense to present evidence and cross-examination, and overrule “irrelevant” questions, “superfluous” evidence and “inappropriate” cross-examination. Under the influence of the pretrial file transfer system, the prosecution and defense had less control over the investigation of evidence, which led to the conviction process towards ex officio. But this movement toward ex officio would not develop without restriction. The 2012 Criminal Procedure Law establishes the pretrial meeting system, allowing the prosecution and defense to express their views on procedural disputes before the trial, guaranteeing the defendant’s right to defense. A system of witnesses, evaluators and experts testifying in court could make it possible to implement a “cross-examination” system in the future. The system that places the burden of proof on the prosecution and the “beyond a reasonable doubt” standard of proof implements the presumption of innocence, making the prosecution’s “risk of

9

Li Xinjian. (1992). The structure of criminal procedure. China University of Political Science and Law Press, p. 238.

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11

losing” higher. These systems can guarantee defendants’ rights, prevent the conviction trial from becoming a mere formality, and achieve the goal of fair play between prosecution and defense.10

1.3 Sentencing Trial The separation of the sentencing trial from the traditional criminal trial is a product of the “standardization of sentencing reform” established by the 2012 criminal procedure law.11 Although the sentencing trial is not entirely separated from the conviction trial, meaning that the court does not conduct a specialized sentencing trial, the sentencing issue is included in the court hearing and the sentencing trial is adversarial, open, and transparent. Especially in the summary procedure, when the issue of conviction is not in dispute, the court trial is almost like a sentencing trial. It can be said that the sentencing trial in the summary procedure has a complete litigation form. Therefore, it is necessary to consider a sentencing trial as a specialized form of trial and theoretically explain its nature, form, and litigation structure.

1.3.1 Nature of Sentencing Trial A sentencing trial is aimed at determining the sentence of a guilty defendant, so logically, the sentencing trial is predicated on a conviction. The “sentencing trial” implies that the defendant has been found guilty. Not only that, but the court has determined the charges against the defendant, which is a prerequisite for a sentencing trial. Otherwise, the court can determine neither the sentencing circumstances nor the type and range of sentencing. The prosecution’s indictment initiates both the conviction trial and sentencing trial. The prosecutor’s sentencing suggestion does not initiate a sentencing trial. Even if the prosecution does not make a sentencing suggestion, or simply makes a verbal sentencing suggestion, the court will still hold court investigation and court debate over sentencing. In addition, the prosecution’s sentencing suggestion cannot define the scope of the sentencing trial. The court should pay attention to the sentencing circumstances proposed by the prosecution and those presented by the victim and the defendant. Ultimately, the court made a sentencing decision based on the sentencing opinions given by the prosecution, the victim and the defense. 10

For the trial reform in the 2012 criminal procedure law, see Chen Ruihua. (2011). Comments on the effect of criminal procedure law on the reform of trial procedure. The Jurisprudence, 11; Chen Ruihua. (2012). Evolution and rethinking on system of transferring case file. Tribune of Political Science And Law, 5. 11 For the comments on the sentencing procedure, see Chen Ruihua. (2011). Theoretical issues in the sentencing procedure. Peking University Press, p. 1.

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The “standardization of sentencing reform” has given rise to a “quantitative method to sentencing.” After confirming the defendant’s guilt, the court determines the “sentencing benchmark” based on the crime committed and then determines the sentencing based on the impact of the different circumstances. On this basis, the court calculates the sentencing range according to the principle of “add in the same direction” and “subtract in reverse.” It then makes appropriate adjustments based on the circumstances of the case, and finally determines the “pronounced sentence”.12 This “quantitative sentencing method” mainly affects the court’s determination of the sentencing and does not significantly impact the presentation of evidence, cross-examination, and debate between the prosecution and defense on the sentencing issue. In a sentencing trial, the prosecution and defense present their sentencing opinions based on the sentencing circumstances. Even if the prosecution and defense had submitted a specific sentencing suggestion or sentencing opinions, the court would not have made a quantitative assessment of the impact of each circumstance on sentencing. The prosecution and defense participate in the sentencing trial in two ways: first, to argue whether a sentencing circumstance is proven; second, to propose the type and range of sentencing. The quantitative impact of each sentencing circumstance on sentencing and the final sentence is at the judge’s discretion. The court must give reasons for the final sentencing in the judgment. If the most significant risk of a conviction trial is a wrongful conviction, the main risk of a sentencing trial is the abuse of the judge’s discretion in sentencing. The abuse of discretion results in judges arbitrarily adopting or excluding a sentencing circumstance, unjustifiably determining the type and range of sentencing, and making different sentencing decisions in the same situation. To avoid these risks, the Supreme People’s Court initiates the “standardization of sentencing reform” that requires local courts to hear sentencing issues in trials and establishes relatively independent sentencing procedures to “limit the discretion in the sentencing trial.” Reforms, including the prosecution’s sentencing suggestion, defense’s sentencing opinions, separation of sentencing trial and conviction trial, and courts stating reasons in decisions, are closely related to limiting and regulating judges’ discretionary power.

1.3.2 Sentencing Trial in Ordinary Procedure In the ordinary procedure, the court hears the issue of conviction and the issue of sentencing at the same time. After the procuratorate submits an indictment to the court, the court’s conviction trial begins, and so does the sentencing trial. The prosecution’s sentencing suggestion may be submitted to the court either with the indictment or after the indictment has been read. It is most common for prosecutors to read out the sentencing suggestion during the court debate in judicial practice. 12

For the analysis of the “quantitative method of sentencing”, see Apply the procedure, regulate the sentencing and ensure the fairness: The judge of Supreme People’s Court meets the press. (2009, June 1st). People’s Court Daily.

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The court in ordinary procedure decides whether the defendant has committed a crime and the sentencing of the guilty defendant. Thus, the same court hears the two issues in the same proceeding rather than in a separate conviction trial and sentencing trial. However, to hear sentencing issues, judges usually divide the court investigation into two parts, successively investigating the constituent elements of the crime and the sentencing circumstances, and divide the court debate into two parts, where the conviction and sentencing issues are debated separately. The court then deliberates and decides the issue of conviction together with the issue of sentencing. The court’s judgment should state the reasons for the conviction and the sentencing separately.13 The problem facing the independent sentencing trial in the ordinary procedure is how to guarantee the fairness of the conviction trial and sentencing trial. Since courts must resolve different issues and face various legal risks in conviction and sentence trials, the issues of conviction and sentencing may not be adequately addressed if the two trials are mixed in the same proceeding.14 For example, in cases where the defendant pleads not guilty or makes an innocence defense, the defense and the court give weight to the conviction issue, so the investigation and debate on the sentencing issue are weakened. Especially when the defendant insists on the innocence defense and even abandons the sentencing defense, sentencing investigation and debate are led by the prosecutor, endangering the fairness of the sentencing trial. Another example is that defendants often find it difficult to choose between an innocence defense or a sentencing defense, fearing that a not guilty plea may anger the court, which would consider the defendant to have a “bad attitude” and impose a heavier criminal penalty. As a result, defendants often have to give up their innocence defense, leaving the conviction trial omitted. For another example, the defendant asks the court to consider the sentencing circumstances when the court has not yet made a guilty verdict, which leads to the contradiction between the sentencing defense and the innocence defense and weakens the effect of the innocence defense.

1.3.3 Sentencing Trial in Summary Procedure According to the 2012 criminal procedure law, the prerequisite for the court to apply the summary procedure is that the defendant admits his guilt and does not object to the application of the summary procedure, and the facts of the case are clear and the evidence is sufficient. This means that the defendant gives up his innocence defense, and the court formed an internal conviction of guilt beyond a reasonable doubt simply by consulting the file. Thus, the court does not conduct a conviction trial, and the core of the summary proceeding is the issue of sentencing. 13

Li Yuping. (2008). Design and construction of Chinese relatively independent sentencing procedure. Application of Law, 4. 14 Chen Weidong ed. (2010). Theoretical research on the reform of sentencing procedure. Law Press, p. 335; Chen Ruihua. (2011). Theoretical issues in the sentencing procedure. Peking University Press, p. 100.

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What are the characteristics of the summary procedure as a pure sentencing trial? First, it should not be omitted that the prosecutor submits a written sentencing suggestion, or reads the sentencing suggestion in court, and then the court hears the defense’s sentencing defense. The defendant who chooses the summary procedure expects a lenient criminal punishment. Therefore, the prosecution and the defense present and verify the evidence and debate over the prosecution’s sentencing suggestion. Second, the sentencing trial focused on the evidence and facts in dispute between the prosecution and defense. In principle, the court does not require the parties to present and cross-examine the evidence that is not in dispute, and the court does not investigate and verify it. If there is no disagreement between the prosecution and the defense on the sentencing facts and circumstances, the court can directly hear the sentencing opinions of both sides. The court shall conduct a sentencing investigation and sentencing debate on the disputed evidence, sentencing facts and circumstances. Again, whether or not the defense attorney participates in the sentencing trial may affect its effectiveness. In those cases where defense counsel is involved, the court would conduct a sentencing investigation on disputed sentencing evidence and hear the parties’ sentencing opinions. In such cases, the court usually accepts the prosecution’s sentencing suggestion.15

1.4 Procedural Trial There are two types of procedural trial mechanisms in the first instance criminal proceedings in China: the first is a trial on the exclusion of illegal evidence; the second is a pretrial meeting to resolve procedural disputes between the parties. In the trial on the exclusion of illegal evidence, the court hears the legality of the investigation according to the motion filed by the defense. Such a hearing may be held at the pretrial meeting or during the court trial. In the pretrial meeting, the issues to be decided by the court include the legality of the investigation, recusal, jurisdiction, gathering evidence, summoning witnesses and experts to testify in court, postponement of the trial and other procedural disputes. Although much more straightforward than the conviction trial and sentencing trial and often ignored by courts, the procedural trial still has judicial trials’ essential attributes. Studying the nature and litigation structure of the procedural trial is very useful for understanding the various types of trials.

1.4.1 Nature of Procedural Trial The procedural trial is aimed at resolving procedural disputes. Originally, the purpose of criminal procedure is to determine the defendant’s criminal responsibility, that is, 15

Li Yuping. (2009). To perfect and improve the sentencing procedure, to achieve the standardized sentencing procedure. Chinese Trial, 8.

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whether the defendant is guilty of the crime charged by the prosecution and what sentence is imposed on the guilty defendant. The criminal procedure law establishes a series of procedures and systems, and provides many rights for suspects, defendants, and lawyers. The criminal procedure law establishes a new type of judicial trial to hear and decide procedural disputes between the prosecution and the defense. Unlike conviction trial and sentencing trial, the procedural trial can be initiated either by the prosecution or the defense. For example, both the prosecution and the defense can apply for an adjournment of the trial, apply for the court to notify witnesses and experts to testify in court, and access each other’s evidentiary materials, which contrasts with the other two types of trials that the prosecution can only initiate. Indeed, the defense still initiates the procedural trial in most cases. The procedural trial, whether at pretrial meetings or during court hearings, is initiated primarily on the defense’s motion. For example, applications for recusal of judges and prosecutors, change of jurisdiction, and access to evidentiary materials are the exclusive rights of the defense. As for the application for the exclusion of illegal evidence, it is a legal remedy to challenge the legality of the investigation, which can only be filed by the defendant. Some applications, such as summoning witnesses, experts, and persons with specialized knowledge to testify in court, for a closed-door hearing, and adjournment of court hearings, are generally filed by the defense rather than the prosecution in judicial practice. The prosecution generally is the “respondent” or “defense” in the procedural trial, as the defendant’s motion initiates the procedure. For example, when the defense applies for recusal and files a jurisdictional objection, the prosecution holds different views from the defense regarding the qualifications of prosecutors and judges and the court’s jurisdiction. When the defendant applies for witnesses, experts and “persons with expertise” to testify in court, the prosecution would offer a different opinion to defend its witness testimony and expert opinion. When the defendant applies for the exclusion of illegal evidence, the defendant is in the position of the “procedural plaintiff,” and the investigator is the “procedural defendant”. At the same time, the public prosecution defends the legality of the investigation and refutes the defendant’s application for the exclusion of illegal evidence.16 The court shall conduct special hearings and decide on procedural disputes between the prosecution and the defense. Such trials are held before or during formal court hearings. According to the principle of the procedural review first, the court hears procedural issues before deciding on the defendant’s criminal responsibility.17 Moreover, the court’s decision on procedural issues is binding on the conviction trial and sentencing trial, meaning that the trial of the defendant’s criminal responsibility is based on the procedural decision. Our criminal procedure law does not have an “interlocutory” system, so procedural issues are recorded in the same decision together with substantial issues rather than in a separate decision. The procedure

16

Chen Ruihua. (2010). The theory of procedural sanction. China Legal Publishing House, p. 177. Zhang Jun. (2010). Understanding and application of rules of criminal evidence. Law Press, p. 320; Chen Ruihua. (2011). Criminal evidence law. Peking University Press, p. 294.

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decision is appealed jointly with the substantive decision. Nevertheless, the procedural trial is included in the substantive trial, with the nature of “a lawsuit within a lawsuit”, “a case within a case” or “a trial within a trial”.18

1.4.2 Procedure of Exclusionary Rule The trial on the exclusion of illegal evidence is a typical procedural trial. Usually, this trial is initiated by the defendant’s application, and the prosecution is the responding party responsible for appearing in court. The core issue in such a trial is whether the investigation is illegal and whether the evidence should be excluded. If the court decides to exclude evidence, that evidence may not be used in a subsequent substantive trial. However, if the court denies the defendant’s motion and finds that the evidence is legal, the evidence may be used in the court proceedings. The procedure of the exclusionary rule is divided into two stages: preliminary review and formal hearing.19 In the preliminary review, the court examines the application of the defendant to exclude illegal evidence, and whether the defendant has presented relevant evidential materials or evidential clues. If, after examination, the court has doubts about the legality of the investigation, a formal hearing is initiated; otherwise, the defendant’s motion to exclude evidence shall be rejected. In the formal hearing, the prosecution bears the burden of proving that the investigation is lawful and that the evidence obtained by the investigators is not “illegal evidence”, or that the illegal evidence is not the object of exclusion by the court. The defendant and his or her lawyer may prove the investigation is illegal and the illegal evidence should be excluded. However, the burden of proving the legality of the investigation always rests with the prosecution, regardless of whether the defense presents evidence. If the prosecution can not prove that the investigation is legal, or can not rule out the possibility of illegality, it will bear the “risk of losing the case”. The court hearing consists of two parts: the first is the courtroom hearing, that is, the presentation of evidence, cross-examination and debate between the prosecution and defense; the second is the out-of-court investigation and verification of evidence, that is, the judge collects and verifies evidence to review the legality of the investigation. In the first part, the judge may review the transcripts of evidence, and video recordings of interrogations, order the investigator to explain the investigative activities, and call the investigator to testify in court and be cross-examined by the parties. In the second part, the judge may go to the detention center to collect evidentiary materials, interview investigators, guards or inmates, and if necessary, conduct supplementary authentication. 18

Michael Zander. (1990). The Police and Criminal Evidence Act 1984. Sweet Maxwell, p. 196; John Sprack, Christopher J Emmins. (2010). Emmins on criminal procedure (8th edition), pp. 150– 151, 280–282. 19 For Chinese exclusionary rule, see Chen Ruihua. (2010). Chinese model of exclusionary rule. Chinese Legal Science, 6.

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If, after the court hearing and out-of-court investigation, the legality of the investigation is not proven, or the possibility of obtaining evidence illegally is not ruled out, the court may determine that the investigation violates the legal procedures, and the evidence obtained by the investigator is “illegal evidence”. Accordingly, the court may exclude illegal evidence, which may not be used in the trial. The court should record this procedural decision in the final judgment. The prosecution or defense who is not satisfied with this decision may appeal to the court of the second instance. In theory, if the court finds that the investigator has obtained evidence illegally, it can start the procedure of the exclusionary rule on its own. However, this rarely happens in judicial practice. Nearly all procedures of the exclusionary rule are initiated upon application by the defense. Because of this, the procedure of exclusionary rules has a typical litigation form, which follows the principle of “no trial without complaint.” However, this procedure is closer in structure to an administrative proceeding. The burden of proof is on the prosecution as the responding party, and the defendant no longer has the burden of proof once this procedure is initiated. The central issue in the trial is whether the prosecution can prove the legality of the investigation and argue that the defense’s motion to exclude illegal evidence is not justified.

1.4.3 Procedural Trial in Pretrial Meeting In the past, during court hearings, the defense often filed procedural applications, such as applications for recusal of judges, for changing the jurisdiction, for summoning witnesses and experts to testify in court, for gathering new evidence, for consulting, extracting, and duplicating prosecution evidence, and applications for exclusion of illegal evidence. The court denied the defendant’s motion, or adjourned the trial for an out-of-court investigation. If the court rejected the motion, the defendant’s right to defense was not guaranteed. Even if the court did review the defendant’s motion, the lack of adequate pretrial preparation made it difficult to decide the procedural issues fairly. In court, judges were inclined to resist the disruption caused by the defendant’s motion, which sometimes even led to a conflict between the judge and the defendant. The 2012 Criminal Procedure Law established the pretrial meeting system, whereby judges convene the prosecution and the defense before the trial to understand the procedural disputes and hear both sides’ opinions to prepare for the trial. The defendant’s motion to exclude illegal evidence is filed in the pretrial meeting. The defendant is required to submit a written application, and the prosecution is served by the court with a copy of this application to prepare its response. Also, the defendant must submit relevant evidential materials or evidence clues to the court. If, after pretrial review, the court believes that the investigation is illegal, or if the prosecution has agreed to the application of the defense to exclude illegal evidence, the court may decide to exclude illegal evidence before the trial. On the contrary, if the court cannot determine whether the evidence is unlawful before the trial, or if the

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prosecution opposes the application to exclude illegal evidence, the court will have to hear the issue of excluding illegal evidence in the court hearing. In addition to excluding illegal evidence, the prosecution and the defense have other procedural disputes, such as recusal, jurisdiction, gathering evidence, summoning witnesses, experts and people with expertise to testify in court, and applying the summary procedure, postponement of the trial, etc. For these procedural disputes, the prosecution and the defense can express their views, put forward the factual and legal basis to support their claims, and refute the other party’s claims. The court decides the procedural issues based on the opinions and arguments of the parties. Whether in favor of the prosecution or the defense, a decision is binding in a formal trial. Among all the procedural issues decided at the pretrial meeting, only the issue regarding the exclusion of illegal evidence is included in the final judgment. The court only pronounces oral decisions for most procedural issues, which are kept in the trial transcript. These oral judgments are not the basis for an appeal by the prosecution or the defense because there is no procedure for relief against them. The pretrial meeting system provides a new way to coordinate procedural trial and substantive trial. Under this system, the court hears procedural issues in a pretrial meeting, while the court hears the accused’s criminal responsibility in a formal trial. The court may hear procedural issues such as excluding illegal evidence at a formal trial, but only for difficult procedural issues that cannot be decided at a pretrial conference. However, procedural issues should be presented to the court by the prosecution or defense at a pretrial meeting so that the court has sufficient time to prepare. If the prosecution or defense fails to raise a procedural issue at the pretrial conference without good cause, the court may deny the motion filed at the subsequent trial. The procedural trial in the pretrial meeting is simpler than t the procedure of exclusionary rule. The court makes only an oral ruling, which deprives the parties of the right to appeal, but it also combines the court investigation with the court debate and hears only brief comments from the parties. Although such trials have the basic litigation structure, they are “mini-trials” in nature and are informal procedural trials.

1.5 Impacts of Three Forms of Criminal Trials The separation of “conviction trial,” “sentencing trial” and “procedural trial” is a major reform of China’s criminal trial system. The emergence of these three trials has changed the original litigation pattern, expanded the meaning of the prosecution, enriched the form of criminal defense, and promoted the diversification of criminal evidence rules. Therefore, it is necessary to analyze the impact of these trial forms on the procedural system, especially on the prosecution system, defense system and evidence rules.

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1.5.1 Conviction Prosecution, Sentencing Prosecution and Procedural Prosecution The traditional public prosecution system is based on state prosecution. The procuratorate files an indictment to request the court to convict the defendant and impose a sentence on the guilty defendant. The prosecution’s indictment is both a petition for conviction and a sentencing suggestion, and the court holds a hearing to decide the issue of conviction and sentencing. With the independence of the three types of trials, the public prosecution has been divided into three corresponding forms, which are called “conviction prosecution”, “sentencing prosecution” and “procedural prosecution”. Conviction prosecution is aimed at convincing the court to issue a guilty verdict. The indictment submitted by the procuratorate is a “petition for conviction”, which is a sign of the initiation of public prosecution for conviction. To accomplish the mission of a conviction prosecution, the prosecutor presents evidence to prove the facts of the crime as outlined in the indictment. Under the presumption of innocence, the prosecutor bears the burden of proving the defendant’s guilt and bears the “risk of losing” the case if the burden of proof is not met. When the crime facts are unclear and the evidence is insufficient, and the judge has a reasonable doubt about the defendant’s guilt, a verdict of not guilty shall be rendered. The prosecution wants to convince the court to accept the facts and charges of the crime it proposes. However, in our criminal proceedings, the court sometimes agrees with the facts of the crime presented by the prosecution, but imposes a charge inconsistent with the indictment. Sentencing prosecution is aimed at convincing the court to accept the sentencing suggestion. An oral or written sentencing suggestion expresses the prosecution’s opinion on the sentencing issue. Usually, the sentencing suggestion contains two elements: one is the sentencing facts and circumstances; the other is the type and range of the sentence. Based on the prosecutor’s “objective obligation,” the prosecutor must present sentencing circumstances both against the defendant and in favor of the defendant. Also, to restrain judges’ discretion in sentencing, prosecutors must propose the types and ranges of sentences in as much detail as possible.20 The prosecutor is only a sentencing advisor, rather than a judge, and the sentencing circumstances known to the prosecutor may not be comprehensive and objective. The defense may put forward some new sentencing circumstances and valuable sentencing defense opinions in court. Therefore, the prosecutor’s sentencing suggestion may be changed. The prosecutor may present a new sentencing suggestion to the court in the sentencing trial if the sentencing facts have changed or if the original suggestion is inappropriate. Conviction prosecution and sentencing prosecution are both “offensive”, while procedural prosecution is “defensive”. The defendant initiates a procedural trial to resolve a procedural dispute. In cases where the defendant applies for the exclusion of illegal evidence, the defendant becomes the “procedural plaintiff”, the investigator 20

Chen Guoqing. (2009, October 28). Discussion about the system of sentencing suggestion. Legal Daily.

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becomes the “procedural defendant”, and the prosecutor becomes the “respondent” to the procedural issue. In the procedure of exclusionary rule, the prosecutors bear the burden of proving the legality of the investigation and the “risk of losing the case” if they fail to do so. Besides excluding illegal evidence, the prosecutor refutes other procedural motions filed by the defense and presents evidence and legal grounds for doing so. In theory, a prosecutor can file three kinds of prosecution opinions and play three prosecution roles in the same case. Still, in practice, a prosecutor is often engaged in only one or two types of prosecution in the same case. For example, in cases where the defendant does not raise a procedural issue, the court generally does not initiate a procedural trial, and there is no procedural prosecution. Another example is that in the summary procedure, the defendant pleads guilty, waives the innocence defense, and the facts of the case are clear and the evidence is sufficient, so the conviction trial is greatly simplified. Accordingly, the prosecutor’s duties are mitigated in the conviction prosecution and shifted to the sentencing prosecution.

1.5.2 Innocence Defense, Sentencing Defense and Procedural Defense Traditional criminal defense focuses on the substantive issue. The innocence defense, which is aimed at overturning the prosecution’s charges, is at the heart of the case and is favored by most defense lawyers. However, an independent sentencing trial, where lawyers can present their sentencing opinions, provide another area for lawyers’ defense. Likewise, the procedural trial facilitates procedural defense.21 The innocence defense aims to overturn the prosecution’s charges. It is divided into two types according to the defense strategy: one is to refute the facts of the alleged crime, and the other is to prove that the elements of the crime in the substantive law are not met. For the first type of innocence defense, the defense argues that the facts of the alleged crime are unclear and the prosecution’s evidence is insufficient, and the prosecution’s proof does not meet the legal standard. For the other type of innocence defense, lawyers argue for the lack of statutory elements of the crime, or statutory affirmative defenses. If the defendant chooses the innocence defense, the parties stand in opposition. In the face of opposing the conviction prosecution and innocence defense, the court decides whether the defendant is guilty or not of the alleged crime after evidence is presented, cross-examined and argued by both sides. The sentencing defense aims to respond to the prosecution’s sentencing suggestion. Choosing a sentencing defense means that the defendant has partially agreed to the prosecution, because such a defense is predicated on a guilty plea. Like the sentencing suggestion, the sentencing defense also contains two elements: one is the new sentencing circumstances, including discretionary circumstances of leniency, 21

For the three types of criminal defense, see Chen Ruihua. (2011). Theoretical issues in the sentencing procedure. Peking University Press, p. 188.

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and statutory circumstances of leniency, mitigation and exemption; the other is the suggested type and range of sentencing. In the “standardization of sentencing reform “context, defense lawyers generally propose specific types and ranges of sentences, rather than simple “suggestions for lighter or mitigated punishment”. In many cases, the lawyer’s sentencing opinion is more detailed and specific than the prosecution’s sentencing suggestion. When faced with quantitative sentencing arguments from both the prosecution and the defense, courts are often pressured and constrained by both sides to consider them. Procedural defense is “offensive” compared to “defensive” innocence and sentencing defenses.22 The defendant either files a procedural motion to maintain his or her right to litigate, or challenges the judge’s qualifications, the jurisdiction of the court, the legality of the investigative process, or the admissibility of the prosecution’s evidence. In exclusionary rule proceedings, for example, the defendant, as the “procedural plaintiff,” requests that the court hold a hearing to exclude illegal evidence with the assistance of counsel. To succeed in a procedural trial, the defendant first convinces the court to initiate proceedings, and then presents evidence at the procedural hearing to persuade the judge to exclude illegal evidence.23 This is only a theoretical classification of criminal defense. In each specific case, the lawyer may choose one or two forms of defense, depending on the court’s trial form. For example, if the defendant pleads not guilty or refuses the summary procedure, the defense can make an innocent defense. The innocence defense is likely to be found primarily in the ordinary procedure. Another example is that in the summary procedure, as the defendant pleads guilty, the court does not hear the issue of conviction. The defense mainly conducts a sentencing defense rather than an innocence defense. Again, in a pretrial meeting, the defense may conduct a procedural defense and thus initiate a procedural trial. Then in a conviction trial in the ordinary procedure, the defense may continue its procedural defense.

1.5.3 Three Objects of Proof The traditional objects of proof are mainly the facts of the constituent elements of the crime and the sentencing facts presented by the prosecution. There is only one form of trial. However, with the emergence of three forms of trial, the crime facts, sentencing facts and procedural facts have become relatively independent objects of proof, which affects the burden of proof and the standard of proof in the three forms of trial.

22

For procedural defense as “aggressive defense”, see Chen Ruihua. (2010). The theory of procedural sanction. China Legal Publishing House, p. 294. 23 Procedural defense has been demonstrated in two recent cases, see Zhao Li. (2011, October 14). Exclusion of illegal evidence and acquittal of the defendant. Legal Daily; Chen Xiao. (2011, August 31). Procedural justice and the first case of the exclusionary rule. Legal Weekend.

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In the conviction trial, the facts of the constituent elements of the crime charged by the prosecution are the object of proof. The criminal procedure law establishes the systems of the burden of proof and standard of proof for these facts. In principle, the prosecution bears the burden of proving the crime facts and must meet the standard of proof that the facts are clear and the evidence is sufficient. If the prosecution fails to prove or fails to meet the standard of proof, the court issues a not guilty verdict. However, the prosecution is relieved of the burden of proof for facts presumed by criminal law, and it is up to the defendant to present evidence to rebut those facts. This shifting of the burden of proof to the defense is strictly limited by criminal law and is an exception to the allocation of the burden of proof. In the sentencing trial, the sentencing facts presented by both the prosecution and defense are the subject of proof. Under the principle of presumption of innocence, the sentencing circumstances proposed by the prosecution against the defendant, including statutory circumstances and discretionary circumstances, are all the objects of proof. For these sentencing circumstances, the prosecution bears the burden of proof, and must meet the standard of proof required for conviction, that is, the facts are clear and the evidence is sufficient. If the prosecution fails to prove or fails to meet the standard of proof, the court would not support the prosecution’s sentencing circumstances. For the sentencing circumstances in favor of the defendant, whether proposed by the prosecution or the defense, and whether they are statutory circumstances or discretionary circumstances, the party bearing the burden of proof is not required to meet the highest standard of proof, at most the standard of the highest degree of probability. Certainly, the defense has to bear the burden of proving the sentencing circumstance it proposes, and bears the “risk of losing” if it cannot prove it or fails to meet the legal standard of proof.24 In the procedural trial, the burden of proving a disputed procedural fact is, in principle, on the party making a claim. For example, in a pretrial meeting, the prosecution and defense have the burden of proving the procedural facts in the procedural motions they have filed. However, such proof is required to meet the standard of the highest degree of probability rather than the highest standard of proof. This standard is the same as the standard for the defense to prove sentencing circumstances. However, in the procedure of exclusionary rule, the principle of “whoever claims, should prove” does not apply to the proof of whether the investigation has violated legal procedures. If the defendant provides evidence or clues about an illegal investigation and convinces the judge to doubt the legality of the investigation, the court may initiate the evidence exclusion procedure. The prosecution must bear the burden of proving the legality of the investigation and meet the highest standard of proof. If the prosecution fails to prove the legality of the investigation or fails to rule out the possibility of an illegal investigation, the court may exclude illegal evidence.

24

Chen Ruihua. (2011). Criminal Evidence Law. Peking University Press, p. 371.

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1.5.4 Three Identities of Investigators The incidental issue to the three forms of judicial decisions is the different identities of investigators. Initially, investigators must investigate criminal evidence and seize criminal suspects in criminal proceedings. To ensure the neutrality of investigators and to exclude potential bias in criminal proceedings, the law requires the recusal of investigators who have an interest in the case or knowledge of the details of the case, which precludes investigators from serving as witnesses. However, this has changed with criminal justice reform. In criminal proceedings, investigators are aware of the facts of the case and may also be aware of some unique facts. If they do not testify in court, it will be challenging to find out the truth of the case, and the goal of justice will be difficult to achieve. Moreover, the investigators investigate the case before the trial, but they testify during the trial. At the time of the trial, the investigation has been completed and its fairness is not affected if the investigator testifies in court. Furthermore, it is impossible to prove the investigation’s legitimacy in some situations without the investigator’s testimony. Thus, Chinese criminal procedure law establishes the investigator’s role as a witness.25 What kind of witness is the investigator in the criminal procedure? Witness identity of investigators is different in different trials. In a conviction trial, since the critical issue is the defendant’s guilt or innocence, the investigators may testify about the facts of the crime as they know them. The investigator who captured the suspect on the spot may testify as an “eyewitness”. In the sentencing trial, investigators, as sentencing witnesses, may testify about sentencing facts and circumstances. In some cases, it is difficult for the court to verify surrender, confession, meritorious service and returning illegally-obtained gains and other sentencing circumstances simply by examining written materials. The court may then order the investigator to provide further written statements or testify in court. If the defense files a motion to exclude illegal evidence, the court hears the legality of the investigation after initiating a formal procedural trial. The best way to examine such procedural facts is to summon the investigator to testify in court to explain the investigation and answer questions from the prosecution and defense. In this way, the investigator may, as a “procedural witness”, testify about the legality of the investigation. In addition, investigators testify in court in response to defendants’ motions. Since the defendant claims that the investigator has violated the legal procedures, the investigator is in the position of “procedural defendant” and must appear in court to respond to the allegations and testify on the legality of the investigation. This is helpful to find out the procedural facts and maintain the image and honor of the investigating agency.

25

Chen Ruihua. (2011). Criminal Evidence Law. Peking University Press, p. 186.

Chapter 2

Evolution and Reflection of File Transfer System

2.1 Evolution of File Transfer System It is generally believed that there are two prosecution models. One is the “chargestatement-only doctrine” in civil law countries, and the other is the “charge-statementonly doctrine” in common law countries. As an integral part of the ex officio doctrine, the file transfer system allows judges to comprehensively review the files held and transferred by the prosecutor, so as to prepare for the trial. In civil law countries such as Germany and France, the reason why judges can lead the process of evidence investigation in court and control the scope, sequence and method of evidence investigation is inseparable from their case file transfer system. On the contrary, according to the charge-statement-only doctrine, the procurator submits only the indictment to the court when initiating a prosecution. All of the evidence held by the prosecutor is only presented in court. The witnesses should testify in court and be cross-examined by the prosecution and defense. Since he is not aware of the facts and evidence before the trial, the judge is a neutral referee in court. The jury finds the facts of the case by the evidence presented during the trial.1 The criminal procedures of the two law systems have been integrated since the middle of the twentieth century. Some traditional civil law countries have established a new adversarial procedure model by learning from and transplanting the system of common law countries. Attempts at legal reform in this area have been made in Japan after the Second World War and in Italy in the 1980s. According to the mainstream legal theory in these countries, the file transfer system allows the judges to consult all case files before the trial, which easily influences the judge’s prejudgment of the case, and even the judgment of “the defendant has committed the crime” without the trial. This has a negative impact on the judge’s neutrality and makes it difficult for the defendant to plead not guilty. 1

For more information on the “exclusiveness of the bill of prosecution” and the “doctrine of prosecuting discretion”, see Li Xinjian. (1992). The structure of criminal procedure. China University of Political Science and Law Press, p. 238.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_2

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On the contrary, if the scope of the case files the judge can have access to before the hearing is limited, or if the opportunity to review the prosecutor’s evidence before the trial is taken away from him, the judge may remain impartial and pay close attention to the evidence presented during the trial, rather than make a prejudgment of the case. Based on this theory, some civil law countries have gradually limited access to the files transferred by the procuratorates. For example, after World War II, Japan established the prosecution model of “charge-statement-only doctrine”, requiring prosecutors to transfer only the indictment and not to submit any evidence that may lead to the judge’s prejudgment in court. Another example is Italy’s Criminal Procedure law in 1988, which limits the scope of file transfers by prosecutors. Most evidence should be presented during trial rather than be submitted to the court before the trial.2 The Criminal Procedure Law of China in 1979 allowed the procuratorates to transfer all the files to the court before the trial; this is similar to the case file transfer system of civil law countries. The court conducted a pretrial investigation to verify the evidence based on a review of the case file. The court started the trial hearing only when “the facts were clear and the evidence was sufficient” could the court formally start the trial hearing. In the fifteen years of implementation of this law, the system of case file transfer and the judge’s review of the case files before the trial exposed many shortcomings. There was a call to introduce the system of the charge-statement-only doctrine. To prevent the judge from deciding before trial, to stop treating the trial as a mere formality, and to introduce the reasonable elements of adversarial procedure, the legislature initiated the “trial model reform” and abolished the system of transferring all the case files. According to the Criminal Procedure Law of 1996, only the “witness list”, “evidence list” and “copies and photos of the main evidence” can be submitted by the procuratorates to the court before the trial, while other evidence should be presented and cross-examined in court. Although the charge-statement-only doctrine has not been introduced into China’s criminal procedure, some restrictions have been imposed on the scope of the case files transferred by the prosecutors to the court. It is generally believed that this method of prosecution, as part of China’s “adversarial trial”, is similar to Italy’s Criminal Procedure law of 1988.3 However, the prosecution system established by the 1996 “Criminal Procedure Law” has not been effectively implemented. A regulation passed in 1988 allows the procuratorates to transfer all case files within three days after the court hearing. Subsequently, this new way of prosecution was incorporated into the judicial interpretation issued by the Supreme People’s Court and the Supreme People’s Procuratorate. As a result, the post-trial file transfer system” has been established. The judge can only access the “copy of the main evidence”, not the evidence of the whole case before the hearing, which solves the problem of the judge’s prejudgment and makes the judge pay attention to the evidence and debate in the court. However, the post-trial file transfer system allows the judges to review all the files after the 2

For a comprehensive review of the reform of the criminal procedure in Japan and Italy, see Chen Ruihua. (2003). The theory of criminal trial (2nd ed.). Peking University Press, p. 286. 3 For the background and effects of the 1996 criminal trial reform, see Chen Ruihua. (2010). The Chinese model of criminal procedure (2nd ed.). Law Press, p. 162.

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trial. Since the hearing process is rushed, it is unrealistic for the judge to find out the facts in court. The strong expectation for a full review of the files after the trial has caused the judges to not really pay attention to the trial process, and placed the actual “fact-finding” after the court trial. This turns the trial into a mere formality and reduces it to nothing. Because the procuratorates do not transfer all the case files to the court before the trial, the defense lawyers have been deprived of their right to consult, extract, and duplicate the case files leading to “lawyers’ difficulty to access the files”. Therefore, defense lawyers have resisted this kind of prosecution and the related trial model reform. Some lawyers even called for the restoration of the 1979 case file transfer system. In this context, some courts restored the original pretrial file transfer system by a tacit understanding with the procuratorates. This kind of practice, which violates the criminal procedure law of 1996, has not been strongly opposed because it is conducive to the preparation of the court for the trial, allows the defense lawyers to consult all case files before the trial and it does not hinder the prosecution. The defense party raises no objections to this practice. The Chinese legislature made large-scale amendments to the Criminal Procedure Law In 2012. Notably, the new law restores the case file transfer system established in the 1979 Criminal Procedure Law, allowing the prosecutors to transfer all file materials to the court before the trial, which resulted in the abolition of the system of pretrial transferring “copies of the main evidence” and the system of transferring all case files after the trial. The criminal procedure law of 2012 does not reinstate the pretrial substantive review procedure. According to the law, before a court hearing, judges are not allowed to conduct out-of-court investigation and verification of the prosecution’s evidence or examine whether a case meets the statutory standard of proof. After a court has examined a case in which public prosecution has been initiated, it shall decide to open the court session and try the case if the bill of prosecution contains clear facts of the crime accused. Thus, the pretrial “formal review” system established by the 1996 Criminal Procedure Law has been retained. As for the file transfer system reforms from 1979 to 2012, we cannot help but ask: Why was the 1996 reform partially abolished? Does this mean that the “adversarial trial model” has ended in our criminal procedure? How does the 2012 case file transfer system solve the problem of judges’ prejudgment before the trial? While the defense lawyers get the opportunity to consult all case files, will the court’s prejudgment of the facts result in difficulty in the innocence defense? The most crucial question is, what deep-seated factors, acting as the “invisible hand”, are exerting influence behind these continuous legislative changes? This chapter analyses the evolution process of the file transfer system and theoretically summarizes the factors that influence the system reform. There is a legal saying in Roman Law: “when the reason for legislation disappears, the law will not exist.” To borrow this syntactic proverb, we can conclude that any change to the system will be futile until the reason for its existence has disappeared. This chapter is not so much to study the “twists and turns” in the legislation of the file transfer system as to reveal the “legislative reasons” which leaves the lawmakers with the controversial option in the end.

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2.2 Pretrial File Transfer System in 1979 China enacted its first criminal procedure law in 1979 after the Cultural Revolution. According to this law, the procuratorate transfers all the case files to the court when initiating a public prosecution, then the court examines a case for prosecution after consulting and studying the files. When reviewing a case for public prosecution, the court may interrogate the defendant or conduct an inquest, examination, seizure and evaluation to verify the evidence. Only when the “criminal facts are clear and the evidence is sufficient” can the court decide to open the session and hear the case. The court may remand cases where “the main facts are unclear and the evidence is insufficient,” to the procuratorate for supplementary investigation. Since the judge in charge of examining the prosecution is generally also the chief judge of the case, this system of transferring cases is bound to bring about the judge’s prejudgment. By going through the files, the judge has a clear understanding of the prosecution evidence, the investigation process and the written record of the investigation organ. In addition, the criminal procedure law of 1979 requires the court to hold trial only on the premise that the facts are clear and the evidence is sufficient, which means that the judge must be sure that the standard of proof required for conviction has been reached. Otherwise, the trial will not be held. Due to this pretrial examining system, which is generally interpreted as a “substantive review system” by legal scholars, the judges have to carry out out-of-court investigations to verify evidence such as inquest, examination, seizure and expert evaluation. As soon as the judge considers that the case meets the conditions for trial, he actually forms an internal conviction of the defendant’s guilt.4 The file transfer system and the standard of pretrial prosecution examination are the main reasons behind the court trial becoming a mere formality, and the main problems of the original criminal procedure. This problem, together with the system of examining and approving cases by the president of the court and the chief judge of a division and the system of discussing cases by the judicial committee, has led to a serious problem of “deciding before trial” or even “judgment before trial” in practice. A lawmaker said: The judges have determined the facts and have made a preliminary decision before the trial, then asked the president of the court and the chief judge of a division for instructions. With respect to a demanding, complex or major case on which the judge considers it difficult to make a decision, he or she submits the case to the judicial committee for discussion and decision. The judge has concluded the case before the trial, rendering the trial a mere formality and the defendant’s opinions unimportant.5

Legal scholars have also made sharp criticisms of the file transfer system and the pretrial substantive review: 4

For an analysis of the procedure of pre-trial review of public prosecutions established by the 1979 Criminal Procedure Law, see Chen Ruihua. (1999). The theory of criminal trials. Peking University Press, p. 341. 5 Wang Shangxin. (1994). Some issues in the revision of the criminal procedure law. Jurisprudence Research, 5.

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The problem of “deciding before trial” and “judgment before trial” in practice is directly relevant to the provisions of Article 108 and Article 109 of the Criminal Procedure Law. After examining the files and verifying evidence, the judges are convinced that the facts related to the accused’s guilt are clear and that the evidence is sufficient before deciding to hold the trial. That is to say, when the trial is held, the judge has a thorough knowledge of the case and evidence and has preconceived and confirmed the defendant’s guilt. As a result, the trial is not for the judges to clarify the facts of the case, but is just a show for the parties and the audience.6 According to the mainstream view of the legal circles at that time, to solve this increasingly serious problem of “deciding before trial” and “judgment before trial”, the system of judges’ pretrial examination of the case and consulting the case file should be abolished. Some scholars have analyzed Japan’s reform experience in introducing “charge-statement-only doctrine” and believe that the most effective measure to solve the problem of “deciding before trial” and prevent the court hearing from going through the motions would be to forbid the procurator from transferring evidence to the court before trial.7 According to the charge-statement-only doctrine, the prosecutor cannot transfer any evidence and other case files to the court before trial except for the bill of prosecution, which amounts to abolishing the file transfer system. However, most legal scholars and lawmakers have not entirely accepted the idea of abolishing the file transfer system. According to the mainstream opinion at that time, the model of “charge-statement-only doctrine”, although helpful to solve the problem of the court trial being a mere formality, may lead to the extinction of the pretrial examining public prosecution system. Under China’s judicial system of “the People’s Courts, the People’s Procuratorates and the public security organs shall divide responsibilities, coordinate their efforts and check each other”, it is necessary for the court to examine whether the public prosecution meets the requirements for a trial. The key is to change the substantive review to a formal review or procedural review so that the judges do not examine the substantive issue of the case, such as whether the facts are clear or the evidence is sufficient.8 Therefore, the reform plan limits the scope of case files transferred to the court by the procuratorate before trial and changes the “substantive review” to a “formal review”. The 1996 Criminal Procedure Law is fully consistent with the above idea.9

6

Chen Guangzhong, Yan Duan. (1995). The proposed draft of the revision of the criminal procedure law of the people’s republic of China and the argument. China Fangzheng Publishing House, p. 290. 7 Li Xinjian. (1992). The structure of criminal procedure. China University of Political Science and Law Press, p. 238. 8 Chen Guangzhong, Yan Duan. (1995). The proposed draft of the revision of the criminal procedure law of the people’s republic of China and the argument. China Fangzheng Publishing House, p. 290. 9 For a discussion of the 1996 reform of the criminal trial method and the reform of the review of the public prosecution system, see Zhang Jun. (1996). Some issues on the trial method of criminal cases. Chinese Jurisprudence, 3.

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2.3 Trial Model Reform in 1996 The Criminal Procedure Law was revised in 1996 and the long-awaited “trial model reform” was completed. According to the mainstream view in the legal field, this reform weakened the judge’s investigation power, expanded the parties’ dominance and control of the trial, and established a new adversarial trial model. To introduce some important elements of the Anglo-American adversarial system, the legislators changed the original “substantive review” into the current “formal review”. The judge in the pretrial examination of the public prosecution no longer examines whether the fact is clear and the evidence is sufficient. The court shall decide to open the court session and hear the case, if the bill of prosecution contains clear facts of the crime and if a list of evidence and a list of witnesses, as well as duplicates or photos of major evidence attached to it, exists. This means that the judge conducts a formal examination of the bill of prosecution and evidence transferred by the prosecutor. As long as the materials are complete, the judge should hold a trial regardless of whether the evidence is sufficient to prove the defendant’s guilt. At the same time, the judge’s pretrial investigation power is restricted, so the judge is not allowed to interrogate the defendant or conduct investigations such as inquest, examination, seizure and expert evaluation. According to some lawmakers, the reform mentioned above intends to solve the problem of “deciding before trial” and “the court trial being a mere formality”. Because “whether the evidence is true or not, it should be cross-examined by both sides and verified in court without the need for a comprehensive investigation before the trial”. At the same time, to solve the following problem: “judges do too much work and the parties do not play their roles”, the law stipulates that “the public prosecutor and the defenders shall show the evidence to the court for the parties to identify, may state their views on the evidence and the case and debate with each other”. However, this reform does not mean that it has moved towards the “adversary system” of Western countries, because judges “are by no means passive. They must master and direct the procedure, conduct inquiries and investigate evidence when necessary to make correct judgments.”10 Since the judge is not a “passive arbiter”, but still controls the procedure, the principle of “charge-statement-only doctrine” is not suitable. It is clear that if the judges can’t access any case file and evidence before the trial, they can not control the hearing process, and may only passively listen to the parties’ cross-examination of evidence and debate. According to comparative law studies, judges have little judicial investigative power in countries that have adopted the principle of “chargestatement-only doctrine”. The fewer judges know about the case files before the hearing, the more likely they are to be neutral in court proceedings, and the more the adversarial system is likely to be implemented. On the contrary, in countries such as Germany and France that adopt the ex officio doctrine, the proactive role of judges in judicial investigations is often closely related to their review of the case files handed over by prosecutors before the hearing. Because of this, in Italy’s 1998 reform of 10

Gu Angran. (1996). Litigation, arbitration and state compensation system in China. Law Press, p. 21.

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the criminal procedure, in order to transplant the Anglo-American adversarial trial model, significant restrictions were imposed on the scope of file materials transferred to the court before trial. However, because the judges can access part of the case files before the trial, they may investigate and verify the evidence in the trial. Therefore, this system does not move towards a complete adversarial system, but is rather a “mixed model”. According to the Italian Code of Criminal Procedure of 1998, the evidentiary material to be transferred to the court by the prosecutor before the trail consists mainly of the evidence collected by the pretrial judge during the “subsidiary investigation procedure”, the evidence obtained by the police, the prosecutor and the pretrial judge during the “non-repeatable investigation acts”, and other written documents in accordance with the law. As for the rest of the prosecution’s evidence, it is always up to the prosecutor to present it in court.11 Although the 1996 reform aimed to transplant and borrow from the adversarial system, legislators had reservations about this system regarding the pretrial substantive review of public prosecutions and the case files transfer system. There are signs that many legislative decision-makers seem to prefer the Italian-style and the Japanese-style adversarial system. Some Supreme People’s Court judges even explicitly criticized the Anglo-American adversarial system: “Judges in these countries are negative in the court, and make the decision only through hearing…. They only act as the “referee” in the legal battle between the prosecutor and the defendant.” The “trial model with Chinese characteristics” established in 1996 gives judges the special power to lead, direct and control the trial process; this assists the judges in identifying the facts. Therefore, the trial model with Chinese characteristics is a combination of the judges’ authority and the adversarial system.12 For the reason mentioned above, the 1996 criminal procedure law does not fully adopt the charge-statement-only doctrine, but only limits the scope of the files transferred by the procuratorates to the court. This indicates that only the list of evidence and witnesses, as well as duplicates or photos of major evidence, can be transferred before the trial, other evidence shall be presented or read out in court. On the one hand, this system deprives the judges of the opportunity to consult all case files before the trial and avoids any preconceived judgment. On the other hand, it allows the judges to access the “main evidence” to prepare for the trial.

2.4 Post-Trial File Transfer System Although the 1996 reform did not abolish the file transfer system, it may solve the problem of “court trial is a mere formality”. However, this reform lacking supporting measures is only a technical adjustment of the court’s trial procedure. It is a big challenge for most criminal judges in China to make judgments by listening to the 11

For an analysis of the Italian criminal trial system, see Chen, Ruihua. (2003). Theory of criminal trials. Peking University Press, p. 326. 12 Zhang Jun. (1996). Some issues on the trial method of criminal cases. Chinese Jurisprudence, 3.

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evidence, through cross-examination and via the court debate instead of consulting the case files before trial. For a long time, and as a preparation for the trial, criminal judges are used to consulting case files. They could take this opportunity to shed light on the facts. However, according to the revised Criminal Procedure Law, prosecutors only transfer “copies or photos of the main evidence” to the court before the hearing. As a result, only one of several contradictory written records of the defendant’s statement was transferred, or only some of the testimony transcripts were transferred. Also, any other evidence might be transferred selectively. With many years of criminal justice practice, the judge’s determination of the facts of the case must be supported by sufficient evidence. In particular, there should be no direct contradiction with the case files. Some judges believe that in order to prevent the procuratorates from transferring only incriminating evidence but not exculpatory evidence, the procuratorates should be required to transfer all evidence related to the case to the court, so that the court can understand and analyze the case and find out problems from it, which is conducive to the correct handling of the case.13 In such cases, the judges are willing to consult all case files before the trial and may react against the reform that limits the scope of the file being transferred to the court. In 1998, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security, and the Ministry of Justice, together with the Legislative Affairs Committee of the Standing Committee of the National People’s Congress, promulgated the “Provisions on Certain Issues of the Criminal Procedure Law” (hereinafter referred to as the “Provisions of the Six Ministries”), which adds some rules to the 1996 Criminal Procedure Law. The “Provisions of the Six Ministries” specifies the post-trial file transfer system. According to the new rules, the procuratorate can determine the scope of the “main evidence” to be transferred to the court by itself. If the court finds that the “main evidence” is missing in the files transferred by the procuratorate, it can ask for supplementary files, but “it is not allowed not to hold a court session on the ground that the files are insufficient”.14 As a result, the procuratorate has the right to explain “main evidence” on its own. The court loses the authority to force the procuratorate to transfer certain evidence before the hearing. At the same time, the procuratorate shall transfer the evidence presented and read it out in court, on the spot or within three days of adjournment. In addition, if the testimony transcript of an absent witness is presented or read out in court, and the witness has also given different testimonies, the procuratorate shall transfer “all the testimony transcripts of the witnesses” to the court within 3 days of adjournment.15 13

Wang Zelai. (1993). Research on improving criminal procedure legislation. People’s Public Security University of China Press, p. 96. 14 “Provisions on Certain Issues of the Criminal Procedure Law” promulgated by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of National Security, the Ministry of Justice, and the Legislative Affairs Committee of the Standing Committee of the National People’s Congress in 1998, Article 35, Article 36, Article 37. 15 “Provisions on Certain Issues of the Criminal Procedure Law” promulgated by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry

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In fact, the evidence shown by the prosecutors in court is usually represented by the case files. In addition, the procuratorate transfers a full set of case files to the court after the hearing, and the judgment is usually pronounced later on a fixed date, so that the judge has enough time to consult all case files after the trial. As a result, the case files considerably influence the judgment. In fact, the judge can only access the “main evidence” handed over by the prosecutors before the trial, rather than the full set of the case files, which may make it difficult for the judge to “decide before trial”. However, the practice of post-trial file transfer system undoubtedly encourages judges to focus on the “review of files” instead of the simple hearing. The question is whether, under the influence of the post-trial file transfer system, the goal of fulfilling the court’s trial role can be achieved as set out in the 1996 reform. The post-trial file transfer system has generally not been followed in practice. In the special cases drawing a lot of attention, the public security organ, the procuratorate and the court often participate in the investigation, examination of prosecution and court trial together, so the judge can access the full set of case files before the court session. Also, in the above-mentioned special cases, the procuratorate may transfer a full set of files to the court when initiating a public prosecution, so that the “posttrial file transfer system” may be temporarily changed to the “pretrial file transfer system”. This frequently happens in the defense practice of lawyers. On July 26, 2005, the People’s Court of Luohu District, Shenzhen City, Guangdong Province, heard the “Dart Company Case”, which had a big impact in the region. In the pretrial review of the prosecution stage, the defense attorney could access only a few piles of key evidentiary materials and expert materials. But on July 13, the defense lawyers went to the district court for the second time to consult the case file, and found that “there are three or four hundred volumes of materials in this case”. The lawyers said: “So many files are stunned. The time for discovering the evidence is only one day, not to mention reading, but flipping through it is not enough. But we understand that it is very generous to allow the defense attorney to access all case files before the trial.” As you can imagine, when the prosecution sends all the “three or four hundred case files” to the court, the judge is bound to review and study the case files before the trial.16 What is more, in some major cases involving complex issues in many professional fields, judges may “borrow” the case file materials from the procuratorates to consult all case files before the trial, which apparentl the “pretrial file transfer system”.17

of National Security, the Ministry of Justice, and the Legislative Affairs Committee of the Standing Committee of the National People’s Congress in 1998, Article 42. 16 Cheng Yubing. (2006). Defending the 260 million yuan dart company case. Lawyers and Legal System, 2. 17 For more information on this aspect, see the Criminal court of Jiangsu provincial high people’s court. (2004). Survey report on the reform of criminal trial methods and criminal trial mechanisms in the province. Overview of Criminal Trials (Vol. 4), Law Press.

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2.5 Reinstation of Pretrial File Transfer System In 2012, China’s legislature decided to amend the Criminal Procedure Law, carrying out a comprehensive reform of the systems of defense, compulsory measures, evidence, investigation, trial, execution and so on. According to the new law, “the procuratorate shall transfer the relevant case file and evidence to the court while initiating a public prosecution. After a court has examined a case in which public prosecution was initiated, it shall decide to open the court session and try the case if the bill of prosecution contains clear facts of the crime perpetrated.” Thus, the provision of the 1996 Criminal Procedure Law limiting the scope of case files transferred by procuratorate has been annulled. The procuratorate shall transfer all the case files to the court instead of a list of evidence, a list of witnesses and duplicates or photos of major evidence. This indicates that the pretrial file transfer system has been fully reinstated. Since the judge can access all the files before the court session, the post-trial file transfer system is no longer necessary, and its abolition is a matter of course. The Criminal Procedure Law of 2012, while reinstating the pretrial file transfer system, still keeps the formal review system instead of reinstating the substantive review system established in 1979. To be specific, the condition for the court to open the court session and hear the case is still the only formal requirement of “the bill of prosecution contains clear facts of the crime committed”, rather than substantive conditions such as “the facts are clear and the evidence is sufficient”. Because judges are not allowed to conduct evidence investigation before the court session, they prepare for trial mainly by consulting the files. Since the pretrial file transfer system established in 1979 had so many shortcomings, why did the legislature reinstate it? First, the pretrial file transfer system allows the judges to consult all case files before the trial for comprehensive pretrial preparation. In China’s criminal procedure, the pretrial judge is generally the trial judge, who decides on both legal and factual issues and has jurisdiction over the facts of the case and the application of the law. If the procuratorate does not transfer all the case files, but only symbolically submits a copy of part of the evidence, the judge will not be familiar with the evidence before the hearing. As a result, the judge will not be able to make a timely ruling on the procedural disputes before the court session, nor will he or she be able to guide the two sides to carry out cross-examination and debate in the court. For example, it is difficult for the judge who is not familiar with the case file to make a reasonable choice between the ordinary procedure and the summary procedure. Without knowing the prosecution’s evidence, the judge cannot make a fair ruling on the defendant’s motion for excluding illegal evidence. With no access to the case file, the judge cannot determine the lists of witnesses, experts and investigators who testify in court. During the trial, if the judge is not familiar with the case file, he or she can only sit passively and listen. The prosecutor leads the hearing, and it is even difficult for the judge to question the defendant, the witnesses and the experts.

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Secondly, the pretrial file transfer system enables the defense lawyer to consult, extract and duplicate the case files before the trial for defense preparation. The criminal procedure law of 1996 limited the scope of the files transferred by the procuratorates, which not only prevented the judges from accessing the case files before the trial, but also deprived the defense lawyers of the opportunity to consult, extract and copy the files. It is usually easy for defense lawyers to go to court and consult the files, but their move is often obstructed by the prosecutors when they go to the procuratorates to consult the files. Since the scope of the files transferred to the court before the trial was limited, the files that defense lawyers had access to in the court were limited to “list of witnesses”, “list of evidence” and “copy of the main evidence”. Since the scope of the “main evidence” was determined by the prosecutor, the evidence that defense lawyers could access before the trial was irrelevant, while the real “main evidence” was usually not accessible until after the court session. As for the evidence presented in court by the prosecutors in the way of “sudden attack”, the defense lawyers could neither prepare for trial nor put forward reasonable and powerful cross-examination opinions during the trial. It can be said that the “adversarial trial model” established in 1996 led to difficulties in accessing the case files for defense lawyers, which resulted in the problem characterized by the prosecution’s evidence not being effectively cross-examined by the defense lawyer and the false evidence not being identified. The 2012 Criminal Procedure Law reinstated the pretrial file transfer system. Although its original intention is not to protect the defense lawyers’ right to consult the files, the implementation of the system helps solve the problem of defense lawyers’ “difficulty in accessing files”. According to this law, defense lawyers can consult, extract and copy the files at the examination stage before prosecution and at the pretrial stage. The system of transferring all case files is essential for defense lawyers to consult all case files before the hearing. The lawyer can be well prepared for the trial, access the evidence in favor of the defendant and even apply to the court for access to the evidence not included in the case file. Finally, the pretrial case file system compensates for the shortcomings of the post-trial file transfer system. The criminal procedure law of 1996 limited the scope of the files transferred by the procuratorates, which limited the opportunity for the judges to consult the files before the trial. The post-trial file transfer system established in 1998 allowed judges to consult all case files after the hearing. As the judges usually consulted the files before making a decision, it had a significant impact on the judge’s determination of the facts of the case. Since the judge was unaware of the prosecution’s evidence before the trial, the prosecutor led the court process by reading the evidence transcript. The judge was unable to determine the facts of the case through the court hearing. Therefore, the judge had to find out the facts of the case by consulting the files after the trial. As a result, consulting the files after the trial actual the key stage for the judge to determine the facts of the case, and the trial became a mere formality. In 2012, the Criminal Procedure Law reinstated the pretrial file transfer system. It abolished the post-trial file transfer system established in 1998, thus allowing judges to consult case files before the court session. The pretrial file transfer system enables

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the judge to comprehend the evidence before the trial, thereby preventing the trial from being controlled by the prosecutor. This has a positive effect on giving play to the court hearing and avoiding the mere formality of court trials.

2.6 Several Deep-Seated Factors The author has explained the intention of reinstating the pretrial file transfer system. Whether it is the pretrial file transfer system or post-trial file transfer system, it brings the issue of the judgment being made based on the files and it will also lead to the judge assuming the defendant’s guilt as a result. The post-trial file transfer system established in 1998 left judges dependent on consulting the files and turned the trial into a mere formality. Similarly, the pretrial file transfer system in 1979 had also caused judges’ prejudices against the defendant and even raised the problem of deciding before trial, which also led to the problems of deciding before trial and court trials turning into a mere formality. Obviously, the reinstation of the pretrial file transfer system in the 2012 Criminal Procedure Law is not a good thing for the fairness of the trial, but may have a negative effect.18 On the surface, the 2012 Criminal Procedure Law’s reinstatement of the pretrial file transfer system seems to have brought Chinese judges back to the old path of conducting court trials by consulting files. But in fact, the practice of making a decision based on the case file has never left China’s criminal trial system. In 1996, the legislature limited the scope of files transferred by the prosecutors in order to prevent the judges from consulting all case files before trial. However, after just two years, the post-trial file transfer system was established, allowing judges to consult all case files after the trial. The judge’s determination of the facts of the case was still based on the case file. The practice of pretrial file transfer system shows that the tradition of making judgments based on files has never gone away. It seems that the trial model reform has only changed the pattern and timing of the judge’s consulting the files, rather than the way of making a judgment based on the files. So, what are the background factors behind the reform of file transfer system from pretrial file transfer system to post-trial file transfer system and then back to pretrial file transfer system again? In the author’s opinion, four main factors influence how the court makes a verdict through reading the files. The first is the judicial tradition of the judge leading the evidence investigation process in court. The second is the trial model centered on the case files. The third is the judicial practice of making verdicts outside the court. The fourth is the judicial review mechanism based on the case files.

18

For reflections related to the 2012 Criminal Procedure Law’s reinstatement of the pre-trial transfer of case files system, see Chen Ruihua. (2011). Commenting on the reform proposal of the criminal procedure law revision (draft) on trial procedures. Jurisprudence, 11.

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2.6.1 Judicial Tradition of Judges Leading Evidence Investigation in Court In China’s judicial tradition, judges uncover the facts by personally collecting evidence and leading evidence investigation, which is the main way to achieve justice. Chinese prefer judges who actively seek the truth rather than “passive arbiters”. So far, judges still have the power to collect evidence, which includes not only conducting an investigation to verify the evidence outside the court, but also leading the evidence investigation process in the court. Especially in the second instance, death penalty review and retrial procedures, the judges conduct evidence investigation by consulting the files, which has become the main method for conducting the criminal trial.19 The 1996 Criminal Procedure Law established the “adversarial trial model” to weaken the judge’s investigation power and expand the parties’ control over the evidence investigation process to give play to the court trial. The limitation on the scope of the case files transferred by the procuratorates is an integral part of the trial model reform. However, the reform didn’t achieve the desired effect. The judges became more passive in court because they did not have full access to the case files before the trial. As neither the judge nor the defense lawyer had the opportunity to consult the files, nor were they aware of the prosecution’s evidence, the court investigation hearing almost completely turned into the “stage of performance” of the prosecutor. Not only did the prosecutor decide on the scope, order and method of the evidence investigation, but it was also difficult for the defense to cross-examine the evidence and for the judge to examine it. The judges’ loss of control over the evidence investigation process led to their dissatisfaction with the 1996 reform, it was also an important reason for the establishment of the post-trial file transfer system. The reason why the “Provisions of the Six Ministries” in 1998 requires the procuratorate to transfer the case files after the trial and then the criminal procedure law in 2012 reinstated the pretrial file transfer system is that those judges who can not consult all case files can neither control the trial process nor ascertain the facts. Since the judges would consult all case files after the trial anyway, why not move the consulting of the files before the hearing? Because of this, the judges of the Supreme People’s Court put forward the idea of reinstating the pretrial file transfer system and turned it into written law.

2.6.2 Trial Model Centered on Case Files In the evolution of the case file transfer system, the following logic prevails: the judges make the final judgment based on the case files. This means that the process 19

For a discussion of Chinese adjudication culture in which judges focus on substantive truth, see Chen Ruihua. (2010). The Chinese model of criminal procedure (2nd ed.). Law Press, p. 282.

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of determining the case facts by the judge is the process of examining and confirming the files. From the pretrial to the post-trial file transfer system, China’s criminal trial mode has not changed substantially. In criminal trials, an indirect and written trial principle is applied instead of the principle of directness and verbalism. According to the principle of directness and verbalism, the judge should listen to the witnesses, experts and the parties in court and make a decision based on what he hears and sees. However, in China’s criminal trial system, the court can only conduct a formal review of the evidence rather than a substantial investigation. Most of the evidence that the judge has access to consists of written transcripts, which are the written records of police investigation activities such as questioning, interrogation, inquest, examination, search, seizure, identification and investigative experiments. The substantive review of almost all the evidence is carried out at the investigation stage, and the police have determined the facts of the case. The judge does nothing more than a written review of the investigation process and of the facts ascertained by the police, which usually fails to find fault as it is only a confirmation of the facts ascertained by the police. Since the judges’ determination of the facts of the case is only based on the case file, it is impossible for them to set aside the case file and hold a direct and verbal court hearing. Whether it happens before or after the trial, the judge relies on reading the files. In fact, if we don’t get rid of the abnormal dependence on the case files and exclude them outside the court, the trial will be a mere formality, whether the case files are transferred before or after the trial. The core issue is not the time it takes to transfer the case files, but the practice of judges making judgments based on the files.

2.6.3 Making Verdicts Outside of Court A court trial is an important way for judges to determine the facts of a case in any modern judicial system. In court trials, the judge forms an intuitive impression of the facts of the case by looking at the evidence, questioning the witnesses and hearing the cross-examination and debates of the prosecution and the defense. The evidence must be presented, cross-examined, and debated by both sides and be seen or heard by the judge before it can be adopted as the basis for the verdict. The court hearing provides a specific time and space for the judge to ascertain the facts. The acceptance of evidence and the determination of the facts can only be carried out with the participation of the prosecution and the defense. Therefore, the court is the only place for the judge to make a judgment, and the trial is the only way for the judge to ascertain the facts of the case. However, in practice, the judges do not use the courtroom as the only place to form judicial decisions, much less to form an internal conviction of the facts of the case through a trial. Judges generally use a mechanism of “office work” and administrative approval between superiors and subordinates to make judgments. The main method

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of “office work” consists in consulting files in the office. The administrative approval includes examining and approving cases by the president of the court and the chief judge of a division, discussing cases by the judicial committee, and submitting the case to the superior court for discussion and decision. All are heavily dependent on the files. If the judges ascertain the facts of the case through office work and administrative approval rather than court trials, they will not eliminate the dependence on the files. Reliance on case files is a problem of the entire judicial system rather than individual courts or judges. In other words, the trial system, which is based on office work and administrative approval, will not function well without the file transfer system.

2.6.4 Review System Based on Files The 1996 Criminal Procedure Law allowed judges to consult only the “copy of the main evidence”, the “evidence list” and the “witness list” before the court session, thus depriving the judge of the opportunity to consult all case files. Instead, the case files are transferred to the court of the second instance, which reviews the firstinstance judgment by consulting all case files. Also, the Supreme People’s Court reviews the death penalty cases by consulting all case files. Even the retrial court reviews the court’s judgment, which originally tried the case by consulting all case files to correct the error. In a word, whether it is the second instance, the death penalty review procedure or the retrial, the judge has to review the case by consulting the files. Therefore, the judge of the first instance will face a very embarrassing situation if he or she is not familiar with the prosecution evidence and does not consult all case files. Logically speaking, the judgment made by the judge of the first instance may not be consistent with the files if he or she does not consult all case files. The judges of the second instance, the death penalty review court and the retrial court all reach their judgments by consulting all case files. As a result, the higher court would rescind the original judgment on the grounds of “unclear facts and insufficient evidence”. There is actually a structural dependence on the files in the second instance, death sentence review and retrial procedures. Whether in the second instance or in the death penalty review, as long as the judgment of the lower court is reviewed by consulting the files, the final decision may be made according to the files. Even when the firstinstance court ignores the case files, the second-instance court and the death penalty review court will review the judgment based on the case file. In order to get rid of the dependence on case files, in addition to prohibiting the first-instance judges from reading the files, the case files should also be excluded from the death penalty review procedure and the retrial procedure. That is, when the judge of the second instance examines the judgment of the lower court, the case file that is allowed to be accessed should be the trial file of the first instance rather than the entire case file of the prosecution. Similarly, the death penalty review court can

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only access the trial files of the second instance court, and the retrial court can only access the trial files of the court which originally heard the case. The higher courts should not be allowed to review the verdicts of the lower courts on the basis of the prosecution’s case files. In a word, the procuratorate’s case files should not only be excluded from the first instance court, but also from the second instance court, the death penalty review court and the retrial, and not be allowed to enter the procedure of the first instance, second instance, death penalty review and retrial. Only in this way will the file transfer system be abolished fundamentally. Otherwise, as long as there is an actual demand for the case files in the trial system, the case file transfer system will reappear in various forms.

2.7 Conclusion Regarding the issue of judges’ pretrial access to the case files, from the pretrial file transfer system in 1979, to the reform of limiting the scope of transferred files in 1996, then to the post-trial file transfer system in 1998, until the reinstatement of the pretrial file transfer system in 2012, China’s Criminal Procedure Law has gone through a tortuous path, undergoing a process of reform, circumvention, and termination of reform. The reform of the case file transfer system has presumably greatly impacted China’s criminal process. But in fact, whether the case files are transferred before or after the trial, the way the judge makes a judgment based on files has not changed. Practice in the past four decades has shown that judges always determine the facts of a case by reviewing the case files of the prosecution instead of cross-examination in court. This turns the trial into a mere formality, and the procedure set up to regulate the court trial is also useless. The reinstatement of the pretrial file transfer system in 2012 does have some positive outcomes for judges to prepare for trial and for defense lawyers to access the case files before trial. The judges are allowed to consult all case files before the trial. The reform of 2012 has brought the system back to the “original point” it was at in 1979 and marks the failure of the reform of 1996. The judges who can consult all case files beforehand are likely to form a prejudgment that “the defendant is guilty of a crime” and disregard the innocence defense. This results in the judges not being neutral. The modern judicial process of making judgments through the trial in court is not established, and the defendants cannot make an effective defense. In fact, to solve the problem of court trials being a mere formality, the case file transfer system must be abolished, and judges should not be allowed to access any case files and evidence before the court session, thus completely cutting off the connection between the investigation procedure and the court trial. The procuratorates shall not transfer any case file to the court, either before or after the trial. The court’s decision shall be based only on the evidence submitted and cross-examined by both sides in court. The case files of the investigation organs can only be used for initiating the prosecution and finding evidence, rather than for the court’s decision. In addition, the investigation files become null and void after the prosecution is initiated, and should

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not be transferred to the court of the first instance, the court of the second instance and the court of death penalty review. What the judges of the second instance consult and study should be the trial records of the first instance, and the only basis for them to determine the facts of the case should be the evidence submitted and cross-examined by the prosecution and the defense in court. It is best for the court to review the death penalty verdict by holding a trial, or even if it does not hold a hearing, the decision should be based on the trial records of the lower-level court. Is it truly possible to abolish the file transfer system?

Chapter 3

Case File Centrism

3.1 Introduction There have always been problems that court trials are mere formalities and criminal procedure is nominal at best in China’s criminal judicial practice.1 Criminal judges typically conduct pretrial preparations by consulting the case files transferred by the procuratorates. For oral evidence such as witness testimony, victim statements, and defendant confession, court investigation is generally conducted by reading out the transcripts of the case files. Courts even commonly cite the investigators’ case files as the basis for their judgments. Therefore, the mode of adjudication in criminal trials is centered on the case files.2 In 1996, the “trial model reform” made certain reforms to the trial method of case file centrism. However, the procuratorates still transfer the “main evidence” to the court before the hearing and all case files after the trial. The case files are generally still used as the basis of the court’s decision. Therefore, the court process remains centered on the case files. The 2012 “Criminal Procedure Law” reinstated the pretrial file transfer system, which has served only to bolster the trial process centered on the file. Under this circumstance, even if the witnesses, experts, victims and investigators testify in court, the overall appearance of China’s criminal justice 1

The official in charge of legislative drafting at the time had already woken up to this point: “Now, there are some problems in the trial, mainly that the case is decided before the trial, the court hearing is a formality, and the judge overpacks and does not give full play to the role of the prosecution and the defense…” See Gu Angran. (1996). Litigation, arbitration and state compensation system in China). Law Press, p. 21. 2 The “case file” of this chapter refers to transcripts made by the investigative authorities on the investigation process and evidence collection. The “investigation case file” made by the investigating authority from the beginning to the end of the investigation is the main part of this case file. The procuratorates may investigate and verify evidence during the review and prosecution process and document it and attach it to the case file. When the facts of the case are unclear and do not meet the conditions for prosecution, the procuratorate may return the case to the investigative authority for supplementary investigation, which would be attached to the case file as a supplemental investigation file. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_3

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system will hardly show substantial improvement. As the “invisible hand” hidden behind China’s criminal trial system for a long time, the trial model of case file centrism not only makes it difficult to establish and implement modern criminal evidence rules, but also leads to a mere formality in the first-instance trial. As a result, many litigation principles and procedural rules for trials are in vain. In view of this, the author intends to make a systematic study of the trial model of case file centrism. The author will take the criminal trial of the court of the first instance as an example, analyze the nature, elements and evolution of case file centrism, its effects on the trial, and the reasons for its existence. An important hypothesis that the author will put forward and prove is that case file centrism results in the mere formality of court trial, so that the system of forming a judgment conclusion through court trial did not take root in Chinese criminal justice. In the context where the verdict is not reached through the court trial, all rules for court trial are of no use.

3.2 Court Investigation Centered on Case Files 3.2.1 The Ways the Prosecutors Lead Court Investigation The defense rarely submits its evidence to the court, so the prosecutor submits most of the evidence investigated in the court. Therefore, the way that the prosecutor presents evidence generally determines the method of court investigation. Under the current courtroom trial format, while judges do not have access to all case files before and during the trial, and defense attorneys do not have access to the full set of case files, prosecutors do bring all case files to court. The prosecutor presents the evidence by reading out the case file, which includes transcripts of the defendant’s confession, transcripts of the witnesses’ testimony and transcripts of the victims’ statements. Even if there are several inconsistent witness testimony transcripts, or conflicting confession transcripts, or if the defendant retracts his or her confession in court, the prosecutor can still read the interrogation transcripts from the case file and even use them to rebut the witness’s court testimony and the defendant’s court statement. As a result, the case file has become the direct object of the court investigation and a powerful weapon for the prosecutor to control the court investigation process. In order to make the reader understand this kind of court investigation based on the case file transcript, we can analyze it through the case below. [Case 1] On November 20, 2003, the Daoli District Court of Harbin City heard the case of Su who was suspected of a traffic-related crime. Because of this case’s national attention, the news media covered the entire court proceedings. After the defendant has stated the facts and answered questions from the prosecutor, the defender and the judge, the prosecutor shows the court the transcript of the questioning (interrogation). The following is the transcript of the testimony and the transcript of the defendant’s confession presented by the prosecution: (1) Volume 2, pages 97 to 100, pages 101

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to 102, testimony of witness Dai; (2) Volume 2, pages 138 to 139, pages 140 to 141, testimony of witness Zhang; (3) Volume 2, pages 124 to 126, testimony of witness Xie; (4) Volume 2, pages 127 to 130, testimony of witness Liu; (5) Volume 2, pages 142 to 145, testimony of witness Guo; (6) Volume 3, pages 28 to 31, testimony of witness Su; (7) Volume 3, pages 32 to 34, testimony of witness Gong; (8) Volume 2, pages 146 to 149, testimony of witness Wang … (11) Volume 2, pages 115 to 117, pages 118 to 120, testimony of witness Su; (12) Volume 2, pages 114 to 116, testimony of witness Guan; (13) Volume 2, pages 85 to 91, pages 93 to 96, pages 103 to 110, defendant Su’s confession to the investigating authority, the prosecutor did not read out the transcript of the confession in court on the grounds that the defendant Su’s confession in court is basically the same as the confession to the investigating authority. The defendant did not object to the above transcript of testimony read by the prosecutor, except for (2), (3), (5), and (6) thereof.3 The court hearing, in this case, showed that the case file was the main evidence for the prosecution. The prosecutor read the investigation case file transcript to present the testimony transcript, identification transcript, the defendant’s confession transcript, or present the scene investigation transcript, search transcript and other evidence. With the court’s permission, the prosecutor showed the process of evidence gathering by the investigators by reading out their transcripts. At the same time, the court allowed the defendant and his or her lawyer to express their opinions on the transcripts, which was considered the defense’s right to “cross-examine” the prosecution’s evidence. The above cases show that the 1996 “trial model reform” appears to have expanded the control of the prosecution and defense over the trial and diminished the investigative powers of the judges, allowing the trial to proceed as expected. But in fact, the prosecutor leads the court investigation process with the help of the case files. When the judge and the defense cannot access the case files, the prosecutor has an overwhelming advantage over the evidence to control the court investigation process. It is difficult for the defense to exercise the right to cross-examine in a prosecution-led trial, so their participation in the courtroom investigation has no practical significance. Judges lose their independence in admitting evidence and determining facts, and form an internal conviction about the facts of the case based on the case files.

3.2.2 Models of Reading Out the Case Files The case files read out by the prosecutors in court usually are the transcripts of interrogation (suspect), transcripts of questioning (witnesses, victims), identifying transcripts, search transcripts, and transcripts of obtaining evidence. In addition, the prosecutor sometimes reads out some transcripts such as “process of solving the case”, “process of arresting”, and “police statement” made by the police. However, 3

For details of the hearing of the Harbin BMW case, see Yu Jintao, Xu Saihu. (2004, January 22). The full transcript of the BMW trial. Look East Weekly.

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since the investigation usually lasts for a few months or more than a year, the suspects may make contradictory confessions and even retract their confessions, and the testimonies of witnesses and victims will also appear inconsistent. As a result, the investigators usually interrogate (question) the suspect, victim and witness many times, thus making multiple interrogation (question) transcripts. Suspects make contradictory confessions or even denounce confessions. In some major or complex criminal cases, the investigators have interrogated the suspect more than 10 times, written records as many as three or four volumes with the length of hundreds of pages, and the transcripts of questioning the witness are also extremely lengthy and complicated. Prosecutors cannot read all the transcripts in court, so they only read the parts that are favorable to the prosecution. So, in order to save time and avoid delay in the court trial, the prosecutors often read out the transcripts of the case file in the following ways. First, the multiple interrogation (question) transcripts of the same defendant, witness and victim are selectively read out, that is, the transcripts in the prosecution’s favor are selected and read out in court, while other transcripts are not presented. Second, for a certain defendant’s confession or witness testimony, select some paragraphs that are most favorable to the accusation and read it to the court. The third is a summary strategy, that is, for testimony transcripts from several witnesses that are similar, the summary rather than the original transcript is read out in court. In the following discussion, we will analyze them in detail. First, the prosecutor may choose the most convincing one or several of the multiple interrogation (question) transcripts of the defendant, witnesses and victims and read them out in court. Generally speaking, the prosecutors usually transfer the transcripts conducive to prosecution to the court as “main evidence” before the hearing in order to persuade the judge to make a judgment favorable to the prosecution. The case files which the defense lawyers can consult, extract and copy before the trial are carefully selected by the prosecutor. In this way, it is often difficult for the judge and the defense lawyer to detect that the prosecutor reads out only the carefully selected transcripts. Often, it is only through meeting with the defendant in custody that the defense attorney may learn that the defendant has made statements to investigators in his or her favor. The defendant may point out at trial that the transcript of the interrogation read by the prosecutor does not reflect the defendant’s true intentions because it was made under the duress of torture, threats, inducement, deception, or other illegal means, and ask the prosecutor to read another transcript that was made later.4 Second, the prosecutor may give a “brief reading” of the interrogation (questioning) transcript in court, meaning that the portion of the transcript that is most favorable to the prosecution is read, not the entire transcript and sometimes not the transcript that reflects the primary intent of the defendant, witness, or victim. 4

Zhang Si Zhi lawyer gave an example: a court of first instance received only 8 volumes of the case files transferred by the prosecution, the second trial, only to learn that the prosecution’s case files totaled 40 volumes, and the transcripts of witness testimony read out in the court of first instance and precisely in addition to those 8 volumes. See Zhang Sizhi, Li Huicheng. (2003). The analysis of witness testimony and interview transcripts in criminal procedure. Lawyers and the Legal System, 3.

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The reading process is quick, making it difficult for the lawyers to put forward a strong defense. Moreover, without access to the entire file, the judge cannot ascertain whether the prosecutor has read key portions of the testimony and the defendant’s deposition transcript. In the instance where the court trial time is short and the judge is under the pressure to close the case quickly, the judge may allow the prosecutor to read out the transcript quickly, so as to end the court trial process in a short time. However, it is unreasonable for judges to make judgments only through such “hurried” court investigation. After all, the prosecutor hands over all files to the court after the trial, and the judge can then review all the files further. Therefore, the court trial is a mere formality, and the judge’s decision is made in the review process after the trial rather than during the court trial. In this situation the defense lawyers can neither access the entire case file nor can they put forward strong cross-examination opinions in court. In the opinion of many lawyers, the “summary reading” may cause the prosecutor to extract the most favorable parts out of context, ignoring the main idea of the transcript. Some lawyers even ridiculed it as “arbitrarily abridging” and “choosing what you want.“5 In addition, when several witnesses give the same or similar testimony about the same facts of a case, the prosecutor may “combine summaries” of those testimonies. Strictly speaking, this way of presenting transcripts is anything but “reading out”, because the prosecutor just briefly introduces the testimony in his own language. This “combined summary” method of presenting evidence not only eliminates the process of reading the transcripts, but also prevents the judge and defense attorney from knowing the original testimony of the witness. What the prosecutor conveys in this way is his or her own understanding and summary of the testimony. It is neither the witness’s testifying in the court, nor the transcript of the testimony submitted by the witness to the court. It is obvious that this “combined summary” can be described as a “re-hearsay of hearsay”. Not only is the defense unable to cross-examine the witnesses in court, but the judge is unable to decide whether the testimony produced by the prosecution is true and reliable. As a result, the trial becomes a mere formality, and the court hearing hardly affects the judge’s determination of facts.

3.2.3 Court Investigation: Tripartite Game of Asymmetric Information According to the current criminal procedure law, the prosecutors present their own evidence in court by reading out the transcripts. Since witnesses and experts do not testify in most cases, the prosecutor presents testimony by means of a brief reading of the case file. If the defendant withdraws his or her confession in court, the prosecutor may read out the transcripts in the case file to invalidate the defendant’s retraction. Judges and defense attorneys do not have prior access to the case file, and prosecutors 5

Zhang Sizhi. (2003). How to decide the case when the evidence is doubtful? The case of Henan Li Kuisheng. Lawyers and the Legal System, 6.

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can extract portions of the records from the case file for court investigations and crossexamination. The court investigation is like a game of three parties. The prosecutor who knows the answer is the leader, while the judge and the defense who know nothing end up dancing to the tune of the prosecutor. Until the court process is over, the “answer” suddenly “dawns” on the judge when the prosecutor has transferred the full set of case files to the court. But the defense lawyer is still “completely unaware of the whole affair.” Even if the judge has discovered what’s gone wrong in the transcripts read out by the prosecutor in court, he or she cannot put it right and has to make a judgment based on it, because the trial has ended, and the defense cannot provide a strong reason for resuming the court hearing due to lack of information. The defense attorney does not have access to the full case file until the first trial is over and the case is on appeal. In this way, the prosecution takes advantage of its resources and information to dominate the court investigation process by reading the transcripts. Without access to the entire case file, judges are left to passively accept and review the case file submitted by the prosecutor. Since defense attorneys do not have advance access to the entire case file, they can only passively rebut the evidence presented by the prosecutor in court. Even if the defendant raised objections to the evidence transcript read by the public prosecutor in court, or even overturned the transcript of his guilty confession, it is difficult to shake the validity of the case file. The defense sometimes also submits applications for summoning witnesses and the victim to testify in court in order to challenge the transcript read by the prosecution. However, such applications are unsuccessful in most cases. When the prosecutor controls the court investigation by taking advantage of the case file, the judge is biased for the prosecution. The judge not only denied the defense’s request to call witnesses to the stand, but also questioned the defendant, who retracted his or her confession, in a strong tone to uphold the validity of the police interrogation transcript.

3.3 Admissibility of Transcripts Under the case file transfer system, the judge can access the prosecution’s case files before a court session, listen to the prosecutor’s summary of the case file transcripts in court, consult all the case files after the trial, and make the judgment based on the case files. This system of transferring the main evidence before the trial and the full set of case files after the trial gives judges access to evidence that has not been cross-examined. This shows that the issue of admissibility of evidence has not become the subject of a court hearing in China. As for the transcripts of the defendants’ confessions, the transcripts of the testimonies, the transcripts of the victims’ statements and other transcripts read out at the trial and those submitted after the trial by the prosecution, the courts find them to be legal and admissible. The court regards the transcripts handed over by the prosecution admissible, which means that the defense must bear the burden of proof if it objects to the transcripts. Otherwise, the court will not examine the admissibility of the transcripts, let alone

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issue a ruling excluding them. In most cases, the court will overrule a defense’s motion to exclude illegal evidence on the grounds that the defense “has not presented relevant facts and evidence.” When the court requires the defense to bear the burden of proof for the admissibility of the record, it follows the traditional principle of “who claims, who presents evidence”. 6 The court considers that the case file is admissible, so the prosecutor does not need to provide evidence to prove its admissibility. Judges always side with prosecutors on the admissibility of the case file. The court does not review the admissibility of the case file, nor the legality of related investigative activities. Since investigators generally do not testify in court, when the defense challenges the legality of investigation in the court hearing, the parties cannot cross-examine the investigators. The judges’ decisions on the legality of investigations are almost entirely based on the one-sided “situation statement” or other written transcripts issued by the investigators. Sometimes, prosecutors respond to the defense’s challenge to the legality of an investigation by reading out the investigation transcripts. This practice of determining the legality of investigation based on case file shows that the courts do not make any independent judgments on the legality of investigation, nor do they review the procedural dispute. The court’s refusal to adjudicate the legitimacy of the investigation is important evidence of the dominating effect of the investigation-led litigation model. Let us take the case where the defendant argues that his or her confession has been “extracted by torture” as an example. The courts generally make negative comments on the defense opinions that the investigators have “extracted confessions by torture”, and the transcript of the defendant’s confession is adopted as the basis for the verdict. The court’s refusal to conduct a substantive review and independent judgment on the legality of the investigation demonstrates the decisive influence and role of the investigative process in the trial. Specifically, that the court confirms the admissibility of the case file without any substantive review means that the court can confirm the legality of the investigation without any court review. The court’s refusal to exclude illegally obtained evidence amounts to a failure to sanction procedural violations and to deny judicial remedy to aggrieved defendants. As a result, the court focuses only on the defendant’s criminal responsibility, but does not review the legality of the investigation. The investigative power, together with the entire investigative procedure, travels outside the courtroom and becomes a public power that is not subject to judicial review. The infringements that occur during the investigation process, including those that seriously violated citizens’ constitutional rights, have also become an act that the court cannot review and sanction. 6

However, this can be questioned. In Germany, a court may not admit into evidence a statement of a defendant obtained by means that are contrary to the law, “even if the defendant himself consents”. See Thomas, Weigent. (2004). German criminal procedure. (Yue Liling, Wen Xiaojie, Trans). China University of Political Science and Law Press, p. 194. In the UK, the court may require the prosecution to prove that the defendant’s statement has not been obtained by coercion or other unlawful means, and will exclude the statement unless the prosecution can prove that the investigator obtained it lawfully and to the extent beyond a reasonable doubt. See Chen Ruihua. (2005). Frontiers of criminal procedure (2nd ed.). People’s University of China Press, p. 611.

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The transcript in the case file is a written record of the investigation process and the evidentiary situation produced by the investigators. The basic experience of criminal investigation shows that the investigators, who are under pressure to solve the case, have the impulse and desire to collect evidence of guilt, and for this reason, they do not hesitate to adopt various methods that violate legal procedures in order to make case files. The investigators use various pretrial strategies to force the helpless suspects to confess guilt, regardless of the “voluntariness” of the confession. The witnesses and victims make statements against suspects in the inquiry process presided over by the investigators. As for the investigation transcripts, such as identification transcripts, evidence extraction transcripts, search transcripts, and inquest transcripts, it is quite possible that there are violations of legal procedures due to the illegality of the investigation itself. If the court allows the prosecutor to transfer and read out the record without reviewing its admissibility, the legality of the investigation would not be examined and judged by the court. Thus, without judicial review of the admission of evidence by the courts, the investigation is not subject to the law and the courts and risks becoming an administrative activity not subject to the law, and its legality and constitutionality will be problematic.

3.4 Credibility of Case File When the defense lawyer cannot raise an objection to the case file transferred and read out by the prosecutor, and the judge does not have reasonable doubts about its credibility, the case file would become the basis for a guilty verdict. However, even in the face of strong challenges from the defense the credibility of the case file is usually not negatively affected, because judges generally do not support the defense, instead confirming the credibility of the case file. Therefore, the court presumes that the case file is not only admissible, but also credible. In court hearings, the general way for the defense to raise objection to the credibility of the case file is to point out that several transcripts of testimony of the same witness are contradictory. The defense lawyers sometimes read out another testimony transcript of the witness to undermine the credibility of the prosecution’s record. These cases involve the question of how the court confirms the credibility of the contradictory testimony transcripts. Based on the analysis of the written judgment of Chinese courts, we believe that, except in very rare cases, the courts generally confirm the admissibility and the credibility of the testimony transcripts read out by the prosecutor and use them as the basis for determining the facts of the case. At the same time, judges always respond to the defense’s question on the credibility of the case file in the written judgments. When the defense challenges the reliability of the transcripts, the court still insists on taking the case files as the basis for the verdict generally relying on four reasons. The first is the so-called “transcripts confirm each other” theory. A witness has provided multiple contradictory testimony transcripts, and the prosecutor reads out just one of them. However, the transcript read out in court is credible if it is confirmed

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by other evidence. This view was held by the High People’s Court of the Guangxi Zhuang Autonomous Region in its 1999 final ruling in the case of Xu’s bribery: “ …Appellant Xu says the court of first instance erred in finding that he received 400,000 RMB from Zhou… The defense lawyer pointed out that Zhou and Liang’s testimony transcripts were false and provided evidence contrary to their testimony. It is found that the testimony of Zhou and Liang was obtained by the prosecution in accordance with the law and was consistent with Appellant Xu’s incriminating statements and the relevant witness testimony and documentary evidence. Therefore, the lawyer’s defense that Zhou and Liang’s testimony was false and other related defenses cannot be sustained ….”7 The second is the theory that “the inconsistency in the details of different testimony records does not affect the credibility”. In other words, it is not unusual that there are contradictions or inconsistencies between the transcripts of testimony. It would be unreasonable and implausible if all witness statements are identical, without any inconsistencies. This view was held by the Jinan Intermediate People’s Court of Shandong Province in its verdict in the case of Wang’s bribery: “—For defendant Wang’s defense that the witnesses’ testimonies are all false and not credible, it is found that there is no evidence to prove that the witnesses made false statements because of the location of the deposition. Witness testimony is a statement of past facts made by the witness from memory, and inconsistency in details between testimonies is objective and reasonable, while complete consistency in details between testimonies is not objective and reasonable. The inconsistency in details between the witnesses’ testimonies in this case is reasonable, and this inconsistency does not affect the credibility of the testimonies. The defendant Wang’s and his lawyer’s defense opinion is not accepted by this court.”8 Third, as for the issue of the witness changing his or her testimony, some courts put forward the theory of “the lawfulness of evidence collection procedures” in response to the defense’s objection. That is, the defense’s objection is untenable because the evidence obtaining process is legal. The Liaoning Shenyang Intermediate People’s Court cited this as a reason for refusing to adopt the defense’s opinion in its judgment in the case of Yang’s illegal occupation of agricultural land: “The defense lawyer and the defendant Yang pointed out that the witness testimony is not credible, the court found that the investigative authorities obtained the above-mentioned witness testimony in accordance with the lawful procedures, and the facts proved and other evidence in the case corroborate each other, so the testimony is credible. Therefore, the above defense opinions are not accepted by the court.”9 Fourth, some courts reject new testimony as “unreasonable” and based their decisions on the original testimony against the defendant. This reasoning was clearly 7

See Guangxi Zhuang Autonomous Region High People’s Court Criminal Ruling (1999, No. 31). (2001). Criminal Trial Reference. Law Press, Vol. 21. 8 See Jinan Intermediate People’s Court of Shandong Province Criminal Ruling (2003, No. 32). (2004). Criminal Trial Reference. Law Press, Vol. 35. 9 See Shenyang Intermediate People’s Court of Liaoning Province Criminal Ruling (2003, No. 70). (2003). Criminal Trial Reference. Law Press, Vol. 33.

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expressed by the Liaoning Provincial High People’s Court in its second instance ruling on Liu’s bribery case: “The main reason for Liu’s appeal is that the original trial is wrong to find him guilty of accepting bribes, and he did not accept bribes; the testimonies of all the witnesses on which the original trial found him guilty of accepting bribes are false, and the witness Guo overturned his previous testimony, while Liu, the key witness in this case, denied receiving this money ….. Regarding the appellant Liu’s reason of appeal that ‘all the witnesses’ testimonies are false’ and the defense lawyer’s defense opinion that ‘some witnesses’ testimonies have changed, the court found that the testimonies of the main witnesses Xia and Ying have not changed, Guo testified many times during the investigation, and his testimony is clear and stable, and the testimonies of Xia and Ying and Liu’s confession corroborate each other, so the witnesses’ testimonies are credible. The witness later changed his testimony without a reasonable explanation and other relevant evidence to prove it, so it is inadmissible.”10 There is no doubt that Chinese courts have great discretion in deciding the credibility of contradictory case files. First, the court decides which of the conflicting case file transcripts to accept without witnesses and victims testifying in court. Since the victims and witnesses do not appear in court, the two testimony transcripts made by the investigators are hearsay. Courts are left with almost unlimited discretion to choose between two pieces of hearsay, not following any rule. Second, the court is more willing to accept evidence against the defendant, which shows that the case file read out in court by the prosecutor has a significant influence on the judge’s internal conviction of the defendant’s guilt. It is difficult for the defense to overturn or weaken this influence. In the case of witnesses testifying in court, is the witness’s in-court testimony credible? Especially, if the witness testifies after the testimony transcript has been read out by the prosecutor, should the court adopt the witness’s in-court testimony or the testimony transcript? The discussion of this issue does make sense. On the one hand, it relates to the question of how the criminal court chooses between the transcript of testimony and the testimony made by the witness in court. On the other hand, some local courts are carrying out trial model reform to require witnesses and experts to testify in court. The Supreme People’s Court even requires the second-instance courts of death penalty cases to summon important witnesses and experts when one party objects to the testimony transcripts. Witnesses testifying in court will certainly be an important reform of criminal procedure in China in the future. However, if the testimony transcripts read out by the prosecutor in court continue to be unconditionally accepted by court, and the court even prefers the latter when there is a contradiction between the witness’s testimony in court and the testimony transcript, even if the court calls witnesses to testify in court, the problems existing in China’s criminal justice system will not be solved fundamentally, and the case-centric trial pattern will continue to exist. 10

See High People’s Court of Liaoning Province Criminal Ruling (2005, No. 31). (2005). Criminal Trial Reference. Law Press, Vol. 41.

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The following discussion uses two decisions of the Haikou Intermediate People’s Court in Hainan Province as examples to analyze the testimony of witnesses in court and the appearance of witnesses in court. [Case 2] On January 18 and May 29, 2001, the Intermediate People’s Court in Haikou, Hainan Province, heard the case of defendant Ji’s misappropriation of public funds. In the courtroom investigation, the prosecutor read out 10 transcripts of testimony submitted by the investigative authorities. Defendant Ji pleaded not guilty and applied for the court to call witnesses Pang, Lin and Zhang to testify, which the court agreed to do. However, the court admitted the transcripts of the testimony given by witnesses Lin and Pang to the investigators, rather than the testimony given by the three witnesses who testified in court. The verdict reads: “Lin, Zhang and Pang, as witnesses for the defense, testified at court, but Lin and Pang testified at the investigation stage to the contrary of these in-court testimonies. Combined with other evidence, the testimony of witnesses Lin, Zhang and Pang in court is not credible. Therefore, the defense of the defendant Ji is not accepted.”11 In this case, the court did not admit the in-court testimony of the three witnesses for the defense, but instead based its decision on the transcripts of the testimony read by the prosecutor. It is noteworthy that the court based this decision on the grounds that the testimony of two witnesses at the investigation stage was contrary to their testimony in court, and that their testimony in court was contradictory to other evidence. Clearly, the court focused on the reliability and relevance of the witness’s in-court testimony and the transcript of the testimony rather than their admissibility. Even in terms of credibility, a verdict based on a transcript of the testimony is problematic. Should in-court testimony be excluded if it is contrary to the testimony given during the investigation phase and contradictory to other evidence? [Case 3] On October 18, 2002, the Haikou Intermediate People’s Court of Hainan Province issued a verdict on the case of Zhao, Yan, Liu and Bao for intentional injury. The defendants filed an appeal. The High People’s Court of Hainan Province tried the case in a closed session. The appellant Zhao claimed that the facts found in the original verdict were unclear and the evidence was improperly used, requesting the court to re-examine the facts. The defendant Zhao claimed that the witnesses Zhao, Ni and Ye did not appear in court and their testimonies were invalid, and he could not be identified as the main culprit according to the available evidence. The court of the second instance rejected the appellant’s request through the written examination procedure such as reading the file. The Hainan High People’s Court held that, during the trial court hearing, the public prosecutor read out the written testimonies of the witnesses Zhao, Ni and Ye, so the three testimonies were legal, authentic and relevant, and admissible.12

11

The decision was made by the Haikou Intermediate People’s Court on June 7, 2001. See Haikou Intermediate People’s Court’s ruling (2001, No. 7). Tianya Law Website, “Judgment Documents”. 12 The case was decided by the Hainan High People’s Court on December 23, 2002. See Hainan High People’s Court’s ruling (2002, No. 140). Tianya Law Website, “Judicial Documents”.

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Unlike the previous case, the witness in this case did not testify in court. The defense requested the court of the second instance to declare the transcript of the testimony invalid on the ground that the court of the first instance refused to call three witnesses to appear in court. However, the court of the second instance held that the written testimony was admissible because it was read out by the prosecutor in court and was reliable and relevant. According to this way of thinking, even if the witness testifies, the in-court testimony cannot have the same evidentiary effect as the testimony transcript and will not be admitted by the court. Certainly, the above two judgments are not necessarily universal. Perhaps, we can find some similar judgments. The above two judgments illustrate that even if a witness testifies in court, the judge may still admit the transcript of testimony from the investigation case file rather than the witness’ oral testimony in court. Indeed, both the direct and the principle of directness and verbalism in civil law and the hearsay evidence rule of common law require the court to give preference to the latter between the transcript of out-of-court testimony and the witness’s testimony in court, and to admit the former only in exceptional circumstances. When the court admits transcripts of testimony rather than in-court testimony, as the two cases above show, any relevant rules of evidence are useless.

3.5 Space for Criminal Evidence Law Undoubtedly, the main task of the criminal evidence law is to restrict the judge’s discretion in two aspects. The first one is to confirm the credibility of the evidence. The second one is to determine the facts of the case, which are related to the proof rules. In terms of evidence admissibility, there are principle of voluntariness of confessions and hearsay evidence rule in modern criminal procedure laws. The confession record out of court is admissible only when the prosecution has proved that the process of obtaining confession is legal and the defendant’s confession is voluntary. As for witness testimony, the court has access only to the witness’s testimony in court, not to the witness’s written record outside of court, and especially not to the transcript of the witness’s statement to the police. Both the principle of voluntariness of confessions and the hearsay evidence rule can limit the admissibility of evidence only on the premise that the prosecution’s case files are not used as the basis of the judgment. In the aspect of exclusion of transcripts, the principle of directness and verbalism in civil law countries is the same or similar to the hearsay evidence rule in the common law. The essence of “case file centrism” lies in the fact that the court keeps an open attitude to the prosecution’s case files without explicit restriction. In this way, judges can access the case files submitted by the prosecutor before or during the trial, so as to understand the written record of the investigation process. As a result, the court hearing becomes a review and confirmation procedure of the investigation conclusion. Judges who have reviewed the transcript of a defendant’s confession before trial are often disgusted by retracted confessions or statements inconsistent

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with the pretrial confession and assume that the defendant is lying in court. A judge who has consulted the testimony transcript of the witness distrusts the witness’s testimony in court when it is contradictory to the transcript. Under the influence of the information conveyed by the case file, judges generally do not confirm the credibility of the testimony of defendants and witnesses in court. Obviously, this is a “Bad money drives out good money” process. Judges access the case files before the trial and confirm their credibility in court, listening only to one side. As a result, the in-court testimony rarely positively impacts the judge’s decision. The judges access the evidence transferred by the prosecution before trial, so that the prosecution’s evidence cannot be cross-examined by the defense, which may have an impact on the factual judgment. In the system of transferring the main evidence before trial and all case files after trial, the prosecution is deemed to have fulfilled the burden of proof simply by selectively reading out the file records, and there is no need to call witnesses and experts of their own side to testify in court. After consulting the public prosecution’s case files before trial, judges confirm their credibility in court. Judges who fully accept the prosecution’s claims often make prejudgment of the defendant’s guilt. It shows that there are no proof rules based on the principles of “presumption of innocence” and “who claims, who presents evidence” in Chinese criminal trials. If the case files are deemed admissible and the judges tend to overrule the defense’s objections to the files, the rules of evidence on admissibility will be difficult to establish. Modern judicial proof rules cannot be implemented if the judge presumes that the files are credible and still believes so even when the defense presents sufficient evidence and reasons. Even if a voluntary confession rule, hearsay evidence rule and a rule of “witnesses testifying in court” is established in future criminal evidence law, they will not be implemented in practice if the prosecution’s case files still strongly influence judges. Any rule of evidence that restricts the judge’s discretion will not work well without excluding case files from the court and prohibiting judges from using them as the basis of their decisions. One of the essential functions of criminal evidence law is to limit judges’ discretion concerning evidence. However, it is extremely difficult for the criminal evidence law to function under a system in which judges consult the prosecution case files, make arbitrary choices between the records provided by the investigating authorities and the testimony of witnesses in court, and use the case file as the basis for their decisions.

3.6 Ritualization, Theater Effect and Functions of Court Hearing After years of reform, the system of organizing court investigations by reading records has not changed significantly. Case files are still the basis for trials and judgments. The court hearing is still hasty and a mere formality. Lots of the criminal procedure rules, including the open trial, the principle of directness and verbalism, and lawyers’

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defense, are almost useless. Obviously, under the influence of case file centrism, court hearings are not substantive to the decision, but at most symbolic rituals. However, this ritual is not entirely useless. In cases where the defendant confesses his or her guilt and agrees to the summary procedure, a court trial is different from that of the ordinary procedure, and the case usually ends in the defendant’s conviction. Also, the defendant may be imposed lighter sentencing because of his or her choice of summary procedure. Such a summary procedure is usually a written, indirect and quick-decision process, rather than a direct, verbal and adversarial one. And the case files submitted by the prosecution are often the main basis for the court to make a judgment. Moreover, even in the ordinary procedure where the defendant pleads not guilty, the court investigation and cross-examination are not always conducted in a direct, verbal and adversarial way. Especially in the cases where both sides agree on the admissibility of testimony transcripts, the court generally does not summon witnesses to testify in court. In such cases, court hearings on the transcripts of testimony are likely to be “ritualized” and “symbolic” rather than a direct and verbal court investigation. The question is, if the defense objects to the case file presented by the prosecution and requires that the court summon witnesses, experts, victims and investigators to testify in court, can the court rebut the defense’s motion and allow the prosecutor to read out the case files? Especially in cases where the defendant pleads not guilty, the case file records what may be the statements of witnesses and victims. If the court admits such written records, the defense cannot cross-examine the witness and the victim. A trial conducted through the reading of the case file is completely meaningless. Obviously, by consulting the case files transferred by the procuratorates before the trial, the judges often determine the facts of the case against the defendant and make prejudgments about the defendant’s guilt. During the trial, the judge conducted the court investigation of the evidence by hearing the prosecutor read from the case file and hearing the defense’s opinion on the case file. Through a rushed court trial, the judge can determine neither the facts of the case nor the credibility of the evidence. The judgment is usually pronounced later on a fixed date, so after the trial, the judge has sufficient time to consult the full set of the case files which includes the records that have not been read out during the trial. Therefore, the trial is not important because the post-trial consulting case files determines the judge’s internal conviction of the defendant’s guilt. The file-centered trial approach suggests that the trial does not play a key role in the judge’s internal conviction of the facts of the case, but is a mere formality under the influence of the file transfer system. The prosecution’s case files, rather than the court hearing, are the real source of information for the court to determine the facts of the case. Radbruch made an incisive comment on the abuse of record in inquisitorial proceedings: “Because of the case file of the pretrial proceedings provided by the prosecutor and the pretrial judge, he (the judge) must have had a subjective impression of the facts before the trial, and thus there is a danger of suddenly slipping from the role of impartial judge to the accusatory side.

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This impact of the pretrial proceedings file on the trial proceedings also threatens the principle of directness and verbalism. The inquisitorial criminal procedure used to be a written trial: the trial court made a decision based solely on the pretrial judge’s file. A judge convicted a defendant he had never met, based on the testimony of witnesses he had never heard in person.”13 According to the conclusion of comparative law research, the principle of directness and verbalism in European criminal procedure was gradually established on the basis of negating the indirect and written trial procedure in the inquisitive procedure. Judging from the history of criminal procedure in European countries, the so-called “indirect, written trial procedure” is a court trial based on case file records. The judge carries out the hearing by reading out the record of the defendant’s interrogation and testimony transcripts, without summoning witnesses to testify in court, so that the trial procedure is nothing but the review and confirmation of the case file records, with no value or capacity for independent adjudication. The so-called “principle of directness and verbalism” emphasizes that the judge should have access to the original evidence. The defendant’s statement and witness testimony should not be understood by consulting the case files. The judge should listen to the oral statements of the witness and the defendant in court rather than studying the written records. China’s criminal procedure system is not the same as the European inquisitive procedure system. However, in most cases, the courts of the first instance do not summon witnesses, experts, victims and investigators to testify in court. Instead, they listen to the prosecutors’ brief and rapid reading of the case files, making the prosecutors’ case files the basis of court trials. The courts of the second instance open no court session in most cases, while holding a hearing in only a small number of cases. The Supreme People’s Court does not hold a session in the death penalty review procedure. In the “trial procedures” without a court session, the case files are the main basis for the judges to make the decisions. The trial method of reviewing and studying case files is a modern version of indirect and written trial procedures. The case files are the main source of information for the court to make judgments because they are the main basis for determining the facts of the case. Therefore, without getting rid of the influence of the case files, the trial procedure of the first instance is a mere formality, and the procedures of the second instance and the death penalty review serve no practical purpose. In addition to the influence of the case files, are there other factors that make court trials a mere formality? Are there any deeper problems behind the court trial procedure? It should be noted that after more than two decades of development, China’s criminal trial system has not yet established a mechanism for forming adjudication conclusions through the process of court trials. Specifically, the short and rapid trial procedure is loaded with symbolic significance. Its main purpose is to publicize law and to “educate the public to consciously abide by the law and fight against criminals”, or at most to perform the conviction process. The vast majority of criminal judges 13

Radbruch. (2003). Introduction to jurisprudence (Mi Jian and Zhu Lin, Trans). Encyclopedia of China Press, p. 125.

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believe that it is rash and arbitrary to base their decisions solely on the transcripts of the case files read by the prosecution and the cross-examination of evidence and debate between the prosecution and defense. They argue that in determining the facts of a case, judges should combine cross-examination and court debate with pretrial review of the “primary evidence” and post-trial consulting case files. However, the case files read out by the prosecutor in court are not known by the judge and the defense before the trail, so it is hard for the defense to make a meaningful defense. And the judge dares not make a hasty determination of the facts of the case before he has access to all the case records. Otherwise, making judgment only based on the files read out in court is risky and may result in wrong conviction. As can be seen, the criminal judges focus on pre- and post-trial consulting case files, rather than on court hearings. In addition to the case files, other factors may be the source of information for the judges’ internal conviction of the facts of the case. Before the hearing, in addition to consulting the prosecution’s case files, the judge may meet with the prosecutor to discuss the case and exchange opinions on the evidence and the facts. The judges of lower courts may ask the judges of the second instance judge and the judges of the death penalty review for instructions on the admissibility of evidence and the fact of the case. Some judges may meet with defense lawyers to exchange opinions on the facts of the case… In major or complex cases, judges, prosecutors and investigators may form a “special case team” so that the judges can “join in” the process in advance, understand the facts of the case and make a preliminary judgment before the hearing. These things that may happen before the court hearing will undoubtedly influence the judge’s decision. During the court trial, because the Criminal Procedure Law did not establish the litigation principles of “uninterrupted trial” and “no change of judges”, the “centrality” of court proceedings cannot be effectively guaranteed. For ordinary criminal cases, the judge can finish the trial in less than half a day, or no more than one day. However, for cases where multiple co-defendants are on trial or the defendant is accused of multiple charges, court hearings may last several days or even more than ten days. Trials may sometimes be interrupted due to various reasons. During the adjournment, the judge may go to the place of the crime to investigate and verify the evidence, or meet with the prosecutor and investigators. The results of the interruption of court hearings are that, not only is it difficult for a judge to base the decision on a clear impression of the facts of a case, but some factors outside the courtroom may affect the judge’s internal conviction of the facts of the case. In most cases, judgments are pronounced later, on a fixed date, rather than in court, so that judges may base their decisions on some out-court factors rather than the court hearings. After the court hearings, judges usually consult all the case files and write a “trial report” on this basis. At the same time, the president and vice president of the court and the chief judge of a division give their opinions on the case, which significantly impacts the final judgment. For “major” or “complex” cases or cases with “significant disputes”, the president of the court may preside over a meeting of the judicial committee to discuss the case and make an authoritative decision that the collegial panel must comply with. For those cases with great social impact, the

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local party and government departments and legislatures may intervene in the case. The judge may “report the case” to them for their instructions. When judges do not have the power to decide cases, external intervention in the cases makes court trial a mere formality. As a result, judgments are not based on the evidence that has been investigated and cross-examined during the trial process. As a result, judges cannot base their decisions on the clear impression of the evidence and fact findings in the court, and there is no logical causal relationship between the court hearing and the final judgment. These interventions from outside and within the court affect the judges’ decisions on fact and law. The non-independent trial deprives judges of their judicial power. However, under the system in which judges generally make decisions, by consulting case files, the court trial serves no practical purpose even if there is no intervention from outside or inside the court. This is because judges’ decisions are always based on the case files or the out-court investigation, rather than the court trial. When the trial is a mere formality, the information source for the judge to make decisions is either the files and the out-court investigation, or via intervention from outside or inside the court, and never from the evidence presented and facts found during the court hearing. The biggest problem in China’s criminal procedure is that the court trial is not the basis for judges to make their decisions.

3.7 Reform of Court Trial System Although the criminal trial system has been reformed and improved many times in more than 20 years, the criminal procedure still focuses on the case files, and judgments are still not based on the court hearing, which directly relates to the failure to establish external and internal non-independence of the courts and the great influence of the case files. Under the great effect of the case files, criminal judges do not make their decisions through the court trial, but seek information and inspiration by consulting the files. With the problem of “court trial being a mere formality” still unresolved, any reform aimed at “modernizing” court trials would fail to solve the problems of China’s criminal trial system. In the author’s opinion, supposing the principles of presumption of innocence, open trial, directness and verbalism, lawyers’ defense, the system for witnesses, experts, victims and investigators to testify in court, and the evidence rules such as hearsay evidence rule, evidence cross-examination, opinion evidence rule, character evidence rule, and witness privilege are built into the Chinese Criminal Procedure Law, if the court remains file-centric, basing their judgments on case files, then criminal trials would not be changed significantly. After all, any reform made on the order, scope, and manner of court trials is meaningless to a judicial system in which no judgment is made through the court process. Shouldn’t we reflect on this “reform of the criminal trial method” which has suffered repeated defeats? China’s future judicial reform should focus not only on the criminal trial method, but also on “rebuilding the trial system”, because there is no real court trial in China’s

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criminal justice system. The judge should listen to the cross-examination and the debate in court to determine the admissibility and credibility of the evidence and then make the final decisions. Only when judgments are made through the court hearing, is the court trial impartial. Thus, the “ fair trial” we seek should be predicated on the existence of a “courtroom trial” that determines the verdict. Otherwise, criminal proceedings will not follow the fair game rules, and the accused will not get the opportunity for a fair trial.

Chapter 4

A Study on Criminal Procedure Malfunctions

4.1 Introduction In recent years, as the Chinese legislature has put the revision of the Criminal Procedure Law in its plan, more and more scholars have begun to pay attention to this issue. Legal scholars have published a series of papers and writings. Some senior scholars have also drafted “expert proposals for the criminal procedure law”, proposing a comprehensive and systematic theoretical plan for revising this law.1 The author also participated in the seminars organized by the Criminal Committee of the China Lawyers Association and drafted the first lawyer’s version of the proposed amendments to the Criminal Procedure Law.2 In this way, the revision of the criminal procedure law is not led by the legislature alone, but legal scholars and lawyers are involved for the first time. In general, amendments to the criminal procedure law involve changes in criminal procedure regulations, including additions, deletions, and changes in the provisions. The changes include the adjustment of the powers of the public security organs, the procuratorates, and the courts, the expansion of the procedural rights of suspects, defendants and defense lawyers, and the establishment of some new procedural systems. What are the fundamental problems faced by the Chinese criminal procedure? The legal scholars have given their answer to this question: the right to defense of suspects and defendants must be expanded; the illegal taking of evidence by investigators should be deterred; the problem of witnesses not testifying in court must be solved; the scope of application of bail must be expanded; the indefinite 1

For the scholarly version of the proposed draft revision of the Criminal Procedure Law, see Xu Jingcun. (2005). The scholarly draft of China’s criminal procedure law (Second Revision) and the reasons for legislation. Law Press; Chen Guangzhong. (2004). Expert draft of the criminal evidence law of the People’s Republic of China: Provisions, interpretation and argument. China Legal Publishing House; Chen Guangzhong, ed. (2006). Expert draft and argument for the revision of the criminal procedure law of the People’s Republic of China. China Legal Publishing House. 2 Tian Wenchang, Chen Ruihua, eds. (2007). Lawyers’ suggestions and arguments for revision of Chinese criminal procedure law. Law Press. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_4

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detention should be restricted; the rules for the admissibility of evidence should be more precise. These issues, although critical, are not fundamental if we look not only at the “improvement of written criminal procedure” but also at the implementation of criminal procedure. The real problem facing the implementation of China’s criminal procedure law is neither the defendant’s procedural rights nor the powers of the public security organ, procuratorate, and court, but the criminal procedure malfunctions. The so-called “criminal procedure malfunctions” refer to the fact that the procedural rules established by the legislator are evaded or set aside. As a result, the written criminal procedure law is ineffective. We usually say “court trial is a formality”, which means that the provisions of the criminal procedure law on court trial have been set aside. We generally think of “the system of one final appeal in name only,” which means that this system has been evaded. Likewise, the system of the collegiate panel has been set aside. Similar examples are the following: bail is turned into a penalty, an arrest is a harbinger of conviction, the defendant’s right to defense is hollowed out, the case file transcript becomes the center of the trial, and the court refuses to acquit the defendant without sufficient evidence. The “criminal procedure malfunctions” mainly refer to the fact that the statutory procedures are not effectively implemented. This is not to say that the investigative authorities, procuratorates and courts do not follow any procedural norms in criminal proceedings. Still, they follow “latent rules” or “invisible systems” that are not prescribed by law. These rules and systems are designed by the investigative authorities, procuratorates and courts for the convenience of handling cases, and are gradually gaining acceptance in criminal proceedings. These “latent rules” and “invisible systems” arise spontaneously in Chinese criminal justice practice. They have a strong vitality and have replaced the formal legal procedures, even though academics often criticize them. We cannot just evaluate the theoretical justification of “latent rules”. Such an evaluation is necessary, but it is far from sufficient. We should analyze the criminal procedure malfunctions in China from a social science standpoint. On the one hand, we should study the manifestations and types of criminal procedure malfunctions and establish a theoretical model. On the other hand, we should find external factors of procedural malfunctions to explain their causes. Based on the analysis and generalization of the empirical facts, this chapter proposes five reasons for the procedure malfunctions, or the “five precepts of the criminal procedure malfunctions”. First, the Criminal Procedure Law does not establish a mechanism for implementing procedures, making some procedures risky of being evaded and set aside. Second, some procedural rules are too costly to implement, reducing the efficiency of the process and making it difficult for the judicial organs to tolerate them. Then these organs stopped applying these procedures. Third, due to the problems of monitoring and evaluation, if decision-makers strictly follow the legal procedural rules, instead of being rewarded, they may be punished for doing so, which can cause these procedures to be evaded. Fourth, some systems imported from the West conflict with local legal traditions, resulting in judicial officers’ failure to follow legal procedural rules. Fifth, the judicial system does not guarantee some

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criminal procedures introduced from the West, and it is challenging to implement these procedures due to the backward state of judicial reform. It is difficult to resolve these problems. This chapter aims to reveal the problem and the reasons for its formation. As for the resolution of these problems, some require a massive change in the judicial system, some await the completion of social transformation, and some even need other changes in social conditions. But if the causes of these problems are not found, any ideas and actions to advance reform of the criminal procedure are blind and risky.

4.2 Implementation Mechanism of Criminal Procedure Law From one perspective, the criminal procedure malfunctions are also the impossibility of implementing criminal proceedings. Why is the criminal procedure law not implemented? We first need to examine how the criminal procedure law is implemented before we can reveal why the criminal procedure law cannot be implemented. The rules of substantive law are divided into three types: authoritative rules, obligatory rules and prohibitive rules. However, any legal rule, whether it is authoriative, obligatory or prohibitive, contains the essential elements of “assumption”, “sanction” and “responsibility”. We can combine “assumption” and “sanction” into “normative content”. “Responsibility” can be regarded as “legal consequences”, which arise from violating laws. Thus, two essential conditions are required for the implementation of substantive law. First, the rights, obligations and prohibitions contained in the rules should be clear and specific. Second, a person who violates a right, fails to fulfill an obligation or violates a prohibition is subject to adverse legal consequences. But the substantive law cannot be implemented automatically. Specifically, neither rights, obligations, prohibitions nor legal consequences can be realized alone, but must rely on the implementation of procedural law. This requires procedural rules regarding the burden of proof, the standard of proof, adjudicative methods and relief channels. From this perspective, procedural law ensures both the implementation of substantive law and the application of each right, obligation, prohibition and liability provided by substantive law. Similar to substantive law, procedural law also has authoritative rules, obligatory rules and prohibitive rules, and also has three essential elements of “assumption”, “sanction” and “responsibility”. However, the “legal liability” or “legal consequence” in procedural law is usually a procedural legal consequence such as invalidation, but not a substantive legal liability such as the liability for civil compensation, liability for administrative punishment, criminal liability, or liability for disciplinary action. This means that the principle “one bears liability for his actions” emphasized by substantive law does not apply to procedural law. A person who violates the procedure law does not suffer a personal loss, but does not receive the benefit that would have been available if the procedure had not been violated. Of course, this is only a

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procedural violation in the general sense. If a procedural violation is so serious that it violates the substantive law, such procedural violation becomes a substantive violation and consequently leads to adverse legal consequences in both procedural and substantive law. The uniqueness of procedural sanctions makes the implementation of procedural law different from that of substantive law. Moreover, unlike substantive law, the implementation of procedural law cannot be achieved by implementing another procedural law. No state has an “implementation law for procedural law”. Therefore, the implementation of procedural law relies on itself. So, how is the procedural law implemented? First, procedural law must establish a mechanism for pronouncing invalidity. This is what is referred to as “procedural liability” above. This needs the exclusionary rule for illegal investigation, the rule of invalidating prosecution for illegal public prosecution, and the rule of cassation for illegal trial. Second, procedural law must also establish adjudication mechanisms for procedural violations. This is what the author emphasizes as the “procedural trial”. For example, the implementation of the exclusionary rule needs provisions on the party filing the motion, the stage of litigation at which the motion is filed and the court before which it is filed, the method of adjudication, the burden of proof, the standard of proof, and the channels for a judicial remedy. Without the procedural trial mechanisms, “procedural sanctions” cannot be enforced and procedural violations cannot be declared invalid and effectively deterred. Under the above principles of the implementation of procedural law, we can summarize the first precept of the criminal procedure malfunctions: as long as the criminal procedure law does not establish mechanisms for invalidating violations of procedure law, and as long as it does not establish adjudication mechanisms for the implementation of such invalidation mechanisms, the rules of criminal procedure cannot be implemented and will malfunction. It is not difficult to argue for this precept. We can find many examples of criminal procedure malfunctions to show that this precept is correct. For example, the 1996 Criminal Procedure Law gives lawyers the “right to meet with suspects in custody” during the investigation stage. Still, it does not establish a mechanism to guarantee this right, making this right useless in judicial practice. The law does not provide any legal consequences for procedural violations, such as illegally obtaining evidence and restricting the right of access to lawyers. Not only that, if investigators arbitrarily restrict or deny lawyers the right to meet with suspects, neither the suspects nor the lawyers have access to the judicial remedy before a neutral court, and the courts do not accept such cases concerning the legality of the investigation. As a result, the right of lawyers to meet with suspects in custody is not guaranteed by an effective procedural mechanism. Besides, it is also non-actionable and non-remediable. Although there are many reasons why investigators arbitrarily restrict and deprive lawyers of the right to meet with suspects, the failure to implement the regulation that “lawyers meet with suspects in custody” is an essential factor in creating this problem. Another example is that the 1996 Criminal Procedure Law gives suspects and defendants the right to apply for changing their compulsory measures, such as the right to apply for bail, which shows the legislator’s concern about indefinite detention.

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However, in judicial practice, whenever suspects and defendants apply for changing compulsory measures or apply for bail, the public security organs, procuratorates and courts often reject them, making this right unrealizable. There may be many reasons for this situation, but in terms of implementing criminal procedures, is it possible to enforce the regulation that suspects and defendants “have the right to apply for changing compulsory measures”? The answer is no. This is because the law does not establish procedural legal consequences for procedural decisions. The compulsory measures should have been changed but were not, and bail was refused when it should have been granted. There is no mechanism to invalidate unlawful proceedings, especially in the cases of illegal arbitrary detention, and no rule to exclude evidence obtained during indefinite detention. Not only that, if the suspect or defendant applies for a change of compulsory measures or the application of bail pending trial, not only will he or she be unreasonably denied, but there is no possibility to seek the judicial remedy. Once such a problem occurs, neither the procuratorate nor the court will provide a judicial hearing to review the legality of detention for suspects and defendants who apply for relief. Thus, the rules of the suspect or defendant to “apply for a change of compulsory measures” or “apply for bail” become unenforceable, and the relevant rights become irremediable. The malfunction and evasion of the rules are inevitable. Some may disagree: it is not that current Chinese laws do not establish any procedural sanctions mechanism. For example, under the procedural law, if the court of the first instance has violated statutory procedures, which may affect the fairness of the trial, the court of the second instance shall revoke the original judgment and remand the case to the original trial court for retrial. Also, the Supreme Court’s judicial interpretation established a Chinese-style exclusionary rule. However, these procedural sanction mechanisms have not been well implemented. That being the case, is the problem of the enforcement mechanism of procedural law the cause of the criminal procedure malfunctions? Indeed, from the perspective of criminal procedure implementation, both the cassation system and the exclusionary rule may guarantee the implementation of the relevant procedural rules, while they are “procedural rules” themselves. According to the previous explanation, any procedural rule without operational mechanisms of procedural sanction and procedural trial will become an unenforceable rule. However, even if a procedural sanction mechanism is established, it cannot be automatically enforced.3 Thus, the exclusionary rule and the cassation system, which are statutory procedural sanction systems in Chinese law, are difficult to be implemented. However, this issue does not overturn the first precept of criminal procedure malfunctions. Instead, this illustrates that all procedural rules need to be safeguarded by implementation mechanisms. Whenever a legal process becomes unenforceable, a procedural right becomes irremediable, and the problem of criminal procedure malfunctions

3

For a detailed analysis of this issue, see Chen Ruihua. (2005). The Theory of procedural sanction. China Legal Publishing House, p. 235.

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will follow. This means that criminal procedure malfunctions can occur in authoritative, obligatory, and prohibitive rules and influence the implementation of procedural sanction rules.

4.3 Costs of Legal Proceedings The design of legal proceedings often involves the investment of litigation costs. Criminal litigation requires the investment of judicial resources such as human, material and time, so the litigation efficiency must be squarely confronted. Criminal justice system reforms that reduce procedural efficiency or delay case resolution are unlikely to succeed. As Chief Justice Burger said, reducing the percentage of plea bargaining cases by 10% would require a doubling of resources for police, prosecutors and courts.4 Judge Burger’s remarks were made in response to a proposal to abolish the plea bargaining system. However, this can be interpreted as follows: criminal procedure malfunctions emerge when legal procedures increase litigation costs and decrease litigation efficiency and when such changes exceed the limits of the criminal justice system. This is the second precept of the criminal procedure malfunctions. Some scholars have proposed theories on procedural justice and litigation efficiency. If such a theory lacks empirical support, it becomes a purely “metaphysical” discourse without operability. Judicial practice shows that the design of legal procedures must consider the impact of litigation costs on the criminal justice system and the affordability of the criminal justice system. Otherwise, the procedure will become a castle in the air with no chance of implementation. Whenever this happens, an overburdened judicial system spontaneously puts out “latent rules” to replace a seemingly rational system with insufficient judicial resources to support it. A typical example is the “criminal trial model reform” in 1996. Legislators realized that the original trial model gave judges too much investigatory power. During the trial, the judge led the court investigation and court debate, making it difficult for the prosecution and defense to mount a sufficient argument. Since judges have already consulted the case files before trial, they usually “decide before trial”, making the trial formalistic.5 To address these problems, the system of a substantive review of prosecution’s files before trial was abolished, and judges’ access to case files before trial was significantly reduced; the order and manner of court investigation have changed, and the judge’s dominance in the investigation of evidence has diminished; the introduction of a cross-examination system allows the prosecution and defense to play a more significant role regarding in investigation of evidence. The legislators believe that this “trial model,” modeled on the British and American adversarial system, will ensure that defendants can more fully exercise their defense right and 4

Chen Ruihua. (2005). A comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 4. 5 Gu Angran. (1996). Litigation, arbitration and state compensation system in China. Law Press. p. 21.

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make court proceedings work better.6 At the same time, to avoid delays caused by the adversarial procedure, the legislator established a summary procedure for quick resolution of minor criminal cases. In cases where a sentence of up to three years’ imprisonment is imposed, a defendant who admits guilt may choose the summary procedure. However, despite the positive results, the implementation of summary procedures cannot fundamentally solve the backlog of cases and the shortage of court resources. For example, the Haidian District Court in Beijing has not solved the contradiction between the limited judicial resources and the massive growth of cases, despite implementing summary procedures. According to statistics, the Haidian court handled 464 criminal cases through summary procedures in 1997, accounting for 35% of all criminal cases; in 2000, that number reached 1000 cases, accounting for 50% of criminal cases. However, the pressure on trials has not been relieved because the total number of criminal cases increases year after year. The pressure has even increased with the introduction of the adversarial procedures and the implementation of the presiding judge system. For example, in a court with only three presiding judges, each presiding judge conducts over 350 cases through ordinary proceedings per year. Under such near-unbearable case pressure, the Haidian Court established the “simplified ordinary procedure”, allowing uncontroversial cases to be processed within one hour.7 The “simplified ordinary procedure” established by the Haidian Court has been expanded to the whole country by the Supreme Court and has now become the “ordinary procedure for cases where the defendant admits guilt and accepts punishment” alongside the statutory summary procedure. Indeed, the grassroots courts’ spontaneous trial model reform is an essential path to developing the legal system. However, the new trial model based on the Anglo-American adversarial system has been set aside in the “ simplified ordinary procedures” of the grass-roots courts, at least in those cases where the defendant admits guilt. The practice of “simplified ordinary procedures” is clear evidence of the malfunction of the adversarial system. The impact of the 1996 trial model reform went much further than that. The legislator has realized that the core problem of China’s criminal trial system is that courts “decide before trial” and “court trial is a formality”. However, instead of providing any effective “prescription” for this problem, legislators have put great effort into changing the trial model. So, has borrowing and transplanting the adversarial system solved the problem of the court trial being a formality? The answer, I’m afraid, is no. According to the author’s research, the courts apply a case file centrism trial model in the current criminal first instance proceedings. The courts consult almost all the prosecution’s evidence by reading of the transcripts of the case files prepared by the investigators. The courts allow the prosecutors to read out the transcripts of statements of witnesses, victims and defendants. The evidence obtained by the investigators through crime scene investigation, examination, search, seizure and 6

Chen Ruihua. The theory of criminal trials. (1997). Beijing University Press, p. 361. Beijing Haidian District People’s Court, Criminal Court No. 1, Research Office. (2001). Study on the model of the simplified criminal ordinary procedure. People’s Justice, 10; An Keming, Tao Yuandi. (2001, October 8). Simplified criminal ordinary procedure. People’s Court News.

7

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identification are reviewed by the court through the prosecutor’s reading of the case file transcripts. Since most witnesses, victims and experts do not testify in court, the so-called “cross-examination” means that after the prosecutor has read out the transcripts of the case files the defendant and the defender express their opinions on the transcripts instead of cross-examining the witnesses, victims, experts and investigators. After the court hearing, the prosecutor transfers all case files to the court, and the judge can review the case files and verify the evidence after the hearing. In this way, court hearings are a formality, and judges try cases through post-trial review of files and verification of evidence. Why is the adversarial trial procedure evaded in the ordinary procedure? In my opinion, the reason is the cost of the procedures. The “adversarial trial model” requires significant judicial resources in ordinary proceedings where the defendant pleads not guilty. Adversarial trial means that the prosecution and defense present all of their evidence, and witnesses, victims, experts and investigators testify in court and are cross-examined. This also means that the judge determines the admissibility and credibility of the evidence in court with the prosecution and defense’s participation. This type of trial would undoubtedly require enormous human, material, financial, and time resources and would even change the way criminal judges work. This is a challenge to those judges who have long been accustomed to going through the motions in the courtroom and are good at making decisions through “office work”. In addition, Chinese courts are imposing increasingly stringent requirements on the length of time criminal judges spend on cases and the duration of proceedings, based on considerations such as improving efficiency and reducing excessive detentions. According to my research, in many courts, criminal judges must complete the trial of a case within a month and a half after accepting it. In the pattern of the administrative work of the court trial, even a small reform in the trial process will lead to significant changes in the entire criminal justice system. The trial model designed by the Chinese legislature in 1996 based on the AngloAmerican adversarial system is set aside in the “simplified ordinary procedures” and in the ordinary procedures. This suggests that the design of proceedings should consider the affordability of the criminal justice system. An “inconvenient” and “too expensive” system for courts and judges is challenging to implement if the procedures are not compatible with judicial resources and if the reform radically changes the way judges work. The malfunction of the collegiate panel is a classic example of how litigation costs constrain the procedural design. The “collegiate panel system” means that two or more judges or assessors discuss a case and decide by majority rule. Based on Chinese judicial experience, the collegial panel system does not place all judicial decision-making power on a single judge, so multiple judges and jurors adjudicating together can reduce external pressures and influences. Moreover, the collegial panel system allows the panel members to monitor and check each other to avoid judicial injustice and corruption. However, the collegial panel system has not functioned effectively since its establishment. In judicial practice, the system of “decision-making judges” has been widely implemented instead. Formally, three judges or jurors try a criminal case

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together, which seems to imply that the three judges and jurors have the same responsibility for the trial of the case and undertake the same trial work. But in reality, it is the “decision-making judge” who cares about the case and is ultimately responsible for the decision. The case is assigned to a specific judge who is the “decision-making judge” and the person responsible for the case. From the pre-trial preparation, the initial review of the case file, the organization of the court hearing, the post-trial reading of the case file, investigation and verification of evidence, the writing of the trial report, the drafting of the verdict, to the report to the president of the court and the judicial committee, the request to the higher court, all are mainly handled by the “decision-making judge” alone. The other two members on the panel are there only to meet the requirements of the collegial panel system. For a specific case, the decision-making judge is subject to performance evaluation by the court where he sits and the higher court. It is not the panel but the decision-making judge who is held responsible if the higher courts rescind the original judgment and remand the case to the court which originally tried it for retrial. So it seems that the so-called “collegial panel system” has been avoided because the decision-making judge is the actual adjudicator of the case. This has resulted not only in the collegiate panel being a formality, but also in difficulties in implementing the system associated with the collegiate panel system. If the collegial panel system does not work, the “deliberation” process designed for panelists to produce decisions is bound to be shelved. Since the substantive adjudication is in the hands of the decision-making judge, discussion and voting by the panel members are not necessary. Therefore, the “deliberation” procedure is wholly avoided or retains only its formal symbolic meaning. In addition, the people’s assessors in the collegiate panel are even more symbolic and merely make up the numbers when the decisionmaking judge has substantive adjudication power. It can be seen that the collegial panel system and the assessor system are “interdependent”, which means that if the collegial panel system exists in name only, the assessor system will be useless. So why is the collegiate panel system evaded? According to the author’s observation, the collegial panel system is incompatible with the current Chinese judicial system. The administrative management is incompatible with the concept of equal discussion, rational debate, and collective decision-making that characterizes the collegiate panel system. There is little room for the collegial panel system to operate under the current systems, such as presidents approving cases, judicial committees discussing cases, and higher courts instructing lower courts. But does the collegial panel system increase the litigation costs and place an enormous burden on the courts? With crime rates rising and the number of criminal cases remaining high, the courts face increasing pressure to adjudicate cases. The most effective way to increase efficiency and conserve resources is that each judge adjudicates as many cases as possible. The two “assessing judges” spend at most two to three hours for each case, which will not affect the progress of the cases they serve as the “decisionmaking judge.” Moreover, if there are too many cases, the court can arrange for people’s assessors to participate in the panel to reduce the pressure on the judge. After the court hearing, the adjudication is done by the decision-making judge alone. In terms of accountability and performance evaluation, it is much easier for the court

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to evaluate a single judge than multiple panelists. This “one judge for one case” model dramatically reduces the cost of court administration. The court evaluation system is simple and easy to implement because the evaluation criteria are clear and judges understand the responsibilities and risks they face in a particular case. In contrast, if the three members of the panel share responsibility, the court has to allocate the responsibility among the panel members, which is complicated and difficult to operate, and may also lead to disputes and conflicts. Since the collegial panel system is likely to be evaded, and the increased adjudication pressure forces courts to rely on the system of decision-making judges, why adopt the collegial panel system? If a case is tried by one judge or one with two people’s assessors, trial resources can be saved and litigation costs can be reduced. Some would object on the grounds that it would undermine the collegial panel system. However, since the collegial panel system exists in name only in judicial practice, it is better to retain the collegial panel system in a small number of major and difficult cases, while adopting the sole-judge system for most cases. However, we should respond to the problems that may arise from this practice. The formalization of the collegiate panel suggests that we must be careful not to exceed the limits of the criminal justice system when proposing judicial concepts and procedural designs. Otherwise, the courts and judges will evade the process in favor of a convenient, albeit “unorthodox”, system.

4.4 Losses Due to Following Procedures In any society, those who obey the laws should be encouraged, at least not to suffer. It is a self-evident truth. Likewise, investigators, prosecutors and judges who follow legal procedures should be rewarded, or at least not be punished for doing so. It is also a self-evident principle of justice. However, the problem with implementing China’s criminal procedure law is that public security officers, prosecutors and judges may suffer losses from compliance with legal procedures due to the performance evaluation system. Under the state compensation system, public security organs, procuratorates and courts would be held liable for civil compensation because they follow legal procedures. Judicial officers cannot be motivated to follow the legal process if they do not benefit from it and suffer from it. Likewise, if judicial officers are punished simply because their decisions are overturned, they will resort to alternative ways to avoid punishment, even evading criminal procedure laws. This is the third precept of the criminal procedure malfunctions. Those who strictly follow legal procedures are not usually encouraged or rewarded. Judicial officers often suffer losses or are punished because their decisions or rulings are overturned. In other words, whenever a decision or ruling is declared “wrong”, the judicial officer is subject to unfavorable performance evaluation and even punishment, even if he or she has strictly followed the legal procedures. This “performance evaluation” system has two characteristics. First, in the “flow-through

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production line” where work goes from the public security organ to the procuratorate to the court, the subsequent institution determines whether the decision made by the previous institution is correct. In appellate cases, the final decision of the higher court determines whether the decision made by the lower court is correct. Second, even if a judicial officer strictly follows the legal procedures, he or she may suffer a loss if his or her decision is declared “incorrect”. Under this performance evaluation system, judicial officers often evade the proceedings required by law to avoid unfavorable evaluation results. Many courts have established evaluation criteria, such as “number of concluded cases,” “rate of concluded cases,” “appeal rate,” “complaint and petition rate,” “rate of remand and revision by higher courts,” “mediation rate,” and “number of overdue cases”.8 For example, according to the “Annual Trial Work Evaluative Regulations” of a grassroots court, “1 more case concluded plus 0.8 points, 1 less case concluded minus 0.8 points”; the appeal rate of criminal cases is less than 10%, plus 2 points;1 point for no complaints or appeals; 2 points for second trial remand rate below l%, plus 2 points for no remanded cases…9 Points added and deducted are directly related to the performance evaluation. The results of the performance evaluation influence not only judges’ year-end bonuses and merit awards, but also judges’ reputation and promotion, and may even determine whether judges are qualified or not. Since adding points means reward and deducting points means punishment, what effect do the evaluation criteria have on judges’ adjudications? First, evaluation criteria such as “number of cases concluded,” “rate of concluding cases,” and “number of overdue cases” lead judges to conclude as many cases as possible. This will indeed reduce delays and increase litigation efficiency. However, if judges act inappropriately to meet the evaluation criteria, the increase in litigation efficiency and rate of concluded cases may result in a decrease in trial quality and court non-compliance with procedures. We can ask ourselves: among some provisions of the criminal procedure law, such as the pre-trial preparation, witness appearing in court to testify, cross-examination, the rights of defense counsel, the court’s review of the legality of the investigation, and the exclusionary rule, which of them would help to improve litigation efficiency and increase the rate of closing cases? Secondly, the evaluation criteria of “mediation rate” and “withdrawal rate” may be important in private prosecution cases and incidental civil action cases. But this can lead judges to settle cases in an alternative way. However, acceptance of mediation and withdrawal of charges are the parties’ rights and are based on their knowledge and voluntariness. Otherwise, it will deviate from the law’s original purpose of establishing mediation and withdrawal systems. If the judge fails to mediate the case or

8

For more information on the quality management of court trials, see Qu Ying. (2006). Some issues in the classification and management of court personnel: Considerations within the existing institutional framework. Contemporary Judges, 6. 9 This is the annual assessment standard for judges that I learned in 2006 when I conducted research in a basic court in Jiangsu.

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persuade a party to withdraw it, the case should go through a formal trial procedure. However, if “mediation rate” and “withdrawal rate” are the evaluation criteria, judges will influence, induce, or pressure parties to choose alternative dispute resolution. Such an evaluation mechanism often leads to “forced mediation” and “forced withdrawal”, making it difficult to implement the mediation and withdrawal system provided by law. Finally, the “rate of remand and revision by higher courts” leads judges of the first instance to choose various pragmatic methods to reduce remands and revisions by higher courts. For example, the first instance judge seeks instructions from and reports to the appellate judge before the case is decided. In this way, the first instance judge can get a clear indication from the appellate judge and makes his or her decision on that basis. This internal communication between the lower and higher courts undermines the appeal system. As a result, the system of one final appeal exists in name only, and it is difficult to maintain internal independence between the trial and appellate courts. When procuratorates and public security organs implement similar evaluation systems, those responsible for investigating, approving arrests, and prosecuting may bypass legal procedures and adopt alternative methods. For example, according to the Evaluation Regulations of a grassroots procuratorate, “if the court renders a verdict of acquittal,” the responsible prosecutor is “given first-class demerit and deducted six points”. If an arrest is approved, “but after the arrest, the suspect is not charged, the indictment is withdrawn, or the suspect is found not guilty,” the prosecutor who approved the arrest is held responsible and “is given first-class demerit and deducted six points”. In the case where the procuratorate investigates on its own, if “the case is withdrawn after prosecution or not prosecuted, or a verdict of acquittal is rendered,” the prosecutor in charge of the investigation “shall be given first-class demerit and deducted six points”. It is worth noting that “first-degree demerit” is the most severe demerit, and six points is the most severe punishment.10 Almost all local-level procuratorates have made stringent rules regarding case-solving rates, prosecution rates, arrest rates, and non-prosecution rates (especially non-prosecution after arrest), and have created a complicated system of points added and subtracted for this purpose. The performance evaluation system has negatively affected how the procuratorates follow legal procedures. First, the requirement for the rate of solving cases often forces investigators to take “alternative” investigative methods. The procuratorates have limited investigative methods to investigate corruption cases, bribery or dereliction of duty, and covert investigations techniques such as wiretapping, tracking, inducement, secret recording are strictly regulated, so investigators have to rely on pretrial interrogation. Therefore, the so-called “alternative” investigative methods are nothing more than pretrial interrogation methods that violate the law. Second, the requirements for “rates of approved arrests” and “non-prosecution rates” and the unfavorable consequences for prosecutors who fail to meet them 10

These assessment standards are what I learned in March 2007 when I was doing research in a district procuratorate in Beijing.

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prompt prosecutors to reduce the proportion of arrests and non-prosecution, which leads to evasion of the system of approving arrests and non-prosecutions. When the procuratorates limit the proportion of arrests and non-prosecution, many cases where it is legal not to arrest or prosecute someone result in arrests or prosecutions. This has led to the evasion of arrest and prosecution procedures. Third, the most influential evaluation criterion for the investigators and prosecutors is the rate of acquittals. When the procuratorate dismisses a case or makes a non-prosecution decision, the investigators and the prosecutors approving the arrest also receive an unfavorable performance evaluation. Take, for example, a situation where the court issues a not guilty verdict. If the court issues a not guilty verdict, the procuratorate that brings the case will be evaluated unfavorably by the procuratorate, and the chief prosecutor will either receive an unfavorable evaluation or his or her professional development will be negatively affected. As for the prosecutor in charge of the case, negative evaluations or impacts are coming from all directions. As a direct consequence, the prosecutor is subjected to various examinations and must write case reports to explain to the procuratorate’s administrative and supervisory departments. The indirect result is that the prosecutor is denied the opportunity to receive favorable evaluations and promotions, or even transferred to another position.11 Once a not guilty verdict is rendered, the prosecutors in charge of the investigation, arrest and prosecution are subject to an unfavorable performance evaluation. Therefore, when faced with a case where “a verdict of acquittal is rendered,” will the prosecutor follow the legal process and passively accept the court’s verdict of acquittal? To avoid a not guilty verdict, many prosecutors put pressure on the judge with private communications, contacts and persuasion. Under the current judicial system, criminal judges create a close “collegial” relationship with prosecutors. Sometimes, prosecutors and judges may form a beneficial relationship, forming a “community of interest”. In this judicial system, it is difficult for judges to render verdicts of not guilty, even when “the facts are not clear and the evidence is not sufficient.” Doing so risks “disrespecting the prosecutor” or “damaging the prosecutor’s reputation.” The judge may not only offend the prosecutor, but may even be considered a “ renegade” by the local political and legal community. Sometimes, in some places where the procuratorate has a tense relationship with judges, if a judge renders a not guilty 11

When the author conducted research in a grassroots procuratorate, he analyzed two cases in which the court rendered a verdict of acquittal. In the first case, a prosecutor was assigned by the chief prosecutor to act as a public prosecutor. The case was discussed by the prosecution committee and was considered “to be acquitted”, and the chief prosecutor promised the public prosecutor that “it is not your responsibility to be acquitted”. After the court’s acquittal, however, the prosecutor was reviewed by a higher procuratorate, which requested that the prosecutor be suspended from the merit awards, even though she was not ultimately found “responsible”. In another case, a prosecutor decided to prosecute a case of intentional homicide without reporting to the chief prosecutor. The defendant was acquitted by the court on the grounds that he “constituted self-defense”. The prosecutor was found to be “responsible” for the acquittal of the case. The procuratorate decided to transfer the prosecutor from his previous position and to act as a public prosecutor in summary cases.

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verdict, the procuratorate may investigate him for crimes, such as corruption. This is, of course, a scarce and unlikely situation. However, as a “legal supervisory organ”, the procuratorate can, in theory, prosecute judges. More commonly, when “the facts are unclear and the evidence is insufficient,” the court does not render a verdict of acquittal, but instead recommends the procuratorate make a non-prosecution decision, or imposes a lighter sentence. Faced with pressure from the procuratorate and the lower court, the appellate court would not easily render a verdict of acquittal, but instead, rescind the original judgment and remand the case to the court which originally tried it for retrial. And after the case has been remanded to the lower court, the appellate court either rules to grant a nolle prosequi or imposes a lighter sentence. This type of adjudication prevents the prosecutor from being evaluated unfavorably due to a not guilty verdict and prevents the procuratorate from paying state compensation. Some high-impact cases in recent years, such as the Du Peiwu case in Yunnan province, the She Xianglin case in Hubei province, and the Chen Guoqing case in Hebei province,12 have shown that such adjudicative logic exists and is somewhat universal in its application. In cases where “the facts are unclear and the evidence is insufficient”, the court usually does not render a verdict of acquittal according to the criminal procedure law. Instead, the court will impose a lighter sentence or permit the procuratorate to withdraw the prosecution based on the principle of mitigating suspected crimes. This is, of course, a typical example of the principle of “in dubio pro reo” being evaded. The performance evaluation system analyzed above is an essential factor contributing to this procedural malfunction. Prosecutors suffer losses from acquittals and trial court judges suffer losses from having their cases overturned on appeal. In such a system, even if prosecutors or judges are aware of the importance of the legal process, once they realize that they will suffer from strict following of the legal process, they will evade the legal process and system at all costs. Prosecutors and judges do not intentionally produce procedural failures. Instead, they have to evade the legal procedures to avoid unfavorable evaluations.

12

In the Yunnan Du Peiwu case, the defendant, Du Peiwu, was surprisingly sentenced to a suspended death sentence by the Yunnan High Court after being found guilty of killing two police officers, one of whom was also the deputy director of the county public security bureau. In the case of She Xianglin in Hubei, the defendant was found to have killed his wife “with extreme cruelty”, but the case was twice reversed and remanded by the Hubei High Court on the grounds of “unclear facts”, and the defendant was sentenced to 15 years in prison by a local intermediate court. In the case of Chen Guoqing in Hebei, the defendants, including Chen Guoqing, were found guilty of robbing and killing two cab drivers and were sentenced to suspended death sentences or life imprisonment. For a detailed analysis of these cases, see Chen Ruihua. (2005). The theory of procedural sanction. China Legal Publishing House, p. 1, 360.

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4.5 Two Legal Traditions In China’s current criminal procedure law and related judicial interpretations, there are contradictory systems. Sometimes, after the legislator establishes a system, the judicial interpretation issued by the Supreme Court and the Supreme Procuratorate establishes a contradictory system, which makes the former be evaded in judicial practice. In other cases, legislators have imported and transplanted systems from the West that conflict with some current criminal policies. These criminal policies directly impact the cases handled by the public security organs, the procuratorates, and the courts, as well as the procedural rules being used by these organs. This results in malfunctions of the legal system. The malfunction of the “in dubio pro reo” principle is a convincing example. According to the 1996 Criminal Procedure Law, if the defendant cannot be found guilty due to insufficient evidence, the court shall render an acquittal verdict stating that the charges are denied due to insufficient evidence. In the view of legislative decision-makers, the principle of “in dubio pro reo” incorporates the good part of the presumption of innocence.13 However, legislators established contradictory rules in the same criminal procedure law, whether by conscious choice or unintentional neglect. First, in case of “unclear facts and insufficient evidence”, the prosecutor can suggest the court postpone the trial in order to conduct the supplementary investigation. Second, if the facts are unclear or evidence is insufficient in the original judgment, the court of the second instance may modify the original judgment after the case facts are ascertained, or render a ruling to revoke the original judgment and remand the case to the original trial court for retrial. We can ask: since the law stipulates that when the facts are unclear and the evidence is insufficient, the court should make a verdict of not guilty according to the principle of presumption of innocence, why are the procuratorates allowed to conduct supplementary investigation during the court trial? Why does the court of the second instance not render a verdict of acquittal in such cases, but instead send them back for a retrial? Such a system would lead a defendant to be criminally prosecuted multiple times for the same conduct, which is inconsistent with the presumption of innocence. After the Criminal Procedure Law came into force, the Supreme Court and the Supreme Procuratorate formulated judicial interpretations for implementing this law. According to these judicial interpretations, prosecutors can apply to the court to withdraw prosecution if they find that the facts of the case are unclear and the evidence is insufficient during the trial. The court may, upon review, issue a decision to allow the withdrawal of the prosecution. After withdrawing prosecution, the procuratorate can continue the investigation and then refile the case, or it can decide not to prosecute or suggest the public security organ dismiss the case. In other words, the withdrawal of the prosecution system established by the Supreme People’s Court and the Supreme People’s Procuratorate is contrary to the principle of presumption of innocence. Implementing such a withdrawal of the prosecution system has led to the evasion of 13

Gu Angran. (2006). Legislative notes: An introduction to the formulation of some laws in China. Law Press, p. 511.

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the principle of “in dubio pro reo”. According to the above analysis, under the influence of the current evaluation system, once the court renders an acquittal verdict, the prosecutor in charge of the case will be evaluated unfavorably, and the procuratorate may also be affected. This clearly shows that, after the legislature has proposed the principle of “in dubio pro reo”, the principle cannot be effectively implemented if provisions and practices contradict it in the law and judicial interpretations. The malfunction of the newly introduced legal procedures reflects the conflict between two legal values at a deeper level. In recent years, as legislative policymakers, judicial officials, lawyers, and legal scholars have increasingly embraced the experience and concepts of Western criminal justice, the criminal procedure law and its interpretations have incorporated more and more procedural designs from the West. At the same time, however, procedural rules from the West are inconsistent with the Chinese legal tradition and are eventually replaced by various latent rules. The principle of “in dubio pro reo” has been avoided because the principle of presumption of innocence is opposed to state prosecution. In the end, it has not been accepted by the legislature. The legislature and the judiciary believe that if a defendant does commit a crime, he or she should not escape justice. Even if the evidence is insufficient, the court should still issue a guilty verdict. In this regard, the voluntariness of the defendant’s confession is an issue that is worth studying. Theoretically, the legal academy has generally accepted the principle of voluntariness of confessions. The defendant’s right to counsel is established in the Constitution and the Criminal Procedure Law. The current criminal procedure law gives the defendant the status of a party and the right to defense and strictly prohibits obtaining evidence by torture, threats, inducement, deception and other illegal methods. The judicial interpretations of the Supreme Court and the Supreme Procuratorate stipulate that confessions of defendants, witness testimonies and statements of victims obtained through torture, threats, inducements, deceptions and other illegal methods shall not be used as the basis for a procuratorate’s indictment or a court’s conviction. The majority of scholars have advocated the principle that “no one shall be compelled to testify against himself or herself” and the establishment of the principle of voluntariness of confessions with the right to silence as the core. To this end, some scholars suggest reforming the investigative interrogation system, including stipulating the time, place, and number of interrogations, and granting defense lawyers the right to be present during the interrogation. The Supreme People’s Procuratorate and the Public Security Bureau have begun to implement a system of audio and video recording of the entire investigative interrogation process, thereby objectively recording the whole process of interrogating suspects. It should be noted that these reforms ensure the voluntariness of confessions. This idea of reform inspired by Western legal systems is being embraced by most Chinese legal scholars. However, what rules exist in judicial practice when it comes to the issue of defendant confessions? Since China has a closed investigation system, suspects who remain silent or claim innocence may be subjected to relentlessly prolonged interrogation, resulting in coerced confessions. In addition, if suspects remain silent or claim their innocence, investigators may prolong the time needed to handle the case, which

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extends the detention period. The suspect’s silence and plea of not guilty during the investigation, together with the defendant’s refusal to confess guilt in court, may become “attitude evidence” and the basis for the court to impose a heavier sentence on the defendant. The case of Wang Huaizhong, former vice governor of Anhui Province, is a typical example. The main reason for the court to sentence Wang Huaizhong to death is that “the defendant Wang Huaizhong …… faced with conclusive evidence, refused to admit guilt, had a terrible attitude, should be severely punished according to the law”.14 This logic of using “attitude towards admitting guilt” as the basis for aggravated sentencing is approved by the Supreme Court.15 This indicates that, to some extent, the so-called “heavier penalties for those who refuse to admit guilt” are actually “heavier penalties for those who defend themselves”. The suspect and the defendant are subject to unfavorable consequences and even punishment for exercising the right of defense, which is incompatible with the defendant’s status as a party and a litigation subject who has the right to defense under the law.16 Why did the legislator emphasize the status of suspects and defendants as parties and gradually expand their defense rights while retaining provisions such as “suspects should truthfully answer the investigator’s questions”? The logic of exercising the right to defense is that since the court respects the defendants’ right to defense, it should protect their right to argue their innocence, or at least, the defendants should not be punished for claiming their innocence. But why do Chinese courts still commonly use “attitude towards admitting guilt” as a basis for imposing heavier sentences? This contradictory procedural design and judicial practice reflect the ambivalence of legislators and the judiciary towards suspects and defendants. As the main party in the criminal proceedings, the defendant has a dual status in the litigation. On the one hand, as a party, the suspect or defendant has human dignity and enjoys many litigation rights with the right to defense as the core. On the other hand, as a party who knows the facts of the case, the suspect or defendant can help the public security organ, the procuratorate, and the court discovers the facts of the case by providing statements, and even become a source of evidence. The emphasis on the status of suspects and defendants as parties and the strengthening of their right to defense is based on respect for their status as litigation subjects. According to this concept, to maintain the basic “litigation structure” of criminal proceedings, it is necessary to ensure rational confrontation between the defense and the prosecution. This form of proceedings can only be maintained if the suspects or defendants are not 14

Judgment No. 32 of Jinan Intermediate People’s Court of Shandong Province (2003) Ji Xing Er Chu Zi. (2004). Criminal Trial Reference (No. 35). Law Publishing House. 15 According to the Supreme People’s Court, “during the first trial, Wang Huaizhong refused to admit his guilt; during the second trial, Wang Huaizhong confessed to most of the crimes he committed, but still denied other criminal facts that were proven by conclusive evidence, which was not enough to mitigate the punishment.” See Supreme People’s Court (2004) Criminal Review No. 15 Criminal Ruling. (2004). Criminal Trial Reference (No. 35). Law Publishing House. 16 For a reflective review of the issue of the voluntariness of the defendant’s confession, see Chen Ruihua. (2003). Between problems and doctrine: A study of the basic problems of criminal procedure. Renmin University of China Press, Chapter 7.

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forced to admit their crime and can voluntarily decide to plead not guilty or confess guilt. At the same time, however, legislators and courts seem concerned about giving suspects and defendants too strong a right of defense, making it difficult to obtain the critical evidence of a defendant’s confession. Based on this consideration, the criminal procedure law retains the so-called “truthful answer” rule, which obliges the suspect to “truthfully confess the facts of the crime”, and the court may impose severe sentences on defendants who refuse to confess to the crime according to the principle of “heavier penalties for those who refuse to admit guilt”. Almost all legal scholars advocate the principle that “no one shall be compelled to testify against himself or herself” and the procedural protection mechanism centered on the principle of voluntariness of confessions. It is almost impossible for the suspect and the defendant to become the litigation subject if the criminal policy “leniency for those who admit guilt, heavier penalties for those who refuse to admit guilt” still exists, if the suspect still must “answer truthfully”, and if the courts still use the defendant’s “bad attitude towards admitting guilt” as the basis for a heavier sentence. By analyzing the examples of “in dubio pro reo” and “voluntariness of the defendant’s confession”, we can summarize the following rule: the criminal procedure will malfunction if the law provides for contradictory rules of procedure or if such rules conflict with criminal policies.

4.6 Guarantee of Legal Procedures by Judicial System According to my previous analysis, without the procedural sanction mechanism to invalidate conducts that violate procedural rules, the criminal procedure law is unenforceable and the procedural rights that have been violated are unremedied. However, some procedural sanction mechanisms, even if established in statutory law, are themselves faced with the question of how they will be implemented. For example, according to the current criminal procedure law, the court of the second instance may rescind the original judgment and remand the case to the court which originally tried it for retrial if the trial of the court of the first instance violates the legal procedures and “affects the fairness of the trial”. But this system of sanctioning procedural violations through “revocation” is difficult to implement in judicial practice. Another example is that, according to the judicial interpretation of the Supreme Court, courts shall not use oral evidence obtained by investigators by illegal means, such as torture, threats, inducement and deception, as the basis for conviction. However, this procedural sanction against illegal investigations has been evaded in judicial practice.17 Why is it difficult to get the two procedural sanctions mentioned above implemented? Implementing criminal procedures relies on the judicial system. Indeed, criminal procedure law and the judicial system are as closely related as lips and teeth.

17

For the implementation of the “cassation” and “exclusionary rule”, see Chen Ruihua. (2005). The theory of procedural sanction. China Legal Publishing House, p. 235.

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Nearly all criminal procedures are evaded if the relationship between the public security organ, the procuratorate and the court, and the relationship between the upper and lower courts, is dysfunctional. This is another precept of the criminal procedure malfunctions. Let’s return to the two procedural sanction systems mentioned earlier. Implementing the “revocation” system is based on the system of one final appeal. According to the legislator’s plan, the court of the second instance should review not only the factual findings and application of the law by the court of the first instance, but also whether the court of the first instance followed the legal procedures. The court of the second instance should invalidate the first instance decision through revocation and correct this procedural mistake by remanding for a new trial. It can be said that the court of the second instance imposes sanctions on the court of the first instance for violating legal procedures through cassation: by declaring that the court of the first instance violated legal procedures, it publicly condemns the violations; and by remanding the case for retrial, it deters and prevents violations. However, the upper and lower courts in China are not independent, and there is a relationship between the higher and lower courts similar to that of the upper and lower administrative organs. Under this background, a judicial custom has gradually developed whereby lower courts communicate with higher courts, request instructions from higher courts, and report individual cases to higher courts. If the first instance decision reflects the court’s will of the second instance, the appeal is meaningless, and the system of one final appeal exists in name only. Therefore, if the defendant and the defense attorney object to the first instance court’s “procedural violation” and use it as an important ground for appeal, the second instance court often ignores it and upholds the original decision. If we say that the “cassation” system requires a normal appeal system and independence between the higher and lower courts, the implementation of the exclusionary rule relies on whether the court can conduct a judicial review on the legality of the investigation. According to the general interpretation, the court’s exclusion of evidence illegally obtained by investigators means declaring the investigation illegal and invalid and declaring the evidence obtained by this investigation inadmissible. Judicial review of the legality of investigation is the premise of the exclusionary rule. In this way, the court deters illegal investigations by excluding illegal evidence, rather than becoming an “accomplice” to illegal investigations by admitting illegal evidence. Under China’s current judicial system, the courts can, at most, review the legality of administrative penalties imposed by public security organs through administrative proceedings. However, the courts cannot review the criminal investigations conducted by the public security organs and the procuratorates. In China’s criminal judicial practice, courts can neither review the legality of specialized investigations such as search, seizure, identification, crime scene investigation, and examination, nor the legality of compulsory measures such as detention, arrest, and bail. If the defense raise objection to the legality of these investigations, the courts generally do not accept it. In such cases, the courts generally reject the defense’s objection to the legality of the prosecution’s evidence. Even if the court accepts the objection, the most it can do is a formal review. The court can neither impose on the prosecutor the

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“burden of proving the legality of the investigation” nor can it require the investigator to testify in court. Instead, the court usually accepts the written statement submitted by the investigator to prove the legality of the investigation. It can be argued that the court’s failure to conduct a judicial review of the legitimacy of investigations is an important reason why the exclusionary rule is evaded. The above two examples of procedure malfunctions of procedural sanctions reveal the vital influence of the justice system on criminal procedure. Unfortunately, the Chinese legislature and the judiciary often ignore the judicial system that ensures the implementation of these procedural rules when they create criminal procedural rules, either because it is difficult to change China’s particular judicial system or because they do not recognize it. As a result, procedural rules of Western origin, once established in Chinese law, are often unenforceable and inoperable due to the constraints of the judicial system. The system for lawyers to meet with suspects in custody in the 1996 Criminal Procedure Law is a good example. The legislature believes that by meeting with suspects in custody during the investigation stage, lawyers can learn about the case as early as possible, prepare for the defense in court, and inhibit illegal evidence collection by investigators. However, the suspect with whom the lawyer is meeting is “in custody”, i.e., in a detention center under the custody of the public security organs. Under China’s current judicial system, most criminal cases are investigated by the public security organs, which have investigative powers and detention powers for these cases. If a lawyer wants to meet with a suspect in custody, he or she has to apply to a detention center affiliated with the public security organs. Since the public security organs are responsible for investigating most criminal cases, the detention centers are bound to impose various restrictions on lawyers’ meetings, such as obstructing lawyers’ meetings and wiretapping or secretly recording lawyers’ meetings with suspects. Not only that, but lawyers must obtain approval from the public security organs to meet with suspects in custody. If the application is denied, the lawyer can seek a remedy from the public security organs, not the court. If the public security organs restrict the rights of lawyers, neither the courts nor the procuratorates can provide relief for lawyers. As a result, the lawyer’s right to meet with the suspect becomes the right to “apply for the public security organs’ approval to meet the suspect”. It is difficult for lawyers to meet with suspects in custody because the current judicial system is the bottleneck restricting its implementation. Since the public security authorities are responsible for investigating cases and detaining suspects, lawyers have to obtain approval from the public security authorities to meet with suspects. Since the courts are not involved in pre-trial proceedings, lawyers apply to the investigating authorities not only for access to suspects, but also for relief. Under such a judicial system, the difficulty of lawyers meeting with suspects will continue to exist, regardless of what the law says about it. As we reform the litigation system by expanding the lawyer’s rights, we must reflect on this: why does the lawyer’s right to meet with the suspect become the right to “apply for the public security organs’ approval to meet the suspect”?

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Almost all jurisprudential ideas for transforming China’s criminal procedure system have been premised on the “principle of judicial finality”. The vast majority of legal scholars agree that all proceedings involving the deprivation or restriction of personal liberty and other fundamental rights require the authorization of a court as a “neutral adjudicator”. Suspects and defendants whom procedural violations have harmed can apply to a neutral court for judicial relief. This requires pre-trial judicial review and a warrant system, a Chinese style system of “investigating judges”, “pre-trial judges” and even “magistrate judges” to ensure that investigations and prosecutions are subject to judicial review in a modern system of judicial adjudication. The reform of compulsory measures, the legal restrictions on mandatory investigation, and the implementation of the exclusionary rule are all predicated on the intervention of the courts. Under China’s current criminal justice system, judges are not involved in any pre-trial proceedings, but only decide on the substantive issues after it has been accepted. As a result, throughout the pre-trial period, suspects and defense attorneys are left to carry out their activities without the participation of a “neutral adjudicator”. Whether it is detention, bail, residential confinement and other compulsory measures, or search, seizure, impounding, freezing, crime scene investigation, examination, identification and other investigative acts, all of them are authorized and conducted by the investigative authorities themselves. The investigation process does not have the minimum “litigation form”, but has the characteristics of “administrative punishment”. In addition, the current criminal justice system does not have a mechanism for judicial review of the legality of proceedings, making it impossible for the courts to review the legality of the investigation and invalidate illegal investigations and prosecutions at the trial. Consequently, it is difficult to implement the exclusionary rule, and concepts such as the “admissibility” of prosecution evidence are only abstract theories, but useless in judicial practice. If the legality of the investigation is not subject to judicial review, what is the point of admissibility of the prosecution’s evidence? The problems go far beyond that. Under the current criminal justice system, the procuratorates, as “legal supervisory organs,” are empowered to supervise the legality of investigations and trials and correct procedural violations. This means that the law gives the prosecutor the authority to uphold the implementation of criminal procedure law. However, the procuratorial authorities are responsible for investigating cases of crimes committed by state public officials. As the state prosecution, the prosecution is an interested party in a criminal case and wishes to obtain a favorable outcome. This suggests that the system that empowers procuratorates to uphold the implementation of procedural law is flawed. Without reforming the judicial system, it is impossible to introduce Western countries’ judicial review, warrant system, and judicial remedy mechanisms to make the courts the line of defense in upholding justice.

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4.7 Conclusion This chapter explains the primary causes of criminal procedure malfunctions from five aspects and proposes the five precepts. This discussion is preliminary, with a few “hypotheses” generalized from several examples where procedural rules have been circumvented. We need to conduct an in-depth empirical examination to make a comprehensive and systematic argument for these five precepts. The causal relationship between the criminal procedure malfunctions and the five precepts can be convincingly revealed. However, we can find the “deep structure” that does not easily change through the phenomenon of circumvented criminal procedure, thus revealing the general rules of criminal procedure malfunctions. From this perspective, this preliminary study is meaningful and can serve as a precursor for further research. The criminal procedure malfunctions mean that the investigative authorities, the procuratorates and the courts circumvent legal procedures, making it impossible to enforce criminal procedure laws. While the formal legal process has been avoided, the informal latent rules are implemented in judicial practice. Why do the investigating authorities, the procuratorates and the courts refuse to implement formal legal procedures? This is caused, first and foremost, by the fact that the criminal procedure law itself is not operational and remediable. There is no system of procedural sanctions for procedural violations in criminal procedure law, and the courts refuse to review the legality of investigation, prosecution and trial. Therefore, investigations, prosecutions and trials that violate legal procedures are neither reviewed nor held legally accountable. The criminal procedure malfunctions are also closely linked to the high cost of implementing some procedural rules. We have demonstrated through the examples of the collegiate panel system and trial model reform that reform cannot be implemented if the cost of the process exceeds the limits of what the public security organs, the procuratorates, and the courts can afford. This reminds us that it is essential to consider the cost of reform when establishing judicial reform goals. By analyzing the criminal procedure malfunctions, we identify the exogenous variable of the conflict between different judicial traditions. The problems with the principle of “in dubio pro reo” and the “voluntariness of the defendant’s confession” rule show that the systems from the West cannot be implemented in China. In contrast, the latent rules prevail in practice. Indeed, if a system goes against the prevailing values in judicial practice, such a system, no matter where it is transplanted, is unlikely to be implemented. Judicial officers avoid specific criminal procedures because there is a direct loss of benefit in complying with these rules. According to the principles of criminal procedure law, investigators, prosecutors, and judges should not have an interest in the outcome of the case. Otherwise, they should recuse themselves. However, according to the performance evaluation system of the public security organs, the procuratorates and the courts, the decision of the subsequent organ on the case directly determines whether the previous organ has made a “mistake” and therefore affects the performance evaluation results of the previous organ. The consequence of this

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evaluation system is that investigators, prosecutors, and judges aim at favorable evaluation results rather than implementing legal procedures as the goal of their procedural activities. Finally, the current judicial system is another factor contributing to the criminal procedure malfunctions. Without a judicial system that regulates the relationship between the investigative, prosecutorial and judicial authorities, many procedures of Western origin would have no foundation to be implemented. At present, the judicial system has become a bottleneck that restricts the reform of the criminal procedure system. Without a substantial reform of the judicial system, there is no room for changes to the criminal procedure law. The procedural system that has been established is circumvented due to the lack of judicial system guarantees. Solving the problem of the criminal procedure malfunctions is the primary issue of the day. For scholars who apply social science methods to the study of legal issues, criminal procedure malfunctions is the perfect sample for drawing lessons from the procedural legal system. For those legal scholars interested in modernizing China’s legal system, before choosing which Western legal systems to introduce into Chinese criminal procedure law, they should ask themselves: Can these systems be implemented without being circumvented?

Chapter 5

Criminal Action in Rem

5.1 Introduction Recovering money and property in criminal cases involves the definition of property in substantive law and due process in procedural law. However, there is no complete system for recovering money and property in the Criminal Law and the Criminal Procedure Law. According to China’s criminal law, all money and property illegally obtained by a criminal should be recovered, or compensation should be ordered; the lawful property of the victim should be returned without delay, and contraband and possessions of the criminal that are used in the commission of the crime will be confiscated. However, there is no clear explanation for “money and property illegally obtained,” “contraband,” and “possessions of the criminal that are used in the commission of the crime”. According to the Criminal Procedure Law, the public security organ may, as needed for criminal investigation, seize, impound, or freeze the property of a suspect, or inquire about or freeze his deposits. If the procurator applies for recovering the money and property illegally obtained, there is no special process for this issue in the trial. The decision on the money and property is made after trial without court investigations and court debate. The lack of procedure for recovering the money and property has caused the problem of violation of property rights in practice. Authoritative research shows the illegal disposal of the property mainly includes the following: sealing, impounding or freezing property without filing a case; sealing, impounding and freezing lawful property and refusing to return it; freezing corporate accounts without legal basis. This has not only violated property rights, but also damaged judicial credibility. To a certain extent, the illegal disposal of property is regarded as a sign of judicial injustice.1

1

Zhang Xianming. (2015, March 5). Effectively regulating the disposal of property in criminal procedures—the head of the central judicial reform office answers reporters’ questions on the opinions on further regulating the disposal of property involved in criminal procedures. People’s Court Daily.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_5

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To solve these problems, the decision-makers of judicial system reform have included regulation of the recovery of property as an important issue. Since 2012, the legislature has established some new procedural rules on the recovery of property, and the judicial organs have also made some experiments. For example, a judicial interpretation issued by the Supreme People’s Court in 2012 established a “system of objection by a third party”, requiring judges to ascertain ownership and legality of the property and review the third party’s objection.2 For another example, in December 2014, the Central-leading group’s guideline on property in criminal cases for comprehensively deepening reform established a “system for interested parties to participate in criminal procedure”. For the interested party, including a “bona fide third party”, the public security organ and the procuratorate should inform them of their litigation rights, and the court should notify them to participate in the procedure to hear their opinions.3 For another example, in 2010, the Beijing Higher People’s Court established a “system for victims’ representatives to participate in court trial” in economic crime cases. According to this system, in economic crimes cases involving numerous victims, such as illegally taking in deposits from the general public and unlawfully raising funds using fraud, the victims may elect representatives from among themselves to proceed with the litigation. The representatives may express their opinions on the property and participate in returning the property.4 After the above reforms, the procedure for recovering property involved in the case has improved significantly. However, these experimental reforms have not been transformed into laws, nor have they led to a significant change in the system of criminal property recovery. The court still recovers the property without a hearing. Building a special procedure for recovering property involved in the case is one of the major criminal justice reforms.5 The 2012 Criminal Procedure Law established the “procedure for confiscating illegal property”, which is a big step in the reform of the property recovery system. This procedure applies to major legal criminal cases where the suspect or defendant has escaped or died. Then the Supreme People’s Court established a special procedure for confiscation of property for the cases in absentia.6 This marks the establishment of criminal action in rem. 2

See “Interpretation on the Application of the Criminal Procedure Law of the People’s Republic of China” issued by the Supreme People’s Court on December 20, 2012, Article 364. 3 See “Opinions on Further Regulating the Disposal of Property Involved in Criminal Procedures” issued by the General Office of the CPC Central Committee and the General Office of the State Council on January 24, 2015, Article 12. 4 Li Chen. (2018). The relief of victims’ rights and interests in cases of public-related economic crimes. People’s Procuratorate. 8; Key Research Group Of Beijing Second Intermediate People’s Court. (2013). Research on cases of pubic-related economic crimes. People’s Justice, 1. 5 Liu Jingkun. (2014, February 17). How to standardize the disposal of case-involved property. People’s Court Daily; Wen Xiaojie. (2017). The perfection of the disposal of case-involved property in China—Taking the protection of citizens’ property rights as a perspective. Application of Law, 13. 6 Pei Xianding, Wang Xiaodong, Liu Xiaohu. (2017). Interpretation of key difficult issues of illegal income confiscation procedures. Application of Law, 13.

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To reconstruct the property recovery system, a mature legal theory is needed. In the past, jurisprudence has taken the approach of legal interpretation and legislation jurisprudence to study this issue. Some studies focus on the theoretical interpretation of the property involved in the case,7 while others propose suggestions for property disposal litigation in light of the problems in the property disposal process.8 As the research progresses, some scholars analyze the constraints on the system from a theoretical perspective. Some researchers have proposed establishing action in rem in criminal procedure,9 and some scholars have proposed the idea of constructing an independent property-related procedure.10 This chapter analyzes action in rem in criminal procedure, starting from the procedure for recovering property involved in the case. It should be noted that “criminal action in rem” is a new concept with various explanations. This chapter holds that criminal action in rem is parallel to criminal action in personam and different from incidental civil action, and refers to the prosecution filed by the procuratorate on behalf of the state to recover illegally obtained property. An incidental civil action brought by the victim or the procuratorate is a civil tort lawsuit for economic loss caused by the defendant’s criminal behavior rather than criminal action in rem. Only the lawsuit filed by the procuratorate on behalf of the state for the recovery of the property is included in the scope of criminal action in rem. The 2018 Code of Criminal Procedure, despite establishing the trial in absentia, did not make any adjustments to the procedure for the recovery of property. Trial in absentia applies to major cases where the defendant is outside China. The court may hear the case and decide on the conviction and sentence in the defendant’s absence. There is no special procedure for the recovery of property in such cases. This chapter takes the procedure for confiscating illegal property where the defendant has escaped or died as an analysis sample to study the basic characteristics of criminal action in rem. Based on the reform trend of the procedure for recovering property involved in the case, this chapter analyzes the legitimacy of criminal action in rem, the relationship between the action in rem and the action in personam, the litigation status of victims and interested parties, and the procedure for the action in rem.

7

Sun Guoxiang. (2015). Study on the disposal of property involved in criminal procedure. People’s Procuratorate, 9. 8 Wen Xiaojie. (2017). The perfection of the disposal of case-involved property in China—Taking the protection of citizens’ property rights as a perspective. Application of Law, 13. 9 Fang Baxing. (2017). Action in rem in criminal procedure. Journal of East China University of Political Science and Law, 5. 10 Qiao Yu. (2018). Procedures for the disposal of property involved in criminal procedure. China Legal Publishing House, p. 155.

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5.2 Nature of Criminal Action in Rem When a crime is committed, the procuratorate should initiate public prosecution, including “conviction prosecution” and “sentencing prosecution”. The former is to request the court to convict the defendant, while the latter requests the court to punish the defendant. Both aim to punish crimes. However, if the defendant has escaped or died, the conviction and sentencing processes must be suspended. The procuratorate may apply with the court to confiscate illegal property. After accepting the application, the court will make a public announcement. The interested parties have the right to apply for participating in the procedure. If the interested parties participate in the procedure, the court will hold a court session to hear the application. If no party participates in the procedure, the court may hear the application without holding a session. The court should render a ruling to confiscate property that is confirmed illegal, except that which is legally returned to the victims.11 Both the conviction prosecution and the sentencing prosecution aim to hold criminals liable, so they are regarded as actions in personam. By comparison, the application filed by the procuratorate to the court for confiscation of illegal property is aimed at recovering property, so it is regarded as action in rem.12 In the following, we take the procedure for confiscating illegal property as an example to study the characteristics of action in rem.

5.2.1 Procuratorates Initiate the Action In criminal procedure, the procuratorate is responsible for initiating a public prosecution in the court to punish the criminals, which aims to protect public security. In action in rem, although the procuratorate has to suspend the action against the defendant who has escaped or died, it can still apply to confiscate illegal property. This action recovers the losses suffered by the state and deprives the defendant of the ability to commit crime to safeguard national interests and social public interests.

11

Liu Xiaohu, Zhang Yu. (2018). The operational specification of the procedure of confiscation of illegal proceeds. People’s Justice, 1. 12 Xiong Qiuhong. (2015). Reviewing the disposal of property involved in criminal procedures. People’s Procuratorate, 13; Dai Changlin. (2014). Regulating the procedure for disposing of property involved in criminal cases according to law. China Law Review, 2.

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5.2.2 The Object of Action in Rem is the Claim for Confiscating Illegal Property The object of the action is the claim made by the plaintiff to the court. In the action in personam, the prosecution requests the court to convict and punish the defendant. In action in rem, however, the prosecution asks the court to confiscate illegal property, which includes three parts: first, the defendant commits the crime; second, the property is obtained by crime; third, the property should be confiscated. The prerequisite for confiscating property is that the crime is serious. The procuratorate cannot initiate a conviction or sentencing prosecution when the accused has escaped or died. However, to prove that the property involved in the case is illegal, the procuratorate must prove that a serious crime such as embezzlement or bribery has been committed. The procuratorate needs only meet the standard of preponderance of probability or the highest degree of probability. This burden of proof is more accessible than the “beyond a reasonable doubt” standard applied to criminal convictions.13 Also, the procuratorate must prove that the defendant’s property is involved in criminal activity. This illegal property is divided into three categories: illegal property and its fruits, contraband, and instruments of crime. Jurisprudence and judicial practice debate the nature and scope of these three types of property.14 The illegal property and its fruits are the proceeds of criminal activity. Contraband refers to any illegal item to be produced, purchased or sold, transported and possessed, including guns, ammunition, counterfeit money, explosives, obscene items, drugs, etc.15 Instruments of crime refer to money or objects used for criminal purposes. The confiscation of these three types of involved property is mainly based on the consideration of restoring the country’s economic losses and depriving the defendant of the ability to commit a crime again. The purpose of forfeiture of illegal property is to safeguard the national interest and the public interest. Some property should not be forfeited. First, the victim’s property should be returned. Second, the property of persons involved in civil transactions with the defendant should not be forfeited. While requesting the court to order forfeiture of illegal property, the procuratorate should protect the legal property of the victim and that of any third party.16

13

Pei Xianding, Wang Xiaodong, Liu Xiaohu. (2018, March 21). Three types of proof standards for illegal income confiscation procedures. People’s Court Daily. 14 Wu, Chengjie. (2014). Review and disposal of property involved in criminal cases. People’s Justice, 13. 15 Sun Guoxiang. (2015). Study on the disposal of property involved in criminal procedure. People’s Procuratorate, 9. 16 Li Changkun. (2017). The definition of illegal proceeds and other case-involved property—on the understanding of article 6 of the judicial interpretation of confiscation procedures. Application of Law, 13.

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5.2.3 Action in Rem Has a Unique Litigation Structure There is a typical tripartite structure of prosecution, defense and trial in the traditional action in personam. In cases with victims, the victims routinely participate in the litigation as party to the prosecution case, but also have independent litigation status, so there are four parties in cases involving victims. However, in practice, the victim is often ignored by the court and cannot participate in the trial. As a result, this kind of action has a tripartite structure. The litigation structure of the action in rem is more complicated than that of the action in personam. The defendant does not participate in the forfeiture of property because the procedure is initiated only when the defendant has escaped or died. When the interested party participates in the procedure, the parties in court are, instead of the prosecutor and defendant, the prosecutor and the interested party. Therefore, it is a new tripartite litigation structure involving the interested party, the procuratorate and the judge However, the interests of different members of the interested party do not always coincide. Sometimes there is a conflict of interest between them, so they may file conflicting claims.17 However, if the interested party does not participate in the procedure, the judge reviews and confirms the prosecution’s application without holding a session. Therefore, it is a two-party litigation structure involving the procuratorate and the judge.

5.2.4 Application of Mechanism of Proof in Civil Procedure to Action in Rem The action in personam follows the principle of presumption of innocence because a person’s freedom is on the line. The prosecutor must convince the judge by proof beyond a reasonable doubt, ensuring that the facts are clear and evidence is sufficient. On the contrary, the action in rem does not involve the accused’s criminal responsibility, so it is not subject to the presumption of innocence. The procuratorate must prove that a serious crime such as embezzlement or bribery has been committed and the property involved is illegal, but it needs only to meet the standard of preponderance of probability or the highest degree of probability of a civil suit rather than the highest standard.18 At the same time, the relatives of the defendant and other interested parties have the right to apply to participate in the procedure to request the ownership of the property, but they are required to provide evidence to support their claims. After the standard of the highest degree of probability is met, the burden of proof shifts back to the prosecution. 17

Dai Changlin. (2014). Regulating the procedure for disposing of property involved in criminal cases according to law. China Law Review, 2. 18 Pei Xianding, Wang Xiaodong, Liu Xiaohu. (2017). Interpretation of key difficult issues of illegal income confiscation procedures. Application of Law, 13.

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5.3 Action in Rem with Defendants Present The procedure of forfeiture of illegal property has been established in the Criminal Procedure Law. However, it has limitations.19 First, it is applied only to cases where the defendant has escaped or died. This can not solve most of the problems in the procedure for recovering property involved in the case. Second, only the defendant’s relatives and other interested parties have the right to participate in the procedure for confiscating illegal property. As a result, the victim cannot participate in the procedure. Since 2017, the Supreme Court has applied the procedure for confiscating illegal property to more crimes, including crimes endangering national security, financial fraud, telecom fraud, and online fraud, all of which involve victims. However, the victim’s right to participate in the lawsuit is ignored by the legislature and the judiciary.20 Most legal professionals believe that the procedure for confiscating illegal property should be applied to cases where the defendant is present. Why? We will analyze this issue from four aspects. First, it restricts the discretion of the court in the recovery and confiscation of property, so as to avoid arbitrary deprivation of personal legal property. Second, it maintains tri-partite participation in litigation to achieve procedural justice. Third, it restricts the power of investigative authorities to dispose of property involved in the case before the trial to ensure the realization of the concept of trial centrism. Fourth, it resolves the problem of recovery of property to enhance the credibility of criminal justice.

5.3.1 Restriction on Judicial Discretion In China’s criminal law, forfeiture of property is not a criminal punishment. In practice, the procuratorate requests the court to order forfeiture of illegal property in the indictment, and the court makes a rule on it without a hearing. As a result, the court’s decision is based purely on the prosecution’s files. The judge cannot confirm the scope of illegal property and its ownership. This decision-making method for the disposal of property involved in the case will inevitably lead to the abuse of the court’s discretion, and the legal property of interested parties cannot be protected.21 19

According to a Supreme People’s Court judge, since the establishment of the confiscation system of illegal income in the Criminal Procedure Law in 2012, until the end of 2016, courts at all levels nationwide had accepted 38 cases of confiscation of illegal income, “the vast majority of which are still in the state of announcement and extension of the trial period, and it is difficult to move forward”. See Zhang Di Yang. (2018, May 3). Criminal procedure law revision to introduce trial in absentia: “corrupt officials” run, trial hard to Escape. Southern Weekend. 20 Dai Changlin. (2014). Regulating the procedure for disposing of property involved in criminal cases according to law. China Law Review, 2. 21 Hu Hongjun, Wang Biao. (2014). Research on the trial of property involved in criminal cases. People’s Justice, 1.

