China's Criminal Justice in Action: An Empirical Study

Abstract

This thesis encompasses a study, using empirical research methods, of China's criminal justice system in action with particular reference to its operation after the 1996 reform.

The criminal justice reform of 1996 was intended to revise criminal procedure law and declared to solve a number of problems within the existing procedure, such as 'prejudiced by first impressions' (xian ru wei zhu), 'non-separation between adjudication and prosecution' (kong shen bu Fen), and the function of the trial in advance of the function of prosecuting (shenpan yuewei). It was aimed at protecting the rights of the accused by changing the structure of the trial, giving substance to the accused's various rights, limiting the abuse of police power, addressing the supervision of the investigation stage by the prosecution, and distinguishing the roles of the participants in the trial etc. The reform comprised a single law, the Chinese Criminal Procedure Law (CPL). It introduced a number of Western principles of criminal justice into China, such as "judicial independence", "the presumption of innocence", "innocent until proved guilty", "the adversary trial" and "human rights of the accused".

In Western countries, there have been many empirical studies which have shown that there is a gap between the law in action and the written law. The question addressed here was: what is the situation in China after revising the CPL in 1996?

The objective of the research was to determine if criminal justice has changed by providing empirical data on how the system operates. The data were obtained from field studies of the three main stages of the criminal procedure: investigation, prosecution and trial stages. The research started in 2002 with the field work being undertaken from April 2003 to August 2004, and carried out at two courts of different levels in one of the municipalities directly under the Central Government of China. At that time, there was no systematic empirical study of the entire operation of the criminal procedure (investigation to trial stage) following the 1996 revised CPL. The current research tried to fill in the blanks. The challenges were how to scientifically collect empirical data using multi-methodologies, how to gain access to the field sites, and how to objectively analyze the data.

The results of the study show that there is a considerable gap between the revised law as written and the law in action. The way in which the criminal procedure operates does not show substantive change from its operation prior to 1996. The present research demonstrates that the criminal procedure still functions by a combination of the investigating police, the prosecution and the courts cooperating together to process the accused to accept punishment.

It is hoped that the research will have an impact by providing data that contribute to an empirical picture of the operation of the criminal procedure and highlight problems that remain in the implementation of the 1996 revised CPL. It should point the way to future reform of criminal justice in China, provide empirical data for the literature that offer avenues for further research, and have value for those who develop training programs for China's judicial personnel.

Date of Award	25 Jun 2011
Original language	English
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor)