內地法院無罪判決難問題研究 ——以刑事訴訟構造為視角的分析

Abstract

The acquittal rate has been in recent years a general research interest of law circles and social public both at home and abroad. As an important index to measure complexity of making a verdict of not guilty, the acquittal rate can, to a large extent, reflect the overall status of a country’s criminal justice. The recent two decades have witnessed a continuous drop in the acquittal rate of courts in Mainland China. In 2001, the acquittal rate was 0.89%, which was even lower than 1%. In 2014, it reached a record low, being 0.066% only (0.66% for public-prosecuting cases). In some parts of Mainland China, the zero-acquittal-rate remains even for years. Compared with others of the world, the acquittal rate in courts of Mainland China is by no means one the lowest. Of special note is that, apart from a low acquittal rate in courts of Mainland China, cases in which people are unjustly, falsely or wrongly charged coexist. One explanation holds that the low acquittal rate is resulted from efficient and precise operation of criminal justice in Mainland China. Before being brought to the court, a case is usually handled by the public security organs, procuratorial organs and people’s courts and prosecuting organs first. This effectively prevents unqualified cases from being trialed by the court. If the above explanation is tenable, why does the “precise justice” mechanism fail to give a verdict of not guilty to the wrongly-charged cases? Is it that the low acquittal rate and the frequency of wrongly-charged cases indicate some defects with the current criminal justice mechanism of Mainland China? If yes, what are causes of the above phenomenon? In order to answer the above questions, this research is performed. On the surface, these questions are just a small part of criminal proceedings research, but they have a close bearing on many concepts, basic concepts, proceedings principles and rules in criminal proceedings and justice systems. Therefore, it is of vital academic significance to examine the above questions.

Compared with issues such as “the system of imposing lenient punishments on those confessing to their crimes and accepting punishment”, “trial centralism”, “reform of the judicial system” and “reform of the supervision system”, acquittal has not yet been much investigated. Through literature review and empirical observation, research findings of acquittal can be divided into the following types according to the research object and content. The first type is presented as a theoretical research into the nature, effect, and jurisprudential basis of acquittal. Under this type of research, most scholars are interested in exploring acquittal for lack of evidence stipulated in the Criminal Procedure Law of the People’s Republic of China. The second type is devoted to analyzing and examining the difficulty of acquittal (namely a low acquittal rate) and its causes from the perspective of inadequate restrictions imposed by public security organs, procuratorial organs and people’s courts, evidence standards, performance assessment, influence of public opinions, etc. This type of research also proposes corresponding countermeasures at the end. The third type conducts case analysis or empirical analysis of some cases acquitted of criminal charges, and focuses on studying reasons behind the low acquittal rate in Mainland China. Besides, a few scholars and judges have carried out a systematic theoretical research into acquittal, and proposed the theoretical path to build the acquittal mechanism for Mainland China.

As a kind of refereeing form, the judgment of innocence has its legitimacy basis. Crime is a fact that has happened, and the limited fact of human discovery ability and the limitation of Criminal procedure mechanism such as time, means and mode inevitably lead to the fact that the facts of the case as the object of cognition can not be discovered inevitably. And when the case is in doubt, in order to balance the interests of the conflict, the court needs to make a verdict of not guilty. Moreover, even if the investigative organs and procuratorial organs may directly make the decision not to deal with the innocence, but based on the law of litigation cognition, as well as the independence and authority of the judicial decision, the court may well overturn the charges of the investigating organs and procuratorial organs and make a verdict of innocence. It is precisely because of the above reasons, in the practice of criminal Procedure operation in various countries in the world, there are a considerable proportion of acquittals. By contrast, the low rate of acquittal in the Mainland and the recent occurrence of wrongs suggest that there may be some structural defects in the criminal procedure mechanism in the Mainland. On the face of it, the reason for the low rate of acquittal in the mainland is that the investigating authorities and procuratorial organs will make decisions on the treatment of innocence at the investigation stage and at the stage of examination and prosecution. However, the huge gap between the number of acquittals in the mainland and other decisions on the handling of innocence has reflected the special place in the structure of criminal proceedings in the Mainland.

This paper analyzes and comments causes behind the low acquittal rate among Chinese mainland courts from the perspective of the criminal proceedings structure. Meanwhile, the judicial practice status (namely “hidden acquittal”) is combined at an attempt to create an optimal reasonable thinking platform for the relationship between the proceedings structure and acquittal. Chinese mainland criminal proceedings theoretical research circles started to study the proceedings structure from the 1980s. Following introduction of the research category, the Chinese mainland criminal proceedings law was freed from the research scope of glossators, making development of a series of creative ideas, including the linear structure and triangular structure, assembly structure and “trial-centered structure”, “horizontal structure and vertical structure”, possible. All these ideas have provided solid theoretical support for criminal proceedings practice, law reform and law transplantation in Mainland China.

