An empirical study of criminal procedure in the People's Republic of China

中國刑事程序實證研究

Student thesis: Doctoral Thesis

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Author(s)

  • Xin FU

Related Research Unit(s)

Detail(s)

Awarding Institution
Supervisors/Advisors
Award date15 Feb 2006

Abstract

Since the 1990s, China has introduced a series of laws envisaged to improve the operation of its legal and administrative systems. One of the most important reforms was the revision of the Criminal Law and the Criminal Procedure Law in 1996 and 1997 respectively. The 1996 Criminal Procedure Law represented a radical departure from the system it replaced, in particular because it sought to introduce an adversarial element into a legal system traditionally guided by civil law traditions. For example, the new law abolished the discretionary power of the police to detain criminal suspects under their administrative powers and made pre-trial detention subject to law; the police powers of arrest, search and questioning of suspects became subject to tighter prosecution control; accused persons were given the right to be represented by a lawyer at the investigation stage; the role of the prosecutor and defence lawyers at trial were expanded; the law introduced, at least by implication, the principle of a presumption of innocence; the power of the collegial panel was strengthened; and the judge’s role was more neutral. Shortly after the implementation of the Criminal Procedure Law, however, new problems appeared and there were suggestions for further amendment and improvement of the law. Before any such revision, however, it is necessary to identify the true nature and underlying sources of the problems which identify and explain the gap between the law in the books and the law in action. This can only be achieved by systematic research and analysis and it is to this objective that the present thesis is dedicated. The thesis comprises eight chapters. Chapter One is an overall introduction to the background of the research, including the purpose and objectives of the research, and the scope, methodology and structure of the thesis. Chapter Two reviews Chinese criminal justice from an historical perspective in order to help readers better understand current criminal procedure law in China. Chapter Three discusses the practice and provision of Criminal procedure in China in terms of pre-trial proceedings; trial proceedings; and post-trial proceedings including possible remedies. Research methodology is set out in Chapter Four. It outlines the objectives of the research, discusses the advantages and disadvantages of research methods, describes the process of preparation for the fieldwork, designing research schedules, the way of getting access to the fieldwork and familiarization with the working environment, the problems encountered in the fieldwork and how they were addressed. Chapter Five presents the findings of the research from analysis of actual case files. The first section describes what the case file folders look like in the Chinese Criminal Procedure system. The second section discusses general information of the cases, such as number and type of the charges, basic information on the offenders’ educational level, residence, occupation and employment status. The third section examines a number of issues according to the criminal process—filing a case, investigation, review and prosecution, trial and judgment and appeal. Chapter Six introduces the findings of interviews with the personnel within criminal justice system of China. It reports the relationship between criminal justice personnel and identifies the problems encountered by judges, prosecutors and lawyers in the criminal process and the reforms or improvement they would like to see introduced into The findings of courtroom trial observations are discussed in Chapter Seven. Part one depicts the courtroom setting and the parties in the court trial, in order to give the reader a picture of criminal trials in China. Part two is a review of the criminal trial process in action. Parts Three and Four examine evidence issues, and analyze the judgments available. The remaining part describes the roles of judges, prosecutor, defenders, the defendant and the plaintiff in civil actions and the observation of their performance. Chapter Eight is a concluding statement of the research findings. It analyzes the values of criminal justice in China, identifies the problems discovered by case file analysis, interview and courtroom observations and the need for further reform.

    Research areas

  • China, Criminal procedure