Emerging judicial autonomy and procedural due process in the PRC? An empirical study of China’s exclusionary rule

Research output: Journal Publications and Reviews (RGC: 21, 22, 62)21_Publication in refereed journalpeer-review

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Detail(s)

Original languageEnglish
Pages (from-to)380–411
Journal / PublicationAsia Pacific Law Review
Volume28
Issue number2
Online published29 Sept 2021
Publication statusPublished - 2021

Abstract

Drawing upon a quantitative empirical analysis spanning ten years of judicial decisions, this paper assesses the implementation of an exclusionary rule in the People’s Republic of China (PRC). It tests the effectiveness of the relevant articles of the Chinese Criminal Procedure Amendment of 2012 (providing for exclusion of illegally obtained evidence). It considers 1,558 trial court decisions, appeals, and remands concerning the nascent exclusionary rule, compared to exclusion practices prior to the amendment’s enactment. It considers trends in use, types of cases, types of remedies afforded, and the basis for exclusion. The data disclose that the initial negative assumptions of many scholars and stakeholders were largely groundless, as this cause of action has become commonly used, resulting in significant numbers of retrials, reversals, and partial reversals. This paper also draws upon a literature search of Chinese law scholars to develop a set of rational categories for assessing early pessimism over the legislation’s viability. Principally, this consists of four core legal objections: exclusion conflicts with the PRC’s absence of rights against self-incrimination; lack of constitutionally mandated exclusionary protections; generic lack of judicial autonomy; and the lack of legal counsel. The empirical data offer a clear picture that these factors have failed to meaningfully impede the operation and functioning of the Chinese Criminal Procedure Amendment, and perhaps surprisingly, after more than six years, exclusion is now an intrinsic part of the PRC criminal justice landscape. This paper concludes that, despite reversals of liberal policies within political bodies of the PRC, what emerges in the judiciary is an otherwise counterintuitive growth of judicial autonomy, professionalism, and deference to procedural due process.

Research Area(s)

  • Chinese Criminal Procedure Amendment, exclusionary rule, judicial autonomy

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Full text of this publication does not contain sufficient affiliation information. With consent from the author(s) concerned, the Research Unit(s) information for this record is based on the existing academic department affiliation of the author(s).