Based on a thorough literature review and the judicial phenomenon of a low acquittal and frequent wrongly-judged cases in Mainland China, this paper comes up with the research focus—relationship between the criminal proceedings structure and the distribution of judicial power. In 2014, the Fourth Plenary Session of the 18th CPC Central Committee underpinned “trial centralism” as the proceedings system reform direction, and that realization of trial centralism relies on the criminal proceedings structure and the judicial system. After that, more research attention has been paid to the relationship and existence of public security organs, procuratorial organs and people’s courts. Therefore, more efforts should be made to explore “which proceedings functions are confused and centralized” in criminal proceedings, constitutional relationship among public security organs, procuratorial organs and people’s courts (labor distribution, cooperation, mutual restriction), etc. For example, Constitution and Organic Law of the People’s Procuratorates of the People’s Republic of China both establish the law supervision role of procuratorial organs, according to which procuratorial organs have the right to supervise court trials. The judicial power of procuratorial organs is not only important, but even slightly higher than the trial right exercised by courts. The procuratorial organs, while keeping legal supervision and criminal prosecution—two powers which are opposite to each other—to themselves, cannot ensure neutrality and detachment required by fair legal supervision. Therefore, this paper holds that the mutual influence between the power distribution of public security organs, procuratorial organs and people’s courts and the proceedings structure has directly restricted the acquittal rate from rising. At the same time, compared with “trial centralism” proposed by some scholars, the areas concerned by “trial-centered” proceedings system reform are much narrower. As a result, the “trial-centered” proceedings system reform is evolved into the technical reform with substantiation of court trial at the core. Hence, this paper regards value positioning of reform in the “trial-centered” policy discourse system as basically instrumental. In other words, reform can contribute to discovery of substantive truth and prevention of misjudged criminal cases. The technical trial centralism cannot adjust the existing criminal proceedings structure, notably the vertical structure of criminal proceedings. This has impeded it from coping with the low acquittal rate in Mainland China. As a proposition about the proceedings structure, trial centralism advocates a three-dimensional reform plan for criminal proceedings, which covers the content of different layers. Directly targeting at the structure of criminal proceedings, trial centralism pursues an overall and macroscopic reform of the structure of criminal proceedings. As to the vision of structural reform, the reform can reach the criminal proceedings on the microscopic dimension and the judicial system reform on the macroscopic dimension. Only in this way can more positive effects be achieved in tackling the low acquittal rate and the difficulty facing the criminal proceedings system in Mainland China.

In writing this paper, the author adopts methods from law interpretation studies, value analysis method, comparative research, and case study. Besides, social sciences research methods extending “from experience to theory” are also employed. Experience is derived from problems occurring in judicial practice and developed into general theories. To be specific, the above research methods are mainly used in the following aspects. First, empirical facts are adopted as the basis of the whole paper, ensuring the paper to be objective and free from any interests and laying a solid foundation for empirical factors. Second, local phenomena are studied with relevant problems pointed out. It is found that there are lots of problems existing in the acquittal formation mechanism adopted by judicial practice in Mainland China. These problems provide favorable resources for the author to study problems confronting China’s development using the social sciences research methods. Based on all the above stated, the author adopts the research path of “from experience to theory”. To be specific, relevant theories both at home and abroad are used to explain empirical facts of China’s legislation and judicial practice. Due to the failure to seek a sensible explanation, the attempt is made to analyze and propose a theory with Chinese characteristics.

Apart from the introduction part, this paper is made up of seven chapters. The introduction part mainly expounds on the research background, literature review, research methods, and paper structure.

Chapter 1 focuses on analyzing basic issues concerning acquittal. Though acquittal is commonly-mentioned, its connotation and extension have not yet been clarified. Different scopes of law and contexts usually generate different definitions of acquittal. In order to clarify the argumentation focus of this paper, it is necessary to define and expound on the connotation and extension of acquittal. Besides, no case filing, case withdrawal, no prosecution, prosecution withdrawal and trial termination as well as termination of proceedings in Anglo-American Law are all methods to realize acquittal in criminal proceeding. Differences and similarities among them are essential to a correct interpretation of the acquittal phenomena in Chinese Mainland judicial practice.

Chapter 2 examines the bases for legitimacy of acquittal. In commenting the acquittal rate, particularly reaching the conclusion that Mainland China has a low acquittal rate, this chapter hiddenly recognizes one logic prerequisite, which thinks acquittal is legitimate and that a proper acquittal rate suggests a country’s criminal judicial mechanism operates normally. Then, what are the bases for legitimacy of acquittal? From the perspective of limitations of truth discovering capability, conflict and balance of interests, independence and authoritativeness of judicial jurisdiction, this chapter elaborates on the necessity and legitimacy of a proper acquittal rate.

