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Due process in Chinese: Concept design and barriers to practice it

Liu Hong

  

Introduction: no reflection no progress. The criminal procedure law on the century ninety years later revision movement has milepost role indelible in China judicial process. Any empirical the contribution of reflection and summary will have great value for the future reform. As a space of small paper will only from the angle of litigation mode of due process and crime control to analyze the 1996 criminal procedure to modify the concept of contradiction between design and practice. So from this perspective to explore whether the reform should pay more attention to study our practical problems rather than on paper, development of the criminal justice system in sound or develop legislation.

 

 

In the judicial process Chinese criminal, the 1996 criminal procedure modification method in any case can be called a milepost. This is not only because it is the first of the Anglo American law system both sides equal confrontation, judicial neutrality principle into Chinese criminal legislation, but also because it will be a modern criminal justice to respect the rights of suspects and defendants, limit state authority power, the idea of due process the first time such a broad and deep into the zone in Chinese criminal legislation and the judicial system. All of this makes its influence far beyond the law itself specification of areas, reform and development of legal system for the whole of the Chinese have played an extensive and profound influence.

 

But as a new starting point, due to objective law limitations and cognitive ability, practice environment for the development of history, it inevitably as with any new thing has some problems. The 1996 criminal procedure modification method is not a prominent issue in its implementation: found a lot of the absorption of the international society of justice concept in the Chinese existing in judicial practice is difficult to implement. For example: the substantive criminal suspects and the accused to obtain counsel, trial neutrality and insufficient evidence's acquittal.

 

This article is divided into six parts: the first part is about research methods; the second part is the two model theory about the criminal justice introduced the theory of -Packer article borrowed; the third part is the theory of using Packer to the 1996 criminal procedure amendment itself are analyzed; the fourth part is the judicial practice of the theory of using Packer modified method on 1996 criminal procedure are analyzed; the fifth part is the analysis of the modification itself can bring us the criminal procedure law in 1996; the last part is the conclusion.

 

 

Research methods: the legislation and practice of theoretical analysis

 

The characteristics of the criminal procedure law in 1996 is the largest absorb a lot of criminal suspects, defendants the right to protection from the concept, theoretical origin can be attributed to the "due process" values. Therefore, this article will use America political scientist Herbert Packer on "the due procedure mode" and " crime control model" theory to critically analyze the amended criminal procedure law, the contradiction between itself and the practice, in order to further explore the problems faced in practice in our criminal justice system structure localization, in the transplantation and method relates to the idea and method of.

 

This analysis to practical experience from secondary sources: results of statistical data, news official and other scholars. Data selection as far as possible and published time close period.

 

Packer The two mode

 

 

America political scientist Herbert Packer in twentieth Century sixty's in his Limits Of The Criminal Sanction entitled The [1]In one book, the evaluation, from the two aspects of a criminal justice system: review of criminal crime mode and due process model.

 

The model of criminal controlValue system: a crackdown on crime, the criminal procedure act as a very important function. It has demanded the arrest rate and the conviction rate, speed and the final decision to incentives, and thus that the informal procedures than formal procedures, because although it can only give a confrontation with a minimum of chance, but it pays attention to efficiency of litigation. This model can be mild cases are treated in an earlier opportunity, the heavier the case as soon as possible to the conviction and sentence. Police in the litigation position and power to give the best to judge whether or not guilty, and, if they are in the investigation on the formation of sb. Guilty concept, procedure results stage should be as short as possible. The defendant crimes trial and the loss of freedom as a result of criminal procedure.

 

According to Packer 's theory, crime control model assumes that the criminal justice system will control the crime as its priority. It enhances the efficiency of the criminal justice system in treatment of violating legal behavior. This efficiency is defined as "speed", the final decision and the court based program was rejected, to replace sb. outside a court in the administrative requirements, formal trial procedure pursues formatted trial, and both sides question the opportunity was controlled at least within the program. This model will be the police and prosecutors as a determined and selected the innocent administrative expert, premise placing them in the interests of the proceedings. Trust in the police and motivation based on expert opinion, this model advocates against limited police action rules, unless such restrictions would contribute to the discovery of the fact program improves the credibility[2].

