Filing of Criminal Cases as Social Control in Contemporary China: An Empirical Test of Donald Black’s “The Behavior of Law”

通過刑事立案的社會控制:基於“法律行爲”理論的實證檢驗

Student thesis: Doctoral Thesis

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Award date11 Sep 2020

Abstract

Compared with informal control mechanisms heavily relied upon in pre-reform China, the law is increasingly important as a governmental social control, as evidenced by the filing of criminal cases that distinguish between crimes and non-crimes in post-reform China. As a gatekeeper in the criminal justice system, the filing of criminal cases starts a criminal investigation and ultimately determines the criminal case’s outcome. Chinese scholars explore the filing of criminal cases mainly via the science of law, without theoretical guidance or scientific research methods. They summarize four functions of cases filings: protecting citizens’ lawful rights and interests, filtering cases, punishing criminals, and recording crime. The legal and extralegal factors that influence decision-making in the filing of criminal cases are unknown. This study aims to fill this gap and explore these factors by applying Donald Black’s theory of the behavior of law. Black regards law as quantifiable and posits that the behavior of law can be predicted via five dimensions in social life: stratification (vertical aspect of social life), morphology (horizontal), culture (symbolic), organization (corporate), and social control (normative). In Black’s view, the social structural positions of actors— as opposed to individual behavior— influences the behavior of law.

This study used a mixed-methods strategy, including a survey, participation observations, and in-depth interviews, in an industrial city in Northern China. The survey was based on 1,175 cases (859 filing of criminal cases and 316 criminal cases that were not filed) recorded by police officers in a public security sub-bureau. The qualitative methods in-depth interviews and participant observations elucidated findings generated by the survey. The in-depth interviews with 26 informants helped explain the effects of posited factors on the filing of criminal cases and further explicated the puzzling findings from statistical analyses. Furthermore, the researcher observed the dynamic process of formally filing a reported case as a criminal case and how various stakeholders (police officers, offenders, and victims) participate in the decision-making process of filing of criminal cases.

The main findings are threefold based on quantitative and qualitative data. First, three structural functions of filing criminal cases are summarized: a routinized response to crimes, a declaration, and a wrestling ground for disputes. These three functions challenge the four claimed functions identified in Chinese literature. Second, the current study provides empirical evidence for culturally generalizing Black’s theory and provides balanced feedback, both positive and negative, to Black’s behavior of law theory. Thus, this study helps refine the theory. Third, this study sheds light on the social control apparatus in contemporary China through the prism of filing of criminal cases across three types of crimes. For example, alternative social control mechanisms, such as mediation, instead of filing of criminal cases are the police’s first choice to respond to crimes. Finally, this study’s empirical findings suggest some policy implications for law enforcement agencies about how to respond to increasing crime in the reform era. First, the police’s law- enforcement activities should be regularized via standardization and procuratorate supervision. Second, the role of restorative justice should be brought into play fully for filing of criminal cases. Finally, more human and material support should be given to the police in order for them to establish a positive image, for fighting crime and winning the public’s trust.