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A special procedure for forfeiture of illegal property is needed to limit the court’s discretion. All interested parties can participate in the trial, so the judge can receive information about the illegal property by hearing the opinions of all parties instead of by the prosecution’s files. Thus, by hearing the case the judge can resolve the dispute over property ownership and make a convincing decision. Experience has shown that this adversarial, open and transparent court trial can restrict judicial discretion in property forfeiture.

5.3.2 Maintenance of Procedural Justice There is no action in rem in the Criminal Procedure Law, not only because forfeiture is not a punishment in criminal law, but because there is the idea of paternalism in our law tradition. Under this concept, the judicial organs lead litigation procedures according to their powers, which is more helpful to safeguard the legitimate rights of all parties. Judges are expected to protect the defendant, the victim and the interested parties, like parents take care of their kids. So, this judicial idea advocates the ex officio doctrine, and interested parties have no right to participate in the litigation. However, experience shows that the concept of paternalism cannot provide theoretical support for the protection of individual rights and interests. The predicament of incidental civil action shows that the court focuses on enforcing decisions rather than safeguarding the interests of interested parties, so as to maintain the authority of judicial adjudication.22 The practice has shown that victims often do not receive adequate compensation when they are denied the opportunity to participate in litigation. In court hearings where the victims are absent, the victims are often forgotten and suffer a “second injury” from the judicial process. In action in rem with the defendant present, the issue of property forfeiture is heard in the court trial, and interested parties can participate in the lawsuit. After the prosecution, the people closely related to the recovery of property are mainly the defendant, the victim, and other interested parties. When the procuratorate requests the court to order forfeiture of illegal property, the defendant’s property is at risk. The property confirmed by the court to be illegal should be forfeited. However, if the legal property of the defendant and his close relatives is unreasonably confirmed illegal, the defendant’s rights are violated. Unlike the defendant, the victim can receive compensation and his or her legal property after the court has recovered the property. Only by participating in the lawsuit can the victim present evidence and debate, understand the property recovery process, participate in the distribution of property, and thus influence the decision. In addition to the defendant and the victim, there may be other interested parties who either claim ownership of the property, have a legal relationship with the property such as security, lien or mortgage, or are bona fide third parties. Only when the court holds a hearing to recover property, can the interested party participate in the lawsuit and express their opinions. 22

Chen Ruihua. (2018). The Chinese model of criminal procedure (3rd ed.). Law Press, p. 132.

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The procedure for confiscating illegal property in cases where the defendant is absent shows that action in rem enables the defendant, the victim and other interested parties to participate in the procedure of property recovery, to make claims, and to present evidence and debate, so as to influence the court’s decision on the property. In a word, action in rem is the way to get rid of the patriarchal concept and achieve procedural justice.

5.3.3 Realization of Trial Centrism. In the procedure of recovering property, not only does the court abuse its discretion, but also the investigative organs arbitrarily seal up, seize, freeze property and even illegally auction and realize the property. The investigative organs arbitrarily dispose of the legal property of the defendant and bona fide third parties, and the court confirms the result of such illegal disposal of property through a formal court hearing and judicial decision. Like setting up the procedure of property recovery, it is also an urgent task of judicial reform to solve the problem of the arbitrary disposal of property by investigative organs. How effective is the action in rem in solving the above problem? Frankly speaking, the current judicial system is the root cause of this problem. To solve this problem, the investigative organs should not be given the power to seal up, seize, freeze, auction, and realize the property, a judicial review system should be set up so that the court can issue writs through litigation procedures, and interested parties should be given the opportunity for judicial remedy. Even if the judicial system does not change, action in rem enables the courts to make decisions on the property through court hearings, which can limit the investigative agencies’ power to dispose of the property. The decision of an investigative organ to dispose of the property before a trial is not final. In a court hearing for the recovery of property, the prosecution bears the burden of proving the illegality of the property. The court hears and decides the legality of the investigating organ’s disposal of the property. Investigators are required to testify in court about the disposition of property when necessary. The court determines the scope of the illegal property and its fruits, contraband, and instruments of crime, the ownership of the property, whether the interested party is a “bona fide third party” and the legality of the civil transaction with the defendant. To a certain extent, the action in rem prompts the court to consider the scope and nature of the property involved in the case, rather than directly confirming the procuratorate’s application for confiscation of property. This encourages the procuratorate to reasonably identify contraband and instruments of crime to avoid depriving interested parties of their legal property. In a nutshell, the action in rem is a sign of trial centralism reform and the court’s restraint on the property disposal by the investigative organ.

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5.3.4 Restoration of Judicial Credibility In China, investigative organs, procuratorates and courts have a stake in the judgment of cases because of our appropriation system. The properties sealed, seized and frozen by the investigative organs and confiscated by the courts are nominally turned over to the state treasury, but are handed over to the public security organs, procuratorates and courts “on a pro rata basis”.23 They can obtain benefits by handling cases, which is a big problem that causes great trouble to the criminal justice system and is difficult to solve. This is why the investigative authorities arbitrarily seize, detain and freeze property, and why the courts arbitrarily turn the property disposed of by the investigative organs into objects of recovery. Action in rem enables defendants, victims and other interested parties to participate in judicial decision-making and reduces backroom deals and private transactions to recover the property. Experience shows that if the court examines the property involved in the case, it is easy to distinguish the part that is related to the crime from the part that is not, to separate the legitimate property of bona fide third parties, and filter out the amount that needs to be refunded and returned from the illegal property.24 Action in rem helps enhance the trust and respect of defendants, victims, and other interested parties in the judicial process. Even if the court rules against them, the procedure for recovering property involved in the case may reduce the grievances of the “loser” and defuse unnecessary psychological conflicts. From the perspective of society, action in rem contributes to the establishment of a just legal order, so that the objective of litigation returns to the protection of national and public interests rather than the interests of the handling organs. The court should explain that the confiscation of illegal property and its fruits are to recover the economic loss of the state, the confiscation of contraband and tools of crime is to make the offender unable to commit further crimes, and it is reasonable and necessary to compensate the victims for their losses and return their legal property. More importantly, action in rem can build the environment of respecting the legal property of individuals and maintaining the normal order of civil transactions, so that personal property is not infringed and the legality of the company’s civil transactions is recognized. Therefore, restraining the power to dispose of the property involved in a case can make the whole society feel safe in civil transactions. In this way, the public’s trust in the judiciary and the judicial process can hopefully be restored.

23

Xia, Pengcheng, Li, Xin, Dong, Xiaolong. (2009). Reflections on the funding system of political and legal organs. Local Finance Research, 7. 24 The return of the property involved in the Yuan Chengjia case in Benxi, Liaoning Province, is a typical case in recent years. See Xu Hao. (2017, December 11). On what basis did Yuan Chengjia apply for huge state compensation of 3.7 billion? China Economic Weekly.

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5.4 Two Models of Action in Rem The necessity of action in rem in cases where the defendant is present is argued. How should the claim in rem be constructed? In cases where a criminal suspect or defendant escapes or dies, the procuratorates apply confiscation of illegal property, thus initiating the court’s procedure to recover the property involved in the case. In such cases, the action in rem is relatively independent, and cannot be attached to the action in personam. In the case where the defendant is present, the procedure in which an outsider raises an objection and an interested party participates in the lawsuit demonstrates that only when the defendant, the victim or other interested party files an application or an objection, is it necessary for the court to hold a special hearing for recovery of property. In the absence of any objection to the ownership of the property, such a hearing may not be necessary. Based on the above considerations, we can establish two models for action in rem based on whether the interested party raises an objection. The first is an independent action in rem. When the defendant, the victim, or other interested parties have filed an objection or an application for participation in litigation, the court conducts a relatively independent procedure for recovering property involved in the case. The second is the incidental action in rem, that is, when the defendant and the victim have not raised any objection to the recovery of the property, and no other interested parties have raised any objection to the ownership of the property, the court hears and decides property recovery and convictions together, rather than conducting separate procedure for recovering property involved in the case.

5.4.1 Independent Action in Rem According to the concept of “independent action in rem”, we can divide the criminal trial into two relatively independent parts: the hearing on conviction and sentence and the hearing for the recovery of property. The former is commonly referred to as action in personam, which is initiated by the prosecution by filing an indictment and a sentencing suggestion, with the court hearing the issue of conviction and the issue of sentencing separately. The latter is what we call an action in rem, initiated by the procuratorates by applying the recovery of property, with the court hearing whether the property is obtained illegally or is contraband or instrument of crime. After both parts of the trial are completed, the court rules on the conviction and sentence and the recovery of property together. The prerequisite for initiating an independent action in rem is that the defendant, victim, or other interested person raises an objection to the property, or applies to participate in the procedure for recovering property involved in the case. In principle, such objections and applications can either be filed before the court hearing or before the conviction and sentencing proceedings are completed. To enable interested parties to exercise their procedural rights, the court should serve the application for the

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recovery of property together with the indictment and the sentencing suggestion to the defendant, the victim and the defender. The court issues a public announcement and sets an announcement period by referring to the “special procedure for confiscation of property”. The announcement period stretches until the end of the conviction and sentencing hearing. Before the end of the announcement period, the defendant, the victim and other interested parties can file objections and applications. If any of the parties mentioned above file an objection or application, the court shall hear the issue of recovery of the property. There are two kinds of objections raised by the defendant. First, the defendant pleads not guilty and therefore opposes the prosecution’s application for the recovery of property. Second, the defendant admits guilt but claims that the property sought to be recovered by the procuratorates is not obtained illegally or is not contraband or an instrument of crime. In raising either of these objections, the defendant may file a motion to participate in the procedure for recovering property involved in the case. There are two kinds of objections generally raised by the victim. First, the victim believes that the investigating authorities have not fulfilled their responsibility to seize, impound and freeze the illegal property. Second, the property applied for recovery by the procuratorates is not enough to recover all the defendant’s illegal gains. Therefore, the victim may apply to participate in the property recovery process and subsequent property distribution process to obtain compensation or property. Other interested parties include the defendant’s close relatives and other persons and entities claiming rights to the recovered property. The rights they claim include ownership, liens, security rights, etc. If an interested party claims ownership, lien, or security interest in the property sought by the procuratorates, he or she may file an objection and apply for participation in the property recovery procedures. Generally, the announcement period ends after the conviction and sentencing hearing. The court should adjourn before the end of the announcement period to allow defendants, victims or other interested parties to file objections or applications for participation in the procedure for recovering property involved in the case. Whenever an objection or application is filed, the court will hear the recovery of the property. Five parties participate in the procedure for recovering property involved in the case, referring to the “special procedure for confiscation of property” system. The prosecutor reads the application, and the victim, the defendant and other interested parties give their opinions. The hearing is divided into two stages: court investigation and court debate. During the court investigation, the prosecution adduces evidence that the property is illegal, contraband, or an instrument of crime, and the victim, defendant, and other interested parties cross-examine, and then present their own evidence. During the court debate, the prosecution, the victim, the defendant and other interested parties present their opinions and debate with each other. In the mechanism of proof, referring to the “special procedure for confiscation of property”, the prosecution bears the burden of proving that the property is illegal, contraband or an instrument of crime by the standard of preponderance of probability or the highest degree of probability. When the prosecution meets the standard of proof, if the defendant or the victim objects to the recovery of the property and raises a new claim, they bear the burden of proving it by a preponderance of probability.

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If other interested parties claim ownership of the property, they also bear the burden of proving it by a preponderance of probability.

5.4.2 Incidental Action in Rem In the procedure for confiscating illegal property in cases where the defendant has fled or died, if no interested party files an objection or application to participate in the procedure during the announcement period, the court usually does not hold a court session. In practice, such a trial without a session usually means that the court confirms the application of the procuratorate to confiscate the illegal property. On the one hand, based on the consideration of litigation efficiency, there is no need to hold court hearings for cases where no interested party raises objections, to maximize resources and reduce costs. On the other hand, it is also out of respect for the right of the interested party to sue, since they do not request to participate in the procedure and do not challenge the ownership of the property, their decision on the disposition of their rights should be respected. In the case where the defendant is present in court, if the procuratorate applies for the recovery of property, but the defendant does not object to this, the victim does not require compensation for damages or return of property, other interested parties do not claim ownership of the property, this means that the defendant, the victim and other interested parties waived the right to sue. In such cases, there is no need for the court to conduct substantive examination of the prosecution’s application or to hold a special hearing. Instead, in the court hearing on the issue of conviction and sentencing, the issue of recovery of property is incidentally included in the court investigation and court debate. While making a judgment on conviction and sentencing, the court also made a judgment on the issue of recovery of the property. Thus, in the case where the defendant, the victim and other interested parties do not claim the property, the suit in rem and the suit in personam are combined into one. The court may consider conviction, sentencing and recovery of property as the three judgement objects, and hold a unified session to hear the facts of the crime, the sentencing, and the property involved in the case, and the prosecution and the defense debate on these three issues. Finally, the court decides on the recovery of the property involved and the conviction and sentence together.

5.5 Victims’ Participation in Action in Rem Two procedures protect victims’ property: one is the incidental civil action; the other is the action in rem. The former applies mainly to cases of violence against the person, while the latter applies to cases of violation of property rights. We want to discuss how to guarantee victims participation in the action in rem effectively.

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Although victims are nominal parties in criminal cases of property rights violations, they have been unable to participate in the proceedings. The court often does not serve a copy of the indictment upon the victim, nor does it allow the victim’s litigation representative to consult the case file. Victims are often not notified of their participation in the conviction and sentencing hearing, so that they cannot present and cross-examine evidence, or argue their case. The court does not hear the issue of recovery of property separately, excluding victims and their litigation representatives from the property recovery process. As a result, the court makes a ruling on the property where the victim cannot present opinions on the economic loss suffered and the requested compensation. Victims are dissatisfied with the fairness and transparency of the process because they cannot participate in the procedure for recovering property involved in the case. If the victims do not receive the compensation they deserve, they will be strongly dissatisfied with the judicial authorities and the judicial process.25 The Beijing High People’s Court has implemented the “system of participation of victims’ representatives in court hearings” to enable victims to participate in criminal trials. In the reform, the court has allowed the representatives of victims to participate in the court trial and the entire process of recovery of property without making major changes to the procedure for recovering property involved in the case. This shows that the only way to reform the procedure for recovering property involved in the case to achieve a positive social effect is to involve the victims in the process. How can the victim participate in the property recovery process in criminal cases of property rights violations? Considering the actual situation of criminal procedure in China, there are two ways for victims to participate in the procedure for recovering property involved in the case. The first is a new incidental civil action, which deals with criminal cases involving violating personal and property rights. The second is the current two-track system, the current incidental civil action plus the procedure for recovering property involved in the case. Here we will compare and evaluate the two ways. If a new incidental civil action is to be established, the victim may bring a lawsuit for violation of personal rights and property damage. The court initiates a civil trial after a conviction and sentencing hearing. The advantages of this system are obvious. Incidental civil action deals with civil compensation and return of legal property of the victim, so in the procedure for recovering property involved in the case the court does not consider the victims’ property rights, but only considers the interests of the state, the defendant and other interested parties, which makes the property recovery procedure simpler. However, the limitations of the system of incidental civil action should not be ignored. There is no judicial review system in China, so the court cannot take a preservative measure to seize, impound, or freeze the property of a defendant, and thus cannot make the necessary preparations for the recovery of the property. As a result, even if the victim files an incidental lawsuit and requests the court to initiate the 25

Liu Zhenquan. (2016). Research on the disposition of the property involved in pubic-related economic crimes. Trial in Shandong, 4.

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property compensation process, it is difficult to get what he or she wants. However, the current system includes the compensation and return of victims’ property in the property recovery procedure, so that the compensation and return of the victims’ property takes precedence over the collection of property to the state treasury, which can protect the victims’ property rights. As for the incidental civil action, due to the low civil compensation and empty judgments (situations where judgments cannot be enforced), the court has to exclude the victim from the incidental civil action, so that the victim can obtain a higher amount of civil compensation through criminal reconciliation.26 Using incidental civil action to settle the victims’ property claims is not a good idea. Under the existing system, a more feasible system is to incorporate victims’ property compensation into the criminal action in rem. However, we should improve the procedure for victims to participate in the procedure for recovering property involved in the case. First, we should clarify “recovery,” “refund” and “confiscation”. The experience of criminal property recovery shows that “recovery” is a macro concept, meaning that the court, representing the state, legally recovers the defendant’s illegal proceeds, contraband and instruments of crime. The seizing, impounding, or freezing of the above-mentioned property by the investigating authorities are part of the recovery. Only, it is not a final decision, but only temporary pre-recovery. After the court has convicted and sentenced the defendant through a trial, it confirms that the property seized, impounded and frozen by the investigative authorities are illegal proceeds, contraband or instruments of crime, and the recovery in the judgment is the official recovery of property. After the court has recovered the property, there are usually two directions: first, the illegal property and its fruits are used to compensate the victims for their economic losses; second, the contraband, instruments of crime, and the remaining proceeds are confiscated and returned to the state treasury. According to the principle of priority of victims’ property rights, the court can confiscate the property and return it to the state treasury only after the victims are fully compensated and the property is returned to the victims. If the recovered illegal property is not enough to pay the whole compensation, the victim can only receive compensation limited to the illegal property. Contraband and instruments of crime should be confiscated and returned to the state treasury, rather than being used to compensate victims and return their property. Second, the court initiates the procedure for recovering property involved in the case based on the victim’s objection to the property recovery, or an application to participate in the procedure for recovering property involved in the case. In other words, the independent procedure for recovering property involved in the case is contingent on the victim’s objection or application. If the victim has filed an objection or application, the court should hear the property recovery. Third, in the independent procedure for recovering property involved in the case, the victim has two opportunities to participate in the court trial. One is to participate in the conviction and sentencing trial, presenting evidence, cross-examining and 26

Chen Ruihua. (2018). The Chinese model of criminal procedure (3rd ed.). Law Press, p. 132.

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arguing, thereby influencing the court’s decision to convict and sentence. The other is to participate in the property recovery process, to participate in court investigation and court debate, to present evidence and opinions on issues such as property damage, legal property rights, and distribution of property, thereby influencing the court’s decision on property recovery.

5.6 Litigation Status of Interested Parties In criminal procedure where the defendant is present, if the defendant, the victim or other interested parties raise objections or apply, the court should hold a hearing for recovery of property. According to the interpretation of the Supreme People’s Court, the so-called “interested parties” refer to the natural persons or entities that claim ownership or other rights to the property that the procuratorates apply to recover or confiscate. What is the litigation status of interested parties? According to the theory of civil litigation, a person who files a claim on the subject matter of action disputed by others is a third party in civil litigation. The third party is divided into “third party with independent claim” and “third party without independent claim” according to whether they have an independent claim or not. The former refers to the third party who has the independent right to claim the subject matter of the action of both parties. The latter refers to the third party who does not have the independent right to claim the subject matter of the action of both parties but the outcome of the case will affect his legal interest. In the property recovery lawsuit filed by the procuratorate, the procuratorate and the defendant are two parties, and the victim may file a claim for damages or return of property. So, what is the status of other interested parties who claim ownership of the property in the lawsuit? In the author’s opinion, other interested parties are “third parties with independent claims”. This is because they claim ownership of the property, which is an independent claim. If an interested party does not file a motion to object and intervene, his or her interests will be adversely affected by the outcome of the court’s decision. For example, if the prosecutor files an application to recover the defendant’s illegal proceeds, the interested party may claim ownership of a portion of the property, a security interest or a mortgage, or claim that he or she is a “bona fide third party” because of a civil transaction with the defendant. In this case, if the interested party cannot participate in the litigation, he or she cannot defend his or her civil rights. Thus, whether in the confiscation of property in cases where the defendant has fled or died, or in the recovery of property in cases where the defendant is present, the interested parties who participate in the litigation by claiming ownership of the property file independent claims, and are special plaintiffs who file independent claims to the subject matter of the litigation between the prosecutor and the defendant. As a “third party with independent claim”, the interested party is a party to the lawsuit, and can participate in the litigation activities together with the prosecutor,

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the defendant, and the victim, and exercise the litigation rights of proof, crossexamination and debate. As a party, the interested party may retain a lawyer or other person to act as a litigation representative and participate in the procedure of recovering the property with the help of the litigation representative. Like defendants and victims, the interested parties can appeal the court’s decision on the recovery of property. Some laws or judicial interpretations regard such interested parties as “outsiders”, and carry out the so-called “outsider objection system”.27 The so-called “outsider’s objection” refers to the claim to the subject matter of enforcement by a person who does not have the status of a party and does not participate in the litigation. When an outsider raises an objection, the court should suspend the enforcement and enable the outsider to participate in the court proceedings. However, in the procedure for recovering property involved in the case, the interested party who claims ownership to the property and participates in the property recovery procedure is a “third party with independent claim” rather than an “outsider”. In the future, when establishing procedure for recovering property involved in the case, interested parties should be encouraged to raise objections as soon as possible and participate as much as possible in the court hearings for the recovery of the property. The court should consider the interests and claims of interested parties when deciding on the recovery of property. Such a system is fairer and more efficient than the “outsider objection system” in the enforcement procedure. Since the interested party is the “third party with independent claim right”, it should be able to participate in the procedure for recovering property involved in the case. The experience of the “special procedure for confiscation of property” can be learned, and the court can issue an announcement before the hearing and set an objection period, during which interested parties can apply to participate in the litigation and, with the court’s permission, can participate in the property recovery process as a party. The interested party can retain litigation representatives, and can also participate in the court investigation and court debate of the procedure for recovering property involved in the case. The interested party has the right to appeal against the decision of the court of first instance on the recovery of property. After the court’s decision, the interested party has the right to participate in the property distribution process in order to receive the property to which he or she is entitled.

5.7 Procedural Guarantee of Action in Rem One of the major challenges facing action in rem is restraining the investigative authorities’ compulsory measures such as seizure, impounding, freezing, auction, etc. In civil litigation, whether for tort or breach of contract, the court can adopt

27

Jiang Xiaoliang. (2016). Discussing the ex parte relief in the execution of property involved in criminal cases in China. Legal Application, 8.

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property preservation measures and advance enforcement. On the one hand, enforcement of future judgments can be guaranteed. On the other hand, in cases where the relationship of rights and obligations between the parties is definite, the victim can be paid in advance to meet his or her urgent needs. However, in criminal procedure, the court does not participate in the pre-trial procedure, the investigative authorities decide and take the compulsory measures such as seizure, impounding, freezing and auction on their own without the judicial review and permission of the court and the procuratorate. After the procuratorates apply for the recovery of property, the investigative authorities adopt property preservation, and the investigative authorities may dispose of some property that is not easily preserved. So, in many cases the courts have missed the best time to recover the property. The court’s decision on property recovery is disconnected from pre-trial property preservation and prior disposition. Experience shows that the investigative authorities’ arbitrary seizure, impounding and freezing of property make it difficult for the courts to make decisions. Under this system, courts are often faced with the embarrassing situation that there is no property to recover. Some researchers suggest establishing a system of “compulsory measures in rem”, that is, to incorporate the measures of seizure, impounding, freezing, auction and realization of property into the system of compulsory measures.28 The compulsory measures in China’s criminal proceedings have an agreed connotation and extension, which means restricting or depriving the personal freedom of suspects and defendants. The measures mentioned above for the property are preservation measures. They are similar in nature to measures such as property preservation and advance enforcement in civil litigation and serve to ensure the enforcement of judgments and avoid empty judgments (situations where judgments cannot be enforced). They are different in nature and function from compulsory measures, and are more appropriately referred to as “measures of compulsory disposition in rem”. Regardless of the position of the search, seizure, impounding, freezing, auction and other measures, we should take the procedural safeguards for the action in rem seriously. In the author’s opinion, the special procedure for confiscation of property and the procedure for recovering property involved in the case should not only focus on the court trial, but should pay attention to the property disposal measures. On the one hand, the court must hear the recovery of property in a manner that meets the requirements of procedural justice and that allows the interested party to object and participate in the proceedings. On the other hand, the court’s decision on the recovery of property must be enforceable. Therefore, the court should not only hear the recovery of property, but also review the pre-trial seizure, impounding, freezing, auction and other compulsory disposal measures. The court’s judicial review of compulsory disposition measures has three advantages over the system of self-determination and self-disposal of property by the investigative authorities. First, separating the pretrial disposal of property from the 28

Fang Baxing. (2017). Action in rem in criminal procedure. Journal of East China University of Political Science and Law, 5; Qiao Yu. (2018). Procedures for the disposal of property involved in criminal procedure. China Legal Publishing House, p. 76.

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investigation makes it impossible for the investigating authorities to dispose of the property, so the investigation organ has no interest in the outcome of the case so as to maintain the justice and integrity of the investigation organ. Second, in cases where the parties’ rights and obligations are definite, the court may allow the victim to receive compensation and returned property in advance to get the victim out of financial difficulty. The pre-trial court decides the disposition of property through judicial review, which meets due process requirements and allows suspects and their defenders to raise objections and obtain relief, thereby reducing the chance of error and abuse of power.

5.8 Conclusion In cases of the defendant’s escape or death, a confiscation system of illegal proceeds has been established, which marks the establishment of action in rem that is different from traditional action in personam. At the same time, in response to the confusion and disorder of the property recovery system, the legislature, judicial organs, and reform policymakers have reformed the system, which has prompted us to consider how to establish the action in rem in cases where the defendant is present. The system of action in rem limits the court’s discretion in property recovery, enables the defendant, the victim and other interested parties to participate in litigation, meets the requirements of trial centrism reform, and improves the credibility of judicial decisions. For the action in rem, the relationship between action in rem and action in personam must first be addressed, that is, according to whether the parties raise objections or applications, to determine whether to adopt the model of independent action in rem or the model of incidental action in rem. At the same time, it is necessary to stipulate the way of participation of victims in action in rem and the status of other interested parties according to the theory of “third party with the independent claim”. In addition, the effective operation of the action in rem is indispensable to the preservation and disposal of the property before trial. To this end, a judicial review mechanism should be established for the pre-trial disposal of property. The court can reasonably dispose of the property before trial to ensure the enforcement of the decision. In criminal proceedings in rem, the recovery of property is an independent subject of litigation, which diversifies the trial process and makes the procedure for recovering property involved in the case a procedural matter. The establishment of the action in rem as a major judicial reform can help solve the problems in property recovery and confiscation. The establishment and improvement of the action in rem help to achieve justice and enhance judicial credibility.

Chapter 6

Retrospect and Prospect of Criminal Defense System in the Past Forty Years

6.1 A Brief Review of Development of Criminal Defense System The defense system is an integral part of the criminal procedure system and an important expression of human rights protection in criminal procedure.1 Although the right to defense is a right of the defendant, it is the right to obtain the assistance of a lawyer since the defendant is generally incapable of exercising the right to defense on his or her own and can only defend effectively with the aid of a lawyer. To a certain extent, the right to defense can be regarded as a combination of “the defendant enjoys the right to defense” and “the defense lawyer exercises the right to defense”, so the criminal defense system includes three parts: the defendant’s access to the lawyer, the lawyer’s right to defense, and the defendant’s cooperation with the lawyer. Since the first criminal procedure law in 1979, China has made three amendments to the law in 1996, 2012 and 2018, which involved reform of the criminal defense system. It can be said that the criminal defense system has been continuously established, developed and improved with these four amendments. However, the development of criminal procedure law is subject to the legal system’s reform and is influenced by politics, economy, society, culture, and education. Among them, the revision of the constitution, the reform of the judicial system, the development of the lawyer system, and the update of legal research and legal concepts have a profound and significant impact on the criminal defense system. The 1979 Criminal Procedure Law established the defendants’ right to a defense. The law provides for two forms of defense, the defendant’s own defense and defense by defenders, and allows the defendant to retain defenders. A lawyer, a relative, a guardian, a person recommended by a social group or the defendant’s unit may serve as defenders. The law provides for two types of defenses by defenders, retaining

1

Lin Yuxiong. (2005). Criminal procedure law (General theory). People’s University of China Press, p. 158.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_6

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defense and designating defense, which paved the way for the legal aid system. However, the law allows the defenders to participate only in court trials. The 1982 Constitution established the principle that defendants have the right to a defense, which gives the criminal defense system a solid constitutional foundation. In 1980, the “Interim Regulations on Lawyers” were promulgated, which defined lawyers’ practice, qualifications, and working bodies. This provides a guarantee for the development of the legal profession and regulates the way for the defendants to obtain a lawyer’s assistance. At that time, lawyers were regarded as “state legal practitioners” and they worked in the legal advisor’s office under the judicial administrative agency. Implementing the 1996 Criminal Procedure Law is a major criminal justice reform. Through the amendment of this law, some widely criticized systems are abolished and the systems of compulsory measures and public prosecution were reformed. The “adversarial system” was established by drawing on the British and American criminal procedure, the principle of in dubio pro reo was strengthened, and the rights of the defendant and the victim were enhanced. About the defense system, to give lawyers sufficient time to prepare their defense, the law allows lawyers to participate in criminal proceedings from the day when the case is transferred for examination and prosecution and allows the criminal suspect to retain lawyers from the day when the criminal investigation authority interrogates the criminal suspect for the first time or from the day when a compulsory measure is taken against the criminal suspect. Lawyers do not have the defenders’ identity during the investigation stage, but can only provide some limited legal assistance. While the legislature reformed the criminal justice system, it also reformed the lawyer system. According to the Lawyer Law of 1996, lawyers are “those who obtain the lawyer’s practice certificate according to the law and provide legal services for the society”, lawyers work in law firms, lawyers are qualified to practice law, the business and rights of lawyers are clearly defined, the professional ethics of lawyers are established, the status and functions of lawyers’ associations are determined, and the legal aid system is set up. The Lawyers Law of 1996 was amended in 2001, according to which, to be qualified as a lawyer, one must pass the national judicial examination. According to the lawyer’s Law amended in 2007, a lawyer is “a person who has obtained a lawyer’s practice certificate in accordance with the law and is retained or designated to provide legal services for clients”. The legislature has made such frequent amendments to the Lawyers Law in just ten years, which shows that the lawyer system is closely related to social development and reform and opening up. The reform of the lawyer system has created the conditions for the development of the criminal defense system. In 2012, along with the constitutional guarantee of human rights, the legislature massively revised the criminal procedure law.2 The 2012 Criminal Procedure Law reformed the evidence systems, compulsory measures and trial, and established four 2

For more information on the major breakthroughs of the 2012 Criminal Procedure Law, see Chen Weidong (ed). (2012). Understanding and application of the 2012 criminal procedure law, China Legal Publishing House.

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special procedures. In terms of the defense system, the new law allows suspects to appoint a defender during the investigation stage, reforms the system for lawyers to meet with clients and consult materials, and expanded the scope and application of legal aid. In 2014, China launched the largest judicial system reform since 1979, including two aspects of the criminal justice system reform: the first is the trial-centered litigation system; the second is the system of leniency for admitting guilt and accepting punishment.3 At the same time, the oversight system was reformed and legalized through the constitution and oversight law. This reform of the judicial system has changed the criminal procedure system in China. During this reform, the defense system has changed mainly in two aspects. The first is the “full coverage of criminal defense” system, which means that the scope of application of the designated defense is expanded. The second is the “legal aid duty lawyers” system, which means that suspects and defendants can have access to duty lawyers when they are in urgent need. Moreover, substantive trial reform has positively impacted the effect of lawyers’ defense. The system of leniency for admitting guilt and accepting punishment may encourage lawyers to engage in the “consultative defense” which is different from the traditional defense.4 In 2018, the legislature amended the criminal procedure law again. From the perspective of preventing corruption, the law dovetailed with the Oversight Law and established the procedure for trial in absentia. At the same time, the law provided for the system of leniency for admitting guilt and accepting punishment, and establishes the fast-track sentencing procedure. Related to the defense system, the duty lawyer system was established and lawyers could participate in proceedings of leniency for admitting guilt and accepting punishment. It is extremely controversial that lawyers are unable to provide legal assistance to respondents and participate in the investigation process for the more than 80 crimes that the Supervisory Commission is responsible for investigating. Only after the Supervisory Committee has transferred the case to the procuratorate for examination and prosecution does the suspect or defendant have the right to retain a lawyer or be designated a lawyer. Reviewing the development of the criminal defense system is not to record the details, but to summarize the development of the system, reflect on the problems and make predictions and recommendations for the system. There are five clues to the development of the criminal defense system. First, in terms of the role of defense lawyers, they have gone from state law practitioners to legal agents, and their obligations has moved from the public interest obligations obligation to society to the loyalty obligations. Second, the participation of the lawyer in the proceedings has gradually moved from the court trial to the pre-trial and finally to the entire criminal proceedings. Second, in the stage of participation of defense lawyers, there is a transition from courtroom defense to pre-trial defense, and then emerged the 3

Chen Guangzhong, Wei Xiaona. (2015). On the modernization and reform of China’s judicial system. Chinese Jurisprudence, 1. 4 For a discussion of “negotiated defense,” see Chen, Ruihua. (2017). The controversy of the system of leniency for admitting guilt and accepting punishment. Chinese Jurisprudence, 1.

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whole process defense. Third, in terms of the subject of defense, in the past, emphasis was placed on the defendant’s right to a defense, but now the emphasis is placed on the defense of the lawyer. And there are two types of legal aid, designated defense and duty lawyer. Fourth, from the perspective of the effect of defense, whereas in the past emphasis was placed on the participation of defense lawyers, now the emphasis is placed on effective defense by lawyers. In terms of the guarantees of defense, not only does the law provide for the right to defense, but now there are judicial guarantees and remedy mechanisms for the right to defense. Based on the above five clues, this article summarizes, reflects on and looks forward to the criminal defense system in China. The author summarizes the internal factors that promote the development of the defense system and the external factors that hinder it. The author believes, keeping pace with the criminal justice reform, the defense system has made considerable progress and is expected to continue to move forward along the existing track. However, attention must be paid to the impeding factors, and only by eliminating institutional and systemic interference can the criminal defense system develop rapidly.

6.2 Lawyers’ Role: From “State Law Practitioners” to “Legal Agents” Chinese law has established three roles for lawyers, which has a great impact on the professional ethics of defense lawyers. The different roles of lawyers can be used to see how the professional ethics of lawyers have changed and to predict how the criminal defense system will be affected. According to the “Interim Regulations on Lawyers” of 1980, lawyers were “state legal workers” and worked in the legal advisory offices of judicial administrative organs, and lawyers were personnel of judicial administrative organs. As state legal workers, lawyers’ task was to give legal assistance to clients to “ensure the correct implementation of the law and protect the interests of the state and collectives as well as the lawful rights and interests of citizens”. According to the Lawyers Law of 1996, the role of lawyers was changed to “practitioners who provide legal services to society” (hereinafter referred to as “social legal workers”), and lawyers worked in law firms that make profits by providing legal services. Lawyers became social legal workers from state legal workers, which was not only a change in “name”, but also meant that the state responsibility of lawyers was reduced and legal services were emphasized. The lawyer’s task was to “protect the lawful rights and interests of the client”. The Lawyers Law of 2007 defines the role of a lawyer as “a practitioner who provides legal services to clients”. The “client” here is the “customer”, and lawyers establish an agency relationship with the client by accepting authorization or appointment. The role of lawyers was “legal service practitioners”. Lawyers, working in partnership law firms or in sole proprietorship law firms, accepting authorization by enterprises, individuals, government, social groups or the state, should provide

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legal services for the clients to protect their legitimate rights and interests. This is what we mean by the saying, “Try one’s best to do what was entrusted to him by others”. The role of lawyers has changed from “state legal worker” to “social legal worker” to “legal service practitioners”, which means that the responsibility of lawyers to the state is gradually weakened, while the responsibility to clients is strengthened.5 The current lawyer law requires lawyers to “maintain the correct enforcement of the law”, “maintain the social fairness and justice”, and even to “take fact as the basis and take law as the yardstick”. This responsibility of lawyers, similar to that of the judiciary, is often referred to as the “public interest obligations”, that is, the duty to protect the interests of the state and society. Since 1996, the Lawyers Law has attached increasing importance to the obligation of lawyers to protect the legitimate rights and interests of their clients, requiring lawyers to “present materials and arguments proving that a criminal suspect is innocent or is less guilty than charged or his criminal liability should be mitigated or relieved to protect the procedural rights and other lawful rights and interests of the criminal suspect or defendant”. This duty to provide legal services only for the benefit of the client is often referred to as the “loyalty obligations”. The shift from the duty of public interest to the loyalty obligations is a change in the professional ethics of lawyers that accompanies the changing role of lawyers. Professional ethics, unlike social or public ethics, is the basic code of conduct to be observed by the practitioners of a particular profession. Practitioners who violate these codes of conduct are subject to appropriate disciplinary action, or even removal from the profession. The professional ethics of lawyers reflect the characteristics and values of lawyers and maintain the reputation of lawyers.6 In the past, lawyers, as “state law practitioners”, were required by professional ethics to undertake public interest obligations. After lawyers became “social legal workers”, their professional ethics became less about state responsibility and more about “social responsibility”. When the lawyer’s role becomes that of a “legal service practitioner”, the lawyer’s professional ethics is based on the loyalty obligations. The so-called loyalty obligations is the duty to protect the legitimate rights and interests of the client.7 It has two meanings. First, from a negative point of view, the lawyer must not harm the client’s interests. Second, from a positive perspective, lawyers should protect the rights and interests of their clients to maximize the interests of their clients. Starting from the Lawyers Law of 1996, the loyalty obligations of lawyers is mainly reflected in professional ethics such as prohibiting unreasonable refusal to defend, keeping the secrets known in practicing law, and prohibiting conflict of interest. However, these three professional ethics of the 1996 Lawyers Act are vague and specious. Since 2007, these three professional ethics have become 5

Hiroshi Ito. (2012). The technology and ethics of criminal defense (Yu Xiufeng, Zhang Ling, Trans.). Law Press. 6 Song Yongsheng. (2015). Criminal defense lawyers’ professional ethical conflicts and resolution mechanism. Shandong Social Science, 4. 7 For a discussion of the meaning of the loyalty obligations of defense counsel, see Hiroshi Ito. (2012). The technology and ethics of criminal defense (Yu Xiufeng, Zhang Ling, Trans.). Law Press, p. 22.

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increasingly clear and operative in the law of lawyers. For example, in terms of the lawyer’s refusal to defend, the lawyer law provides that the client has the right to refuse to be further defended by an authorized lawyer, but the defense lawyer shall not refuse to defend without justifiable reasons. However, if the authorized matter violates the law, the client makes use of the services provided by the lawyer to engage in illegal activities or deliberately conceal a material fact related to the case, and the lawyer shall have the right to refuse to defend. Another example is that in terms of keeping secrets, lawyers not only shall keep the trade secrets and the privacy of the client, but also shall keep confidential the relevant condition and information that the client and other persons are reluctant to disclose. However, except facts and information on a crime compromising the national security or public security or seriously endangering the safety of the body of a person, which a client or other person prepares to commit or is committing. For example, in terms of avoiding conflict of interest, the law requires lawyers to “not represent both parties in the same case, and not represent a client in a legal affair that has any conflict of interest with himself or his close relative”. In the context of the loyalty obligations, the lawyer’s “independent defense” is controversial. In the past, the lawyer’s role was that of a “state law practitioner” who enjoyed the right to an independent defense and was “not subject to the will of the client”.8 This theory of “independent defender” was accepted by lawyers for a long time. In 2012, the role of lawyers became “legal service workers”, but many people still regarded defense lawyers as “independent defenders” and believe that defense lawyers are different from litigation representatives, and can express views that are inconsistent with those of their clients based on facts and the law, or even express views that conflict with those of their clients or other defenders in the courtroom. This theory of “independent defender” is highly controversial.9 However, it is an indisputable fact that when the lawyer and the client have conflicting views, or when two lawyers defending the same defendant have conflicting views, the effectiveness of the defense will be diminished, which is detrimental to the client and inconsistent with the lawyer’s loyalty obligations.10 This independent defense stance damages the reputation of lawyers and raises doubts about the effectiveness of protecting the rights and interests of clients. Because of this, in 2017, the All-China Lawyers’ Association adopted “The Rules on the Handling of Criminal Cases by Lawyers”, establishing two new professional ethics for lawyers: First, “a lawyer shall respect the opinions of the litigants based on law and fact, carry out work according to the principle of being conducive to the litigants, and shall not present any defense opinions inconducive to the litigants and contrary to the free will of the litigants”. Second, “A lawyer that strongly disagrees with the litigant or the client on the defense or representation plan and can not reach an agreement may terminate the representation relationship 8

Tian Wenchang, Chen Ruihua, eds. (2012). Lawyers’ suggestions and arguments for revision of Chinese criminal procedure law. Law Press, p. 193. 9 Chen Hu. (2013). The limits of independent defense doctrine. Political and Legal Forum, 4. 10 Peng Bo. (2001). The relationship between lawyers and clients in criminal defense. Journal of Beijing University of Science and Technology (Social Science Edition), 2.

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with the client on behalf of the law firm”. The above provisions are a landmark in the professional ethics of defense lawyers. On the one hand, the lawyer’s loyalty obligations are established for the first time. On the other hand, the rule requires the lawyer to consult with the client, and if they can not reach an agreement, the lawyer may terminate the representation relationship with the client. This clearly defines the loyalty obligations of defense lawyers and amends the professional code of ethics for defense lawyers. However, the loyalty obligations of defense lawyers are not absolute, but are limited in many ways.11 The lawyer’s public interest obligations are the outer boundary of the loyalty obligations. But the public interest obligations are not a substitute for the loyalty obligations, but rather a supplement and limitation to the loyalty obligations. The first is the obligation to uphold the integrity of judicial officers, meaning that a lawyer shall not bribe a judge, prosecutor or any other relevant staffer, or affect their handling of a case by any other illicit means. The second is the obligation to uphold the truth, meaning that a lawyer shall not deliberately provide false evidence or threaten or induce others to provide false evidence, or obstruct the opposite party’s legal obtaining of evidence. The third is the obligation to comply with the court order, meaning that a lawyer shall not disrupt the order of a court, or interfere with the normal conduct of litigation. The fourth is the obligation to comply with the law, meaning that a lawyer shall not instigate or abet the client to disrupt the public order or compromise public safety. So, is our system perfect in terms of the role of lawyers and professional ethics? The answer is no. Lawyers are only “legal service practitioners” rather than “legal agents”. The essence of the lawyer profession is to provide legal services to clients. Lawyers, whether retained or designated as a defender, have formed a civil law litigation agency relationship with the suspect or the defendant.12 The suspect or defendant is the “client” or “customer”, and the person who finances or the government department providing legal aid only signs the agreement on his behalf, and is not the client in law. Only when the suspect or the defendant signs, the representation agreement becomes legally effective, and the retained or designated lawyer becomes the defender. Because of this, the retained or designated defense lawyer is the client’s “legal agent”, which is no different from the litigation representative in civil litigation and the agent in the non-litigation business. Defense attorneys are required to fulfill the obligations of legal agents, which have three aspects. The first is to fulfill the obligations of the agency agreement, otherwise, there is a breach of contract. The second is the obligation to comply with the professional ethics of lawyers, otherwise, there is a violation of the code of lawyers. The third is to comply with other obligations established by law, otherwise, there is a violation of law or even a crime.

11

Song Yongsheng. (2015). Criminal defense lawyers’ professional ethical conflicts and resolution mechanism. Shandong Social Science, 4. 12 For civil agency, see Long Weiqiu. (2002). General theory of civil law (2nd ed.). China Legal Publishing House, p. 567.

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Secondly, the loyalty obligations of lawyers are not clearly defined in the law, resulting in lawyers being given obligations that are detrimental to the interests of their clients. Although the lawyer’s Law and the Code of Criminal Procedure require lawyers to defend in the interests of clients and have established corresponding professional ethics, some rules are unclear, resulting in a negative impact on lawyers’ loyalty obligations. For example, in the refusal to defend, the law does not explain “the authorized matter violates the law” and “engage in illegal activities”, resulting in some public security organs and judicial organs on this ground refusing lawyers to provide legal help to clients. The so-called client’s “concealment of important facts related to the case” is an excuse for some lawyers to withdraw from the defense without permission. Even if the client conceals some facts of the case, as long as it does not affect the lawyer’s defense, the lawyer should not refuse to defend on this ground. For example, the law should stipulate that if the lawyer intends to withdraw from the defense, he or she should notify the corresponding judicial authority in advance and apply for suspension of the proceedings or adjournment, and can only withdraw from the defense after the client has another defender. Thirdly, the scope of lawyers’ public interest obligations are too large and confused with the duties of judicial officers. There are many specious obligations of lawyers in the Law of Lawyers and the Criminal Procedure Law. Rules such as “A lawyer shall maintain the legal rights and interests of a client, maintain the correct enforcement of the law, and maintain the social fairness and justice” and “In practicing law, a lawyer must take fact as the basis and take law as the yardstick” are not different from the obligations of investigators, prosecutors and judges. This raises the question: are lawyers expected to adhere to a professional code of ethics identical to that of judicial officers? Is there no difference between the lawyers and judicial personnel? The essence of a lawyer’s work is to provide legal services for clients with due diligence. As legal agents, defense attorneys participate in lawsuits and exercise litigation rights to protect the rights and interests of suspects and defendants. A lawyer’s defense in favor of a client is legal as long as it does not violate the statutory public interest obligations. For example, a lawyer’s motion to exclude illegal evidence on the grounds that the prosecution’s evidence is illegal does not “undermine the correct enforcement of the law”. For another example, the lawyer’s defense prevents the court from imposing the death penalty on the defendant or causes the court to deny the victim’s claim for civil compensation, which does not “harm fairness and justice”. Moreover, it does not violate the principle of “taking fact as the basis” when in a case where the facts of a crime seem clear, a lawyer defends the client as not guilty and persuades the prosecution not to indict him. Defense lawyers carry out work according to the principle of being conducive to the litigants, without taking the responsibility of maintaining the correct enforcement of the law, discovering the truth of the case, and maintaining social fairness and justice. Those specious rules should be removed from the law and replaced with rules precisely suited to the requirements of the lawyer’s profession. Finally, as the first professional ethics of defense lawyers, the loyalty obligations have not been guaranteed in law. The responsibilities of defense lawyers in

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the Lawyers Law and the Criminal Procedure Law are all caused by lawyers’ violation of public interest obligations and are based on the protection of the public interest of the state and society. However, in order to guarantee the fulfillment of the loyalty obligations, shouldn’t the law hold those lawyers who violate the loyalty obligations accountable? For example, shouldn’t rules ranging from disciplinary and civil liability to criminal liability be established for lawyers who withdraw from the defense in the middle of a lawsuit without permission, for lawyers who divulge clients’ secrets, for lawyers who accept cases with conflict of interest, and for lawyers who intentionally harm the interests of their clients?

6.3 Lawyers’ Participation: From “Court Defense” to “Whole Process Defense” Theoretically, at any stage of the proceedings, as long as the rights of the accused may be restricted or deprived, and as long as the authorities of filing, investigation, arrest, prosecution and trial may make decisions unfavorable to the accused, defense lawyers should participate in the proceedings to help the accused to defend. The law should not restrict the participation of defense lawyers in litigation, but should create conditions and provide facilities for their participation. However, our law has created the principle of “no participation without authorization”, according to which defense lawyers can participate in certain stages of criminal proceedings only when permitted by law. Since the 1979 Criminal Procedure Law, the participation of lawyers in criminal proceedings has moved from the court trial stage to the examination and prosecution stage, and then to the investigation stage, that is, starting from the trial and expanding to the pre-trial stage. In the future, with the increase in the number of lawyers and their ability to defend, the defense of lawyers may be extended to the whole process of criminal proceedings. Based on the consideration of rebuilding legal order and protecting innocent people from wrongful prosecution, the 1979 Criminal Procedure Law established for the first time the right of defendants to defense, allowing lawyers to provide defense for defendants. However, the law limits the defense of lawyers to the court trial, making it impossible for lawyers to participate in the pre-trial proceedings, such as investigation, arrest, examination and prosecution, while only defending their clients in the court trial. In order to guarantee the defendant’s right to defense and give full play to the role of defense lawyers, the 1996 Criminal Procedure Law advanced the stage of defense lawyers’ participation in criminal proceedings to the examination and prosecution stage, allowing defense lawyers to participate in the proceedings from the date the case is referred for examination and prosecution, to understand the case, meet the suspect, and collect evidence in preparation for the court defense. A suspect could retain lawyers to provide legal assistance during the investigation stage, but the lawyer does not have the status of a defender at this stage and could only provide

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limited legal assistance. In 2012, the legislature, in the context of the inclusion of the “human rights protection clause” in the Constitution, advanced the time for defense lawyers to participate in criminal proceedings to the investigation stage to give full play to the role of lawyers and solve the problem of “difficulty in defense” in practice. According to the law, a criminal suspect has the right to retain a lawyer as a defender from the day when the criminal suspect is interrogated by a criminal investigation authority for the first time or from the day when a compulsory measure is taken against the criminal suspect. During the period of criminal investigation, a defense lawyer may provide legal assistance for a criminal suspect, file petitions and accusations on behalf of a criminal suspect, apply for modifying a compulsory measure, learn the charges against a criminal suspect and relevant case information from the criminal investigation authority, and offer opinions. Where, before the investigation of a case is closed, the defense lawyer files a request for presenting an opinion, the criminal investigation authority shall hear the opinion of the defense lawyer and record it. A written opinion of the defense lawyer, if any, shall be attached to the case file. The 2012 Criminal Procedure Law expands the rights of defense lawyers during the period of examination and prosecution. First, during the examination and approval of an arrest request, if a defense lawyer files a request for presenting an opinion, the procuratorate shall hear the opinion of the defense lawyer. Second, a procuratorate shall, when examining a case, hear the opinions of the defender and record their opinions. The written opinions, if any, of the defender shall be attached to the case file. Third, a defense lawyer may, from the day when the procuratorate examines a prosecution case, consult, extract, and duplicate case materials. The 2018 Criminal Procedure Law makes no changes to the participation of defense lawyers, retaining the provisions of the 2012 Criminal Procedure Law. However, the defense lawyers are unable to participate in the investigation by the Supervisory Committee and are unable to provide legal assistance to the investigated person, which weakens the involvement of defense lawyers in the cases investigated by the Supervisory Commission. In the past forty years, from courtroom defense to pre-trial defense, China’s defense lawyers have expanded the scope of legal assistance provided to their clients. Under such a system, on the one hand, defense lawyers can prepare for court defense earlier, on the other hand, the power of the investigating and prosecuting authorities can be checked and balanced to prevent abuse of power, and defense lawyers can help their clients to obtain the judicial remedy. Defense lawyers move from courtroom defense to pre-trial defense, which is in line with the development of the law of criminal litigation, and can also better protect the rights and interests of clients. However, this is still not as good as it could be. Although defense attorneys are allowed to participate in criminal proceedings prior to trial, their participation is limited and they cannot participate in many of the procedures carried out by the investigative and prosecutorial authorities. First, the Criminal Procedure Law does not allow defense lawyers to participate in the compulsory investigations carried out by the investigating authorities, such as search, impounding, crime scene investigation, examination, seizure, freezing, auction, realization, forensic identification and evaluation, identification, and investigation experiment, but the suspect’s property

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may be disposed of or fixed and preserved as evidence in these procedures.13 In court, the judge usually issues a guilty verdict based on the evidence of the investigating authorities without examining the facts of the case.14 Without participating in the compulsory investigation proceedings, defense lawyers are unable to witness the evidence collection process and express their opinions, not to mention to detect illegal investigations in time to apply for procedural remedies. Defense lawyers do not participate in the process of interrogation of suspects by investigators and prosecutors. As a result, on the one hand, illegal interrogations are common. On the other hand, the court will accept the interrogation transcript as evidence, which makes the court trial hearing a formality and hinders the substantive trial reform. The criminal suspect shall truthfully answer the questions of the investigators. According to the criminal procedure law, the criminal suspect shall truthfully answer the questions of the investigators, which puts the suspect at risk of severe punishment for failure to “confess and repent”.15 The place of interrogation is secluded, the investigator controls the interrogation procedure, and the investigator determines the time of the start of the interrogation, its duration and number. These make the interrogation coercive, and the “minimum voluntariness” of the suspect’s confession cannot be guaranteed. Without the participation of defense lawyers, investigators can arbitrarily decide the time, number and methods of interrogations, can obtain evidence by violence, threats, lure, deception and other illegal means, the suspect may make false confessions, and even wrongful convictions are made because of torture. Third, defense attorneys cannot participate in the process of deciding on compulsory measures other than approval of arrests, which results in the abuse of compulsory measures. The 2012 Criminal Procedure Law allows lawyers to participate in the process of approving arrests by the procuratorates. With the reform of the approval of arrests, the procuratorates may review the approval of arrests by hearings, which creates better conditions for defense lawyers to participate in the process.16 However, defense attorneys cannot participate in the decision process for bail, residential confinement, and detention, which makes the decision process for these compulsory measures secretive, ex parte and administrative. In practice, some public security authorities abuse bail, and even turn the deposit paid by the suspect into a fine. Some public security authorities arbitrarily decide the time and place of residence, resulting in the “disappearance” of suspects. Some public security authorities arbitrarily detain suspects, applying to all suspects the 37-day detention period that would otherwise 13

Shen Deyong. (2015). On the reform of the trial-centered litigation system. Chinese Jurisprudence, 3. 14 Hu Hongjun, Wang Biao. (2014). Research on the trial of property involved in criminal cases. People’s Justice (Application), 1. 15 For the “duty to answer truthfully”, see Chen Ruihua. (2018). The Chinese Model of Criminal Procedure (3rd ed.). Law Press, p. 400. 16 For reports on the review of arrest hearings, see Zhu Xiangshan, Liu Shiqiang, Zhang Biao. (2014, March 19). Dongguan’s second urban area: four types of non-approved arrest cases to be heard in public. Procuratorial Daily; Wang Jing. (2014, March 18). Hebei Baoding: public hearing of arrest cases to improve transparency. Procuratorial Daily.

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be applied only to the person who is strongly suspected of committing crimes from place to place, repeatedly, or in a gang. The reason for this is that, in addition to the unreasonable system and the lack of strict limitation of power, the inability of defense lawyers to participate in the decision process of these compulsory measures is also a reason that cannot be ignored. In addition to limiting the participation of defense lawyers before trial, the criminal procedure law does not allow defense lawyers to participate in some important trial proceedings, resulting in these trial proceedings being a formality and the court depriving individuals of their property, liberty and even life without due process. This is reflected in three areas. First, the court of the second instance usually does not hold hearings for cases in which the defendant appeals, which deprives defense lawyers of the opportunity to participate. The Criminal Procedure Law sets strict conditions for the court of the second instance to hold hearings. Except for the case appealed by the people’s procuratorate and the case where the defendant is sentenced to the death penalty, the court of the second instance holds a hearing only for the appellate case where a defendant has objected to the facts and evidence determined in the trial at first instance, which may affect conviction and sentencing. This gives the court of the second instance the power to determine the manner of the “court hearing”, resulting in many cases appealed by the defendant being tried without a hearing. Thus, the defense lawyers cannot participate in the second trial and cannot present their opinions to the second trial judges, which means that the defense lawyers are less involved. Second, in the death penalty review process, the Supreme Court usually tries the case in a written procedure, so the defense lawyer cannot defend the case in court.17 The Supreme Court allows defense lawyers to submit written opinions to the court or meet with judges to present their opinions in person during the death penalty review process. However, the Supreme Court denies the “trial” nature of the death penalty review process and refuses to set it up as a separate level, so the death penalty review is conducted in a written and indirect manner. As a result, the defense attorney can neither argue with the prosecution nor present their opinions to the judge in court. Thirdly, for cases in which the procuratorates have filed requests for the recovery and confiscation of property involved in the case, the court does not hold court investigation and court debate, and disposes of the defendant’s illegal criminal proceeds and other property without a hearing, depriving the defense lawyers of the opportunity to express their opinions.18 The courts directly rule on the recovery of the property involved in the case without a hearing, which deprives the defense lawyer of the opportunity to participate in the process of property recovery and unreasonably limits the defense. The reform experience of China’s criminal defense system shows that defense lawyers should be allowed to participate in the proceedings, both before trial and at trial. They should be able to present evidence and legal opinions and argue with the prosecution. In this way, the power of the investigative authorities, procuratorates and courts can be restrained, and suspects and defendants can have equal dialogue, 17 18

Wei, Xiaona. (2015). Trial-centered reform of the criminal procedure system. Legal Studies, 4. Chen, Ruihua. (2019). A study of criminal action in rem. Chinese Jurisprudence, 1.

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consultation and discussion with the prosecutors and courts, so that suspects and defendants can exercise their right to defense and their property, freedom and life will not be arbitrarily deprived. Because of this, I propose the idea of “whole process defense”, and believe that the development direction of defense lawyers’ participation in litigation is from court defense to pre-trial defense and then to the defense of all criminal proceedings. The so-called “whole process defense” means that the retained or designated defense lawyers should be able to participate in the entire criminal proceedings from the time the case is filed to the time the decision is made. Specifically, there are two standards for this. First, if the investigator, prosecutor or judge may decide against the suspect or defendant, the defense lawyer shall participate in the proceedings and present the defense to the body authorized to make the decision. Second, defense lawyers should assist suspects and defendants and participate with them in criminal proceedings. To achieve a “whole process defense”, lawyers should participate in the investigation process of the Supervisory Committee, defend the investigated person and protect his or her rights and interests.19 In terms of legal attributes and legal effects, the investigation by the Supervisory Committee is not substantially different from the investigation by the investigative authorities. The evidence obtained by the supervisory committee will become the basis for prosecution, and ultimately, after passing the examination of probative and evidentiary capacity, become the basis for court decisions. Since defense lawyers can defend their clients in the investigation of criminal proceedings, why can’t they participate in the investigation of the Supervisory Commission and provide legal assistance to the investigated person? The author expects that with the appeal of the legal profession and society as a whole, policymaking authorities will realize that the participation of lawyers can prevent the abuse of power by the investigators of the supervisory committee and reduce the number of wrongful cases, as well as provide assistance in the defense of the investigated person and bring the anti-corruption process into the track of the rule of law. The participation of defense lawyers in the investigation process of the Supervisory Commission is an irreversible trend.

6.4 Defense Subjects: From “The Right to Defend” to “The Right to Get Help from Lawyers” China’s constitution and criminal procedure law provide that “the defendant shall have the right to defense”. However, it is difficult for a defendant to exercise his or her right to defense without the participation and assistance of a defense attorney. Defendants are usually behind bars, have lost their freedom, do not know the law, do not know how to give evidence, cross-examine, defend, file applications, and 19

Chen Guangzhong, Shao Jun. (2017). Reflections on some issues of China’s supervisory system reform. Chinese Jurisprudence, 4.

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are emotional and irrational, so they are “ incompetent” or “limited in disposing capacity” in the exercise of the right to defense. Defense lawyers, on the other hand, have a unique advantage when it comes to advocacy. They are well versed in the law and defensive techniques, and they can defend rationally in favor of their clients without being caught in a conflict of interest. For this reason, “the defendant has the right to defense” is only a legal declaration, while “legal assistance from a lawyer” is the guarantee of the defendant’s right to defense. The 1979 Criminal Procedure Law established a system of designated defense along with the right of the defendant to a defense. There are two types of appointed designated defense: one is voluntary designated defense, and the other is mandatory designated defense. The former applies to cases where the prosecutor appears in court and the defendant does not retain a lawyer, and the court has discretion in whether to designate a lawyer without the obligation to designate a lawyer. The latter means that the court is obliged to designate lawyers for some cases, and if this obligation is not fulfilled, the court’s trial “violates the statutory procedures” and may even be declared invalid. From 1979 to the present, these two types of defense have been preserved, while the scope of application of mandatory designated defense has changed. The mandatory designated defense was applied to cases where the defendant was blind, deaf or mute, and a minor in the 1979 Criminal Procedure Law, and to cases where the defendant was blind, deaf or mute, a minor and where the death penalty may be imposed in the 1996 Criminal Procedure Law. This is the first time that China’s criminal procedure law applies mandatory designated defense to felony cases. The 2012 Criminal Procedure Law reformed the system of designated defense. On the one hand, the types of cases in which mandatory designated defense is applied have been increased to include cases in which the defendant is a mental patient who has not completely lost the ability to recognize or control his or her behavior and cases in which the defendant may be sentenced to life imprisonment or the death penalty. On the other hand, designated defense extends to the pre-trial period, which allows suspects and defendants to have access to legal aid lawyers during the investigation, the examination and approval of an arrest request, examination and prosecution, and trial. The 2018 Criminal Procedure Law establishes Procedure for trial in absentia, while expanding the scope of application of mandatory designated defense again. If the absent defendant and his or her close relatives do not retain a defender, the court shall serve a notice on a legal aid agency requiring the designation of a lawyer to defend him or her. To complement the system of leniency for pleading guilty and accepting punishment, the 2018 Criminal Procedure Law established a duty lawyer system. If the suspect or defendant admits guilt and accepts the punishment, the investigative authority, the procuratorate and the court may notify the duty lawyer to provide legal assistance, which includes but is 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. Although duty lawyers are not defenders, and the system of designated duty lawyers is different from the system of designated defense, the duty lawyer system enables suspects and defendants who admit guilt and acceptant punishment to get help from lawyers in time. Although the Criminal Procedure

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Law has expanded the scope of application of mandatory designated defense, this system still cannot meet the needs of suspects and defendants to obtain the help of lawyers, and as a result, most defendants have to “defend by themselves”. Wrongful convictions, abuse of power by investigators, prosecutors and judges, violations of the rights of suspects and defendants, and an increase in the number of lawyers show that it is necessary and feasible to expand the scope of application of the mandatory designated defense. Moreover, the reform of the judicial system, which began in 2014, includes two programs: a “trial-centered litigation system” and “the system of leniency for admitting guilt and accepting punishment”. The implementation of these two systems is predicated on the participation of defense lawyers in litigation, so the program of “full coverage of criminal defense lawyers” is included in the judicial reform, becoming an important part of the reform of the criminal defense system. In 2017, some cities carried out a reform of “full coverage of criminal defense lawyers”.20 After a year of experimentation and a comprehensive assessment of the pros and cons, the Supreme Court and the Department of Justice implemented the reform nationwide.21 Sooner or later, the system of “full coverage of criminal defense lawyers” will be incorporated into the criminal procedure law and become part of the criminal defense system. The “full coverage of criminal defense lawyers” is a judicial reform that goes hand in hand with the revision of the Criminal Procedure Law. It contains two parts. First, for cases of first and second instance tried under the common procedure and cases tried under the trial supervision procedure, the court shall designate a legal aid lawyer to defend the defendant if the defendant has not retained a lawyer. This means that the scope of application of mandatory designated defense will be expanded as never before, and the court will assume the obligation to appoint a defense lawyer in all cases of first and second instance tried under the common procedure and all cases tried under the trial supervision procedure. Secondly, in the summary procedure and the fast-track sentencing procedure, if the defendant has not retained nor been designated a defender, the court shall notify the legal aid duty lawyer to provide legal assistance for him or her. The reform pilot of “full coverage of criminal defense lawyers” has extended the scope of application of the legal aid duty lawyer system established by the 2018 Criminal Procedure Law to cases under summary procedure. The revision of the Criminal Procedure Law in 2018 and the reform pilot of “full coverage of criminal defense lawyers” have formed two models of criminal legal aid system: one is the mandatory designated defense model, and the other is the legal aid duty lawyer model. In the former model, the designated lawyer has the status of “defender” and can provide comprehensive legal assistance to the suspect or defendant in the same way as the retained lawyer. In the latter model, the duty 20

The Supreme People’s Court, the Ministry of Justice. Measures on the Implementation of the Pilot Project on the Full Coverage of Lawyers’ Defense in Criminal Cases (Sifa Tong [2017] No. 106). 21 The Supreme People’s Court, the Ministry of Justice. Notification on the expansion of the pilot scope of full coverage of the defense of lawyers in criminal cases.

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lawyer does not have the status of “defender”, but can only provide temporary and urgent legal assistance to the suspect or defendant. These lawyers, who take turns to be “on duty” in detention centers, prosecution offices or courts, do not have a fixed duty station and do not form a litigation representation relationship with the suspects and defendants they help, but rather provide temporary and urgent legal services like “emergency doctors”. For the cases where the defendant admits guilt and accepts the punishment, duty lawyers participate in the process of reaching sentencing agreements between prosecutors and defendants who do not have defenders. However, these two criminal legal aid models have shortcomings that necessitate their reform as criminal justice reform proceeds. One example is in the mandatory designated defense, some legal aid lawyers are not professional and cannot do their job well. This is because, on the one hand, the level of legal aid lawyers varies, and there is no incentive mechanism, and lawyers are underpaid, and on the other hand, there is no quality standard of legal services and reward and punishment mechanism. Therefore, in the context of the marketization of the legal profession, if the legal aid system is not reformed, legal aid as a “social welfare” can only provide legal services of low quality. In the duty lawyer system, a duty lawyer provides little legal assistance, and often works for the prosecution. For example, the criminal suspect signs a recognizance to admit guilt and accept punishment in the presence of the duty lawyer.22 The reason for this is that duty lawyers do not have the status of “defenders”, so they do not have the right to meet and communicate with a suspect or defendant in custody, the right to consult, extract, and duplicate case materials, and the right to gather evidence, and they cannot negotiate and discuss with the prosecutor on the conviction and sentence, the result is that the prosecutor is “dominant” and “has the advantage of resources and information”, the so-called “equal consultation between the prosecution and the defense” has become empty talk.23 In addition, duty lawyers usually have low professional level and poor business ability, so they have difficulty in getting clients because of their lack of experience and short time in the profession, or they can only obtain meager remuneration of duty lawyers because of poor ability. As a result, they work with little enthusiasm, provide bad legal help, and even go against the wishes of suspects and defendants in order to establish a good relationship with the prosecution. Under such circumstances, the original purpose of the duty lawyer system would be difficult to achieve.

22

Yao Li. The role and function of duty lawyers in the procedure of pleading guilty and accepting punishment. Legal Business Research, 6. 23 Min, Chunlei. (2017). Effective defense in the cases of pleading guilty and accepting punishment. Contemporary Jurisprudence, 4.

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6.5 Defense Effect: From “Obtaining Lawyers’ Help” to “Obtaining Effective Defense” The reform of the assigned defense system, the reform of the legal aid system, and the “full coverage of criminal defense lawyers” program all aim to ensure that suspects and defendants have access to lawyers. The significance of the participation of defense lawyers and duty lawyers in criminal proceedings is self-evident. But can suspects and defendants actually get effective help from their lawyers? In other words, can lawyers who provide legal assistance to suspects and defendants fulfill their loyalty obligations to protect the rights and interests of their clients? If the suspects or defendants retain or are designated an incompetent and unprofessional lawyer, they not only do not get the defense they expect, but they also lose the opportunity to get legal help from a good lawyer. Just like a patient seeking medical treatment, an incompetent doctor not only fails to heal the patient, but also delays treatment, leaving the patient with little chance of healing. The forty-year development of the criminal defense system has given rise to the concept of effective defense while ensuring that suspects and defendants have access to lawyers. According to this concept, suspects and defendants should obtain effective legal assistance from lawyers. There are four aspects of what it means to have effective legal help. First, the lawyer is qualified and competent. Second, the defense is well prepared. Third, the defense ideas and defense strategies formed through consultation with the client are appropriate. Fourth, the defense approach is productive.24 In short, a effective defense is not the same as an “effectual defense”,25 it does not mean that the lawyer persuades the judiciary to make a decision in favor of the client, but the lawyer defends the client with due diligence to protect the client’s rights and interests. Under the concept of effective defense, the law regulates the defense of lawyers in two ways. On the one hand, the system that regulates the defense of lawyers imposes more obligations on them. Since 1996, the Criminal Procedure Law has allowed lawyers to provide legal assistance to suspects before trial, and it has expanded the scope of defense in terms of lawyers’ rights to meet with defendants, consult case materials and gather evidence. These are both the rights of lawyers and the requirements for their legal services. In particular, according to the 2012 Criminal Procedure Law, lawyers may “verify relevant evidence” when meeting with a criminal suspect or defendant in custody from the day when the case is transferred for examination and prosecution. Lawyers are allowed to discuss the evidence in the case with their clients, which urges lawyers to communicate with their clients and motivates them to form a synergy that can produce positive results.26 The Rules on the Handling of Criminal Cases by Lawyers issued by the All-China Lawyers’ Association in 2017 24

Xiong Qiuhong. (2014). International standards and localization of effective and ineffective defenses. Chinese Journal of Criminal Law, 6. 25 The difference between an “effective defense” and an “effectual defense”, see Zuo Weimin. (2019). An effective defense or an effectual defense? Law Review, 1. 26 Han Xu. (2016). A Study on the issue of verification of evidence by defense attorneys. Jurist, 2.

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require lawyers to carry out work according to the principle of being conducive to their clients and not to present any defense opinions inconducive to the clients, and even require lawyers to negotiate with the client on defense strategies to eliminate differences in defense views. This obviously places a higher demand on the lawyer’s defense and pushes the lawyer to provide the best legal assistance in a position that benefits the client. Not only that, the reform of lawyer administration systems reflects the concept of effective defense. These reforms include establishing an admission and withdrawal system for legal aid lawyers, increasing legal aid funding, establishing a fee agreement system for lawyers, removing restrictions on the amount of fees charged by defense lawyers, and improving the mechanism for clients to file complaints against lawyers. On the other hand, under the concept of effective defense, the criminal procedure law requires the investigating authorities, procuratorates and courts to undertake some obligations in order to guarantee the exercise of defense rights by lawyers. In order for suspects and defendants to have a effective defense, it is necessary for the aforementioned state organs to assume the obligation to ensure a effective defense, and the two are mutually reinforcing. To ensure effective defense by lawyers, the 1996 Criminal Procedure Law established “adversarial trial model” and the system of cross-examination. The law establishes for the first time the principle of in dubio pro reo and places the burden of proof on the prosecution. Without these legislative advances, it would be difficult for lawyers to play an active role. The 2012 reform of the Criminal Procedure Law provides more room for lawyers’ defense and enhances the effectiveness of the defense. For example, the problem of “difficulty in meeting with clients” and “difficulty in consulting materials” has been solved, lawyers are allowed to meet with a criminal suspect or defendant in custody, and lawyers may, from the day when the procuratorate examines a case for prosecution, consult, extract, and duplicate case materials. And the rule of excluding illegal evidence and the system of witnesses and experts testifying in court were established. Also, the Supreme Court reviewing a death sentence shall, if the defense lawyer files a request for presenting an opinion, hear the opinion of the defense lawyer. Experience shows that every progress in the direction of democratization and scientific nation of our criminal procedure system has created conditions for the effective defense of lawyers. The “effective defense” theory comes from the United States.27 The attention of our legal and practical circles to effective defense has only just begun, and research and discussion need to be further strengthened. There is a consensus that lawyers should not only provide legal help to suspects and defendants, but that legal help should be valid. To some extent, the concept of effective defense can promote the reform and development of China’s criminal defense system, and it can also be the standard for measuring the level of lawyers’ defense. First, to achieve an effective defense, it is necessary to establish a system of ineffective defense and to establish a system of procedural sanctions for cases of ineffective defense. The effective defense is a principle of defense, while the ineffective defense 27

Xiong Qiuhong. (2014). International standards and localization of effective and ineffective defenses. Chinese Journal of Criminal Law, 6.

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is a system that guarantees effective defense. The so-called ineffective defense refers to lawyers who violate the professional code and provide legal assistance to their clients without due diligence and responsibility. In an ineffective defense, the client suffers an unfavorable outcome, the lawyer is clearly at fault in the defense, and there is a direct causal relationship between the fault and the unfavorable outcome.28 For example, a lawyer is considered incompetent because he or she has no defense experience, the lawyer does not prepare the defense, the lawyer does not communicate with the client, the lawyer does not agree with the client on the defense but insists on his or her opinion, the lawyer’s defense strategy is wrong, the lawyer’s defense is improper, etc. These are all common cases of ineffective defenses. In the future, our law should comprehensively and accurately enumerate the circumstances of ineffective defense and provide for the legal consequences of ineffective defense. In terms of discipline for lawyers, if the defense is found to be invalid, the lawyer shall be deemed to have violated the agreement with the client and the code of professional ethics, the lawyer shall be ordered to withdraw from the defense, shall refund the fees, and shall be subject to disciplinary action. In terms of procedural consequences, if the higher court determines that the defense is invalid, it should rescind the original judgment and remand the case to the court which originally tried it for retrial, which means that the decision made by the court in the case of an ineffective defense is invalid.29 Secondly, effective defense depends on the transformation of the relationship between defense lawyers and clients. The concept of the absolute “independent defenders” have receded from the stage of history and have been replaced by the legal agents. However, in terms of the relationship between defense attorney and client, our law gives the attorney a higher status than the client.30 For example, the law does not require defense attorneys to communicate with their clients about defense ideas and defense strategies, nor does it create the conditions for doing so. The result is that attorneys and clients do not agree on defense views due to a lack of communication. Another example is the layout of the criminal court, the defendant is on the opposite side of the bench, the defense is on the side of the courtroom, and the lawyer and the defendant can not communicate in a timely manner during the trial due to not sitting together. If a lawyer seeks a recess on the ground of communicating with the client, the court often denies the application. Lawyers’ requests to meet with their clients outside the courtroom during a recess are also often denied by the court. As a result, it is difficult for the defense lawyer and the client to communicate in a timely manner either during the trial or outside the courtroom, which makes it impossible for the lawyer and the client to agree on the defense viewpoint, let alone form a defense team. Another example is the lawyer fee system, many places have established the “agreement fee” system, allowing lawyers and clients to negotiate 28

Lin Jinsong. (2006). The U.S. system of ineffective defense and its borrowings. Journal of East China University of Political Science and Law, 4. 29 Wayne R. LaFevre et al. (2001). Criminal procedure law (Bian Jianlin et al., Trans.). China University of Political Science and Law Press, p. 661. 30 Zuo Weimin. (2019). An effective defense or an effectual defense? Law Review, 1.

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the lawyer fee, which led to the lawyer fee increase, while the interests of the client are ignored. Defense lawyers “charge first and defend later,” which means that the lawyer collects all defense fees at the time of signing the contract with the client and the lawyer does not begin work until the fees are paid. This way of charging defense fees puts the lawyer in a strong position and the client has very little control over the lawyer. As you can imagine, a lawyer who has been paid is unlikely to have much incentive to work diligently for a client. What’s more, lawyers charge full fees without knowing the workload, and if more time and effort is needed afterward, lawyers have no incentive to work hard. Obviously, under the current fee system, the status of lawyers and clients is not equal, and the client’s control over the lawyer is weak. Moreover, this system is against the principle of “pay for work”, which makes lawyers have no incentive to do their job. Thirdly, effective defense depends on the reform of the legal aid system. There are two models in our criminal legal aid system, mandatory designated defense and duty lawyer. As mentioned earlier, the quality of legal aid lawyers needs to be improved, and the admission and withdrawal system should be reformed to attract dedicated lawyers to join the ranks of legal aid. At the same time, minimum service quality standards for criminal legal aid should be established, strict requirements should be set for the defense work of legal aid lawyers, and timely disciplinary actions should be taken against lawyers who make the ineffective defense. Legal aid funding should be increased and legal aid lawyers should be paid well to motivate them to work hard.31 The duty counsel system should be reformed along the lines of “duty lawyer as defender”.32 The legal assistance of the duty lawyer should be divided into two parts. One is to provide legal assistance, file petitions and accusations and apply for modifying a compulsory measure. When the suspect or defendant admits guilt and accepts punishment, or applies for excluding illegally obtained evidence, the duty lawyer shall be notified and shall assist him/her in finding a defense lawyer, and the legal aid lawyer should be designated as a defender for the suspect or defendant. The idea of this reform is to retain the duty lawyer system and change the role of the duty lawyer to that of a temporary legal helper in emergency situations and a facilitator for suspects and defendants seeking a lawyer for their defense. And the designated lawyer is responsible for participating in the proceedings of sentencing negotiation and the application for exclusion of illegal evidence. Finally, by reforming the criminal justice system, more obligations should be placed on the investigative authorities, procuratorates and courts to facilitate and guarantee defense by lawyers. The investigating authority shall allow the suspect to retain a defense lawyer, designate a legal aid lawyer to defend the suspect, allow the defense lawyer to participate in the investigation, notifying the defense lawyer to be present and hear the lawyer’s opinion. The procuratorates should allow lawyers to 31

According to scholars, the total amount of legal aid funding in China is relatively small, per capita is too low, and the source is single, see Fan Chongyi. (2017). The construction and prospect of china’s legal aid system. China Law Review, 6. 32 For a detailed discussion, see Min, Chunlei. (2017). Effective defense in the cases of pleading guilty and accepting punishment. Contemporary Jurisprudence, 4.

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participate in the process of examination and approval of an arrest, and the process of examination and prosecution, listen to the opinions of lawyers, and consider the opinions of lawyers when making decisions on approving arrests and on the prosecution. The court should create conditions for the defense of the lawyer. For example, if a lawyer raises an objection to the witness statement of a witness, expert, or police officer, the court should require them to testify in court. If the lawyer applies for the exclusion of illegal evidence, or if the lawyer applies for a pre-trial conference for good cause, the court shall hold a pre-trial conference. If the lawyer raises reasonable objections to the facts and evidence found in the first trial and applies for a court session to try the case, the court of the second instance shall hold a court session. When the Supreme People’s Court reviews a death penalty case, if the lawyer requests and applies, the court shall meet with the lawyer, hear the lawyer’s opinion, review the lawyer’s written opinion, and respond to the lawyer’s opinion in the ruling.

6.6 Protection of the Right to Defense: “Judicial Remedy” and “Legal Risk Prevention and Control” China’s criminal procedure law has established a large number of litigation rights for defense lawyers. These rights are divided into two types: one is the “authorized right” authorized by the client, and the other is the “inherent right” independently exercised by defense lawyers. The former type of rights is originally a suspect’s or defendant’s right, and the law allows the suspect or defendant to authorize the lawyer to exercise these rights for the suspect’s or defendant’s benefit. Such rights include the right to request disqualification, the right to apply for gathering or submission of evidence, the right to request that a witness be called to the court, that new physical evidence be submitted, or that a new forensic identification or evaluation or crime scene investigation be conducted, the right to file an appeal, etc. The latter type of rights is the litigation rights that the law grants to lawyers to exercise independently in order to enable them to exercise their right to defense. Such rights include the right to meet and communicate with a criminal suspect or defendant in custody, the right to verify relevant evidence with the criminal suspect or defendant, the right to consult, extract, and duplicate case materials, the right to gather information regarding a case from a witness or any other relevant entity or individual, etc. With the improvement of the criminal procedure law, the litigation rights of lawyers have increased and their contents have been enriched. However, lawyers face two difficulties in exercising their rights. First, how do lawyers obtain legal remedies when their rights are violated? In particular, how do they seek timely and effective judicial remedy? Second, when exercising rights, how to prevent and control possible practice risks if lawyers are investigated, subject to compulsory measures or even held criminally responsible? In terms of the rights remedy system, China’s criminal procedure law has established a series of procedural sanctions marked by invalidation. The 2012 Criminal

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Procedure Law established for the first time complete rules for the exclusion of illegal evidence, allowing suspects and defendants to apply to the procuratorates and courts to exclude illegal evidence. Since 1979, the Criminal Procedure Law has provided that if the court of first instance violates the statutory procedures, the court of second instance shall render a ruling to revoke the original verdict and remand the case to the original trial court for retrial, which in effect allows the defendant to apply for invalidation of the first instance verdict.33 Under the above two procedural sanctions systems, lawyers can apply for judicial remedy against police and first instance judges for violations of statutory procedures. The above two procedural sanctions systems provide judicial remedy for suspects and defendants against the violation of their rights. How can lawyers seek judicial remedy if their rights are violated? In judicial practice, when lawyers apply to meet with the defendant, consult case materials and gather evidence, public security organs, procuratorates and courts often restrict their litigation rights. The Criminal Procedure Law does not establish a judicial remedy system for this situation, so such procedural violations are not subject to procedural sanctions.34 The detention center’s restriction or denial of the right of lawyers to meet with a suspect or defendant in custody cannot be the basis for the court to exclude illegal evidence. In this case, the lawyer can only file a petition or accusation to the public security organs or procuratorates, but cannot apply to the court for judicial review. Another example is that if the prosecutor restricts or deprives the defense lawyer’s right to consult, extract, and duplicate case materials, the lawyer can only file a petition or accusation with the procuratorate, but cannot apply to the court to for a declaration of invalidity. Then, for example, after the lawyer has gathered evidence from a witness or other relevant entity or individual, but has been refused, the lawyer applies to the procuratorate or court for gathering evidence but is refused. In this case, the lawyer can only file a petition or accusation with the procuratorate or the court that has refused him or her, but cannot apply for judicial review by the higher court, let alone request the higher court to revoke the original verdict on the grounds that “statutory procedures are violated, which may affect fairness of the trial”. The inability of defense lawyers to obtain judicial remedy for violations of their procedural rights has left their right in name only and has prevented lawyers from the effective defense. Since there is no legal remedy, some lawyers seek other remedies, such as to the news media, NPC deputies, and CPPCC members to report the case, in order to obtain the support of society. Some lawyers resort to the Internet, seminars and other unorthodox ways to express their defense views and put up fierce resistance. In the case that the defense of conviction and sentence is difficult to be effective, some lawyers put forward the defense viewpoint of litigation procedures, such as litigation requests for procedural issues such as disqualification, jurisdiction, postponement of

33

For a discussion of the procedural sanctions system in China, see Chen Ruihua. (2017).The theory of procedural sanction. China Legal Publishing House, p. 190. 34 Chen Ruihua. (2005). A jurisprudential analysis of procedural sanction system. Chinese Jurisprudence, 6.

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trial, witness testimony, and exclusion of illegal evidence, in order to exert pressure on the judicial authorities. This is why there are so-called “intractable lawyers”.35 In addition, defense attorneys face a variety of legal risks, divided into the risk of disciplinary action, the risk of being sued in civil litigation, and the risk of criminal prosecution. One of the biggest risks is the legal risk of criminal prosecution, which is also called “criminal legal risk” by lawyers. The crimes in the criminal law in which the defense attorney is the subject of the crime include destruction of evidence, falsification of evidence and obstruction of testimony. These three crimes are defined in Article 306 of the 1997 Criminal Law, and the risks they pose to the practice of law are often referred to as “Article 306 problems”. The crime of obstructing testimony is typical, i.e., the defender or litigation agent “threatens, lures witnesses to contravene facts, change their testimony or make false testimony” in criminal proceedings. The background of this provision is that the 1996 Criminal Procedure Law allows lawyers to defend during the examination and prosecution and to provide legal assistance during the investigation, which led the procuratorates and public security organs treat lawyers as enemies and demand criminal liability for lawyers. As a result, the legislature expanded the space for lawyers to participate in the criminal procedure law, but was pressured to provide for such a “disciplinary offense against defense lawyers” in the criminal law. The elements of the crime of “obstructing testimony” are vague and open to arbitrary interpretation.36 As a result, in judicial practice, if a defense lawyer gathers evidence from a witness or victim, and the witness or victim changes the testimony given to the investigative or prosecutorial authorities, it may be considered “obstruction of testimony”, and many lawyers are subject to compulsory measures and even convicted and sentenced. Around 2000, the number of cases in which lawyers were held criminally liable for obstructing testimony peaked,37 so that Article 306 of the Criminal Law was once regarded as the “sword hanging over the heads of defense lawyers” and became the main source of legal risk for lawyers. The criminal risk of lawyers directly from gathering evidence, especially verifying the testimony with the prosecution witnesses and victims, therefore, many lawyers are reluctant to gather evidence, making it increasingly difficult for lawyers to collect evidence. The lawyer community opposes Article 306 of the Criminal Law, arguing that it is a tool for public security organs and procuratorates to retaliate against defense lawyers. During the “two sessions” of the National People’s Congress and the Chinese People’s Political Consultative Conference (CPPCC) held in March every year, representatives from the legal profession often propose motions to repeal Article 306 of the Criminal Law. In order to alleviate the concerns of lawyers and to address the problem of lawyers’ risk in practicing law, the Criminal Procedure Law amended in 2012 has changed the jurisdiction of the cases in which lawyers are suspected of committing crimes, 35

Ye Zhusheng. (2013). Intractable Lawyers. Southwind Window, 18. Sun Wanhuai. (2010). The determination of the crime of falsifying evidence and obstructing testimony by defenders of Li Zhuang’s case. Jurisprudence, 4. 37 For specific data, see Wang Chao. (2002). The risks of taking by lawyers and its prevention. Lawyer’s World, 9. 36

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stipulating that such cases “shall be handled by a criminal investigation authority other than the one handling the case in which the defender provides representation”, and “the law firm employing the lawyer or the bar association to which the lawyer belongs shall be informed in a timely manner”. After the enactment of the Criminal Procedure Law in 2012, the number of cases in which lawyers are prosecuted for alleged obstruction of testimony has decreased significantly, which has reduced the criminal legal risk for lawyers. However, such cases still occur. Although these cases are few and far between, they are often the subject of concern and controversy in the legal community whenever lawyers are subject to compulsory measures or even criminal prosecution for collecting evidence. Fundamentally, defense counsel criminal law risks are closely related to the criminal justice system. The main reason why defense lawyers are considered to be “obstructing testimony” is that the defense may lead to the court’s acquittal of the defendant or the remand of the case by the higher court, resulting in the prosecution losing the case, which means that the lawyer’s defense is in conflict with the criminal prosecution. Once a lawyer’s defense is regarded as a “professional obstacle” by the criminal prosecution authority, the prosecution authority will open a case for criminal investigation, and take compulsory measures and other investigative measures to prosecute the defense lawyer. Under China’s judicial system, the public security organs can decide to open a case and take investigative measures on their own, without a judicial review process presided over by a neutral judicial organ. As a party with a conflict of interest with the defense lawyer, the procuratorate has the power to approve the arrest of the lawyer and prosecute the lawyer, which is obviously “the plaintiff approves the arrest of the lawyer” and “the plaintiff prosecutes the lawyer”, the neutrality and impartiality of which is questionable. The 2012 Criminal Procedure Law changed the jurisdiction of filing such cases so that the former investigation authority is not allowed to investigate and the former procuratorate is not allowed to approve an arrest and prosecute in cases where lawyers are suspected of committing crimes, which is obviously significant progress. However, as long as the public security organs have the power to file cases and take compulsory measures against defense lawyers, and as long as the procuratorate has the power to approve arrests of lawyers, lawyers are subject to arbitrary prosecution. After forty years of development, China’s criminal defense system has made significant progress in many aspects, but the problem of the remedy of defense lawyers’ litigation rights and the prevention and control of criminal legal risks has not been fundamentally solved. The key to solving the problem of defense lawyers’ rights remedy lies in the judicial system reform to establish a remedy system for defense lawyers, so that the violation of lawyers’ rights is subject to procedural sanctions and defense lawyers can apply for judicial review on procedural violations. The prevention and control of criminal legal risks for defense lawyers depend on the establishment of a judicial review system to give the courts the power of judicial review and bring an end to the excessive power of the public security organs and the procuratorate. In this way, the safety of defense lawyers’ practice can be guaranteed and the problem of arbitrary prosecution of defense lawyers can be solved.

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6.7 Conclusion By reviewing the development of the criminal defense system over the past forty years, the author feels that the defense system, as an integral part of the human rights protection system, has not only developed in tandem with the political, economic and social changes, but has also been influenced by the reform of the judicial system. It can be said that the criminal defense system has developed with the reform of political, economic and social governance mechanisms and the reform of the criminal justice system. The role of lawyers has changed, the scope of their participation has expanded, the legal aid system has developed, and effective advocacy has been achieved in the context of political, economic, and social changes. Lawyers’ rights remedy system and lawyers’ practice risk prevention and control system are closely related to criminal justice reform. The development of the criminal defense system follows the five ways analyzed earlier. In each of these five ways, the defense system has made progress in varying degrees, but there are also many aspects that face the question of how to develop and reform it. Like the legal system, the criminal defense system is a “living organism” that can only develop healthily under the right institutional, environmental, and cultural context. This is just like a plant needs the proper soil, water, nutrients, air and other prerequisites to survive and grow. Only a combination of external and internal factors can drive the development of the system. There are three main external factors that play a role in the development of the criminal defense system: the first is the borrowing and transplanting of foreign criminal defense systems; the second is the judicial system reform; the third is a call from the jurisprudence and legal community. However, without a sufficient number of lawyers with professionalism, it is difficult to implement a well-designed system. Without a criminal procedure that conforms to the laws of justice in its overall structure, there is a limit to the space in which the defense system can function. Without a process conducive to achieving justice, the validity of a lawyer’s defense cannot be achieved. When observing the reform of the criminal defense system in China, one should think about the above-mentioned issues, identify the internal factors that hinder the reform, and analyze the reasons for their hindrance. Otherwise, the expansion of the lawyer’s defense space, the expansion of the scope of cases in which the lawyer participates, and the improvement of the lawyer’s defense means will not achieve the desired effect. If the lawyer’s rights are not remedied and the lawyer’s defense is a formality, the possibility of conflict between the lawyer and the judiciary will increase. The key to reforming the criminal defense system is that lawyers can provide timely and valid legal assistance to their clients, the rights of lawyers can be remedied, and the safety of defense lawyers can be guaranteed. China’s law reform of the role of lawyers and lawyers’ professional ethics, is a “qualitative” leap. However, in terms of the scope of participation, space and stage of participation of defense lawyers, our law has only made “quantitative” changes, and “qualitative” improvement has yet to occur. This may be the deep-seated problem that our criminal defense system is trying to solve.

Part II

Models

Chapter 7

Negotiated Procedural Justice

7.1 Introduction As an important legal concept, Procedural justice is a criterion for evaluating whether a legal procedure is fair or not. The main subject of the traditional procedural justice theory is whether procedural fairness is independent of the fairness of the judgment. There have been two academic schools on this subject: procedural instrumentalism and procedural departmentalism. The former regards the process as a tool to implement substantive law and procedural justice to guarantee the fairness of the judgment. The latter emphasizes the inherent value of the legal procedure, and holds that procedural justice is not a tool for fair results, but has independent significance in asserting the parties’ litigation rights and human dignity. However, most researchers hold a compromise view. They believe, that although consideration must be given to both procedural justice and substantive justice, procedural justice ensures that the interested parties are treated with dignity and helps to find out the facts and achieve the goal of fair judgment.1 Since the end of the twentieth century, with the progress of the legal system and judicial reform in China, the legal circle has gradually accepted the idea of procedural justice based on the reflection on procedural nihilism. It has taken this legal concept as the guide for procedural law reform. After many reforms of the criminal procedure law, the rights of criminal suspects and defendants are strengthened and guaranteed, the defense lawyers are available in more stages, and the accused get more opportunities to participate in the pretrial meeting, the court trial, the out-ofcourt investigation, and the death penalty review. This embodies the requirements of procedural justice. In addition, if a court of the second instance discovers that a court of the first instance violates the litigation procedures prescribed by law which may hamper the fairness of the trial, it shall rule to rescind the original judgment and remand the case to the court which originally tried it for retrial. Therefore, the court trial that violates procedural justice may suffer the legal consequences of 1

Chen Ruihua. (2020). The theory of criminal trial. Law Press, p. 62.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_7

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being “declared invalid”, subject to procedural sanctions, an effective relief system for realizing procedural justice. Since the judicial system reform in 2014, there has been the “trial-centered litigation system reform” in the criminal process and the reform of “substantive trial” for this purpose. In essence, these reforms have the consideration of preventing unjust, false and wrong cases, safeguarding substantive justice, strengthening the parties’ rights, and achieving procedural justice. It can be said that the theory of procedural justice has been regarded as an essential guiding theory in the trial reform marked by “trial centrism”.2 While promoting the “trial centrism” reform, the judicial reform policymakers also proposed “the system of leniency for pleading guilty and accepting punishment”. The process was formally established in the Criminal Procedure Law in 2018 after a four-year reform experiment. According to this system, if a criminal suspect or defendant confesses the alleged crime and is willing to accept criminal punishment, the judicial organs shall impose lenient criminal punishments on him. The essence of the procedure of pleading guilty and accepting punishment lies in the negotiation mechanism between the prosecution and the suspect, which allows both parties to reach a sentencing agreement confirmed by a “recognizance to admit guilt and accept punishment” through dialogue, negotiation and compromise. If the court considers that there is a factual and legitimate basis for the procuratorate’s after a formal review and a substantive review of the plea case, the judgment may be made based on the sentencing suggestion.3 The sentencing negotiation between the procurator and the defendant is known as the negotiated public cooperation model. The sentencing negotiation between the prosecution and the defense is not only present in the procedures where the defendant admits guilt and accepts punishment. There have been reform experiments where criminal reconciliation was reached between the victim and the accused in some minor criminal cases as early as the end of the twentieth century in China. The system of criminal reconciliation was finally incorporated into the 2012 Criminal Procedure Law. It became a formal criminal procedure system as it could help the victim get civil compensation, resolve the disputes between the victim and the offender, and prevent the victim from filing complaints and petitions. The premise of criminal reconciliation is that the offender pleads guilty and repents, and its core is that the offender pays the victim high civil compensation. The two sides agree on the amount of the compensation by dialogue, consultation and conciliation, and the victim does not request a severe punishment or requests for a lenient punishment. Subsequently, the victim and the offender sign a criminal reconciliation agreement. A lenient criminal punishment may be imposed if the judicial organ confirms the legality of the criminal reconciliation after a formal review and a substantive review.4 This negotiated justice is called the “negotiated 2

Long, Zongzhi. (2015). The path and method of court trial substantiation. Jurisprudence Research, 4. 3 Chen Weidong. (2016). Study on the system of leniency for pleading guilty and accepting punishment. Chinese Jurisprudence, 2. 4 Song Yinghui et al. (2008). An empirical analysis of criminal reconciliation in China. Chinese Jurisprudence, 5.

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private cooperation” model because the victim and the defender reach the criminal reconciliation agreement by negotiation. In the negotiated justice procedures where the defendant pleads guilty and accepts punishment or the parties reach a criminal reconciliation, the prosecution and the defense communicate, negotiate and conciliate. The accused confesses his crime, and both sides move towards cooperation from the confrontation. During court trials, whether the defendant commits the crime is not the main issue. Defendants and their defenders usually waive the innocence defense, so there is no dispute on the accused crime between the prosecution and the defense. The main issue is the sentence. The court mainly reviews the authenticity, voluntariness and legality of the agreement between the prosecution and defense, and sometimes also reviews the appropriateness of the sentencing plan proposed by the prosecution and defense. The prosecution and defense are no longer in opposing camps. The values of the traditional procedural justice theory, such as the neutrality of judges, participation in litigation, equality of arms, and procedural rationality, are no longer important in the negotiated judice procedure. To a large extent, the idea of procedural justice based on the equality of the prosecution and the defense seems useless in the negotiated judice procedure. Some Chinese scholars believe that procedural justice theory is not applied to the negotiated procedures based on the cooperation between the prosecution and defense. Some people even point out clearly that both cooperative judice and negotiated judice are “contrary” or “inconsistent” with procedural justice.5 Some scholars believe that procedural justice is mainly applicable to the procedures where the prosecution and defense are opposing rather than the process where both parties are willing to cooperate.6 However, it is proven in practice that the court still must hold a court hearing in the procedures where the defendant pleads guilty and accepts punishment or when the parties reach a criminal reconciliation. Defendants make decisions of their own free will and are entitled to legal counsel and participate in the trial process when pleading guilty, signing the recognizance to admit guilt and accept punishment, and reaching settlement agreements with victims. This demonstrates that minimum procedural justice still exists in negotiated justice procedures. On the other hand, compared with ordinary procedures, the negotiated justice procedures do not meet all the requirements of traditional procedural justice. As soon as the defendant waives his innocence defense, he misses the opportunity to participate in the litigation process. But as a reward, the defendant may be imposed a lenient punishment. The traditional theory of procedural justice is mainly applicable to the confrontational justice procedure, it can therefore be called “the confrontational procedural justice”. This theory of procedural justice focuses on the involvement and control of the judge in the litigation process, which is not fully applicable to the negotiated justice procedure. In fact, negotiated procedural justice focuses on the final judgment rather than on the process itself. The defendants waive the innocence defense and give up the right to participate in the litigation, but they may influence, sometimes 5

For a representative view in this regard, see Wei, Xiaona. (2014). Betraying procedural justice: A study of negotiated criminal justice. Law Press. 6 Chen Ruihua. (2016). Frontiers of criminal procedure. People’s University of China Press, p. 204.

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even determine the sentencing result. This chapter advances a theory on negotiated procedural justice based on the practice of negotiated justice.

7.2 Limitations of Traditional Procedural Justice Theory Procedural justice is embodied in the legal process. According to the theory of philosophy of law, any legal decision that may affect people’s interests, whether it is making laws, public policies, administrative decisions, or settling trial cases, will face the problem of procedural justice. The traditional theory of procedural justice concerns not only the process, but also the relationship between the process and the result.7 Procedural justice is often transformed into the “fairness of the trial” in the criminal process. There are two theories of procedural justice, procedural instrumentalism and proceduralism. According to the theory of procedural instrumentalism, the value in the legal decision process is divided into procedural justice and outcome justice, and the procedure is a tool for achieving the desired result, the more the procedure meets the criteria of justice, the more it facilitates the achievement of a just result. This theory is divided into absolute instrumentalist and relative instrumentalist theories, depending on the outcome to be pursued. Based on the utilitarianism philosophy, the absolute instrumentalist theory asserts that legal procedures are the only tools to guarantee the implementation of substantive law and that procedural justice is only justified if it contributes to the finding of the facts.8 The relative instrumentalist theory, based on the liberal philosophy, emphasizes the rights of the tried, particularly the “right to be presumed innocent” and the “right to a fair trial,” but these two rights ultimately serve “the right of the innocent not to be wrongly convicted.” A fair trial or procedural justice is a means of achieving a just result, except that the “just result” here is not the punishment of a crime, but the avoidance of the wrongful conviction of an innocent person.9 Unlike procedural instrumentalist theories, proceduralist theories deny the role of procedural justice as a guarantee of outcome justice, asserting that the realization of procedural justice neither guarantees the discovery of the truth of the case nor serves the implementation of substantive law, but rather realizes an “intrinsic value”, that is, the value of the legal process itself.10 As for what this intrinsic value is, different scholars have put forward different explanations, some think it is the “human dignity” of the person being judged, some think it is the “subjectivity” of the person being prosecuted, and some think it is the liberal values of “freedom”, “privacy” and

7

D. J. Galligan. (1990). Procedure. Dartmouth Publishing Co. Ltd. Gerald J. Postema. (1977). The principle of utility and the law of procedure: Bentham’s theory of adjudication. Georgia Law Review, 11:1393. 9 R. Dworkin. (1985). A Matter of Principle. Clarendon Press, p. 168. 10 R. A. Duff (1986). Trial and Punishment. Cambridge University Press, pp. 110–114. 8

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“equality”.11 As to why this “intrinsic value” should be pursued, this theory proposes a theory of legal credibility, emphasizing that procedural justice helps to achieve the “marginal effect”, “collateral effect” or “psychological effect” of the legal decision process, that is, it helps to reduce the resistance of the adjudicated to the decision, ensure that those who are deprived of their rights and interests are convinced of the decision, and maintain the public’s respect and trust in the process and outcome of the adjudication.12 Some scholars argue that “fair process” and “fair outcome” are inextricably linked, and that a fair trial does not necessarily lead to the “right outcome,” but contributes to the fairness of the decision.13 The two procedural justice theories mentioned above present different views on whether legal process has its independent value and the relationship between procedural justice and outcome justice. These two theories emphasize two different values of the legal process: the “intrinsic value effect” that helps preserve the dignity of the person being adjudicated; and the “good outcome effect” that helps achieve a just outcome. And in the realization of the two values mentioned above, the two theories each hold one side of the coin, treating the two values as irreconcilable sides. But let’s look at it from another perspective. We will find similarities between the two theories, which consider procedural justice and outcome justice important and independent legal values. The justice outcome is a legal value with objective criteria for judgment. As the British scholar Duff has criticized, traditional procedural justice theories divorce fair procedures from fair results and do not consider that a fair trial helps produce a fair outcome.14 The American scholar Rawls also believes that criminal trials can at best achieve “imperfect procedural justice,” that is, there is an objective standard for the fairness of the outcome, but there is no way to find a procedure that can achieve this fair outcome.15 Rawls’ subtext is that procedural justice in a criminal trial means only control of the process by the adjudicated, and that procedural justice cannot have an impact on a just outcome. The traditional theory of procedural justice is essentially a “confrontational procedural justice theory” applicable to the confrontational justice procedure. It can explain the trial procedure but cannot clarify the administrative procedure and the criminal pre-trial procedure. It focuses on the process rather than on the final judgment. It establishes the standard of fair judgment, but it cannot be applied to the procedures of cooperation, reconciliation, mediation and negotiation.

11

Robert S. Summers. (1974). Evaluating and improving legal process—A plea for “process values”. Cornell Law Review, 60(1). 12 J. R. Lucas. (1980). On Justice. Oxford University Press, pp. 1–19. 13 Michael D. Bayles. (1990). Procedural justice. Kluwer Academic Publishers, p. 5. 14 R. A. Duff. Trial and punishment. (1986). Cambridge University Press, pp. 110–114. 15 John Rawls. (1988). A theory of justice. Chinese Social Science Press, pp. 80–83.

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7.2.1 Does It Apply to Non-Confrontational Procedures? The confrontational justice procedure is the premise of the traditional procedural justice theory. In the confrontational justice procedure, the prosecution and the defense are in opposing camps. And the court, as a “third party” and a neutral referee, is responsible for resolving disputes between the parties by ascertaining facts and applying the law. From the point of view of the litigation process, this judicial procedure is subject to the presumption of innocence and the standard of procedural justice. The defense and the prosecution are in opposition, and a fair trial is presided over by a neutral judge. Principles, such as “No one can serve as a judge in one’s case”, “The judge must listen to the statements of both sides”, “The judgment must state the reasons”, “Equality of arms of the prosecution and the defense”, “The prosecution bears the burden of proof” and “In dubio pro reo”, portray the confrontational procedural justice. From the point of view of litigation results, this judicial procedure is subject to the principles of the state prosecution, crime penalty stipulated by law, and suiting punishment to the crime. Instead of the victim, the state prosecutes the offenders to avoid arbitrariness and uncertainty and achieve justice. Is the confrontational procedural justice applicable if the defendant confesses the alleged crime? It is uncertain. In the criminal summary procedure established in 1996, if the defendant waives innocence defense, the prosecution and the defense may negotiate with each other, and the court does not hear the conviction issue anymore, but only reviews and confirms the criminal facts stated by the procuratorate. The procedures where the defendant pleads guilty and accepts punishment or the parties reach a criminal reconciliation have been adopted since 2012. The prosecution and the defense may communicate, negotiate, and reach an agreement on sentencing, which the court usually confirms after a formal review. In the non-confrontational justice procedures, the accused gives up some opportunities to participate in the proceedings, and the prosecution and the defense communicate, negotiate, and make compromises rather than fight with each other. At the same time, the prosecution and the defense directly influence and control the judgment, seeking a mutually beneficial and win– win outcome. The court does not seek objective substantive justice, but respects and accepts the parties’ agreement. The traditional procedural justice theory does not apply to the non-confrontational justice procedure.

7.2.2 Is the Out-Court Procedure Justified? The traditional theory of procedural justice is mainly embodied in the court trial, focusing on the legitimacy of trial procedures. The so-called “procedural justice” is often referred to as “fairness of the trial”. In some human rights conventions, the accused’s right to the fairness of the trial is synonymous with procedural justice. Historically, both the two laws of natural justice in the United Kingdom and the due process in the US Constitution focus on the impartiality of court trials. “Listening to

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the other party’s statement” means that the judge shall not unilaterally contact one party. “No one can serve as a judge in one’s case” means that the judge should be neutral and unbiased. “Equality of arms” means that the prosecution and the defense are equal in front of the judge. “Stating the reason of the judgment” means that the judge follows the principle of procedural rationality. But does this procedural justice theory apply to proceedings in which no third party is involved? In particular, there is no basic procedural structure in the investigation and review of the prosecution in criminal proceedings. Can these procedures achieve the value of “fairness of the trial”? How is procedural justice achieved in the outof-court process where the prosecution and the defense negotiate about confession, sentencing and compensation? Although the courts would conduct a judicial review on the pretrial process and out-of-court negotiation, how do these procedures meet the minimum procedural justice requirements when court trials are mere formalities? Therefore, the traditional theory of procedural justice which originates from “fairness of the trial” cannot explain and apply to the pretrial process and out-of-court negotiation.

7.2.3 Are There Objective Standards for the Fairness of Results? The traditional theory of procedural justice holds that there are two independent values: one is the fairness of the process, the other is the fairness of the result. The fairness of the result has its objective standards, which are to find the truth, not to wrong the innocent, and to implement the substantive law accurately. However, these standards are theoretical and abstract. When it comes to a certain case, it is uncertain whether the verdict made by the court is in line with the “truth”, or whether the criminal law is correctly applied. As Rawls said, there may be an abstract and fair result in theory, but it is impossible to find a procedure to achieve it in practice. After all, whatever procedure is adopted, it is unlikely to prevent judges from making false judgments or abusing their discretion. The proceduralist theory abandons the pursuit of outcome justice, focuses on the intrinsic value of the procedure itself, and emphasizes the significance of procedural justice in maintaining the human dignity and litigation subject status of the adjudicated. This theory holds that a fair process does not necessarily achieve the “right outcome,” but can achieve the collateral effects of the legal process. However, how can a decision be “fair” if the truth is not found? How can a procedural justice theory that ignores outcome justice make the adjudicated and the public respect and trust the legal process? Although it is unlikely, the traditional procedural justice theory openly insists that the results have an objective and a fair standard. In legal practice, in the face of a specific case, it may be impractical for the judge to abandon the legal process to seek the truth, pursue the correct implementation of the substantive law and achieve an

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“ideal result”. Whether the result meets the requirements of justice should probably be tested by the legal procedures. Leaving the due process of law and seeking the “fair result” will lead to the opposite side of the rule of law. At the same time, any fair result cannot be achieved without the participation of the prosecution and the defense, which is reflected not only in the informal negotiated process, but also in the confrontational justice process. Generally speaking, the fairer the legal process, the more uncertain and unpredictable the result is. This uncertainty and unpredictability make it possible for the prosecution and the defense to influence the outcome of the litigation.

7.2.4 Do the Parties not Care About the Result? Traditional procedural justice theories emphasize the opportunity for participation of the adjudicated, focus on procedural justice, and ignore the needs of the adjudicated in terms of outcomes. Procedural instrumentalist theory emphasizes the instrumental value of the process for achieving outcomes and is not concerned with whether the adjudicated person has a real interest in the outcome. Proceduralism, on the other hand, places too much emphasis on the “opportunity for a fair trial” of the adjudicated, emphasizing respect for their human dignity and status as litigation subjects, and even asserting that as long as procedural justice can be achieved, both the adjudicated and the public will have respect and trust in the adjudication. In fact, in many cases, no matter how fair the proceedings are and no matter how fully the right to defense of the pursued person is guaranteed, they will still be unconvinced of the conviction and sentence, and even consider the decision unjust. Social experience and common sense suggest that traditional procedural justice theories are somewhat naive in their preference for “process justice”. The famous poem from ancient Egypt, quoted by the American scholar Jerry Mathew, states that “He who is in trouble desires both to prevail and to confide in you”.16 We can’t just focus on “talking” and ignore “winning”. In judicial practice, parties do not focus solely on their participation in the adjudication process and ignore the outcome. On many occasions, a favorable outcome is the main goal of the victim and the defendant. Unfortunately, the traditional theory of procedural justice ignores the fact that the parties value a favorable result and mistakenly thinks that as long as the process meets the requirements of fairness, the judgment may be accepted and trusted by the parties. This approach is not in line with basic social experience and common sense. It is necessary to propose a new theory of procedural justice to pursue the legitimacy of legal procedures from the perspective of guaranteeing the parties’ rights. The best outcome of a fair legal procedure is that both parties get the chance of a fair trial and the most favorable result.

16

Jerry L. Mashaw. (1981). Administrative due process: The quest for a dignitary theory. Boston University Law Review, 61.

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7.3 The Rise of Negotiated Justice and Its Disputes There have been many specific and detailed studies on the background, reasons, characteristics and application of the system of leniency for pleading guilty and accepting punishment and of the criminal reconciliation system. This article will not repeat the discussion. If these two systems are regarded as two modes of negotiated justice and are compared with confrontational justice, some innovative summaries may be made to provide a basis for the theory of procedural justice. On the form, these two negotiated justice procedures seem to deviate from the traditional procedural justice, and may even be regarded as “procedural injustice”. However, judging from the successful implementation of these two procedures, the traditional procedural justice theory seems to be unable to apply to them, and some other standards need to be established.

7.3.1 Sentencing Negotiation Procedure Although it only appears later, the procedure of pleading guilty and accepting punishment is more influential than the procedure of criminal reconciliation. The so-called “procedure of pleading guilty and accepting punishment” is a special procedure in which the accused and the procuratorate discuss and negotiate on the issue of sentencing to reach an agreement on lenient penalty on the premise that the accused has confessed his guilt and accepted punishment. After that, the court reviews the agreement and makes a quick ruling. There are two stages in this procedure. One is that the accused reaches a sentencing agreement with the procurator. The other is that the court conducts judicial review through a fast-track process. In the sentencing negotiation stage, the accused pleads guilty and agrees with the punishment, then the procuratorate negotiates with the defendant on the sentencing issue and agrees to impose a lighter penalty. When the two sides reach an agreement on the sentencing, the accused signs the “recognizance to admit guilt and accept punishment”, and the procuratorate makes a sentencing suggestion accordingly. In the second stage, the court should conduct a formal review of both the voluntariness of the defendant’s guilty plea and the authenticity and legality of the sentencing agreement, as well as a substantive review of whether the procuratorate’s sentencing suggestion has a factual and legal basis. It then makes a sentencing decision accordingly. Compared with the ordinary procedure, the procedure of pleading guilty and accepting punishment has three characteristics. The first one is the negotiation between the parties, that is, the procuratorate and the accused discuss, negotiate and make concessions on the issue of sentencing. According to the principles of crime penalty stipulated by Law and the presumption of innocence, the accused and the defense cannot negotiate on the charged crimes and the standard of proof of the crimes. Therefore, the prosecution and the defense can only negotiate on the sentencing issue, which is known as “sentencing negotiation”. The second is that the

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prosecution and the defense negotiate within the range of statutory “leniency punishment”. Confessing and accepting punishment is considered a statutory leniency circumstance for the accused where the degree of leniency is between confession and surrender. Using a stepwise standard, the procuratorate determines the lenient penalty according to the time of confession of guilt by the accused, so as to reward the accused for an early confession. Third, the court trials the case in an indirect, written and simplified procedure, conducts judicial review around the sentencing agreement between the prosecution and defense, and does not hear the conviction issue. As long as the defendant pleads guilty and agrees to the procurator’s sentencing suggestion, the court would usually confirm the sentencing suggestion. However, the defendant has the right to withdraw his confession, the defense lawyer may also make an innocence defense or object the sentencing suggestion, which is very rare in practice.

7.3.2 Criminal Reconciliation Procedure Unlike pleading guilty and accepting punishment, criminal reconciliation is a special procedure in which the victim reaches an agreement with the offender after negotiation and suggests a lenient punishment for the offender to the judicial organs. This procedure has two stages: first, the victim and the offender reach a criminal reconciliation agreement through dialogue and negotiation; second, the judicial organs review the agreement. The core of the first stage where the victim and the offender reach a criminal reconciliation agreement is that the offender confesses his guilt and offers economic compensation, while the victim suggests a lighter punishment. In the second stage, after reviewing the criminal reconciliation agreement, if the judicial organs believe that it is of the parties’ own free will and based on facts and law, they may treat the offender with tolerance. For example, the prosecutor may make a nonprosecution decision, and the court may impose a lighter or mitigated punishment on the defendant or exempt him from punishment. Compared with the ordinary procedure, the criminal reconciliation procedure has three characteristics. First, the victim and the offender negotiate, that is, on the premise that the offender pleads guilty and repents, the victim, the offender, their close relatives and lawyers reach an agreement on civil compensation and proposed reductions in criminal liability by dialogue and negotiation. Neither the procuratorate nor the court participates in the negotiation process of the criminal reconciliation. They are not a party to the negotiation, but merely a judicial referee who reviews the reconciliation agreement between the victim and the offender. Therefore, this negotiation is a “private cooperation”, which is different from the “public cooperation” in the procedure of pleading guilty and accepting punishment. Second, the victim and the offender agree on both civil compensation and criminal punishment. Of the two, the civil compensation agreement satisfies the victim’s claims to compensation which the incidental civil litigation cannot obtain. The agreement of criminal punishment means that the victim proposes lenient criminal punishment for the accused, including the suggestions that the procuratorate makes a non-prosecution decision,

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or that the court gives the defendant a lighter or mitigated punishment or exempts the defendant from punishment, and so on. Third, judicial organs review the criminal reconciliation agreement. The procuratorate may makes a non-prosecution decision for a settled case that meets the statutory requirements. If a prosecution is initiated, the court holds a trial. As long as the defendant pleads guilty and fulfills the obligation of civil compensation, the trial focuses on the issue of punishment rather than on the conviction. The court conducts a judicial review of the civil compensation agreement by consulting the files and listening to the opinions of the prosecutor and the defendant without direct and verbal hearings. If the offender pleads guilty and offers civil compensation, the court gives him a lighter, mitigated punishment or exempts him from punishment.

7.3.3 Disputes Over Negotiated Justice Procedures It can be seen that the procedure of pleading guilty and accepting punishment and the procedure of criminal reconciliation may increase litigation efficiency, resolve disputes and restore social relations. The parties reach an agreement by negotiation, then the court generally confirms the legitimacy and validity of the agreement and makes a decision accordingly. This challenges the traditional procedural justice theory based on adversarial litigation. Because the accused waives the right to innocence defense and gives up the opportunity for a formal trial, the idea advocated by the procedural departmentalism theory that the interested parties influence the outcome of the case through participation in the process is not appliable. On the other hand, the prosecution and the defense may propose the sentencing by reaching an agreement, and the court may make a judgment based on this. This takes away any objective standard from the “substantive justice”, such that the point of achieving a fair result through fair procedure advocated by the traditional procedural instrumentalism does not hold. Since the traditional procedural justice theory cannot explain the negotiated justice procedure, we really need to find a new theory. At present, both the procedure of pleading guilty and accepting punishment and the criminal reconciliation procedure are facing theoretical disputes on their legitimacy. If we do not advance a new theory, we are not able to make appropriate judgments, let alone give an accurate forecast of the future of these two special litigation procedures. First, let’s discuss the legitimacy of the procedure of pleading guilty and accepting punishment. The core of this procedure is the sentencing negotiation, which includes two stages. In the first stage, the procuratorate and the accused reach a sentencing agreement by negotiation. In the second stage, the court reviews the procuratorate’s sentencing suggestion. The procuratorates dominate the sentencing negotiation process, always making “precise sentencing suggestions”, so that the current issues are mainly to strengthen the subject status of the accused, ensure the voluntary nature of the confession, and guarantee the right to access a lawyer and effective participation in the proceedings.

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The most significant difficulties with the procedure of pleading guilty and accepting punishment are whether the confession is voluntary, how the accused can effectively hold sentencing negotiation with the procuratorate, and how the accused can obtain judicial remedy from the court. Our criminal procedure system is imperfect in this respect. For example, although the accused enjoys the “privilege” against self-incrimination according to the law, he cannot remain silent in practice, but must “answer the questions during the interrogation truthfully”. Keeping silent and pleading not guilty may be regarded as a “bad attitude”, or even as the ground for a heavier punishment. Once the compulsory measures are adopted against the accused, he may be held in custody during the entire criminal procedure. Due to the system’s limitations, the accused is under great pressure to confess his guilt and accept the punishment and is not free to make his own choice.17 As another example, in practice, most of the accused can have access to legal aid from duty lawyers instead of defense lawyers. However, the current system of duty lawyers does not provide the accused with effective legal help. This is especially true in the sentencing negotiation process, where the duty lawyers can neither provide meaningful legal advice nor successfully negotiate with the procurator, making most of them simple witnesses during the signing of the where the on-duty lawyer can neither provide meaningful legal advice nor successfully negotiate with the procurator, making most of them simple witnesses during the signing of the confession. In the absence of effective assistance from lawyers, the accused may be induced or even misled by the procurator to sign a confession. The court reviews and confirms the sentencing suggestion rather than hearing the case is yet another example. If the defendant withdraws his confession or files an appeal, he may be deemed to have violated the sentencing agreement, the procuratorate may present a protest, and the court may rescind the leniency ruling. Some courts refuse to accept the “precise sentencing suggestion” put forward by procuratorates and impose severe criminal penalties.18 Next, we examine the legitimacy of the criminal reconciliation procedure. The core of this procedure is reaching criminal reconciliation agreement, which includes two stages. The first one involves the victim and the offender reaching a criminal reconciliation agreement by negotiation. In the second stage, the court confirms the legality and validity of the agreement by a formal review. The victim and the offender are under great pressure, and the procuratorate is too proactive in facilitating criminal reconciliation. This is why the main problem is how to ensure the voluntariness of the accused and the victim and their effective participation in court proceedings. In practice, both parties of a criminal reconciliation obtain some benefits. The victim is paid economic compensation, while the offender is imposed a lenient punishment. Therefore, it is debatable whether it violates the principles of “equality before the law”, the crime penalty stipulated by law and suiting punishment to crime. Moreover, under great pressure, the victim and the offender settle the case to avoid 17

Wang Minyan. (2017). Study on the difficult issues of the system of leniency for pleading guilty and accepting punishment. Chinese Jurisprudence, 1. 18 Long Zongzhi. (2020). The key to improving the system of leniency for pleading guilty and accepting punishment is the balance between prosecution and defense. Global Law Review.

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an unfavorable outcome, so it is not guaranteed that they make reconciliation on a purely voluntary basis. For example, the current law limits the scope of compensation in the incidental civil action to the “material losses”. Hence the victim can obtain compensation neither for death nor for disability. The unfair tort compensation system forces the victim to reach a criminal reconciliation agreement to avoid the incidental civil process to obtain fair and reasonable economic compensation. Another example is that the criminal procedure law establishes the principles of immediate performance and estoppel, requiring the defendant to fully fulfill the civil compensation obligations agreed in the criminal reconciliation before the court imposes the lenient punishment. Therefore, the defendant must pay the full compensation, not just make promises or pay in installments. The penalty included in the criminal reconciliation agreement to which the victim agrees is only general. It does not include specific details, so it is uncertain and unpredictable whether the defendant will be given satisfactory leniency. When the sentencing imposed by the court on the defendant who fulfilled the settlement agreement does not meet the defendant’s expectations, the defendant will not get a more lenient sentence either by reassessment or by appeal. This situation may discourage other defendants from choosing criminal reconciliation procedures.19

7.4 The Theory of Negotiated Procedural Justice Both the procedure of pleading guilty and accepting punishment and the procedure of criminal reconciliation have been established in our laws and implemented smoothly, but their legitimacy has caused some disputes. When the traditional procedural justice theory is not applicable, we need to reflect on it and propose a new procedural justice theory rather than deny the negotiated justice procedure. If we call the traditional theory “the theory of confrontational procedural justice”, we can refer to the new one as “the theory of negotiated procedural justice”.

7.4.1 Basic Concepts The so-called negotiated procedural justice refers to the basic standard for evaluating the value of negotiated justice procedures. The negotiated justice procedure is a special procedure where the outcome of the litigation is decided through dialogue, negotiation and compromise between the prosecution and the defense. Unlike traditional confrontational procedural justice, negotiated procedural justice does not recognize the independence of fair procedures and fair results, nor does it go for the adequacy and effectiveness of the prosecution and defense’s participation 19

Song Yinghui et al. (2008). An empirical analysis of criminal reconciliation in China. Chinese Jurisprudence, 5.

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in the litigation. Instead, it emphasizes that the prosecution and the defense should influence and control the outcome of the litigation by fair negotiation, so that the final result may reflect their willingness. The theory of negotiated procedural justice focuses on the autonomy of the legal procedures. It emphasizes that the prosecution and the defense can influence and even determine the final judgment through dialogue, negotiation and compromise. This essential characteristic differentiates the theory of negotiated procedural justice from the traditional theory of procedural justice. For example, procedural instrumentalist theories emphasize the instrumental role and subordinate status of the legal process, that is, the role of the process in guaranteeing a just outcome. Negotiated procedural justice theory, on the other hand, holds that there is no absolute objective just outcome, and that the outcome formed by negotiation and agreement between the prosecution and the defense is an acceptable “just outcome”. Another example is the proceduralist theory holds that the only way to maintain the human dignity and litigation subject status of the adjudicated is for the legal process to meet the standards of fair trial such as participation, neutrality, reciprocity, reasonableness, timeliness, and finality. The negotiated procedural justice theory, on the other hand, holds that the person being pursued may waive the above procedural safeguards, or even the entire formal trial process, in pursuit of the most favorable outcome of the litigation. Negotiated procedural justice theory advocates “the role of procedure in determining outcomes”, which has a similar meaning to what Rawls calls “pure procedural justice”. According to Rawls’ analysis, pure procedural justice does not depend on whether the outcome is just; as long as a just procedure is followed, the result obtained is just. He argues that such procedural justice can be achieved in the gambling process, but that criminal trials can only achieve imperfect procedural justice.20 What Rawls studies is the adversarial criminal trial procedure, not the negotiated justice procedures such as plea bargaining. Indeed, neither the adversarial procedure in common law nor the inquisitorial procedure in civil law can achieve pure procedural justice. In the negotiated justice procedures of almost all countries, the accused waives the right to innocence defense and even gives up the right for due process, finally obtaining a favorable litigation outcome through dialogue, negotiation and compromise with the procuratorate or the victim. The final decision accepted by both sides is the result of the parties’ choice and agreement. Therefore, the negotiated justice procedure generally conforms with the principle of pure procedural justice: “the result from a fair procedure is fair”. However, the negotiated procedural justice is not entirely equal to the pure procedural justice because the case is not decided completely by the negotiation between the procuratorate and the accused or between the victim and the offender. Even in the United Kingdom and the United States, where “the disposition principle” is highly emphasized, the court must review the voluntary nature, wisdom and factual basis of the plea agreement between the prosecution and the defense. China, like civil law countries, has established the principles of “no penalty without law”, suiting punishment to crime and presumption of innocence, which require that a defendant cannot 20

John Rawls. (1988). A Theory of justice. Chinese Social Science Press, pp. 80–83.

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be punished for doing something that is not prohibited by law, that the conviction of the accused must meet the highest statutory standard of proof, and that the sentence must be commensurate with the harm caused by the crime. The negotiation between the prosecution and the defense on conviction and sentencing is subject to these legal principles. They are not allowed to reach a sentencing agreement without a factual basis or against the law. Because of this, we can regard negotiated procedural justice as a “limited pure procedural justice.” Specifically, on the premise that the accused voluntarily pleads guilty and gives up due process, the prosecution and the defense can choose their favorable outcome through dialogue, negotiation and concession, so as to effectively influence and control the outcome of the case. However, this litigation outcome must also have a basic factual basis and conform to the law, and must not exceed the bottom line set by the substantive law and the evidence law. It is to be noted that in achieving negotiated procedural justice, under the external restrictions of facts and laws, the outcome of the case is uncertain and variable. As long as the negotiation procedures are impartial, the result chosen by the prosecution and the defense is fair.

7.4.2 Basic Elements Traditional procedural justice is embodied in confrontational justice procedures, emphasizing that the litigation process conforms to the standards of justice, and includes some elements such as participation, neutrality, equivalence, rationality, timeliness, and finality. Comparatively speaking, the justice value of the negotiated procedure is embodied in the negotiated justice procedure, it emphasizes that the prosecution and the defense obtain an acceptable judgment result by negotiation and compromise, and includes the following five elements.

7.4.2.1

Waivability

As the “intrinsic value” of a legal procedure, confrontational procedural justice is often regarded as a “right to a fair trial”. However, any rights can be renounced. The accused can give up the right to due process and to a fair trial. For example, the right to “due process” in the U.S. Federal Constitution and related constitutional rights can be renounced. If the accused exercises the rights in the “Bill of Rights” in criminal proceedings, he can plead not guilty and be tried by jury. If the accused gives up the right to due process and the related procedural rights, he can plead guilty and give up the jury trial through plea bargaining. Another example of the criminal procedure in China is if the accused “pleads guilty and accepts punishment”, he cannot claim his innocence and should be tried by a fast sentencing procedure instead of a formal hearing. If the accused reaches a criminal reconciliation agreement with the victim, he cannot claim his innocence, and the court usually makes a sentencing decision through a summary process.

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The “waivability” means that the accused can give up procedural justice and his right to a fair trial in the criminal procedure. Giving up procedural justice means that the accused forfeits the right to procedural justice. Giving up the right to a fair trial means that the accused renounces the claim to his innocence, and chooses a fast procedure of conviction and sentencing. Of course, the accused has the free will to decide whether to renounce these rights. In the procedure of pleading guilty and accepting punishment, if the suspect or defendant decides to plead guilty and accept punishment, the judicial organs should respect his wishes and try the case by the summary procedure. In the criminal reconciliation procedure, if the victim reaches a criminal reconciliation agreement with the defendant, the judicial organs usually accept their agreement and make a judgment in a simple and quick manner. These systems reflect the ideas of “waivability”.

7.4.2.2

Voluntariness of the Waiver

Giving up the right to a fair trial means that the accused loses the opportunity to fully participate in the litigation process and even the chance for an acquittal. The negotiated procedural justice requires that the defendant gives up the right to a fair trial of his own free will. To this end, the accused should know and understand the legal consequences of his choice, have the right to express his wishes and go back on his word. The judicial organs should respect the accused’s voluntary choice. In the procedure of pleading guilty and accepting punishment, the law ensures the voluntariness of the defendant’s guilty plea in several ways. First, the accused has the right to make a choice. The judicial organs inform the accused of the litigation right and the consequence of pleading guilty and respects his or her right to plead guilty and accept punishment. The accused has access to lawyers. It is prohibited to force, threaten, induce or deceive the accused to plead guilty. Second, the court shall examine the voluntariness of the guilty plea and the authenticity and legality of the recognizance to admit guilt and accept punishment. Third, the accused has the right to withdraw his confession. If he does so, the judicial organs should terminate the procedure of pleading guilty and accepting punishment and hear the case by the ordinary procedure or summary procedure. The victim and the defendant can reach the criminal reconciliation agreement in the criminal reconciliation procedure. If the defendant pleads guilty and fulfills the compensation obligation in the agreement, and if the victim forgives him, the court may impose a lenient punishment on the defendant after reviewing and confirming the voluntariness, authenticity and legality of the agreement. The current discussion on reforming the procedure of pleading guilty and accepting punishment focuses on the voluntariness of the accused’s confession, which includes ensuring the accused has the status of a litigant, reducing the application rate of pending detention, reforming the legal aid system, ensuring the accused has access to lawyers and activating the pre-trial prosecution and defense negotiation mechanism. Moreover, the current disputes over precise sentencing, the defendant’s appeal, and the procuratorate’s protest are closely related to whether the accused can

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effectively participate in sentencing negotiation, and whether they have the right to the judicial remedy.21

7.4.2.3

Negotiability

The core of negotiated procedural justice is that the prosecution and the defense decide on the process and the outcome through dialogue, negotiation, and concession. The procuratorate, the accused and the victim, as the parties that have a direct interest in the lawsuit’s outcome, may give up some litigation rights, negotiate and reach an agreement on the procedure and the outcome of the lawsuit. First, the prosecution and the defense hold an equal conversation and freely express their wishes. Second, they negotiate the process and choose a simple and fast procedure on the premise of giving up some litigation rights. Third, the prosecution and the defense propose their solution, hold talks on the outcome of the litigation, and finally make a suggestion to the court. It can be said that the degree to which the participation of the prosecution and the defense in the negotiation is an important criterion for evaluating whether the negotiated justice procedure meets the requirements of procedural justice. The procedure of pleading guilty and accepting punishment introduces a negotiation mechanism, allowing the prosecution to negotiate with the defense on the issue of sentencing after the defendant pleads guilty. If a sentencing agreement is reached through negotiation, the accused signs a recognizance to admit guilt and accept punishment. Using conviction standards, exclusion of illegal evidence, sentencing balance and sentencing guidelines as bargaining chips, the defense lawyers may put up a stout defense to force the prosecutors to make concessions in sentencing. By comparison, since the duty lawyers cannot provide effective legal help, the procurators’ sentencing suggestion is less favorable for the defendant. In the criminal reconciliation procedure, the victim and the defendant negotiate civil compensation and the suggestion of a lighter punishment. If a criminal reconciliation agreement is reached, the defendant promises to confess his guilt, make an apology and offer a high compensation to the victim. In return for the goodwill of the defendant, the victim proposes a lenient punishment to the judicial organs, or does not participate in the criminal procedure. As a result, the fairness of this private cooperation procedure often depends on the degree of participation of the defendant and the victim in the negotiation.

7.4.2.4

The Benefit of the Litigation Outcome

The confrontational procedural justice emphasizes the interested parties’ participation in the litigation process. The procedural instrumentalism theory believes that

21

Sun Changyong. (2019). The connotation of the system of leniency for pleading guilty and accepting punishment. Chinese Jurisprudence, 3.

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participation contributes to a fair judgment. However, the procedural departmentalism theory highlights the interested parties’ status as the subject of the litigation and the respect for their human dignity. On the contrary, the negotiated procedural justice theory emphasizes the interested parties’ benefits. Such benefits may not completely meet the standards of fair results, nor may they be obtained through litigation, but usually serve the interests of both parties for a win–win outcome. A lighter penalty is usually the main intention for the accused to participate in the negotiation process. At the same time, the offender’s confession and apology and a high civil compensation are the main concerns for the victim. To a certain extent, the benefits of property and freedom are important criteria for judging the negotiation process. According to the principle of “leniency for pleading guilty and accepting punishment”, the accused can obtain the benefits of “lenient punishment” and “simple procedure” at the cost of the confession of guilt. Lenient punishment means that the court takes the confession of guilt as an independent sentencing circumstance, imposes a lenient penalty by less than 30% or 40% on the accused.22 In the criminal reconciliation process, in the cases where an agreement is reached, the victim’s benefits usually include civil compensation which is much higher than that in the incidental civil action, the offender’s confession of guilt and sincere apology, and the conclusive conviction. For the defendant, the benefit is a lenient criminal punishment.23 Compared with the criminal reconciliation procedure, the penalty incentive in the procedure of pleading guilty and accepting punishment is significantly smaller. The defendant who has reached and fulfilled the criminal reconciliation agreement may either be imposed a lighter or mitigated punishment or be exempted from punishment. On the other hand, the defendant who has pleaded guilty may only be imposed a lighter punishment, but cannot be exempted from punishment. Moreover, when the defendant has both confessed and surrendered, he cannot get double leniency. This dramatically limits the sentencing negotiation between the prosecution and the defense, thus does not encourage the defendant to plead guilty.

7.4.2.5

Minimum Participation

Participation is the core element of traditional procedural justice. This participation is “confrontational,” meaning that the prosecution and defense convince the judge by arguing their claims and challenging the other side’s claims.24 In contrast, the parties’ participation in the negotiated procedural justice includes “non-confrontational participation” and “convincing the judge”, because there is no opposition between the prosecution and the defense. Participation in the negotiation and the judicial 22

Zuo Weimin. (2017). The misconceptions and correct solutions of the system of leniency for pleading guilty and accepting punishment—Rethinking the reform proposition of efficiency first. Jurisprudence Research, 3. 23 Bian Jianlin, Feng Liqiang. (2008). The Chinese model of criminal reconciliation. Political and Legal Forum, 6. 24 Chen Ruihua. (2020). The theory of criminal trial. Law Press, p. 80.

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review is the main way of “non-confrontational participation”, while “convincing the judge” mainly focuses on persuading the judge to admit the agreement. Specifically, the accused can participate in the process of dialogue, negotiation and concession and reach an agreement with the other party. In the court hearing, the accused can give opinions on the voluntariness of the waiver and the agreement, as well as on the conviction, the sentencing and other issues. If the accused refuses to accept the judgment of the first instance court, he or she has the right to appeal to the higher court. The minimum participation is embodied in the two negotiated justice procedures. In the procedure of pleading guilty and accepting punishment, the accused participates in the sentencing negotiation, voluntarily accepts the sentencing plan as determined by the recognizance to admit guilt and accept punishment, expresses his or her opinion on the voluntariness of the guilty plea and the conviction and sentencing issues in the court hearing. Also, he or she has the right to withdraw confession and be tried by the ordinary procedure. In the criminal reconciliation process, the victim and the defendant participate in the negotiation process and reach an agreement. In the court hearing, they participate in reviewing the voluntariness and legality of the agreement and give their opinions on the agreement and the issues of conviction and sentencing. However, if the criminal reconciliation agreement has been fulfilled, neither the defendant nor the victim can go back on their words.

7.5 Foundation of Negotiated Procedural Justice Negotiated procedural justice has different connotations and elements than confrontational procedural justice. But in essence, they have the same theoretical foundation, which is based on the idea of liberal political philosophy, emphasizing the parties’ status as litigants and respecting their human dignity. Compared with confrontational procedural justice, negotiated procedural justice accentuates that the accused influences the outcome of the litigation through negotiation and makes a rational choice between fair procedures and ideal results. At the same time, based on a utilitarian concept of “win–win”, it focuses attention on the balance of the interests of all parties, so that the accused obtains the maximum benefits by giving up some of his or her rights. With this in mind, we may make a preliminary discussion on the foundation of the negotiated procedural justice.25

25

Chen Ruihua. (1997). The theory of procedural justice—an analysis from the perspective of criminal trials. Chinese and Foreign Law, 2.

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7.5.1 Litigation Subject Theory Traditional procedural justice theory values the status of the interested parties as subjects of litigation, enabling them to participate fully and effectively in the process, to obtain the judge’s attention to their interests and fate, and become interlocutors rather than passive objects of litigation who passively accept outcomes and responsibilities. The theory of litigation subjects and its concept of respecting the interested parties’ human dignity constitute the theoretical foundation of confrontational procedural justice. In fact, the theory of litigation subjects is also applicable to the negotiated justice procedures that practice it differently. In the negotiated justice procedure, the prosecutor and the defendant directly influence the outcome of the case through dialogue, negotiation and concession. This makes the parties masters of their interests and destiny and equal subjects of litigation. What is more, the human dignity of the parties is respected by the judicial organs. First, the parties give up some litigation rights and cooperate with each other in exchange for mutual benefits. If the parties obtain the status of the subjects of action by participating in the litigation process in the confrontational justice procedure, they do so by dialogue, negotiation and concession in the negotiated justice procedure. After weighing the interests against the cost and making a rational choice, the parties control their destiny by giving up some litigation rights, making necessary concessions and striving for their interests. Secondly, giving up litigation rights and choosing the summary procedures are free and voluntary, and the parties have the right to go back on their words. This respect for the parties’ free will is in line with the theory of litigation subjects. Any legal value may be converted into a right. And rights, as a qualification to obtain some benefits, can be renounced. If a right cannot be renounced, and the person enjoying the right is forced to exercise that right, this right loses its meaning of “right”. Just as true freedom allows to “give up the freedom”, true rights also include “the right to give up rights.” In the two negotiated justice procedures, whether it is the agreement of pleading guilty or the criminal reconciliation agreement, the parties can dispose of or even give up their litigation rights. The disposition or abandonment must be the product of the parties’ volition. The respect for the parties’ free will shows that the judge and the prosecution regard the defendant and the victim as independent litigants and highly respect their human dignity. To a certain extent, confrontational procedural justice pays more attention to the parties’ participation in the litigation process and their control over it, while negotiated procedural justice focuses on the parties’ disposition of their litigation rights and their influence on the outcome of the litigation and their control over it. In the negotiated justice procedures, the parties can not only negotiate, but also waive some litigation rights in exchange for litigation results in their favor. The negotiated procedural justice actually maintains the parties’ status as the subjects of litigation from a higher level.

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7.5.2 Rational Choice Theory The traditional procedural justice theory focuses on procedural justice and substantive justice, but does not consider the parties’ free will. On the contrary, negotiated procedural justice pays more attention to the parties’ feelings, allowing them to make a rational choice about the procedures and the results. The theory of rational choice is another foundation of negotiable procedural justice. The theory of rational choice puts forward a hypothesis of “economic man” or “rational man”, and regards it as the basis for people’s economic behaviors, social interactions and political decisions. According to this theory, people want to obtain the maximum at the minimum cost. Only by acting freely and making decisions for themselves can people make rational choices that are in their interests. The premise of this assumption is that the economic man understands his environment, has stable and clear preferences and can calculate so that the selected program reaches the highest point. The so-called rational choice means that the interested parties can exercise, waive or dispose of their rights in any legal process. In criminal proceedings, procedural justice and substantive justice are equally important for both the victim and the accused, and the right to a fair trial and the right to a favorable judgment are also equally significant. However, establishing these interests and rights provides nothing more than a free market. For the prosecution and the defense, whether to choose procedural or substantive justice, choose a fair trial or a favorable decision, is different depending on the person and cannot be generalized. There are two reasons for this.26 First, everyone has a different understanding of justice. Some yearn for procedural justice, while others care about lenient sentencing. Especially when there is no hope for a verdict of not guilty and innocence defense is meaningless, the accused may be more interested in the substantive interests, that is, the more lenient penalty. If the accused is not given the choice, procedural justice and fairness of the trial may become oppressive power. Secondly, there are differences in people’s abilities. Some can get the effective help of senior lawyers, and there is space for innocence defense in the case, so they are willing to choose a formal trial process. Unfortunately, some people may only get help from a legal aid lawyer due to their inability to afford senior lawyers, added to that, there is no space for innocence defense and little space for sentencing defense, so they may be willing to plead guilty and accept punishment to reach a sentencing agreement with the procurator, or to pay the civil compensation to be the forgiven by the victim. Therefore, it is in the accused’s best interest to allow him or her to choose between the formal trial and the settlement. The reason why the negotiated justice procedure emphasizes that the accused can waive the opportunity to an innocence defense and the right to a fair trial and negotiate with the prosecutor or the victim is that only in this way can the defendants be free to choose between a fair process and their favorable outcome, which is in their best interest and of their free will. On the contrary, if in order to achieve abstract 26

Li Peilin. (2001). Challenges to rational choice theory and its way out. Sociological Research, 6.

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judicial justice, the accused is deprived of the right to choose, forced to plead not guilty or accept the so-called “fair trial”, this is against his or her interests and will, and against the basic principles of liberal political philosophy. Moreover, the practice shows that the accused cannot accept the result if he or she cannot make a choice.

7.5.3 Utilitarianism Philosophy The essence of negotiated procedural justice lies in the fact that the prosecution and the defense reach an agreement through negotiation, and obtain the most favorable outcome of the litigation based on the principles of seeking advantages and avoiding disadvantages, mutual understanding and mutual accommodation. So, it is a “win– win” situation, in which there is a good result for each side so that the parties obtain the maximum benefits with the minimum concessions instead of the “zero-sum game”. The theory of negotiated procedural justice is based on the utilitarianism philosophy in terms of actual effects. Due to the lack of resources, in the traditional confrontational justice procedure, the interests of the prosecution and the defense are in conflict, and the interests of the victim and the defendant are not met at the same time. Traditional procedural justice certainly has some ideal values, such as the opportunity for hearing, the neutrality of the judge, the equality of arms of the prosecution and the defense, etc., but, at least in some cases, these values may have negative consequences. For example, the litigation efficiency has decreased and the case has been delayed for a long time. The procurators face difficulties in proving the criminal facts and the risk of losing the case. The victim cannot get any civil compensation, which makes him or her disappointed with the judicial system. The accused opposes severe criminal punishment and even resents the judicial organs and the victim. However, in the negotiated justice process, the judiciary accepts the agreement to meet the parties’ interests, which creates a “win–win” situation and achieves the best social outcome. Taking the procedure of pleading guilty and accepting punishment as an example, the accused who pleads guilty accepts punishment and participates in the sentencing negotiation may obtain leniency at 30% or 40% discount from the sentencing. The procuratorate, leading the pre-trial sentencing negotiation process, makes a lenient sentencing suggestion, which may encourage other defendants to plead guilty, greatly improving the chance of winning the lawsuit and the application rate of the guilty plea procedure. The courts try the cases with sentencing agreements rapidly, which greatly saves judicial resources and avoids the appeal procedure in many cases.27 Another example is the criminal reconciliation process. The victim’s interests and needs are met because the offender has pled guilty, apologized and offered economic compensation. The accused also benefits, being imposed lighter, mitigated penalties, or even exempted from the criminal penalties after the victim 27

Chen Ruihua. (2019). The public cooperation model of criminal procedure—the rise of the sentencing negotiation system in China. Law Forum, 4.

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has promised to drop the case and asked for leniency. The procuratorates and the courts can achieve ideal social impacts and performance-related evaluation since the disputes between the parties have been solved and the chances of the victims complaining or petitioning have been diminished.28 The core of the utilitarianism Philosophy is “to benefit the majority”. The negotiated procedural justice has legitimacy because its ideas such as free choice, participation and influencing the judgments, are not dogmatic or against the experience and common sense of social life, but conform to the utilitarian goal of “win–win” for all parties and have a universal social psychological foundation. When a system and its ideas have such a positive social effect, it will grow vigorously.

7.6 Extended Application of Negotiated Procedural Justice The establishment of negotiated justice procedures prompts us to reflect on the limitations of the traditional procedural justice theory and to put forward the negotiated procedural justice theory. This theory applies to the procedure of pleading guilty and accepting punishment and criminal reconciliation procedure, as well as other non-confrontational judicial procedures. In fact, as long as the prosecution and the defense abandon litigation and confrontation, they may negotiate and make concessions with each other more or less, and negotiated procedural justice has its space. As expected, some non-confrontational procedures may only include part of the elements of negotiated procedural justice, and some may be particular in the way they embody the value of procedural justice. In this regard, the theory of negotiated procedural justice applies to the procedure for sorting out the issues, the procedure for juvenile criminal cases, and the compliance-based non-prosecution system. First, the procedure for sorting out the issues was established in the ordinary procedures. During the pre-trial meeting, the court hears the prosecution’s opinions and the defense on issues of evidence, fact and law, and the disputes between the two parties and the matters that have reached an agreement are included in the pre-trial meeting report. During the court trial, the judge reads the report from the pre-trial meeting, hears the matters the parties agree on by a simplified process, and tries the issues in dispute through a formal process.29 Establishing the procedure for sorting out the issues means that there are two kinds of processes in the ordinary procedure: the non-confrontational process for the matters agreed by both sides and the adversarial litigation process for the issues in dispute. Correspondingly, confrontational procedural justice is for the issues in dispute and negotiated procedural justice is for the matters agreed by both sides. 28

Chen, Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5. 29 Dai Changlin. (2018). The pre-trial conference, exclusion of illegal evidence, and court investigation. Evidence Science, 5.

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The negotiated procedural justice is an evaluation standard when the prosecution and the defense reach a settlement and agree to the summary process. We can take the waivability of the procedure, the voluntariness of waiver, negotiability, benefits and minimum participation as the criteria for evaluating the procedure. However, the benefits mentioned here are not substantial, but the reciprocity brought by avoiding unnecessary disputes. The minimum participation means the understanding, dialogue and negotiation in the pretrial meeting, reconfirming the disputed issues in the court hearing, and the right to turn back. This clearly shows that the negotiated procedural justice standard can be applied to the processes for undisputed matters even in ordinary procedures. Secondly, there is space for negotiated procedural justice in the procedure of juvenile criminal cases. This procedure, following the principles of education, probation and salvation, focuses on the special protection and correctional education of minors, so that the minors can be reinserted into society. To a certain extent, the cases in which juvenile delinquents plead guilty embody the ideals and principles of this special procedure.30 The accused minors waive the innocence defense, while the judicial organs take non-confrontational procedural measures. For example, if the minor admits guilt, the procuratorate may make a conditional non-prosecution decision, which is like an agreement. The procuratorates supervise juvenile suspects during a certain period of probation, order them to abide by laws and regulations and to fulfill their obligations. After the probation period is over, the procuratorates may decide not to prosecute the minors who perform their duties. Another example is the court trial of juvenile criminal cases. The court may impose a lenient penalty on the defendant based on social investigation reports and on the defendant’s confession. In many cases, this court trial is linked to the guilty plea procedure and includes the sentencing negotiation. The negotiated procedural justice applies to the cases of minors pleading guilty instead of the confrontational procedural justice theory. The negotiated procedural justice is the main criterion for evaluating the procedures’ impartiality where the judicial organs cooperate with minors. Taking the conditional non-prosecution procedure as an example, the voluntariness of the minor’s confession, the choice of supervision measures and the minor’s statement about the supervision are taken as the criteria for evaluating the procedure. Another example is the trial of juvenile cases. The voluntariness of the defendant’s confession, his participation in the hearing and the autonomy of accepting education and assistance are the criteria for procedural fairness. Thirdly, the negotiated procedural justice is applied to the “compliance-based non-prosecution” procedure for companies suspected of crimes. At present, some local procuratorates are piloting the reform of “compliance-based non-prosecution” for enterprises involved in criminal cases. The so-called “compliance-based nonprosecution” means that, for enterprises suspected of minor crimes, if they cooperate 30

Hu Yunteng. (2013). Revision and improvement of judicial interpretation of criminal proceedings for minors based on trial practice—introduction to judicial interpretation of proceedings for criminal cases of minors. Research on Youth Crime Prevention, 1.

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with criminal investigations and are willing to reform their system, the procuratorates set a probation period and order them to make the enterprise compliance programs and establish prevention, monitoring and response mechanisms for compliance risks. If an effective plan is confirmed through evaluation, the non-prosecution decision may be made. In the criminal procedure of our country, the “compliance-based nonprosecution” for enterprises is an extension of conditional non-prosecution.31 To a certain extent, the “compliance-based non-prosecution” system is part of the negotiated justice procedures to which the theory of negotiated procedural justice is applicable. The enterprises suspected of committing crimes choose the compliancebased non-prosecution procedure, which means they have waived their right to plead not guilty and even lost the opportunity to be tried in a court hearing. The voluntariness of the renouncement is an important standard to evaluate the fairness of the procedure. At the same time, in order to reach an agreement, the enterprises should negotiate with the procuratorates, cooperate with the investigation, disclose their wrongdoings, promise to make a compliance plan, and undergo the inspections and assessments of the procuratorates.32 In this, the benefit of the enterprise is that the procuratorate makes the non-prosecution decision, so the enterprise is acquitted. Therefore, the negotiation with the procuratorates on compliance issues is the key stage for the enterprises to influence the outcome of the litigation. The idea of the negotiated procedural justice to influence litigation results through negotiation is reflected in this procedure and is an important criterion for evaluating whether the procedure is fair or not.

7.7 Conclusion We should have a scientific attitude towards any theory and not regard it as an unchallengeable “belief”. Otherwise, it is easy to fall into dogmatism. We have made considerable progress and put forward some common views in procedural justice theory. But so far, the main theories on procedural justice are based on the experience of the confrontational justice procedures in which the prosecution and the defense are in confrontation. However, with the rise of negotiated justice procedures, the cooperation and negotiation between the prosecution and the defense have replaced their confrontation, such that the basis of the traditional procedural justice theory no longer exists. In this case, we should not deny the legitimacy of the negotiated justice procedure with the traditional theory, but reflect on the traditional procedural justice based on the experience of the negotiated justice, discuss the limitations of the traditional theory, and put forward a new theory of procedural justice.

31

Chen, Ruihua. (2020). The system of deferred prosecution agreement in the perspective of corporate compliance. Comparative Law Studies, 1. 32 Chen Zhang. (2020, June 12). The decision not to prosecute helps businesses come to life, Procuratorial Daily.

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The negotiated justice is not against the procedural justice, but is another form of it. The confrontational procedural justice focuses on the parties’ control of the litigation process, which means the parties, by participating in the litigation process, exert influence on the outcome of the litigation and become the master of their interests and destiny. This emphasizes the parties’ dominant roles in the process. On the contrary, the negotiated procedural justice theory believes that the parties give up the opportunity for adversarial litigation, and the accused waives innocence defense, so the prosecution and defense cooperate, negotiate and compromise with each other to influence and decide the outcome of the case. This draws attention to the parties’ dominant roles in making a decision. However, under the influence of utilitarianism Philosophy, the negotiating procedural justice theory pays more attention to the interests of all the parties in the litigation, and reinforces the parties’ wish to avoid the loss of their interests. Based on the experience of the negotiated justice procedures, this chapter puts forward the theory of negotiated procedural justice, which supports us to improve the negotiated justice procedures. This theory can be applied to other non-confrontational procedures in addition to the procedure of pleading guilty and accepting punishment and the criminal reconciliation procedure. The waivability of the procedure, the voluntariness of the waiver, the negotiability, the benefits, and minimum participation can be used as the criteria for evaluating the procedure for sorting out the issues. Also, the negotiated procedural justice applies to the “compliance-based non-prosecution” system under pilot reform.

Chapter 8

Confrontation and Cooperation in Judicial Process—A New Theory of Criminal Procedure Model

8.1 Confrontational Justice and Cooperative Justice The pattern in the general sense, also known as style or model, is the theoretical induction made by researchers on the abstraction’s structure of a certain thing. As a research method of social science, pattern analysis usually focuses on the basic elements that can represent the essential attributes of a thing, while ignoring some unimportant features or details. Pattern analysis often has a purpose of comparison, which researchers can use to compare two things at the same level. Therefore, when we say that something forms a pattern, we tend to put another counterpart in another pattern.1 Significant progress has been made in the research on the models of criminal procedure, especially after Professor Herbert Parker of the United States propounded two models: “due process” and “crime control”.2 This topic has aroused the interest of many scholars and inspired the emergence of a series of new model theories. After Parker, Griffith, an American scholar, introduced the theory of the battle model and the family model to improve upon Parker’s model theory.3 There are several theories on criminal procedure models such as Goldstein’s “inquisition model” and “impeachment model” and Damaska’s “hierarchical mode” and “coordinate mode” in the United States,4 which have resulted in a new typological analysis of the criminal procedure in the Anglo American law and the continental law from different angles. This chapter proposes a new theory based on the state of confrontation or cooperation in criminal procedure. In the author’s opinion, since Beccaria, the researchers of criminal procedure law have been advocating a judicial philosophy based on the 1

For a theoretical analysis of the classification of litigation models, see Chen Ruihua. (1997). The theory of criminal trials. Beijing University Press, p. 298. 2 Herbert Packer. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113. 3 John Griffiths. (1970). Ideology in criminal procedure. Yale Law Journal 79, 359. 4 For an analysis of the American model of criminal procedure, see Li Xinjian. (1992). The structure of criminal procedure. China University of Political Science and Law Press, p. 21. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 159 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_8

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presumption of innocence. The defense system and the evidence system based on the voluntary confession rule and hearsay evidence rule are the institutional guarantees of this judicial philosophy, while the right to silence and the exclusionary rule are its extreme. The premise of this judicial philosophy is that there are two parties directly opposing each other in the litigation. Between them, the prosecution takes persuading the court to convict and sentence as its litigation goal, while the defendant aims at overturning or weakening the charge. The judicial model based on the confrontation between the prosecution and the defense is called “confrontational justice”. The reform of China’s criminal procedure has been moving towards the direction of giving play to the role of trial and ensuring the equality of the prosecution and the defense since 1996. The recent criminal justice reforms, including the system about witnesses and experts to testify in court and the exclusionary rule, are designed to equip the prosecution and the defense equally. According to some legal researchers’ conception, the future criminal procedure should implement the presumption of innocence, expand the defense rights of the accused, confirm the right of the presence of lawyers in the process of interrogation, establish an evidence display system, voluntary rule, and hearsay rule, and expand the scope of the exclusionary rule.5 Some scholars even claim that the right to silence and the principle of “prohibition against double jeopardy” should be established by the requirements of the International Covenant on Civil and Political Rights of the United Nations.6 The concept of “confrontational justice” is present in China’s criminal procedure, and will play a more significant role. However, when the defendant confesses, the prosecution may slow down, and the court may also give a lenient sentence, which indicates that the two sides have gone from fierce confrontation to cooperation. In practice, to persuade the defendant to confess his or her crime, the procuratorates sometimes negotiate with the defendant and the lawyer and promise to suggest a lighter sentence to the court, and the court usually accepts the sentencing suggestion and gives a lighter sentence or the suspended sentence to the defendant. Some local prosecutors have gone so far as to suspend prosecution, a conditional non-prosecution, on suspects with lenient sentences. Using the experience of “plea bargaining”, some procuratorates suggest a lighter punishment to the court to urge the defendant to confess the crime and fulfill the civil compensation obligation in the cases that have not reached the statutory standard of proof. Obviously, when there is a confession from the accused party, the procuratorates take lenient prosecution measures, such that cooperative justice replaces traditional adversarial confrontational justice and becomes an independent model. In comparison, in the criminal justice framework centered on the relationship between the state and the accused, both “confrontation” and “cooperation” occur between the state and the defendant. As the directly injured object of the crime, the victim is left behind and 5

Fan Chongyi. (2006). An empirical study on the reform of criminal pre-trial procedures—the presence of lawyers in the investigation and interrogation procedures. People’s Public Security University of China Press. 6 Sun Changyong. (2001). A Study of the System of the Right to Silence. Law Press, p. 221.

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becomes the “forgotten person” in the traditional criminal justice system. In the 1970s however, “restorative justice” has placed the relationship between the victim and the defendant in the central position in western countries, thereby focusing on repairing the social relations damaged by criminal acts and taking the treatment of the harm on the victims, defenders, and society as the core goal of criminal justice. This is a sign of the weakening of state prosecution in criminal justice. It also reveals that the victim is becoming a participant in the criminal procedure instead of a bystander of the state’s punishment of criminal activities.7 Since 2001, some grassroots procuratorates in Beijing have begun to conduct the reform of reconciliation-based non-prosecution in minor injury cases caused by civil disputes. Based on the agreement on civil compensation, the apology made by the offender to the victim, and the waiver of the criminal investigation, the procuratorates make a non-prosecution decision, so that the offender will not be convicted and sentenced. Criminal reconciliation has been adopted in many places, and several provinces and municipalities have issued relevant normative documents, making criminal reconciliation a special procedure. The object of criminal reconciliation has gradually expanded from light injury crimes to negligent crimes, juvenile crimes, and college students’ crimes.8 Predictably, the reform experiment, in which the criminal procedure is terminated because of the settlement between the victim and the defendant, is different from the traditional “confrontational justice” and similar to “cooperative justice”. Since the two sides of the cooperation are the victim and the defendant, the negotiation and compromise are between individuals. The judicial organs are not the parties involved in the negotiations, but they are responsible for promoting or accepting the settlement reached by both parties. This criminal justice process, based on a settlement agreement between the victim and the defendant, can be called the “private cooperation model.” Based on the reflection of confrontational justice, this chapter discusses the cooperative justice model. The procedure based on the defendant’s confession is regarded as the “minimum cooperation model”, which includes “negotiated public cooperation” between the defendant and the procuratorates and “reconciliatory private cooperation” between the defendant and the victim. This chapter discusses the elements, value standards, and development trends of these cooperative justice models and puts forward a theory about cooperative justice compared with the confrontational justice model. In my opinion, this ongoing reform may bring about a significant change in the concept of litigation, from which a new litigation theory may appear, challenging the traditional criminal procedure theory based on the presumption of innocence and procedural justice.

7

Howard Zech. Restorative justice (Zhang Qi et al., Trans.). In Di Xiaohua. (2005) Frontiers of criminal justice: a study of restorative justice. Mass Press, p. 46. 8 Chen Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5.

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8.2 Parkers and Griffith’s Models The ideology of confrontational justice was first put forward by American scholar Parker when he analyzed the mode of the criminal process. In 1964, Parker published an article entitled “Two Models of the Criminal Process”, which abstracted and summarized “two independent and competing value systems” in criminal procedure, and proposed the models of “crime control” and “due process”.9 From the perspective of “crime control”, the repression of criminal conduct is the most important function of the criminal procedure. The core idea of the “crime control model” is efficiency and presumption of guilt. The so-called efficiency refers to the capacity to apprehend, try, convict, and dispose of criminal offenders. The presumption of guilt means that the screening processes operated by police and prosecutors are reliable indicators of probable guilt, such that all subsequent activity is based on the view that the defendant is probably guilty. In a context where the magnitudes being dealt with are very large, and the resources for dealing with them are very limited, litigation efficiency depends on the informal administrative procedure, especially the pre-trial procedure controlled by the police and prosecutors. Facts can be established more quickly through the informal, administrative extrajudicial processes than through the formal judicial process. It becomes important, then, to place as few restrictions as possible on the administrative fact-finding processes and to avoid the formal court trial procedure as much as possible, so that a conclusion can be quickly reached for the case. If the “crime control model” is a flow-through production line, the “due process model” is more like a judicial process with many obstacles, each of which is a legal obstacle for the state to convict the defendant. Parker questioned whether the informal and administrative procedure could expose the facts, and held that there is the possibility of making mistakes. On the contrary, the formal, adjudicative, confrontational fact-finding process, in which the case against the accused is publicly heard by an impartial tribunal and is evaluated only after the accused has had a full opportunity to discredit the case against him, has a certain advantage in finding the truth. Surely, the reliability of fact-finding is not the key concept of the “due process model”. There are three ideologies to sustain this model. The first one is the concept of the primacy of the individual and the limitation on official power. Power is always subject to abuse, so the criminal process must be subjected to controls and safeguards that prevent it from operating with maximal efficiency. According to this ideology, maximal efficiency means maximal tyranny. The second is the ideology of presumption of innocence, which means a distinction must be made between the concepts of factual guilt and legal guilt. According to this principle, an individual is not to be held guilty merely based on the evidence that in all probability he did factually what he is said to have done. Furthermore, he is to be held legally innocent, even though the factual determination is or might be unfavorable to him if various rules designed to safeguard the process are not given effect. The third one is the idea 9

Herbert Packer. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113.

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of equality of arms. The criminal process initiated by the government and may lead to severe punishment for the accused, imposes a public obligation to the government to ensure that financial inability does not deprive the accused of the capacity to obtain an equal process. Moreover, the due process model also holds a skeptical attitude towards the morality and utility of criminal sanctions.10 Parker’s theory about two models raised inquiry, debate, and criticism. John Griffiths’s article “Ideology in Criminal Procedure”, published in 1970, put forward the third model of criminal procedure—the family model.11 In Griffith’s view, Parker has given us not the two “models” he claims, but only one, because the “crime control” only emphasizes the reduction of crimes, while the “due process” is nothing more than the restriction on the criminal process. Both are two sides of the battle model. Griffith presented the “family model”, which contains values and ideas beyond crime control. The criminal procedure should be conciliatory and educational. Specifically, the relationship between the state and the accused is like that of parents and children who have committed mistakes. The needs of the accused are more important than their rights. The closest examples of the “family” model are juvenile delinquent cases which allow the state to pursue the child’s best interests in a parental manner.12 As per Griffiths’s comments, Parker’s model theory is discussed under the framework of confrontational justice, which Parker himself does not deny. When discussing the nature and function of the two models, Parker has admitted that the criminal procedure is a contest between the state and the defendant. To avoid criminal punishment, the accused tries not to be captured by the police, and when captured, they always deny the crime and refuse to cooperate with the police. During the trial, the defendants try their best to avoid being convicted, and when convicted, they still do not give up the hope of freedom. It is just behind this kind of confrontational procedure that there are two opposite value systems—“crime control” and “due process”.13 This shows that Parker’s model theory can be applied only when the state has initiated a prosecution, and the defendant refuses to admit guilt and directly confronts the prosecution agencies. However, if the prosecutor abandons the prosecution, or the suspect or defendant confesses to guilt, the basis of the confrontation between the prosecution and the defense will no longer exist. In particular, in the case of plea bargaining, the prosecution and the defense have reached an agreement, according to which the judge makes a guilty verdict. The defendant gives up not only the innocence defense but also the due process safeguards. The goal of controlling crime is also negatively affected, giving way to the “winning outcome”. Keenly aware of this, Griffith puts Parker’s model theory under the “battle model” framework. However, it is not without controversy whether the family model can be a 10

Herbert Packer. (1968). The limits of the criminal sanction. Stanford University Press. John Griffiths. (1970). Ideology in criminal procedure. Yale Law Journal 79, 359. 12 Kent Roach. (1999). Four models of the criminal process. Journal of Criminal Law and Criminology, 671. 13 Herbert Packer. (1964). Two models of the criminal process. University of Pennsylvania Law Review, 113. 11

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counterpart to the battle model. Experiences suggest that the concept of the “family model” is mainly reflected in juvenile cases. For example, for juvenile suspects, the police may inform their guardians and defense lawyers to be present during the interrogation and take non-custodial compulsory measures. The court trial may take the form of informal procedures, such as round table meetings so that guardians of juvenile defendants, school representatives, social workers, and others involved can present their opinions. The judge speaks in a gentle tone, tries the case in private, asks the news media who reported the case to hide the real name of the defendant, imposes a lighter sentence on the minor defendant. These special safeguards show that the state has a duty of love and care for juvenile defendants, or, as Griffiths puts it, to educate them in the same way that parents treat children who make mistakes. The policy of “rehabilitating minors through education”, which is emphasized in China’s juvenile justice system, expresses a similar idea. The family model does not exclude the goal of criminal control, much less the idea of due process. Griffith regards love and education as the values beyond “crime control”. He advocates that the state should pay attention to the special needs of the defendant on the premise of ensuring due process protections. This goes to show that the so-called “family model” is not a third model completely independent of the “battle model”, but a necessary supplement to the “battle mode”, or a modified new “battle model”. After all, in juvenile cases, the suspect or defendant may either refuse to confess guilt or give up the innocence defense and admit the charge. When the juvenile defendant is in a confrontation with the prosecution, the court should focus on the fairness of the trial rather than love and education. Some of the ideas of the family model can only play a very limited role until the conviction process is completed. Therefore, even in the juvenile cases which follow the so-called “family model”, the “battle mode” still exists. However, neither Parker nor Griffith paid enough attention to the high rate of plea bargaining in the American criminal procedure. In fact, “plea bargaining” has emerged in the context of the adversarial system. The confrontation in American criminal procedure results in the unpredictability of the outcome, which brings risks to both parties. When the two sides settle on the defendant’s confession and sentencing through negotiation, the risk of a not guilty verdict is avoided and the defendant gets a lighter sentence. The plea bargaining has not been reflected in Parker’s “battle model” and Griffith’s “family model”. The battle model focuses on the struggle and confrontation between the prosecution and the accused, ignoring the possibility of settlement. Although the family model theory pays attention to some other values such as “love” and “education”, it regards the defendant as a child in need of parents’ care or a patient in need of medical treatment and does not realize that the defendant can reach an agreement with the procurator. Therefore, there is no space for “cooperative justice” which is based on negotiation between the prosecution and the defense in these two models. Moreover, both of the above two models focus on the state-defendant relationship, ignoring the interests and needs of the victim. Parker’s model of crime control expresses nothing but that the state achieves the goal of crime control through the criminal procedure, while the so-called “due process model” embodies the value of

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limiting state power to ensure the defendant’s right to get a fair trial. Griffith’s family model emphasizes that the state should pay attention to the special needs of the defendant and provide him with care and education in the process of achieving the goal of crime control. These two scholars focus on the traditional criminal procedure issue of how the state treats the criminal defendant. In criminal cases with victims, crime jeopardizes not only social relations and social order but also the victims’ freedom, property, physical and mental health, and even life. Also, the victims cannot enjoy more rights to participate except as witnesses in the typical adversarial procedure. Only in the sentencing hearing after conviction, can they get some opportunities to express their views and wishes. Perhaps, in the era of Parker and Griffith, the criminal reconciliation system between the defendant and the victim has not emerged, the concept of “restorative justice” has not been put forward, and the central issue of the criminal process is the relationship between the state and the defendant. The new model of criminal procedure based on the relationship between the victim and the defendant has not been on the stage of history, which is indeed a pity for Parker’s and Griffith’s theories.

8.3 Confrontational Justice and Its Limitations Confrontational justice is not synonymous with the confrontational system. Although confrontational justice has appeared in Parker’s and Griffith’s model theory and is built based on the experience of the Anglo-American adversary system, it does not mean that the “confrontational justice” model exists only in the British and American adversarial system. From the perspective of the tripartite legal relationship between prosecution, defense and adjudication, Chinese jurisprudence divided the modern Western criminal procedure system into two models: “ex officio doctrine” and “adversarial system”. This theory took the degree of each party’s control over the procedure as the division standard. Both models are based on the state prosecution doctrine and involve an equal confrontation between the prosecution and the defense. In particular, the adversary system is based on the premise that the prosecution initiates the criminal procedure and the defendant pleads not guilty. However, once the two sides reach a consensus on the defendant’s guilt, the adversarial procedure is unnecessary. There is an adversarial judicial model based on the equal confrontation between the prosecution and the defense in both the “ex officio system” and “adversary system”. It is clear that the confrontational justice model based on the premise of equal confrontation between the prosecution and the defense, as well as its counterpart, the cooperative justice model, may exist in both the “ex officio system” and the “adversary system”. The foundation of the “confrontational justice” model is that the prosecution and defense, based on their opposing positions, fight and argue for their respective goals.

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8.3.1 Basic Principles of Confrontational Justice As a model of criminal procedure in which the prosecution and the defense are tensed and in opposition, confrontational justice is based on two theoretical premises: one is the clear distinction between crime and tort; the other is the principle of state prosecution. Since the inquisitorial system originating from the church law had replaced the “ancient accusatorial system” in the Middle Ages of Europe, the concept of crime is gradually being separated from civil tort. The crime is regarded as an illegal act leading to social harmfulness and threatening the interests of the whole society, while the tort is an individual’s infringement of the interests of others with no evident harm to society. As for the civil tort, the principle of no trial without complaint is applied, which means the court shouldn’t try a case without a complaint from the injured party. On the contrary, the state must prosecute the defendant to initiate the criminal procedure. Therefore, the emergence of the principle of state prosecution is related to the separation of crime and tort, and the principle of no trial without complaint is applied to civil tort. Based on the principle of state prosecution, the state punishes the criminals by prosecution, conviction, and sentencing. It deprives them of their freedom, property, and life in the name of all members of society. The application of the penalty, from a negative aspect, is to achieve the goal of retribution so that the offender bears the moral retribution and the legal sanction. On the other hand, from a positive perspective, it is for a deterrent purpose, so that criminals will not commit crimes again (special prevention), and at the same time have a dissuasive effect on those potential criminals in the society (general prevention). Meanwhile, modern countries also emphasize the individualization and modesty of punishment, object to the traditional criminal justice in which any crime must be punished and “strict punishment for crimes”, and advocate the doctrine of prosecuting discretion as a supplement to the rigid principle of statutory prosecution. However, for most criminal cases that have met the constitutive requirements of crime, the success of prosecution is the premise of implementing criminal policies. After the case goes to trial, the prosecution would try its best to get a guilty verdict from the court, so there would be a confrontational relationship between the prosecution and the defense. In criminal proceedings, the defendant is at a distinct disadvantage rather than evenly matched with the prosecution. The procuratorates can obtain all evidence with the help of public security organs, collect evidence through search, seizure, and surveillance, and even force the defendant to confess by restricting personal freedom. In most cases, the defendants have lost their freedom and cannot defend themselves. Even with the help of lawyers, the defendants can hardly compete with the procuratorates. Moreover, in the pretrial procedure, the procuratorates usually take compulsory measures to obtain evidence and initiate prosecution, which may either infringe privacy, property, or even human dignity or deprive of freedom. It may lead to the abuse of power and public tort if the law fails to exert effective control over the compulsory measures. Because of this, strengthening the defense to ensure equality of arms between the two sides and limiting the prosecution’s power

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to prevent any abuse have become two major issues faced by the modern criminal procedure system. To solve these two problems, modern countries regard establishing due process and protecting the defendant’s rights as the primary mission of criminal procedure. Since the nineteenth century, the development history of the criminal procedure, in a sense, highlights how the rights of the defendant have been strengthened and improved. It can be said that the reason why the confrontational justice system has become an equitable battleground between the state and the defendant rather than an unfair war of “the law of the jungle”, is that the continuous efforts to due process strengthen the defendant and limit the power of the prosecution. In this respect, confrontational justice has three basic concepts: the first one is the “presumption of innocence” against arbitrary prosecution by the state; the second is a series of procedural justice standards established to ensure the equality of arms of the two sides; the third is the procedure for checking and balancing the prosecution’s power. As a rebuttable presumption to replace judicial proof, the presumption of innocence establishes a solid legal barrier for criminal defendants to resist the state’s arbitrary prosecution, trial, and conviction. According to this principle, a person is presumed to be innocent unless the prosecution proves him or her guilty and the court convicts him or her of crime, and there is no burden placed on the accused to prove innocence. Unlike the general presumption of law, the presumption of innocence is so strong that the prosecution can only overturn it by proving its claim to a high degree. Therefore, the distribution of the burden of criminal proof is established by the presumption of innocence: the procuratorate bears the burden of proving the guilt; the accused does not bear the burden of proving his or her innocence but enjoys the right of defense; if the procuratorate fails to prove the guilt or reach the standard of proof, the court should make a verdict of innocence by the principle of “ruling in favor of the defendant in case of doubt”. Although the presumption of innocence sets some ground rules for the battle between the defendant and the prosecution, without other procedural rules, the defendant will still be in the situation of “being beaten passively” and cannot defend himself effectively. Therefore, fair trial or procedural justice is the fundamental principle of confrontational justice. As a legal value closely related to the adversarial judicial model, procedural justice only exists when the prosecution and the defense oppose each other. However, if the prosecution and the defense settle, procedural justice or a fair trial will not play a role. As such, we can view it as a confrontational value. The value of procedural justice in confrontational justice is reflected in the “minimum procedural guarantee standard” established by Article 14 of the International Covenant on Civil and Political Rights of the United Nations. For example, under the traditional law of natural justice, the judge must hear both sides. To ensure the effective participation of the prosecution and defense in the process, almost all countries have set the following procedures: the defendant has the right to be informed of the charges and reasons for prosecution in time, make preparations for defense, obtain the help of lawyers in time, present the evidence, opinions, and claims to the court, require the court to call the witnesses to testify, refute the prosecutor’s evidence, opinions and claims, and cross-examine the witnesses. Another

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example is that the law of natural justice requires that “no one can be a judge in his case”. To prevent judges from taking sides and losing their neutral position, the law also requires judges and jurors who may have prejudice or prejudgment to recuse themselves; the judge shall have no contact with either party; those highly publicized cases should be referred to other courts; the court shall abide by the principle of “no trial without complaint” and shall not try the claim without prosecution or application. In the next example, procedural justice requires the “equality of arms” of the prosecution and the defense. In the case of great differences in the ability between the two sides, the judge should “turn the balance to the weak”, endow the weaker party with some privileges and require the stronger party to bear some obligations. Such as the right against self-crimination, the double jeopardy clause, the legal aid system, and the inversion of the burden of proof, all embody the meaning of equal confrontation in the process. Procedural justice requires much more than these indeed. We should adhere to procedural justice mainly because only by a fair process can the accused influence the judgment, experience human dignity, and the status of the subject of the lawsuit, instead of passively accepting the state’s sanction. Only when the defendant is regarded as an interlocutor and participant, can he be convinced of the legitimacy of the process and respect the judgment.14 Confrontational justice requires a due process in the trial and sets some rules for the pre-trial stage. According to the logic of presumption of innocence, the suspect’s freedom is inviolable. The suspect is not to be deprived of freedom unless the prosecution has proven that the suspect has committed a crime and the requirements for applying compulsory measures have been met. According to this line of thought, pretrial detention should be an exception, while the non-detention compulsory measures should be the general case. Therefore, the requirements and judicial review system of pretrial detention should be stipulated by law. At the same time, the suspect who has questioned the legality and necessity of pretrial detention has the right to obtain judicial remedy. Moreover, for compulsory measures such as search, seizure, and surveillance, a judicial control standard similar to that of pretrial detention should also be established.

8.3.2 Limitations of Confrontational Justice Confrontational justice has its inherent defects, which bring a series of new problems. First, confrontational justice needs huge judicial resources. The more the common procedure changes in the direction of confrontational justice, the greater the litigation cost will be. With the augmentation of antagonism of the procedure, the suspect and the defendant get more and more procedural safeguards. The period for closing a case is extended accordingly, and the contradiction between the limitation of judicial 14

For a detailed discussion of this issue, see Chen Ruihua. (1997). The theory of criminal trials. Beijing University Press, chapter 2.

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resources and the legitimacy of the procedure increases. The experience of criminal procedure in the United States shows that without the rapid settlement of up to 90% of criminal cases through plea bargaining, the extremely costly adversarial procedure would be in a state of unbearable burden or even on the verge of collapse.15 The experience of the reform of criminal procedure in Italy in 1988 also suggests that the reform transplanting the adversarial system has broken the balance between the original system and the judicial resources, and only through the separation of complex and simple criminal cases can a new balance be established. Therefore, some summary procedures, including the modified plea bargain, are established in the Italian code of criminal procedure, which becomes the supporting system designed to ensure the implementation of the ordinary procedure.16 After the “trial model reform” in 1996, lawmakers made reforms to the ordinary trial process to enhance its adversarial nature, which resulted in the simple trial of some cases. This has been seen as evidence of the failure of the transplantation of the adversarial system. This is the inevitable price for China’s criminal procedure law system to move toward the confrontational justice model. Unfortunately, in the 1996 reform, legislators did not pay much attention to the separation of complex and simple criminal cases, which resulted in the designed summary procedure not being able to meet the needs of judicial practice, so some courts simplified the ordinary trial procedures of some cases. As a result, two kinds of “summary procedure” are popular in judicial practice.17 Thus, any reform aiming at confrontational justice may break the existing balance, increase the litigation cost, and prolong the time required to close a case, which shows that confrontational justice needs huge litigation cost, and the reforms aimed at making the defendant stronger and ensuring the equality between the two sides are bound to bring problems such as inefficiency and delay. The implementation of confrontational justice is costly. Secondly, confrontational justice relies on the opposition between the prosecution and the defense, so there is no basis for this model in those cases where the defendant pleads guilty. Those theories and principles about the confrontational justice that researchers are interested in can only be applied in a small number of cases. The experience of China shows that more than 95% of the suspects confess at the pretrial stage and more than 80% of the defendants plead guilty in court. In cases where the defendant renounces the right of innocence defense, the presumption of innocence and the proof system cannot play a role. The room for lawyers’ defense is limited, and there is no basis for the procedural protections and judicial remedy. The reality is that the principles and procedures of confrontational justice have not been implemented in most cases, and the presumption of innocence and procedural 15

Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329. 16 Chen Ruihua. (2005). A comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 3, 4. 17 Beijing Haidian district people’s court, criminal court No. 1, Research Office. (2001). Study on the model of simplified criminal ordinary procedure. People’s Justice, 10; An Keming, Tao Yuandi. (2001, October 8). Simplified criminal ordinary procedure. People’s Court News.

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justice does not apply to the cases where suspects and defendants give up the innocence defense, which suggests that confrontational justice does not apply to most cases. The premise of its application is that the prosecution and the accused are in complete opposition. If the prosecution and the defendant give up the confrontation and move toward cooperation, the confrontational justice does not work. A prerequisite for the cooperation between the prosecution and the defense is that the defendant gives up the innocence defense. To obtain more advantages, the prosecutors are usually willing to cooperate with the suspects. In almost all countries, the police can exempt from criminal responsibility tainted witnesses who are suspected of crimes but are willing to provide criminal information and clues, also the prosecutor does not prosecute the suspects who are guilty of minor crimes. In common law countries, if the prosecutor and the defense reach an agreement through “plea bargaining”, the judge may impose a lighter sentence proposed by the prosecutor. These practices show that the prosecutors and defendants may not only abandon confrontation but also negotiate to obtain the clause of “getting both benefits” by the principle of reciprocity and equivalence in a market economy. Naturally, when the prosecution and defense cooperate and negotiate, the theory of confrontational justice not only fails to explain convincingly, but also makes people question the theory itself, which shows the limitation of confrontational justice: it “can only explain confrontation, but not cooperation”. From this point of view, it is better to admit the shortcomings of confrontational justice theory and put forward a new theory to interpret “cooperative justice”. Finally, confrontational justice not only fails to explain the cooperation between the prosecution and defense but also does not pay attention to the participation of the victims. The traditional model of confrontational justice is based on the relationship between the state and the defendant. According to the traditional definition of crime, a criminal act is regarded as an individual’s serious violation of the interests of the whole society, which endangers the society. In the criminal cases with victims, crime jeopardizes not only the society but also the victims’ freedom, property, physical and mental health, human dignity, and even life. Moreover, according to the traditional system of state prosecution, only the state has the right to prosecute the criminal, so the victim’s report is only the “source” of the criminal process, and the victim is nothing more than the “prosecutor’s witness” who assists the prosecution, but not an independent plaintiff. As a result, the victims’ interests and claims are being ignored, and the victims’ participation in the process is neither sufficient nor effective. Judging from the recent discussion on the revision of the criminal procedure law, almost all the radical reform programs aimed at moving China’s criminal procedure system toward confrontational justice focus on enhancing the defense ability of the suspect and defendant. Almost all the reform measures, including the exclusionary rule, the right to silence, the hearsay evidence rule and the voluntary confession rule, the expansion of defense lawyers’ rights, and the trial model reform, aimed at improving the confrontation between the prosecution and the defense and shaping the criminal procedure of “equal confrontation”. However, this ideal design fails to make the victim participate in the procedure effectively or explain the criminal reconciliation in practice. The victim can neither participate in deciding not to file

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a case, dismiss the case and not to prosecute, nor give opinions on the sentencing. Also, they fail to exert effective influence on incidental civil decisions and participate in the decision-making of penalty change, such as commutation, parole, or service of sentence outside prison. Unfortunately, few of the reform programs pay enough attention to these issues. In many places, it has become common for judicial authorities to terminate criminal proceedings or impose a lenient punishment by persuading the victim and the defendant to reach a reconciliation agreement, which is regarded as an effective way to repair social relations and achieve social harmony. In some places, the criminal reconciliation movement has gone so far that it is now being applied not only in the cases that carry sentences of up to three years in prison but also in the serious crimes that may carry the death penalty. In many severe cases, the victim often accepts the defendant’s apology and does not seek the death penalty if a civil compensation agreement has been reached and the duty has been fulfilled by the defendant, which may impact the sentencing and even be used as the main basis for commuting the death sentence to the death sentence with a suspension.

8.4 Minimum Cooperation Model The so-called “cooperative justice” means that the accused and the defendant back off from confrontation to maximize the common benefits. The defendant’s confession of guilt is the premise and basis for the cooperation between the prosecution and the defense. In return for the defendant’s confession, the procuratorates generally offer preferential treatment, such as terminating the prosecution, taking lenient prosecution, or asking the court to impose a lighter sentence. It can be said that, compared with confrontational justice, the primary feature of cooperative justice is that the defendant makes a confession, and the judicial organs offer lenient treatment. In the cases where the defendant pleads guilty, the court may make a lighter sentence on the ground that the defendant has a good attitude toward confession, or even regard the confession as voluntary surrender. This shows that cooperative justice has already been embedded in China’s criminal policy. Cooperative justice was first established with the summary procedure in the criminal procedure law in 1996. Later, in the judicial practice, a simplified procedure appeared for the cases where the defendant admits guilt, called “simplified ordinary procedure”, mainly applied to criminal cases tried by basic courts. Based on the reform concept of separation of complex and simple criminal cases, the Supreme People’s Court launched a reform of fast-track sentencing procedure for minor criminal cases in 20 large and mediumsized cities in 2014. The fast-track sentencing procedure applies to minor crimes where the penalty may be less than one year of imprisonment. First, the defendant’s confession is the premise of applying any summary procedure. This means that the defendant gives up the efforts to seek clearance and no longer exercises the right to innocence defense. Compared with the cases in which the defendant retracts the confession or pleads not guilty, pleading guilty occurs in

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up to 80% of the court trials. As the most important sign that the prosecution and the defense give up the confrontation, the defendant’s confession provides a procedural platform for cooperative justice. It constitutes the foundation of minimum cooperative justice. Without the defendant’s confession, the elements of cooperative justice, such as “negotiation”, “compromise”, “bargaining”, and “reciprocity”, simply do not exist. When designing the summary procedure, the supreme judicial organ of China gives the prosecution and the defense the right to choose the quick procedure by themselves rather than give the court absolute control according to the traditional ex officio doctrine. In other words, the defendant may agree or disagree with the application of the summary procedure after the court informs about the consequences of the choice, and the intention of disagreeing may terminate the summary procedure. So, the application of the summary procedure is not decided by the court but by the prosecution and defense through reaching an agreement, which creates an institutional environment for the introduction of the cooperative judice model. If the defendant admits guilt and chooses summary procedure, the court may impose a light sentence, demonstrating that the law allows the court to give light sentencing to the defendant who renounces the lawsuit confrontation. Compared with plea bargaining in Britain and America, in China’s summary procedure the courts are not allowed to reward the defendants who plead guilty beyond the statutory sentencing range, so the court may choose, at most, within the legal range, a penalty above the minimum threshold but below the intermediate sentence. For example, choose a sentence of fewer than five years when the statutory sentence is between three and seven years in prison. It is even less likely that Chinese courts change the charges from felonies to misdemeanors to reward the defendant who has pled guilty. Nevertheless, the fact that the defendant’s confession is regarded as “discretionary circumstances of leniency” indicates that the defendant may consider possible sentencing leniency before deciding of confession or not guilty plea, to obtain maximum returns while waiving his right to plead not guilty. Since the procuratorates generally do not have the right to recommend a specific sentence to the court, and such a recommendation, even if it were proposed, would hardly be legally binding on the court’s decision, there would be little room for the defendant to negotiate with the prosecutor on sentencing. For various reasons, it is also impossible for the judge to negotiate with every defendant before the trial to persuade the defendant to make a confession or choose a quick decision procedure. As a result, the provisions in the judicial interpretations about the court’s discretion to impose a lighter sentence may be a legal promise to encourage the defendant to confess. Whether the court fulfills the promise would be the consideration for the defendant to choose the quick decision procedure. In this way, the “discretionary sentencing” is more likely to fulfill the promise of lenient sentencing after the fact rather than a promise in advance, which may encourage defendants to confess their guilt rather than fight with the prosecution through the “reward” afterward.

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Because of the above characteristics, the summary procedure in China is different from the guilty plea system in Anglo-American law18 and the procedure of punishment writ in continental law.19 Compared with the guilty plea system, there is no legal basis for the negotiation and compromise between the defendant and the prosecutor, so the judge may neither accept the sentencing agreement reached by the two parties before the trial, nor participate in the negotiation process in person, but only may encourage the defendant to admit guilt with the help of “discretionary sentencing” provision. Compared with the procedure of punishment writ, the Chinese procuratorates, while able to put forward the application for the summary procedure to the court, have no right to make specific recommendations on the sentencing of the accused. Only the court, not the procuratorate, has the final say on sentencing, and only the judge can decide whether to apply the discretionary leniency clause. Because of this, there is very little chance of introducing the plea bargaining system, as happened in the Criminal Procedure Code of Italy in 1988, in the summary procedure in China.20

8.5 Negotiated Public Cooperation Model The so-called “negotiated public cooperation” model refers to the model in which the defendant and the criminal prosecution decide the defendant’s criminal liability through negotiation and compromise.21 Negotiated justice is a typical model of public cooperation because it usually takes place between the defendant and the prosecution. The earliest and most influential negotiated justice is the plea bargaining system in the United States. The negotiated procedure in the continental law countries is a variant of the American plea bargaining system.22 Although China’s current summary procedure includes some elements of cooperative justice, it does not incorporate advanced elements of cooperative justice such as consultation, transaction, and compromise. Yet, there is still room for “negotiated justice” based on mutual benefit and compromise in the practice. For example, if an accomplice in a joint crime is willing to cooperate with the investigators, the court usually imposes a lighter sentence for confessing to the crime and exposing the accomplice. As another example, the procuratorate may promise not to prosecute the briber in a bribery case to encourage him to confess the crime and expose the 18

Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329. 19 Thomas Weigent. (2004). German Criminal Procedure (Yue Liling, Wen Xiaojie, Trans.). China University of Political Science and Law Press, p. 209. 20 Chen Ruihua. (2005). A comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 3, 4. 21 For a discussion of negotiation justice, see Ma Mingliang. The compromise of justice: the emergence of negotiated justice in China. (2004). Peking University Law Journal, p. 3. 22 Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329.

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suspected bribery of state functionaries. Moreover, when investigating smuggling crime, drug crime, or crime of organizations in the nature of criminal syndicate, the police may recruit the suspects who have not committed a serious crime and have the willingness to cooperate with the investigation authority as “informer” or planted agent to provide information about the crime or help the investigation authority conduct entrapment. The investigation authority may not transfer the suspects to the procuratorates for prosecution as a reward or return, thus ending the criminal investigation. Clearly, for cases presenting special difficulties in the investigation, evidence collection, and prosecution, public security organs and procuratorates are likely to reach agreements with the suspects. On the one hand, the suspect should confess the crime, and promises to cooperate with the investigators, provide evidence and information to expose others’ crimes, and even participate in the entrapment. On the other hand, the investigators and prosecutors promise not to prosecute the suspects. If the case goes to prosecution, the court may impose a lighter punishment at the prosecution’s request. In such activities with “negotiation” or “bargain”, the procuratorates and suspects tend to cooperate rather than fight to avoid the adverse outcome and maximize the gains. As the procuratorates and the suspects fulfill their promises according to the agreement, a litigation market for special cases gradually forms. In this “litigation bargaining”, any party’s breach of contract or lack of integrity may damage the market order, making it difficult to reach similar agreements. Because of this, the prosecutors who ask the suspects for something will not only keep their promises not to prosecute, but also reward the suspects with cash bonuses, jobs, etc.… More and more researchers favor this cooperative justice model based on negotiation and compromise, which motivates some grassroots judicial personnel to make innovations. Many researchers have recently advocated introducing plea bargaining into China’s criminal procedure. Before discussing the models of negotiated justice in China, this chapter analyzes the two main traditions of cooperative justice.

8.5.1 Two Traditions of Negotiated Cooperative Justice The guilty plea system in common law is undoubtedly the earliest system of cooperative justice model. According to this system, the defendant’s guilty plea means that he or she is waiving his or her constitutional right to the jury trial; the judge may therefore make a guilty verdict without a court trial and only hold the sentencing hearing. In essence, the guilty plea system embodies the essential characteristics of the Anglo-American adversarial procedure: the criminal procedure is carried out by the principle of disposition in civil procedure, and taking the defendant’s confession as the factual basis for conviction.

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The plea bargaining system was formed based on the guilty plea system.23 Some scholars discuss the plea-bargaining system and its transplantation in China only from a technical perspective but turn a blind eye to the guilty plea system on which the plea-bargain depends so that the relevant countermeasure analysis is not operable. The guilty plea system is the basis for the prosecution and defense to cooperate, and plea bargaining is just an extension of the cooperation. Plea bargaining is a private negotiation and compromise between the prosecution and the defense. The prerequisite for the two parties to reach an agreement is that the defendant promises to make a guilty plea, while the prosecutor makes corresponding concessions on the charges or the penalty. If the two parties reach an agreement by “bargaining”, they can submit the agreement to the judge. Suppose the judge confirms that the defendant’s guilty plea is voluntary, sensible and based on facts after the judicial review process. In that case, the judge may accept the defendant’s guilty plea and impose a sentence in accordance with the agreement between the prosecution and the defense.24 Indeed, due to the introduction of the transaction mechanism of equal negotiation and mutual compromise, plea bargaining has taken the cooperative justice model forward a big step. Both parties not only give up the confrontation but also maximize their respective interests through negotiation and compromise to achieve a mutually beneficial and win–win outcome. For this reason, some people refer to this litigation system that includes negotiation and transaction elements as “negotiated justice.”25 According to the tradition of the civil law system, the criminal procedure should follow the concepts of state prosecution and ex officio doctrine, so the prosecution and defense do not have the right to dispose of the lawsuit, and the court must discover the truth of the case through the trial procedure even when the defendant confesses. There is no room for the guilty plea and the negotiation and compromise between the prosecution and defense in the formal civil law system. However, this situation is changing in recent criminal justice practices. In Germany, the “criminal punishment writ” system, which is the main summary procedure, has begun to incorporate some elements of the negotiation between the prosecution and the defense. According to the formal system design, the criminal punishment writ is a written sentencing application submitted by the prosecutor based on the investigation files. Unless the defendant expressly objects to this summary procedure and applies for a formal trial, the criminal punishment writ could be directly submitted to the judge and used as the basis for the sentence. In principle, if the judge is convinced that the defendant has committed a crime, he can directly issue a criminal punishment writ, thereby turning it into a judgment. If the judge has doubts about whether the defendant is guilty and believes the evidence is insufficient, 23

Chen Ruihua. (2005). A comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 3, 4. 24 Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329. 25 Ma Mingliang. (2004). The COMPROMISE OF JUSTICE: THE EMERGENCE OF NEGOTIATED JUSTICE IN China. Peking University Law Journal, 3.

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or he does not agree with the prosecutor’s plan, he can refuse to issue a punishment writ and try the case in court. In this process, the defendant can either accept or reject the punishment writ or go back after accepting or rejecting it. The judge must respect the defendant’s choice.26 The criminal punishment writ procedure is mainly applicable to minor criminal cases that may result in less than one year of probation, fines, and revocation of driving licenses, which account for more than 50% of all criminal cases in Germany.27 Although the defendant can neither participate in the process of making the punishment writ, nor can he argue about its content in front of the judge, the practice that the judges, prosecutors, and defense lawyers negotiate the charges and sentencing involved in the punishment writ has gradually developed and even become an unwritten rule in some places in Germany. Such negotiation may take place not only between the prosecutor and the defense lawyer but also between the judge, the prosecutor, and the defense lawyer. However, this negotiation generally does not involve the accused charges, but the issue of punishment after the defendant confesses. In particular, prosecutors and defense lawyers can negotiate whether to apply the punishment writ and what sentencing suggestion to put forward. Considering the principles of crime-penalty stipulated by law and suiting punishment to crime in German law, there is not much room for compromise in the negotiation between the prosecution and the defense. The practice shows that the defendant who chooses a court trial may be sentenced to a more severe criminal punishment than the penalty in the punishment writ because of the judge’s comprehensive and detailed review of the evidence and facts of the case. As a result, the defendant who opts for the punishment writ may objectively get a certain degree of preferential treatment in sentencing. Although in practice some judges are very active in the negotiation involving sentencing issues, any agreement reached by the prosecution and the defense is not binding on the judge; because by the tradition of ex officio doctrine, judges are not bound by the agreement between the parties, but always have the power to make the rulings based on the evidence and the facts and to decide whether to accept the punishment writ.28 The Code of Criminal Procedure promulgated by Italy in 1988 reformed the traditional procedure of punishment writ and established two kinds of summary procedure that include more elements of negotiation between the prosecution and the defense. According to the code, the prosecutor may apply to the pre-trial judge for application of the summary trial procedure with the defendant’s consent. The judge holds no trial hearing, but instead decides the case quickly only by reviewing the files submitted by the prosecutor. If the defendant agrees to a summary trial, the judge may pass judgment after reviewing the prosecutor’s files. To reward and encourage 26

Thomas Weigent. (2004). German Criminal Procedure (Yue Liling, Wen Xiaojie, Trans.). China University of Political Science and Law Press, p. 209. 27 Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329. 28 Floyd Feeney, Joachim Hermann, Yue Liling. (2006). One case, two systems—a comparison of U.S. and German criminal justice. China University of Political Science and Law Press, p. 329.

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the defendant to choose the summary procedure, the pre-trial judge may give the defendant a lighter sentence, reducing the penalty by one-third if the defendant is found guilty. But for those defendants who should be sentenced to life imprisonment, the judge may only reduce the sentence to 30 years imprisonment at most. According to the “procedure of sentencing based on the request of the prosecution and the defense” established in the Italian Code of Criminal Procedure, the two parties have the right to reach an agreement on the defendant’s penalty. The judge only needs to review whether the content of the agreement between the two parties is legal and appropriate, and will not conduct a court trial. Unlike the “summary trial procedure,” the defendant can request the pre-trial judge for a sentence, regardless of whether the prosecutor agrees. Then the pre-trial judge determines whether the defense is voluntary based on the prosecutor’s files and the statements of both parties and whether the penalty agreed by the prosecution and defense is appropriate. This summary procedure, commonly known as the “Italian plea bargaining,” incorporates elements of negotiations, allowing the judge to review and accept agreements on sentences reached by the prosecution and the defense. However, the “plea bargaining” is limited by Italian law to a maximum of one-third of the statutory penalty, within which the judge may offer a “light sentence” to the defendant who chooses the procedure.29 There are clear differences between common law and civil law in cooperative justice, although they have some similarities. From the perspective of model division, the essential attributes of cooperative justice can be defined by the following standards: one is the way the defendant pleads guilty and the consequences; the other is the way the prosecution and defense negotiate; the third is the scope and extent of the compromise reached between the prosecution and the defense; the fourth is the degree of participation and interference of the judge in the agreement process. The following discusses the cooperative justice model in the two legal systems based on four above standards. As a model of “minimum cooperation”, the defendant’s confession is the premise of the cooperative justice model. By admitting guilt, the defendant gives up his right of innocence defense, which significantly weakens the confrontation between the prosecution and the defense, thus laying the foundation for the cooperation between the two parties. The so-called “negotiation”, “compromise”, “bargaining” and other cooperative justice factors are nothing but cooperation in litigation after the defendant pleads guilty. According to Anglo-American law, the defendant’s guilty confession is expressed as a guilty plea, which usually means that the defendant voluntarily gives up the right to a fair trial. This confession also has the character of self-admission in the sense of civil action, which enables the judge to directly use it as the basis for making a guilty verdict without a trial in court. However, in civil law countries, the punishment writ submitted by the prosecutor does not take the defendant’s confession as the precondition. Although the defendant’s consent is the precondition for applying

29

Chen Ruihua. (2005). A comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 3, 4.

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the procedure of punishment writ, whether the judge approves the punishment writ does not depend on whether the defendant pleads guilty. The negotiation on the charge and sentencing is a form of cooperation between the prosecution and the defense after the defendant gives up the right of innocence defense. Through this kind of negotiation, on the one hand, the prosecution may “repay” the defendant’s confession by persuading the court to give the defendant a lighter sentence. On the other hand, it may stimulate other defendants to confess, making more defendants voluntarily give up the lawsuit against the prosecution. The Anglo-American plea-bargaining system undoubtedly accommodates more bargaining factors in negotiation. The prosecutor and the defendant can fully negotiate and compromise on the accused charges and sentencing based on the defendant’s promise to make a guilty plea. In civil law countries, however, the defense and the prosecution are either prohibited from negotiation and compromise or can only negotiate with the judge. Especially in the traditional procedure of punishment writ, the defendant can only passively accept or refuse the sentencing suggestion submitted by the prosecutor. The negotiation between the defense lawyer and the prosecutor only revolves around whether the prosecutor proposes a punishment writ. Continental Law even encourages the defense to directly propose to the judges a sentence, cutting out the prosecutor. The so-called “negotiation between the prosecution and defense” has become the defense’s guilty plea for a lighter sentence. As a result of the negotiation, the prosecutor and the defense often compromise on the charge or sentencing. However, under different institutional traditions, the scope and magnitude of such compromises vary significantly. In Anglo-American law, the prosecution and the defense may conduct plea bargaining in almost all criminal cases, including death penalty cases. The prosecutor can not only change the charges from felony to a misdemeanor but also change the type of penalty and mitigate the punishment. According to Continental Law, however, whether it is the traditional criminal punishment writ or the Italian-style “plea bargaining”, defense lawyers can negotiate with the prosecutor or judge only on sentencing range. In terms of the scope of application, criminal punishment writ can only be applied in minor criminal cases that may result in suspended sentences and fines. The Italian “plea bargaining” can only be used in cases where the accused may be sentenced to three years of imprisonment. Moreover, the civil law system restricts the range of “negotiation sentencing”. For example, Italy’s plea-bargaining system gives the judges discretion to reduce sentences only by one-third. As integral members of cooperative justice, judges, on the one hand, have to conduct judicial review of the agreement reached by the prosecution and the defense; on the other hand, they can directly participate in the negotiation process. On this point, there are significant differences between common law and civil law. According to the former system, judges are prohibited from participating in plea bargaining but are primarily responsible for conducting the necessary judicial review of the agreements reached by the parties and making judgments directly based on those agreements. In the latter legal system, judges are encouraged to actively participate in the negotiation between the prosecution and the defense and have the final say on whether to accept the sentencing agreement reached by both sides. In some summary

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procedures in Italy, the defense is forbidden to negotiate with the prosecution but must submit a request for sentencing directly to the judge, so the “deal” actually takes place between the judge and the defendant. This shows that cooperative justice is subject to the characteristics of their respective institutional traditions. In AngloAmerican law, judges are portrayed as neutral arbiters, while in Continental Law, they are viewed as active inquisitors who bear the responsibility for discovering the facts of the case and the fairness of the outcome of the litigation.

8.5.2 The First Plea Bargaining Case in China Many courts and procuratorates have become interested in the plea bargaining system in recent years. In 2002, the Mudanjiang Railway Court of Heilongjiang Province tried out a plea bargaining system in the case of Meng, which was considered the “first case of plea bargaining system in China”. It triggered a discussion on whether plea bargaining should be introduced into China. [Case 1] On April 11, 2002, the Mudanjiang Railway Transportation Court of Heilongjiang Province held a hearing on Meng’s intentional injury case. When the prosecutor was ready to prosecute Meng for the crime of intentional injury, the defense attorney pointed out that, because the other suspects in the case are at large, it is impossible to determine who caused the injuries suffered by the victim Wang. There is insufficient evidence to prove that Meng caused Wang’s injuries. The procuratorate believes that the case is a multi-person melee; even if all the suspects are caught and arrested, the investigation and evidence collection would be difficult. But in any case, Meng should take the main responsibility for Wang’s serious injuries. In this case, the defense attorney negotiated and reached an agreement with the prosecutor. The defendant pleaded guilty and was willing to compensate the victim for the financial loss suffered from the injury, and requested the court for a lighter sentence. The lawyer agreed with the facts and charges brought by the prosecution and requested that the defendant be placed on probation. The public prosecutor agreed with the defendant and his lawyer and suggested that the court impose a lighter sentence and probation. According to the agreement between the prosecution and defense, the procuratorate filed an application to the court for the application of plea bargaining procedure. After receiving the application, the court mediated a civil settlement between the defendant and the victim, leading to an agreement of ¥40,000 in economic damages. In the court hearing, the prosecutor presented the process of plea bargaining and the content of the agreement to the court. The court confirmed the agreement between the prosecution and the defense and sentenced Meng to three years’ probation in accordance with the criminal law for the crime of intentional injury.30

30

Zhang Jingyi. (2002, August 8). Focus on the first case of “plea bargaining” in China. People’s Court Newspaper.

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Many researchers have studied and commented on this case. Some scholars believe that China should introduce a plea-bargaining system. Some think there is already a germ of a plea-bargaining system in China. And others see this case as a sign of the rise of “negotiated justice” in China.31 However, the plea bargaining in Meng’s case is incidental rather than typical and universal. Nevertheless, the Meng case can be used as a sample for studying cooperative justice in China. Similar to plea bargaining cases in the United States, Meng’s case arose from the uncertainty of the outcome of the litigation. If the prosecution had sufficient evidence to prove that Meng committed the intentional injury and caused severe damage to the victim, the prosecutors would not have made any “negotiations” or “deals” with the defense lawyers. However, the prosecution’s evidence was insufficient to prove the defendant’s guilt in this case. The defendant pleaded not guilty, putting the prosecution at risk of losing the case. Under the Chinese judicial system, prosecutors are negatively affected if a court acquires a case and may even lose rewards and promotions. To avoid an unfavorable outcome and win the case, prosecutors would cooperate with the defendant, which may be the direct motivation for prosecutors to choose a plea bargain. The defendant understood that the prosecution’s evidence was sufficient to prove the crime and that he was criminally liable. According to Chinese criminal law, the court may sentence a defendant who commits the crime of intentional injury and causes serious injury to more than three years of fixed-term imprisonment. Meng could have been sentenced to more than three years in prison if he had neither pled guilty nor had other mitigating circumstances. To avoid heavy penalties, Meng decided to negotiate with the procuratorate. As a matter of judicial experience, prosecutors can cooperate with defendants in such cases only to a very limited extent: if the defendant pleads guilty, the prosecutor can recommend to the court that “this circumstance be taken into account in sentencing” or ask the court for a “lighter sentence”. It is uncertain whether the court would impose a lighter sentence as the prosecution and defense would like. In this case, however, the scope for cooperation between the prosecutor and the defendant was expanded due to the plea bargaining experiment implemented by the court and the prosecutor’s office. After the defendant pleaded guilty, the prosecutor recommended that the court impose a lighter sentence and probation. This mutually beneficial agreement allowed the prosecutor not to risk losing the case and the defendant to receive a lighter sentence. In addition, the defendant may receive other benefits, such as continuing to work to earn a salary. Lawyers may thus gain visibility and professional success. The court would grant the prosecutor’s cooperation with the defense. The court reviews only the process of the plea bargain and other matters such as whether the defendant is voluntary and informed, but does not review the agreement’s content. In this way, the prosecutor’s promise of probation can be fulfilled. Without the court’s approval of the parties’ agreement, the negotiations between the prosecutor and the defendant are meaningless. 31

Ma Mingliang. (2004). The compromise of justice: the emergence of negotiated justice in China. Peking University Law Journal, p. 3.

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In Meng’s case, an agreement between the prosecutor and the defendant alone would not have resulted in a “deal.” The victim’s participation is essential in the plea bargaining process. First, the defense negotiated with the victim outside of the court proceedings. The defendant apologized to the victim and promised to pay financial compensation. Victims of injury cases want to obtain satisfactory monetary compensation. However, it is very difficult for victims to realize this wish under the current judicial system. This is because the defendant loses the incentive to compensate the victim if a guilty verdict is rendered. They either refused to accept the civil compensation mediation on the grounds of “lack of ability to pay” or refused to execute the civil compensation judgment of the court. As a result, “criminal reconciliation” is popular, with some victims preferring a “private settlement” to a formal judicial process. In Meng’s case, after the defense promised financial compensation, the victim did not object to the prosecutor’s suggested probation. Second, the Chinese judicial authorities attach great importance to the opinions of victims. In practice, victims may file complaints or petitions because of the lenient sentences or the lack of financial compensation, putting pressure on public security organs, procuratorates and courts. The victims in Meng’s case are satisfied with the case’s outcome because of the financial compensation and will not file a petition, which relieves the judiciary of major concern. It is fair to say that without the consent and satisfaction of the victims, there is no basis for the reform experiment of plea bargaining in China. Obviously, the Chinese judicial authorities should not copy the practice of plea bargaining. The “plea bargain” between the prosecution and the defendant includes a “criminal reconciliation” between the victim and the defendant, so the agreement between the prosecution and the defendant is based on the reconciliation between the victim and the defendant. This shows that a satisfactory civil settlement for the victim is a prerequisite for an agreement between the prosecution and the defense. This practice does not exist either in the U.S. plea bargaining practice or in the “innovative plea bargaining” of civil law countries.

8.5.3 Limits of Negotiated Public Cooperation Model The criminal suspects and defendants confess their crimes in exchange for leniency from the prosecution, so as to encourage the courts to impose lighter sentences. As a minimum form of cooperative justice, this practice is common in many countries, and there is no obstacle to it in China. According to China’s two quick decision procedures, if the defendant pleads guilty and chooses a summary procedure, the court may impose a lighter punishment. For the cases with difficulties in investigation and prosecution, the public security organs may not transfer to prosecution those criminal suspects who admit their guilt and are willing to assist the investigation and provide evidence, and the procuratorates may not prosecute them. This kind of “negotiation” and “dealing” activities in the pre-trial stage, although not authorized and regulated by law, still has room for existence.

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However, once the case goes to prosecution, it is difficult for the procuratorate and the defendant to cooperate by negotiation. These kinds of high-level elements of cooperative justice based on negotiation and compromise will face many difficulties in China. In other words, the introduction of the so-called negotiated justice into China’s criminal procedure is restricted by a series of factors. First, in accordance with the basic principles of criminal law, such as crimepenalty stipulated by law and suiting punishment to crime, the procuratorate and the defendant cannot negotiate on the accused charges, nor can they make a deal on the sentencing beyond the legal range. Plea bargaining in the United States has developed because the prosecutors and the defendants can negotiate on the charges. If a defendant promises a guilty plea, the prosecutor may drop one or more of the charges or reduce the charge to a lighter one, such as first-degree murder to manslaughter, completed crime to attempted crime, robbery to forcible seizure. In terms of sentencing, prosecutors enjoy so much discretion that they can negotiate whether to impose the death penalty with the defendants. Even so, in Italy, under the influence of the traditional principles, such as crime-penalty stipulated by law and suiting punishment to crime and statutory prosecution, the introduction of the plea bargaining system does not lead to the corresponding expansion of the prosecutor’s discretion. As long as the statutory requirements for prosecution are met, the prosecution must be initiated, and it is impossible to withdraw any charge in exchange for the defendant’s guilty plea. Also, the charged crime must strictly comply with the provisions of the written criminal law, and cannot be changed. For this reason, Italian law prohibits the two parties from negotiating on the alleged crimes and limits the negotiated sentence to one-third of the statutory penalty. Chinese criminal law follows the tradition of continental law and establishes the principles of crime-penalty stipulated by law and suiting punishment to the crime. For any act that constitutes a crime, the procuratorates must seek a suitable charge based on ascertaining the truth and prosecute the defendant. Once a case goes to prosecution, the procuratorates can’t revoke any charge in order to encourage the defendant to admit guilt, let alone use the charge as a bargaining chip for negotiation. The accused charges must be determined strictly based on the nature of the crime and according to the criminal law. Therefore, the procuratorates can change the charges of the case transferred by the public security organs for prosecution, and the court can also change the accused’s charges by itself in the judgment after the trial. As a result, the practice of dropping or changing charges to reach an agreement, which is common in America, has no room for existence in China. Moreover, when it comes to sentencing, China’s written criminal law makes a strict distinction between “lighter punishment”, “mitigated punishment” and “exempted from punishment”. Under this system, “lighter punishment” means a lighter sentence within the limits of the prescribed punishment; mitigated punishment “is a more lenient punishment”, less than the prescribed punishment; “exemption from punishment” means that the defendant is only convicted and no punishment is imposed. An act of voluntarily delivering oneself up to justice and truthfully confessing one’s crime after committing the crime is regarded as “surrender”. Any criminal who voluntarily

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surrenders may be given a lighter or mitigated punishment. The ones whose crimes are relatively minor may be “exempted” from punishment. If a criminal suspect or defendant under compulsory measures or a criminal serving a sentence truthfully confesses other crimes that the judicial organ does not know about, this act shall be regarded as voluntary surrender. These rules undoubtedly impose clear restrictions on the range of sentences that the prosecutor and the defendant can negotiate. Under normal circumstances, the court may regard the defendant’s confession as “surrender” and give the criminal a “lighter punishment” within the limits of the prescribed sentencing. Second, the conviction and sentencing procedures have not been separated in China’s criminal trial, so the prosecution and defense cannot participate fully and effectively in the sentencing process. Consequently, the procuratorates can’t have the “right of sentencing suggestion”. Even if an agreement on the sentencing is reached, it hardly impacts the court’s judgment. During the judicial reform in recent years, some local procuratorates have tried out the so-called “sentencing suggestion right” system, making clear and specific suggestions on sentencing. It is unclear how binding the sentencing suggestion is on the court, or whether the prosecution has effective remedies if the court does not accept the recommendation. Especially in the absence of a special sentencing procedure, even if the procuratorate makes a sentencing recommendation, it is difficult to get a response from the victim and to listen to the defendant’s and the lawyer’s opinions on sentencing. In fact, the court has almost unrestricted discretion on the sentencing. According to the American plea-bargaining system, the court does not conduct a substantive examination of the agreement reached by the prosecution and defense on the sentencing, but only symbolically reviews its formality such as whether the defendant is voluntary and knowing to confess. Allowing the parties to deal with the substantive issues of the case by reaching an agreement shows a tendency of “private litigation” in criminal procedure. On the contrary, in China, under the background of ex officio doctrine, no matter what agreement is reached by the parties, the court must try to find the truth of the case, apply the substantive law, and make a judgment independent on the parties will. From this point of view, since the court may not be bound by the agreement reached by the prosecution and the defense when making a sentence decision, what is the significance of the agreement on sentencing? If prosecutors cannot guarantee that the promised lighter punishment would eventually come true, why would the defendants want to make a deal with them? Third, the prosecution and the defense are most likely to reach a settlement in the “hard cases” with insufficient evidence, which may be contrary to finding the truth and presumption of innocence. As an ancient Chinese saying goes, “if the name is not right, then speech will not be in order, and nothing will be accomplished if speech is not in order.” If a system has problems with its legitimacy, there are shortcomings in it, no matter how much it will realize the interests of all parties. According to the traditional Chinese concept of criminal procedure, the court should “prioritize evidence, investigation, and study, not readily give credence to oral statement”; A defendant cannot be found guilty and

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sentenced to criminal punishment if there is only his statement but no other evidence. The concept of finding the truth means that whether the defendant has made a guilty confession or not, the court must review the evidence in the entire case, and only when the evidence is sufficient to prove the defendant’s guilt may the court make a guilty verdict. Unfortunately, cooperative justice has gone so far on “negotiation” and “deal” issues that the court does not examine whether the evidence meets the statutory standard of proof if the defendant’s voluntary confession is confirmed. It is easy for people to question its legitimacy: can the defendant’s confession be the key factor in determining the case’s outcome? Wouldn’t criminal procedure be the same as a civil procedure if this is the case? The public cooperation model may also enable the procuratorates to adopt negotiation and proper cooperation to deal with complex cases, thereby circumventing the presumption of innocence. In principle, the prosecution bears the burden to prove the defendant’s guilt and must reach the highest standard of proof. Otherwise, the judge would decide in favor of the defendant. However, in the “difficult cases”, the prosecution does not have sufficient evidence to prove that the defendant has committed a criminal act and caused severe criminal offenses. If the defendant pleads not guilty, it is challenging for the court to reach a guilty verdict. On the other hand, in the cooperation model, the defendant admits guilt, so the prosecutor promises the defendant probation. This mutually beneficial “deal” denies the principle of presumption of innocence, which is to “explain in favor of the defendant when the charges are in doubt”, and deprives the defendant of the chance to get a verdict of innocence. Fourth, in criminal cases with victims, the procuratorate and the defendant can’t reach any substantial “agreement” without the negotiation and agreement between the victim and the defendant. There is no room for public cooperation. Neither the American plea-bargaining system, the criminal punishment writ procedure of civil law countries, nor the new type of cooperative justice model in Italy has allowed victims to participate in the negotiation and deal process effectively. The victims are excluded from the “public cooperation”. However, in China’s criminal justice system, the victim has the status of a “party” in the confrontational justice model and plays an indispensable and important role in the operation of the cooperative justice model. Without the victim’s participation, the issue of incidental civil compensation will be difficult to resolve by relying solely on the negotiation and compromise between the prosecutor and the defendant. When the issue of civil compensation is not resolved, the victim will question the legitimacy of the agreement between the prosecution and the defense, oppose the way the case is handled, and even file complaints or petitions. Once such a situation occurs, public security organs, procuratorates, and courts are under intense pressure and are even unfavorably evaluated in the judicial performance assessment. Because of this, China’s “public cooperation model”, while introducing negotiation and deal factors, cannot copy the Anglo-American plea-bargaining system and exclude the victim from the process. Finally, the public cooperation model enables some criminal defendants to get lenient punishment because of the agreement between the prosecution and defense, which does not comply with the concept of equality before the law and may cause

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general public opinion backlash, thus negatively impacting the credibility of criminal justice. Based on their social life experience, Chinese people are outraged with the practice that authorities and individuals circumvent the formal legal system through private transactions, and regard it as “judicial corruption”. This simple impression is worthy of attention because judicial credibility is generally not very high. If there are too many factors of negotiation and deal in the public cooperation, some defendants may get lenient punishment because they have reached an agreement with the procuratorate, while others who have committed similar crimes may be severely punished because they failed to reach such an agreement. Obviously, the practice of “similar lawsuits with different judgments” does not conform to the concept of equality before the law. Moreover, the model of public cooperation also tends to give people the impression that “justice can be negotiated” and “power can be traded”. As a result, the fairness and seriousness of the judiciary are generally questioned by society, and the credibility of the judiciary is thus greatly affected.

8.6 Private Cooperation Model Like the “public cooperation model”, the “private cooperation model” presupposes that the defendant voluntarily pleads guilty and renounces confrontation, then the public security organ and the procuratorate often terminate the criminal process, also the court imposes a lighter sentence. The basis for the “leniency” is the cooperation between the defendant and the judiciary authorities and the settlement between the defendant and the victim. The contents of the agreement between the defendant and the victim usually include the following: the defendant makes an apology to the victim and provides the victim with a high amount of civil compensation. The victim does not ask the judiciary authorities to punish the defendant or does not ask for severe punishment. The agreement between the defendant and the victim is an important consideration for the judiciary in deciding whether to approve arrest, prosecute, and impose severe sentences, which is a prominent feature of the “private cooperation model”. Cooperation, such as negotiation, compromise, and deal, usually take place between the defendant and the victim, rather than between the defendant and the procuratorate. In other words, cooperation usually takes place between the defendant and the victim, and the judicial authorities only accept the “reconciliation agreement” and make corresponding “leniency” according to it. This is the main consideration that distinguishes the “private cooperation model” from the “public cooperation model”.

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8.6.1 Emergence of Criminal Reconciliation in China Originally, the system of private prosecution in China’s criminal procedure law has already included criminal reconciliation. According to this system, the victim can file a private prosecution to the court as a “private prosecutor” in cases “to be handled only upon complaint” and cases “for which the victims have evidence to prove that those are minor criminal cases”. The private prosecution follows the rules of a civil action, which means that the court may conduct a mediation in a case of private prosecution, the private prosecutor may arrange a settlement with the defendant or withdraw prosecution before a judgment is pronounced. In the private prosecution procedure, the settlement agreement reached by the victim and the defendant may terminate the criminal procedure, demonstrating that the victim and the defendant have the right to dispose of the substantive issues of the case by themselves, and the court tends to approve the parties’ decision. When dealing with some ambiguous cases, the public security organs often close the cases by encouraging the victim to settle with the criminal suspect. For example, for injury cases that cause minor injuries, the public security organs often conduct mediation, prompting the suspect to apologize and meet the economic compensation requirements of the victim, and then no longer transfer the case for prosecution. In another example, when dealing with traffic accidents that may involve traffic accident crimes, the public security organ encourages both parties to “settle the matter out of court” and then makes relatively flexible handling when the two parties reach an agreement. The recent criminal reconciliation in China is a criminal justice reform mainly carried out by the procuratorates. As they adhere to the criminal policy that emphasizes harsh penalties, the public security organs in many places often request the procuratorates for approval of arrest or transfer the case for prosecution for cases of minor injury. It is often difficult for the suspect and the victim to reach a settlement if the procuratorates do not approve the arrest. For this reason, the public security organs usually request for approval of arrest or transfer the case for prosecution for minor injury cases in which no settlement agreement has been reached. However, after these cases are brought to the court, many defendants are sentenced to probation, fine, or even exempted from criminal punishment, except for a small number of defendants who are convicted and sentenced to fixed-term imprisonment of fewer than three years. The defendant who is convicted by the court is tainted with a criminal record, so they lose hope in their future and strongly resist the compensation for the victim’s losses. As a result, in the incidental civil procedure of minor injury cases, the court often fails in mediation, and the judgment is difficult to be enforced. The victims who have “nothing” in civil compensation after going through the entire criminal procedure are dissatisfied with the judicial organs and even embark on the road of complaints and petitions. This puts great political pressure on the public security organs, procuratorates, and courts. Faced with this problem, the procuratorates in some places decided to cease with some of the past practices, expanding the scope of non-prosecution and not sending the minor injury cases in which the

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victim and the defendant have reached a settlement to prosecution. In addition, in cases where there is an intention to settle, some local prosecutors directly participate in the reconciliation process between the victim and the defendant, thus facilitating the settlement between the two sides. Some procuratorates even entrust mediation agencies such as local people’s mediation committees to mediate between the injured party and the defendant, to facilitate the two parties to reach an agreement on the amount of civil compensation. For the minor injury cases in which a settlement is reached, the procuratorates do not initiate prosecution, and instead, make a decision of non-prosecution, or suggest to the public security organ to dismiss the case. This criminal reconciliation system for minor injury cases was quickly promoted to the public security organs, procuratorates, and courts by some provincial-level political and legal departments. For example, provincial-level political and legal agencies in Beijing, Shanghai, Zhejiang, Anhui, and other places, based on summarizing the local procuratorates’ experience of the criminal reconciliation reforms, have successively promulgated normative documents applicable to their own regions to standardize the procedure of criminal reconciliation. According to these documents, for minor injury cases where the victim and the offender have reached an agreement on the civil compensation and the victim no longer requires the offender to bear criminal responsibility, the public security organs may dismiss the case, the prosecutors may make the non-prosecution decision, and the courts may grant the criminal a suspension of sentence or exempt the defendant from punishment.32 The scope of criminal reconciliation has been expanded in some places. The reform experience of the procuratorates in Yantai City, Shandong Province shows that criminal reconciliation may be applied not only in the cases of minor injuries but also in the cases of juvenile delinquency and negligent crime where the defendant may be sentenced to less than three years’ imprisonment. This experience is later extended to the public security organs, the procuratorates, and the courts in Yantai city, and is generally regarded as a groundbreaking criminal justice model—a “peaceful judicial model”. And in some grass-roots procuratorates in Hainan, Fujian, and other places, criminal reconciliation has also been applied to the cases in which college students are suspected of theft. This demonstrates that the application of the criminal reconciliation system has been expanded from the initial minor injury cases to some minor public prosecution cases, including cases involving minors and students. The procuratorates in Hunan province have begun to apply the criminal reconciliation to “minor criminal cases” and “juvenile crime cases”, which is a trend of this judicial model. Although the criminal reconciliation procedure is applied only to the examination before prosecution in the reform, it is the first time in China that all minor criminal cases and juvenile crimes are included in the criminal reconciliation process. Not only that, according to a normative document recently issued by the procuratorates in Hunan province, the manner in which the victim and the defendant reach a settlement agreement is flexible. In addition to the direct negotiation 32

Chen Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5.

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between the victim and the defendant, their close relatives, agents, and defenders may also participate in the criminal reconciliation procedure. The victim and the defendant may also entrust the representatives of their work units, the Peoples Mediation Committee and other mediation organizations to conduct mediation. Even “other units or organizations” may, based on their functions and powers, mediate to help the two sides reach a settlement agreement.33 Although the procuratorate is the main driving force for the criminal reconciliation reform, the court, as a national judicial organ with the power to convict and sentence, also plays an active role in applying criminal reconciliation. For those major criminal cases where the defendant may be sentenced to more than three years of imprisonment, even if the defendant and the victim have reached a settlement, the procuratorate cannot make a non-prosecution decision, or suggest to the public security organ to dismiss the case; at most, they can suggest that the court give a lighter or mitigated punishment. As mentioned earlier, civil compensation is the main claim of almost all victims. However, in minor criminal cases, including minor injury cases, the defendant may be convicted and sentenced once the case is brought to court. The defendant, therefore, loses hope and any guarantee in the future and is unwilling to provide civil compensation. Similarly, in severe criminal cases where the death penalty may be imposed on the accused, it is not possible for the court to induce the defendant to reach a civil compensation agreement with the victim, nor to ensure the incidental civil judgments be enforced. Experience shows that the defendant who is sentenced to death instinctively refuses the victim’s request for civil compensation, or may even transfer his or her property ownership to evade liability. On the contrary, for minor criminal cases, if the procuratorate makes a non-prosecution decision based on the settlement reached by the victim and suspect so that the defendant would not be convicted, the defendant often is willing to offer civil compensation. For severe criminal cases where the conviction is inevitable, if the procuratorate suggests the court give a lighter or mitigated punishment or apply a suspended sentence, the defendant is motivated to offer civil compensation. Even in severe criminal cases where the defendant may be sentenced to the death penalty, if the defendant thinks a high amount of civil compensation may be used to get a suspension of the execution or a lighter punishment, he or she is quite willing to offer civil compensation. In such a case, the defendant who can pay would give the money to the victim without delay. The defendants who do not have the ability to pay civil will raise money from relatives and friends to fulfill the civil compensation obligation in the shortest possible time. To encourage the defendant to perform the obligation for civil compensation, the Supreme People’s Court has made it clear in a judicial interpretation that the

33

On November 3, 2006, the Hunan Provincial People’s Procuratorate issued the “Provisions on the Application of Criminal Reconciliation by Procuratorates in Criminal Cases”. See Huang Jianliang. (2006, November 5). Hunan issues provisions on the application of criminal reconciliation by procuratorates in criminal cases to promote social harmony. Procuratorial Daily.

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court may take the fact that the defendant has compensated the victim as the circumstances of sentencing.34 In other words, if the defendant has reached a settlement with the victim and performed the civil compensation obligation, the court may regard this as the “discretionary circumstances” of the leniency, that is, the court has the discretion in the leniency decision-making. According to this judicial interpretation, many local courts have imposed lighter or mitigated punishments on defendants who may have been sentenced to death for their crimes. In these criminal severe cases involving personal injury or death, the defendant (or the close relatives of the defendant) sincerely apologizes to the victim (or the close relatives of the victim) and expresses their willingness to pay high financial compensation. After many setbacks, the victim finally accepts the defendant’s apology and is willing to accept the civil compensation. The defendant eventually fulfills the liability for civil compensation and obtains the victim’s understanding, persuading the victim to no longer request the death penalty for the defendant and even to express clearly to the court that the death penalty should not be applied. In the end, the court imposes a suspended death sentence or life imprisonment on the defendant based on the circumstances in which the defendant and the victim have reached a settlement agreement and the defendant has fulfilled the obligation of civil compensation. This is the general picture of the application of criminal reconciliation in the recent death penalty cases in China. [Case 2] Guo and Du are a pair of college students in love, dating for up to three years. On August 28, 2004, Guo argued with his girlfriend because she suddenly asked to break up and strangled her to death in the heat of the moment. The following day, Guo, accompanied by his parents, surrendered to the public security organ. After losing her only daughter, Du’s mother wrote a letter to the public security organ, asking for “severe punishment for the murderer”. Guo’s parents apologized to Du’s mother several times and eventually gained her forgiveness. The defendant paid $400,000 in financial compensation to the injured party. During the court proceedings, Du’s mother expressed forgiveness for the defendant, while the defendant Guo pleaded guilty and expressed remorse. Finally, the court sentenced the defendant Guo to life imprisonment for his “voluntary surrender”, “active compensation” and “confession of guilt”.35 Cases like this, in which college students who committed crimes received lighter penalties, have occurred in recent years. The public accepts and understands such rulings. The defendant’s high civil compensation to the victim and the victim’s forgiveness to the defendant were important reasons why the court did not impose the death penalty. [Case 3] In May 2005, the Fushun Intermediate People’s Court of Liaoning Province issued a verdict finding that the defendant Hou Mou, after colliding with the victim Qiumou in his car and having an argument, chased the victim in his car, knocked him to the ground, and then fled the scene. The victim died on the spot as a 34

Supreme People’s Court. (2000, 47). Regulations on the Scope of Application of Criminal Incidental Civil Procedure. 35 Hedin, Xiaonan. (2006, July 27). A college student is sentenced to a light penalty. Procuratorial Daily.

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result of the forceful impact. On the same day, the defendant Hou surrendered to the public security organ. The court held that surrender was not established because Hou did not admit to the main crime at the trial. The defendant committed the crime with brutal means and serious consequences, so he was not given a lighter punishment. The court found Hou guilty of intentional homicide and sentenced him to death, ruling that the defendant should compensate the victim’s wife Cai for more than 154,000 yuan economic losses. Afterward, both Cai and Hou filed appeals. During the trial of the case in Liaoning High People’s Court, Cai reached a civil compensation agreement with Hou before the verdict was delivered and applied for withdrawal of the appeal, which was granted by the court. The court of the second instance held that the defendant Hou committed intentional homicide. Still, during the second trial, Hou confessed to the crime, compensated the victim’s damages, and received forgiveness from the victim’s family, so he was sentenced to death without immediate execution. Finally, the Liaoning Provincial High People’s Court commuted the death sentence to a death sentence with execution suspended.36 This case is controversial. The defendant did not plead guilty in the first trial, nor did he pay civil compensation to the victim, but the court of the second instance commuted his death sentence to a death sentence with execution suspended on the grounds that in the second trial, he pleaded guilty, compensated the victim’s damages and received forgiveness from the victim’s family. Whether the court’s decision in the second instance is convincing will not be discussed here. However, similar to the previous case, the defendant in this case negotiated with the victim outside of court and reached an agreement on the amount of civil damages, and the victim eventually forgave the defendant and withdrew her appeal. Unlike the previous case, the defendant and the victim in this case did not reach an agreement in the first trial proceedings, and the defendant neither pleaded guilty nor apologized to the victim. The defendant reached a settlement agreement with the victim and obtained the victim’s forgiveness only after the court of the first instance had imposed the death penalty. This shows that the court has the discretion to consider the defendant’s fulfillment of civil compensation obligations as a “discretionary circumstance” for mitigating sentencing purposes. In the two cases mentioned above, the defendant and the victim reached a settlement agreement and the court imposed a lighter sentence. In the criminal settlement proceedings hosted by the court, both the prosecution and the defense proposed a lighter sentence, and the court commuted the death sentence to a suspended death sentence or a lighter sentence, based on the defendant’s surrender, confession of guilt, civil compensation, and obtaining forgiveness from the victim. This shows that the settlement agreement between the defendant and the victim on apology and civil compensation is the basis for the court’s lenient sentencing, creating institutional space for the “development of criminal reconciliation in the court”.

36

Former Liaoning provincial people’s congress representative Hou Junjun’s death sentence is commuted to death sentence with execution suspended. (2006, September 12). Xinhua.net.

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8.6.2 What is Restorative Justice? The scholars and judicial circle refer to the newly emerging criminal reconciliation as “China’s restorative justice”. So, what exactly is restorative justice? Is China’s criminal reconciliation restorative justice? If it has some essential differences with restorative justice, where will this “private cooperation model” fit? Chinese legal research has not yet formed its unique tradition, so some researchers tend to find labels or models from western legal theories to explain the reform practices in China due to the lack of self-confidence in the reform experiments conducted in Chinese practice. A typical example is the description of China’s criminal reconciliation as “restorative justice”. So far, many researchers have not carried out any comparison between the criminal reconciliation in China and the restorative justice in the West, so they take it for granted that the two are the same, or regard the criminal reconciliation reform in China as a part of the “worldwide restorative justice movement”. This research method, which is not based on empirical facts, often distorts the true nature of things, leading to a situation of echoing and misquoting what others say. In fact, the so-called “restorative justice” is a criminal justice reform movement that has emerged in common law countries such as New Zealand, Australia, Canada, and the United States. In 2002, the UN Economic and Social Council promulgated a program of action to promote restorative justice in all UN member states, thus making this criminal justice model global. Restorative justice is a new judicial model compared to traditional criminal justice. Its practice originated from the popular practices of the American, African, and Australian indigenous peoples in resolving disputes. Some western countries applied it to overcome the shortcomings of the traditional criminal justice system. Just like the development of most of the other legal theories, practitioners of restorative justice are often not the summarizers of this theory. The theoretical model of “restorative justice” is a theoretical summary made by some Western researchers based on the above-mentioned criminal justice reform experience, and it is also a typical sample of the conceptualization of social sciences. As a master of the theory of “restorative justice”, Professor Howard Zech of Harvard University in the United States gave a classic definition of “restorative justice”: Restorative justice is a process to involve, to the greatest extent possible, those who have a stake in a specific offense to collectively identify and address harms, needs, and obligations in order to heal and put things as right as possible.37 The first principle of “restorative justice” is to focus on the harm caused to the victims and the prejudice the crime caused to the offenders and the communities. The traditional criminal justice system defines crime as being against the state, so the state takes the place of the victim, while those directly injured by the crime are ignored, forgotten, or even abused by the judicial process. Traditional criminal justice is concerned with holding offenders accountable and making sure offenders get the 37

Howard Zech. Restorative justice (Zhang Qi et al., Trans.). In Di Xiaohua. (2005) Frontiers of criminal justice: a study of restorative justice. Mass Press, pp. 24–65.

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punishment they deserve, encouraging the offender to look out for themselves; but little in the process focuses on the root causes of crime, especially the personal and psychological trauma that the offender has suffered. Perhaps, some offenders were previously victims, and crime may be the result of that experience intensified by a strong feeling of being hurt. Not only that, the sense of exclusion from society and the animosity towards the victim felt by many offenders are heightened by the prison experience. Since crime weakens community members’ sense of security and belonging, surely communities are impacted by crime and in many cases, their members should be considered secondary victims. The second principle of “restorative justice” is to respect the needs of the victim, the offender, and the community. In the view of “restorative justice” proponents, traditional criminal justice has overemphasized punishment and retribution for perpetrators while ignoring several important needs of victims: the first is the need for information, including why did the crime occur? What happened after the crime; the second is the opportunity to present the facts, both about the crime and their own experience and consequences of being harmed by the crime; the third is participation in the judicial process; the fourth is the offender’s compensation and guilty plea. Traditional criminal justice focuses on the right of the offender’s defense, but ignores other needs of the offender, such as stating the victim factors and social causes of the crime and apologizing to the victim. The third principle of “restorative justice” is the recognition of the responsibility of all parties for the crime. The theory of “restorative justice” argues that it is important not to focus only on punishment, but also to make offenders aware of the harm of their crimes and willing to take legal responsibility for them. The offender has to understand the harm caused by the crime and the causal relationship between the crime and the harm, and has the obligation to remedy the harm caused by it. In addition, the community and society have a secondary responsibility to recognize the social causes of crime and to take steps to eliminate these potential triggers for the crime. The fourth principle of “restorative justice” is the inclusion of all interested parties in the judicial process. There are three models of “restorative justice” in common law countries: the first is Victim offender mediation; the second is Conferencing; the third is Circle.38 Regardless of the model, however, “restorative justice” provides opportunities for dialogue and negotiation among victims, offenders, and community members. This dialogue and negotiation allow the parties to express their views on the consequences of the crime, their needs and responsibilities. In contrast, traditional criminal justice does not give victims, family members, and community members the opportunity to participate, with the result that the harm suffered by all parties is not remedied and social animosity is not eliminated. The last principle of “restorative justice” lies in the goal of repairing the damage and restoring social relations. The parties can dialogue and negotiate. Victims are 38

Howard Zech. Restorative justice (Zhang Qi et al., Trans.). In Di Xiaohua. (2005) Frontiers of criminal justice: a study of restorative justice. Mass Press, pp. 24–65; Daniel W. Van Ness. (2005). Restorative justice in global perspective (Wang Li, Trans.). Journal of Nanjing University, 4.

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able to talk about the harm they have suffered and its effects, express their anger and condemnation, and make their demands. The offender expressed a sincere apology and willingness to assume responsibility based on an understanding of the impact and harm of his or her crime. Community members listen to both sides of the conversation, express their views, and learn about their obligations in eliminating the causes of crime. In this way, the perpetrator apologizes to the victim and compensates for the damage, the victim’s anger is vented, the animosity between the two parties is alleviated or even disappears, and the social relationship damaged by the crime is repaired.

8.6.3 China’s Restorative Justice? Is there a “restorative justice movement” happening in China? Is China’s criminal reconciliation a branch of “restorative justice”? On the surface, the criminal reconciliation in China has some characteristics of “restorative justice”, and it is similar by its name and the way it operates to the restorative justice model of some common law countries. For example, some countries have a procedure of “reconciliation between the victim and the offender”, which is similar to China’s “criminal reconciliation”. As another example, in the criminal reconciliation experiments conducted in many places in China, the offender and the victim can communicate and negotiate faceto-face. In particular, the “peaceful justice” model tried out by the procuratorates in Yantai, Shandong Province, has established the “reconciliation conference” system, which allows the victim, the offender, their family members, and work unit representatives to have face-to-face dialogue, communication, and negotiation, and reach an agreement. This reform experiment is in line with the idea advocated by “restorative justice” to involve all parties to resolve social conflicts. In the next illustration, Chinese criminal reconciliation focuses on the victim’s participation in the judicial process, putting the interaction and negotiation between the victim and the offender at the center of the criminal procedure, while the relationship between the state and the offender takes the second place. This is consistent with the principle of restorative justice. However, judging from the causes of China’s criminal reconciliation movement and its effects, there are still some substantial differences between this reform experiment and “restorative justice.” As the name suggests, the core of “restorative justice” is to restore and repair the social relations damaged by crimes. To do so, the judiciary must recognize that all interested parties have been harmed by crime, pay attention to their needs, encourage the parties to assume their responsibilities, ensure their effective participation in the dialogue and negotiation process, and finally, enable the victim to get both emotional and economic compensation. Given that, China’s criminal reconciliation focuses on compensation, the agreement on the amount of the compensation is the center of the process and a basis for the decision to terminate the criminal procedure or mitigate criminal punishment. Therefore, China’s criminal

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reconciliation aims at compensation, far from the purpose of “restorative justice”. The following is an analysis of four aspects. First, from the perspective of the causes of the occurrence of the system, civil compensation for the victims and the reduction of appeals and petitions is the direct motivation for the implementation of criminal reconciliation in China. So far, almost all criminal reconciliation reforms have started from minor injury cases. In order to reduce the victims’ complaints and petitions, for the minor injury cases where the victim and the offender have reached an agreement on compensation, some local procuratorates either make the non-prosecution decision, or suggest to the public security organs to dismiss the case, or recommend a lighter penalty or even a suspended sentence to the court. In the negotiation process between the offender and the victim, the most critical issue is the amount of the compensation. If the victim demands an exorbitant price that the offender would never agree to, the settlement cannot be reached. It is difficult for the public security organs to push the two sides to reach an agreement because the parties are too far apart in terms of the amount of civil compensation. However, after the arrest of the suspect is approved and the case is transferred for prosecution, the offender often takes the lead in making compromises in order not to be convicted by the court, while the victim may reduce the amount of civil compensation in order to avoid the “failure” of civil compensation after the court’s conviction. Therefore, under the auspices of the prosecutors, the parties can reach a settlement in some minor injury cases. The criminal reconciliation movement has a very realistic social foundation from the very beginning, without too many “noble ideals”. It is from the intention to encourage the victim and the offender to reach an agreement on civil compensation that some local procuratorates give up the prosecution and terminate the criminal procedure. Reducing the opposition between the offender and the victim and restoring social relations are only the indirect effects of criminal reconciliation, not the direct cause of the reform. Of course, the motivation for a system is not always the same as the social effect it achieves, and the latter is perhaps more noteworthy. However, even in terms of the social effect, the criminal reconciliation reform resolves the dispute between the victim and the offender only on the “material level” of civil compensation, and the offender also gets some visible “benefits” because of bearing the compensation liability. The criminal reconciliation procedure does not pay enough attention to issues such as how can the victim completely recover from the injury from the crime, how can the offender return to normal from his or her trauma and hostility towards society, and how can the community members go back to normal life after experiencing crime and reflect on the social reasons that contributed to the crime on the “spiritual level”. Secondly, in the process of criminal reconciliation, community members are not regarded as “victims”, and some needs of victims and offenders are not being fully met. The essence of “restorative justice” is to recognize that the offender, the victim, and community members have been “harmed” and address the needs of all parties. Only, in the criminal reconciliation experiment, no attention has been given to the community members having the status of “second victims”, also their need to participate in the criminal process has been ignored. As for community members and even

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the whole society to reflect on the social courses for committing crimes, it is not within the scope of criminal reconciliation concerns. The problem of ignoring the needs of victims in traditional criminal justice has not been resolved in the criminal reconciliation process. In addition to participating in the negotiation with the offender and the mediation presided over by neutral agencies and submitting process motions to the judicial authority, the victim cannot have in-depth dialogues with the offender, let alone share his or her experience, impact and consequences of the injury. Moreover, it is usually not the victims themselves who are involved in the negotiations, but their family members or litigation agents, which limits the participation of the victims. Similarly, it is often the family members or attorneys who participate in the reconciliation process on behalf of the offender. The offender is often condemned, has to meet the victim’s request for compensation, and passively bears the “care” or “favor” given by the judicial organs, but cannot express his views and share the experience of mental trauma and the real reason behind the crime. This kind of criminal reconciliation, which focuses on “punishing” and “pitying” the offender but fails to allow him to talk and express his feelings, cannot achieve satisfactory results in encouraging the offender to repent and apologize sincerely. Thirdly, criminal reconciliation overemphasizes the negotiation and communication between the victim and the offender, aiming at the settlement on civil compensation, but neglects the responsibility of the two parties. The advocates of the criminal reconciliation movement ignore the social causes of crimes and do not make community members aware of the importance of assuming corresponding responsibilities. As a social ailment, crime is nothing more than the manifestation of the turmoil of the social organism, and the criminal act is the result of the intensification of social problems. The practice of only emphasizing “guilt must be punished” and investigating the criminal responsibility of all crimes cannot truly solve the social problems that cause those crimes. In fact, many criminals themselves are the “victims” of social problems. If the social context that caused the crime persists, similar crimes will appear like diseases for which the root causes have not been eliminated. Regrettably, the theory of criminal causes in “restorative justice” has not attracted much attention in China’s criminal reconciliation experiments. As a result, the settlement agreement has nothing to do with the community members who are just indifferent spectators excluded by the judiciary from the criminal settlement process. The criminal reconciliation procedure has shaped the offender and the victim as interested parties who care about the amount of the compensation, prompting them to bargain for the money. The judicial organs put pressure on both parties and throw bait to urge them to abandon any confrontation. Some issues, such as whether the offender has realized the impact and consequences of the crime, felt the victim’s pain, sincerely confessed his guilt, and repented, are not really of concern to the advocates of criminal reconciliation. In many criminal reconciliation procedures, the offender does “sincerely apologize” to the victim, but is this an expedient measure to avoid criminal prosecution or a heartfelt confession of guilt and repentance? This is unclear in the criminal reconciliation experiment.

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Finally, except for reform experiments in individual areas, most criminal reconciliation processes do not give the parties an opportunity for full participation. They do not establish a “recovery ceremony” to reduce social conflicts and repair social relations, turning the criminal reconciliation into a utilitarian civil compensation negotiation procedure. Based on litigation strategies, many judicial organs emphasize the private reconciliation between the offender and the victim, or entrust mediation agencies such as the Peoples Mediation Committee with arbitration and accept the settlement agreement reached by both parties afterward, which is practical. If the judicial officers are too enthusiastic about or too much involved in the reconciliation, they may get into trouble, especially when the parties reach an agreement and later go back on their words. In fact, the practice in which the offender and the victim reach an agreement on their own and the judicial organs only accept it afterward turns the process of criminal reconciliation into a private relief that lacks the guidance of public power, and even into an unfair game following the law of the jungle. In this game, the offender promises to make compensation in order to avoid a guilty verdict or severe criminal punishment, while the victim promises not to submit a criminal prosecution request to the judicial organs in order to obtain the highest possible compensation. The judicial organs try their best to facilitate the settlement in order to save litigation resources and reduce complaints and petitions. This illustrates that criminal reconciliation is nothing more than a negotiation procedure for civil compensation. Whether this game may resolve the disputes, reduce antagonism, and eliminate potential hatred, is not the concern of judicial officials. The judiciary neither holds a negotiation meeting nor organizes judicial activity aimed at promoting reconciliation. Both the offender and the victim are satisfied with the compensation agreement and the termination of criminal procedure. Just like in a commercial transaction, the parties will not express their dissatisfaction when both sides get their benefits. As for whether all parties are satisfied from the bottom of their heart, whether the offender sincerely repents, and whether the victim has recovered from the painful experience, is not the concern of most people.

8.6.4 Revival of Accusatorial System? It is not difficult to realize that the advocates of the criminal reconciliation movement may have been influenced by the western concept of “restorative justice”, but this Chinese model of “private cooperation” is not the same as “restorative justice”. So, what exactly is China’s criminal reconciliation? In short, it is a procedure for resolving disputes over the compensation issue, putting the relationship between the victim and the defendant at the center of the criminal procedure by turning crime into tort and the criminal procedure into civil procedure. To some extent, the rise of criminal reconciliation means returning the accusatorial system in the modern criminal justice system.

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According to legal history, the accusatorial system is the first civilized litigation system, in which “crime” was not separated from “tort”, so all acts infringing upon another’s property, person, and life are regarded as civil torts. Regarding these civil torts, the principles of “no trial without complaint” and “who claims, who presents evidence” shall be followed to organize judicial procedures. The parties are allowed to dispose of their litigation rights, which means that the plaintiff’s withdrawal of the action the defendant’s admission, and a settlement between the two parties have a substantial impact on the ruling of the lawsuit. With the state’s growing power, the inquisitorial system gradually replaced the accusatorial system. As the second civilized litigation system, inquisitorial litigation separates “crime” from civil tort for the first time and defines it as “the illegal behavior of individuals infringing on the overall interests of the society”. From then on, crime is regarded as a serious tort involving “social harm”. Correspondingly, the victims who have been directly violated by criminal acts no longer have the status of a party, and the state is regarded as a crime victim. The procuratorate as a state agency is responsible for the criminal prosecution, leading to state prosecution doctrine. The criminal procedure initiated by the state prosecution agency no longer follows the principle of the parties’ free disposition of substantive issues, which is fundamentally different from the civil procedure. Until today in the development of the criminal procedure, such major changes have been and are taking place in both the basic concept and the structure of the system. However, the two ideologies mentioned above of the inquisitorial system are still in the dominant position in the criminal procedure and are even regarded as self-evident “truth” and original “doctrine” that cannot be challenged. In criminal reconciliation, the victim and the defendant may reach an agreement through dialogue and negotiation, then the judicial authorities may terminate the criminal procedure, or the court may impose a lighter penalty. Especially in minor criminal cases, settlements between the victim and the defendant may lead to the case not going to prosecution. The procuratorate and the court accept the agreement between the victim and the offender, so the settlement may influence the case’s process and outcome. The legitimacy of the traditional doctrines, such as state prosecution, legal prosecution, and fact-finding, has been questioned. As the basic concept of civil procedure, the disposition principle has been adopted in criminal procedure. Clearly, criminal reconciliation means that criminal procedure operates in accordance with the principles of civil procedure, which is a typical sign of “civil litigation in criminal process”. The appearance of criminal reconciliation has challenged the traditional criminal law notions of “punishment for guilt” and “pursuit of retribution”. In the past, the procuratorate followed the principle of “arrest when guilty” and “prosecute when guilty”, while the court pursued the criminal policy of “severe punishment”. In the process of approving arrest, prosecution, conviction, and sentencing, the opinions of the victim and the defendant were rarely considered, let alone their right of choice. Yet, in the current trial of criminal reconciliation, the procuratorate may make a non-prosecution decision in a minor case where the victim and the offender have reached an agreement, or suggest to the public security organ to dismiss the case so that the suspect can be acquitted. This acquittal is the result of an agreement between

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the victim and the offender. This shows that minor crimes tend to be considered “tort”, making the boundary between minor crimes and serious torts blurrier. And even in serious criminal cases, including death penalty cases, the court may impose lighter penalties if the victim has reached a civil compensation agreement with the defendant. This means that the exercise of the state’s power for punishment is no longer based solely on the social harm of the crime, but also considers the common wishes of the victim and the defendant. If criminal reconciliation is regarded as a tendency to associate “tort” to minor cases, it means “independence of tort and crime” in major cases. In the development trend of “criminal tort” and “civil litigation of criminal procedure”, the relationship between the victim and the defendant has become the center of the criminal procedure. However, the relationship between the state and the defendant is the most important issue in the traditional criminal procedure system. Whether it is the principle of crime-penalty stipulated by law, the presumption of innocence, or procedural justice, the core concept is how the state treats the accused. Although the victims have the status of a party, it is difficult for them to influence the process and the outcome of the case positively and effectively. In criminal reconciliation, the victim can have a direct dialogue with the defendant, demand that the defendant apologizes and offers civil compensation. In the negotiation process, which is the core link of criminal reconciliation, the victim occupies a dominant position, which can affect the operation of litigation. After the two parties reach an agreement, the victim can request the procuratorate to terminate the criminal procedure or recommend a lighter sentence to the court. In the cases where the victim and the offender have reached an agreement, the procuratorate and the court often make a decriminalization decision or give the defendant a lighter punishment, which suggests that the settlement between the victim and the offender may impact the outcome of the criminal case. The rise of the criminal reconciliation movement, without doubt, is not a restoration of the “accusatorial system.” In fact, in the modern criminal law system, there are clear boundaries between criminal offenses and civil torts, and criminal procedure is different from civil litigation. Especially in the traditional adversarial judicial model, the victim cannot replace the national public prosecution agency. The criminal reconciliation shows the logic of the growth of a system: the boundaries between the “crime” and “tort”, “criminal procedure” and “civil procedure” are the result of system changes, not the eternal “truth”. At least in minor criminal cases, the “criminal tort” and “civil litigation of criminal procedure” are irreversible trends, and the partial “return” of the accusatorial has become a reality. In severe criminal cases, even if the victim and the defendant have reached an agreement on civil compensation and the victim requests to terminate the criminal procedure, the procuratorate generally does not make the non-prosecution decision; the court does not issue acquittal but, at best, gives a lenient sentence. In these cases, the so-called “criminal tort” and “civil litigation of criminal procedure” are subject to some restrictions.

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8.7 A New Cooperative Justice Philosophy In line with the transformation of society, the criminal justice system in China is in the process of change and reform. It is difficult to make comprehensive and accurate predictions of the criminal justice system. However, taking confrontation and cooperation in the criminal process as the standard, a diversified litigation model has emerged and may have lasting vitality. The “public cooperation model” and the “private cooperation model” may indeed develop in different directions in the future, and there will even be overlapping or mixed models of the two cooperative justice forms. But what is certain is that, compared with traditional confrontational justice, cooperative justice has specific attributes. So far, we have been emphasizing the difference between the “public cooperation model” and the “private cooperation model” and their independent nature. But, do the two “cooperative justice” models have any common principles? If confrontational justice has a set of relatively mature theoretical bases, is there any corresponding judicial philosophy in “cooperative justice”? In fact, if we ignore the individual characteristics of the various “cooperative justice models” and focus on their common attributes and social background, it is not difficult to summarize some unique principles independent of confrontational justice. In the author’s opinion, these unique principles include three aspects: the first one is pragmatism philosophy based on seeking advantages and avoiding disadvantages; the second is the concept of judicial justice based on litigation cooperation; the third is a concept independent of due process and crime control. The following is a brief analysis of these unique principles of cooperative justice.

8.7.1 Pragmatism Philosophy If confrontational justice is a form of litigation based on a series of basic principles, cooperative justice is a litigation model established out of some pragmatic considerations. This pragmatism philosophy aims to maximize the interests of all parties and to “seek advantages and avoid disadvantages”. In other words, the core idea of this pragmatism philosophy is to minimize the risk of the parties and to the maximum their benefits. In the operation of cooperative justice, whether it is the defendant and the victim, or the criminal prosecution agency and the court, they make compromises to maximize their interests, so that all of them benefit. Similar to plea bargaining in the United States, China’s cooperative justice model follows the principle of ensuring the interests of all parties. In other words, in cooperative justice, whether it is the defendant and the victim, or the public security organs, the public prosecution agency, and the court, they avoid unfavorable litigation outcomes and obtain benefits from the cooperation.39 39

Chen Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5.

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In terms of form, cooperative justice does deviate from the traditional conception of confrontational justice in many aspects. For example, when the defendant pleads guilty, the burden and standard of proof serve no useful purpose. In particular, the cooperative justice procedure based on negotiation and compromise is just to deal with the “difficult cases” where the prosecution is difficult to achieve and the court should have rendered innocence in accordance with the strict principle of “in dubio pro reo (innocent until proven guilty)”. Obviously, the presumption of innocence, which is the cornerstone of modern criminal law, does not exercise effective influence on cooperative justice. For example, in almost all forms of cooperative justice proceedings, a guilty plea is equivalent to forgoing the innocence defense. The court trial is either omitted or arranged in a very simple way, which inevitably weakens the defense, making it difficult for the accused to present his evidence and crossexamine and refute the other side’s evidence. There is no so-called “neutral referee” as the court faces pressure from overstocking cases. Instead, the person in charge of adjudication will be a case handler eager to improve efficiency and save time. This shows that the traditional concept of “procedural justice” is not fully adopted by cooperative justice. Are confrontational justice and the various concepts it entails universally applied? Should presumption of innocence and procedural justice be regarded as unchallengeable dogmas? Almost all litigation theories were initially been proposed to solve problems in practice, and then they were generally accepted by people. So, if a principle, an idea, or a doctrine, fails to solve the problems at all, and even gives rise to some new problems, shall we ignore their negative effects and abide by them? In other words, is there any exception to the presumption of innocence and procedural justice? In fact, the experience of human social life shows that when a principle or idea goes so far as to cause problems, we need the pragmatism philosophy to replace it or make necessary supplements to it. When the defendant confesses, the prosecution and the defense negotiate and agree on the conviction and sentencing, there is no room for confrontational justice and the concepts such as the presumption of innocence and procedural justice. For this reason, we should admit that pragmatism is the philosophical basis for the cooperative justice model. This kind of model based on the defendant giving up confrontation provides all parties with an opportunity for negotiation, compromise, and bargaining, so that the interests of all parties are maximized, or at least the loss of their interests is minimized. Cooperative justice shows good vitality by benefitting all parties. Although it has some negative effects, the condition of substituting pragmatism for basic principles can be considered as a choice all parties have to adhere to.

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8.7.2 Judicial Justice Based on Cooperation From the perspective of pragmatism, the cooperative justice model ensures that the parties obtain maximum benefits and avoid unfavorable risks, which is why cooperative justice has vitality. In addition to meeting the parties’ demands, a system must have an ethical legitimacy. Otherwise, it may become a “devil’s feast” without fairness and justice. In addition to meeting the interests of all parties, cooperative justice embodies a new concept of judicial justice. The traditional confrontational justice, based on the principle of state prosecution and presumption of innocence, embodies a kind of “judicial justice based on confrontation”, as the state, rather than the victim, prosecutes the offenders to avoid tyranny and uncertainty and to achieve justice. Moreover, guided by the principles of presumption of innocence and procedural justice, the defendant fights with the prosecutor and exercises the right to defense in a fair trial presided over by an impartial judge. The principles, such as “no one can serve as a judge in one’s own case”, “the judge must listen to the statements of both sides”, “the judgment must state the reasons”, “equality of arms of the prosecution and the defense”, “the prosecution bears the burden of proof” and “in dubio pro reo (innocent until proven guilty)” embody the procedural justice based on confrontation. Unlike confrontational justice, cooperative justice pursues a “cooperation-based judicial justice.” According to this concept of judicial justice, the application of penalty must not follow the philosophy of “punishment for punishment’s sake”, otherwise, criminal justice would become a national pursuit of retribution or revenge without righteousness. The fundamental goal of punishment is to help those who have committed crimes return to society. For those defendants who confessed and repented their guilt, if the law pursues the goal of retribution in accordance with the principle of “guilt must be punished”, the application of punishment loses its basic legitimacy. In addition, although the crime is harmful to society, it has the nature of a “tort” and both the state and the victim are the actual “victims” of the crime in some cases, thus some crimes endanger not only society but also individuals. For this reason, state prosecution is not an absolute principle and needs to be complemented by private prosecution. Especially, the differences between “serious tort” and “minor crime” seem to have faded away in minor criminal cases. The victim’s disposal rights are extended since the social harm is not serious. The judicial organs of the state respect the victim’s choice in minor cases where the victim does not require the defendant to be held criminally liable. Even in major criminal cases, if the criminal act has infringed the victims, they should have the right to express their opinions and make suggestions on the conviction and sentencing. The judicial organs should not only consider the “social harm” caused by the crime but also respect the feelings and views of the victim and take this as an important basis for sentencing. The respect for the victim’s wishes is not a return to the accusatorial system, nor a revival of the idea of “an eye for an eye, a tooth for a tooth”, but is an adjustment of criminal justice goals based on the view that “victims are injured by the criminal acts (in cases where victims exist)”.

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Cooperative justice not only pursues a new substantive justice value, but also embodies the “procedural justice based on cooperation.” According to the concept of procedural justice, whether it is the presumption of innocence, due process or various procedural rights, at best, they are nothing more than a series of procedural guarantees set up by laws for the defendant. The implementation of the procedure depends on the accused’s rational choice from the perspective of maximizing his interests. But there is no right or freedom that cannot be given up. If the essence of freedom is to “enjoy the freedom to renounce freedom”, then the soul of rights is to “have the right to renounce rights.” For this reason, from the constitutional rights of citizens to the litigation rights of criminal suspects, they can be given up. As long as the waiving of the rights by the owners is voluntary and sensible, rather than forced or entrapped, it is generally justifiable. In cooperative justice, the defendant gives up the innocence defense by voluntary confession, which means waiving all procedural guarantees including “presumption of innocence”, “procedural justice” and “right to defense”. However, while giving up the procedural safeguards, the defendant obtains some benefits. They are given a lenient punishment or set free with a not guilty verdict. Cooperative justice is justified if the defendant is willing and well-advised in making such a choice. In some cooperative justice processes, the defendant can actively participate in the settlement process and negotiate with the victim to maximize his interests and minimize his losses. Most importantly, after reaching a settlement through the negotiation with the victim, the defendant can turn the private solution into a basis for the judicial authority to handle the case or impose a significant impact on the final decision of the judicial authority, which is an effect that traditional procedure guarantees cannot achieve. In other words, by choosing a cooperative justice model, the defendant not only fully participates in the settlement process of the case, but also exerts a direct influence on the verdict of the case, and prompts the judicial organs to make decisions according to his or her wishes. This is the best effect of the defendant’s right of action, and the new “procedural guarantee” brought by cooperative justice for the defendant. From this point of view, cooperative justice does have some “advantages” in realizing the value of procedural justice. It not only includes the elements of traditional procedural justice such as neutrality, participation, and equity, but also enables the defendant and the victim to control or even determine the outcome of the case by exercising the right of action, so the decision of the case is made based on the agreement between the defendant and the victim. Only in this sense can Rawls’ pure procedural justice be realized in criminal procedure.40 In this way, the so-called “fair substantive decision” is made in the “fair procedure” and becomes a reality in criminal procedure.

40

Chen Ruihua. (2005). Frontiers of criminal procedure (2nd ed.). People’s University of China Press, p.203.

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8.7.3 The Third Legal Value As Griffith criticized, Parker’s two models focus on either “crime control” or “due process”. Within the theoretical framework of confrontational justice, there seems to be no other value worth noticing except the justice of the outcome and of the procedure. In view of this, Griffith accurately summarized the limitations of confrontational justice, which is generalized as the “battle model”, and proposed the corresponding “family model”, thus discussing the third legal value. If the “family model” mentioned by Griffith is mainly applicable to the juvenile justice process, the third model embodies the values of “caring” and “education”.41 If the “family model” mainly emphasizes values such as “caring” and “education”, the “cooperative justice” discussed in this chapter offers another legal value. Of course, in the “public cooperation model”, criminal prosecution agencies can get guilty verdicts as quickly as possible through cooperation with the defendant, or investigate and solve cases efficiently, thereby achieving the success of criminal prosecution. The increase in the efficiency of criminal prosecution and the reduction of litigation costs reflect the value of efficiency, which is the “third value”. The author has analyzed this issue in previous studies that will not be discussed here.42 However, efficiency is not the most important factor in the “private cooperation model”. In fact, pushing the victim to reach a settlement with the defendant often requires a lot of effort. And in those cases where the parties have reached a settlement, the judicial organs may not be able to speed up the process and save litigation costs. In the author’s opinion, this model aimed at reducing the antagonism and animosity between the victim and the defendant may promote harmony and peace between the two parties and restore social relations. According to the above analysis, China’s criminal reconciliation is different from western “restorative justice” in terms of purpose and operation. Still, judicial harmony and the peaceful settlement of disputes are the goals that both of them should strive to achieve. The defendant admits guilt, gives up the innocence defense, repents sincerely and apologizes to the victim, and provides civil compensation to obtain the victim’s understanding and forgiveness, which means assuming responsibility and feeling remorse for his criminal behavior. This may clear the victim’s anger and hostility, weaken his motivation for revenge and turn animosity into understanding and tolerance. After the defendant has apologized and paid civil compensation, the victim forgives him and asks the judicial organs to terminate the criminal procedure or to impose a lighter punishment, which is a gesture of goodwill. Regardless of whether the victim’s requirements are fulfilled, the defendant may feel a sense of gratitude towards the victim, or at least, the defendant will not blame him for the conviction and sentencing. For the defendants and victims who share the same work unit, live in the same community or village, or have specific social relationships, this way of 41

John Griffiths. (1970). Ideology in criminal procedure. Yale Law Journal 79, 359. On the issue of litigation efficiency, see Chen Ruihua. (1997). The theory of criminal trials. Beijing University Press, chapter 2, 5; Chen Ruihua. (2005). Frontiers of criminal procedure (2nd ed.). People’s University of China Press, chapter 5.

42

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resolving disputes may reduce the possibility that the parties despise each other after the criminal procedure and become “feuds”. Compared with the traditional confrontational justice model that focuses either on the national interests (principle of any crime must be punished, state prosecution) or on the procedural protections of criminal defendants (presumption of innocence, due process), in the “private cooperation model” the problem of repairing the relationship between the defendant and the victim is highly valued, and the solution of this problem is closely related to reducing social conflicts and promoting social harmony. However, in the adversarial judicial model that over-emphasizes the value of traditional judicial justice, due to the conviction and punishment, the defendant is isolated from the society and is even injured in the process, suffering physical and mental trauma during the execution of the penalty, and becomes antisocial. This is especially true for the defendants who have committed a crime due to psychological trauma, they are faced with possible unfair treatment in the judicial process, may hate the society, and put their anger on the victim or even society. In the face of “care” and “protection” given to the defendant by the judicial system and the defense lawyer’s “rhetoric”, the victim feels “discriminated against” and “forgotten”, which leads to the feeling of “being hurt for the second time”. In addition, the current incidental civil procedure has irreparable shortcomings. Once the victim cannot obtain civil compensation timely after the process is over, or the civil judgment becomes a “bad check” that cannot be cashed, he may be disappointed with the judicial system. Compared with the shortcomings mentioned above of confrontational justice, cooperative justice can eliminate the conflict between the two parties, alleviate the dissatisfaction and anger of the two parties, and enable both parties to obtain maximum benefits. The state has made concessions in the penalty so that the defendant feels gratitude towards the state and the victim, and the victim has trust in the state, forgives and understands the defendant after obtaining emotional and material benefits. Thus, if there are “family model” and “cooperative model” in addition to the confrontational justice, there is a “third legal value” such as “care”, “education”, “efficiency” and “social harmony” in addition to the traditional substantive justice and procedural justice. The criminal justice system must not only meet the requirements of justice, but also consider other legal values. This is the enlightenment of cooperative justice. Cooperative justice should have its own philosophy different from that of confrontational justice. Between them, the restoration of social relations and social harmony are goals that can only be achieved through cooperative justice rather than confrontational justice. The use of the masculine gender includes the feminine and is employed solely to facilitate reading.

Chapter 9

Private Cooperation Model in Criminal Procedure

9.1 Emergence of Criminal Reconciliation According to China s traditional legal theory, crime is the violation of the law by individuals against the overall interests of society. The state punishes criminals by convicting and sentencing them to achieve criminal justice and prevent the convicted and potential offenders from committing future crimes. To this end, a criminal procedure is initiated by the state. The investigator, the procurator and the judge comprehensively collect and review evidence to find the facts of the case. The criminal procedure continues, even if the defendant pleads guilty or the victim requests to terminate the proceeding. Therefore, state prosecution and fact-finding constitute the core of the criminal procedure law, consistent with the theory of social harm in criminal law and utterly different from the disposition maxim in civil procedure law. Those traditional theories are being challenged with the rise of the criminal reconciliation system in China in recent years. In many minor criminal cases where the victim and the defendant have reached a settlement, the investigation authority, procuratorate and court tend to dismiss the case, not prosecute, grant an exemption of criminal punishment, grand probation or impose a non-custodial sentence. The province-level legislatures in Beijing, Zhejiang, Anhui and Shanghai1 and some county-level legislatures2 have issued regulations on the reconciliation procedure for 1

Four province-level legislatures have issued regulations on the reconciliation procedure for minor cases. For example, in 2003, the Beijing Political and Legal Committee issued the “Minutes of the Seminar on the Handling of Minor Assault Cases by Political and Legal Organs in Beijing”. In July 2004, the Zhejiang Provincial High Court, the Provincial Procuratorate and the Provincial Public Security Department issued the “Opinions on the Application of Law in Handling Minor Assault Cases”. In 2005, the Anhui Provincial Public Security Department, the provincial court and the provincial procuratorate issued the “opinions on handling of intentional injury cases (minor injuries)”. In 2005, the Shanghai High Court, the Procuratorate, the Public Security Bureau and the Judicial Bureau issued the “Opinions on Entrusting People’s Mediation Committee in Minor Injury Cases”. 2 For example, in 2006, the Linyi City Procuratorate in Shandong Province implemented the “Implementation Measures on Entrusting the People’s Mediation Committee to Mediate the Minor Injury © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_9

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minor cases. As the procurators have gradually accepted the concept of Restorative Justice,3 criminal reconciliation, which initially mainly existed in minor cases, has been applied in juvenile delinquency cases, negligent offense cases, cases involving the commission of the crime by college students, and extended to cases of burglary, robbery, serious injury, homicide, etc.4 Criminal reconciliation has achieved the desired effect and gained approval and recognition from the law and judicial circle. Many people think that this new criminal procedure is in accordance with the idea of a harmonious society, and is based on the harmonious culture advocated by ancient Chinese Confucianism.5 Some deputies to the National People’s Congress have put forward proposals to include criminal reconciliation in the criminal legal system.6 Legal researchers analyze criminal reconciliation from the perspective of restorative justice, some even call it a Chinese version of restorative justice.7 However, in my opinion, the recently emerging criminal reconciliation in China and restorative justice are essentially different in both the concept and the system design, although some similar elements can be found. In order to avoid misinterpretation, we regard

Cases During Examination and Prosecution in Linyi City Procuratorate”. In 2004, in Xuchang County, Henan Province, the Court, the Procuratorate, the Public Security Bureau and the Judicial Bureau issued the “Opinions on Handling Minor Assault Cases (for Trial Implementation)”. See Yin Peijun, Xue Wei. Minor injuries do not rush to prosecute, first mediation. (2006, July 14). Legal Daily; Xuchang county issued opinions on handling minor injury cases. (2004, November 2). People’s Representative Newspaper. 3 The term “restorative justice” refers to the criminal justice movement that emerged in the West in the 1970s. According to the generally accepted view, restorative justice is a systemic response to crime that focuses on healing the harm caused by crime to the victim, the offender, and society. In contrast to traditional criminal justice, restorative justice focuses on financial compensation for the victim, restoration of the victim-offender relationship, and reintegration of the victim into society. See Daniel W. Van Ness. (2005). Restorative justice from a global perspective (Wang Li, Trans.). Journal of Nanjing University, 4; Howard Zehr. (1990). Changing lenses: a new focus for crime and justice. Herald Press. 4 See Hei Ding, Xiaonan. (2006, July 27). The victim’s family pleads for mercy, and a college student gets a light sentence for killing his girlfriend. Procuratorial Daily. 5 At the “Symposium on Criminal Reconciliation in the Context of Harmonious Society” hosted by the Renmin University of China and Beijing Prosecutors’ Association on July 12, 2006, it was generally agreed that criminal reconciliation is conducive to promoting social harmony. Some senior jurists have sought a cultural basis for the criminal reconciliation system from the perspective of traditional Chinese culture. See Gao Mingxuan, Zhang Tianhong. The relationship between criminal reconciliation and substantive criminal law: a relative rationalist perspective; Fan Chongyi, Chen Jingtian. The thought of harmony and the construction of criminal reconciliation system. Research Center for Criminal Law Studies. The Renmin University of China and Beijing Public Prosecutors’ Association. (2006, July). Criminal Reconciliation in the Context of Harmonious Society. 6 Du Meng. (2006, March 7). Representative Suo Weidong proposes establishing systems of criminal reconciliation-based non-prosecution and suspended prosecution. Law.com. 7 Lu Gang. The core values and essential functions of restorative justice; Zhao Yugang. The procedures of restorative justice in China; Di Xiaohua. Compound justice and criminal mediation. In Wang Ping ed. (2005). Restorative Justice. Mass Publishing House. See also Song Yinghui, Xu Shigenjian. (2004). Reflections on the restorative justice process. Modern Law, 3.

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criminal reconciliation as a private cooperation model, that is different from the traditional adversary justice and the public cooperation model in which the procuratorate and the defendant negotiate and reach an agreement. The emergence of criminal reconciliation and the extension of its application have become a challenge to the traditional criminal procedure theory. This chapter analyzes three types of criminal reconciliation, describes the realistic foundation of this new criminal justice model and the challenge that the traditional criminal procedure theory represents for it, and, on this basis, predicts its future trends.

9.2 Three Models of Criminal Reconciliation Criminal reconciliation is a new judicial procedure that has appeared in recent years hence its application is still being explored and it is not yet widely used in China. Generally speaking, criminal reconciliation has the following characteristics. First, the defendant has confessed to the crime, paid economic compensation and sincerely apologized to the victim. Second, the victim is satisfied with the compensation, has accepted the apologies, and requested to terminate the criminal procedure. Third, the investigation authority, the procuratorate or the court has decided to terminate the criminal procedure or mitigate the punishment on the grounds that the harm done is not severe and, according to the circumstances of the crime and the demonstration of repentance, it is certain that the defendant will not cause further harm to society. Unlike the common reconciliation between two parties, criminal reconciliation involves the mediation of judicial organs or organizations. According to the initiator, the mediator, the participants, and the way the reconciliation is brought about, there are three models of criminal reconciliation. The first is the defendant-victim selfreconciliation model, where the defendant and the victim negotiate on their own and reach an agreement on economic compensation without the participation of a neutral body. Another is the judicial mediation model, in which the victim, the defendant, their near relatives and the representatives of their units participate in the mediation meeting presided over by the judicial officer and reach a reconciliation through the judicial officer’s persuasion and mediation. The third is the people’s mediation committee model. Special mediation agencies, entrusted by judicial organs, conduct mediation outside litigation in which the defendant makes an apology and offers a satisfying economic compensation to the victim, thus attaining reconciliation. The following section analyzes the components of the three models of criminal reconciliation based on local exploration and experimentation.

9.2.1 Defendant-Victim Self-Reconciliation Model The reconciliation-based non-prosecution conducted by Beijing procuratorates indicates that the victim may make a written application to the procuratorate to request to

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terminate the investigation of criminal responsibility when the victim and defendant have negotiated and reached a written agreement on financial compensation. Then the procuratorate may decide not to prosecute the suspect or suggest the investigation authority dismiss the case. This indicates that the reconciliation between the defendant and the victim is an independent model of criminal reconciliation. So, would the judicial personnel participate in the procedure and help the parties reconcile? The experience of Beijing procuratorates demonstrates that in some minor cases the parties have a strong desire for a settlement, and the perpetrator often makes an apology and offers financial compensation to the victim after the crime. The procurator just accepts the agreement without participating in the reconciliation. Moreover, the procurator neither provides a plan for the agreement, nor guides nor helps the parties to reconcile. Nevertheless, the procurator is not entirely inactive and may play two roles: one is to convey the wishes between the two parties as a go-between; another is to provide a place for negotiation and to witness the parties reaching and fulfilling the agreement. But the procurator does not sign the agreement, confirming that the agreement is between the parties rather than a settlement plan given by the procuratorate.8 There are some reasons why the procuratorates are passive and cautious in the criminal reconciliation procedure. In the view of some procurators, the procuratorates, as legal supervision organs rather than trial authorities, do not have the right and duty for civil mediation and criminal reconciliation. In the minor cases among acquaintances, the prosecutors who actively took part in the reconciliation procedure and even mediated between the two sides are perceived as favoring the suspects or even helping the wealthy ones compensate for their crimes. When both parties are willing to settle, but the compensation proposed by the victim is too much for the offender to pay, the amount of compensation offered by the victim is too high, and it exceeds the offender’s ability to pay, the prosecutor worries that too much involvement could turn the mediation into a tool for the victim to blackmail the offender. In cases where both sides are at loggerheads, financial compensation may not be the victim’s concern, so it may be difficult for the prosecutor to broker a settlement. Or, even if a settlement is reached, both sides may go back on their word later and even go to court repeatedly. This is why the prosecutor would rather passively accept a settlement than intervene too much. The defendant-victim reconciliation model is an attempt by the judicial authorities to decriminalize minor cases caused by civil disputes. In many cases, before the arrest is approved and the prosecution is initiated, the offender and the victim have reached an agreement on economic compensation and the victim has requested to terminate the criminal procedure. The procuratorates may break the tradition by means of ending the investigation of criminal responsibility if they can change their outdated mindset, stop expecting that punishing criminals by convicting and sentencing them is the sole objective of criminal procedure and respect the voluntary choice of the 8

Li Song et al. (2006, July 26). No prosecution for minor assault cases: the satisfaction rate of criminal reconciliation is 100%. Legal Daily; Cui Li. (2002. December 26). Beijing Chaoyang procuratorate expands non-prosecution for minor assault cases. China Youth Daily.

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offender and the victim. The experience that consists in applying criminal reconciliation in minor cases illustrates that the settlement between the two sides is only the first step in the criminal reconciliation process, for whether the agreement can be accepted and used as the basis for exempting the suspect or defendant from criminal responsibility depends on the final decision made by the investigation authority, the procuratorate and the court.9

9.2.2 Judicial Mediation Model The so-called judicial mediation model refers to the dispute settlement model in which the judicial personnel convince the two parties to reach an agreement on economic compensation, apology and other issues and persuade the victim to renounce the investigation of criminal responsibility through communication, education and persuasion. Criminal reconciliation practices reveal that in the cases where there are intense conflicts between the offender and the victim, especially when the victim desires revenge, the judicial personnel has to prompt the offender to confess and repent and persuade the victim to give up unreasonable and unrealistic demands. Otherwise, a settlement is unattainable.10 In judicial mediation, judicial personnel actively intervene in those cases where there is a possibility for reconciliation rather than passively waiting for the settlement between the parties. Generally speaking, the main tasks of the judicial officers are as follows: first, communicate with both parties and listen to each of their opinions on the case, and in particular, find out whether the offender is sincere in offering an apology and financial compensation; second, educate both sides from both a moral and a legal perspective, by criticizing the offender and persuading the victim party; third, promote mutual understanding and reach a compromise on the compensation, urge the offender to deliver on the promised economic compensation on the spot and persuade the victim to renounce to the investigation of criminal responsibility; fourth, communicate with the schools and work units to ensure that minors and college students can carry on with their studies and that adult offenders can go back to their occupations. The procuratorate in Yantai, Shandong province, has created a judicial mediation called reconciliation meeting by promoting “peaceful judicial procedure”. For those cases that meet the requirements for criminal reconciliation and in which both parties are willing to accept mediation, after exhorting each party, the procuratorate convenes the victim, the offender, their near relatives and the representatives of the school and work unit to participate in the reconciliation meeting presided over by the prosecutor at a certain time and place. The prosecutor persuades the offender 9

Cui Li. (2002, December 26). Beijing Chaoyang procuratorate expands non-prosecution for minor assault cases. China Youth Daily. 10 Cao Yang. (2005, Aug. 29). Haikou Meilan district procuratorate mediates minor criminal cases, building a harmonious society. Legal Times.

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s party to offer an apology to the victim for the injury caused by the crime, to ask for the victim’s understanding and forgiveness, and to express the desire to provide financial compensation. At the same time, the prosecutor offers an opportunity for the victim to express his or her affliction, so that he or she can talk about the injury and psychological trauma endured because of the crime, condemn the crime, and demand economic compensation. At the reconciliation meeting, the offender apologizes, the parties sign a settlement agreement, and the procurator decides on the case’s aftermath.11

9.2.3 People’s Mediation Committee Model The people’s mediation committee model refers to the one in which the investigation authority and the procuratorate entrust the people’s mediation committee to intervene in the minor crime cases in which the parties have the intention to reconcile. If an agreement is reached, the criminal responsibility of the offender may no longer be investigated. The reconciliation procedure is presided over by the people’s mediation committee, instead of by the public security and judicial personnel. In this model, the public security and judicial personnel are responsible for selecting cases. They entrust social mediation agencies to act as mediators and decriminalize cases after a successful mediation, so as to resolve the social contradictions caused by the investigation of the defendant’s criminal responsibility and promote the repair of the social relations between the parties. They delegate mediation to specialized social mediation agencies and decriminalize cases after successful mediation. The people’s mediation committee model first appeared in the pilot project in Shanghai. Since 2002, the Yangpu district bureau of justice, the district public security bureau, and the district procuratorate have entrusted the People’s mediation committee to deal with minor crime cases. If the parties reach a criminal reconciliation agreement, the investigation authority may no longer investigate, and the procuratorate may make the non-prosecution decision. In November 2005, the Yangpu district bureau of justice and the district procuratorate issued Regulation on Entrusting People’s Mediation Committee In Minor Crime Cases. According to this regulation, at all stages of a criminal procedure, from acceptance of the case to the trial, the investigation authorities, the procuratorates and the courts may entrust entrusted the People’s mediation committee to act as a mediator. If an agreement on the compensation has been reached, the case may be dismissed, the suspect may not be prosecuted, or the defendant may be exempted from criminal punishment. In 2006, the above practice was extended to all districts and counties of Shanghai as a legal experience of building a harmonious society.12

11

Yantai: Walking on the avenue of “peaceful justice”. (2006, April 12). Procuratorial Daily. He Tong. (2006, May 25). Shanghai allows pre-litigation mediation in minor injury cases. Oriental Morning Post.

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To ensure the quality of the people’s mediation work, the people’s mediation committees appoint full-time mediators, who are grassroots legal workers or retired judges with professional legal education and legal work or people’s mediation work experience, to be responsible for the mediation of minor crime cases. Three fulltime mediators form a mediation team.13 Since 2006, mediation teams, each of which includes three full-time mediators, have been stationed in some district courts in Shanghai. The mediation teams are responsible for the mediation of civil cases and minor crime cases entrusted by district and county courts, and for persuading the parties to choose people’s mediation to solve disputes. In this way, the judges’ caseload has decreased, and the disputes can be resolved reasonably and effectively.14 As an intermediary social organization set up in the streets and communities of towns, the people’s mediation committee extends the object of its mediation from ordinary civil disputes to cases of minor injuries, which will have a certain impact on the way it works. The people’s mediation practice in Shanghai is as follows: the mediation team convenes the victim, the offender and their near relatives to hear their options and help them reach an agreement. The antagonism is largely alleviated through face-to-face communication between the victim and the offender, and the conflict is usually mitigated. A typical mediation agreement contains the following: first, the offender admits guilt, expresses sincere regrets and offers economic compensation; second, the victim forgives the offender and requests to terminate the criminal procedure. In the mediation process, the dispute between the parties greatly focuses on the economic compensation, especially in minor injury cases where both parties have faults. The people’s mediation committees focus on the amount of financial compensation, persuading both parties to understand each other, compromise and reach an agreement.15

9.3 Practical Interests of Criminal Reconciliation Research on criminal reconciliation reveals that the judicial and legal circles tend to justify this procedure from the theoretical perspective. The restorative justice theory from western countries is regarded as the theoretical basis of criminal reconciliation.16 Some procuratorates even refer to criminal reconciliation as restorative justice.17 However, as a spontaneous reform experiment, criminal reconciliation originates from the exploration by the public security organs, the procuratorates and the 13

Wu Rong. (2006, May 29). People’s mediation for minor injuries. Labor Daily. Ma Yun. (2006, March 31). District and county courts set up mediation rooms this year. Shanghai Youth Daily. 15 Shi Xianguang. (2006, Aug. 15). Exploration and inspiration of people’s mediation for minor injury cases. www.chinalawinfo.com. 16 Yantai: Walking on the avenue of “peaceful justice”. (2006, April 12). Procuratorial Daily. 17 Liu Jinlin. (2006, June 16). Restorative justice: rational exploration, prudent implementation. Procuratorial Daily. 14

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courts, rather than the result of the jurists’ advocacy. This exploration is not so much rooted under a certain idea as based on the interests of the parties. The reason is that the current criminal justice system has become a bottleneck for the parties’ interests, so it is hard to get out of the predicament without reform. We cannot deny the basis of the interests in this reform, no matter how we demonstrate it from the theoretical perspective, because it is the satisfaction to the parties’ demands that gives the reform a strong vitality. The plea bargaining system originating from the United States has set a sample in this regard.18 The criminal reconciliation must meet two requirements to function properly. First, the offender and the victim are willing to reach a reconciliation agreement, which may minimize losses and increase their benefits. The common interests are the basis for them to move from confrontation to cooperation. Second, for the suspects and defendants who reach reconciliation agreements with the victims, the public security organs, the procuratorates and the courts feel motivated to establish a new procedure to give them a lenient punishment or even give up the investigation of their criminal responsibility. Admittedly, a new procedure will not survive if it deviates from the original goal of the legal system. To avoid becoming an unspoken rule without legitimacy, the criminal reconciliation must not harm the interests of the state and society in its operation. In the following segment, the author will analyze the causes of criminal reconciliation from three perspectives: the common interests of the offender and the victim, the benefit of the judicial organs and social harmony.

9.3.1 Common Interests of the Offender and the Victim Under the current criminal system, once the suspect is arrested and prosecuted, in most cases he or she will be convicted and sentenced. As a result, he or she may be suspended from school, or expelled from public service and branded as a criminal for life. People with criminal records not only face discrimination in education, employment, military participation, marriage and other social activities, and suffer the stigma associated with them, but also bring shame to their families. Therefore, the convicted defendant is usually deeply disappointed about his or her future, bears resentment towards the victim, feels no remorse and refuses to offer an apology and civil compensation to the victim. The judicial practice shows that in minor injury

18

Although plea bargaining has received much criticism and criticism for its theoretical legitimacy, it is a system that has emerged spontaneously in American justice to serve the interests of all parties to criminal proceedings. For prosecutors, plea bargaining can deal with cases with insufficient evidence and little hope of conviction, leading to a guilty verdict. For defense attorneys, negotiating criminal cases does not affect their income and allows them to handle more cases. For defendants, plea bargaining for a lighter sentence is preferable to lengthy detentions, cumbersome judicial proceedings and uncertain verdicts. For judges, a guilty verdict in a plea-bargained case can avoid cumbersome court proceedings and save litigation costs. See Chen Ruihua. (2005).A Comparison of Italian criminal special procedures and U.S. plea bargaining. Political and Legal Forum, 3, 4.

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cases from disputes among the people, the conviction usually hurts both the defendant and the victim.19 On the other hand, the victim’s desire for revenge is not easily satisfied, because the defendant usually gets a light punishment, such as short-term imprisonment, noncustody penalty and probation. Especially in minor injury cases, even if the court strictly applies the criminal law, the defendant is sentenced to imprisonment of not more than three years. Once the case enters the trial stage, economic compensation can only be obtained by filing an incidental civil action. Practice indicates that it becomes very difficult for the victim to receive high financial compensation if the defendant is convicted and sentenced, because, after the conviction, the defendant and his or her relatives tend to refuse to offer economic compensation. For this reason, the mediation in an incidental civil action is less likely to succeed, and the amount of compensation is often much lower than the standard of civil compensation. And then, to make matters worse, the defendant usually does not offer the compensation required by the court’s decision. The practice of incidental civil action shows that none of the defendants has fulfilled the compensation duty in some courts for several years.20 The situation described above indicates that it is hard for the victim to obtain adequate compensation in the traditional criminal procedure. In cases where both parties have settled, the public security organs, the procuratorates and the courts may no longer investigate the criminal responsibility of the suspect or the defendant, or impose a lenient punishment. When the case is dismissed, or the suspect is not prosecuted, instead of worrying about being labeled a criminal for life, or despairing about their academic and career prospects, the offender usually has a strong desire for atonement and repentance. When not convicted, minors and college students have a chance to continue their studies, those who have committed an offense such as traffic accidents and other negligent crimes can be forgiven by their work units and continue to engage in their original occupations. Experience shows that, when they are expecting exemption from criminal responsibility, the suspect or defendant and their close relatives would try their best to seek the victim’s forgiveness and offer financial compensation. The perpetrators who cannot afford the monetary compensation would pay compensation through borrowing. In many cases, before the criminal procedure is terminated, both parties have reached an agreement on compensation themselves or by the intervention of the people’s mediation committee or judicial personnel; sometimes, the offender pays the compensation without delay. Compared with an incidental civil action, this practice is favorable to the victim. As can be concluded from the pilot projects in some localities, the victim who reaches an agreement with the perpetrator usually gets a higher compensation, which is more than twice or even several times compared with the result of incidental civil 19

Li Xuanfu. (2005, September 18). Mediation, resolving grievances. Procuratorial Daily. According to a survey conducted by the Chongwen District Court in Beijing, the enforcement rate of the court’s criminal incidental civil judgments from January 2001 to October 2004 was zero. See (2005, August 22). For many years, the enforcement rate of incidental civil judgments in the Chongwen district court has been zero. Legal Morning Post.

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action. For example, the survey conducted by the Chaoyang district people’s procuratorate of Beijing in 2002 shows that in minor injury cases, the average amount of civil compensation obtained by victims through incidental civil action is about ¥6000, while the average amount obtained through settlements with offenders is about ¥20,000.21 When an agreement is reached, the victim may obtain sufficient compensation, and the offender usually fulfills the obligations. While apologizing to the victim, the offender is generally willing to offer adequate compensation to persuade the victim to renounce the investigation of the criminal liability, and pay the promised compensation promptly after obtaining the victim’s consent. For instance, the experience of the people’s mediation committee in the Yangpu district of Shanghai demonstrates that about 94 percent of minor injury cases were successfully negotiated after the people’s mediation process, and 98 percent of the agreements were fulfilled.22 Therefore, under the traditional criminal procedure, the state punishes criminals by convicting and sentencing them to achieve criminal justice. Still, the criminal record may negatively affect the defendant’s academic and career prospects and personal social life. The victim can neither make the offender suffer more severe criminal punishment nor get more compensation. However, criminal reconciliation allows the parties to choose the lawsuit’s outcome, making it possible for their original conflicting interests to converge. After the opposing parties settle, the judicial authorities would not investigate the offender’s criminal responsibility. Thus, the offender would not be convicted and sentenced. On the other hand, to get forgiveness and urge the victim to give up the request for a criminal prosecution, the offender may offer an apology and a high-priced compensation. This is a win–win outcome for both parties, which is why the parties are willing to settle, and why criminal reconciliation is proliferating.

9.3.2 The Benefit of Judicial Organs Criminal reconciliation would not exist if judicial organs did not give up the right to prosecute the criminals. So, in a case where the defendant could have been held criminally responsible, why would the judicial organs be willing to accept the settlement between the parties and terminate the criminal procedure? We cannot deny that in dealing with minor criminal cases through criminal reconciliation, the judicial organs have the good motive of maintaining social harmony and resolving social conflicts. Still, based on the assumption of rational man in economics, this criminal justice reform should at least not burden the judicial organs, or possibly bring them some benefits. So what are the possible benefits? 21

Cui Li. (2002, December 26). Beijing Chaoyang district procuratorate expands scope of nonprosecution in minor assault cases. China Youth Daily. 22 Shi Xianguang. (2006, Aug. 15). Exploration and inspiration of people’s mediation for minor injury cases. www.chinalawinfo.com.

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Litigation Efficiency

Generally speaking, in a world with limited resources, people give up something for more significant benefits, so it is unrealistic for the public security organs, procuratorates and courts to evenly invest the limited judicial resources into each criminal case to pursue the so-called absolute justice, which may result in a waste of resources in minor cases and a shortage of resources in major cases. After all, the amount of judicial resources invested should vary according to the national interests involved and the penalties imposed. Because of this, some jurists put forward a policy called combining severity with leniency, which means that severe crimes carry heavy penalties, and minor offenses carry light punishment or are treated as civil cases. Many rules of criminal procedure, including plea bargaining, negotiated justice and restorative justice, focus on the reasonable allocation of judicial resources to ensure that the defendant and the victim have rights of disposition and avoid monopoly and preferential application of criminal punishment by the state. China’s previous practice of prosecuting, convicting, and sentencing all criminals is counterproductive in comparing inputs and outputs. The experience of the criminal justice demonstrates that minor injury cases, negligent crimes cases and juvenile delinquency cases account for the majority of criminal cases tried in the grass-root courts; most of them are subject to probation, fines or are even exempted from criminal punishment, except for a few that require a sentence of fewer than three years in prison. The people’s procuratorate of Qixia city, Yantai, analyzed the cases brought to court from 2003 to 2005, and found that the cases ended with probation, fines and exemption from criminal punishment represented more than 49% every year, among which 49.6% in 2003, 80.2% in 2004, and 63.9% in 2005. Also, the charged crimes were mainly intentional injury, theft and traffic accidents. As another example, according to the research conducted by the procuratorate of Chaoyang district, Beijing, 1,838 intentional injury cases were accepted from 2001 to 2003, accounting for 25.2% of the total number of cases (7300 cases). Among them, 971 minor injury cases accounted for 13.3% of the total number of cases received. Of the 885 cases of minor injuries that resulted in prosecution, the defendants in 343 cases were sentenced to less than three years in prison, the defendants in 335 cases were granted a suspension of imprisonment of less than three years, in 87 cases the defendants were sentenced to criminal detention, in 88 cases they were sentenced to criminal detention and granted a suspension. As a result, the defendants in 47.8% of minor injury cases were suspended.23 To illustrate further, the Beijing Xicheng district people’s court accepted 286 cases of intentional injury from January 2002 to June 2003, in which 30% of the defendants were sentenced to fixed-term imprisonment and 70% were granted a suspension.24 Such a large number of suspension and non-imprisonment punishments is out of proportion to the investment of time, workforce, material and other judicial resources. 23

Yantai. (2006, April 12). Walking on the Avenue of “Peaceful Justice”. Procuratorial Daily. Xiao Zhiyong. (2003, September 12). Research on intentional injury cases. China Courts Network.

24

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From the investigation and prosecution to the final decision, the procedure for a minor injury case usually takes more than three months. At the same time, it is likely to last more than one year for a complex case, because the procuratorate may return the case to the public security organ for supplementary investigation. The sample investigation on the application of the ordinary procedure to minor injury cases by the people’s procuratorate of Chaoyang district, Beijing, from 2001 to 2003 indicates that in a minor injury case it takes 75 days to investigate, 30 days to prosecute and 30 days to make a decision, in total 135 days to complete the criminal procedure. If the time for the suspect to be released on bail and for additional investigation is added, a case may prolong for more than a year.25 In recent years, with fast social transformation, growing population mobility, an increasing gap between rich and poor and rising corruption, criminal cases have increased. The public security organs, the procuratorates and the courts, facing the backlog of cases and delays in litigation, have a strong desire to reduce litigation costs and improve litigation efficiency. Using the limited judicial resources to deal with criminal cases, achieving the separation of complex and simple criminal cases, and ensuring the reasonable allocation of judicial resources are common issues in front of all judicial organs. The summary procedure is generally applied in minor criminal cases where sentences of up to three years may be imposed. The procurator does not appear in court. The court quickly closes the case with a written procedure. Even in cases that may end in the imprisonment of more than three years, where a defendant has confessed, many courts apply a “simplified ordinary procedure” in order to save litigation costs. As one of the judicial reforms led by the procuratorates, the postponement of prosecution and community labor for minors and college students has an objective to improve litigation efficiency and save judicial resources to deal with significant cases. Criminal reconciliation, to some extent, is also a way to save litigation costs and improve litigation efficiency. To what extent can criminal reconciliation improve litigation efficiency? According to the statistics of the Chaoyang district procuratorate in Beijing, the procedure for a minor injury case closed with non-prosecution, from investigation to prosecution, lasts only about 90 days.26 The procuratorates benefit not only from the shortening of the litigation period and the exemption of the obligation to appear in court, but also from the increase of the number of cases closed as well. By making a non-prosecution decision, the procuratorates close many cases where a settlement is reached, which substantially increases the rate of case closure. However, completing a case by non-prosecution does not necessarily improve litigation efficiency. To meet the requirements of not prosecuting, the procurators have to go through various administrative procedures, such as submitting the case to the chief procurator for decision or to the procuratorial committee for discussion and sending the file to the superior procuratorate. As soon as they participate in the parties’ endless bargaining, 25

Li Song et al. (2006, July 26). No prosecution for minor assault cases: the satisfaction rate of criminal reconciliation is 100%. Legal Daily; Cui Li. (2002. December 26). Beijing Chaoyang procuratorate expands non-prosecution for minor assault cases. China Youth Daily. 26 Wu Jie. (2003, June 17). Minor assault case: is penalty the best option? People’s Daily.

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prosecutors devote considerable energy to arbitrating a settlement. This explains why some procuratorates prefer to let the parties reconcile by themselves, or entrust the people’s mediation institutions to mediate, rather than intervene between the parties and why some procuratorates prefer to advise the public security organs to dismiss the case rather than make a non-prosecution decision. This is the last resort to improve efficiency.

9.3.2.2

Resolving Difficult Cases

In addition to improving litigation efficiency, the adoption of criminal reconciliation is also related to the difficulty of obtaining evidence in some minor criminal cases. The experience in civil procedure shows that the clearer the facts are and the more abundant the evidence is, the less room there is for reconciliation. On the contrary, for those cases where the facts are unclear and the evidence is insufficient, the judicial organs often have a greater incentive to apply mediation and reconciliation procedures and are more likely to encourage the parties to settle. Plea bargaining in common law countries, as a way for the prosecution and the defense to deal with the substantive issues through negotiation, is often applied in those cases where the prosecution has insufficient evidence. Due to the lack of evidence, the prosecutor is not confident that the standard of proof beyond a reasonable doubt can be reached to convince the jury. Obtaining a guilty plea from the defendant by making concessions is better than prosecuting a case where the outcome is uncertain. Therefore, the prosecution can get some benefits; half a loaf is better than none: this is the vitality of plea bargaining.27 In practice, there may be some differences or even conflicts between the prosecutor and the judge when the judge thinks that the evidence of the prosecution is insufficient, but the prosecutor insists on the prosecution. To resolve the conflict, the prosecutor may withdraw prosecution or the judge may give a light sentence. There is, however, a third way: after the prosecution and the defense have negotiated and reached an agreement, the defendant pleads guilty and offers compensation to the victim, then the prosecution proposes a lighter sentence. There are specific difficulties in evidence collection for intentional injury cases compared with other criminal cases. Such cases are often triggered by civil disputes, the cause of which is sometimes not simple, and after the crime both sides involved in the fight stand by their argument. In particular, when there are multiple participants from both sides, the statements of the facts are usually in the so-called one-to-one situation, that is, the offender’s party speaks in one voice, blaming the victim, while the victim’s party provides testimony against the offender. Not only do the parties fail to specify whose action caused the injury, but even the eyewitness as a bystander cannot figure out the truth. What is more, intentional injury cases usually occur among neighbors, friends, relatives, family members and classmates. Also, the witnesses are 27

William T. Pizzi, Luca Marafioti. (1992). The new Italian code of criminal procedure: the difficulties of building an adversarial trial system on a civil law foundation. The Yale Journal of International Law, 17(1).

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generally from the same village or residential area. They have social relations with both sides of the conflict, so either they refuse to testify for fear of offending a party, or they may give false testimony. In addition, in cases of intentional injury involving multiple participants, the crime scene is usually not well preserved, giving both sides of the conflict enough time to destroy and forge evidence after the crime. This in turn renders the police’s efforts to get useful physical evidence difficult as they have to rely on the parties’ statements. Some judicial authorities prefer to settle the case through mediation rather than through formal criminal procedure in cases of intentional injury because of the difficulties in collecting evidence. By offering an ideal solution of decriminalization, the judiciary may persuade the offender to give up the innocence defense, confess the crime and offer the victim substantial financial compensation. It may also inform the victim of the risk of prosecution. There would usually be no guilty verdict and civil compensation once the case goes to trial due to insufficient evidence. In such a mediation where pressure is put on both parties, the lack of evidence is a big motivation for the procuratorate to push both parties to settle. We are not saying that the only reason judicial authorities choose criminal reconciliation is the lack of evidence. There is sufficient evidence in some minor injury cases because the facts are clear and the offender has confessed the crime. The judicial organs intend to maintain social harmony and resolve conflicts by decriminalizing the cases where the two parties settle. However, in some minor injury cases where the liability cannot be ascertained, the procuratorate and the court are willing to choose the reconciliation procedure to close the case, because they do not need to determine the liability and find out the truth accurately. The judicial authorities are happy to settle disputes to satisfy both sides of the conflict and do not unduly harm the interests of the state and society.

9.3.3 Social Harmony The traditional criminal justice emphasizes punishment for crimes. In minor injury cases and negligent cases where there is sufficient evidence that a sentence of more than fixed-term imprisonment may be imposed, the procuratorate usually approves an arrest and initiates the prosecution. The court typically renders a guilty verdict. The defendant who is convicted often displays a very negative attitude towards the compensation, such that in the incidental civil action it is difficult for the court to demand a high civil compensation and to guarantee that the defendant will comply. The victim may become psychologically unbalanced and feel disappointed and even distrustful of the judiciary. Due to dissatisfaction with the court’s judgment and the defendant’s conduct, some victims would lodge a complaint or a petition to the

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superior state organs, which may have a negative influence on social harmony and stability.28 In addition to the amount of the compensation and the possibility of it being fulfilled, the delay and inefficiency of the public security organs, the procuratorates and the courts are another reason for the victims to file a complaint or a petition. Determining who caused the injury to the victim is essential for an arrest approved by the prosecution or a conviction by the court. However, in cases of intentional injury, especially when many people are involved in a fight, the investigators often fail to obtain evidence and identify the specific offender. Sometimes the assessment is not performed promptly. The victim has already recovered from his/her injury, resulting in a fierce dispute over whether the injury suffered by the victim is severe or slight. In the absence of a solution to these evidential issues, it is difficult for the judicial authorities to decide, leading to delays in the case. Therefore, the victim who is dissatisfied with the judicial organs tends to file a complaint or a petition to the higher state organs to obtain a quick solution. The criminal reconciliation enables the victim to receive the offender’s sincere apology through face-to-face communication and the possibility of high compensation, so the victim would rather settle the dispute with the offender than wait for the judicial authority’s criminal action and passively accept the court’s decision. As long as the victim is willing to participate in the criminal reconciliation and accept the settlement, while the offender fulfills the compensation agreement, the victim would usually calm down, no longer resent the perpetrator, and accept the decriminalization plan. The victim is likely not to file a complaint or a petition in this situation. The empirical research of the procuratorates in Beijing reports that from July 1, 2003, to December 31, 2005, 667 cases settled by criminal reconciliation, involving 761 criminal suspects, account for 1.5% of all minor injury cases in seven districts, and 14% of criminal suspects were not prosecuted. 534 cases were dismissed by the public security organs, accounting for 80.1% of all criminal reconciliation cases. The procuratorates made the non-prosecution decision in 129 cases, accounting for 19.3% of all criminal reconciliation cases. The interviews with 15 competent prosecutors from seven district procuratorates demonstrate that they were satisfied with the criminal reconciliation. It has also been shown that in cases of reconciliation-based non-prosecution, none of the victims filed a complaint or petition, nor did they file private prosecution or civil action.29

28

In 2005, among the 278 petition cases received by Luyi county public security bureau in Henan province, there were 82 cases of intentional injury (25 cases of minor injuries and 57 cases of minor injuries), accounting for 29.4% of the petition cases. See (2005, September 18). Henan Luyi county public security bureau handles petitions effectively. People’s Daily Online. 29 The above data are from the research report of the Beijing Dongcheng district people’s procuratorate “an empirical study on criminal reconciliation in Beijing procuratorates”. See Research Center for Criminal Law Studies, Renmin University of China and Beijing Prosecutors’ Association. (2006, July). An empirical study of criminal reconciliation in Beijing procuratorate: taking minor injury cases as an example. Proceedings of the Symposium on Criminal Reconciliation in the Context of Harmonious Society.

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9.4 Challenges of Criminal Reconciliation to Traditional Criminal Procedure Theory As a new criminal procedure mode, criminal reconciliation challenges the traditional criminal procedure theory which is based on the confrontation between the state and the defendant. If we do not hold the strict dogmatic views that the traditional criminal procedure theory applies universally, we can find that criminal reconciliation develops spontaneously in China’s criminal justice system on solid and realistic soil. Legal researchers should carry on the profound reflection on the existing mainstream theory from the problems reflected in this criminal procedure. It is a unique contribution that Chinese jurists may make to upgrade criminal reconciliation to a general theory, aiming to solve the problem of Chinese criminal justice.

9.4.1 Confrontational Model and Cooperative Model The traditional theory of criminal procedure is based on the state prosecution, which emphasizes the exercise of the state’s power to punish the offender effectively, puts the prosecution and the defendant in opposite positions, and requires the court, as a neutral referee, to conduct a fair trial and a fair game. This judicial model, emphasizing the opposition between two parties and pursuing the judicial philosophy of procedural justice, requires that no one should serve as a judge in his case, the judge should listen to the statements of both parties, the full participation and equality of arms should be ensured in the formation of any judgment. The presumption of innocence has been embedded in the golden rule of the criminal procedure since Beccaria, which exempts the defendant from the responsibility of proving his innocence. The prosecution bears the burden of proving the defendant’s guilt and must reach the highest standard of proof. Otherwise, the judge would decide in favor of the defendant. Many criminal procedure rules, including open trial, direct and verbal trial, lawyers’ defense and appeal system, are designed to ensure equal confrontation between the prosecution and the defense. Many rules advocated by Chinese jurists in the recent reform of criminal procedure, including the principle that one shall not be compelled to testify against himself, the accused’s right to silence, the exclusionary rule, the system of the presence of lawyers during police interrogations, and the evidence discovery, aimed at maintaining the equality of arms between the prosecution and the defense and providing an effective legal remedy for the accused. Undoubtedly, these concepts based on confrontational justice are closely related to the defendant’s innocence defense in the criminal proceedings initiated by the state. When the suspect or defendant pleads guilty, those judicial concepts lose their meaning. In China’s criminal judicial practice, more than 95% of suspects make guilty confessions during the investigation stage, and no less than 80% of defendants admit guilt in court. As a result, the judicial mode based on the confrontation between the state and the defendant is bound to become unrealistic. In most cases, the prosecution

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and the defendant are not in opposite positions, and there are many opportunities for them to cooperate. For example, in minor criminal cases in which the defendant has confessed to the accused crime, the court may apply summary procedure with the consent of the prosecution and impose the penalty on the defendant without the prosecutor appearing in court; in ordinary criminal cases where the defendant admits guilt, the court may adopt the simplified ordinary procedure and impose a lighter sentence on the defendant with the consent of the prosecution; when the defendant is the first offender, or has voluntarily surrendered, or performed meritorious services, or returned the stolen goods, the prosecution often asks the court to consider the above circumstances; the prosecutor may also postpone or give up the prosecution if the suspect confesses. The criminal procedure is not a completely confrontational process between the prosecution and the defense; hence the prosecutor and the suspect or the defendant may move towards cooperation from the confrontation. If the defendant confesses to the crime, the prosecution and defense may cooperate. The first case of China’s plea bargaining, which the Mudanjiang Railway Transportation Court tried in Heilongjiang Province in 2002, attracted wide attention because it was an attempt by the public prosecution to cooperate with the defendant through negotiation and compromise.30 This kind of cooperation could be referred to as public cooperation, because the prosecution and the defendant chose cooperation after giving up the confrontation.31 Thus, there are two models in the context of confrontation or cooperation between the state and the defendant: one is the traditional model of confrontation; another is the model of cooperation through consultation and compromise. Criminal reconciliation is different from the former two models because this process of decriminalization does not involve “equal confrontation” between the state and the suspect or defendant. On the contrary, the acceptance by the judicial organs of the reconciliation agreement between the two parties in the conflict demonstrates that the state would not convict and sentence the perpetrator and stand in a hostile position with the defendant. In the criminal reconciliation procedure, the procuratorate, the court and the public security organ accept the reconciliation agreement or mediate between the parties rather than directly dealing with the suspect or the defendant, which is different from the public cooperation model where the state and the defendant reach agreements. This is why it is referred to as the private cooperation model. There is no room for the philosophy of judicial justice and criminal procedure theory based on the confrontational justice and the presumption of innocence in the criminal reconciliation led by the suspect, the defendant and the victim, because the acceptance of the reconciliation agreement between the parties and the abandonment of punishment to the offenders show that the judicial organs do not seek traditional 30

Zhang Jingyi. (2002, August 8). The first case of “plea bargain” in China. People’s Court Daily. For a discussion of negotiation justice or compromise between the state and the accused, see Ma Mingliang. (2004). The compromise of justice: the emergence of negotiated justice in China. Peking University Law Journal, 3.

31

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substantive justice. The rules about the burden and standard of proof, admissibility and legality of the evidence do not apply to the criminal reconciliation process initiated by the judicial organs on the premise of the offender’s confession. At the same time, the principle of presumption of innocence, the rule of right to silence, the exclusionary rule and the lawyer’s defense system no longer pertain, so the foundation of confrontational justice ceases to exist. By dealing with criminal cases in a decriminalized way, criminal reconciliation aims to resolve social conflicts and the harmony of social relations. The cold system of distribution of rights and responsibilities inherent in the traditional justice system has given way to mutual understanding and compromise. Face-to-face communication has replaced the confrontation principle of “fighting for every inch of land”. A win–win system is replacing an all-or-nothing zero-sum game. The general public easily accepts the judicial philosophy advocating social harmony and social relationship repair in Chinese society with thousands of years of Confucian cultural tradition which upholds the ancient belief that the enemy should be aligned. Criminal reconciliation is first applied in minor injury cases caused by civil disputes because such cases occur between neighbors, friends, relatives, family members, and classmates. Either both parties have faults or it happens for a reason, and the impact on society is not severe. In such cases, the conviction may intensify the conflicts between the two sides, expand the hatred and resentment, and the two sides may even become hostile to each other. Criminal prosecution may result in permanent damage to social relations. Therefore, it is indeed a wise choice to apply criminal reconciliation in such cases, to withdraw the state power from the field of civil disputes, not to pursue abstract justice that is not beneficial to either party, and to ensure social harmony and tranquility, which is also the most significant contribution of the criminal reconciliation system when compared to the theory of criminal procedure.

9.4.2 The Model Centered on the Relationship Between the Victim and the Defendant The traditional theory of criminal law defines crime as an individual violation of the social order and justifies the state prosecution. While the traditional criminal law is based on the relationship between the state and the criminal, the traditional criminal procedure regards the relationship between the state and the defendant as the core issue. So, the view that insists on finding the truth to control crimes emphasizes the national interests while the due process doctrine cares about the interests of the accused. For this reason, the two criminal justice models of due process and crime control proposed by Herbert Packer, an American scholar, did not break away from the judicial model centered on the state-defendant relationship.32

32

Herbert Packer. (1968). The limits of the criminal sanction. Stanford University Press, pp. 149– 173.

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Yet, the traditional criminal justice model, whether emphasizing the national penalty power or focusing on the rights of the accused, intentionally or unintentionally ignores the victim, whose right of a person, property and even life was infringed by the criminal. The victims suffer not only economic losses, but also mental pain and psychological trauma. The traditional criminal law theory considers crime as an illegal act harmful to society, but ignores the violation of private rights by the crime. The court does not consider the pain and trauma suffered by the victim due to the crime for sentencing. Even in applying penalty systems such as probation, commutation and parole, the harm suffered by the victim and the victim’s wishes are not factors to be considered.33 The traditional criminal procedure theory regards the victim as a critical “prosecution witness” and a plaintiff in an incidental civil action, who can neither exert influence on the investigation or the prosecution, nor put forward opinions on the conviction and sentencing of the court. The criminal procedure reform in 1996 enabled the victims to obtain the nominal “party status”, but their situation has not been substantially improved. When the public security organs or the procuratorates decide to terminate the criminal procedure, such as not filing a case, dismissing a case, and not prosecuting, they do not ask the victim’s opinions or even inform the victim. It is common for the court not to notify the victim to appear in court, and when it does, it mainly treats the victim as a civil party. Due to the integration of conviction and sentencing procedures, the victim cannot give opinions on the sentencing and the application of suspended sentences. Because there is no separation between an incidental civil action and criminal procedure, the victim can neither choose between the incidental civil action and civil procedure, nor participate in deciding on the civil compensation in the incidental civil action. The victim is not included in the decision-making of penalty change, such as commutation, parole or service of sentence outside prison. Traditional criminal procedure theory exaggerates the importance of the statedefendant relationship, resulting in little room for victims in either the confrontational justice model or the public cooperation model. In many cases, victims are left out of the criminal justice system, because there is little chance for them to participate, dialogue and get sufficient compensation. What’s worse, they may suffer “second injury” due to the neglect of state judicial organs. Fundamentally speaking, the traditional criminal justice model “steals the disputes” and deprives the victim of the chance to obtain psychological rehabilitation and economic compensation through participation in the criminal procedure.34 The criminal reconciliation system emerged in the context of repeated criticism of this traditional judicial model. This system offers a new model of justice centered on the victim-defendant relationship. In this new model, the victim steps onto the stage of criminal justice with an unprecedented posture and dominates the process of criminal 33

For example, in China’s mainstream criminal policy, whether it is “combining punishment with leniency,” “leniency with severity,” or “leniency in confession and severity in resistance,” what is expressed is only the relationship between the state and the defendant, but there is no mention of the victim. 34 Carolyn Hoyle, Richard Young. (2003). Restorative justice: The criminal justice process in the United Kingdom. (McKelvey ed., Yao Yongji Trans.). Law Press, p. 473.

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reconciliation and the lawsuit’s outcome. Reaching an agreement is a negotiation process led by the victim and constitutes the core of the procedure. The suspect must persuade the victim to renounce the investigation of criminal responsibility to get the decriminalization result. Therefore, the perpetrator sincerely apologizes, proposes sufficient economic compensation and guarantees its prompt fulfillment to obtain the victim’s understanding and forgiveness. Meanwhile, the victim can always ask for higher compensation until satisfied. The victim gets the dominant position in the reconciliation procedure, because only with the victim’s forgiveness and annulment may the suspect and defendant have a brighter future. Moreover, because the judicial organs fully respect the settlement agreement reached by both parties and take it as the basis, they make decriminalization treatment or adopt relatively indulgent criminal treatment. Moreover, the views of the victims are highly respected by the judicial organs and may become the critical factor affecting the result of the case, as the judicial organs usually accept the reconciliation agreement reached by both parties and make a lenient decision based on it. In all reforms involving the protection of victims’ rights, there has been no system more effective than that of criminal reconciliation to safeguard the victim’s status as the subject of the procedure. The criminal reconciliation may also help the victim cope with psychic trauma and return to society. Generally speaking, the traditional criminal procedure theory focuses on the victims’ desire for revenge and compensation, ignoring other interests which are valued by the victims. The victims often want to speak about their trauma and feelings, hoping to relieve their mental pain through communication. Similar to the criminal’s return to society, the victim’s resocialization actually is a long process by which the victim can gradually eliminate the resentment, hostility, distrust and fear towards the perpetrator and the society. The victims prefer to participate in the decision-making process actively and influence the outcome rather than passively waiting and accepting the results of the criminal procedure.35 These desires and goals are not possible to achieve in the traditional judicial model that emphasizes the equal confrontation between the state and the defendant. The criminal reconciliation allows the victims to realize the expectations mentioned above. This system enables the perpetrator and the victim to communicate face-to-face, so that the victim has a chance of expressing his/her feelings and expectations, of being listened to by the perpetrator and of getting attention from the judicial personnel. In the reconciliation meeting attended by the perpetrator, the victim, their close relatives, school teachers and the representatives from their work units, the victim can fully express his or her views, put forward his or her requirements, get an apology from the perpetrator on this public occasion and the reasonable compensation he or she deserves, which often satisfies the victim’s self-esteem and may effectively heal his or her psychic trauma. In many cases, the acceptance of the apologies and the abandonment of the criminal prosecution show that the victim has walked out from the shadow of the crime, that the mental pain has been alleviated,

35

Howard Zech. Restorative justice (Zhang Qi et al., Trans.). In Di Xiaohua. (2005) Frontiers of criminal justice: a study of restorative justice. Mass Press, pp. 24–65.

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that the victim’s distrust of the perpetrator and society has subsided, and the victim’s pace of returning to society is also obviously accelerated.

9.4.3 Boundary Between Criminal Procedure and Civil Procedure The traditional legal theory makes a sharp distinction between criminal procedure and civil procedure, criminal law and civil law. According to this theory, crimes are harmful to society and should be prosecuted by the state. Based on the state prosecution doctrine, the victim’s report is only the source of the material to initiate the criminal procedure, and the procuratorate is not influenced by the victim in terms of whether to initiate prosecution; even if the defendant makes a guilty confession, the judicial authorities have to ascertain the truth based on the evidence of the whole case. On the contrary, a civil tort is considered a violation of individual rights and is not dearly prejudicial to society, so the state would, in principle, not interfere in the process, and the victim makes the decision on his/her own. Based on the disposition maxim in civil procedure, the plaintiff may, after filing a lawsuit, settle with the defendant and the defendant may file a civil counterclaim. Either the defendant’s admission or the plaintiff’s withdrawal of the action may result in the termination of the suit. Therefore, except for incidental civil action and private criminal prosecution, the ordinary criminal procedure should not be carried out according to the concept and model of civil litigation. The criminal reconciliation system enables the judicial organs to decriminalize criminal cases by accepting the agreement between the victim and the perpetrator. This judicial model, which is built in accordance with the disposition maxim, introduces the concept of civil procedure into the criminal procedure, breaking the boundary between criminal procedure and civil procedure, and proposing some challenging issues such as “civil tort” of minor criminal acts. The criminal reconciliation system gives the suspect, the defendant and the victim the chance to lead the procedure through a settlement, or even the authority to decide the case on their own, which introduces the theory of the right of action in civil procedure into the criminal procedure and challenges the criminal procedure theory based on the doctrines of state prosecution and fact-finding. According to the mainstream criminal procedure theory, the defendant and the victim exercise three kinds of rights in the criminal procedure. The first is the right to make a motion, that is, to request the judicial organs to take a certain action or make a decision, such as a motion for evidence collection, for a postponed trial, for witnesses to testify in court, and for disqualification. The second is the right to participate in the procedure, impacting the decision by presenting evidence, putting forward opinions, and cross-examining in the court hearing. The third is the right to choose the procedure, that is to choose one of several procedures provided by law, such as the choice between summary procedure and ordinary procedure, between incidental civil action and independent

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civil action However, the rights mentioned above only exist and play a role in the procedural sense, so the parties may impact on the process rather than the decision. The criminal reconciliation system enables the defendant and the victim to exercise their rights at a higher level, that is, to play a key role in the final decision. The two sides decide on two important matters of the case by settling: one is the amount of compensation; the other is the investigation of the accused’s criminal responsibility. The acceptance of the settlement agreement by the judicial authorities and the decriminalization based on it means that the parties’ settlement plan determines how the case is handled. Obviously, the introduction of the disposition right is not only a breakthrough in the theory of criminal procedure, but also a big step in the direction of civil action. The “decriminalization” of criminal reconciliation has led to the “tortification” of minor criminal offenses, loosening the strict line between crime and tort. The biggest defect of traditional criminal law theory lies in ignoring the overlapping parts of the criminal acts and torts and strictly applying the same procedure to them. But in fact, the private prosecution system in China’s criminal procedure shows that for some minor criminal cases which do not present serious prejudice to the society, the state may give up the prosecution conditionally and apply the civil procedure. The application of criminal reconciliation in minor injury cases, including negligent offense cases, juvenile delinquency cases and cases involving crimes committed by college students is not contrary to the original intention of the private prosecution system. There would not be severe criminal punishment for minor crimes which are less detrimental to society. Adopting criminal reconciliation procedures in these cases benefits the state and society. So, it is justified to treat these minor crimes as “civil torts” and apply the civil dispute settlement process.

9.5 The Future of Criminal Reconciliation Criminal reconciliation has been a subject of debate since its appearance. Many people think it is unfair to exempt criminals from punishment when the offender and the victim settle.36 Moreover, there is no justification for a system in which a criminal is no longer a “criminal” due to a settlement with the victim, while another offender bears the stigma of “criminal” and suffers discrimination because he or she has not reached such an agreement. Obviously, in this situation, the goal of retribution and deterrence in criminal law has not been achieved, and the state and society also suffer some losses. Not only that, because judicial personnel enjoy considerable discretion in accepting and promoting settlement, their preference for criminal reconciliation gives the impression that “the rich can escape criminal punishment easily”, that 36

For a discussion of the theoretical and practical problems faced by criminal reconciliation, see Liu Jinlin. (2006, June 16). Restorative justice: rational exploration, prudent implementation. Procuratorial Daily; Wu Xiaofeng. (2006, July 26). Criminal reconciliation in controversy meets legal difficulties. Legal Daily.

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the national criminal punishment power has been “marketed”, which in turn has a negative impact on judicial justice. In addition to the controversies on the legitimacy of criminal reconciliation, there are some points to reflect on its implementation. So far, the active promoters of criminal reconciliation are the procuratorates, and the relevant experiments are carried out mainly in minor injury cases caused by civil disputes. Judging from the recent experience, the public security organs and courts are not entirely concerned with criminal reconciliation. Many judicial officers are unwilling to mediate and impatient with the mediation between the parties. The reconciliation meeting attended by all relevant parties has not been implemented by the judicial organs. Many prosecutors and judges prefer to have the parties reach the agreement by themselves, or entrust some social mediation agencies to mediate, so as to avoid shouldering the extra workload caused by their involvement in mediation. Both judicial personnel and people’s mediation institutions focus on the amount of economic compensation in order to reach a settlement between the two sides, which makes the mediation full of “criticism and education” and “bargaining”. The people who preside over the mediation stand on the moral high ground, educating the parties and their relatives on moral and legal perspectives, so that the parties feel wrong or guilty and do not make unreasonable demands. The principles of “give and take” and “put the blame on the two parties equally” inherent in China’s mediation system are fully reflected in the process of criminal reconciliation. Judicial personnel pay great attention to the outcome of the settlement rather than its process, so the victim cannot alleviate mental pain and heal psychic trauma through face-to-face communication. It is fair to say that the biggest problem in implementing criminal reconciliation is the high focus on the amount of economic compensation while ignoring the psychological needs of the victim and the repair of social relations. What is the future of criminal reconciliation? In my opinion, it shows strong vitality, because it overcomes some inherent defects in traditional criminal justice, benefits the victim, the defendant and judicial personnel may repair social relations and maintain social harmony. As a judicial model created based on the needs of society, the criminal reconciliation system still has room for improvement. We can make some analyses and forecast its future based on the problems in the reform. To begin with, the scope of criminal reconciliation will undoubtedly be significantly expanded. Yantai, Shandong province, has successfully implemented the peaceful judicial model in minor injuries, negligent crimes and juvenile crimes, while Xiamen, Hainan, Beijing and other cities have applied criminal reconciliation to the cases in which college students are suspected of theft and injury. Experience shows that criminal reconciliation is not only applicable to minor criminal cases, but also can be used to solve the crime problems involving minors and school students. The “first case of plea bargaining in China” tried by Mudanjiang Railway Transportation Court in Heilongjiang Province was closed by the “plea bargaining” between the prosecutor and the defense, and it also included the negotiation and reconciliation between the victim and the defendant on compensation. It is fair to say that the “plea bargaining” between the prosecution and the defendant cannot be reached without

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the victim’s forgiveness and concession.37 It is clear that even in severe criminal cases where the accused may be sentenced to imprisonment of more than three years, there is still room for reconciliation between the accused and the victim. Recently in several criminal cases involving passion homicide in which college students are suspected of murder, the defendant made a sincere apology to the victim, provided a high compensation and obtained the victim’s forgiveness, then the victim requested the court not to impose the death penalty on the defendant. Finally, the court sentenced the defendant to death penalty with a suspension due to the settlement reached by the defendant and the victim and the victim’s opinion on the sentence.38 Although there may be disputes about this kind of court decision, it can be seen on the other hand that the judicial organs have begun to pay attention to reconciliation between the victim and the defendant in severe criminal cases in which the defendant could be sentenced to death. It reveals that the application of criminal reconciliation should not be limited to minor criminal cases caused by civil disputes. In severe criminal cases, the victim should have the opportunity to express his or her opinions on the sentencing, and the court should give serious consideration to the victim’s opinion and the settlement between the parties. Clearly, the implementation of the criminal reconciliation does not mean that the judicial organs must close the case in a civil or other decriminalized ways when the parties have settled. In fact, in recent criminal reconciliation experiments, some local judicial organs have begun to adopt various lenient ways to deal with criminal cases, such as exemption from criminal punishment, suspension of sentence and light punishment. This combination of decriminalization and lighter sentences demonstrates the flexibility and vitality of the criminal reconciliation system. According to this rationale, criminal reconciliation can be a statutory circumstance for “mitigated punishment”. It may be an essential factor for the court to consider when sentencing the defendant. In the cases where the defendant may be sentenced to more than three years’ imprisonment, if the defendant sincerely apologizes to the victim and provides reasonable compensation, the court would give lenient punishment within the legal range. In the most severe cases in which the defendant may be sentenced to the death penalty, if the victim has settled with the defendant and explicitly requested the court not to impose the death sentence, the court may consider the victim’s request when deciding the punishment. However, the victim’s opinion does not determine the sentencing. As a system that aims to promote the reaching of a settlement between the victim and the offender, criminal reconciliation is mainly applied in the investigation, prosecution and the first instance trial. In the long run, the criminal reconciliation may become an ADR (Alternative Dispute Resolution), independent from the criminal procedure, like the mediation procedure in civil procedure. To be specific, in the minor cases that can be dealt with in a decriminalized manner, when the victim

37

Zhang Jingyi. (2002, August 8). The first case of “plea bargain” in China. People’s Court Daily. Hei Ding, Xiaonan. (2006, July 27). The victim’s family pleads for mercy, and a college student gets a light sentence for killing his girlfriend. Procuratorial Daily.

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and the offender have reached a settlement, the public security organs or the procuratorates may make a decision not to file the case, or withdraw the case, or not prosecute the case. If the defendant and the victim settle at the trial stage, the court may close the case in a decriminalized manner or give a lenient sentence. If no settlement has been reached, the case should go to the formal criminal procedure, and no decision shall be made against the accused on the ground that a settlement has not been reached. Even in the execution stage, the victims may express their opinions on the decision on the change of penalty, such as commutation, parole and serving a sentence outside an incarceration facility. The implementation of criminal reconciliation should take resolving social contradictions and maintaining social harmony as the primary goal, and establish the minimum procedural standards. At present, criminal reconciliation has not been stipulated in the law, so the local judicial organs have adopted various procedures in settling. In order to ensure that the experiment of criminal reconciliation bears fruit, it is necessary to establish some minimum standards to maintain its purity under the premise of maintaining the diversification of the implementation methods. For example, the victims should be given a chance to express their opinions and talk about their psychological needs. The defendants should listen to the victims’ feelings to get to know the psychic trauma caused by the crime and can apologize to the victims. In addition, it is necessary to hold a reconciliation meeting presided over by judicial personnel, so that the parties, their close relatives, representatives of schools, work units and communities can gather to listen to the views and feelings of the victims, to understand the defendant’s criminal history, the cause of the crime and the defendant’s repentance, as well as discuss the compensation. This can not only facilitate the victim and the defendant reach an agreement, but also help the victim to eliminate the distrust and hatred towards society and return to their social life, so that all the ripples and waves caused by the crime attenuate.

Chapter 10

Public Cooperation Model in Criminal Procedure

10.1 Introduction The traditional criminal procedure in which the defendant pleads not guilty and the prosecution and defense are in confrontation, has the characteristics of “confrontational justice”. However, when the defendant pleads guilty, the criminal procedure forms a model of “cooperative justice”. The “cooperative justice” can be divided into three modes: “minimum cooperation”, “private reconciliation cooperation” and “negotiated public cooperation”.1 The “minimum cooperation” refers to the litigation model in which the court hears the case in a relatively simple way when the defendant pleads guilty. The “summary procedure” embodies the characteristics of the “minimum cooperation”. The “private reconciliation cooperation” refers to the model in which the judicial organs impose a lenient penalty on the defendant when the defendant pleads guilty and reaches a settlement agreement with the victim on the civil compensation.2 Criminal reconciliation in judicial practice has the characteristics of the “private reconciliation cooperation”. The “negotiated public cooperation”, also called “negotiated justice”,3 refers to the model in which the prosecutor and the defendant reach a settlement agreement on the charges and punishment through dialogue and negotiation. The court makes a decision based on their agreement. The plea bargaining system in the common law can be classified as this model. Compared with the “minimum cooperation model” and the “private reconciliation model”, the “negotiated public cooperation model” had always been at a theoretical level in the past. Under the influence of traditional judicial concepts, both the legislature and the judiciary resisted the plea bargaining system in the commonlaw systems. As a result, the system in which the prosecutor and the defendant reach a settlement to promote a rapid trial was not acceptable in China. In 2002, the 1

Chen Ruihua. (2018). The Chinese model of criminal procedure (3rd ed.). Law Press, p. 67. Chen, Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5. 3 Ma Mingliang, (2004). The compromise of justice—the rise of negotiated justice in China. Chinese and Foreign Law, 1. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 231 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_10 2

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Railway Transportation Court in Mudanjiang city, Heilongjiang Province applied the system of “prosecution and defense negotiation” for the first time in the trial of Meng Guanghu’s case. This was known as “the first case of plea bargaining in China”.4 Since the procedure of this case departed from our traditional litigation concept, it sparked criticism of the judicial circle leading to the end of the reform to introduce the plea bargaining system. The research on “negotiated justice” or “public cooperation model”, such as its “nature”, “connotation” and “theoretical basis”, focuses on the plea bargaining system of the common-law system, which has no corresponding system in Chinese law and practice. In 2014, the judicial reform decision-makers pushed for new judicial system reform, including the system of leniency for admitting guilt and accepting punishment. Some large and medium-sized cities experimented with the “fast-track sentencing procedure” from 2014 to 2016. From 2016 to 2018, the system of leniency for admitting guilt and accepting punishment was piloted in some regions, and it applied to cases with the punishment of fewer than 3 years’ imprisonment. The reforms not only expedited the trial, but also introduced a system for the prosecution and the defense to negotiate on sentencing. According to the 2016 reform plan, the procuratorates may listen to the opinions of the accused and the lawyers on topics such as the charged crimes, lenient punishment possibility and the procedure. If the accused pleads guilty and agrees to the penalty and the procedure, he or she should sign a recognizance to admit guilt and accept punishment in the presence of the defender or the duty lawyer. In general, the courts adopt the recognizance to admit guilt and accept punishment and the procurator’s sentencing suggestion as the basis for the judgment.5 The revised Criminal Procedure Law in 2018 formally established the principle and the process for the system of leniency for admitting guilty and accepting punishment. According to the rules, the accused can choose the procedure of admitting guilt and accepting punishment during the investigation, prosecution and trial. If the suspect admits guilt and accepts punishment during the prosecution, the procuratorate shall hear the opinions of the suspect, the defender or the duty lawyer, negotiate with the suspect on the sentencing and promise a lenient punishment. Where a criminal suspect agrees with the sentencing suggestion, he or she shall sign a recognizance to admit guilt and accept punishment in the presence of the defender or the duty lawyer. Then, the recognizance shall be submitted to the court together with the sentencing suggestion. When rendering a judgment, the courts would generally adopt the sentencing suggestion from the procuratorate. The sentencing decision shall be within the range of the recommendation.6 4

Zhang Jingyi, et al. (2002, August 8). Focus on the first case of “plea bargaining”. People’s Court Daily. 5 Xu Cong. (2018, March 16). Enhancing Judicial Quality and Effectiveness, Implementing Policy of Temper Justice With Mercy—An Overview of the Reform of the System of Leniency for Admitting Guilt and Accepting Punishment. People’s Court Daily. 6 Yang Lixin. (2019). Understanding and application of the system of leniency for admitting guilt and accepting punishment. Journal of the National Prosecutors Academy, 1.

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It is fair to say that a prosecutor-defense negotiation system with Chinese characteristics has been gradually established in law from the launch of the judicial reform in 2014 until the revision of the Criminal Procedure Law in 2018. This system does not apply to cases where the defendant’s behavior does not constitute a crime or where he or she should not be held criminally responsible. The prosecution and defense negotiate on sentencing rather than on the charges, so it is also called the “sentencing negotiation system.” We must use the method of social science to study the sentencing negotiation system, identify its specificities and predict its development. The theory of “negotiated justice” or “public negotiated cooperation model” was based on the plea bargaining system of the common-law system, which cannot be used to describe the Chinese system. With the establishment of the sentencing negotiation system, a brand-new experience is brought to us, and a series of problems and shortcomings of the system have also arisen. It is necessary for us to get rid of the prejudices and make a theoretical summary and generalization of this system and its practice, so that it can be verified in essence. This chapter takes the system of leniency for admitting guilty and accepting punishment as a sample to discuss the characteristics and the shortcomings of the sentencing negotiation system, analyze the reasons for and obstacles faced in the establishment of this system in China, and predict its future development.

10.2 Characteristics of Sentencing Negotiation System Since issues such as conviction, charges and the number of crimes are excluded from the negotiation between the prosecution and defense, and the 2018 Criminal Procedure Law limits the negotiation to sentencing, the negotiated judicial system in Chinese law is the sentencing negotiation system. The criminal procedure law only has a vague answer to the characteristics of sentencing negotiation, which is far from enough. To a certain extent, sentencing negotiation has not been fully formed, and there are some uncertain aspects. We need to observe the implementation of the system of leniency for admitting guilt and accepting punishment in various places, so as to gain a comprehensive understanding of the sentencing negotiation system and forecast its development trend.

10.2.1 Sentencing Negotiation Led by Prosecutors China’s system of leniency for pleading guilty and accepting punishment has formed a preliminary framework after authorized pilot reforms. The suspects and defendants can “admit guilt and accept punishment”, in other words, they admit the alleged crimes and are willing to accept criminal punishment. If the defendant admits guilt

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and accepts punishment, the case may be tried under the fast-track sentencing procedure, the summary procedure or the ordinary procedure. Regardless of which procedure is applied, the sentencing negotiation is a necessary stage after the defendant pleads guilty and accepts punishment. The prosecutors lead the sentencing negotiation. In judicial practice, most suspects “plead guilty and accept punishment” at the stage of investigation or prosecution and negotiate with the prosecutor at the prosecution stage. The defendant may also plead guilty in court. The prosecutor negotiates with the defendant and submits the revised sentencing suggestion in such cases. Neither the reform program nor the Criminal Procedure Law uses the expressions of “prosecution-defense negotiation” or “sentencing negotiation”, because words like “negotiation”, “bargaining” and “compromise” are likely to cause misunderstanding and are inconsistent with the seriousness of the criminal procedure.7 However, in practice, the expressions such as “prosecution-defense negotiation” and “sentencing negotiation” have been used publicly. According to the 2018 Criminal Procedure Law, at the prosecution stage, the prosecutors should hear the criminal suspect, the defender or duty lawyer on the matters such as the facts of the suspected crime, the charges, and applicable provisions of law, as well as the suggestion on lenient punishment and the procedures applicable to the trial of the case. Since the prosecutor hears from the defense, it is possible to combine the suspect’s views, the defender or the duty lawyer to form a final sentencing suggestion. From there, the element of sentencing negotiation is naturally included. The prosecutors lead the sentencing negotiation process in three other ways in addition to hearing the defense’s viewpoint during the review and the prosecution process. The first is to order the suspect to sign a recognizance to admit guilt and accept punishment in the presence of the defender or duty lawyer under the sentencing agreement. The second is to submit the recognizance to admit guilt and accept punishment together with the sentencing suggestion to the court when prosecuting. The third is to explain the sentencing suggestion in court and persuade the court to adopt it.

10.2.2 Negotiating Parties According to the law, the prosecutor should hear the defender or the duty lawyer in examining the prosecution. However, in practice, the suspect does not usually retain a lawyer before the trial that is why the duty lawyer participates in the process. Since the duty lawyer cannot participate in the sentencing negotiation, the prosecutor generally negotiates on the sentencing with the suspect. Under the US plea bargaining system, the prosecutors negotiate and reach an agreement with the defense lawyers on conviction, charges and punishment. Judges review the voluntariness, wisdom, and factual basis of the defendant’s guilty plea 7

Yang Lixin. (2019). Understanding and application of system of leniency for admitting guilt and accepting punishment. Journal of the National Prosecutors Academy, 1.

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as he is not participating in the plea bargain.8 Under the prosecution and defense negotiation system in Germany, the prosecutor, the defendant and the judge negotiate on the sentencing and reach an agreement to settle the case promptly, it is a system of “guilty plea in exchange for leniency”.9 Unlike American plea bargaining, in China, the prosecutors generally negotiate sentencing with the suspects rather than the defense lawyers. In the reform pilots in many places, the public security organs, procuratorates and courts complete the fast-track sentencing procedures within the 37-day custody period at the detention house. If the suspect pleads guilty and accepts punishment at the detention house, the prosecutor shall brief him on the facts of the suspected crime, charges and recommendations on lenient punishment. After the suspect agrees with the sentencing suggestion, he shall sign a recognizance to admit guilt and accept punishment in the presence of the duty lawyer. In many cases, the duty lawyer is only responsible for witnessing the signing process, and does not participate in the prosecution-defense negotiation.10 Unlike Germany’s prosecution and defense negotiation, the judges do not participate in the sentencing negotiation in China. The prosecutors lead the sentencing negotiation at the prosecution stage. After the suspect has pled guilty, he or she signs a recognizance to admit guilt and accept punishment, following which the prosecutor offers a sentencing suggestion based on their agreement. The court generally adopts the procuratorate’s sentencing suggestion, only examining the voluntariness of the guilty plea and the authenticity and legality of the recognizance to admit guilt and accept punishment.

10.2.3 Sequenced Lenient Sentencing Mechanism In the sentencing negotiation process, since the prosecutor hears the viewpoints of the suspects, the defenders or the duty lawyers mainly on sentencing issues, the sentencing range should be determined. In other words, after the suspect has admitted guilt, the key issue is how much reduction in sentencing needs to be granted by the prosecutor to encourage the defendant to accept punishment without “changing his mind” in the court hearing. Although the defendant’s guilty plea is regarded as a statutory circumstance of leniency, there is no specific commutation range in the Criminal Procedure Law and the Supreme People’s Court’s judicial interpretation. 8

Chen Ruihua. (1995). A comparison of U.S. plea bargaining procedures and Italian criminal special procedures. Political and Legal Forum, 3. 4. 9 Shi Pengpeng, Chu Qiao. (2019, April 3). New developments in the German criminal negotiation system. Prosecution Daily; Joachim Hermann. (2004). Negotiated justice—plea bargaining in the german criminal process? (Cheng Lei, Trans.). Chinese Journal of Criminal Law, 2. 10 Beijing Haidian District People’s Court Project Group. (2016). Research on fast-track sentencing procedure in Haidian District, Beijing—A resource allocation model based on the system of leniency for admitting guilt and accepting punishment. Application of Law, 4.

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In this context, some places have established a “sequenced leniency sentencing mechanism” to determine the range for sentencing reduction. In the “sequenced leniency sentencing mechanism” the courts determine the sentencing according to the litigation stage in which the suspects or defendants admit guilt and accept punishment. In principle, the suspect who admits guilt and accepts punishment at the investigation stage can be imposed the lightest penalty. If the suspect pleads guilty at the prosecution stage, the reduction of the penalty may be decreased. For the defendant who pleads guilty in the court trial, the reduction of the penalty may be the least. This system aims to encourage the suspects and defendants to confess guilt as early as possible. For example, the Jimei District Court in Xiamen City, Fujian Province, established the “321” gradual lenient sentencing mechanism with the rules such as “different penalties at different stages of confession” and “the earlier the confession, the greater the leniency”. Specifically, if a suspect pleads guilty during the investigation, the sentence may be reduced by 30%. For those who plead guilty at the prosecution stage, the sentence may be reduced by 20%. For those who plead guilty at trial, the penalty may be reduced by 10%. If the defendant withdraws the confession, he or she shall not be given a lenient punishment. However, if the defendant pleads guilty before the trial after withdrawing his confession, the leniency may be determined according to the stage of the final confession.11 In another example, Jinan City in Shandong Province has also launched a “sequenced lenient sentencing” reform. If the suspect pleads guilty during the investigation, the sentence may be reduced by up to 35%. For those who plead guilty at the prosecution stage, the sentence may be reduced by up to 25%. For those who plead guilty during the trial, the sentence may be reduced by up to 15%.12 The procuratorate’s sentencing suggestion is based on the court’s sequenced lenient sentencing system, so that the leniency of the sentence is open and transparent. The sequenced lenient sentencing system rewards the suspects and defendants who confess their guilt and stimulates the hesitant ones to do so.

10.2.4 Participation of Duty Lawyers Since most suspects in the cases involving admitting guilt and accepting punishment do not retain lawyers before the trial, added to that these cases usually do not meet the requirements of designated defense, they have no access to lawyers. In order to protect the litigation rights of suspects and defendants and to ensure the voluntariness

11

An Haitao, Li Songrong. (2019, March 29). Finding the fulcrum for prying reform—an investigation into the reform of system of leniency for admitting guilt and accepting punishment in Jimei District, Xiamen City, Fujian Province. People’s Court Daily. 12 Qi Yunkui, Yuan Crystalline. (2018, November 28). Exploring new practices for the system of leniency for admitting guilt and accepting punishment. People’s Court Daily.

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of their guilty pleas, the duty lawyer system was piloted in some places and then is established in the 2018 Criminal Procedure Law. Under this system, legal aid agencies send duty lawyers to courts, procuratorates and detention houses. If a criminal suspect or defendant is not appointed a defender, nor does a legal aid agency designate a lawyer to defend him, a duty lawyer shall provide the criminal suspect or defendant with legal assistance including but not limited to legal advice, recommendations on choosing procedures, application for the modification of compulsory measures, and offering opinions on the handling of the case. The criminal suspect or defendant has the right to a scheduled meeting with a duty lawyer. The court, procuratorate, or detention house shall facilitate the scheduled meeting between the criminal suspect or defendant and a duty lawyer. According to the law, the duty lawyers may participate in the sentencing negotiation process at the prosecution stage. The procuratorate shall, when examining a case, interrogate a criminal suspect, hear the opinions of the defender or duty lawyer. If the criminal suspect admits guilt and accepts punishment, the procuratorate shall inform the criminal suspect of his or her procedural rights and the provisions of law on admission of guilt and acceptance of punishment, hear the viewpoint of the criminal suspect, the defender or duty lawyer on matters such as facts of the suspected crime, charges, applicable provisions of law, lenient punishment and procedures applicable to the trial of the case. When expressing standpoints to the prosecutor, the duty lawyer can propose a lenient sentencing to the prosecutor in accordance with the sentencing guidelines and the lenient sentencing rules. Based on the standpoint of the suspect, defender or duty lawyer, the prosecutor makes a sentencing suggestion, which is included in the recognizance to admit guilt and accept punishment. If the suspect agrees with the sentencing suggestion, he or she shall sign a recognizance to admit guilt and accept punishment in the presence of the defender or duty lawyer. When initiating a prosecution, the people’s procuratorate shall offer a sentencing suggestion and transfer the recognizance to admit guilt and accept punishment and other materials along with the case to the court. At this point, the duty lawyer’s work has come to an end.13 The duty lawyers only participate in the sentencing negotiation process. After the recognizance to admit guilt and accept punishment has been signed, the duty lawyers withdraw from further proceedings. If a defendant is appointed a lawyer or a legal aid agency designates a lawyer to defend him, the lawyer may defend the defendant at the trial. If the defendant has not been appointed a lawyer or designated a lawyer by the legal aid agency to defend him or her, he or she cannot get the help of a duty lawyer and has to defend himself or herself. The reforms in some places have innovation and breakthroughs in rules. For example, in some places of Fujian Province, the duty lawyers are given the right to consult the case materials and to meet suspects in custody. According to the requirement for duty lawyers to participate in sentencing negotiation in the fasttrack sentencing procedure promulgated by Fuqing City in Fujian Province, the duty lawyers have the right to consult the case materials, and after hearing the viewpoints 13

Beijing Chaoyang District People’s Procuratorate Project Group. (2018). Interpretation and reflections on fast-track sentencing procedure. China Prosecutor, 23.

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of the suspects, may negotiate with the prosecutor on matters such as charges and punishment. The procuratorate makes a sentencing suggestion if an agreement is reached. In the sentencing negotiation process, the duty lawyer can not only participate in the process, but also bargain for a more lenient penalty. The following is a case in which the duty lawyer participated in the sentencing negotiation. The defendant Lin confessed the crime in his case of dangerous driving. The prosecutor decided to apply the fast-track sentencing procedure after consulting the case materials and informed the duty lawyer a day in advance to consult the materials and meet the suspect. On the second day, the prosecutor informed the criminal suspect of his procedural rights, the provisions of law on the fast-track sentencing procedure, the facts of the suspected crime and charges, and heard the suspect’s standpoint. The defendant had concerns and did not make his point. When the lawyer asked for his opinion after explaining the situation, the defendant stated that he had no objection to the crime facts and charges and agreed with the fast-track sentencing procedure. The prosecutor proposed a suspended 2–4 months’ detention in addition to a fine. The duty lawyer pointed out that the defendant stayed on the scene when the police had been called, which constituted a surrender, therefore the sentence should be reduced to 1–3 months of detention. The defendant agreed with the lawyer. The prosecutor returned the case to the public security authority for supplementary investigation. After supplementary investigation, the evidence proved that the defendant had surrendered. The prosecutor interrogated the suspect in the presence of the lawyer, agreed with the lawyer’s opinion and made a sentencing suggestion of suspended 1–3 months’ detention in addition to a fine. The court tried the case by the fast-track sentencing procedure and made a judgment based on the prosecution’s sentencing suggestion.14 The practice of granting duty lawyers the right to consult case materials and ensuring their participation in the sentencing negotiation may be a special circumstance and has not been widely implemented. Nevertheless, we can see that the system of duty lawyers is burgeoning and growing. The duty lawyers can play an important role if they have the right to consult the case materials and the chance to participate in the sentencing negotiation.

10.2.5 Judges’ Role What role does the judge play in the case in which the defendant admits guilt and accepts punishment? Generally speaking, the court trials three issues: conviction issue, sentencing issue and procedural issue. Thus, there are three types of criminal trials: conviction trial, sentencing trial and procedural trial.15 14

Zheng Min, Chen Yuguan, Fang Junmin. (2016). A study on the sentencing negotiation system in fast-track sentencing procedure—based on the pilot of Fuqing city people’s court in Fujian province, 4. 15 Chen, Ruihua. (2018). The Chinese model of criminal procedure (3rd ed.). Law Press, pp. 132– 164.

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In terms of conviction trial, the court usually renders a guilty verdict on the defendant who pleads guilty. The investigation and debating in court are generally not conducted in the fast-track sentencing procedure. During the investigation and debate in the summary procedure, the prosecutor reads out the case materials, and the judge neither summons witnesses to testify in court, nor hears the conviction issue. When the defendant admits guilt and accepts punishment, the so-called “conviction trial” is merely a formality and does not have the characteristics of “substantive trial”. In terms of sentencing trial, the court should review the defendant’s recognizance to admit guilt and accept punishment and the prosecutor’s sentencing suggestion. According to the 2018 Criminal Procedure Law, the court shall generally adopt the charges filed by and sentencing suggestion from the procuratorate, except under the circumstances that the fairness of the trial may be affected. The statistics of the Supreme Court show that the sentencing suggestions from the procuratorates have been adopted in more than 96% of the cases of pleading guilty and accepting punishment in the pilot courts across the country by the end of September 2018. The courts generally respect and accept the sentencing agreement reached by the parties although, in theory, the courts exercise judicial powers independently in accordance with the law, and the procuratorates only have the right to make sentencing suggestions. The courts rarely reject the sentencing agreed by the prosecutor and the defendant through negotiation unless the defendant retracts the confession in court or disagrees with the sentencing suggestion.16 In terms of procedural trial, the defendant who pleads guilty and accepts punishment usually does not raise procedural objections to such issues as recusal, jurisdiction, postponement of trial, summoning witnesses and exclusion of illegal evidence. This demonstrates that there are usually no traditional procedural disputes in such cases, so there is no procedural trial. However, in the procedure of leniency for admitting guilt and accepting punishment, the judge shall examine a new procedural issue, which is the voluntariness and legality of the defendant’s guilty plea. In order to avoid the defendant’s involuntary confession under coercion, deception or threat, and to avoid the unjust, false or wrong cases, both the judiciary and the legislature attach great importance to the voluntariness of the defendant’s confession and require the court to review this issue. Specifically, the issue of the voluntariness of the defendant’s confession comprises three aspects. The first is whether the defendant’s confession is of his or her true will. The second is whether the defendant understands the legal consequences of pleading guilty or not. The third is whether the recognizance to admit guilt and accept punishment is authentic and legal and whether the defendant signs it in the presence of the defender or duty lawyer. In cases where the defendant pleads guilty and accepts punishment, whether in the fast-track sentencing procedure or in the summary procedure, the judge reviews the voluntariness of pleading guilty only by interviewing the defendant, and rarely takes it as an independent trial object. Especially in the fast-track sentencing procedure 16

Summary of the pilot work of the supreme people’s court on fast-track sentencing procedure. (2016). Supreme People’s Court Law No. 280, cited in Chen Ruihua. Introduction to the reform of the judicial system. (2018). Law Press, p. 416.

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which lasts anywhere from three to ten minutes, the judge usually does not review this issue if the defendant does not raise an objection.17 As a result, the trial on the voluntariness of the defendant’s admission of guilt has become a mere formality.

10.3 Foundation of Sentencing Negotiation System On the surface, the system of leniency for admitting guilty and accepting punishment has established the fast-track sentencing procedure, which is listed in the criminal procedure alongside the summary procedure and the ordinary procedure. But in fact, there is an adjustment in the structure of litigation, that is, the relationship between the prosecution and the defense has changed from one with confrontation to one including cooperation. In essence, the biggest breakthrough in the reform of the system of leniency for admitting guilt and accepting punishment is the sentencing negotiation mechanism. It demonstrates that after the model of private cooperation between the victim and the defendant, the model of public cooperation between the prosecution and defense has been established. So, why has the negotiated public cooperation model been established? To answer this question, we must not only explain the legitimacy of the simplification of procedures, but also need to demonstrate the rationality of establishing a negotiation and compromise mechanism. There are three aspects to this issue. First, sentencing incentive system helps save judicial resources. Second, it is a win–win situation that both the prosecution and the defense can benefit from. Third, the defendant can exert an influence on the result of the lawsuit, which conforms to procedural justice.

10.3.1 Rational Allocation of Judicial Resources Through Sentencing Incentive Mechanism China’s criminal judicial reform has been moving forward along two lines since 2014. The first is the reform of trial-centrism in cases where the defendant pleads not guilty, which aims at the fairness and legitimacy of the criminal procedure. The second is system of leniency for admitting guilt and accepting punishment in cases where the defendant pleads guilty, which aims at simplifying and expediting the criminal procedure. The above two reforms seem to be contradictory, but in fact they are complementary to each other. This is because, under the condition that the judicial resources remains limited, the reform of trial-centrism in the ordinary procedure will inevitably break the original balance and make the judicial resources insufficient to the increasingly complicated and formal criminal procedure. Many rules and principles, including the principle of directness and verbalism, the system 17

The Subject Group of the Criminal Court of the Supreme People’s Court. Reflections on fast-track sentencing procedure. (2016). Application of Law, 4.

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of witnesses and experts testifying in court, the exclusionary rule and the standard of proof beyond reasonable doubt will inevitably lead to such problems as the decline of the litigation efficiency, case delay and backlog of undecided cases. What is more, with the reform for judges and prosecutors, the number of judges and prosecutors qualified to handle cases has dropped significantly. This increases the pressure on courts and procuratorates as the number of criminal cases is not decreasing but rather increasing. The main concern of the criminal justice reform is to simplify and speed up the procedure for the guilty plea cases. The decision-makers of the judicial reform have been trying to simplify the criminal procedure to establish a balance mechanism since 1996. A unified criminal summary procedure was established in the 2012 Criminal Procedure Law. The problem with this summary procedure was that it did not encourage the defendants to confess. For example, if a defendant pleads guilty and agrees with the summary procedure, he or she would probably not be imposed a very lenient penalty. The system of leniency for admitting guilty and accepting punishment and the sentencing negotiation mechanism have been established in the 2018 criminal procedure law. For the first time, “defendant pleading guilty and accepting punishment” has become a statutory leniency circumstance. The prosecutor negotiates with the defendant on sentencing, promises a lenient punishment for the defendant who pleads guilty and accepts punishment. The sentencing agreement reached by the two parties is included in the sentencing suggestion to the court. Under the sentencing negotiation system, the defendant who pleads guilty and agrees with the summary procedure can get a very light punishment. Therefore, a sentencing incentive mechanism has been established and works in two ways. First, the suspects and defendants plead guilty and will not retract their confessions. Second, they agree with the procedure of pleading guilty and accepting punishment and sign a recognizance to admit guilt and accept punishment in exchange for a lenient punishment. When many suspects and defendants plead guilty and accept punishment in exchange for lenient penalty, numerous cases are handled with the summary procedure, the sentencing negotiation system would perform its virtuous circle. The sentencing incentive mechanism, as a product of the sentencing negotiation system, is helpful to allocate judicial resources effectively.

10.3.2 A Win–win Situation The key to the success of a reform is to accommodate the interests of all parties. Back in the day, the U.S. Supreme Court confirmed the constitutionality of the plea bargaining system because this controversial system was in the best interests of prosecutors, judges, defendants and even defense lawyers.18 Similarly, the prosecution and defense negotiation system applies in more than 20% of criminal cases in Germany, 18

Zhou Weiming. (2018). Recent developments and implications of the german criminal negotiation system. Application of Law, 13.

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which seems to violate the principles of the German criminal law, but it suits the interests of all parties. Likewise, the criminal reconciliation system in China shows that a system which is in the interests of all the parties is long-lasting.19 The sentencing negotiation mechanism has been established in the law with the pilot reform of system of leniency for admitting guilt and accepting punishment, which helps prosecutors make sentencing suggestions in the cases of guilty plea. The prosecutors obtain many benefits by participating in the sentencing negotiation process. First, the defendant pleads guilty and becomes the “prosecution witness”. Second, the defendant will not raise procedural objection. Third, the court will not issue an acquittal verdict, or order the procuratorate to withdraw the prosecution because of flawed evidence, and it will accept the charges. Fourth, the sentencing suggestions are accepted by the courts, which makes prosecution successful. The judicial practice shows that the sentencing plan agreed by the prosecution and the defense through negotiation is generally accepted by the courts although the sentencing suggestions of the prosecutors are not binding on the courts in theory. Not only that, in cases where the defendant pleads guilty and accepts punishment, the defendant rarely appeals, so the verdict of the first instance is final. The interests of the defendant are also satisfied in the sentencing negotiation process. The sentencing discount, which can be as high as 30 per cent, encourages the defendants to plead guilty. For the defendants who waive the innocence defense, it is “a great opportunity” to get a lenient penalty by pleading guilty and renouncing the ordinary process. The defendant, similar to an “economic rational person”, uses his litigation rights as bargaining chips for his benefits. In minor criminal cases such as dangerous driving, injury, theft and provocation, if the defendant can get a 30% discount in sentencing, he may be released after the court verdict is made, or may serve the remaining months in the detention center rather than in prison.20 The judge also gets benefits in in the sentencing negotiations. In appearance, the actual referee is the procurator rather than the judge because the court trial is merely a formality, which seems to mean that the judge has lost the power of independent adjudication. But in fact, this makes the judges able to handle more criminal cases by wasting less time or effort. Not only that, a judge who has completed such an astonishing amount of work will not be bothered by the defendant’s appeal, avoiding the possibility of the case being remanded by the higher court for retrial or revision. In this way, judges not only improve the efficiency of the trial, but also are not held responsible for misjudged cases. The criminal investigation organs and the detention houses benefit from the sentencing negotiation. For the investigation organs (usually the public security organs), the suspect’s confession means that the case enters the fast procedure, the investigation is successful, and the time of transferring the case

19

Chen, Ruihua. (2006). The model of private cooperation in criminal procedure—the emergence of criminal reconciliation in China. Chinese Jurisprudence, 5. 20 Ran Shiyu, Zhang Lei. (2018). Exploration and improvement of fast-track sentencing procedure— taking Chongqing judicial practice as a sample for analysis. Journal of Liaoning Public Security Judicial Management Cadre College, 2.

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to the procuratorates for prosecution is advanced. For the detention houses, on the other hand, the reduction of the period of pretrial detention eases their pressure.21 The victims benefit from the sentencing negotiation. Only when compensation is paid to the victim will the sentencing agreement between the prosecution and defense have legal effect and will the fast-track sentencing procedure be applied. Thus, the victim has the right to veto the sentencing negotiation although he or she can neither participate in the negotiation nor express opinions on the punishment. The leniency for guilty plea is conditional upon the compensation paid to the victim, so that the court’s decision is better tolerated by the victim, the conflict between the victim and the defendant can be resolved. This constitutes a good external environment for the sentencing negotiation system.

10.3.3 Substantive Procedural Justice In recent years, the concept of procedural justice has been disseminated in legal circle and has been evidenced in litigation reforms. The reforms of defense system, court trial pattern and evidence rules were implemented under the concept of procedural justice. It is generally believed that the core of procedural justice is full participation of the interested parties in making judicial decisions and the procedure meeting the requirements of neutrality, equality, rationality, timeliness and finality.22 These are the formal elements of procedural justice, in other words, the requirements that the process must satisfy. However, in addition to the formal elements, procedural justice includes the influence of the process on the outcome. In essence, only when the procedure affects the outcome can it meet the requirements of procedural justice. A procedure which appears to be fair but has no influence on the outcome does not meet the requirements of justice. In this regard, Rawls has made a pioneering discussion on the relationship between procedure and result, and proposed the concepts of “complete procedural justice”, “incomplete procedural justice” and “pure procedural justice”. In his view, traditional criminal trials are a form of “incomplete procedural justice,” that is, they have an ideal set of standards for a just outcome, but no process to achieve it. In other words, a traditional criminal trial cannot guarantee a fair outcome by a fair process, or even establish a fair process that helps achieve a fair outcome. Complete procedural justice, as exemplified by the “cake-cutting process,” simply does not exist in criminal proceedings. He also proposed a “pure procedural justice” similar to “gambling,” in which no standard of fairness is set for outcomes, but rather all outcomes produced through fair procedures are considered fair outcomes.23 21

Wu Xiaojun. (2018). Rethinking and improving the system of leniency for admitting guilt and accepting punishment—Observations on the Beijing pilot. Legal Application, 15. 22 Chen Ruihua. (2003). The theory of criminal trial (2nd ed.). Peking University Press, p. 20. 23 Rawls. (1988). A theory of justice (He Huaihong, Trans.). Chinese Social Science Press, pp. 80– 83.

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The “substantive procedural justice”, inspired by Rawls’s theory, is proposed: as long as the procedure is fair, the result is fair. For example, the criminal reconciliation system, as a private cooperation model, is in conformity with the substantive procedural justice. The defendant reaches a civil compensation agreement with the victim after confession, the victim expresses opinions on the handling of the case, and the defendant is imposed a lenient punishment. A judgment made by a fair negotiation procedure is fair.24 The substantive procedural justice is extended to the public cooperation system with the implementation of the sentencing negotiation system. The defendant’s confession is of his or her own will, the prosecutor reaches a sentencing agreement with the defendant which includes sentencing suggestion, and the court makes a decision based on the agreement. The result formed through the fair procedure is impartial. The sentencing negotiation system embodies the concept of substantive procedural justice. The process of sentencing negotiation is fair, that is, the defendant pleads guilty voluntarily, understands the consequences of his or her act and the penalty is made on the basis of the agreement between the parties. Therefore, the sentencing decision is fair because it is based on the negotiation between the parties. From this point of view, under the sentencing negotiation system the defendant pleads guilty, gives up the ordinary procedure and renounces some litigation rights, in exchange for the summary procedure and a lenient penalty. The defendant can not only choose the type of procedure, but may also have a critical influence on the decision. More and more suspects and defendants plead guilty for lenient punishment, which is in their best interests.

10.4 Problems in Sentencing Negotiation System The sentencing negotiation system, as the core of the procedure of pleading guilty and accepting punishment, improves efficiency through the sentencing incentive mechanism instead of by simplifying the process. It allocates the judicial resources in a better way, benefits all parties, meets the requirements for real judicial justice, so its legitimacy is beyond doubt. However, the sentencing negotiation system has its shortcomings which may lead to detrimental consequences. Rethinking these shortcomings and negative consequences helps us to improve this system. There are four problems with this system. First, the prosecutor may put cases that have not reached the standard for conviction into the procedure of guilty plea, or ignores favorable sentencing circumstances for the defendant. Second, the prosecutor negotiates with the suspect in the absence of the lawyers, the equality and voluntariness are out of the question here. Third, the duty lawyers do not play an effective role. Fourth, the court trial is merely a formality, which cannot limit the discretion of the prosecutor. The following section analyses these problems.

24

Chen Ruihua. (2018). The Chinese model of criminal procedure (3rd ed.). Law Press, p. 32.

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10.4.1 Abuse of Power by Prosecutors The equality of the parties is the foundation of the negotiation judicial system. In order to avoid the “mutually damaging outcome” the prosecution and the defense negotiate for their interests. This is why the plea bargaining system works well in the United States. However, the prosecution and the defense are not equal in China’s sentencing negotiation system. The prosecutor understands all evidence by consulting the case files of the investigation agency. As most suspects have been held in custody, prosecutors can interrogate them without lawyers and exert pressure on them. The lawyers cannot consult, extract or copy the case files held by the prosecutor. This limits their knowledge about the evidence. In practice, the prosecutor negotiates with the defendant under the circumstances of their asymmetric information and inequality. The prosecutors who dominate the proceedings during the review and the prosecution stage force the defendants to plead guilty by threat, enticement, deceit, or other illegal means. The suspects who can access neither the case materials nor the lawyers are often misled by the prosecutor. It is hard for the suspect to make a rational decision when he or she is interrogated by the prosecutor without lawyers in the detention center. What we are worried about is that the prosecutor could bring the cases that fail to meet the statutory standard of proof into the procedure of pleading guilty and sentencing negotiation, thereby convicting the defendant of a crime he or she did not commit. The strong position of the prosecutors may be the root of wrong convictions. Not only that, when the suspect, the defender or the duty lawyer are unable to access the case files, the interests of the defendant are affected as the prosecutor may conceal some evidence and make an unfair agreement with the defendant. Sometimes the defendant changes his or her mind when he or she has wised up, thus leading to the procedure reversal.

10.4.2 Negotiation Between Prosecutors and the Suspects? In China, the prosecutor negotiates on sentencing with the suspect, which is a bad idea. The prosecutor negotiates with the defense lawyer in America, while the judge negotiates with the prosecution and the defense in Germany. Under these systems, the negotiation is carried out between the prosecution and the defense, or between the judge and the prosecution and defense. The suspect and the defendant, however, do not participate in the negotiation without lawyers. Under the prosecution and defense negotiation system in China, the prosecutor may interrogate the suspect at the prosecution stage, and hear the defendant’s opinions on matters such as facts of the suspected crime, charges, and applicable provisions of law, lenient sentencing, and procedures. The prosecutor may hear the opinions of the suspect in the absence of the defender or the duty lawyer although the prosecutor is

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also required to hear the opinions of the defender or the duty lawyer. Thus, if the prosecutor negotiates with the suspect while hearing his or her point of view, the suspect cannot access the defender or the duty lawyer. Under the law, the lawyer can provide the suspect with legal assistance including legal advice and recommendations on the choosing procedures. But in fact, the suspect in custody rarely accesses lawyers and often asks other detainees for help. As a result, in most cases, the suspect negotiates with the prosecutor without lawyers. After the negotiation, the lawyer is invited to “witness” the signing of the recognizance to admit guilt and accept punishment. From a psychological point of view, it is difficult for the suspects in custody without legal knowledge to exercise their procedural rights. In this situation, the suspect and the prosecutor are not equal negotiators. The suspect signs the agreement under coercion, the confession is not voluntary, and he or she accepts the punishment unwisely. Such unequal sentencing “negotiation” between the prosecutor and the suspect does not have the characteristics of negotiation at all.

10.4.3 Limitations of Legal Assistance of Duty Lawyers Under the law, the duty lawyer is a litigation participant who provides legal assistance, he or she is not a defender. A duty lawyer shall provide the criminal suspect or defendant with legal assistance including but not limited to legal advice, recommendations on the choosing procedures, application for the modification of compulsory measures, and offering opinions on the handling of the case. He is also the witness of the suspect signing the recognizance to admit guilt and accept punishment. Theoretically, the duty lawyer system protects the legal rights and interests of the suspects who plead guilty, and helps them participate in the sentencing negotiation process. However, in practice, duty lawyers generally do not participate in the negotiation between the prosecutor and the suspect, so they cannot provide the suspect with legal assistance, they can only witness the suspect’s signing of the recognizance to admit guilt and accept punishment after the agreement has been reached. Clearly, under the current system, duty lawyers are not allowed to negotiate and “bargain” on sentencing with the prosecutor. Even if duty lawyers are willing to provide legal assistance to suspects, they are often unable to do so. The duty lawyers cannot enjoy the litigation rights of the defenders because they are not defenders by law. Specifically, the duty lawyers do not have the right to consult, extract and copy the case files, so they cannot appreciate the evidence held by the prosecutors. The duty lawyers do not have the right to meet the suspects, so they cannot meet with the suspects in custody as the defenders do. Instead, they can only provide advice to the suspects by telephone. Duty lawyers do not have the right to investigate and collect evidence. They cannot investigate and verify existing evidence, let alone collect new evidence. The duty lawyers do not appear in court because they provide legal services only at the prosecution stage. The duty lawyers do not help the suspects very much in practice. On the one hand, the prosecutors are willing to negotiate with the suspects in the absence of

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lawyers, persuading them to plead guilty for a lenient punishment. The prosecutors believe that this practice is more efficient because it may prevent the suspect from requesting better outcomes in his favor. On the other hand, even if the duty lawyers can participate in the negotiation, it is difficult for them to come up with a convincing plan due to their lack of information. The duty lawyers are unable to provide legal assistance to the suspect in the same way defenders would. It is difficult for the duty lawyers to obtain valuable information only by a very short conversation with the suspect without consulting the case files and investigating the evidence. In addition, the court’s sentencing guidance is generally not open to lawyers, who are not familiar with sentences for crimes, standards for commutation, and the calculation method of sentences. Therefore, it is debatable whether duty lawyers can play a role in “bargaining” over sentencing.25 Moreover, duty lawyers often lack the enthusiasm to participate in the sentencing negotiation because they are assigned by legal aid agencies and are poorly paid. The duty lawyer system is not working well and fails to achieve its goal.26 Some scholars have put forward the idea of transforming the duty lawyer into a “defender” or a “quasi-defender”. However, since the Criminal Procedure Law of 2018 has just come into effect and the next revision is not due anytime soon, it may be difficult to reform the duty lawyer system by amending the law in a short time.

10.4.4 Judicial Review When the defendant pleads guilty and accepts punishment, the court hearing is a mere formality whether the fast-quick sentencing procedure or the summary procedure is executed. At the same time, the prosecutors’ sentencing suggestions are accepted by courts in more than 95% of cases. The court’s review of the defendant’s voluntariness in pleading guilty and accepting punishment is also a simple formality, the main reason being that the defendant did not raise objections in court. As a result, the judges usually confirm the prosecutors’ sentencing suggestions. Experience has shown that in cases where the defendant pleads guilty and accepts punishment, the court hearing would be a mere formality if the defendant cannot obtain effective defense from lawyers. The defense would only be a formality if the lawyers retained by the defendant or designated by the legal aid agency did not provide effective legal assistance to the defendant. The defendant cannot obtain any legal help and has to defend by himself if he has not retained any lawyer, nor has the legal aid agency designated one for him. When the court hearing is only a formal requirement, the court’s review of the defendant’s voluntariness of pleading guilty and accepting punishment, as well as of 25

Lu Leyun, Zeng Ya. (2018). The judge’s authority in the system of leniency for admitting guilt and accepting punishment—An examination of the pilot in city C. Guangdong Social Science, 6. 26 Zang Desheng, Yang Ni. (2018). On the effective defense of duty lawyers—taking full coverage of lawyers’ defense at the trial stage as an entry point. Legal Application, 3.

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the sentencing agreement reached by the prosecution and the defense will also be a simple formality. If the defendant has been forced to plead guilty at the prosecution stage, or he has imprudently accepted the sentencing proposed by the prosecutor without the lawyer’s counsel, there is no possibility for the court to correct it. In this case, it is difficult for the court to establish the abuse of discretion by the prosecutors or correct the potential mishandled cases. The court is unable to examine the authenticity and legality of the sentencing negotiation as it is handing over judicial power to the procuratorate.

10.5 Conceptual Challenges for the Sentencing Negotiation System Flaws have been revealed in the system of sentencing negotiation. The 2018 Criminal Procedure Law has not remediated them. Nonetheless, the criminal justice reform may solve some problems. For example, based on the experience of some areas, the duty lawyers may have the defender’s permission to consult the case files and meet with the defendant. As another example, the defenders or duty lawyers participate in the sentencing negotiation to ensure the voluntariness of the suspects’ confession. In another example, the reformers could strengthen judicial review of prosecutors’ sentencing suggestions by prompting judges to review not only the voluntariness of the defendant’s guilty plea, but also the agreement on sentencing reached by the prosecution and the defense. The reform is not very complex to implement, and the sentencing negotiation system will be improved sooner or later. However, the negotiated justice faces cultural challenges in China. The prosecution and the defense cannot negotiate on issues such as conviction, charges and number of charges, also the minimum punishment is set and non-negotiable. This demonstrates that the sentencing negotiation system, which aims to improve the litigation efficiency and allocate judicial resources, conflicts with some legal values. Understanding this conflict helps us understand the limiting factors of the system and reveal its operation outline.

10.5.1 Finding Facts China’s criminal procedural law has formed its characteristics over decades, it does not accept the concept of “formal justice” in common law and conflicts with the disposition principle in civil litigation. China’s criminal procedural law requires the judicial authorities to find facts by collecting and verifying evidence, regardless of whether the defendant has confessed his guilt or not, and sets the conviction standard at the highest standard of “beyond reasonable doubt”. In the reform of the system of

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leniency for admitting guilt and accepting punishment, both legislators and decisionmakers insisted that the sentencing negotiation procedure should not be applied for the cases where the facts are unclear and the evidence is insufficient, even if the defendant has pled guilty and accepted punishment.27 This shows the influence of the concept of substantive justice. The concept of substantive justice circumscribes the parties’ right of disposing. In common law countries, if the standard of proof of “beyond reasonable doubt” has not been met, prosecutors can dismiss some charges change a felony charge into a misdemeanor charge, or propose a lighter punishment in exchange for a guilty plea and a conviction. By comparison, this practice is against substantive justice in China, because the conviction which comes from the negotiation between the prosecutor and the defendant is not supported by evidence, has no factual basis, and deviates from the “truth”. Under the influence of substantive justice, the prosecutor and the defendant can probably influence the judgment rather than decide on the case.

10.5.2 Justice in Criminal Law China’s criminal law, following the continental law, has established the principles of crime-penalty stipulated by law and suiting punishment to crime, which forbids the government from punishing the accused for doing something that is not prohibited by law and from imposing a criminal sentence that is disproportionate to the crime committed. Therefore, the judges should make a decision in accordance with facts and law, but shall not change the charges or the number of crimes without factual basis. This practice, while preventing the arbitrary “incrimination”, limits the negotiation between the prosecution and the defense. Prosecutors cannot, unlike their American counterparts, modify the charge or reduce the number of crimes to convince the defendant to plead guilty. The substantive justice not only prohibits the negotiation on charges, but also strictly restricts the negotiation on sentencing. Under China’s criminal law, the mitigation of punishment and exemption from punishment shall be in accordance with the law. The mitigation of punishment outside of the criminal law should be approved by the Supreme People’s Court. And the court should impose statutory lighter penalties within the limits prescribed by law, thus preventing judicial personnel from abusing their discretion power, this however makes the rules rigid. As a result, the prosecutors reduce punishment at most 30% for the defendants who plead guilty during the sentencing negotiation. This is not great enough to encourage the defendants to

27

Chen, Ruihua. (2017). The controversy of the system of leniency for admitting guilt and accepting punishment. Chinese Jurisprudence, 1.

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plead guilty because the cases of pleading guilty for leniency are minor criminal cases where the sentence is less than three years in prison.28

10.5.3 The Idea of Equality Before the Law China’s criminal law has established the principle of equality before the law to prevent illegal discrimination and privileges. A narrow interpretation of equality before the law is by both legislators and decision-makers of the judicial reform who believe that defendants who have committed the same crime should be imposed the same punishment. As a result, many people oppose leniency for the defendant who reached an agreement on civil compensation with the victim in exploring the criminal reconciliation system ten years ago. They believe the practice where impoverished defendants are imposed severe punishment and rich defendants trade money for leniency violate the principle of equality before the law. Finally, the new Criminal Procedure Law provides a criminal reconciliation system, but the policy on what leniency should be given to the defendant who has reached a settlement with the victim is vague. There is a heated debate about what punishment the defendant who has pled guilty should be given under the system of leniency for admitting guilt and accepting punishment and the principle of equality before the law. The Criminal Procedure Law stipulates in a not-so-clear rule that the defendant who has pled guilty may be granted “leniency”. There is no specific explanation of the leniency. Following the precedents of criminal reconciliation, the court generally imposes a lighter punishment to the defendant who has pled guilty.

10.5.4 Abuse of Discretion Our judicial reform focuses on preventing abuse of discretion and judicial corruption. There are no such terms as “plea bargaining”, “compromise”, “bargaining”, and “sentencing negotiation” in our law demonstrating that the judicial organs do not have too much discretion in the negotiation with the defendants. The sentencing negotiation is limited, the conviction, charges and number of crimes are excluded. Also, the duty lawyer can participate in the sentencing negotiation, and the court shall conduct a substantive review on the sentencing agreement. Although they are not completely flawless, these systems aim to avoid abuse of discretion.

28

Chen Ruihua. (2016). Rethinking the reform of system of leniency for admitting guilt and accepting punishment—an examination of fast-track sentencing procedure. Contemporary Law, 4.

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10.5.5 Status of Defendants The plea bargaining system and the adversarial procedure are inseparable. The prosecutor negotiates with the defense lawyer because the latter has “bargaining chips”. The defendant is not obligated to speak to the police and to be called as a witness in court because of the right to silence. The defense lawyer may file a motion to exclude illegal evidence. The jurors’ verdict is unpredictable and easily influenced by the defense lawyer. The defense lawyers can understand the prosecution’s evidence and its weakness by participating in the criminal process, consulting case files, interviewing the defendant and investigating evidence. As a result, the prosecutor, uncertain about the court’s decision, negotiates and makes compromises with the defense lawyer. Under China’s criminal procedure law, suspects and defendants without the right to silence are obligated to “truthfully answer” the questions of the police, and are often punished severely for pleading not guilty or remaining silent. In addition, the suspects and defendants who cannot have access defenders can only get help from duty lawyers who cannot participate in the court trial. Therefore, the suspects and the defendants are actually the objects rather than the subjects of the litigation and have to passively accept the punishment. In this case, the defendant has no “bargaining chip” when negotiating with the prosecutor. The prosecution will not be influenced much if the sentencing agreement is not reached. The court does not usually exclude the prosecution’s key evidence and rarely returns a not guilty verdict, making its decision predictable. As a result, the prosecutor is generally not motivated to reach a sentencing agreement with the defendant.

10.6 Conclusion With the establishment of the system of leniency for admitting guilty and accepting punishment, the prosecutor-led sentencing negotiation mechanism was established in our law. This mechanism is seen as an attempt to introduce a plea bargaining system in China because of the sentencing agreement negotiated between the prosecutor and the defense. This mechanism allows the prosecution and defense to negotiate to motivate the defendant to plead guilty and accept punishment. However, the prosecutor leads the sentencing negotiation process, the duty lawyer is only a “witness” and “assistant” and cannot participate in the sentencing negotiation, the judge’s judicial review is a formality. This flawed sentencing negotiation mechanism has led to prosecutors abusing their discretion, defendants being forced to plead guilty, convictions not meeting statutory standards, and even wrongful convictions. Although some defects of the sentencing negotiation system may be repaired through further reform, fundamentally, there are conceptual obstacles to the introduction of the prosecution-defense negotiation system in our laws. Such concepts as

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discovery of truth, criminal law justice, equality before the law, limiting the discretion of judicial officers, and treating the defendant as an object of litigation are all hindering the introduction of a system of negotiation between the prosecution and the defense. Under the influence of these concepts, the scope of negotiation between the prosecution and the defense is limited, and the sentencing negotiation system is unlikely to evolve into a plea bargaining system. With a series of reforms, such as trial centrism, the tenure of judges and prosecutors, and cumbersome ordinary procedures, criminal proceedings have faced a backlog of cases and delays in proceedings. In this context, the reform to rationalize the allocation of judicial resources through sentencing negotiation system is indispensable and vital. In the future, balancing the need for greater efficiency in litigation with the need to avoid abuse of power by prosecutors will be the challenge facing the system of admitting guilty and accepting punishment.

Chapter 11

Compliance Incentive Models in Criminal Procedure

11.1 Introduction As a new type of corporate management, corporate compliance aims to avoid compliance risks and prevent, monitor and remedy illegal and criminal activities. However, it is meaningless for a company to establish a compliance system on paper merely. The effectiveness of this management relies on its associated administrative and criminal incentive mechanism. Setting the rules of leniency for compliance in criminal law can urge enterprises suspected of committing crimes to implement compliance programs. For enterprises that have promised to establish or improve a compliance management system, the procuratorates set a supervision period and decide whether to prosecute them based on the effectiveness of their compliance system. More and more countries have established this rule. So far, the United States has established deferred prosecution and non-prosecution systems, while the United Kingdom, France, Australia, Canada, Singapore and other countries have imitated the United States and established the deferred prosecution system.1 Chinese enterprises are under increasing pressure to establish compliance programs, because they are often investigated and punished by Western countries’ administrative departments and even criminal authorities. China’s legislature has set a compliance system in administrative regulations, and some government regulatory authorities have also issued national compliance standards. In this context, some researchers call for compliance incentive mechanisms for corporate compliance in economic law, administrative law, criminal law and criminal procedure law. In criminal law, many scholars call for reforming the unit crime system, separating unit responsibility from employee responsibility and executive responsibility, establishing a system for defending corporate innocence based on compliance, and making compliance a statutory sentencing circumstance.2 Some scholars advocate 1

Chen Ruihua. (2020). The basic theory of corporate compliance. Law Press, pp. 233–236. Shi Yanan. (2019). Compliance program implementation and criminal liability of units. Journal of Law, 9, 29–33.

2

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_11

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the introduction of corporate compliance into the plea leniency system, with prosecutors making lenient sentencing recommendations for companies that admit guilt and accept punishment.3 Other scholars and judiciaries suggest borrowing from the deferred prosecution agreement system in Western countries to incentivize the enterprises to establish a compliance system in exchange for non-prosecution.4 Many criminal law scholars favor the non-prosecution system, advocating that the application of this system should be expanded from the juvenile criminal cases to corporate crime cases. The company’s establishment of a compliance mechanism shall be used as the basis for non-prosecution.5 Recently, some local grass-roots procuratorates have begun to explore the system of compliance-based non-prosecution. According to the system of compliancebased non-prosecution, the procuratorates do not prosecute the enterprises that are suspected of committing a crime and have admitted guilty and accepted punishment, under the premise of their commitment to or implementation of an effective compliance management system. The system of compliance-based non-prosecution is a kind of non-prosecution system. The enterprises which have committed a crime take the procuratorates’ advice to establish the compliance management system, or reach a criminal compliance supervision agreement with the procuratorates. The procuratorates supervise the enterprises within a certain period, and the enterprises shall regularly report their compliance management system progress to the procuratorates. The procuratorates would not prosecute the enterprises, so the enterprises would avoid being convicted and sentenced. The compliance-based non-prosecution system shows that the procuratorates may push enterprises to build compliance systems by exerting pressure and giving incentives. For those enterprises suspected of committing crimes, in order to avoid the outcome of being convicted and sentenced, to prevent the enterprise from falling into business difficulties or even the result of being unable to be listed or be delisted, they should establish compliance programs as required by the procuratorates and accept the supervision and guidance of the procuratorates, administrative supervision departments or the assigned compliance monitors. In this reform, the procuratorates urge enterprises to build compliance systems.

3

Li Yong. (2020). The construction of criminal compliance in china from a prosecutorial perspective. Journal of the National Prosecutors Academy, 4, 102–107. 4 Huo Min. (2020). Exploring a new model of judicial governance for corporate crime. People’s Procuratorate, 12, 5–11. 5 A number of papers published in the Chinese Journal of Criminal Law have put forward propositions and recommendations in this regard. See Yang Fan. (2020). Research on the legislation of conditional non-prosecution in corporate compliance. Chinese Journal of Criminal Law, 3; Ouyang Benqi. (2020). Discussion on the establishment of a conditional non-prosecution system for corporate crimes in China. Chinese Journal of Criminal Law, 3; Shi Yanan. (2020). Discussion on conditional non-prosecution and corporate governance in the unit criminal cases. Chinese Journal of Criminal Law, 3.

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This chapter discusses the reform of compliance-based non-prosecution. According to the different ways compliance is introduced into the public prosecution system, compliance-based non-prosecution is divided into two models: “procuratorial suggestion model” and “conditional non-prosecution model”. This chapter analyses the advantages and disadvantages of these two models. It also summarizes the non-prosecution reform and outlines its positive effects. Since the reform exploration of compliance-based non-prosecution has just started, the procuratorates have encountered many institutional problems. This chapter analyzes and comments on these problems and the possible solutions. The compliance-based non-prosecution is a new way for procuratorates to participate in social governance. It impacts the traditional theories of crime prevention and corporate supervision and provides an opportunity to develop new legal theories.

11.2 Two Models of Compliance-Based Non-prosecution By practicing compliance-based non-prosecution, procuratorates have created two models: the “procuratorial suggestion model” and “conditional non-prosecution model”. According to the procuratorial suggestion model, when the enterprises involved in minor crimes admit guilt, the procuratorates may make a non-prosecution decision, requiring the enterprises to establish a compliance management system. In the conditional non-prosecution model, the procuratorate establishes a supervision period to suspend prosecution of enterprises suspected of committing crimes, and conducts supervision and inspection of the enterprises’ compliance with the law, deciding whether to prosecute according to the progress of establishing a compliance management system.6 Both models of compliance-based non-prosecution apply to minor crimes in which enterprises admit guilty and accept punishment. Both require the enterprises to actively cooperate with criminal law enforcement to disclose the person responsible for the illegal act, compensate the victims for their losses, make up for tax evaded, turn over illegal gains, criminal tools and contraband, and pay fines, and so on. In this process, the procuratorates shall visit the enterprises to obtain information about its nature, management, status in the local economy, business models, illegal and criminal records, etc., and evaluate the negative impact of the prosecution on the enterprise and on the local economy. In addition, after investigation and evaluation, the procuratorates will only put forward criminal compliance requirements if they believe that the enterprise is willing to take or promises to take necessary remedial measures. There are significant differences between these two models in promoting enterprises to establish a criminal compliance system, which is mainly reflected in the

6

Compliance and Government Regulation Group. (2020, August 26). Many local procuratorates explore criminal compliance-based non-prosecution for enterprises. WeChat “Fangda Law Firm”.

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ways, time, institutional carrier and legal constraints of ordering enterprises to establish a compliance system. For these differences, a brief analysis and comments are made below.

11.2.1 Procuratorial Suggestion Model Supervising and urging enterprises to establish a compliance system by putting forward procuratorial suggestions is a system model adopted by most procuratorates. The procuratorial suggestion is the main way for the procuratorates to perform their duties of legal supervision, participate in social governance, prevent and reduce crimes, and protect the interests of the state and the public. From the perspective of function, procuratorial suggestions can be divided into several types, such as retrial suggestions, recommendations for correcting illegal actions, public interest litigation suggestions, and social governance suggestions. The social governance suggestions aim to address imperfect systems, imperfect management, supervision loopholes in management, and relevant units’ failure to perform their duties on time according to law. The suggestions comprise improvements proposed to relevant units or departments, and prosecutorial recommendations to improve governance. The procuratorates’ suggestion to enterprises to implement a compliance system is an important suggestion on social governance. The procuratorates have a legal basis for suggesting enterprises establish a compliance system when making a non-prosecution decision. During the period of examination and prosecution, the procuratorates not only decide whether not to prosecute, but also investigate the company’s compliance. The procurator’s suggestion to the enterprises on a compliance system is a kind of social governance procuratorial suggestion. During the examination and prosecution stage, procuratorates not only decide whether to prosecute, but also examine loopholes of the enterprise in investment, mergers and acquisitions, operations, production, sales, and business promotion, as well as hidden dangers of illegal and criminal activities, and urge the employees, executives, subordinate companies and partners to establish a compliance team, improve risk warning and prevention measures, and rectify and eliminate hidden crimes on time. This is a way to urge enterprises to rebuild their management system and prevent and monitor violations and crimes. Because there is a close relationship between the violations and crimes of enterprises and their management system, the procuratorates require enterprises to establish a compliance management system to avoid risks. According to the types of crimes, this compliance system can be divided into anti-smuggling compliance system, tax compliance system, intellectual property protection compliance system, environmental protection compliance system, anticommercial bribery compliance system, anti-money laundering compliance system, financial compliance system, product quality compliance system, data protection compliance system, etc. To put forward the procuratorial suggestion, in the process of examination and prosecution, the procuratorates may investigate the enterprise’s

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character, its business, compliance condition and criminal record, may collect evidence, get relevant information from the staff, listen to the enterprise’s opinions, consult professionals, regulatory authorities or industry associations, entrust appraisal, evaluation and audit, and visit and inspect the enterprise. After that, the procuratorates write a report. Such verification activities are an “internal compliance investigation” to some extent. After such investigation, the procuratorates can ascertain the facts related to establishing the compliance system, such as violations and crimes, the people responsible for the violations and crimes, management loopholes, system defects, etc. On this basis, the procuratorates can require companies to establish a compliance system to fill management loopholes. While making a non-prosecution decision, the procuratorates may put forward procuratorial suggestions. The non-prosecution decision means that the enterprise and responsible persons are acquitted. Not only will the company be exempt from high fines, but it may also remain listed and stay in business. Thus, the company will not suffer disastrous consequences. Before announcing the non-prosecution decision, the procuratorate investigates the enterprise and suggests that the enterprise constructs a compliance system. Therefore, the enterprise implements compliance programs in exchange for non-prosecution, which makes non-prosecution a significant incentive for enterprise to establish compliance systems. Because of this powerful incentive, the enterprise is willing to adopt procuratorial suggestions. From the supervision perspective, the procuratorial suggestions have a certain binding force on enterprises. The Supreme People’s Procuratorate has established several supporting systems to strengthen the binding effect of procuratorial suggestions. For example, the procuratorial suggestion should contain specific contents, such as “existing and possible violations”, “the specific suggestions and relevant laws, regulations and documents “, “the time limit for filing objections”, and “the time limit for written reply”, and so on. For another example, before formally issuing the letter of procuratorial suggestion, procuratorates should listen to the enterprise’s opinions and allow it to raise objections. The procuratorates may require an enterprise to take measures and reply in writing within two months from the date of receipt of the letter of procuratorial suggestion. The procuratorates can urge, support and help enterprises to put its measure into effect using inquiries, visits, consultations, meetings, etc. If the enterprise refuses to make rectification or the rectification is far from satisfactory without good reason, the procuratorates may report to the higherlevel procuratorates, administrative authorities and self-regulatory organizations. If the conditions are met, the procuratorates may initiate public interest litigation.

11.2.2 Conditional Non-prosecution Model Unlike the procuratorial suggestion model, the conditional non-prosecution model is a compliance-based non-prosecution model based on the deferred prosecution system adopted in Western countries. Conditional non-prosecution has been established in China’s criminal procedure law, currently only applicable to minor criminal cases.

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However, some procuratorates that are interested in the reform of non-prosecution compliance have recognized the limitations of the procuratorial suggestion system in encouraging the enterprises to establish the compliance system, so they set the compliance system as a kind of “conditional non-prosecution” under the framework of the current criminal procedure law.

11.2.2.1

Evaluation of the enterprise’s Initiation of the Compliance Supervision Procedure

Before initiating the compliance supervision procedure, the procuratorates should investigate the nature of the business, the fact of the crime, whether the enterprise has admitted the crime, and whether it is willing to establish a compliance system. If an enterprise is willing to establish a compliance system, it should submit written compliance programs to the procuratorates. In the investigation stage, the procuratorates get information about the crime and know whether the enterprise has admitted its crime to determine whether the case applies to the compliance procedure. The procuratorates may employ a team of experts from the public security organs, market supervision authorities and association of industry and commerce to hold a hearing about the crime’s social harm and the appropriate punishments and listen to the victims’ opinions to determine whether to initiate compliance procedures. During the two stages of approving arrest and examing prosecution, the prosecutors may initiate compliance procedures and require the enterprises to hire independent supervisors to issue an investigation report on the industry conditions, operational situation, possible social impact, and alternative punishment. Based on the investigation report and the opinions of the public security organs, defenders, and victims, the procuratorates may make a non-prosecution decision and initiate a compliance procedure.

11.2.2.2

Signing the Compliance Supervision Agreement

The procuratorates that adopt the conditional non-prosecution model have established a system of compliance supervision agreements. The so-called compliance supervision agreement refers to the agreement between the procuratorate and the enterprise on investigation, remedial measures, compliance programs, compliance supervision, and report of compliance progress. The agreement is binding on both the procuratorate and the enterprise. If the enterprise has performed its obligations under the compliance supervision agreement, the procuratorate may make a nonprosecution decision. On the contrary, if the enterprise fails to perform its duties under the compliance supervision agreement, commits new crimes, or violates the regulation, the procuratorate may dissolve the agreement and initiate prosecution. It can be said that the key to leniency for an enterprise is to sign the compliance supervision agreement and completely fulfill its obligations.

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Procurators may sign compliance supervision agreements with enterprises on behalf of procuratorates. This agreement generally includes the following clauses. First, the enterprise promises to cooperate with the investigation of the public security organs and procuratorates. Second, the enterprise promises to compensate the victim or pay the fines. Third, the enterprise promises to formulate compliance programs and establish a compliance system according to the procuratorate’s requirements. Fourth, enterprises assign senior managers or hire lawyers and other professionals to form compliance supervision teams to oversee the implementation and improvement of compliance programs. The procuratorates may employ compliance experts as external supervisors to assist the enterprise in formulating compliance programs and supervising the compliance programs’ implementation. Fifth, the enterprise regularly reports the progress of formulating the compliance programs to the procuratorate. The sixth is the supervision period of the compliance agreement, the implementation of the agreement, and the legal consequences for breach of the agreement.7

11.2.2.3

Setting the Period of Compliance Supervision

To incorporate corporate compliance into the non-prosecution system, it is necessary to set a period of compliance supervision. During this period, the enterprise shall improve its management in accordance with the compliance programs. The independent supervisors shall supervise the compliance programs’ implementation and submit reports to the procuratorate to evaluate the effect. To ensure the effectiveness of the compliance system and crime prevention, the period must be reasonable. The procuratorate determines a reasonable period for the enterprise to implement its compliance programs. For example, the period set by the procuratorate of Baoan District in Shenzhen is 1–6 months. During this period, the procuratorate, with the assistance of the independent supervisors, supervises the implementation of the compliance programs, and may assign prosecutors to enter enterprises for supervision (see Footnote 7). For another example, the period set by the procuratorate of Nanshan District in Shenzhen is 6–12 months. During this period, the prosecutor shall regularly (usually once every two months) supervise the implementation of the compliance programs, guide the enterprise to improve the compliance programs, and ask it to submit reports.8

11.2.2.4

Independent Supervisors and Their Responsibilities

The system of independent supervisors is a breakthrough in the reform of the compliance-based non-prosecution system. The so-called independent supervisors 7

Shenzhen Baoan District People’s Procuratorate. The Application of Conditional Non-Prosecution of Enterprise Criminal Cases. 8 Shenzhen Nanshan District People’s Procuratorate. The Application of Conditional NonProsecution of Enterprise Criminal Cases.

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refer to the professionals hired by the procuratorates to assist the enterprises in conducting compliance management. Based on the experience of procuratorates in compliance-based non-prosecution, independent supervisors can be selected and appointed from professional staff such as lawyers, auditors, accountants, and tax professionals. The procuratorates or judicial administrative organs may create an expert database with independent supervisors. Based on the suspected crimes and the professional knowledge required for formulating the compliance programs, the procuratorates select independent supervisors from the expert database and assign them to investigate the compliance systems of the enterprise, assist the enterprise in formulating compliance programs, supervise the implementation of compliance programs and issue a supervision report which serves as the reference for the procuratorate to make a non-prosecution decision. The independent supervisors should fulfill the following obligations: first, to accept the procuratorate’s supervision; second, to monitor the implementation of compliance programs; third, to inform the procuratorate of the compliance situation promptly; fourth, to inform the procuratorate of newly disclosed non-compliance on time, and urge the enterprise to make rectification; fifth, to keep confidential information such as business secrets, case information and personal privacy; sixth, the rights and interests of the enterprise shall not be damaged.9 The procuratorates may replace independent supervisors who do not fulfill the above-mentioned obligations. Some procuratorates adopt an alternative measure to monitor the enterprises to establish compliance systems. The procuratorates in Ningbo city entrust the administrative supervision department to supervise the enterprises. The administrative supervision department is responsible to supervise the enterprises establishment of compliance system, urge enterprises to improve their compliance programs, track the implementation of rectification and improvement compliance programs, send personnel to supervise and investigate the implementation of the compliance programs, evaluate the compliance effect, and submit a report on the enterprise’s compliance to the procuratorate.10

11.2.2.5

Review and Non-Prosecution Decision Before the End of the Supervision Period

Before the expiration of the compliance supervision period, the procuratorates shall review and evaluate the enterprise’s fulfillment of the compliance supervision agreement. If the enterprise has entirely performed its obligations under the compliance supervision agreement, completed the rectification and established the compliance management system, the procuratorate may make the non-prosecution decision. On 9

Shenzhen Baoan District People’s Procuratorate has adopted this model. See Shenzhen Baoan District People’s Procuratorate. The Application of Conditional Non-Prosecution of Enterprise Criminal Cases. 10 Chen Dongsheng. (2020, September 23). Compliance inspection escorts the development of private enterprises. Rule of Law Daily.

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the contrary, if the enterprise fails to perform its obligations, or does not accept the procuratorate’s supervision and guidance, or commits new crimes, the procuratorate may make a non-prosecution decision. Some procuratorates require the independent supervisors to issue reports on their supervision and investigation before the supervision period expires. After reviewing the report and considering other circumstances such as whether the enterprise has fulfilled the compliance programs and obeyed the supervision regulations, the procuratorate may make a decision whether to initiate a prosecution. Some procuratorates ask administrative authorities to evaluate the implementation of the compliance programs and submit a report, based on which the procuratorate decides whether to prosecute.

11.2.3 Choice of Models of Compliance-Based Non-prosecution Both models can encourage enterprises to establish and implement compliance programs. The conditional non-prosecution model is in line with international practice and more effective in motivating companies to establish compliance systems.11 According to this system, the procuratorates may reward the enterprises in two ways. First, if the enterprise cooperates with investigation and is willing to establish compliance programs, the procuratorate may reach a compliance supervision agreement with it and make the decision of conditional non-prosecution. Second, if the enterprise fully implements compliance programs on time, the procuratorate may make the conditional non-prosecution decision. These two rewards can motivate enterprises to establish compliance programs. The conditional non-prosecution model has clear advantages in its effectiveness in encouraging companies to establish compliance systems. In contrast, the procuratorial suggestion model is not as effective as the other model in encouraging enterprises to establish compliance programs. First, the procuratorates usually issue a letter of suggestion on compliance after making a non-prosecution decision not to initiate. However, the enterprises can not get more leniency after implementing compliance programs satisfactorily. Second, prosecutorial advice is not mandatory for companies. Practice shows that enterprises which do not fulfill the duties according to the procuratorial suggestion are rarely re-prosecuted. Since it is not a usual option for the procuratorates to re-prosecute the errant enterprises, it is difficult to become a routine means for prosecutors to restrict companies that refuse to implement compliance programs. Nevertheless, the procuratorial suggestion model is consistent with China’s procuratorial system and enables the procuratorates to participate in social governance, so it has advantages. However, the conditional non-prosecution model, although it has advantages in theory, is incompatible with the existing system. In my opinion, 11

Chen Ruihua. (2020). The basic theory of corporate compliance. Law Press, pp. 231–268.

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both models have their advantages and disadvantages. From a long-term perspective, to incorporate the compliance system into the prosecution system and enable the procuratorates to urge enterprises to implement compliance programs, the two models will be two parallel institutional choices.

11.3 Reasons for Establishing Compliance-Based Non-prosecution System China’s recent twenty years of criminal justice practice shows that the judicial organs usually conduct reforms, and the legislatures summarize the reform. Good examples are the juvenile judicial system, sentencing standardization system, criminal reconciliation system, and system of leniency for admitting guilt and accepting punishment. The current compliance-based non-prosecution system is a good example of reforms carried out by the gross-roots procuratorates. So, in the absence of a criminal compliance system in China’s laws, why would the procuratorates carry out this reform? The practice shows that there are three driving forces for this reform. The first is to protect private enterprises. The second is to urge private enterprises to carry out compliance reform. The third is to explore new ways to participate in social governance by the compliance incentive system.

11.3.1 Protecting Private Enterprises In recent years, with the political declarations to protect private enterprises,12 the judicial organs have also included the protection of private enterprises as a new type of criminal policy.13 It is necessary and justified to punish enterprises whose purpose and usual business is to commit crimes. However, many enterprises just occasionally commit some crimes, such as the crime of falsely making out special invoices, crime of illegal business, crime of infringing intellectual property rights, crime of environmental pollution, and the crime of commercial bribery. They are not illegal organizations for committing crimes, but legal organizations for normal production and operation. Prosecuting them at every turn will bring about negative effects. In particular, although private enterprises have a numerical advantage over state-owned enterprises, they are no match in economic competition and it is difficult for them to obtain equal treatment. The business of these enterprises may affect the local economy, tax revenues, employment, and even politics. If small, medium and micro private enterprises are prosecuted and convicted, they will face difficulties in 12

Creating a good development environment to support the reform and development of private enterprises. (2019, December 24). China Market Regulation News. 13 Dong Fanchao. (2019, Jan. 17). The Supreme Prosecutor publishes the first group of typical cases of judicial protection for private enterprises. Rule of Law Daily.

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operation, and may even end up with suspension of production or bankruptcy. For listed enterprises or those that plan to list, if they or their legal representatives or directors are convicted, they may be delisted or have no hope to be listed. In order to protect private enterprises, the procuratorates have proposed the concept of “less arrests”, “less prosecutions” and “more non-prosecution decisions”. According to the requirements of the public security organ, it is not permitted to arbitrarily file a case for investigation against private enterprises, and it is not permitted to abuse compulsory measures such as seizure, impoundment and freezing. The court has stepped up efforts to initiate retrial procedures for private enterprises, implemented the principles of crime-penalty stipulated by law and presumption of innocence, and adhered to the statutory standards for conviction and the principle of prudent application of criminal punishment. In this social and political background, the procuratorates have introduced the compliance system into the prosecution system, establishing the system of compliance-based non-prosecution. According to this system, the enterprises and senior managers who have committed crimes can obtain leniency due to compliance and avoid prosecution and conviction. As a decriminalization mechanism, the compliance-based non-prosecution system prevents private enterprises and senior managers from being convicted and sentenced, preventing them from being labeled as “criminal enterprises” or “criminal entrepreneurs”, and the enterprises will not be forced to delist or prevented from listing, or end up with suspension of production or bankruptcy.14 Therefore, the compliance-based non-prosecution can not only “save an enterprise” and protect the local economy, but can also protect the interests of employees, investors, shareholders, and partners. “Prosecuting a company is tantamount to sentencing it to death”.15 However, the system of compliance-based non-prosecution effectively protects not only the enterprise, but the stakeholders as well.

11.3.2 Compliance of Private Enterprise Business Model For private enterprises suspected of crimes, equal protection or special protection is far from enough. After all, the actions of these private enterprises have endangered society and violated the lawful rights and interests of others. In the current complex economic environment, many private enterprises, in pursuit of high profits, engage in risky investment and business activities at the edge of legal and illegal areas. They have not established a complete compliance system, and do not supervise the business activities of their employees, customers, third-party partners, and acquired parties.

14

Chen, Rhuihua. (2019). Three dimensions of corporate compliance systems—an analysis from a comparative law perspective. Comparative Law Studies, 3. 15 Chen, Rhuihua. (2020). Deferred prosecution agreements in the corporate compliance system. Comparative Law Studies, 1.

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Some enterprises even have systems that may encourage illegal and criminal activities. The typical examples of crimes include falsely making out special invoices, infringement of intellectual property rights, environmental pollution, and commercial bribery. On the other hand, many high-tech private enterprises only pay attention to profits, while ignoring the legal risks of criminal activity. Especially for private enterprises engaged in internet finance, big data credit investigation, direct commercial selling, and commercial financing, because they ignore the pre-assessment and real-time monitoring of business compliance, there is a risk of violating criminal laws, such as fraud, illegal pyramid selling, obtaining loans by fraud, loan fraud, illegally taking in deposits from the general public, illegally obtaining private information, and refusal to perform the obligations of information network security management. The criminal justice practice shows that if private enterprises are not subject to compliance governance, if the institutional causes and management hidden dangers of the crimes are not eliminated from the source, it is inevitable that more and more enterprises will be investigated, prosecuted, and even convicted. While giving leniency to enterprises in accordance with the system of compliancebased non-prosecution, the procuratorates also urge the enterprises to improve management and operation in accordance with the compliance requirements, and eliminate system hidden dangers and management loopholes, so as to avoid violations and crimes.16 In the practice of the procuratorial suggestion model, the procuratorates order enterprises to submit compliance commitments, make specific recommendations, and urge them to establish systems for preventing, monitoring and dealing with compliance risks, including a system of employee training, a system of risk assessments, an audit system, and a system of real-time reporting. After making the non-prosecution decision, the procuratorate urges the enterprise to fulfill its compliance commitment and form a system and culture of compliant operation. Thus, the enterprise is “decriminalized”.17 By comparison, procuratorates that adopt the conditional non-prosecution model go further in urging enterprises to establish compliance reforms. Under the procuratorates’ supervision, the enterprises hire professional compliance supervisors, submit compliance supervision programs, and reach compliance supervision agreements with the procuratorates. Under the supervision of procuratorates and compliance supervisors, the enterprises submit reports and accept evaluation to eliminate the loopholes and hidden dangers that lead to crimes and change the old business model.18

16

Sun Jia. (2020, June 15). When prosecutors hear that enterprises are ready to quit, procuratorial suggestion helps cross-border e-commerce to ensure that small and micro enterprises resume work and production. Qingdao People’s Procuratorate’s WeChat. 17 Shi Jifeng. (2020, June 12). Non-prosecution decision helps businesses come to life. Procuratorial Daily. 18 Director Xiao Wenqi visited Shenzhen Longhua district people’s procuratorate to survey the compliance-based non-prosecution system. (2020, September 3). WeChat of Guangdong Yuetong Law Firm.

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The enterprise establishes a culture of compliance management, and the senior executives attach importance to the compliance, reviewing every transaction, operation, investment and decisions, so as to avoid possible violations and crimes.

11.3.3 A New Way for Procuratorates to Participate in Social Governance As state organs for legal supervision, procuratorates are not only responsible for public prosecution, but also should participate in social governance. Since the judicial reform in 2014, the procuratorates have gradually participated in social governance by filing public interest lawsuits and making procuratorial recommendations. The compliance-based non-prosecution system is a new way for procuratorates to participate in social governance.19 The compliance risk-oriented corporate governance method aims to establish effective systems to prevent violations and crimes and identify compliance risks, and to deal with existing violations and crimes.20 By incorporating the compliance system into the public prosecution system, the procuratorates have established a compliance incentive system to encourage enterprises to establish an effective compliance programs. Procuratorates which adopt the procuratorial suggestion model may urge enterprises to submit compliance commitments by holding public hearings on nonprosecution and urge them to implement compliance management. For enterprises that promise to establish compliance programs, the procuratorates should review the implementation of their compliance programs, and may prosecute enterprises that fail to fulfill their obligations. This compliance-based non-prosecution system not only motivates the enterprise to establish a compliance mechanism but also puts pressure on them.21 The procuratorates that adopt the conditional non-prosecution model have made far-reaching institutional reforms in participating in social governance. First, these procuratorates have established a compliance supervision system, and introduced independent professional institutions and professionals to assist them in their compliance supervision work, which is considered an institutional innovation. Second, if enterprises cooperate with the investigation, take remedial measures, and are willing to establish a compliance mechanism, the procuratorates may order them to submit compliance supervision programs, sign a compliance supervision agreement, and then make a non-prosecution decision, which is a reward for the enterprises and may encourage them to make compliance commitment. 19

Tong Jianming. (2020, September 22). Performing procuratorial duties to create a good legal environment for enterprise development. Procuratorial Daily. 20 Chen, Rhuihua. (2020). Basic issues of corporate compliance. China Law Review. 1. 21 Sun Jia. (2020, June 15). When prosecutors hear that enterprises are ready to quit, procuratorial suggestion helps cross-border e-commerce to ensure that small and micro enterprises resume work and production. Qingdao People’s Procuratorate’s WeChat.

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Finally, during several months of compliance supervision, the procuratorates urge enterprises to accept supervision, and continuously track the implementation of compliance programs. Compliance supervisors assist the procuratorates in monitoring the enterprises and regularly submit reports. The procuratorates evaluate the implementation of compliance programs and decide whether to initiate prosecution. In addition, the procuratorates urge the enterprises to cooperate with the investigation, compensate the victims for their losses, pay fines and taxes on the premise of admitting guilt and accepting punishment. This can avoid conflict between the victim and the enterprise, repair the social relations damaged by the crime, and promote the enterprise to fulfill the obligations of compensation and payment. This can correct and reform the enterprises, and is an important way for the procuratorates to participate in social governance.

11.4 Controversies in the Compliance-Based Non-prosecution System Although the procuratorates have implemented the compliance-based nonprosecution system, this approach of incorporating the corporate compliance mechanism into prosecution is an experiment, which not only affects the prosecution’s handling of cases, but also causes difficulties due to the lack of a supporting system. Some procuratorates have learned from the experience of Western countries in implementing deferred prosecution agreements. However, this system is “incompatible” with ours and is not considered feasible in China. To establish a compliance system in China, we should not only learn from the experience of other countries, but also make system innovation. In the following the author comments about controversial issues facing the compliance-based non-prosecution system.

11.4.1 Procuratorates’ Power to Impose Fines According to the experience of implementing the deferred non-prosecution agreement system of Western countries, when signing a deferred prosecution agreement with a company, the procuratorates usually order the company to pay a high fine within a certain period. High fines of millions, tens of millions or even hundreds of millions of dollars are the prices enterprises have to pay for their crimes. The procuratorates severely punish companies economically as a substitute for criminal punishment and thereby deter companies.22

22

Yunxia Yin et al. (2016). Corporate activism and the “radial enforcement effect” of anticorruption—insights from the U.S. FCPA cooperation mechanism. SJTU Law Review, 2.

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However, in Chinese judicial practice, many enterprises suspected of committing crimes are “small, medium and micro private enterprises” that have run into operational difficulties. These enterprises commit crimes such as falsely issuing special invoices, illegal operations, environmental pollution, and commercial bribery, are often due to the poor competitiveness of their products and the difficulties in their business operations, so they cannot bear such a high fine. Moreover, according to the legal system of our country, administrative organs have the power to impose administrative sanctions, courts have the power of conviction and sentencing, while the procuratorates have neither the power to impose administrative fines, nor the power to impose criminal fines. So far, China has not established a responsibility system that integrates administrative sanctions and criminal penalties. The procuratorates have not the power of “procuratorial penalties”, and the courts have not the power of administrative sanctions.23 Therefore, the procuratorates cannot impose fines on enterprises, but can only recommend administrative supervision organs to impose fines. In implementing the compliance-based non-prosecution system, instead of fining enterprises, procuratorates usually order enterprises to compensate victims, hand over illegal proceeds, pay back taxes, and then sign compliance supervision agreements with them. While there are certainly practical reasons for doing so, not fining the enterprises involved in the case will condone their criminal behavior and will not achieve either a punitive or deterrent effect. Given this, when the compliancebased non-prosecution system is mature, the administrative penalty system should be reformed. An integrated administrative penalty system should be established, giving the procuratorates the power to impose administrative penalties. In criminal cases converted from administrative enforcement cases, the procuratorates may impose administrative penalties, including fines, when making compliance-based non-prosecution decisions. But even so, the Western countries’ practice of imposing high fines on enterprises is not suitable for our country.

11.4.2 Compliance Supervision Period The experience of the deferred prosecution system in Western countries shows that when a settlement agreement is reached between a prosecutor and a company, a supervision period of one to three years is set, during which the company commits to establish or improve a compliance program, the prosecution appoints a compliance officer to monitor and guide the implementation of the compliance program, and the compliance officer reports regularly to the prosecution on the progress of the compliance management system. If a company voluntarily discloses the facts or perpetrators

23

Yuan Xueshi. (2020). Integralism, decentralization, efficiency and convenience: the “new principles” of the amendment of the administrative punishment Law. Journal of East China University of Political Science and Law, 4.

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of a crime, the prosecuting authority may reward it by no longer appointing a compliance officer to monitor the implementation of the company’s compliance program, but order the company to submit periodic compliance progress reports. Before the end of the supervision period, the prosecutor reviews the company’s establishment or improvement of a compliance program and decides whether to file an indictment.24 However, some of our procuratorates in compliance-based non-prosecution, usually set a supervision period of 6 months to 12 months. During such a short testing period, it is difficult for enterprises to establish a mature compliance program and for compliance supervisors to observe and guide them, resulting in a formal establishment of a compliance program and making it difficult to achieve practical results. It is fair to say that the too-short supervision period has become one of the biggest bottlenecks in the compliance-based non-prosecution system. The solution to this problem is to reform the criminal procedure to formally include enterprises suspected of committing crimes in the statutory “conditional non-prosecution system” after a compliant non-prosecution system is established in the law. For enterprise crime cases that qualify for conditional non-prosecution, a compliance supervision period of one to three years should be set up. Only after the expiration of the supervision period can the procuratorates initiate the review and prosecution process.

11.4.3 Procedural Interface Between Procuratorates and Public Security Organs According to the laws of many Western countries, the prosecutor’s office is responsible for filing cases of commercial crimes allegedly committed by enterprises. After a corporate crime case, the procuratorial authority, as the investigating authority, can carry out the necessary compliance investigation as soon as possible and sign a deferred prosecution agreement or a non-prosecution agreement with a company that meets the conditions for compliance supervision. This fast-track system of deferred prosecution agreements allows companies to avoid unnecessary losses and enter the compliance regulatory process as soon as possible, thereby leveraging the effectiveness of corporate compliance implementation. However, in China, the public security authorities are responsible for filing and investigating most cases in which companies are suspected of committing crimes. The Public security authority investigates the case and takes compulsory measures against the suspect for months or even a year or more. In many cases, the public security authorities take compulsory measures of deprivation of liberty for suspects and compulsory disposition measures such as seizure, impoundment and freezing for the enterprises involved. As a result, the enterprise’s production, investment, R&D, sales, and other business activities had long been affected to varying degrees by the review and prosecution stage. At this point, the best time for the procuratorate to 24

Chen, Rhuihua. (2020). Deferred prosecution agreements in the corporate compliance system. Comparative Law Studies, 1.

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protect, save and rectify the business has been missed, and the effect of carrying out compliance-based non-prosecution may be negatively affected.25 To address this issue, some procuratorates look for cases that qualify for compliance-based non-prosecution at the review and arrest stage and reach compliance supervision agreements with companies as early as possible. Based on the experience of the system of leniency for admitting guilt and accepting punishment, some procuratorates include cases in which the enterprise or its executives admit guilt and accept punishment in a “special procedural channel” to shorten the investigation time; some procuratorates order the enterprise or the suspect to sign a recognizance to admit guilt and accept punishment in the investigation stage, set a supervision period, and sign a “compliance supervision agreement” with the enterprise.

11.4.4 Procedural Interface Between Procuratorates and Administrative Supervisory Authorities In Western countries, procuratorial authorities and administrative supervisory authorities may jointly participate in corporate crime cases, conduct criminal and administrative regulatory investigations, and reach deferred prosecution agreements and administrative settlement agreements with companies. The cases of Siemens’ alleged violations of the U.S. Foreign Corrupt Practices Act and ZTE’s alleged violations of U.S. export control laws are typical examples. In the Siemens case, the U.S. Department of Justice and the SEC entered into both a criminal settlement agreement and an administrative settlement agreement with Siemens. They imposed uniform regulatory compliance measures on Siemens.26 Unlike this, our law provides for a priority system for administrative penalties, that is, first, the administrative supervision department investigates and punishes the enterprises involved in the case, after which the suspected criminal enterprises are transferred to the criminal investigation authority. There is a “time gap” and a procedural interface between the administrative supervision and investigation and the criminal investigation. In incorporating compliance mechanism into the prosecution system, procuratorates often fail to obtain the support and cooperation of administrative supervision authorities. If the administrative authority has imposed severe administrative penalties on the enterprise, such as disqualification of franchise, disqualification of listing, revocation of business license, etc., it will be difficult for the procuratorate in criminal procedure to attract the enterprise to choose compliance supervision procedure and compliance-based non-prosecution. In addition, the procuratorates have not issued basic criteria for an effective compliance program, which leads to a potential abuse of discretion by the procuratorates in determining whether an enterprise qualifies for compliance supervision and whether the enterprise has implemented a compliance program. Procuratorates 25 26

Chen, Ruihua. (2020). Chineseization of corporate compliance. Legal Science, 3. Chen Ruihua. (2020). Basic theory of corporate compliance. Law Press, pp. 127–129.

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should work with administrative supervision authorities to issue criteria for effective compliance programs for offenses such as commercial bribery, violation of tax collection and management, infringement of intellectual property rights, violation of network security management, pollution of the environment, disruption of financial management order, and violation of product quality. The joint issuance of specific and feasible compliance standards by the procuratorates and administrative supervision authorities is the key to implementing the compliance-based non-prosecution system.

11.4.5 Effectiveness of Independent Supervisor System Western deferred prosecution agreement systems include independent compliance officers or compliance coordinators, i.e., external professionals who assist the prosecuting authority in monitoring the compliance progress of the company and provide a professional assessment of whether the company is implementing an effective compliance program.27 The compliance officer or compliance coordinator is independent and professional, although not an employee of the prosecuting authority, and is paid by the supervised company. However, companies with established compliance programs regularly submit compliance reports to the prosecutor’s office instead of hiring a compliance officer. In implementing the compliance-based non-prosecution system, some procuratorates in China have established a system of external monitors or compliance supervisors, following the example of Western countries. Professional institutions or professionals who are to be hired by enterprises as compliance supervisors should obtain approval from and be supervised by the procuratorates. There are two ways to pay the fees: by the supervised enterprises28 and by the procuratorates.29 There are advantages and disadvantages to each of these two ways. The compliance supervisor may demand a higher fee if the supervised company pays it, but this may compromise the independence of the compliance supervisor. In contrast, if the procuratorate pays the fee, the compliance supervisor can be prevented from having an interest in the supervised company and ensure his or her independence, but the fee may be lower, which may affect the motivation of the compliance supervisor and even affect the achievement of the compliance supervision goals. In addition, unlike a legal aid attorney, a compliance supervisor is responsible for supervising the establishment of a compliance program. Compliance supervision 27

Li Yuhua. (2020). The incentives of criminal procedure for corporate compliance in China. Comparative Law Studies, 1. 28 This model is adopted by the People’s Prosecutor of Baoan District, Shenzhen, see Shenzhen Baoan District People’s Procuratorate. The Application of Conditional Non-Prosecution of Enterprise Criminal Cases. 29 This model is adopted by the People’s Prosecutor of Nanshan District, Shenzhen, see Shenzhen Nanshan District People’s Procuratorate. The Application of Conditional Non-Prosecution of Enterprise Criminal Cases.

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is professional, and compliance supervisors should be senior lawyers, accountants, auditors, tax accountants, engineers and other professionals with excellent business, experience and prestige. Some procuratorates work with judicial and administrative authorities to create lists of compliance supervisors.30 However, attracting talented professionals to become compliance supervisors and overseeing compliance supervisors are major challenges today. The system of court supervision of bankruptcy trustees in bankruptcy liquidation cases can serve as an example of monitoring of compliance supervisors by the procuratorates.

11.4.6 Object of Application of Compliance System One lesson from the compliance systems of Western countries is that “to get a company suspected of a crime off the hook, those responsible must be punished”. After a deferred prosecution agreement is reached between the prosecutors and the company involved, to establish and implement an effective compliance program, the company should conduct an internal investigation and implement a reward and punishment mechanism to severely discipline the responsible company employees and executives, and if necessary, send them to the judicial authorities for criminal prosecution. To encourage companies to cooperate with investigations and take remedial measures, prosecutors reward companies that disclose violations by company executives with lenient criminal penalties.31 However, in China, the legal representative of many small and medium-sized enterprises is the company’s founder and is the key person for the development and survival of the company. If the judicial authorities detain, prosecute and hold the legal representative of the enterprise criminally liable, the enterprise may stop production and work, interrupt the capital chain or even go bankrupt. For a listed company or a proposed listed company, if the judicial authority convicts the legal representative or the executive director of the company, the company may fail to be listed or even be forced to be delisted, which will have disastrous consequences for the company itself and have a negative impact on the local economy. Because of this, procuratorates must take these circumstances into account when implementing a compliance-based non-prosecution system that “spares both the company and the person responsible” and, on that basis, sign criminal compliance agreements with companies to motivate them to implement compliance programs.32 Based on the consideration of protecting private enterprises, compliance with nonprosecution applies not only to enterprises, but also to private entrepreneurs suspected 30

Liu Jian. (2020, August 21). Baoan District Procuratorate and Baoan District Judicial Bureau Release “Corporate Criminal Compliance System,” Shenzhen Baoan District People’s Procuratorate WeChat. 31 Chen, Ruihua. (2020). Corporate criminal liability in the perspective of compliance. Global Law Review, 1. 32 Nanshan District People’s Procuratorate. (2020, April 16). Non-prosecution to promote corporate compliance. Shenzhen Nanshan District People’s Procuratorate WeChat.

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of committing crimes. This is a compliance supervision system with Chinese characteristics. However, to prevent the abuse of the compliance supervision system, the procuratorates should consider whether the enterprise is poorly supervised, has loopholes in the system, or has hidden management problems when applying compliancebased non-prosecution in cases of suspected crimes against private entrepreneurs, and should establish a compliance supervision mechanism to address these problems. When making conditional non-prosecution and non-prosecution decisions for both enterprises and entrepreneurs, the procuratorates should focus on the role of compliance mechanisms in preventing violations of the law so that enterprises can change their business models and become compliant.33

11.5 Influence of Compliance-Based Non-prosecution on Criminal Procedure Theory As a cooperative judicial procedure, non-prosecution system includes public and private cooperation, and it can encourage enterprises to implement a compliance mechanism. Thus, the procuratorates can push enterprises to establish a system of self-regulation by urging them to establish compliance mechanisms. The procuratorates encourage enterprises to establish compliance systems by supervision and incentives to prevent crimes and monitor violations. It can be said that the compliancebased non-prosecution system will positively impact the development of criminal procedure theory.

11.5.1 Effect of Compliance Incentive The procuratorates accept the concept of negotiated justice, which promotes the reform of public prosecution. In essence, all the negotiated justice procedures have incentive elements, that is, the accused gives up litigation confrontation and makes litigation compromises in exchange for leniency. The system of leniency for admitting guilt and accepting punishment in China, as a public cooperation model, is an “incentive system for a guilty plea”. As a private cooperation model, the criminal reconciliation system is an “incentive system for compensation”. And the compliance-based non-prosecution system is a “compliance incentive model”. Specifically, the system of compliance-based non-prosecution produces the compliance incentive effect. For enterprises that have promised to establish or implement a compliance program, the procuratorates may decide to suspend prosecution so that the enterprise is supervised or make a non-prosecution decision so that the enterprise is acquitted. This is a reward. For enterprises that refuse to establish a 33

Opinions of Ningbo Procuratorate on the establishment of a compliance inspection system for enterprises suspected of committing crimes.

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compliance program or fail to implement compliance programs, the procuratorates may prosecute them, making it possible to be convicted and punished. This is a punishment.34 The system of compliance-based non-prosecution is a new negotiated justice model. By exploring this system, the procuratorates abandoned the “patriarchal” concept of public law and introduced the private law concept of negotiation, exchange and compromise within the market economy. The procuratorates reach compliance supervision agreement with enterprises so as to urge enterprises to implement the compliance programs. The implementation of the compliance-based non-prosecution system shows that procuratorates have embraced the concepts of “win–win” “equal negotiation” and “compensation of equal value”. Under such a system procuratorates give up prosecution to encourage enterprises to implement their compliance programs, set up a supervision period for compliance supervision to supervise the enterprises, and reward enterprises that successfully implement compliance programs while punishing those that refuse to receive supervision. This exploration of nonprosecution as compliance incentive is the latest development in the concept of negotiated public prosecution.

11.5.2 A New Crime Prevention Theory Traditional criminal law theory focuses on the dual goals of punishing crimes and protecting human rights, separating the trial procedure from the execution procedure. The trial procedure plays the role of “finding the crime”, while the execution process plays the role of educating, rehabilitating and saving the offenders. However, this theory cannot explain cases where an enterprise is suspected of committing a crime, leaving the judiciary in a dilemma. If the judiciary does not spare enterprises and entrepreneurs, there will be adverse economic, political and social consequences. If it protects enterprises without eliminating the hidden danger of crime, these enterprises may commit crimes again and even commit bigger and more serious crimes in pursuit of economic interests.35 In this context, the compliance-based non-prosecution system has emerged as a solution for procuratorates to solve the problem of enterprise crime. In juvenile criminal cases, the procuratorate has established a compliance incentive mechanism modeled after the conditional non-prosecution system. Under the supervision of procuratorates, enterprises establish mechanisms to prevent violations and crimes. For example, enterprises regularly assess their own risks, survey customers, business partners and acquired companies, conduct regular or specialized training for employees and third parties, require them to sign a commitment, and promote 34

Yunxia Yin, Xiaoxia Li. (2020). The dynamics of corporate compliance in China and the path to its achievement. China Law Review, 3. 35 Shi Yan’an, Meng Shan. (2020). Regulation, compliance and criminal punishment—food safety as a discourse. Shandong Social Science, 5.

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compliance policies within the company to build a culture of compliance operations. With this prevention mechanism for compliance risks, companies can supervise their employees, customers, subsidiaries, third parties, and acquired companies to operate in accordance with the law. In the system of compliance-based non-prosecution, the procuratorates regard crime prevention, rather than retribution and deterrence, as their primary goal. Procuratorates urge enterprises to establish crime prevention mechanisms by signing compliance supervision agreements with them, supervising their compliance programs, and inspecting compliance programs. At the same time, the procuratorates urge enterprises to implement compliance programs during the review and prosecution process, fulfilling the crime prevention function previously performed by the execution of penalties. In this way, procuratorates actively participate in social governance, which embodies the criminal justice concept of integrating crime prevention and social governance.

11.5.3 Enterprise Self-regulation Theory Under the traditional prosecution system, the procuratorates impose lighter penalties on enterprises that commit crimes and, following a non-prosecution decision, make general and abstract recommendations to rectify the situation, while rarely requiring them to establish a comprehensive compliance management mechanism. As a result, enterprises that have committed crimes, after receiving lenient penalties, do not undergo substantial changes in their business models and management mechanisms; in particular, the system loopholes and management hazards that lead to crimes are not eliminated, and the enterprises are likely to commit crimes again.36 Under the system of compliance-based non-prosecution, procuratorates no longer “handle cases for the sake of case handling” as they used to, and enterprises are pushed to establish a self-regulatory mechanism. On the one hand, enterprises realize the purpose of self-identification of illegal and criminal acts through real-time monitoring of various business links. No matter how complete a company’s prevention mechanism is, it cannot eliminate all crimes. Under the supervision of procuratorates and hired monitors, enterprises are required to establish a radar-like real-time monitoring mechanism to monitor every aspect of their operations, in order to find and address violations in time and prevent serious crimes. On the other hand, enterprises can complete the task of transforming their business models and repairing themselves by developing systems and measures. After a crime occurs, the enterprise should find out and promptly punish the person responsible, find out the defects and loopholes of the management, and take corrective measures. By changing the business model and repairing the system, enterprises can improve the management system and enhance the ability of self-monitoring, self-prevention and self-management. 36

Philip Weller. (2018). Effective compliance programs and criminal procedures (Wan Fang, Trans.). Financial Jurisprudence, 3.

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Procuratorates prompt companies to regulate themselves, and from this perspective, the compliance-based non-prosecution system is like a “sensor”. By proposing programs, and supervising and testing the implementation of compliance programs, procuratorates promote enterprises to repair themselves and change their management mechanisms. Procuratorates do not personally supervise enterprises, but rather urge them to supervise themselves to prevent violations. This is the greatest value of the compliance-based non-prosecution system.

11.6 Conclusion Prosecutorates have devised a system of compliance-based non-prosecution to protect private businesses. Compliance-based non-prosecution is divided into the procuratorial suggestion model and the conditional non-prosecution model. Both models have advantages and disadvantages in terms of motivational effect. The system of compliance-based non-prosecution not only protects private enterprises, but also improves business models, and reduces and prevents crime, so that procuratorates can participate in social governance. The compliance-based non-prosecution system is still in its early stages of development. Procuratorates have undergone numerous revisions and faced numerous theoretical and practical challenges. However, this approach will significantly impact the evolution of criminal procedure theory. In terms of system development, if some procuratorates successfully adopt the compliance-based non-prosecution system, such system might be implemented nationwide. This system may be established in the Criminal Procedure Law and function as a compliance incentive in the long run. Once the judiciary recognizes the unique value of the compliance-based nonprosecution system, it will set up systems to encourage enterprises to implement compliance systems. For example, for an enterprise that has established a compliance management system, the procuratorate makes the non-prosecution decision, and the court makes a verdict of not guilty. Procuratorates may make a non-prosecution decision or advise a lenient criminal sentence to the court for enterprises willing to build a compliance system. The court may impose a lenient punishment appropriately. In exploring the compliance-based non-prosecution system, procuratorates face some institutional challenges. Procuratorates can decide whether to sign a compliance supervision agreement with different enterprises that have committed similar crimes. How to prevent the abuse of power and treat enterprises equally is a test of the legal wisdom of procuratorates. Under the current system, administrative supervision is independent of criminal justice, so it is challenging for procuratorates to work with administrative agencies to urge enterprises to implement compliance programs. The biggest challenge facing procuratorates is to urge companies to establish effective compliance programs to prevent violations. To solve the above problems, the procuratorates should sum up experience in exploring the compliance-based non-prosecution system and discover

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the rules through trial and error in practice to explore an effective criminal compliance mechanism.

Chapter 12

Three Models of Incidental Civil Action

12.1 Challenges of Incidental Civil Action As a marginalized research topic, incidental civil action has rarely received the attention of mainstream theories. Related research appears to be scattered and unsystematic, and the theoretical breakthroughs and innovations achieved are somewhat insignificant. With several issues emerging in this system, the legal circles have put forward some relatively advanced reform plans, while the judicial practice circles have implemented a series of reform programs from the perspective of realism. A thorough examination of the current criminal incidental civil action may reveal the challenges this system faces. Because the current law requires the court to hear the civil compensation issue and the public prosecution at the same time, the victim loses the opportunity to bring an independent civil action forward. Moreover, the criminal court generally does not take the victim’s incidental civil claim seriously, making this civil summary procedure rough. In addition, the current law limits the scope of compensation to the so-called “material losses”. The victim can neither obtain any compensation for mental damage nor the indirect losses suffered. The narrow scope of compensation separates the incidental civil action from the ordinary civil tort action and goes against the general doctrine of liability fixation. Not only that, the criminal court neither has the means to investigate the property status of the civil defendant, nor can it take timely measures such as property preservation and advance Enforcement, nor does it have ample motivation to enforce a civil judgment. As a result, the ratio at which incidental civil judgment is enforced is relatively low.1 To avoid empty judgments (situations where judgments cannot be enforced), many courts have adopted an unacceptable judgment method that determines the amount

1

Chen Huaiyou. (2003). Reflections on criminal incidental civil procedure. The Overview of Criminal Trials (No. 9). Law Press; Xue Jianxiang. (2005). Research on the mediation of criminal self-suit and incidental civil lawsuit cases. Overview of Criminal Trials (No. 9). Law Press.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_12

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of civil compensation or whether to make a civil compensation ruling based on the civil defendant’s “compensation capacity”.2 Faced with the problematic incidental civil action, some scholars and judicial officials have proposed a radical reform idea. According to this line of thinking, incidental civil action is a special kind of tort lawsuit. Since crime harms society and violates civil rights, the tort suit parallels criminal prosecution. However, the current system of incidental civil action ignores the vast difference between criminal action and civil action, and combines two very different procedures, giving incidental civil action a dual, contradictory, and even split status. The “criminal action priority over civil action” system resulted in the victim’s interest in civil compensation being submerged in the state’s interest in criminal punishment. The way to solve the problem of incidental civil action lies in acknowledging the difference between criminal procedure and civil procedure, and resolving the civil disputes with civil procedure rather than criminal procedure.3 Some judicial officials believe that the victim should have the right to choose between an incidental civil action and independent civil action. Once an independent civil procedure is selected, the court should accept and try the case, mediate the disputes, render a judgment and determine the amount of compensation in full accordance with the civil procedure.4 But the legislature has not adopted this radical reform plan, and almost no judicial organ has conducted reform experiments based on it. To eliminate the difficulties related to the enforcement of incidental civil judgments, many courts and procuratorates have begun to carry out some reforms. In recent years, the “reconciliationbased non-prosecution” reform undertaken by the procuratorates and the reform of “judicial assistance” for victims taken by the courts are “spontaneous” reforms to make up for the deficiencies of the incidental civil action. To transform civil compensation into a lighter sentencing circumstance, some local courts have carried out the reform of “civil action priority over criminal action”, that is, the court mediates the issue of civil compensation, then considers whether the compensation obligation is fulfilled fully and timely as an important sentencing circumstance. It is said that this “civil first, criminal later” approach not only conforms to the criminal policy of combining severity with leniency, but also achieves a better effect in court and is good for social harmony.5 From this point of view, three models have coexisted regarding the concept and system of incidental civil action. The first is the traditional model of “criminal action priority over civil action”, that is, the civil tort action is regarded as the incidental procedure of criminal action, which first solves the issue of conviction and sentencing of the defendant, and then addresses the issue of civil compensation. The second is 2

Guangdong Foshan Intermediate Court Panel. (2008). Report on the trial and execution of criminal incidental civil cases. Application of Law, 7. 3 Chen Weidong. (2005, January 6). Breaking the criminal action priority over civil action, let the judicial value return. Xinjing News. 4 Gao Yaosheng et al. (2008, February 29). Focus on criminal incidental civil litigation. Legal Information. 5 Chen Wei. (2008, September 17). Civil first, then criminal: Criminal trial maximizes harmony. People’s Court Daily.

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the proposed model of “separation of criminal and civil actions”, where the victim is allowed to choose an independent civil procedure based on the right to choose the procedure, so that the issue of civil compensation may be tried in accordance with the ordinary civil procedure. The third is the model of “civil action priority over criminal action”; in practice, after the defendant is convicted, the mediation of incidental civil action shall be carried out first to timely and effectively resolve the issue of civil compensation which is regarded as an important sentencing factor to determine the defendant’s punishment. Using the general methods of social sciences and as a neutral observer and interpreter, this chapter objectively analyzes the basic concepts and structure of the above three models and reviews their positive effects and challenges. Unlike traditional legal research on countermeasures, this chapter does not put forward biased opinions, but only conducts in-depth analysis and discussion. This kind of research is arguably more helpful than subjective countermeasure research to reveal the problems and find the theoretical clues in the system, practice, and reform.

12.2 “Criminal Action Priority over Civil Action” Model According to China’s current system of the incidental civil action, the victim may file an incidental civil action for civil compensation during the criminal procedure. The court deals with the issue of civil compensation after hearing the public prosecution case and makes a judgment on both the prosecution and the compensation. To avoid delay in litigation, the victim is allowed to file a civil lawsuit after the court has decided on the public prosecution case. This kind of incidental civil action is regarded as a model of “criminal priority over civil action” because the court’s judgment on civil litigation is made after the criminal trial and is based on the facts ascertained by the criminal judgment.

12.2.1 Theoretical Foundation of “Criminal Action Priority over Civil Action” Model The criminal incidental civil action aims to coordinate the relationship between criminal prosecution and civil tort action, while “criminal action priority over civil action” is a procedural model of an incidental civil action, therefore the two concepts are not on the same level. The criminal incidental civil action is a part of the traditional continental law system, based on a specific theoretical foundation. However, “criminal priority over civil action” is not the only mode of incidental civil action. In addition to making civil compensation claims during the criminal process, the victim may file an independent civil suit. On the other hand, the incidental civil action and its typical

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model of “criminal priority over civil action” are closely related and have the same or similar theoretical basis. The model of “criminal priority over civil action” is based on two theoretical foundations: one is “fact relevance theory” and the other is “procedural convenience theory”. According to the “fact relevance theory”, since the same crime causes both social harm and private tort, the court can determine both the criminal liability and the civil tort responsibility based on the criminal facts.6 The direct cause of public prosecution is the criminal act, while the reason for a civil lawsuit is the injury caused by the crime. If no damage is caused, there will be no need for civil action. For this reason, there is an interdependent and indivisible relationship between public prosecution and civil action, although they are different procedures. The victim may file a civil lawsuit with the court that accepts the public prosecution case. The court first hears the public prosecution case, then hears the defendant’s civil compensation after the defendant has been convicted. In this way, compared with public prosecution, civil action is in a subordinate position. This connection is present both in the procedure of the victim filing an incidental civil suit and when the victim files an independent civil action. In this regard, French scholars advocate the so-called principle of “criminal cause civil case pending trial”, believing that the civil court shall not make a judgment on the civil action before the criminal court makes a judgment on public prosecution. Moreover, the civil judgment is bound by and must not conflict with the criminal judgment.7 According to the “procedural convenience theory”, the system of incidental civil action not only reduces the burden of the victim and facilitates the litigation, but also avoids the same court making contradictory judgments on the same case. Therefore, in many civil law countries, compensation may be claimed by the victim and decided by the court during the criminal procedure.8 In China, since both the public prosecution and civil lawsuit are based on the same facts, the victim may file a civil suit for civil compensation in the criminal court during the criminal process. The court may hear civil compensation issues after the criminal judgment has been made and the facts have been ascertained. Thus, the public prosecution and civil lawsuit may be tried by the same court and decided in the same procedure, which may, in turn, improve efficiency, and reduce litigation costs and the victims’ burden. Moreover, hearing both the civil and criminal cases in the same court may also ensure the consistency of criminal and civil decisions and avoid contradictory results, thus maintaining the authority and unity of judicial decisions.

6

Claus Roxin. (1998). German Criminal Procedure Law (Wu Liqi, Trans.). Taiwan Sanmin Shuji, p. 646. 7 Caston Stefani et al. (1998). The Essence of French Criminal Procedure Law (Luo Jiezhen, Trans.). China University of Political Science and Law Press, p. 112. 8 Claus Roxin. (1998). German Criminal Procedure Law (Wu Liqi, Trans.). Taiwan Sanmin Shuji, p. 646.

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12.2.2 Challenges of “Criminal Action Priority over Civil Action” Model Through a continuous hearing, the criminal court may make decisions not only on the defendant’s criminal responsibility, but also on the civil compensation, which is the ideal situation expected by the designers of the incidental civil action. However, the practice in China shows that it is difficult to meet the expectation in most criminal cases. It can be said that serious issues have appeared in the incidental civil action in terms of the amount and enforcement of civil compensation. The victim does not have the right to choose the procedure for civil compensation and must accept the “incidental civil action” arranged by the court. According to the current judicial interpretation, the victim may bring an incidental civil action to the criminal court, or file a separate civil lawsuit after the criminal judgment has become effective. However, neither the criminal court nor the civil court accepts the independent civil suit filed by the victim. On the one hand, handling civil cases separately may increase the litigation costs, and judges tend to avoid complex civil compensation cases. On the other hand, it is useless to allow the victim to initiate another civil action if the incidental civil issue is difficult to solve in criminal procedure, so the incidental civil action does not have a way out of the original dilemma. In the “incidental civil action” procedure that does not depend on the choice of the victim, the court, following the principle of “criminal priority over civil”, makes convicting and sentencing of the accused the core of the trial. As a result, the court investigation and the court debate revolve around the defendant’s criminal responsibility. After the criminal hearing, the criminal court conducts a quick procedure for the victim’s civil compensation claim, in which the criminal defendant is regarded as the civil defendant, while the civil plaintiff is the victim. Since there is no procedure for changing the parties or adding a third party in the incidental civil action, the units and individuals who “bear civil compensation liability according to the law” cannot participate in the incidental civil action. Not only that, the process of incidental civil action is simple and rough. After listening to the civil plaintiff’s claim, the criminal judge presiding over the incidental civil action asks the two sides to debate. The court neither investigates the defendant’s ability to fulfill the civil compensation or the facts on which the civil compensation is based, nor does it coordinate the debates between the parties on the amount of the civil compensation and its fulfillment method. After listening to the opinions of both parties, the court rushes into mediation, trying to urge the parties to reach an agreement on civil compensation in a very short time. As a result, the court can neither obtain the necessary facts and information nor maintain the minimum procedural fairness nor facilitate settlement on the civil compensation. In terms of the compensation amount, the incidental civil action faces unprecedented difficulty.9 The current criminal procedure law limits the civil compensation to the “material damage” caused by crime. The Supreme People’s Court interprets the “material 9

Zhang Sulian. (2006). A Study of the practice of incidental civil procedure. Overview of Criminal Trials (No. 12). Law Press.

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damage” as “actual and inevitable damage suffered by the victim because of the crime”. According to this interpretation, the victim’s mental damage is not included in the scope of the civil compensation.10 In judicial practice, even for the “material damage”, the court sometimes may not make a complete civil compensation judgment. For example, the victim may only obtain civil compensation for material damage, but cannot make a claim for the damage caused by the defendant’s illegal possession and disposal of the victim’s property. In terms of the standard of civil compensation for personal injury, many courts do not include “death compensation”, “disability compensation” and “mental damage” in compensation. This has led to the “three non-compensation” dilemma in the incidental civil action.11 It is worth noting that local courts generally determine whether to make civil compensation ruling and the amount of the civil compensation based on the “compensation capacity” of the defendant to avoid empty judgments (situations where judgments cannot be enforced). In other words, for those defendants who have no or insufficient capacity for compensation, the court does not ask the defendant to compensate for the victim’s “material damage”, but either rejects the civil compensation claim or makes a judgment including very little civil compensation.12 Many scholars and judicial officials have sharply criticized the compensation scope of the incidental civil action. For example, in response to the judicial interpretation that does not include mental damage as civil compensation in an incidental civil action, critics believe that this goes against the principles of civil law and the general doctrine of liability fixation. Especially for those criminal acts that do not cause visible “material damage” but do deeply hurt the victim or his close relatives, such as rape, insult and slander, this kind of compensation scope can neither punish the criminals, nor compensate the victim who suffers physical and mental injuries, let alone provide moral comfort. Moreover, while the civil judicial interpretation proclaimed by the Supreme People’s Court has provided perfect and fair compensation to victims who have suffered mental damage due to torts, the criminal judicial interpretation stipulates that no civil compensation shall be made for the mental damage caused by a crime, even when a crime causes much more serious damage than that caused by torts. This violates the principle that everyone is equal before the law and raises the concern that the courts arbitrarily apply civil compensation standards. Another serious issue is that the court rejects the claim for death compensation and disability compensation, which have been increasingly emphasized in tort litigation, and does not consider them “material damage” caused by the crime. Death compensation is for the victim’s life, while disability compensation is for the victim’s lifelong physical and mental trauma. They are far more important than the so-called “material damages”, such as “medical expenses”, “lost wages” and 10

Supreme People’s Court. (2000, 47). Regulations on the Scope of Application of Criminal Incidental Civil Procedure. 11 Some courts do not have a unified standard for “death compensation”. See Liang Jianjun et al. (2007, October 10). Criminal incidental civil cases: four “ difficulties” to be solved. Hunan Daily. 12 Wang Jiuchuan. (2008, February 29). Views on criminal incidental civil litigation. Legal Information.

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“funeral expenses”. However, the courts generally refuse to include the above two damages in the scope of civil compensation. As another example, the court decides on civil compensation based on the “defendant’s ability to compensate” to avoid empty judgments (situations where judgments cannot be enforced) and prevent the victim from filing complaints and petitions. This violates the doctrine of liability fixation, giving up justice for a utilitarian purpose. What is more, it is very unclear whether the judgment on the need or the amount of the compensation made according to the “compensation capacity” may settle the dispute. The enforcement of the f incidental civil judgment is the biggest problem facing this system. I have not found the exact proportion of empty judgments (situations where judgments cannot be enforced) in incidental civil lawsuits. But the data from the media suggests the problem is bigger than researchers believe. The reason why the incidental civil judgments become empty judgments in such a high proportion of cases is either that the defendants have no financial ability, or because the defendants with the ability do not fulfill their obligation. Incidental civil lawsuits usually occur in criminal cases such as intentional homicide, injury, robbery, creating disturbances and traffic accidents, and most of the defendants are low-income people or unemployed. However, civil plaintiffs often ask for high compensation, sometimes even far beyond the defendant’s financial ability. In those cases where the defendant can pay civil compensation, the problem of “difficult enforcement” of incidental civil judgments is caused by the following reasons. First, many judges think that as the court has already imposed a penalty on the defendant, the civil liability for compensation is a double punishment, which may put the defendant in a miserable situation. This is true, especially in the cases where the defendant is sentenced to death and the judges are generally reluctant to play the role of the ones “killing and fining”. Second, the public security organs and the procuratorates do not seal up or distrain the defendant’s property in the pre-trial stage due to a lack of power or motivation. As a result, the defendant’s relatives often transfer or conceal property, making the court unable to take property preservation measures at the trial stage.13 Third, the court lands itself in a passive position in the enforcement of the incidental civil judgment. It neither orders the defendant to pay the civil compensation to the victims in difficulties in advance, nor seizes or confiscates the properties that may be transferred or hidden by the defendant.14 Fourth, according to the traditional principle of “criminal action priority over civil action”, the court hears the incidental civil case after deciding on conviction and punishment, which often makes it difficult for the parties in the incidental civil action to settle. When the defendant is set to be convicted and sentenced, he is not motivated to fulfill any compensation obligation. In the traditional incidental civil trial, the civil compensation is not directly relevant to the court’s sentencing decision. The defendant neither gets any “benefit” in sentencing due to a compensation payment, nor is he punished 13

Zhang Jinhai (2008, October 6). The Pre-Trial Property Investigation of The Incidental Civil Suits Is Possible. Procuratorial Daily. 14 Criminal Court of Jiangsu Provincial High People’s Court. (2004). Study on incidental civil procedure. Overview of Criminal Trial (No. 9). Law Publishing House.

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for refusing to pay. Civil compensation has become an important sentencing factor in the recent reform experiment of “civil action priority over criminal action” in some grassroots courts. As a result, the success rate of mediation of incidental civil action has risen sharply,15 which shows that the traditional “criminal action priority over civil action” model has some inherent disadvantages in facilitating mediation and reconciliation.

12.2.3 Theoretical Reflection on “Criminal Action Priority over Civil Action” Model In the current incidental civil action, which follows the principle of “criminal priority over civil action”, the civil compensation issue is dealt with after the public prosecution procedure. The facts confirmed in the criminal trial are the basis for civil compensation. This seemingly reasonable system has caused the independence of civil tort litigation. Although both the victim’s civil compensation claim and the prosecutor’s prosecution are related to the same criminal act, there are substantial differences in nature, purpose, and procedural structure. For example, the criminal procedure is based on the idea of fact-finding. Even if the defendant makes a guilty confession, the court must review and verify the evidence in the entire case. However, the civil procedure adopts the disposition principle, which means that if the defendant makes self-admission, the procedure is terminated. The court makes a judgment based on the admission. The criminal courts cannot try cases in absentia, while the civil courts can. Another example is that civil procedure is much more complicated than criminal procedure regarding the parties’ qualifications. The prosecutor and the defendant are the parties in the criminal court, while the victim, at most, participates in the procedure as the prosecutor’s helper. In civil court, the plaintiff is often the legal representative of the victim of a criminal case rather than the victim himself, while the defendant could be the legal representative of the criminal defendant. There may also be a third party who has the independent right to claim. Another example is the burden of proof. According to the principle of presumption of innocence, the burden of proof is on the prosecution rather than on the defendant. The prosecution is responsible for proving the defendant’s guilt and must reach the highest standard of proof, which lays the foundation for the principle of “in dubio pro reo”. In civil procedure, according to the principle of “whoever makes a claim should present evidence”, a party has the responsibility to provide evidence supporting its own claims. Moreover, the burden of proof may be transferred in civil procedure to another party who shall prove that the claims are untenable. In addition, in accordance with the judicial interpretations of the Supreme People’s Court, when it comes to special 15

Li Fei. (2008, April 1). An attempt at restorative justice: a survey of criminal reconciliation in Wuxi courts. People’s Court Daily; Li Fei. (2007, September 11). An effective measure to calm multiple contradictions: A survey of mediation in Harbin’s criminal incidental civil cases. People’s Court Daily.

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cases, such as medical malpractice, product quality and environmental pollution, the burden of proof may rest on the party who does not make a claim. Take standard of proof as another example. The standard of proof in criminal procedure is generally set as “beyond reasonable doubt”, while in the civil procedure it is determined as “preponderance of probability” or “the highest degree of probability”, and these two proof standards are different. There are other differences between criminal procedure and civil procedure in such aspects as jurisdiction and statute of limitations. These differences fully show that it is complicated for the court to deal with the defendant’s criminal responsibility and civil compensation through only one process. Attaching civil procedure to criminal procedure ignores the particularity of civil procedure, stifles its independence and sacrifices its integrity and fairness. Civil and criminal procedures are different in the aspects mentioned above and occur at different times. Once the criminal procedure is suspended or terminated, the criminal procedure to which the civil procedure attaches no longer exists. As a result, the civil procedure loses its basis, and it becomes strenuous for the victim to obtain civil compensation. For example, the criminal procedure is terminated immediately when the defendant dies, and the investigation of the defendant’s criminal responsibility is ended. However, this does not mean that the victim does not have the right to bring a civil action up; only the incidental civil action has now lost the foundation of its existence. As another example, if the defendant has not reached the statutory age of criminal responsibility, the criminal act is minor, or the facts of the case are unclear, etc., the court renders a verdict of not guilty and the incidental civil action is no longer applicable. The absconding of criminal suspects and defendants in practice is another example that ends criminal procedure and makes incidental civil action impossible. These examples clearly show that incidental civil action is in a delicate situation when the criminal procedure does not go on smoothly. Moreover, the current criminal procedure system does not provide sufficient support for incidental civil action. China’s criminal trial only has a single function, which is to deal with the issue of the defendant’s criminal responsibility. The criminal judges’ activities are limited to the trial stage, while they have no opportunity to participate in the pretrial procedures such as investigation and prosecution. Even if the victim files a suit for civil compensation at the stage of investigation or prosecution, the judge neither takes measures such as property preservation or advance enforcement, nor does he collect a deposit to ensure the enforcement of the judgment of the future incidental civil action. Therefore, in the pre-trial proceedings that last more than several months, the defendant’s relatives who are in a good financial situation and can pay the civil compensation may have sufficient time to transfer and conceal the properties. Although the court is allowed to “seize and freeze property when necessary”, the preservation measures that can only be carried out at the trial stage are often too late to prevent the defendant from transferring and concealing properties. Are the public security organs and procuratorates allowed to take measures such as property preservation and advance enforcement? In fact, in recent years, more and more judicial officials have advocated that public security organs and procuratorates should take preservation measures such as sealing up and freezing property, and

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conduct timely investigations of the defendant’s properties status, so as to ensure the enforcement of future incidental civil judgments.16 The original intention of this view is understandable, but it ignores some judicial system factors. Under China’s current judicial system, the court can neither conduct a judicial review of the legality of the investigation and prosecution, nor has the authority to order investigators and prosecutors to take action. Especially for the pre-trial activities of public security organs and procuratorates, the judges can not carry out post review even in court trials, let alone intervene in advance. As a result, if the victim’s requests such as investigating the defendant’s properties status and taking properties preservation measures are rejected, the court does not provide an effective judicial remedy.

12.3 “Separation of Criminal and Civil Actions” Model Since the traditional model of “criminal action priority over civil action” has fallen into an unprecedented predicament, some scholars and judicial officials have proposed the idea of “separation of criminal procedure and civil procedure” as a plan to reform incidental civil procedure. According to this principle, although civil tort claims and the prosecutor’s prosecution are related to the same criminal act, they are relatively independent. The former should be separated from rather than attached to the latter. Some people go to the extreme and advocate learning from the practice of “complete separation of criminal procedure and civil procedure in Britain and the United States” and to separate civil tort litigation from criminal process. The victim must file an independent civil suit to the civil court instead of filing an incidental civil suit, regardless of whether a criminal procedure is initiated or not, and regardless of the stage of the criminal procedure.17 Perfect in theory, the latter may not be feasible. At present, most people who agree with the “separation of criminal and civil actions” insist on the view of “relative separation”, and think that at least the victims should be given the right to choose civil litigation rather than be forced to accept the incidental civil action. The victims can choose the following three ways of action: the first is the incidental civil action procedure; the second is the independent civil tort lawsuit after the criminal procedure; the third is the independent civil tort lawsuit during the criminal procedure.18 So far, the concept of “separation of criminal and the civil procedure” has not been accepted by the legislative branch. No court has conducted any reform experiment of incidental civil action according to this idea. Nevertheless, as an ideal plan to reform China’s criminal incidental civil action, this suggestion has considerable influence. 16

Zhang Jinhai (2008, October 6). The pre-trial property investigation of the incidental civil suits is possible. Procuratorial Daily. 17 Pang Junsen. (2004). Questioning the system of criminal incidental civil litigation. Chinese Journal of Criminal Law, 5. 18 Gao Yaosheng, et al. (2008, February 29). Focus on criminal incidental civil litigation. Legal Information.

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This reform plan has not only a clear value goal, but also a specific system. Given this, the procedure of “separating civil compensation action from criminal process” is regarded as a new model of the incidental civil action, the model of “separation of criminal and civil actions”. The following is an analysis of this model’s concept, system, and expected effect.

12.3.1 Main Reasons for “Separation of Criminal and Civil Actions” Model The traditional “criminal action priority over civil action” model not only results in “difficult enforcement” of the incidental civil judgment, but also goes against the basic principles of the tort law and the civil litigation law in terms of the scope of civil compensation, advance enforcement, property preservation and so on. In this model, the civil tort action is attached to the criminal prosecution, its independence is denied, and it is hard for the victim to get civil compensation. The essence of this kind of “incidental civil action” is actually “incidental tort suit to criminal charge” and “incidental individual to state”, which is the fundamental shortcoming of the model of “criminal action priority over civil action” and the main reason for the rise of the model of “separation of criminal and civil actions”. In view of this, the establishment of a procedural model of “the separation of criminal and civil actions” is not only theoretically justified, but also brings a series of positive outcomes. First, the “separation of criminal and civil actions” model means that the criminal prosecution and civil tort claim are relatively independent. Here, the victim’s civil compensation lawsuit is not attached to the criminal procedure, which may make tort separate from crime and protect the victim’s rights. Traditionally, harm caused to society is regarded as the essential attribute of crime, while the private tort of crime is intentionally or unintentionally ignored. Since the emergence of the state prosecution system, the state has become the main victim of crimes, and the citizens who are directly injured by criminal acts are only regarded as the second victims. The state exercises the right to prosecute crimes, and the victims are deprived of the opportunity to initiate the criminal process. As an incidental result of the criminal act, the tort is the basis for the victim’s civil compensation action, but criminal law theory often ignores it. In China’s traditional model of “criminal action priority over civil action”, the victim can claim civil compensation only in the criminal trial. The court deals with the issue of civil compensation only after the trial of the criminal prosecution. As a result, the tort action is attached to the criminal prosecution and is often ignored in the criminal procedure. To change the paradigm of “attaching importance to criminal prosecution but neglecting civil litigation” and “attaching importance to national interests but neglecting private interests”, civil litigation should be separated from criminal prosecution. The victim should have the right to file the civil tort action after, during or before the criminal action, and even if the criminal prosecution is not filed or the criminal procedure is terminated, the

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victim still has the right to file an independent civil action. Only in this way, can the victim be compensated for the damage suffered because of the crime.19 Second, the victim may follow his inclinations to choose the appropriate civil procedure. In cases where the facts are clear, the civil legal relationship is simple. The defendant has the financial capacity and is willing to bear the liability for compensation. The incidental civil action is applicable, and it may reduce the litigation burden and facilitate litigation. However, for those cases where the defendant may conceal properties and shirk his compensation duty, the incidental civil action may delay the court’s measures, such as property preservation and advance enforcement, which may cause difficulties in the enforcement of the judgment of the incidental civil lawsuit. For those cases where the civil parties and the criminal parties do not match, such as is the case where the scope of the civil plaintiff is larger than that of the crime victim or the scope of the civil defendant is larger than that of the criminal defendant, the incidental civil action brings forward the problem of overly simple and tough civil procedure. In cases where the criminal procedure is suspended or terminated, the incidental civil action cannot continue. For the cases that are closed by not filing a lawsuit, by withdrawing a case, not prosecuting or acquitting, innocence does not mean that there is no civil liability. Still, the incidental civil action leads to the termination of civil procedure. In the above cases, it is more feasible and beneficial for the victim to bring an independent civil action than an incidental one. It is also more helpful to protect the victim’s right to action.20 From this point of view, only the model of “Separation of criminal and civil actions” may allow the victim to choose the procedure most favorable for him, that protects him and meets the requirements of procedural justice. Finally, the model of “Separation of criminal and civil actions” may get the civil litigation brought by victims out of difficult situations, setting the scope of civil compensation in accordance with the basic principles of the tort law. Only when the action of civil tort is separated from the criminal public procedure, the victim may, just like the civil plaintiff, make a claim according to the tort law, and the problems such as civil compensation for mental damage, death compensation and disability compensation may be solved. If the victim brings a lawsuit to a civil court, he may require that the court investigates the defendant’s ability to compensate, and the court may take timely measures such as advance enforcement or property preservation to ensure the enforcement of the civil judgment. Moreover, under the model of “Separation of criminal and civil actions”, the separated civil litigation follows the principles of civil procedure, and is not bound and restricted by the criminal procedure. For example, it complies with the evidence rules of civil procedure, such as the admissibility of evidence, the burden of proof and the standard of proof. Even if the criminal procedure is not initiated, or is suspended or terminated, the victim can still claim his civil rights in the civil court by filing a civil tort lawsuit.

19

Li Guomin. (2007, Feb.1). “Paying money for leniency” is not a solution. Procuratorial Daily. Zhang Hulin. (2003, August 11). On several issues in incidental civil litigation. People’s Court Newspaper.

20

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12.3.2 Some Reflections In recent years, the reform concept of “separation of criminal and civil actions” has been supported by many scholars. Even many criminal judges believe that it is the only way to solve the problem of incidental civil action. However, does this proposition hold? Will the problems in the incidental civil action be solved by separating criminal prosecution and civil action? In my opinion, the problem may not be so simple. While separating the civil tort action from the criminal procedure, the reform concept makes it difficult for the court to promote reconciliation, because the defendant’s fulfillment of the obligation of civil compensation is not taken as a mitigating circumstance in the sentence. When there is no leniency for offering civil compensation, the defendant does not fulfill his duty of civil compensation, or he may keep properties secret to evade his duty. The real mystery of the high settlement rate of incidental civil action in China in recent years lies in the widespread implementation of the system of “leniency for offering civil compensation” and “civil action priority over criminal action”. Therefore, the author is worried that if the civil action is separated from the criminal action, the settlement rate in the civil court will drop significantly, and many cases will go to a court trial. However, the problem of “difficulty in enforcement” of incidental civil judgments in Chinese courts has not yet been fundamentally resolved. Almost all judges believe that most incidental civil judgments fail to be enforced. If the independent civil tort cases are closed by trial rather than by settlement, will the problem of empty judgments (situations where judgments cannot be enforced) be solved? The answer is obviously no. If the civil action is separated from the criminal action, judges will not be able to restrain criminals and urge them to change through lenient punishment such as probation, parole, and commutation. The author has noticed that in common law countries, judges may impose conditional probation, ordering the offender to undergo therapy or physical examination, or compensate the victim for his damage within a certain period, and taking it as a prerequisite for no longer imposing the prison sentence. If the judge finds that the defendant has failed to perform the above-mentioned obligations, including the civil compensation obligation, within the specified time limit, he may revoke the probation and put the defendant into prison.21 On the one hand, this kind of conditional probation can reduce the application of imprisonment, so that the offender can be imprisoned for the shortest amount of time possible. On the other hand, it can also urge the offender to fulfill his compensation obligation and

21

A judge from Massachusetts demonstrated the sentencing hearing in a previously tried criminal case at an international symposium on sentencing reform in China and the United States, held in Beijing on October 23–24, 2008. The judge sentenced the defendant to a 30-month prison sentence and commuted the sentence to a suspended sentence of three years after the defendant had served six months of his sentence. The defendant must meet the following three conditions during the probationary period: the first is to receive and complete a period of alcohol and drug treatment; the second is to undergo random urine and breath testing; the third is to pay the victim’s medical expenses and lost wages. If a defendant violates any of the above conditions, the probation department has the authority to request the court to re-impose incarceration on him.

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minimize the victim’s physical and mental trauma. In the recent “criminal reconciliation” reform, the defendant can reach a civil compensation agreement with the victim before, during or after the trial. In cases involving the payment of civil compensation, leniency such as commutation and parole may be provided to the defendant. However, if the civil action is separated from the criminal action, civil compensation is not the basis for conviction and sentencing, nor is it a factor for a lenient punishment. A lighter sentence cannot attract criminals to pay civil compensation. The “separation of criminal and civil actions” may bring negative effects, whether for the fulfillment of civil compensation or for the offender’s rehabilitation. The procedural model of “separation of criminal and civil actions” has another limitation: it cannot solve the problem of “difficulty in enforcement”. The author has already determined that many reasons cause the “difficulty in enforcement” in the incidental civil action. So, if the reform of “separation of criminal and civil actions” does not change the causes of “difficulty in enforcement”, how can it solve the problem? For example, the difficulty in enforcing the incidental civil judgment is largely related to the court’s failure to take property preservation measures such as sealing up and freezing property, because the defendant’s family members may conceal or transfer property to shirk the obligation of civil compensation. And this is closely related to the current criminal justice system. So, to what extent may the procedural model of “separation of criminal and civil actions” solve this problem? In fact, whether the victim chooses the incidental civil procedure or the independent civil procedure after the criminal procedure, he will face the same problem. In fact, since the court participates in the civil litigation too late to investigate the defendant’s ability to compensate, take preservation measures such as sealing up, distraining and freezing property measures, and take advance in enforcing the property for victims in need. Not only that, for defendants who may conceal or transfer property to shirk their duty, if the court still responds with passive omissions as usual, instead of taking compulsory measures such as detention and sealing up, distraining upon property, the procedural model of “separation of criminal and civil actions” will fall into the difficulty in enforcement of judgments, just like the current model of “criminal action priority over civil action”. Since the “separation of the criminal and the civil procedures” will also be confronted with the difficulty of enforcement, how necessary is this reform? Of course, advocates of the “separation of criminal and civil actions” may put forward a model of “complete separation”, that is, before a criminal case is filed, the victim is allowed to bring an independent civil action to the court. According to this line of thinking, the civil court does not take into account whether the criminal lawsuit is initiated and to what stage it has progressed, but completely accepts the victim’s tort compensation suit in accordance with the procedure of the civil lawsuit, and adopts various safeguard measures such as advance enforcement and property preservation. For those defendants who conceal and transfer property, detention and other compulsory measures may be taken, and the decision to convict for refusal to execute a judgment may be made. Theoretically, such a system seems to be able to

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completely solve the problem of “difficulty in enforcement” caused by incidental civil action. It should be admitted that if the victim files a civil lawsuit before the criminal procedure starts, some problems, such as the conflict between criminal procedure and civil lawsuit, civil compensation scope and amount, property preservation, advance enforcement and so on, may be solved to a certain extent. If the court decides on the civil compensation before the criminal case is decided, are the facts established by the civil judgment binding on the criminal case? If it is binding, once the criminal court finds an error of facts in the civil judgment, should it tolerate it without correcting it? If it is not binding, once the criminal court makes a judgment that is completely inconsistent with the civil judgment on the facts of the same case, doesn’t this mean that there are two contradictory judgments in the same case? Moreover, if the criminal court finds that the defendant is innocent, the civil judgment may be revoked by retrial, and the civil compensation obtained by the victim may be returned to the defendant, which makes the civil legal relations uncertain.