 

In short, the crime control mode has the following characteristics: 1, it is the object of crime crackdown; 2, it is the value of the system efficiency; 3, it is the administrative and bureaucratic; 4, decision making is the nature of discretion.

 

The due procedure modeInsist on the protection of the standard of justice and other criminal suspects and defendants. It emphasizes on the court should be accompanied by argument, for the fact that may open and formal adjudication, so as to maximize the protection of the innocent. Advocates claim that due process than the crime control model which is a more accurate way to find the truth, but others emphasize its understanding that mistakes are inevitable, and this model can attempt to establish a security barrier against the wrong decision.

 

According to the due procedure mode theory Packer : in any criminal justice system, fact finding ways and methods of the trustworthiness is the preferred choice. In order to achieve this goal, it requires that "national crime should be overcome by and proof of accommodation and standards of evidence and procedure of the court excluded obstacles reasonable doubt"[3]. This model suggests the strategies to limit the power of police, such as requiring reasonable suspicion, all the time the right to have a lawyer to help.

 

In short, the due process has the following characteristics: 1, it is the object of protection of personal freedom; 2, the value of it is trustworthy program; 3, it is the method of trial structure is adversarial; 4, it is the court trial place; 5, judgment is based on law.

 

The two mode Packer is not on the criminal judicial system of any country in the world in,

But in countries of Anglo American law system, many scholars used the due process theory and the crime control of Packer to analysis the structure of a country's Criminal Litigation: even on Packer challenged the theory. Indeed, the Packer theory is too simple to weakness, can not reflect the diverse stakeholders on the criminal justice system and the impact of demand and so on, but we can still borrow two value standard of the establishment of criminal procedure 1996 modification method to analyze, deeper thinking to further explore the criminal procedure amendment behind can bring about law and revision of our.

.

 

1996The criminal procedure amendmentConcept design--Struggling in the target mode and real mode

 

Due process -- the 1996 criminal procedure modification method for target model

 

As the introduction of this talk, the 1996 criminal law value or significance lies in the fact that it will be the philosophy of human rights and international general some justice principle into China judicial system, the legislative concept and judicial practice. Although many places have generation of great transplantation color, and realizes in the judicial practice of these ideas is affected by a lot of resistance (which will be covered in more detail below), but the values of these Provisions, the content, and even the law's modification process itself has the China criminal justice system. A hitherto unknown aspects of influence, especially in the judicial justice and protection of human rights.

 

Control the amended Criminal Procedure Law of four standards of due process of Packer in 1996, can be found in embryonic form of due process model has been reflected from the following aspects:

 

First, although the 1996 criminal procedure law has not been amended criminal procedure aim completely changed to protect the rights of the individual, but in the historical condition at that time really is a historic breakthrough, and the future direction of judicial reform and made useful matting. Because: (1) will be the first of the protection of human rights established as one of the objective of criminal procedure law. (2) abandoned a lot of crime control model terms, such as a review, exempt from prosecution and so on, which led to the cancellation of the judicial practice of the existing part of the judicial system is not reasonable. (3) through a number of authorized legislation, increasing the defence against the capacity, the protection of defendant's rights to. If the lawyer has awarded the investigation right in the prosecution stage. (4) greatly modified or added to the protection of human rights provisions of compulsory measures, intended to practice in accordance with the law, such as the application of coercive measures time, conditions. Although from today's perspective, there are defects such as legislative technique, but in the historical condition at that time is a great breakthrough.

 

In 1996 second, the criminal procedure amendment to increase supervision of the judicial organ law enforcement obstacles to ensure program reliability, such as the criminal law article thirty-third the first time in the investigation procedure allows non judicial officers, lawyers involved in the lawsuit may; ninety-sixth defenders of the early intervention. These are both to the criminal suspect authorization, and supervision of law enforcement interrogation, investigation personnel.

 

Third, 1996 criminal procedure to modify the law clearly stipulates: any person without the approval of the people's court shall be regarded as guilty (twelfth), and the abolition of the suspects without trial was held for review. Procuratorate rights due to exempt from prosecution to abolish restrictions, no longer allow procuratorate held without trial under the premise of giving criminal suspects a guilty decision. These changes increased only after trial can be convicted of rights.

 

In addition, change judgment structure should be the 1996 revision of criminal procedure law in the substantive change. It is a Chinese traditional inquisitorial structure, the role of court in the pre-trial and trial in the law was a fundamental change. Amend the relevant terms by setting and, the court no longer engaged in or participate in any pre-trial investigation;[4]And in the trial period, the dominant position of both sides in the proof and examination, the abolition of the burden of proof function and weaken the court testimony role, increase the properties of the confrontation in court, the court in a neutral position, play more role review evidence[5]. These terms to modify and add, the criminal trial of the criminal procedure law in 1996 Chinese in post reform era, at least in the legal level, the establishment of the defense structure core characteristics of the Anglo American law system, also reflects the Packer one of the legitimate procedure pattern characteristics.

 

 

Moreover, the criminal procedure amendment clearly regulations should be tried in open court[6]First trial cases, namely: all should open trial, in addition to involving state secrets or personal privacy exception. The same chapter 191st provisions of second instance of any violation of the provisions of Article 152 of the decision will be rejected, this will ensure that the specific operation of the responsibility of the court.

 

Finally, it is explicitly stipulated in the decision must be based on Law[7].

 

These facts show that the core value of Packer proper procedures, has been out of shape in the criminal procedure law in 1996, also laid the foundation for the future of the due process of law revision and the whole system change.

 

In fact, in this period of time to modify the criminal procedure law in 1996 after the due procedure idea, it does also influence and promote the reform of criminal justice to China. It not only contains some attempts to reform the local judicial institutions (such as Liaoning Province, Fushun District Procuratorate "zero"), the highest authority reform more from various top-down (such as: 2003 "clear extended custody", 2004 "the abolition of the detention review"), the practice of the judiciary reform this a series of the show after the 1996 criminal procedure modification, due process and the protection of human rights concept has sprouted in the judicial practice.

 

 

Crime control-- 1996The criminal procedure law amended essence of model potential

 

 

The control model of crime control standard Packer, found that the criminal procedure law of criminal control factors also can be modified, and it was more in actual judicial practice. From this perspective, the essence of crime control mode is still in criminal proceedings.

 

First, although the amended criminal procedure law to protect the rights of the individual had a big step, but according to the provisions of Article 1 of its purpose is to control crime, namely: to ensure the correct implementation of the criminal law, punishing crimes, protecting the people, safeguarding national security and public order. It shows that the core elements of crime control mode.

 

Secondly, it established limits obtained with the same rights lawyer the barriers in the trial stage:

 

1                   Defense lawyers not to intervene in the proceedings from the investigation stage: this leads to the defense and prosecution in the evidence collection starting point is not equal, the defense can't from initial stage begins to collect litigation against accused favorable evidence of innocence or light offence evidence.

 

2                   Collect evidence counsel's rights are restricted, such as prescribed in article thirty-seventh lawyers to collect evidence that adopts the following text "the witness or other relevant units and individuals to ", "by a people's Procuratorate or the people's court permission, and the victims or their close relatives, witnesses provided by the victim consent" etc., to be qualified. All these will lead to such a result: defense lawyer will in fact not execute the rights of the evidence collection, and will be very difficult for the prosecution case organize an effective attack, or to launch an effective defense at the trial stage. This phenomenon reflects the crime control concept in guiding the legislature.

 

3                   At the trial stage, the procuratorate should submit copy of the types of evidence and witness list as well as the main evidence or photos to the court, legal here does not require evidence before the court expansion. The defense lawyer has no right to know the evidence through consultation, extract and copy the mode of substance to prepare his defence effectively.

