Comparative Criminal Law and Enforcement: China

Two major developments in ensuring police accountability are the restriction of police power to detain and arrest and the development of judicial review on police administrative decisions.

Abolishing Shelter for Examination. Chinese criminal law is characterized by the use of extralegal measures in the criminal process, effectively sidelining procedural requirements and accountability. Where legal procedure is deemed to be adversely affecting crime control, extralegal processes will be created. When the CPL was enacted in 1979, it created certain procedural requirements for detention and arrest. But the procedures were regarded as having rendered law enforcement impossible and even contributing to the increase in crime. As a result, the police used an extralegal measure, called Shelter for Examination, effectively bypassing the procedural limits on detention and arrest.

Under Shelter for Examination, the police were able to shelter a suspect for examination for a period of not more than three months for those suspected of committing an act falling within a specific category of crime in accordance with the MPS internal rules. It was estimated that the police held in custody the vast majority (more than 80%) of the accused without regard to the criminal procedure requirements. Moreover, the Shelter for Examination was itself abused by the police, who had not only used it to detain persons indefinitely, but also extended it to detain all types of criminal suspects.

Since 1996, the police have stopped using Shelter for Examination in lieu of detention and arrest. The abolition is, however, partial. Certain elements of the Shelter for Examination have been legalized and merged into the formal criminal process. In that sense, it can be argued that the police will be able to do legally what they were doing illegally. The law, to a certain extent, has legalized what it intended to abolish.

The rule of law and judicial scrutiny of police power. Law and legality have become increasingly relevant for the police since the late 1970s. The recurring emphasis on "socialist legality" is expected to alleviate the crisis faced by the party and justify its continuing rule during the post-Mao period. The elementary requirement of socialist legality is that police power has to be derived from law and is exercised through properly defined legal procedures. Since 1979, police powers have been increasingly given a legislative basis and incorporated into the legal process. While there is a very large gap between the formal law and police practice, legalization has provided a mechanism to highlight police abuse of powers and made the exercise of police power more public and visible.

One of the most important legal developments is to subject certain acts of the government to limited judicial review. As a result, the wide range of police administrative powers is now subject to review by the courts. Judicial review of police decisions has passed down a tortuous road in China since its authorization by the NPC Standing Committee in 1986. The initial police reaction was hostile. The police were concerned that judicial review would promote judicial authority, destabilizing the balance of power between the police and the court. More importantly, if a court found a police decision unlawful and invalid, it would damage the image and status of the police. By the time the NPC enacted the Administrative Litigation Law in 1989, the power of a court to review police administrative decisions was widely recognized and reluctantly accepted by the police.

Judicial review has made important contributions in controlling police behavior by imposing administrative penalties and ensuring the legality of police work. The courts have overruled or changed a significant percentage of police decisions in judicial review cases. The external supervision by the court also forces the police to strengthen its internal review and quality control. One major limitation of judicial review is that it is restricted to reviewing the legality of a concrete administrative act (i.e., the application of laws and regulations); the courts cannot review the lawfulness of an abstract administrative act (i.e., the laws and regulations themselves).