Criminal defense lawyer

Classification of crime. China enacted its Criminal Law (CL) in 1979 and substantially amended it in 1997. The law defines crime as any act that endangers society and is subject to punishment. An act that endangers society is not deemed a crime, however, where "the circumstances are obviously minor and the harm done is not serious" (CL, Art. 13). An act that endangers society but with minor circumstances or consequences is referred to as an unlawful act. PRC criminal law draws a clear distinction between a criminal and an unlawful act. A criminal act is defined by the Criminal Law, investigated and prosecuted according to the procedures set out in the PRC Criminal Procedure Law (CPL) and subject to criminal penalties. An unlawful act is defined by administrative laws and regulations, punished by administrative organs according to administrative procedures, and subject to administrative penalties.

The PRC's legislature, the National People's Congress (NPC), or its Standing Committee determines the threshold separating a criminal act from an unlawful act by specifying the extent of seriousness of the consequences and circumstances to which an act warrants a criminal penalty. The legislature may define the seriousness of the consequences by setting a fixed amount enumerated in Chinese currency, renminbi, or use other criteria to determine the consequences of the offense, which will trigger application of the Criminal Law. For example, accepting a bribe will only be considered an offense if the amount of the bribe exceeds 5,000 yuan (CL, Art. 383). The Criminal Law applies if the amount reaches the specified minimum. Otherwise, such acts are considered "unlawful" and thus subject only to administrative penalties. The triggering amount, while a key determinant for criminal liability, is not conclusive. A crime may still be declared, even if the minimum amount has not been reached, where aggravating circumstances exist.

Increasingly, the legislature has defined the parameters of criminal acts more clearly by specifying a trigger amount. Yet, the Criminal Law largely continues to set only general standards, applying ambiguous terms such as light, serious, or very serious in relation to various circumstances and large, huge, and especially huge in relation to their consequences. The Criminal Law leaves detailed criteria to be determined by the Chinese courts and other institutions in the application and enforcement of the Criminal Law. The Supreme People's Court (SPC) and the Supreme People's Procuracy (SPP), severally, jointly, or in conjunction with other executive institutions, are principally responsible for filling the lacunae left by the legislature. The ministries under the State Council, the Ministry of Public Security (MPS) in particular, have played an active role in constructing China's criminal law regime, though this role seems to have declined in recent years.

Politicization of crime. The ideological foundation of this duality is the doctrinal classification of social conflict as among the people or between the people and their enemy. The former is antagonistic, the latter is nonantagonistic. This doctrine was formed in 1957 by the CCP and still applies to a large degree. China continues to be a state under the people's democratic dictatorship, which has been interpreted as democracy for the people and dictatorship against the enemy. The criminal justice system occupies a unique position in the Communist theory of the state, and is instrumental in this dictatorship/democracy dichotomy. Criminal Law in general is identified with dictatorship against the enemy, and the criminal justice system stands in the front line of this struggle.

Enemy is a key but fluid concept. In the early years of the Communist rule, the enemy included spies, saboteurs, career criminals, landlords, and capitalists who were hostile to the new government. Once they were eliminated, their positions were replaced by counter-revolutionaries, bad elements, and rightists. During the economic reform of the 1980s, new enemies, including serious criminal offenders, political dissidents, separatists, and religious cults have become targets of the CCP dictatorship. Whoever challenges the CCP leadership and undermines the socialist system can be treated as an enemy of the state.

As the two contradictions are fundamentally different, the methods for solving them also differ. The CCP's ideology provides a bifurcated system. Criminal law is reserved to suppress the enemy. A crime is not simply a violation of criminal law but a challenge to the established political order. A guilty verdict means more than a mere conviction; it transforms the convicted person into an enemy of the state. Consequently the police, the procuracy and the court are not merely places to enforce the law, they are also places of dictatorship. Criminalization principally means repression.

But the repressive approach does not apply to the people. Conflicts among the people were to be dealt with by the methods of democracy, that is, didactic, informal, and rehabilitative methods, which would be accomplished through criticism, persuasion, and mediation, backed by administrative penalties.

Crime and punishment. There are five types of principal punishment in China's criminal law:

  1. Public surveillance
  2. Criminal detention
  3. Fixed term imprisonment
  4. Life imprisonment
  5. Death penalty of immediate execution and death penalty with a two-year stay.

The figures for criminal convictions have gradually increased since the early 1980s. In 1987, Chinese courts tried approximately 300,000 criminal cases, and convicted more than 300,000 persons. In 2000, courts tried more than half a million criminal cases and convicted more than 600,000 persons. It has been a general practice for Chinese courts to sentence approximately 40 percent of the offenders to five or more years' imprisonment, life imprisonment, or death.