Chapter 3 conducts an empirical research of acquittal among Chinese Mainland courts. Through data statistical analysis, seven characteristics demonstrated acquittal in Chinese Mainland courts in recent years are summarized. At the same time, cases withdrawn from prosecution or acquitted of criminal charges by an intermediate people’s court in recent five years are adopted as research samples. On that basis, the quantity of cases, causes behind case withdrawal and legal effects are investigated so as to reveal the relationship between prosecution withdrawal and acquittal. Moreover, this chapter chooses misjudged criminal cases as the research perspective. On the one hand, the judicial statistical information resources are gathered to explore institutional problems resulting in misjudged criminal cases. On the other hand, the current theoretical research findings are combined to seek innovation and breakthrough. The traditional investigation paths and methods for misjudged criminal cases are inherited. For example, the typical cases are analyzed combining case summary and individual case analysis. The questionnaire survey is conducted to further study problems leading to misjudged criminal cases in Mainland China at an attempt to find out causes of the small acquittal rate in Mainland China from the microscopic perspective. This is also one innovation of the research perspective for the issue of acquittal.

In Chapter 4, based on “hidden acquittal” in judicial practice, another cause of the low acquittal rate is descriptively analyzed. Due to existence of various acquittal processing mechanisms in judicial practice, this paper defines various acquittal mechanisms excluding acquittal in judicial practice as “hidden acquittal”, which mainly includes no case filing, prosecution withdrawal, no prosecution decision, and flexible verdict. In analyzing and concluding types and functions of “hidden acquittal”, this chapter comes to the conclusion that these acquittal mechanisms all rely on coordination and compromise among public security organs, procuratorial organs and people’s courts, which is established against the backdrop of the special relationship among public security organs, procuratorial organs and people’s courts in Mainland China as well as inadequate law system. This is an issue that Chinese Mainland criminal proceedings reform cannot ignore. Next, it is inferred whether “hidden acquittal” in Mainland China is a Chinese-style “precision justice”. This chapter points out that “precision justice” is just one characteristic of “hidden acquittal”, meaning that it cannot cover the total connotation of “hidden acquittal”. As to the negative effect of “hidden acquittal”, this chapter holds that it violates the principles, rules and basic spirit of criminal proceedings, which is not beneficial to guarantee rights of defendants and might impede further development of criminal proceedings.

Chapter 5 mainly expounds on the relationship between the criminal proceeding structure and acquittal. To analyze acquittal from the perspective of the structure of criminal proceedings is the focus and innovation of this paper. To start with, the prosecution-defense-judge main content and relationship in the horizontal and vertical structure of criminal proceedings are analyzed. Next, the origin and definition of the “inverted triangle structure” are introduced to analyze the position of procurators in criminal proceedings. It is thought that position of procurators is at the core of the contradiction concerning subjects in criminal proceedings. Following that, the causes of the low acquittal rate are examined from the perspective of the defending party and the accusing party. It is pointed out that the “inverted triangle structure” with inequality between the defending party and the accusing party as the main feature is a main cause of the low acquittal rate in Mainland China. Finally, the relationship between the “assembly-like” vertical structure and acquittal is analyzed. The conclusion shows that imbalance of the power among public security organs, procuratorial organs and people’s courts and incompleteness of their performance assessment system are also partially attributable to the low acquittal rate.

Chapter 6 discusses the relationship between the standard of proof and acquittal. In recent years, the standard of proof remains a main dispute in the theoretical and practice circles. As false and erroneous cases keep popping up in judicial practice, legislators and judicial workers have all regarded the standard of criminal evidence as an initial attempt to cope with the above problem. In this chapter, the internal relationship between the standard of proof and acquittal is analyzed from three aspects. On that basis, the historical evolution process of the standard of proof for criminal cases in Mainland China is summarized, aiming at extracting the internal logic behind transformations of the standard of proof. Finally, the development path and trend of the standard of proof are concluded. The clarity and operability of the standard of proof are further certified. This can provide legal basis for acquittal for lack of evidence.

Chapter 7 deals with the rational return of acquittal based on the path of trial centralism. First, on the basis of analyzing and evaluating the “trial-centered” proceedings system reform in Mainland China, this chapter discusses the path to realize “trial centralism”, thinking that the “trial-centered” proceedings system reform has been evolved into the technical reform with court trial substantiation at the core. Second, it is proposed that countermeasures can be explored by adjusting the trial-centered technical reform to institutional reform, adjusting the substantiation of court trials via the horizontal structure of criminal proceedings, and reshaping of the vertical structure.

Date of Award	10 Jul 2019
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor)