Comparative Criminal Law and Enforcement: China

In response to the increasing attack on the lack of transparency in judicial decision-making and judicial corruption, the SPC has initiated a number of reforms, such as increasing the entry standard for judges, improving their judicial skills through training, and implementing public trial as required by law. However, the reforms are limited to the court itself, and do not affect their relations with external institutions. Importantly, they do not touch upon some of the fundamental aspects in relation to a fair trial.

Presumption of innocence. Chinese law is silent on the presumption of innocence and the burden of proof. Indeed, the concept itself was criticized as bourgeois. Since China's socialist legal system practiced the principle of "deciding a case according to facts," presumptions and any procedural rules were not allowed a place in the criminal law. In the rigorous pursuit of "truth," rules protecting the rights of the accused were often swept aside. The 1996 CPL amendment gives the court the exclusive authority to determine the guilt or innocence of an accused. Article 12 of the CPL provides that no one is guilty of a crime without a people's court rendering a judgment according to law. While the increasing authority of the court in the criminal process and trial reform in China may be the first step toward developing the presumption of innocence in China, the existing law provides no remedies on this principle.

The right to silence. Under Chinese law, a suspect has no right to remain silent. A suspect has the duty to answer questions truthfully when asked by investigators, but may refuse to answer questions that are irrelevant to the case (CPL, Art. 93). There is no penalty if the suspect refuses to answer and, moreover, there is no legal duty to assist the police under Chinese law. It is an offense only when a person knowingly gives false testimony in criminal proceedings, which is punishable by a maximum sentence of three years' imprisonment (CL, Art. 305). It is routine practice for police to administer physical punishment on suspects to obtain confessions.

The police and procuracy at local levels have been experimenting with pilot projects equivalent to the right to silence, often without the authorization of central authorities. In 2000, the procuracy in a small city in a northeastern province started, on a trial basis, utilizing a mechanism referred to as zero confession. It is intended to eliminate reliance upon confessions in criminal investigations and requires the investigators to search for other evidence. While the rules have received wide support from judges, lawyers, and academia in public debate, the central authority, that is, the SPP, has not given its blessings to the local invention.

Exclusion of evidence. Under the CPL, unlawfully obtained evidence is not excluded in court. Article 43 of the CPL prohibits extortion of confessions through threat, enticement, deceit, or other unlawful means, but there is no effective and sufficient remedy for breach of this rule, unless the circumstances are serious enough to amount to a criminal offense. Given the equal legal status of the police and the procuracy, there is little a court can do when facing allegations of torture by the police or by the procuracy. In practice, the standard court procedure is to do nothing except to declare the allegation of torture as unfounded.

The SPC, however, has attempted to exclude certain types of unlawfully obtained evidence, and issued rules in 1994 prohibiting the use of any statement obtained through unlawful means. When the CPL was amended in 1996, this exclusionary rule was not consolidated into the CPL. Nevertheless, the SPC restated its rules on the admissibility of unlawfully obtained statements in the 1998 SPC Interpretation, according to which statements of witnesses, victims, and the accused obtained through torture, threat, enticement, fraud, or other unlawful means should not be used as evidence in adjudicating a case (SPC Interpretation of the CPL, Art. 61).

Right to counsel. Defense counsel had little role in the criminal process before the 1996 CPL reform. First, political interference in criminal defense was frequent. As state legal workers, lawyers were bound to accept orders from the government in carrying out their defense. For example, lawyers were frequently admonished not to direct their mind to trivial matters and technicalities, and they were not allowed to raise not-guilty defenses without the prior approval of the government.

Second, judges' involvement in the pretrial investigation seriously diminished the role of defense counsel. After reading through the prosecution files and verifying the evidence, trial judges would necessarily have formed a prejudiced view on the case. They had difficulties accepting alternative views from the parties. A challenge to the charge was not so much a challenge to the prosecution's case as a direct attack on the court's credibility.

Third, the law did not allow any involvement of a defense counsel at the investigation and prosecution stages of a criminal case. In other words, a defense lawyer had no right to enter a police station and the prosecutor's office to obtain information or meet with and correspond with the accused. Practically, no legal representation was allowed until a week before the trial.

Legal reform since the mid 1990s has expanded the right to counsel. In the Lawyers Law 1996, the NPC Standing Committee changed the status of lawyers from state functionaries to members of a more autonomous All China Lawyers Association. The legislative change reflects the independent nature of the legal profession and reinforces the tendency of lawyers to become more independent. The importance of this change is that, despite the criticism against Chinese lawyers for their lack of ethics and competence, they have become independent from the state, economically, and to certain extent, politically.

There has been less political interference in lawyers' defense work in criminal trials during the 1990s, and the legal profession, essentially a private business, cannot be tightly controlled by the government. One indication of such a development is the frequent use of a not-guilty plea in a criminal trial, even in the politically sensitive cases of political dissidents. Chinese lawyers are representing interests that may not be synonymous with those of the CCP.

The introduction of some adversarial elements into criminal proceedings means, if anything, that the prosecutors have the burden of proof and of leading evidence under a relatively neutral panel of judges. Defense counsel has the opportunity to put up a rigorous defense and play a more meaningful role. More importantly, defense counsel is no longer limited to defending an accused at the trial stage. Defense counsel duties now extend to providing legal advice and assistance at the early stage of criminal investigation (CPL, Art. 96).

The right to counsel at the investigative stage is closely regulated by the police, however. First, a lawyer needs to give notice to the police of such a meeting, and the police have forty-eight hours to make the necessary arrangements. In serious and complicated cases, the meeting may not be arranged until five days after an application is made (MPS Procedural Rules, Art. 44). Second, where a case concerns state secrets, a meeting between a lawyer and client requires police approval (CPL, Art. 96). Finally, the police have the discretion to be present during the meeting according to "the necessity and circumstances" of the case. An officer present has the power to limit the content of the conversation and even to stop the meeting if it appears to him that legal procedures and police rules have been violated during the meeting (MPS Procedural Rules, Art. 48). Because of these rigid limitations, the police are able to make the right to counsel at the investigative stage virtually impossible.