The death sentence has been most controversial. The number of capital offenses in China has grown since 1979. There were twenty-eight capital offenses in the 1979 Criminal Law. By 1983, there were forty-two capital offenses, and the figure grew to nearly seventy by 1993. There were three new death penalty offenses added to the statute book each year on average from 1981 to 1993. The 1997 amendment to the criminal law limited the use of the death penalty for a number of offenses, such as theft and robbery, to more serious circumstances, but the number of capital offenses remained the same.

Since death penalty statistics are classified as a top state secret by the Supreme People's Court, the number of offenders executed each year is unknown. Informed estimates vary from four thousand to forty thousand per year. The vast majority of the death penalties were imposed for five types of offenses: murder, robbery, rape, serious assault, and serious theft. In the latter half of the 1990s, capital drug offenses have been on the rise due to the seriousness of the problem in China and the tough stance the government is taking.

Minor offenses and administrative penalties. The police punish minor offenses that are not regarded as having breached the criminal law. Those punishments are referred to as administrative because the police make the decisions. There is no public hearing and no defense is available. There are a variety of legislative and administrative regulations that authorize different types of administrative penalties. The police have great discretion in imposing such sanctions. A court can only subsequently review administrative penalties.

There are two main types of administrative penalties. One is the public order punishment, authorized by the Regulations on Penalties for Public Security 1957 (the Regulations). The Regulations are administrative in nature, punishing petty theft and other activities disrupting public order. Punishment is administered by the police and may include a warning, a fine, or administrative detention of not more than fifteen days. Over three million public-order offenses are handled by the police each year.

The other type of administrative punishment is Reeducation Through Labor (RTL), an administrative penalty with no clear legislative authority. The police control the intake process and also administer the RTL institutions. The government created the RTL in 1957 "to reform into self-supporting new persons those persons with the capacity to labor who loaf, who violate law and discipline, or who do not engage in proper employment" (The State Council Decision on the Problem of Re-education through Labor). It has been gradually expanded to include minor offenses, where the circumstances or consequences are not serious. As a result, a great variety of offenders, ranging from thieves to prostitutes, drug addicts, and political dissidents, have received RTL penalties. Approximately 150,000 offenders are incarcerated under the RTL regime each year.

The term of incarceration was indefinite until 1979 when the government set a limit of three years' incarceration, with a possible extension of one year. The target population of RTL is restricted to residents of large and medium-sized cities.

The police and police powers. The police is the most powerful institution in China's criminal process for three reasons. First, the police hold a special place in Chinese politics. Until the late 1970s, the Minister of Public Security maintained close, even personal, ties with top CCP and state officials, and played the role of a leader in China's legal institutions. While the role of the MPS in national politics was substantially diminished during the reform era largely due to the rising power of the SPP and the SPC, police at the regional levels continue to dominate the criminal justice system.

The chief of police, as part of the local political elite, generally holds three key positions: member in the Standing Committee of the local Party Committee; chairman of the local PLC; and deputy mayor/governor in the regional government. He is the law of the place. China has been searching for a proper balance between the powers of the police, procuracy, and the court to ensure checks and balances. A development since the mid-1990s is the requirement that the chairman of the PLC at the local and national levels hold no position in legal institutions. Notwithstanding this change, the CCP will continue to lead the local legal system through the police, given its political influence.

Second, the criminal process is structured in such a way that the police play a dominant role. There are few procedural requirements within the investigative process, and there are few measures to protect a suspect's rights. The law encourages the police to ascertain the true facts of an offense with little regard to procedural rectitude. Once the police have found the truth, as they perceived it, all the subsequent processes become a mere verification of that determination. The files prepared by the police become central to the entire prosecuting process, and the only issue at stake is whether the files can withstand the scrutiny of prosecutors, judges, and lawyers.

Finally, the police can bypass the criminal procedures and avoid accountability by utilizing administrative penalties. Punishment for public order offenses and RTL can be imposed by the police summarily and with little external supervision. The police powers in this regard are extremely broad, and also severe, leading to one to three years' incarceration. Administrative penalties offer the police sufficient scope to dispose of most minor offenses.


The procuracy. The procuracy is a unique institution in Chinese law. It is equal to the court in its constitutional status. The procuracy performs multiple functions as an investigative, prosecutorial, supervisory, and judicial body.

It investigates crimes, mostly corruption, committed by state functionaries in executing their duty. The procuracy has been criticized for its lack of action against government corruption and blamed for its rampage. But given the relationship between the CCP and China's legal system, and the role of the CDIs in investigating crimes by CCP members, the procuracy's authority to investigate crimes committed by the CCP officials is limited.

Second, the procuracy institutes public prosecution against all crimes in court. After the investigators conclude their investigations, they transfer the case to the procuracy for public prosecution. Where the procuracy considers the facts to be clear, the evidence reliable and complete, and the offense serious enough to warrant criminal sanction, it shall initiate a public prosecution in a court with competent jurisdiction, unless the case is "obviously minor" or where other statutory conditions exist. Where a case is not prosecuted, the police, the victim, and the suspect can apply to the procuracy to review the decision. Alternatively, the victim may institute a prosecution in court directly (CPL, Arts. 144–146).

Third, the procuracy supervises the application and enforcement of law by other legal institutions. In relation to the police, the procuracy has the power to demand that the police initiate a criminal investigation over a complaint; to review and approve arrests to be made by the police; and, after the police completes its investigation, to request the police to conduct supplementary investigations if the evidence is insufficient, and to decide not to prosecute if the police are unable to supply additional evidence. In relation to the court, the procuracy supervises the legality of judicial work including reviewing the legality of criminal and civil trials. In the case of criminal trials, the supervisory role necessarily creates a conflict in a criminal trial between procurators as prosecutors before the court and procurators as supervisors above the court.

The court. Chinese courts are composed of several chambers according to the subject areas of the law. Criminal law chamber may be further divided according to the nature and seriousness of the offenses. Heading each chamber is a chief judge, who is responsible for allocating cases to judges in the chamber and supervising their work.

Once the prosecution initiates proceedings against a suspect, and transfers the case to a particular chamber, the chamber forms a collegial panel, composed solely of judges or of judges and lay judges (referred to as people's assessors) at the discretion of the court. The chief judge of the chambers is responsible to the president of the court and the adjudicative committee of the court. The adjudicative committee is the power center of a court. It is chaired by the president of the court, and composed of vice-presidents of the court, chief judge of the chambers and heads of political and services departments of the courts.

Criminal trials in China have been referred to as inquisitorial, and since the 1996 CPL reform, the criminal trial has been in a gradual transformation from an inquisitorial model to an adversarial model. Before the CPL reform, the prosecution was required to submit all the evidence to the court once it finished its investigation, and the trial judges were required to investigate the case thoroughly, including interviewing the accused and examining evidence, before the case was tried. Where the court found prosecution evidence to be insufficient, it was bound to remand the files to the procuracy for supplementary investigations. A case would not be tried unless the trial judge was certain about the facts and the law. Naturally, the trial was merely an occasion to announce a decision made before the trial started, and a "not guilty" verdict was a near impossibility.

The 1996 CPL reform abolished the use of pretrial judicial investigation. Under the new procedures, the prosecution provides a Bill of Prosecution and a list of evidence to be produced in court; the court will decide to try the case if there is prima facie evidence of criminal wrongdoing. Without pretrial judicial investigation, the prosecution now bears the burden of proof. The defense is able to play a more meaningful role. It can cross-examine the prosecution evidence and produce its own evidence to challenge the allegation. The defense can make strong arguments on behalf of the accused without necessarily challenging the authority of the court. Judges are now expected to be more neutral and passive arbitrators, evaluating evidence and arguments presented before the court. "Not-guilty" verdicts have become a real possibility in Chinese courts.

The implementation of reform has been difficult and confusing, however. For the most part, the former inquisitorial trial style remains unchanged. Most witnesses still do not testify in court, and the trial continues to be based on affidavits. Trial judges remain active during the trials and interrogate defendants as frequently as in the past. Judges found themselves unable to decide without first reading the files prepared by the prosecution; the trial itself is too brief to provide solid factual and legal bases for a proper decision. The court now reads the files after the trial. The consequence of the reform is that the decision-making process is postponed from before the trial to after the trial. The court hearing is still a formality.

Another issue concerns the actual decisionmaker in a trial. Chinese law emphasizes the independence of the court as an institution, not that of the judge as an individual. A judge is part of the judicial hierarchy and is bound to follow orders from the chief judge, the president, and the adjudicative committee. There are doubts as to who in a court is entitled to decide a trial. In ordinary cases, it is the collegial panel that "shall render a judgment" after the hearings and deliberations. However, in "difficult, complex or major cases" in which the collegial panel finds it difficult to make a decision, the collegial panel should refer the case to the president of the court. The president will then decide whether to submit the case to the judicial committee for discussion and an eventual decision (CPL, Art. 149). The collegial panel is bound to execute the decision of the judicial committee. Given the vagueness of the phrase "difficult, complex or major case" and given the hierarchical nature within a people's court, the fact remains that those who hear a case might not decide its outcome.

One needs to look into the relations between criminal justice institutions and the CCP and the interrelations between those institutions to understand the structure of criminal justice in China.

The Chinese Communist Party. China is still a one-party state. The CCP is the leading political party; its policies dominate the criminal justice system. Institutionally, the CCP exercises its immense power in three principal ways. First, it appoints and removes persons, most of them being CCP members, to and from senior positions in criminal justice institutions at each level. Key positions, including the presidents of the people's court and of the people's procuracy and chiefs of police are tightly controlled by the CCP. The appointment and removal, as a rule, is approved by the respective people's congress.

Second, the CCP has a vast array of powerful institutions with specific political responsibilities to which the government is accountable. Two CCP institutions have had great effect on the criminal justice system, the Political and Legal Commission (PLC) and the Commission of Disciplinary Inspection (CDI). The PLC at the central and local levels is the ultimate authority to which the court, procuracy, and police and other lawrelated institutions are responsible. The PLC makes criminal justice policies, determines work priority, coordinates different legal institutions and settles their internal conflict. PLCs at the local level in particular frequently intervene in the daily operation of the criminal justice institutions.

The third control is the exclusion of the criminal justice institutions from investigating crimes perpetrated by CCP officials. It is longstanding policy that the CCP is above the law in many aspects. Where a CCP official commits a crime in the course of executing his or her duty, corruption in particular, the CCP, through its CDIs at the national and local levels, has the power to investigate the offense, and to determine whether the criminal law should be applied. Therefore the police cannot initiate a criminal investigation into the CCP or its ranking members, the prosecution cannot authorize the arrest of a ranking CCP member without the prior approval of a competent CCP authority, and the courts have been compliant to the demands of the CCP. In relation to this type of offense, the CCP is effectively beyond the reach of the criminal law, and the criminal justice system merely performs a legal formality, giving legal effect to the CCP's decision.

Local/central relations. The CCP leadership is fragmented, however. China does not have a centralized legal leadership, and the power of central criminal justice authorities—the MPS, the SPC, and the SPP—are limited. There is always a tension between the local CCP committee and the central criminal justice authorities over the control of local criminal justice institutions.

The vertical system and dual leadership create a fragmented structure of authority in the criminal justice system. But given the political and financial dependence of local criminal justice institutions on the local CCP committee, the control exerted by the local CCP committee is more substantial and indeed overwhelming, negating the centralized command at a national level.

Institutional mutual independence. While the criminal justice institutions are dependent on the CCP and compliant to its demand, they are independent from each other. Governing the relations among the criminal justice institutions is the Criminal Procedural Law (CPL), enacted in 1979, and substantially amended in 1996. Under the CPL, one institution does not have legal supremacy over the other in the criminal process. They have the equal authority to interpret and enforce laws in relation to their own rights and duties, largely without external supervision.

Criminal process in China is divided into three legal steps: investigation, prosecution, and trial. There are three corresponding institutions in charge of each step: the investigative organs (mainly the police), the procuracy, and the courts. The police, the procuracy, and the courts exercise their respective powers independently in accordance with the law and are meant—in theory, at least—to operate free of any interference by any administrative organ, public organization, or individual (CPL, Art. 5). The relationship between the three organs is that they "shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of law." (CPL, Art. 7).

The judiciary is not supreme in the criminal process, it is one of the government departments. Where a conflict occurs between the different institutions, those involved have to reach a consensus through negotiation, otherwise the dispute has to be settled by the PLC. There is a clear tendency for the criminal justice institutions to avoid confronting each other.

Reform in the criminal process in China should be seen in the light of a conflict between the political need for stability on the one hand, and the domestic and international pressures to liberalize the criminal justice system on the other. China remains a one-party state under the dominance of the CCP despite economic liberalization, and the primary concern of the CCP has been the maintenance of social and political order. "Stability overwhelms everything," as the CCP has insisted. Whenever the CCP perceives that crime is posing a threat to stability and challenging its legitimacy, it will mobilize the criminal justice system to strike hard at crime, disregarding most of the legal requirements. Gradual and piecemeal reform and liberalization have been interrupted by periodical campaigns against crime. Criminal law and criminal justice are fundamentally political.

At the same time, a progressive force is taking root in China, pushing for liberalization of criminal law and the criminal justice system and the implementation of rights already existing in Chinese law. The growth in the economy is creating a middle class and a vibrant society that demands its rights. International pressures, especially China's pending participation in the World Trade Organization (WTO) and the possible ratification of the International Covenant of Civil and Political Rights, will add momentum to the liberation of China's criminal justice system.

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