12.4 “Civil Action Priority over Criminal Action” Model If the “criminal action priority over civil action” model has fallen into an unprecedented crisis, and the “separation of criminal and civil actions” model is too advanced, a realistic gradual reform may get rid of the predicament. In recent years, to avoid empty judgments (situations where judgments cannot be enforced), many courts have prioritized mediation settlement. So, the model of “civil action priority over criminal action” has been created and has become a new procedural choice for the court to overcome the shortcomings of the traditional model.22 The so-called “civil action priority over criminal action” is not a simple replacement of the traditional model. First, it is closely related to the mediation settlement. Its precondition is that the court helps the victim and the defendant reach an agreement and urges the defendant to fulfill his obligation of civil compensation in time. Second, the civil case is mediated before criminal judgment is made, the defendant performs his civil compensation obligation before the court makes a judgment on the defendant’s criminal liability. Finally, as the core part of this model, the court imposes a lighter sentence on the defendant who has reached a civil compensation agreement with the victim and has fulfilled his obligations. Hence, the defendant who pays the compensation receives a sentencing “discount”. In comparison, the defendant who refuses to perform his obligation cannot get a light sentence and may even be imposed a heavier penalty.23 In this way, Chinese courts have created a new model of

22

Lin Wei. (2007, December 11). Promoting performance in court: fujian changtai court enhances mediation work. People’s Court Daily. 23 Chen Wei. (2008, September 17). Civil first, then criminal: Criminal trial maximizes harmony. People’s Court Daily.

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incidental civil action in practice without substantive reform. The following analyzes the reason for this procedure model and comments on its theoretical controversies.

12.4.1 Reasons for “Civil Action Priority over Criminal Action” Model The emergence of this model is the result of Chinese courts solving incidental civil litigation issues based on pragmatism. The court has taken some practical measures in the past. For example, to avoid empty judgments (situations where judgments cannot be enforced), the court generally determines whether to make a judgment on civil compensation and the amount of compensation based on the defendant’s ability to pay.24 The decision to support the victim’s compensation request is based on the defendant’s ability to pay or on the amount of the compensation. This kind of judgment system may not reduce the court’s pressure. The victim may question the court’s fairness and file a complaint or a petition because the court does not support his compensation request. For example, to solve the problem of “difficulty in enforcement” of incidental civil judgments, some local courts have explored and implemented the “national judicial assistance system for victims” in recent years. Many people have high hopes for this judicial assistance system characterized by “state compensation” and regard it as a way to solve the problem of incidental civil action. Unfortunately, the practice has shown that it can only solve the problem of civil compensation for a very small number of victims. This is not helpful for most incidental civil cases where enforcement is difficult. For example, in Zibo City, Shandong Province, which was the first to establish a victim assistance mechanism, from 2004 to 2007, only eight victims received a total of 220,000 yuan in assistance. The city’s initial “financial assistance fund for criminal victims” was only 300,000 yuan. From 2004 to 2005, the Zibo Intermediate People’s Court still had 703 incidental civil judgments that could not be enforced. The actual proportion of victims receiving judicial assistance was less than 2%. Another example is that, according to the statistics of the Guangdong High People’s Court, the number of civil judgments that cannot be enforced in Guangdong Province has reached 75% in recent years. By the end of 2006, the amount of unenforceable criminal victim compensation in Guangdong Province was hundreds of millions of yuan. If a national compensation system were to be implemented to provide judicial assistance to all victims involved in unenforced civil judgments, Guangdong Province alone would have to allocate 1 billion yuan annually.25 Moreover, only when the defendant refuses to fulfill his duty, 24

Zhang Jun, vice president of the Supreme People’s Court, requested that “when mediation fails and a verdict must be made, full consideration should be given to the defendant’s actual ability to pay compensation and the available property for enforcement, and avoid empty judgments as far as possible”. See Xue Yongxiu. (2007, July 4). Supreme Court: Doing a good job of compensation in criminal incidental civil cases. China Courts Network. 25 Tan Jialong. (2007, December 3). How to solve the difficulty of enforcing criminal incidental civil compensation, the views of the legal profession are different. China Economic Weekly.

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will the court provide assistance. And the victims who appeal or petition because they cannot get civil compensation may be given priority assistance. Therefore, victims cannot get equal opportunities for assistance. Chinese courts are paying more and more attention to the mediation and settlement of incidental civil cases to solve the problem of difficult enforcement of incidental civil judgments. But criminal judges still face difficulties in encouraging the defendant and the victim to settle. Regarding reaching agreement, the traditional model of “criminal action priority over civil action” has noticeable disadvantages. Under the original model, for example, the court focuses on the issue of conviction and sentencing, and only after the criminal trial does it hear the incidental civil case. In most cases, due to time constraints, criminal judges do not conduct investigations on the defendant’s properties status and ability to pay and rarely take preservative measures such as seizure and sealing up. In this short trial process, it can be assumed that it will be challenging for the criminal judge to urge both parties to reach an agreement without the necessary preparation. Another example is that there is little incitement for the defendant to fulfill his compensation obligation when the court decides on conviction and punishment only according to the facts of the crime. Especially after realizing that compensation will not affect the result of the sentence, the defendant and his close relatives will try their best to transfer and conceal properties, and refuse any mediation plan. As another example, the victim usually asks the court to impose heavy penalties on the defendant and wants to obtain high civil compensation from the defendant. When the defendant is convicted, the victim believes that the defendant has committed a crime and is unwilling to compromise, making it difficult to reach an agreement.26 In 2000, the Supreme People’s Court linked civil compensation with sentencing in its judicial interpretation for the first time, allowing courts to consider the fact that the defendant has compensated for the victim’s damage as a “sentencing circumstance”.27 Compared with the traditional model of “criminal action priority over civil action”, this judicial interpretation neither separates civil action from the criminal procedure nor adopts a “criminal action before civil action” method. It can be established that determining the punishment according to the defendant’s fulfillment of civil compensation obligations is the most significant reform adopted by Chinese courts in recent years to solve the problem of incidental civil litigation. To use the defendant’s compensation as a circumstance of a lenient sentence, the court must resolve the issue of civil compensation before making the criminal judgment. To succeed in mediation, the court needs to mediate before making a final ruling. This practice of “mediating before deciding on sentencing” is the procedural guarantee for the “civil action priority over criminal action” model to work. According to the time of the court’s mediation, the “civil action priority over criminal action” model can be classified into three types: the first one is the mediation before 26

Zhang Huining et al. (2008January 22). A Survey on mediation in criminal incidental civil procedure in Qinghai provincial high court. People’s Court Daily. 27 Supreme People’s Court. (2000, 47). Regulations on the Scope of Application of Criminal Incidental Civil Procedure.

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the court trial, which is the so-called Pre-trial mediation; the second one is the mediation after the criminal trial, after which the punishment is determined; the third is the one in which the defendants have not reached an agreement or have not fulfilled their obligation of civil compensation. Here, the court does not impose a lighter penalty, but still allows them to obtain a lighter punishment. For those who have performed the obligation of civil compensation during the execution of the sentence, the court may make a commutation and parole ruling on this basis. Without major reform to the current system of incidental civil action, the model of “civil action priority over criminal action” has fundamentally changed the attitude of the victim and the defendant towards civil compensation, and has also enabled the court to take the initiative in handling incidental civil cases. The difficulties and in enforcing incidental civil judgments and empty judgments (situations where judgments cannot be enforced) caused by the traditional model of “criminal action priority over civil action” are the “nightmare” of almost all the victims and the consequence that the court tries its best to avoid. If the victim is asking for “exceptionally high prices”, not compromising on the amount of civil compensation, the court has to make a judgment on the incidental civil litigation, and the compensation might no longer be in the scope. On the contrary, if some compromises are made to lower the civil compensation amount, the court may persuade the defendant to reach an agreement. The issue of civil compensation will not be so difficult to resolve. The agreement often urges the defendant to pay civil compensation before the criminal judgment is made, so that the “difficulty in enforcement” does not become a burden for the court, and the victim’s compensation demand is met. At the same time, the victim generally gets a satisfactory outcome. Compared with the court’s judgment, the amount of the compensation in the settlement is higher. In the mediation process, the court usually persuades the defendant to admit guilt and sincerely apologize to the victim to soften the victim’s resistance, have him accept the court’s mediation plan and no longer hold objections to the court’s upcoming lighter sentence.28 The model of “civil action priority over criminal action” provides an incentive mechanism for the defendant; if he fulfills his obligation of compensation, he can get a lighter sentence as a reward. If the defendant has not paid the civil compensation, the court does not make a lenient sentence, and may even impose a heavier sentence, which has a punishment effect. The defendant and his relatives, weighing the pros and cons, usually have a positive attitude towards civil compensation. Since the sentencing range in China’s criminal law is generally extensive, “lenient sentencing” means that the court chooses a penalty between the mid-point and the minimum sentence, undoubtedly attractive to the defendant. In addition, in the following three situations, the “light sentence” subjects the defendant to substantial “leniency”: first, probation, exemption and other non-custodial sentences are applied to cases where the sentence may be less than three years in prison; second, the death penalty is 28

Li Fei. (2008, April 1). An attempt at restorative justice: A survey of criminal reconciliation in Wuxi courts. People’s Court Daily; Li Fei. (2007, September 11). An effective measure to calm multiple contradictions: A survey of mediation in Harbin’s criminal incidental civil cases. People’s Court Daily.

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changed with a two-year reprieve or life imprisonment in cases where the death penalty is likely to be imposed; third, the minimum penalty or a suspended sentence is applied in cases where the statutory minimum sentence is three years’ imprisonment. The leniency may generally encourage the defendants to fulfill the obligation of civil compensation.29 The non-fulfillment of obligations, transfer of property, and resistance to enforcement that often occurs in the traditional model of “civil action priority over criminal action” have disappeared. Instead, the defendants do their best to borrow money to meet the victims’ demands—some defendants who cannot pay request their relatives’ help. According to the civil procedure law, some close relatives do not “qualify” as civil defendants and do not bear the civil obligation. Still, they are willing to offer civil compensation to help the defendant obtain a lighter penalty.30 In this way, the criminal judge seizes the initiative in the incidental civil mediation, and the agreement is relatively easy to reach. As far as the court is concerned, closely linking civil compensation with a lighter sentence breaks the deadlock between the defendant and the victim and motivates them to reach an agreement. The court achieves good results without any significant reform, avoiding the risks brought by the original incidental civil litigation model.31 Compared with the method of judgment, mediation has the following advantages. First, once the victim has reached an agreement with the defendant, the victim generally willingly accepts the amount of civil compensation, so the delicate problems such as “mental damage compensation”, “death compensation” and “disability compensation” are avoided. Secondly, when the agreement has been reached, the defendant is usually willing to fulfill his duty, so that the victim can obtain satisfactory compensation in time. Finally, as far as the court is concerned, after the two parties have reached an agreement, there is no need to conduct a special investigation on the defendant’s compensation capacity and take measures such as property preservation and advance enforcement. It can be concluded that by using the civil compensation as “circumstances of leniency”, the court, getting out of the difficult situation of the incidental civil action, preserves the dignity of the judiciary and gains initiative in the incidental civil action.

12.4.2 Legitimacy of “Civil Action Priority over Criminal Action” Model Although some positive results have been achieved in practice, solving the problem of “difficult enforcement” of criminal incidental civil judgments according to the 29

Pan Qinyi. (2007, February 27). Dongguan: To meet the three conditions, civil compensation can be used for sentencing considerations. Guangzhou Daily. 30 Liu Lan et al. (2004, April 15). Spring in the courtroom—A criminal incidental civil compensation case research handbook. People’s Court Daily. 31 Li Fei. (2008, April 1). An attempt at restorative justice: A survey of criminal reconciliation in Wuxi courts. People’s Court Daily.

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“civil action priority over criminal action” model has caused controversy on the theory’s legitimacy. In the opinion of the supporters, when there is leniency for offering civil compensation, the victim obtains civil compensation before the court makes a criminal judgment, which minimizes the victim’s loss. Therefore, the victim can not only get a satisfactory amount of civil compensation, but also have mental comfort, which may reduce the social harm caused by crime.32 At the same time, the defendant’s confession and apology are the prerequisites for the court to sentence him or her leniently, and the defendant’s payment of compensation is a sign of regret. Moreover, the court, through mediation, urges the defendant to reach an agreement with the victim and perform the obligation of compensation, so that the victim’s physical and mental trauma is alleviated, the conflicts between the victim and the defendant are avoided, and the social relations destroyed by the crime are repaired in time.33 These positive outcomes are sufficient to constitute a reason for a lighter sentence by the court. In the view of some judges, “civil action priority over criminal action” is a reform caused by the dilemma of many incidental civil cases being forced to suspend enforcement. Fundamentally speaking, the “civil action priority over criminal action” model helps resolve the conflict between the victim and the defendant and establish a harmonious relationship. This demonstrates that the defendant’s confession, apology and compensation significantly reduce the harm caused by the crime. There is nothing wrong with giving a lenient sentence to the defendant who has fulfilled the duty of compensation.34 The model of “civil action priority over criminal action”, especially the practice of using civil compensation as the condition for leniency, was criticized by its opponents stating it is “paying money for lighter sentencing”, thus violating the concept of equality before the law. Two defendants who have committed a similar crime may be sentenced differently only because of their financial ability. For example, the defendants with the same serious crimes are sentenced to the death penalty’s immediate execution or suspension of the death penalty’s execution, or the death penalty or non-death penalty. In any case, this deviates from the basic principles of judicial justice.35 Opponents point out that this practice has turned compensation into “lifebuying money”, causing many wealthy defendants to be given mercy, encouraging criminal behavior. Opponents also pointed out that there is no “compensation” in the statutory circumstances of “light punishment” stipulated in the Criminal Law. At the same time, according to the provisions of the Criminal Procedure Law, it is the defendant’s legal obligation to compensate the economic loss suffered by the victim due 32

Li Hongjiang. (2008, February 29). Study on some controversial issues of criminal incidental civil litigation. Legal Information. 33 Shao Shixing. (2008, May 30). Implementing the criminal policy of combining severity with leniency should pay attention to civil liability. Procuratorial Daily. 34 Pan Qinyi. (2007, February 27). Dongguan: To meet the three conditions, civil compensation can be used for sentencing considerations. Guangzhou Daily. 35 Wei Hongzhan, Liu Jing. (2008, September 10). The impact of mediation on sentencing in criminal incidental civil cases. People’s Court Daily.

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to criminal acts. Since it is a “statutory obligation”, it should be performed unconditionally. How can it be regarded as a “bargaining chip” for a lighter punishment? The criminal incidental civil action principle should be “resolving the civil disputes with civil procedure rather than criminal procedure”. The civil procedure should not be confused with criminal procedure, let alone use civil compensation as a basis for criminal sentencing. Therefore, if the civil compensation is regarded as a “light punishment circumstance” at the judge’s discretion, it is too much “freedom”.36 Those who oppose the model also believe that the court’s original intention of adopting the model may be good, aiming to prevent civil incidental judgments from becoming “bad checks” and protect victims’ interests. However, the top priority is to increase the enforcement of the incidental civil judgment rather than to exercise leniency. In many cases, if the court does not promise a lighter sentence, the defendant and his relatives mostly say that they have no money to pay or won’t pay, even though they can do so. After the court has promised lenient sentencing, the defendant usually agrees to pay the civil compensation, tries his best to fulfill his duty and even offers a large sum as compensation (see Footnote 36). This illustrates that there are problems and room for improvement in the enforcement of the incidental civil judgment. Not only that, some people believe that, given that there are too many problems with the practice of using civil compensation to offset criminal penalties, this model is just a stopgap measure, but in the long run, the way to solve the difficulties of incidental civil compensation is to establish a national compensation system. The “Judicial Assistance System for Victims” currently on trial in some regions is an exploration of this national compensation system. In cases where the defendant cannot pay compensation or refuses to fulfill his or her obligation, the court should provide the victim with as much state compensation as possible.37 Faced with the controversy, the author will not want to judge which is right and which is wrong. The legitimacy of a system, practice or reform can generally be judged from two angles. One is the internal legitimacy, whether it conforms to a legal idea and principle. The second is the external usefulness, whether some positive social outcomes have been achieved. Obviously, in the latter aspect, the model of “civil action priority over criminal action” does have some advantages over the traditional model of “criminal action priority over civil action”. The “civil action priority over criminal action” model is civil action priority over criminal action of benefit to everyone concerned. The defendant pleads guilty and sincerely repents. The victim is compensated and comforted. The conflict between the victim and the defendant is resolved and their relationship is restored. The parties give up appeal, complaint and petition. The pressure of the court on the case is eased. Judicial credibility is improved. In terms of this positive effect of satisfying the interests of all parties in the litigation, the civil action priority over the criminal action model in Chinese judicial practice can be compared with plea bargaining in the United States.

36

Li Guomin. (2007, Feb. 1). “Paying money for leniency” is not a solution. Procuratorial Daily. Tan Jialong. (2007, December 3). How to solve the difficulty of enforcing criminal incidental civil compensation, the views of the legal profession are different. China Economic Weekly.

37

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However, this model faces some theoretical disputes from the perspective of internal legitimacy. Why civil compensation can “offset” the criminal punishment is the question that the proponents of the “civil action priority over criminal action” model must answer. After all, criminal incidental civil litigation is a compound type of litigation. Its logical premise is that one criminal act has brought about the dual consequences of social harm and private infringement, triggering criminal prosecution and civil lawsuits. However, public criminal prosecution and civil action are two relatively independent forms of action. The former is for conviction and sentencing, while the latter focuses on civil compensation. In their original sense, conviction and sentencing are aimed at the social harm of crime, while civil compensation is for the civil tort of crime. The defendant’s compensation cannot offset his criminal liability, just as the conviction and sentencing of the defendant by the court cannot offset his civil obligation. From this point of view, the concept of “resolving the civil disputes with civil procedure rather than criminal procedure” advocated by some people is reasonable. So, doesn’t the “civil action priority over criminal action” model have any internal legitimacy? Yes, it does. Although civil tort litigation and public criminal prosecution are relatively independent, they are closely related: They originate from the same criminal act, and the facts of the crime and tort are generally determined through the same litigation process. Considering that the defendant’s confession, surrender and meritorious service are the circumstances of lenient sentencing, the defendant paying civil compensation in the process of an incidental civil action, reflecting on his confession and repentance and him making up for his crime, should be regarded as a “lenient sentencing circumstance”. Taking into account that civil compensation may reduce the victim’s economic loss and his physical and mental trauma, resolve the conflicts between the two parties, and promote social harmony, the compensation mitigates the harm caused by the crime, reflects the defendant’s willingness to return to society and avoids re-offending. Moreover, in practice, the defendant’s initiative to return the stolen money and goods is regarded as an undisputed “discretionary leniency circumstance”. Are there any essential differences between returning dirty money and goods and paying civil compensation? Naturally, the defendant’s fulfillment of the compensation obligation indicates his repentance and can be regarded as a basis for a lighter punishment, which shows that in the context of the system of civil tort litigation attached to criminal prosecution, the two types of litigation cannot be completely independent, but are inevitably closely related. The court uses civil compensation as a circumstance to impose a lenient sentence, which may be the internal legitimacy for the model of “civil action priority over criminal action”. As for the issue of “everyone is equal before the law”, the author believes that the appropriate differential sentence is not a problem as long as there are sufficient reasons. In fact, the case of defendants who are “convicted for the same crime” but are sentenced differently, does not stop with the issue of civil compensation. For example, two defendants retained lawyers with very different professional levels because of their different financial situations, resulting in the defense effectiveness of one defendant greatly exceeding that of the other. As another example, a defendant remains in custody because he cannot pay the bail, while another accused of the

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same crime is released on bail because he has enough money to pay the bond. This type of difference is ubiquitous in almost all countries’ criminal proceedings, and no country has been able to eliminate this difference so far. As far as the civil compensation is concerned, it cannot be generalized whether the defendant who has offered civil compensation and the one who has not can be sentenced differently. Specifically speaking, if a defendant has fulfilled his compensation obligation, while the other one has refused to do so, we certainly think that in the former case the social harm caused by the crime is reduced and the defendant shows repentance, while there are no such circumstances in the latter case. It is legitimate for the court to impose a lighter sentence on the former case. The court may impose a heavier sentence on the latter defendant to punish him for refusing to perform the obligation of civil compensation. However, if a defendant does not have the capacity to pay for compensation, while the other defendant has paid the compensation, the court should not impose a heavy penalty on the former, but why not impose a lighter penalty on the latter? This leniency, after all, is a reward. The above comments on the “civil action priority over criminal action” model are not meant to emphasize that it is perfect, but to point out that there are some controversies about its internal legitimacy and can be evaluated from different angles. In the case of disputes over internal legitimacy, we pay more attention to its social impacts. If this model can solve the problems of incidental civil action, we may accept it and make a long-term and in-depth observation of its operation. If we can find a better model in the future, this model may be discarded.

12.5 Choice of Criminal Incidental Civil Models We conducted a preliminary study on the three models of incidental civil action in China and analyzed their theory, structure, and effects. As to which of these three models is better or worse, the author has expressed his point of view. From the perspective of research methods, this chapter does not follow the principle of “finding problems”, “analyzing problems” and “solving problems”, but, like an observer and commentator, makes objective theoretical demonstrations and reflections on the three models. The model of “criminal action priority over civil action” is a traditional model, which exists in the current criminal procedure and is adopted by most courts as a procedure to solve the problem of civil compensation. However, victims file complaints and petitions when they cannot obtain adequate compensation due to the common problems of “difficulty in mediation” and “difficulty in enforcement” in the incidental civil lawsuit. Therefore, the courts face tremendous political and social pressure, and judicial circles have criticized this traditional model. Also, the incidental civil action goes against the general doctrine of liability fixation in the civil tort due to the narrow scope and small sum of civil compensation, which results in injustice.

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Due to theoretical disputes and practical problems of the criminal action priority over the civil action model, two other models have been proposed. One is the “separation of criminal and civil actions” model, which is an advanced reform put forward by the legal circle and some judicial officials based on theoretical legitimacy. The other is the model of “civil action priority over criminal action”, a spontaneous reform taken by the judicial organs in practice. The proposed “Separation of criminal and civil actions” model can protect the victim’s civil litigation rights, meeting the requirements of procedural justice and conforming to the general doctrine of liability fixation in the civil tort. However, in the absence of substantial changes in China’s current judicial system, it is a problem whether this mode can help the court out of the dilemma of the current incidental civil action system. From the perspective of results, the model of “civil action priority over criminal action” dramatically increases the mediation rate of the incidental civil action, solves the problem of “difficulty in enforcement”, thus satisfying all parties in the lawsuit. However, in terms of theoretical legitimacy, this model is faced with some challenges. The three models analyzed in this chapter reflect three dilemmas that many legal systems in China are facing: first, the current system is unsatisfactory in practice and theory; second, some scholars and judicial officials have put forward advanced reformed ideas according to the experience of western countries, trying to propose the package solution to all problems; third, the judicial practice circle tries to find a better model through spontaneous reform exploration, but this utilitarian system is met with incredulity in terms of theoretical legitimacy. A reform plan that can solve the problem may not be theoretically justified, and the reform principle that appears perfect in theory may not be useful in practice. The status quo shows that both the ideal reform plan based on legal concepts and the spontaneous reform experience of judicial organs should be valued. For a long time, Chinese legal circles have always been looking for inspiration and resources for reform from the legal experience of Western countries. When studying legal issues, people always consider “whether it conforms to or violates the principles” as a starting point, which ignores the reform experience of judicial organs. Some grass-roots judicial organs have made a series of reforms in recent years, exploring a path of criminal law with Chinese characteristics. For example, some procuratorates have carried out the reform of “sentencing suggestion”, some courts have implemented the reform of “independent sentencing hearing”, and some courts have experimented with systems such as social investigation reports and social workers testifying in court in juvenile cases. The model of “civil action priority over criminal action” analyzed in this chapter is integral to the reform. The legal circle should abandon the attitude of pan-moralism, follow the standpoint of social science, and objectively analyze its causes and social outcomes to discover the law of development of China’s legal system from these reform experiences. This may be essential enlightenment by studying the three models of incidental civil action.

Chapter 13

China’s Model of Exclusionary Rule

13.1 Introduction As an essential part of criminal evidence law, the exclusionary rule aims at not the credibility of evidence, but the admissibility of evidence. The rule does not address the application of evidence in a general sense, but rather the eligibility of the prosecution’s evidence for court admission. Suppose the prosecutor submits evidence illegally collected by investigators to the judge. In that case, the judge shall exclude it from the court so that it cannot be accessed by the judge or jurors, much less transformed into a basis for conviction. The essential requirement of the exclusionary rule is that evidence obtained by investigators illegally is regarded as “illegal evidence” and disqualified as a basis for conviction, which is also the key to distinguishing the exclusionary rule from other evidence rules.1 As early as 1998, the Supreme People’s Court set forth the principle of excluding illegal evidence in a judicial interpretation. According to this judicial interpretation, the courts shall not use oral evidence obtained by investigators by torture, threats, inducement, deception, and other illegal means as the basis for conviction. However, more than ten years of judicial practice show that this provision has not been effectively implemented.2 In June 2012, the Supreme People’s Court, the Supreme People’s Procurement, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly formulated the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases (hereinafter referred to as the “Provisions on Evidence in Death Penalty Cases”) 1

According to the theory of evidence law, the “broad exclusionary rule” refers to all rules of evidence designed to limit the admissibility of evidence. The “rule of exclusion of illegal evidence” aims to restrict the admissibility of the prosecution’s evidence, especially the evidence collected by investigators in violation of the law. Such evidence is “tainted” and negatively affected by its legitimacy due to the illegal means of evidence collection. By admitting this evidence, the court gives its approval or acquiescence to the illegal investigation, allowing the investigators to gain undue and illegal benefits from their illegal actions, acting as an incentive for procedural violations. 2 For information on implementing the exclusionary rule in China, see Chen Ruihua. (2017). The theory of procedural sanction. China Legal Publishing House, p. 177. © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 301 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7_13

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and the Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases (hereinafter referred to as the “Provisions on Excluding Illegal Evidence”). Among them, the “Provisions on Excluding Illegal Evidence” provide for the exclusion of illegal evidence. The “Provisions on Evidence in Death Penalty Cases” mainly include the provisions on examining and judging evidence in death sentence cases and contain rules for excluding illegal evidence. The promulgation of these two judicial interpretations marked the initial formation of China’s exclusionary rule. Generally speaking, the exclusionary rule consists of two major parts: “substantive rule” and “procedural rule”. The substantive rule provides rules on the types and scope of illegal evidence, the consequences of excluding illegal evidence, the discretion of judges in excluding illegal evidence, and exceptions to the exclusion of evidence. The procedural rule provides initiation, filing standards, trial and adjudication, the burden of proof, and remedies for excluding illegal evidence. China’s criminal procedure law and judicial interpretations attach importance to substantive rules and make explicit provisions on substantive issues such as the scope of illegal evidence, the consequences of exclusion, whether it is curable, and whether the evidence obtained with the aid of illegal evidence should be excluded. However, procedural issues such as the initiation of proceedings, the acceptance of applications by the courts, and trial and adjudication are not given much attention. As a result, the “exclusionary rule” established by laws and judicial interpretations is often not operable. The drafters of the above two evidence regulations paid attention to the substantive part of the exclusionary rule and established a system of procedural protections. In terms of substantive rules, the two regulations set rules of “mandatory exclusion” and “discretionary exclusion” for different kinds of illegal evidence, and “curable exclusion” for “procedural defects” that are not severe violations. However, neither of the two regulations establishes a rule of excluding evidence obtained with the aid of illegal evidence, commonly referred to as “fruit of the poisonous tree”. The two judicial interpretations established a hybrid inquisitorial and party-driven system in terms of procedural rules. The procuratorates can exclude illegal oral evidence during the period of the examination and approval of an arrest request or examination and prosecution. At trial, the court initiates the procedure of excluding illegal evidence on a defendant’s motion. The “Provisions on Excluding Illegal Evidence” establish a principle of “procedural review first”. If the defendant applies to exclude illegal evidence, the court shall suspend substantive adjudication of criminal responsibility until it determines the investigative procedure’s legality. If, after the defendant provides evidence or clues to prove that the evidence is illegally obtained, the court, after preliminary examination, doubts the legality of the evidence collected by the investigators, the prosecution should bear the burden to disprove the procedural violation. The two evidence regulations establish a burden-reversing rule regarding the legality of confessions. Still, concerning the legality of other oral evidence, the burden of proof is on the supporter of the evidence. Under the “Provisions on Excluding Illegal Evidence”, the prosecution bears the burden of proving the legality of the investigation by the highest standard. Suppose the court of the first instance refuses to review the procedural legitimacy of the investigation. In that case, the

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defendant may apply to the court of the second instance to initiate a new procedural trial. Of course, the promulgation of law is not the same as its implementation. After the two judicial interpretations come into effect, the values, legal thinking and professionalism of criminal judges and the judicial environment they face may impact the implementation of the exclusionary rule. At the same time, the exclusionary rule is an “imported product” transplanted from the West, the relevant legal theory in China is also profoundly influenced by the Western evidence theory. Still, the criminal justice practice in China has unique problems. Whether the two newly issued judicial interpretations will effectively solve China’s problems is a difficult question whose answer is unclear. Using the model analysis method, the author takes the relevant evidence rules in western countries as a reference, and analyzes the characteristics of the exclusionary rule in China and the institutional innovation of the two judicial interpretations.

13.2 Mandatory Exclusion and Discretionary Exclusion According to the theory of evidence law, the exclusion of illegal evidence is divided into two categories. The first is “mandatory exclusion,” which means that the prosecution evidence that the court finds illegal should be excluded from the court. The judge has no discretion to decide whether to exclude it. The second is “discretionary exclusion,” which means that judges do not necessarily exclude illegal evidence, but rather consider and weigh the seriousness of the illegal evidence, the size of the harmed interests, the impact of the admission of illegal evidence on justice, and other factors in deciding whether to exclude illegal evidence. For example, the UK Police and Criminal Evidence Act 1984 adopts this classification. Under the Act, statements obtained by the police through “coercion” or other means that may render the evidence unreliable are inadmissible in court against the defendant. The Act adopts a “discretionary exclusion” approach for evidence other than the defendant’s confession. Evidence obtained illegally by the police may be excluded by the court if, after considering all the circumstances, including how the evidence has been obtained, the court finds that the admission of the evidence would adversely affect the fairness of the proceedings.3 In Germany, the “autonomous exclusion of evidence” rule established by the Federal Constitutional Court does not require judges to exclude all evidence that violates constitutional rights. Instead, it gives judges discretion in determining whether constitutional rights have been violated and whether evidence should be excluded. However, the court must exclude illegal evidence obtained by means that violate the criminal procedure code.4 3

Michael Zander. (1990). The Police and Criminal Evidence Act 1984. Sweet Maxwell, p. 198; Peter Murphy. (1995). Murphy on evidence, Blackstone Press Limited, pp. 69–70; Chen Ruihua, Comparative criminal procedure law. (2010). People’s University of China Press, p. 39. 4 Klaus Rokossin. (2003). Code of criminal procedure (24th ed.). Law Press, p. 210; Thomas Weigent. (2004). German criminal procedure, China University of Political Science and Law Press,

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Of course, this classification is not universally accepted by other countries. For example, the United States has established a “mandatory exclusion” rule without giving judges much discretion. The courts will rule against the exclusion of illegal evidence only considering the large negative impact that the exclusion of illegal evidence can have in certain circumstances. So far, this model of “mandatory exclusion plus exceptions” has remained in U.S. case law.5 Canada has established a “discretionary exclusion” rule. Specifically, while the exclusionary rule is set in Canada’s Magna Carta of Civil Rights and Freedoms, judges decide whether to exclude illegal evidence based on factors such as whether obtaining the evidence has violated constitutional rights, whether there is a causal link between the violation of constitutional rights and the obtaining of illegal evidence, and whether the admission of the evidence is prejudicial to the administration of justice.6 For example, suppose the evidence is deemed “non-rediscoverable,” meaning the police cannot obtain it without violating citizens’ constitutional rights. In that case, a judge may exclude the evidence because its admission would hurt the administration of justice. On the contrary, for “rediscoverable” evidence, the judge will decide whether to exclude it based on the seriousness of the violation and the consequences of its exclusion.7 China’s newly enacted “Provisions on Excluding Illegal Evidence” establish a rule that combines “mandatory exclusion” and “discretionary exclusion” of evidence. Under this rule, the confessions of a defendant extorted by torture or other illegal means and a witness’ testimony and victims’ statements extorted by violence, threat or other illegal means must be excluded. This is a “mandatory exclusion”. Where any physical or documentary evidence is collected in violation of law, which may affect the fairness of the trial, the court shall order the prosecution to make corrections or provide a reasonable explanation.. Otherwise, the evidence shall not be used as a basis for the decision. This is a “discretionary exclusion”.8 While the “Provisions on Excluding Illegal Evidence” establish different exclusion rules for illegal oral evidence and physical evidence, the “Provisions on Evidence p. 187; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 181. 5 Joel Samaha. (1999). Criminal procedure. Wadsworth Publishing Company, p. 431; Wayne R. LaFave, Jerold H. Israel. (1992). Criminal procedure. West Publishing Co., pp. 459–498; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 86. 6 Under Section 24(2) of Canada’s Magna Carta, evidence obtained in violation of a citizen’s constitutional rights may be excluded by a court if it is satisfied that the admission of the evidence would bring the judicial system into disrepute. It is the only one to date that establishes the exclusionary rule in the Constitution. See Ronald J. Delisle. (1996). Canadian evidence law in a nutshell. Thomson Professional Publishing, pp. 27–41. 7 Don Stuart. (2001). Charter justice in Canadian criminal law. Thomson Canada Limited, pp. 458– 465; Tim Quigley. (2000). An introduction to rights, remedies, and procedures in the Canadian Magna Carta. In Defense in American Criminal Proceedings. Law Press, p. 296; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 174. 8 The Supreme People’s Court, the Supreme People’s Procurement, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly. (2010, June 13). Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Death Sentence Cases, Article 1, Article 2, Article 14.

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in Death Penalty Cases” establish new mandatory exclusion rules for illegal oral and physical evidence. For example, the physical or documentary evidence collected or seized from the on-site investigation, examination or search cannot be used as a basis for determining a case if there is no investigation, examination or search transcripts, evidence-taking transcripts or the checklist of seized objects or if it cannot prove the source of the evidence. The testimony obtained by inquiring the witness not on an individual basis and the written testimony not verified and signed by the witness must be excluded. The inquiry transcripts not checked and signed by the defendant cannot be used as a basis for determining a case. Suppose the authentication institution does not have the statutory qualifications and conditions, or the matter under authentication is beyond the scope or ability of the authentication institution. In that case, the authentication opinion shall not be used to determine a case. If the identification is not made under the charge of the investigation personnel or the identifier has been given a hint or instructed to identify a suspect, the identification result shall not be used as a basis for determining a case.9 Why establish “mandatory exclusion” and “discretionary exclusion” for different kinds of illegal evidence? The reason is that some evidence has been obtained through severe violations of the law, either infringing the essential rights of the defendant, or violating the prohibitions expressly established by law, or resulting in severe consequences. Therefore, the only way to effectively restrain procedural violations for such serious illegal investigations is to establish the strictest procedural sanction, which is a blanket rule of inadmissibility. For example, suppose the investigator obtains a confession from the defendant by torture. In that case, this is a clear violation of the Criminal Procedure Law and international conventions on the prohibition of torture, and seriously infringes on the physical health and human dignity of the defendant, and damages the humanity and fairness of criminal justice. Therefore, such illegal evidence should be subject to “mandatory exclusion”, so that investigators who violate the legal procedures are subject to the most severe procedural sanctions. On the contrary, it would be too strict to adopt a blanket rule of inadmissibility for those violations that are less serious, infringing on less vital interests and causing less serious harm. Such a rule runs counter to the principle of congruence between procedural violation and procedural sanction. It may cause valuable evidence to be excluded only due to minor violations, making it difficult to discover the fact of the case and even hindering the prosecution of the crime. The particular concern is the minor “procedural defects”, which means that the order, manner, place, time, signature and other technical formalities of the investigation do not comply with legal procedures, but do not violate fundamental legal principles, do not infringe on the interests of any party, and do not result in the serious consequences such as false evidence and wrongful convictions. For the procedural defects, the court should consider the relevant factors, balance the interests involved, “choose the lesser of two 9

The Supreme People’s Court, the Supreme People’s Procurement, the Ministry of Public Security, the Ministry of State Security and the Ministry of Justice jointly. (2010, June 13). Provisions on Several Issues Concerning the Exclusion of Illegal Evidence in Criminal Cases, Article 9, Article 12, Article 13, Article 19, Article 20, Article 24, Article 30.

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evils” and hold evidence admissible when the benefits gained from the admission of evidence exceed that of the exclusion of evidence. At the same time, when reviewing such “illegal evidence”, the court may also consider whether the relevant procedural defects can be “corrected”. Suppose through a further investigation by the procuratorate or a further collection of evidence by the investigative organ, the procedural defect can be corrected or the investigative violations can be reasonably explained. In that case, this means that the illegal evidence can be rediscovered. The flaws in the investigation do not affect the probative power of the evidence. Therefore, it may be wise not to exclude such corrected evidence. The distinction between “mandatory exclusion” and “discretionary exclusion” according to the seriousness of the investigator’s violation of legal procedures is a major institutional breakthrough in China’s newly promulgated judicial interpretations. In previous judicial interpretations, the standard for whether to exclude evidence was the form of illegal evidence. That means that the court shall not use oral evidence such as the defendant’s confession, witness statement and victim’s statement illegally obtained by the investigator as the basis for determining the case. However, the court does not exclude illegally obtained physical and documentary evidence, or audio-visual recordings, no matter how severe the illegal means of obtaining evidence may be. This is because the means to get evidence has a significant impact on the reliability of oral evidence. In contrast, it has a minor impact on the reliability of physical evidence. This standard for determining whether to exclude “places a high priority on substantive issues and a low priority on procedural issues.“10 The two newly enacted evidence regulations abandon this standard and establish a “procedural centrism” exclusionary rule. Courts should exclude evidence obtained by investigators illegally, regardless of the type and form of the evidence, and regardless of whether the evidence is authentic and relevant. In other words, the reason for the court to exclude illegal evidence is not the lack of probative value of the evidence, but the illegal means of evidence collection, which is the essence of the “mandatory exclusion”. On the other hand, the two evidence regulations impose some limitations on the scope of application of the “mandatory exclusion”. After all, “mandatory exclusion” is a blanket rule of inadmissibility, which means that the court shall exclude all illegal prosecution evidence, and neither the prosecutor nor the investigator has the opportunity to correct the error. The consequences of such exclusion are severe, and the negative impact on the prosecution’s charges is great, so that the judicial interpretation limits such exclusion to the most severe illegal obtaining of evidence. For example, confessions of criminal suspects extorted by torture or any other illegal means and testimony of witnesses and statements of victims obtained by violence, threat or any other illegal means shall be excluded. In contrast, for those confessions, testimony or statements obtained by any other illegal means, an exclusion decision shall be made based on whether the degree of harm of the illegal means corresponds to that of extortion of confession by torture or violence or threat. 10

Xiong Xuanguo, ed. (2002). Interpretation of the judicial interpretation of the criminal procedure law. China Legal Publishing House, pp. 51.

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Unlike “mandatory exclusion,” “discretionary exclusion” means that judges have greater discretion in whether to exclude evidence. Some may argue that judges have more or less discretion in applying both exclusionary rules. Even for the “mandatory exclusion” rule, judges must determine which evidence is subject to mandatory exclusion. It is essential to clarify that “mandatory exclusion” means that once a judge decides that illegal evidence is subject to this exclusionary rule, he or she has no discretion but must exclude the evidence. The mandatory exclusionary rule applies to the evidence here. That is a matter for the legislator to consider, not for the judge to concern himself with. Whether such illegal evidence is subject to mandatory exclusion is a matter for the judge in applying the rules to find the facts. In contrast, the mandatory exclusion is a matter of applying the law based on factual findings. Conversely, judges have greater discretion in deciding whether to exclude evidence where the “discretionary exclusion” rule applies. Of course, this discretion is not absolute, and judges have to consider several factors and balance various interests when deciding to exclude or not exclude evidence and give reasons for doing so. It can be argued that even the “discretionary exclusion” is subject to limitations. Otherwise, judges may abuse their discretion. According to the two evidence regulations, when applying “discretionary exclusion,” judges generally need to consider the following factors when deciding whether to exclude illegal evidence. First is the nature and severity of investigators’ illegal obtaining of evidence. Second, whether the illegal obtaining of evidence violates important legal norms, particularly the prohibitive rules established by law. Third, whether essential rights and interests have been violated by illegally obtaining evidence. Fourth is the value of that evidence in finding the facts of the case. Fifth is the effect of the admission of that evidence on the administration of justice. Sixth, how severe the crime involved is. Seventh, whether that illegal evidence can be rediscovered. Eighth, whether supplements and corrections can be provided, whether that evidence can be re-collected, and whether an explanation or a good reason can be provided… By considering the above factors, judges need to balance various interests. The judge may believe that the admission of that evidence will not have a severe impact on the administration of justice and may decide not to exclude the evidence after it has been corrected, if there is only a technical violation or “procedural defects” and the evidence is essential to prove the facts of the case and the investigator could have obtained the evidence even without taking it illegally, and the correction would eliminate the procedural defects. On the contrary, the judge may consider that the admission of the evidence will hurt justice and that the evidence should be excluded, if the evidence has been obtained in a seriously illegal manner, the defense strongly requests the exclusion of the evidence, the evidence cannot be rediscovered, and the harm of getting the evidence illegally cannot be eliminated even after the correction of the investigator. It is clear that the rule of “discretionary exclusion” requires judges to weigh various interests and factors when making decisions. Discretion means that judges use legal thinking to achieve justice to compensate for the inadequacy of written rules. “Discretionary exclusion” does not mean that judges can do whatever they want to

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exclude evidence. It does not mean that judges admit all illegal evidence not subject to “mandatory exclusion”. “Discretionary exclusion” is not the same as “discretionary non-exclusion”. Otherwise, the original intent of the decision-makers of judicial reform to establish such an exclusionary rule would not have been achieved.

13.3 Curable Exclusion Those who study the exclusionary rule will quickly find that China’s two newly enacted judicial interpretations make two significant compromises in applying the exclusionary rule. First, the “fruit of the poisonous tree” rule is not established; that is, evidence that is obtained with the aid of illegal evidence will not be excluded.11 Second, the rule of “curable exclusion” is established; that is, the court allows the prosecution to cure procedural defects by obtaining the evidence a second time or by providing a reasonable explanation for the violation. Evidence recollected according to law or for which the prosecution offers a good reason may be admitted. The reason for these compromises is that if the scope of application of the exclusionary rule is too broad, the investigation will be negatively affected, causing difficulties in investigating and solving cases, making it impossible to achieve the original purpose of the two judicial interpretations. In particular, the “curable exclusion” rule allows the prosecution to cure procedural defects. The “mandatory exclusion” rule is a severe procedural sanction system, which denies the legality of the investigation, destroying the prosecution’s evidence system and even causing the failure of the prosecution of the crime. Because of the severity of the sanctions, the “mandatory exclusion” applies only to the most severe violations. However, applying “mandatory exclusion” to “procedural defects” would violate the principle of proportionality, make sanctions disproportionate to the violation, and harm essential interests. For example, excluding evidence may harm the interests of victims and the public and hinder the prosecution of crimes or even the enforcement of criminal law if the illegal obtaining of evidence does not violate important legal norms, does not infringe on significant interests, and does not affect the administration of justice. Therefore, the new judicial interpretation established a “curable exclusion” rule for the “procedural defects”. In Western evidence law theory, the exclusionary rule is an “all or nothing” rule. If the court excludes illegal evidence, that evidence may not be admitted as the basis for the decision. The law establishes exceptions to the rule, requiring that courts may not exclude specific illegal evidence, or judges have the discretion to decide whether to exclude illegal evidence after weighing several factors and various interests. In other words, the court excludes or does not exclude the evidence, and there is no

11

Wayne R. LaFave, Jerold H. Israel. (1992). Criminal procedure. West Publishing Co., pp. 459– 498; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 111.

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third option. The prosecution cannot correct illegal evidence, and the investigator cannot re-collect evidence or supplement the transcript of the case file. Of course, there is “curable invalidity” in cases other than excluding illegal evidence, such as the prosecution’s dismissal or reversal of the trial verdict. For example, in common law, the court can terminate the trial and order the prosecutor to dismiss the indictment if the prosecution abuses the process, such as detaining the defendant for an excessive period, abusing entrapment investigations, and repeatedly prosecuting the defendant. However, such dismissal is usually “without adverse consequences.” The prosecutor can reindict the defendant after correcting the process. “Dismissal with adverse consequences,” which is the equivalent of acquittal of the defendant, is rare in practice and applies only to severe procedural violations.12 Then again, if the courts of the first instance have violated statutory procedures, the appellate courts usually rescind the original judgment and remand the case to the court which originally tried it for retrial, rather than acquitting the defendant. To “rescind the original judgment” is to void the original verdict. To “remand the case to the court which originally tried it for retrial” is to order the lower court to correct the original procedural violations by holding a new trial.13 The system of invalidation of proceedings in civil law includes the correction of violations. In France, Italy and Portugal, the courts may declare a procedure “relatively invalid” if the violation is not serious. This is an “invalidity depending on the objection”, which means that the party must submit a request for invalidation to the court within the legal deadline. This type of invalidity is also known as “curable invalidity”, which means that the violation can be corrected, provided that: the party fails to submit a request for invalidation within the legal period; the party expressly waives the right to request invalidation or accepts the legal consequences of the violation… After declaring the procedure invalid, the court may order the police, the prosecutor, or the lower court judge to carry out the procedure again. It can be seen that “relative invalidity” is called “curable invalidity” because the violation can be corrected.14 The “curable exclusion” in the two Chinese evidence regulations is different from the “curable invalidation” in civil law, and is similar to the “dismissal without adverse consequences” and “reversal and remand” in the common law. Specifically, “curable exclusion” means that after finding that the investigator has illegally obtained evidence, the court neither makes a decision to exclude illegal evidence nor does it make a decision not to exclude illegal evidence, but chooses the third path, which is to order the prosecution to make corrections, and then decides whether to exclude 12

Andrew L. T. Choo. (1995). Halting criminal prosecutions: The abuse of process doctrine revisited. Criminal Law Review, p. 864; Andrew L. T. Choo. (1993). Abuse of process and judicial stays of criminal procedure. Clarendon Press, pp. 78–118, 148–181. 13 Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 436. 14 Xu Jinghui, Cheng Li Fu. (2010). Macau criminal procedure law. Macau Foundation, pp. 80; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 206.

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illegal evidence based on the corrections. In a sense, the “curable exclusion” is a “conditional exclusion”, and the “conditional” means that the prosecution must correct the procedure. In a broader sense, “curable exclusion” is a special “discretionary exclusion”. Generally speaking, “mandatory exclusion” is “incurable exclusion,” which means that the court must exclude evidence obtained by severe violations and may not allow the prosecution to correct the proceedings. However, “discretionary exclusion” is usually a “curable exclusion”. In the case of illegally obtained physical or documentary evidence, the judge decides whether to exclude the evidence based on various factors such as the seriousness of the violation and whether fairness of the trial is affected. Whether the procedure violation can be “corrected” is a significant factor for the judge to consider when making a decision. Courts may admit physical or documentary evidence recollected by the investigation organ legally if the authenticity of such evidence is not affected. Also, the court does not exclude evidence for which the investigation organ can provide a good reason. Thus, concerning “discretionary exclusion”, “whether the violation can be corrected” is one of the bases on which the court decides whether to exclude evidence. The “curable exclusion” is in fact, a special form of “discretionary exclusion”. Unlike “mandatory exclusion,” “curable exclusion” in the new Evidence Regulations addresses only “procedural defects” caused by minor procedural violations. The so-called “procedural defects” refer to law violations on the methods, steps, time, place, and signatures. Such technical illegalities do not violate significant legal norms, do not infringe significant interests, obey the express mandate of law, and do not cause serious harm, so it is not necessary to apply the “mandatory exclusion” to them. Still, the prosecution should be allowed to correct the error. For example, under Article 14 of the “Provisions on Evidence in Death Penalty Cases”, when questioning a witness, if the investigators do not record “the name of the questioner, the recorder, the legal representative, or the starting and ending time and place of the interview”, or “if the place where the witness was questioned is not in accordance with the regulations”, the court may treat such errors as “procedural defects” and apply the “curable exclusion”. For example, according to Article 21 of the regulations, if the investigator inquired the defendant but the inquiry transcript “does not bear the inquirers’ signature”, or “it has no record about notifying the inquiree of his or her rights when it is the first inquiry of the inquiree”, such errors may be considered as “procedural defects” and the “curable exclusion” may be applied. Similar rules appear elsewhere in “Provisions on Evidence in Death Penalty Cases”, such as physical and documentary evidence in Article 9, transcripts of onsite investigation or inspection in Article 26, and identification in Article 30. It is a discretionary exclusion and is of the character of a curable exclusion. So what should the prosecution do after the court finds that the investigators have illegally obtained evidence and orders the prosecution to make corrections? The Evidence Regulations provide two ways for the prosecution to correct procedural errors: recollecting evidence according to law or providing a good reason or explanation for the evidence that can not be recollected. Recollecting evidence according to law means the prosecutor or investigator re-collects evidence, such as interrogating

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the defendant, interviewing witnesses, victims or experts, on-site investigation, examination, search, seizure, and identification. If the evidence can be recollected by legal means by the prosecution, the prosecution can submit such evidence to the court and ask the court to decide the case based on it. The original illegally collected evidence should be discarded. If it is not possible to re-collect evidence due to the passage of time, the prosecution may order the investigator to explain that the initial procedural violation is not intentional, but merely a technical error, or that the evidence is not forged and false. By this explanation, the prosecution intends to convince the judge that the authenticity and reliability of the evidence are not negatively affected by the defect in how it was taken. What does the court do with the prosecution’s corrected violation? In my opinion, the court should review the correction, if the “procedural defects” are fixed, the application to exclude illegal evidence should be denied. Otherwise, the illegal evidence should be excluded. For example, the judge may exclude the evidence if the evidence cannot be recollected and the credibility of that evidence is affected by how it was obtained. The court may exclude the illegal evidence if the prosecution’s explanation fails to convince the judge that the violation is unintentional, leading the judge to believe that the breach is intentional, or that the investigator has falsified or altered evidence. It can be seen from the intent of the judicial interpretation that “curable exclusion” should not be interpreted as “no exclusion after correction”, the prosecution’s correction is one of the bases for the judge to decide whether to exclude illegal evidence.

13.4 “Procedural Review First” Under evidence law theory, if the issue of excluding illegal evidence is disputed by the prosecution and defense and brought before the court, the court conducts a procedural trial. This trial on the legality of the investigation and the admissibility of evidence takes place in the substantive trial on the criminal responsibility of the defendant, so it is also known as “a case in a case”, “a case within a case”, also known as “a trial within a trial”.15 Such a trial on the legality of the investigation has four elements. First, the defendant becomes the plaintiff in the procedural trial and the defender becomes the plaintiff’s agent. Second, the investigator becomes the plaintiff in the procedural trial and the prosecutor becomes the plaintiff’s agent. Third, the object of litigation is not the defendant’s criminal responsibility, but the legality of the investigation, that is, whether the evidence is admissible. Fourth, the court suspends the substantive trial of the defendant’s criminal responsibility and becomes a “procedural court” to hear the legality of the investigation and to rule on the exclusion of illegal evidence. Regarding the procedure for excluding illegal evidence, there are two ways of the inquisitorial system and the party-driven system in western countries. In England, for 15

Chen Ruihua. (2017). The theory of procedural sanction. China Legal Publishing House, p. 233.

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example, the judge may require the prosecutor to prove that the defendant’s statement is not subject to the mandatory exclusion and to meet the standard of proof beyond a reasonable doubt.16 In Germany, the court may not admit a confession obtained by the investigator through illegal means, even with the consent of the defendant, if the evidence is obtained in violation of the explicit prohibitions of the criminal procedure law, such as restriction of the defendant’s freedom, unlawful application of coercive measures, threats to the defendant.17 Of course, the defense challenges the legality of the investigation and files a motion to exclude illegal evidence, which is the general way to initiate the procedural trial. In the UK and Canada, the judicial review on the legality of the investigation is known as the “voir dire”. In the United States, judicial review on the legality of an investigation is known as the “suppression hearing”. In principle, in jury trial proceedings in the UK criminal courts, the hearing to exclude illegal evidence is held at the trial. Whether to hold “a trial within a trial” depends on whether there is a factual dispute over excluding illegal evidence. If there is only a dispute over the application of the law, the judge can make a decision based on motions and arguments from the prosecution and defense.18 To avoid delays in litigation and repeated changes in the subject matter of the trial, the procedural trial on the exclusion of illegal evidence in the United States is held in the pre-trial preparatory proceedings. A defendant cannot file a motion to exclude illegal evidence during a court hearing. A procedural trial is not held if the defendant, without good excuse, fails to file such a motion before the hearing, or if the court denies the defendant’s motion. However, a hearing on the exclusion of illegal evidence may be held during the court hearing if the defense presents new evidence to prove that the prosecution’s evidence is illegal.19 China’s two newly enacted evidence regulations provide for the procedures of the exclusionary rule. In the examination and approval of an arrest or the review of a prosecution, the procuratorates shall exclude illegal verbal evidence. They may not use it as a basis for approving an arrest or instituting a public prosecution. After the duplicate of the bill of prosecution is served but before a court trial is held, the defendant can submit a motion to the court to exclude illegal evidence. In the first trial, a motion to exclude illegal evidence can be filed until the end of court debate. The court of the second instance may hear the legality of the evidence and exclude illegal evidence if the court of the first instance does not hear the defendant’s application to exclude illegal evidence and uses the illegal evidence as the basis for its decision. This indicates that the inquisitorial system is applied in the examination and approval of an arrest or the review of a prosecution. In contrast, the party-driven system is adopted in the court trial stage. 16

Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 39. 17 Zhao Yanqing. (2003). The doctrine of prohibition of evidence influenced by fundamental human rights—Development in German criminal procedure. European Law Newsletter (4th). Law Press, p. 137. 18 John Sprack, Christopher J Emmins. (2010). Emmins on criminal procedure (8th edition), p. 282. 19 Joel Samaha. (1999). Criminal procedure. Wadsworth Publishing Company, p. 649.

13.4 “Procedural Review First”

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The new judicial interpretations authorize the procuratorates to exclude illegal evidence in the examination and approval of arrests and prosecution. However, the procuratorates are the state prosecuting authorities with the duty to prosecute crimes and cannot act as neutral judges to decide whether to exclude illegal evidence. On the other hand, the effective implementation of the exclusionary rule requires establishing an adversarial judicial process that allows the prosecution and the defense to participate in the procedural trial. This means that the procuratorates are unlikely to play a significant role in excluding illegal evidence; they are litigation agents for the investigative authorities and are in opposition to the defendants who apply to exclude illegal evidence. Because of this, the responsibility of examining the legality of the investigation and excluding illegal evidence can only be assumed by the court. The procedural trial to exclude illegal evidence can only be established in a court trial. In the past, the court would not accept a defendant’s motion to exclude illegal evidence before trial, but at most would review such a motion in a cursory manner during the court investigation and court debate. But this review was not a hearing, so neither the prosecution nor the defense could present evidence, or argue about the legitimacy of the evidence. Moreover, the court rarely decided the issue of exclusion of illegal evidence separately, but at most decided this issue together with the substantive issues of the case. The court denied the defense’s motion to exclude illegal evidence in most cases.20 The new judicial interpretations establish the principle of “procedural review first”, which is a significant reform in the procedure of the exclusionary rule. According to this principle, the defendant or the defender can apply for the exclusion of illegal evidence before or during the court hearing. The court should “first make a court investigation”. Suppose the court, after reviewing the evidence or clues provided by the defense, has doubts about the prosecution’s evidence collection. In that case, the prosecutor shall prove the legality of the evidence collection process. Both parties may present evidence and debate the legitimacy of the collection process. If the court has any doubt about the evidence provided by any party, it may adjourn the hearing of the case and check the evidence. If, after review, the court confirms that the evidence has not been obtained illegally or that the conditions for excluding illegal evidence are not met, it may deny the defense’s motion and find the evidence admissible. Otherwise, the evidence shall be excluded and shall not be used as a basis for determining the case. The Evidence Regulations place the investigation of the legality of the investigation first and foremost. When an evidence exclusion proceeding is initiated, the court must immediately begin an investigation, hold an evidentiary hearing, and decide whether to exclude illegal evidence. The procedural trial cuts off the substantive trial, and the trial on the defendant’s criminal liability is suspended. Only after a decision has been made on the legality of the investigation and on whether to exclude illegal evidence can the court return to the substantive issues of the case. In determining the legality of an investigation, the court conducts “a trial within a trial,” 20

Zhang Jun, Jiang Wei, Tian Wenchang. (2001). Criminal procedure: A conversation between prosecution, defense and court. Law Press, p. 168.

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which has independent objectives, procedures, and decisions. And such decisions on the legality of the investigation precede the substantive decisions and limit the scope of the evidence that the court then investigates. So the decision to exclude illegal evidence may impact the substantive trial. The “procedural review first” system places the investigation’s legality into a specialized procedural procedure, which provides procedural protections for implementing the exclusionary rule. However, as a relatively independent judicial review proceeding, the procedural trial may delay the substantive trial and prolong the completion of cases. The court has to start a procedural trial after the defendant files a motion to exclude illegal evidence, which may result in abuse of the defendant’s right to sue and affects the court process in cases where there is no basis for excluding evidence. For this reason, the new judicial interpretations separate the preliminary review from the formal trial. After the court’s preliminary review of the legality of the investigation, the formal procedural trial is initiated only in those cases that meet the requirements. Otherwise, the court may deny the defense’s motion without halting the substantive trial of the case. This preliminary review is similar to the filing process in civil litigation. The defendant and the defender can provide clues or evidence concerning the personnel involved in the suspected illegal evidence collection, and the time, place, way and contents. Of course, the court can also initiate a review of the legality of the investigation on its initiative. The court can determine whether the evidence has been obtained illegally by examining the case file materials and questioning the defendant. After this preliminary review, the court may initiate formal procedural proceedings if it doubts the legality of the collection process.21 In terms of the litigation structure, there are opposing parties and neutral judges in the procedural trial on the legality of the investigation. Both parties may crossexamine and debate the legitimacy of the collection process. In cases where the legality of the investigation is under dispute, the public prosecutor may request the court to call the investigator and witnesses with knowledge of the case to testify in court. In particular, in cases where the defendant applies for the exclusion of the defendant’s confession, the court may notify the persons present during the interrogation, witnesses or interrogators to testify in court and allow the defendant to cross-examine these persons in court. In addition, a defendant’s confession cannot be used as a basis for determining a case if the inquiry transcripts have not been checked and signed (stamped) or fingerprinted by the defendant. According to the “Provisions on Excluding Illegal Evidence,” the court may, if necessary, adjourn the case’s hearing to make investigations to verify the evidence. The court may notify the prosecutor and the defender to participate in the investigation if necessary.

21

Zhang Jun, ed. (2010). Understanding and applying the rules of criminal evidence. Law Press, p. 320.

13.5 Allocation of the Burden of Proof

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13.5 Allocation of the Burden of Proof The allocation of the burden of proof in applying the exclusionary rule is highly controversial. The discussion of this issue in Chinese jurisprudence and judicial circles has centered on excluding involuntary confessions. It is generally accepted in legal circles that if the defendant applied to exclude illegal confessions, the court should place the burden on the prosecution to prove the legality of the investigator’s pretrial interrogation, that is, the burden of “denying the confession has been obtained by illegal means such as torture”. Moreover, such proof must meet the highest standard of “facts are clear, evidence is solid and sufficient”. Otherwise, the court should exclude the defendant’s confession. Some people in judicial practice believe that the rule of “whoever claims, whoever proves” should be applied to the exclusion of confessions; that is, the defendant who applies for the exclusion of confessions bears the burden of proof, and if the defendant does not provide evidence or cannot prove that the confession has been obtained by illegal means such as torture, the court should reject the application for exclusion of evidence.22 In the doctrine of evidence law, there is no accepted view on allocating the burden of proof regarding the exclusion of illegal evidence. Civil law countries have established an ex officio litigation structure for both substantive trial and procedural trial, emphasizing the leading role of judges in investigating the illegal evidence obtained by investigators. The prosecution and defense play a supporting or subordinate role in proving illegal evidence. The party filing a motion to exclude evidence bears at most the formal burden of proof, while the actual burden of proof rests with the judge. In Germany, for example, a judge must exclude an illegally obtained defendant’s confession if the investigator violates the prohibitions of the Code of Criminal Procedure. The court should exclude it even if the defendant does not object and even agrees to the admission of the evidence.23 In Italy, evidence obtained by investigators in violation of the law’s prohibitions may not be used. The defendant and other interested parties may apply to the court to exclude illegal evidence, and the court may exclude illegal evidence on its initiative.24 The Anglo-American law of evidence has established more systematic rules for allocating the burden of proof. The basic principle is that the prosecution bears the burden of proving the voluntariness of the defendant’s out-of-court confession. In contrast, the defendant bears the burden of proof for evidence other than the defendant’s confession. In the UK, for example, in the case of mandatory exclusion, the burden is on the prosecuting attorney to prove the legality of the investigation, that is, to prove that the investigators have not used illegal means such as coercion to obtain 22

Zhang Jun, Jiang Wei, Tian Wenchang. (2001). Criminal procedure: A conversation between prosecution, defense and court. Law Press, p. 168; Chen Ruihua. (2017). The theory of procedural sanction. China Legal Publishing House, p. 254. 23 Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 184. 24 Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 212.

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the defendant’s confession. For this, the prosecution’s proof must meet the highest standard of proof beyond a reasonable doubt. Otherwise, the judge can exclude the confession. However, in the case of discretionary exclusion, The court will only make a ruling to exclude illegal evidence if the defendant applying to exclude it proves that certain illegal evidence, if admitted by the judge, would result in an injustice to the proceedings. Otherwise, the judge will confirm the admissibility of the evidence.25 In the United States, if a defendant files a motion to exclude evidence because a confession is involuntary, the prosecution bears the burden of proving that the confession is voluntary. The defendant bears the burden of proof for searches and seizures approved by the judge, if he or she believes that the police took the evidence illegally. In contrast, for warrantless searches, the prosecution bears the burden of proving that the search or seizure is lawful. And, the prosecution’s proof usually must only meet the standard of proof of preponderance of probability.26 The two new judicial interpretations have established unique rules for allocating the burden of proof, drawing on Anglo-American evidence law as a foundation. They provide different rules for allocating the burden of proof for different types of illegal evidence. First, for the written statements of witnesses and victims who do not appear in court, both the prosecution and defense can object to the legality of their evidence. Still, the burden of proof is on the “party that presents evidence”—that is, the party that supports the admission of the evidence. For example, for written testimony presented by the prosecution, the prosecution bears the burden of proving that the testimony is legal if the defense challenges the legality of the evidence and asks the court to exclude it. In the case of written testimony presented by the defense, if the prosecution challenges the legitimacy of the evidence, the defense should also bear the burden of proving the testimony’s legality. Obviously, on the legality of written testimony and victim statements, the new judicial interpretations do not adopt the principle of “whoever claims, whoever proves” in the Anglo-American law of evidence; that is, they do not place the burden of proof on the party applying for the exclusion of illegal evidence. If a party challenges the legality of evidence, the burden of proof is on the party who obtains and presents that evidence, which is an innovation in the system. Second, for physical and documentary evidence obtained by investigators in violation of legal procedures, the burden of proof is shared by the party applying for exclusion and the party collecting the evidence. Specifically, if the defendant challenges the legality of the physical evidence or documentary evidence, he or she must prove that the evidence is “collected in violation of law”, and that the admission of the evidence “may affect the fairness of the trial”. Given the defense’s weak investigative and evidentiary capacity, the defense’s proof should only meet the standard of a 25

John Sprack, Christopher J Emmins. (2010). Emmins on criminal procedure (8th edition), pp. 184–185; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 47. 26 Wayne R. LaFave, Jerold H. Israel. (1992). Criminal Procedure. West Publishing Co., pp. 504– 506; Chen Ruihua. (2010). Comparative criminal procedure law. People’s University of China Press, p. 126.

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preponderance of probability. After that, the burden of proof shifts to the prosecution. The prosecution then bears the burden of proof, that is, to present evidence to prove that the investigator’s collection of physical and documentary evidence does not “obviously violate the law”, and the admission of this evidence does not “affect the fairness of the trial”. Such proof must meet the standard of “facts are clear, evidence is solid and sufficient”. The court may deny the defense’s motion and admit the evidence if, upon review, it confirms that the prosecution’s proof meets the statutory standard. Suppose the prosecution does not provide any evidence, or cannot prove that the investigator does not violate the law, and cannot prove that the admission of the evidence will not affect the impartiality of the court trial. In that case, the court can not exclude the evidence, but should order the prosecution to correct the error. “Correction” means the prosecution re-collects the physical and documentary evidence, re-makes the transcript, or provides a reasonable explanation to correct the procedural defects. This correction is to bear the burden of proof, that is, to prove that the procedural defect has been corrected and that the evidence need not be excluded. Again, the two evidentiary rules establish a “two-step rule for the allocation of the burden of proof” for statements obtained by investigators. This rule is based on separating the preliminary review from the formal adjudication. During the preliminary review, the judge decides whether to accept the defense’s application to exclude illegal evidence, which is the issue of starting a procedural trial. The defendant or the defender shall provide clues or evidence concerning the personnel involved in the suspected illegal evidence collection, and the time, place, way and contents. In other words, the defendant bears the burden of proof to convince the court to accept the application. Suppose the defense does not present evidence or clues and the court does not doubt the legality of the defendant’s confession. In that case, the court may reject the defense’s motion and not only not exclude the evidence, but not even initiate a procedural trial. The main reason why the judicial interpretations put the preliminary burden of proof on the defendant is to prevent baseless exclusion applications, unnecessary delay in litigation and waste of judicial resources. The rules also aim to guide the defendants to investigate and collect evidence to effectively exercise their rights and thus convince the court to exclude illegal evidence. Of course, to avoid unfair treatment of the defense, the judicial interpretations establish a lower standard of proof. Specifically, if the defense provides evidence or clues that raise “doubts” about the legality of the defendant’s confession, the court should hold a hearing on excluding illegal evidence. If the legality of the defendant’s confession is in doubt, the court should initiate a formal procedural trial, a hearing on the exclusion of illegal evidence. This process is marked by the court placing the burden on the prosecution to prove that the defendant’s confession is lawfully obtained. If the prosecution does not provide evidence, or if the evidence presented is not solid and sufficient, the court will exclude the confession. This indicates that, for the proof of the legality of the defendant’s confession, the new judicial interpretations have established a rule of conditional “reversal of the burden of proof”, that is, only after the defendant has fulfilled the initial burden of proof and the court has initiated a procedural trial, the prosecution bears the burden of proving the legality of the evidence. And, the prosecution’s proof must meet the

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standard of “clear facts and solid and sufficient evidence”, which is the highest standard of proof in our criminal procedure. If the prosecution does not or cannot bear the burden of proof or fails to meet the standard of proof, the court must exclude the illegal evidence. According to the “Provisions on Excluding Illegal Evidence”, the main way for the prosecution to bear the burden of proof is to provide evidentiary materials and notify relevant persons to testify in court. First, to prove the legality of the investigation, the prosecution should provide the court with two kinds of evidence: one is the transcript of the interrogation made by the investigator, and the other is the original audio and video recordings of the interrogation. The transcript of the interrogation made by the investigator refers to the completed interrogation transcripts made by the investigator, including the transcripts of the guilty confessions and the transcripts of the not guilty pleas. The transcripts should be reviewed by the defense and, if necessary, read out in court. The original audio and video recordings of the interrogation include the complete audio and video recording of the pre-trial interrogation made by the investigator, which the court may play in court. By submitting these two types of evidence, the prosecution shows the court the entire interrogation process to prove that the confession is not obtained through illegal methods such as torture. Because of this, the interrogation transcripts and audio and video recordings submitted to the court by the prosecution should be complete, unedited, and original. To prove the legality of the interrogation, the prosecution can make a motion to the court for subpoenaing three types of people to testify in court: other people present at the scene of interrogation, other witnesses, and the interrogators. The “other person present at the interrogation scene” refers to participants in interrogation other than the interrogators, such as those responsible for audio and video recording, and those in charge of the interrogation site. The “other witnesses” primarily refer to the inmates in the same prison as the defendant. The “interrogators” are the investigators responsible for interrogating the defendant, who participate in the entire interrogation process and keep transcripts and sometimes make audio and video recordings. The system of investigators’ testifying in court is another major institutional innovation of the new judicial interpretations. The refusal of investigators to testify in court had been a severe problem in China’s criminal justice system. Neither the Criminal Procedure Law nor the judicial interpretations had addressed this issue. As a result, the court either refused to accept the defendant’s application or ordered the public prosecutor to “investigate and verify” when the defendant claimed that the investigation was illegal and applied to exclude illegal evidence. The prosecutor usually responded by submitting to the court a “statement of explanation” drafted by the investigative authorities, based on which the court rejected the defendant’s application to exclude illegal evidence.27 According to the “Provisions on Excluding Illegal Evidence”, if, after the prosecution has provided the interrogation transcripts and the original audio or visual recordings of the interrogation process, the suspicion of extracting a confession by torture still “cannot be cleared”, the public prosecutor shall make a motion to the court for subpoenaing the interrogators to appear in 27

Chen Ruihua. (2017). The theory of procedural sanction. China Legal Publishing House, p. 238.

13.6 Conclusion: Laws Alone Do Not Implement Themselves

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court as witnesses to prove the legality of the evidence collection process. Where the defendant petitions for subpoenaing an interrogator or other witnesses, the court may postpone the court proceedings if it deems necessary. The court initiates a procedural trial after the defense files a motion to exclude illegal evidence, which means that the legality of the investigation becomes the object of the trial. The investigator becomes the “defendant in the procedural trial”. The investigator’s statement testifying in court is somewhat like those of the defendant in an administrative proceeding. Therefore, the investigators’ statements testifying in court are verbal evidence about the investigation process and its legality. Unlike traditional witness testimony, investigator testimony addresses the investigative process, not the crime or the sentencing issue. To a certain extent, the investigator states a “procedural issue”. The investigators testifying in court is very important for implementing the exclusionary rule. The court cannot review the legality of the investigation if the investigator does not testify in court. Suppose the investigator does not testify in court. In that case, the written “statement” provided by him cannot be cross-examined, and the court cannot determine the truth or falsity of the statement. It is difficult for the court to make a correct decision on the legality of the investigation based only on the challenges of the defense and the “statement” of the prosecution. The presence of investigators in court is the institutional basis for the proper functioning of procedural trials. Investigators’ testifying in court is as essential to procedural trial as the presence of administrative officials in court is to administrative litigation.

13.6 Conclusion: Laws Alone Do Not Implement Themselves The above analysis has shown that at least at the level of “written legal rules,” China’s judicial interpretations have established a specific exclusionary rule with specific substantive regulations and systematic procedural regulations. The substantive rules include “mandatory exclusion,” “discretionary exclusion,” and “curable exclusion.” In contrast, the procedural rules include “procedural review first”, a preliminary review by the court, procedural trial, and reversal of the burden of proof. The life of a law does not lie in its enactment, but its effective implementation. It remains to be further investigated empirically whether these rules can be implemented, whether the reformers’ goals can be achieved, and whether they can solve the problems of torture, illegal evidence collection, turning the procedural trial into a formality, and investigators’ refusal to testify in court. The new exclusionary rule will encounter many difficulties since China has not had an exclusionary rule for a long time, and the implementation of the relevant provisions in 1998 was not satisfactory. The final part of this chapter reviews some problems the exclusionary rule faces in practice that we hope reformers will note.

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According to the two new evidentiary regulations, “mandatory exclusion” applies to illegal oral evidence and illegally obtained physical evidence, documentary evidence, expert opinions, and identification. But what is the scope of application of the “mandatory exclusion” as the most severe procedural sanction? What does “illegal oral evidence” mean as the object of “mandatory exclusion”? What exactly is “torture”, and how can we determine the meaning of “violence”, “threat” and other illegal means? Should the court exclude oral evidence obtained by investigators through “deception” or “inducement”… For these questions, neither the jurisprudence nor the judiciary has been seriously discussed. Neither of the two judicial interpretations has given a clear answer, which will sooner or later become a complex problem that criminal judges will have to face. In the two judicial interpretations, the “discretionary exclusion” mainly applies to physical and documentary evidence obtained by investigators violating legal procedures. But what factors should the court consider when deciding whether to exclude such illegal physical and documentary evidence? What level of the illegality of the investigation must be reached for the court to exclude the evidence? On what basis does the court determine that the admission of the evidence would “affect the fairness of the trial”? Does the discretionary exclusion lead to abuse of judges’ discretion …? These questions will gradually emerge in future judicial practice and become issues of dispute between the prosecution and the defense. They will also become questions that criminal judges will have to answer. Perhaps the most unfortunate result is that judges, based on multiple considerations, will turn “discretionary exclusion” into “discretionary non-exclusion” by interpreting the rules in bad faith. The “curable exclusion” is the most challenging rule to grasp in implementing the two evidence regulations. The “curable exclusion” rule applies to the defendant’s statement, written witness testimony, examination and inspection transcripts, identification, physical evidence, and documentary evidence. But are all the violations addressed by these rules “procedural defects”? Can the illegal investigation be “cured” by the investigator’s “correction”? And in the case that the prosecution can not make any “correction”, can the court ignore the “illegality” of the evidence and admit it as long as the investigators “explain” the illegal investigation? Suppose a large amount of illegal evidence is admitted after “correction”. Does this make the illegal investigation tolerated … These questions are not answered in the two judicial interpretations, and sooner or later the courts will face them. If there is no reasonable solution to these problems, the so-called “curable exclusion” may become a “curable non-exclusion”. No relief, no rights. In implementing the exclusionary rule, effective judicial remedy is an institutional issue that cannot be avoided. According to the “Provisions on Excluding Illegal Evidence”, if the court of the first instance refuses to review the defendant’s application to exclude illegal evidence and uses the evidence as a basis for its decision, the court of the second instance shall review the application. But is such review conducted by the second instance court a first instance review or an appellate review? Can the defendant file an appeal if it is a first instance review? If it is an appellate review, why do the judicial interpretations not establish a procedural appeal mechanism that allows the defense to appeal the procedural decision of the

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first instance? Moreover, if the court of the first instance unreasonably refuses to review the application for the exclusion of illegal evidence, why is this refusal not considered a “violation of legal procedures and affecting the fairness of the trial” under Article 191 of the Criminal Procedure Law, which allows the court of the second instance to make a ruling to rescind the original judgment and remand the case to the court which originally tried it for retrial? It is a test of the wisdom and will of judges whether they can review defendants’ applications to exclude evidence and initiate a procedural trial in good faith. Just as the enactment of the Administrative Procedure Law in 1989 marked the beginning of the judicial review of the legality of administrative acts, the 2010 “Provisions on Excluding Illegal Evidence” authorizes the courts for the first time to review the legality of investigations and to impose procedural sanctions against illegal investigations. This is a revolutionary development in the history of our judicial review system. But given that there are many difficulties in implementing the Administrative Procedure Law, will the judicial review mechanism in criminal proceedings do any better? In the author’s opinion, given the authority of the courts, the special status of the public security organs, the supervisory role of the procuratorates, and the values of criminal judges and the incentive system of the courts, “a case within a case” cannot avoid a series of difficulties. Supposing the exclusionary rule is successfully implemented at the legal level, our courts will also face a complex problem. Once the court excludes illegal evidence (such as critical oral evidence) and the prosecution’s case is thus weakened, will the court render a verdict of not guilty in such a case where the facts are unclear and the evidence is insufficient? Even if we put aside external intervention, public opinion pressure, the victim’s petition, the performance evaluation of judicial personnel and other factors, and only consider the judge’s values and legal thinking, for cases where there is sufficient evidence to prove the defendant’s guilt, will the judge acquit the defendant simply because the investigators have obtained the evidence illegally? As an ancient Chinese saying goes, “Laws alone do not implement themselves”. Now that the two evidence regulations are in effect, we should take their implementation seriously. Reformers should be aware of the difficulties in the implementation of the rules, should encourage courts to explore the system and create new ways for investigative authorities, prosecutorial authorities, defense and courts to cooperate. They must respond to the obstacles to implementation through countermeasures, rather than allowing laws and regulations to be ignored and the “unspoken rules” to take control. Since the promulgation of the two evidence regulations has been raised to the level of a major step in the reform of the national judicial system, the reformers should create a favorable institutional environment for the implementation of the rules by further reforming the judicial system at a time when the implementation of the two judicial interpretations is facing difficulties. Thus, the development of rules for excluding illegal evidence is only the first step in such judicial system reform. We look forward to a series of new judicial reforms coming one after another.

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Index

A A case in a case, 311 A case within a case, 16, 311, 321 A trial within a trial, 16, 311, 313 Action in personam, 87, 90, 95, 103 Action in rem, 85–95, 97, 99, 101–103, 116 Adversarial procedural justice, 143, 158, 167 Adversarial procedure, 25, 26, 67, 146, 165, 169, 174, 251 Adversarial system, 9, 30, 31, 67, 68, 106, 164, 165, 169 Adversarial trial model, 10, 30, 35, 37, 68, 122 Argue for a reduction in the seriousness of the charge, 6

B Beyond a reasonable doubt, 10, 13, 49, 89, 90, 217, 316

C Case file centrism, 43, 44, 54, 56, 67 Charge-statement-only doctrine, 10, 25, 26, 29–31 Choose the procedure, 225, 232, 281, 288 Choosing procedures, 237, 246 Civil compensation, 63, 70, 98, 99, 112, 134, 142, 143, 145, 149, 150, 153, 154, 160, 171, 181, 184–190, 194, 196, 198, 203, 204, 212–214, 218, 223, 231, 244, 250, 277–285, 287–299

Civil action priority over criminal action, 278, 284, 291, 293, 294, 296–300 Compliance incentive, 253, 262, 272, 273, 275 Compliance risks, 157, 265, 274 Compliance supervision, 258–261, 264–270, 272–274 Compliance-based non-prosecution, 156–158, 254, 255, 257, 259, 260, 262–270, 272–275 Conditional non-prosecution model, 255, 257, 258, 261, 264, 265, 275 Confrontational justice, 137, 138, 140, 141, 147, 152, 154, 157, 159–163, 165–171, 199–201, 203, 204, 220–222 Consult all case files, 7, 9, 10, 25, 27, 31, 33–35, 37, 39, 40 Consultative defense, 107 Consulting all case files, 36, 39 Conviction prosecution, 19, 20, 88 Conviction trial, 3–15, 18, 21, 23, 238, 239 Cooperative justice, 159–161, 164, 170–175, 177–182, 184, 199–204, 231 Court debate, 6, 9, 11–13, 18, 32, 58, 66, 85, 96, 97, 100, 101, 116, 281, 313 Court investigation, 6, 9–11, 13, 16–18, 27, 28, 43–45, 47, 48, 55, 56, 59, 66, 85, 96, 97, 100, 101, 116, 133, 155, 313 Crime control, 159, 162–165, 199, 203 Crime prevention, 156, 255, 259, 273, 274 Crime-penalty stipulated by law, 176, 182, 198, 249, 263 Criminal reconciliation, 99, 134, 135, 138, 141–145, 147–152, 154, 155, 158,

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2022 R. Chen, Models of Criminal Procedure System, https://doi.org/10.1007/978-981-19-3651-7

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328 161, 181, 186–191, 193–199, 203, 205–209, 211, 212, 214, 216, 217, 219–229, 231, 242, 250, 284, 294, 295 Criminal action priority over civil action, 278, 279, 283, 286, 287, 290, 291, 293, 297, 299 Curable exclusion, 308–310, 319, 320

D Decide before trial, 9, 66, 67 Deciding before trial, 26, 28–30, 36 Decriminalization, 218, 219, 221, 224, 226, 228, 263 Decriminalize, 210, 225 Decriminalized, 222, 228, 229, 264 Decriminalizing, 218 Defendant-victim, 207, 208 Designated defense, 108, 111, 118–120, 124, 236 Discretion, 3, 12, 19, 25, 52, 54, 55, 91–93, 103, 118, 139, 166, 172, 178, 182, 183, 189, 190, 226, 244, 248–251, 268, 297, 302–304, 307, 308, 320 Discretionary exclusion, 302–308, 310, 316, 319, 320 Due process, 85, 103, 116, 140, 146, 147, 159, 162–164, 167, 168, 199, 202, 204, 222 Duty lawyer, 107, 108, 118–121, 124, 144, 149, 232, 234–239, 244–248, 250, 251

E Effective defense, 40, 108, 120–124, 126, 247 Empty judgments (situations where judgments cannot be enforced), 99, 102, 277, 282, 283, 289, 291, 292, 294 Enterprise compliance programs, 157 Equality of arms, 138, 139, 154, 166, 167, 168, 201, 220 Ex officio, 9, 10, 25, 30, 165, 175, 176, 183, 315 Exclude illegal evidence, 16–18, 21–23, 49, 112, 126, 251, 302–304, 306–309, 311–318, 320 Excluding illegal evidence, 4, 8, 18, 20, 34, 79, 122, 302, 304, 311–314, 317, 318, 320, 321

Index Exclusion of illegal evidence, 4, 14–16, 18, 21, 124, 125, 127, 149, 155, 301–303, 305, 311, 312, 315, 316, 317, 321

F Fact relevance theory, 280 Fairness of the trial, 36, 78, 126, 133, 136, 138, 139, 153, 164, 239, 304, 316, 317, 321 fair trial, 8, 60, 136–138, 140, 146–148, 153, 154, 165, 167, 177, 201, 220 Family model, 159, 163, 164, 204 Fast-track sentencing procedure, 107, 119, 171, 235, 237–240, 242, 243, 250 File transfer system, 7, 10, 25–29, 31–41, 43, 48, 56 Flow-through production line, 162 Formal review, 29, 30, 34, 79, 134, 138, 141, 144 Fruit of the poisonous tree, 302, 308 Full coverage of criminal defense lawyers, 119, 121

H Hearsay evidence rule, 54, 55, 59, 160, 170 Human dignity, 77, 133, 139, 140, 146, 150–152, 166, 168, 170, 305

I Illegal evidence, 4, 5, 7, 8, 14–23, 34, 49, 79, 80, 112, 122, 124, 125–127, 149, 155, 251, 301–309, 311–321 In dubio pro reo, 74–76, 78, 82, 106, 138, 201, 284 Incidental action in rem, 95, 97, 103 Independent action in rem, 95, 103 Independent supervisors, 259–261, 270 Innocence defense, 4, 6, 7, 13, 20, 21, 27, 40, 135, 138, 142, 146, 153, 156, 164, 169–171, 177, 200, 202, 203, 218, 220, 242 Interested parties, 81, 86–88, 90, 91–98, 100–103, 143, 149, 150, 152, 153, 192, 193, 195, 243, 315 Internal conviction, 10, 13, 28, 38, 45, 56, 58

J Judicial mediation model, 207, 209

Index Judicial review, 36, 49, 50, 79–81, 93, 98, 102, 103, 126, 128, 139, 141–143, 178, 247, 248, 251, 286, 312, 314, 321

L Legal agents, 107, 108, 111, 112, 123 Legal aid, 106–108, 111, 118–122, 124, 129, 144, 148, 153, 168, 237, 247, 270 Legal remedy, 15, 125, 126, 220 Litigation costs, 66, 69, 70, 169, 203, 212, 216, 281 Litigation efficiency, 66, 71, 97, 143, 154, 162, 203, 215–217, 241, 248 Loyalty obligations, 107, 109–113, 121

M Mandatory designated defense, 118, 119, 124 Mandatory exclusion, 302–308, 310, 312, 315, 319, 320

N Negotiated justice, 134, 135–136, 141, 143, 145–147, 149, 151, 152–155, 157, 158, 173–175, 180, 182, 215, 221, 231, 232, 235, 248, 272, 273 Negotiated procedural justice, 135, 145–152, 154–158 No trial without complaint, 6, 197 Non-prosecution, 72–74, 142, 143, 155, 156–158, 160, 161, 186–188, 194, 197, 198, 206, 207–210, 216, 217, 219, 253, 254, 255–275, 278 Not to prosecute, 75, 156, 157, 171, 173, 174, 208, 256

P Peaceful judicial procedure, 209 People’s mediation committee model, 210 Performance evaluation, 69–74, 82, 321 Plea bargaining, 66, 146, 147, 160, 164, 169, 172–175, 177–184, 199, 212, 215, 217, 221, 227, 231, 232, 234, 235, 245, 250–252, 297 Post-trial consulting case files, 56, 58 Post-trial file transfer system, 26, 31–38, 40 Pragmatism, 199–201, 292 Prejudgment, 7, 25–28, 40, 55, 56, 168

329 Preponderance of probability, 89, 96, 97, 285, 316, 317 Presumption of innocence, 7, 10, 19, 55, 75, 76, 90, 138, 141, 146, 160, 161–162, 167–169, 183, 184, 198, 200–202, 204, 221, 222, 284 Pretrial file transfer system, 7, 10, 28, 33–37, 40, 43 Pretrial meeting procedure, 5 Principle of directness and verbalism, 8, 38, 54, 55, 57, 240 Principle of voluntariness of confessions, 54, 78 Private cooperation model, 135, 185, 191, 199, 204, 244, 272 Procedural centrism, 306 Procedural convenience theory, 280 Procedural defects, 3, 302, 305, 307, 308, 310, 311, 317, 320 Procedural departmentalism, 133, 143 Procedural instrumentalism, 133, 136, 149 Procedural justice, 21, 66, 92, 93, 102, 133, 134–141, 143, 145–158, 161, 167, 168, 198, 200–202, 204, 220, 240, 243, 244, 288, 300 Procedural liability, 64 Procedural review first, 15, 311, 314, 319 Procedural sanction, 4, 15, 21, 64, 65, 74, 78–80, 122, 125, 126, 134, 301, 305, 308, 311, 315, 318, 320, 321 Procedural trial, 4, 5, 14–23, 64, 65, 238, 239, 311–315, 317, 319, 321 Procedural violation, 49, 64, 78, 79, 81, 82, 126, 128, 301, 305, 309, 310 Procedure for confiscating illegal property, 87, 88, 93, 97 Procedure for recovering property involved in the case, 86, 91, 94–96, 98, 99, 101, 102 Procedure malfunctions, 61, 62, 64–66, 82, 83 Procuratorial suggestion model, 255, 256–257, 264, 265, 275 Prohibition against double jeopardy, 160 Public cooperation model, 134, 154, 173, 181, 184, 185, 199, 203, 207, 221, 223, 231 Public interest obligation, 107, 109, 111–113 Pure procedural justice, 146, 147, 243

330 R Reasonable doubt, 10, 13, 19, 49, 50, 89, 90, 217, 241, 248, 249, 285, 312, 316 Recognizance to admit guilt and accept punishment, 135, 141, 148, 151, 232, 235, 237, 246 Rescind the original judgment and remand the case to the court which originally tried it for retrial, 78 Restorative justice, 161, 165, 191–196, 203, 206, 211, 223, 224, 226, 284, 294, 295 Right to silence, 76, 160, 170, 220, 222, 251 Risk prevention and control, 125, 129

S Self-reconciliation model, 207 Sentencing defense, 13, 14, 19, 20, 21, 153 Sentencing incentive, 240, 241, 244 Sentencing negotiation, 124, 134, 141, 143, 144, 149–151, 154, 156, 233–235, 237, 238, 240–252 Sentencing prosecution, 19, 20, 88, 89 Sentencing suggestion, 3, 11, 12, 14, 19, 20, 21, 95, 96, 134, 141–144, 149, 154, 160, 176, 178, 183, 232, 234, 235–239, 241, 242, 244, 247, 248, 300 Sentencing trial, 3–7, 11–15, 18–20, 22, 23, 99, 238, 239 Separation of complex and simple criminal cases, 216 Separation of criminal and civil actions, 279, 286–291 Social governance, 129, 255, 256, 261, 262, 265, 266, 274, 275 Social harmony, 171, 188, 204, 206, 212, 214, 218, 219, 222, 227, 229, 278, 298 Special procedure for confiscation of property, 96, 101, 102 Standardization of sentencing reform, 3, 5, 9, 11, 12, 21 State prosecution, 19, 76, 81, 138, 161, 165, 166, 170, 175, 197, 204, 205, 220, 222, 225, 287 Substantive procedural justice, 243, 244 Substantive review, 27–30, 38, 49, 66, 134, 141, 250

Index Substantive trial, 4, 5, 9, 16, 18, 107, 134, 239, 311, 314, 315 Suiting punishment to crime, 144, 182, 249 Summary procedure, 4–8, 11, 13, 14, 18, 20, 21, 34, 56, 67, 119, 138, 148, 152, 169, 171, 172, 173, 177, 181, 216, 221, 231, 234, 239–241, 244, 247, 277 System of leniency for pleading guilty and accepting punishment, 118, 134, 144, 149, 150, 233

T Take fact as the basis and take law as the yardstick, 112 Testify in court, 7, 8, 14, 15–18, 23, 25, 34, 43, 48, 49, 52, 54, 55–57, 59, 68, 80, 125, 160, 225, 239, 314, 318, 319 Testifying in court, 10, 52, 55, 61, 122, 241, 300, 318, 319 The third party, 86, 89, 93, 100, 101, 103, 138, 139, 263, 281, 284 The highest degree of probability, 22, 89, 90, 96, 285 Theory of litigation subjects, 152 Theory of rational choice, 153 Torture, 46, 49, 76, 78, 115, 301, 304, 305–306, 315, 318, 319 Trial centralism, 93 Trial in absentia, 87, 91, 107, 118 Trial model reform, 7, 9, 10, 26, 27, 30, 36, 43, 67, 169, 170 Try cases in absentia, 284

U Utilitarianism philosophy, 154, 155, 158

V Voluntariness, 50, 54, 71, 76–78, 82, 115, 135, 141, 144, 148, 151, 156–158, 234–236, 239–240, 244, 247, 248, 315

W Warrant system, 81 Whole process defense, 108, 113, 117 Withdraw prosecution, 186, 217 Withdrawal of the prosecution, 75