 

All these facts show that: when the control, between the two parties standing in the new established, with adversarial embryonic type new trial structure, in fact, the starting point and basis for them is not equal. Despite the barriers to the practice of not talking, just can see the analysis of legislation, the burden of defense is weak, not not not and the formation of meaningful confrontation, the legislative idea of "trial based on neutral hearings on", in fact this is the legislation itself shattered. When the trial control, between two sides formed obvious contrast proof strength, which can be foreseen in the judge who listen to the views, the future decision basis is obviously in evidence and the claim of which side.

 

Contradictory legislation itself in this weakened the structure of the new concept of justice, but also reflects the legislature while seeking the due procedure mode, still unable to shake off the contradictory psychology concept of crime control: "will the police and prosecutors as one and the same will be determined and selected the innocent administrative expert and put them in the interests of the proceedings". Don't trust to law firm associates, also it will program object is regarded as the crime crackdown.

 

 

The judicial practice of criminal control model 1996 criminal procedure modification method

 

 Finally, we examine the practice environment, more clearly reveal the current criminal judicial operation is still the main mode of crime control:

 

 

1  The pursuit of high prosecution rate department rules to prosecute rate and practice.

 

The Supreme People's Procuratorate annual work report of national official statistics data:

 

Table 1: 2003-2008 National People's Procuratorate prosecution rate[8]

 

	ProsecutionThe number of	The number of non prosecution	The prosecution rate (%)[9]
2003	819216	27957	96.7
2004	1143897	29871	97.5
2005	950804	7366	99.2
2006	999086	7204	99.3
2007	779652	34433	95.8
2008	1143897	29871	97.5

 

State the above statistics show: from 2003 to 2005 the country criminal prosecution rate in 9599% between, this is in the world is very high suing rate.

 

Such a high rate of crime prosecution, display control is the leading thought Procuratorate in the prosecution stage practice. At the same time, many scholars and related news reports also showed "the prosecution rate" is a standard procuratorial department and individual work performance evaluation.[10]This leads to the following phenomenon in practice[11]:

1.  The suspect is not fully charged;

2.  Should return not to prosecute or suspension of prosecution and prosecution;

3.  There are serious illegal phenomenon in the procedure of investigation and prosecution, public prosecution is still.

 

2  The verdict was high and the pursuit of high conviction rate of sector policy.

 

Table 2: 2003-2008National all levels of people's court trial results[12]

 

	Closed (a)	Acquittal	Convicted of
Acquittal (of people)	Ratio (%)	Convicted[13] (of people)	The conviction rate[14] (%)	Among them
Exempted from criminal punishment	Ratio[15] (%)	Criminal penalties[16]	Ratio[17]
2003	735535	4835	0.5	933967	99.5	11906	1.3	922061	98.2
2004	644248	2996	0.4	767951	99.6	12345	1.6	753314	98
2005	683997	2162	0.3	844717	99.7	13317	1.6	829238	98.2
2006	701379	1713	0.2	889042	99.8	15196	1.7	873846	98.3
2007	815892	1417	0.2	933156	99.8	15129	1.6	916610	98.2
2008[18]	768130	-	-	1007304	-	-	-	-	-

 

 

According to the official statistics from 2003 to 2006 the trial results Chinese Law Yearbook data provided and the president of the Supreme People's court's work report, the author has made the following analysis (see Table 2), from 2003 to2008Years:

 

A)    The people's courts at all levels the conviction rate in 99% or more;

B)    Given the ratio of criminal punishment is as high as 98% or above;

C)    Acquittal are fewer in number, ratio of only 1%, to 2005 only 0.3%;

D)    But given the conviction may be exempted from criminal punishment is only 2% or less than 2%

 

 

In addition to the official statistics show high conviction rate and high penalty rate, in judicial practice is still in the "high conviction rate, high penalty rate", or to "guilty rate" one hundred percent for scoring guide index and performance of internal assessment mechanism.[19]

 

 

3  The reality of criminal suspects and the accused rights protection.

 

Table 3: 20032007 national criminal and criminal legal aid[20]

 

	The criminal defense	Criminal legal aid
2003	324454	78602
2004	332688	91115[21]
2005	351229	103485
2006	341619	110961
2007	495824	118946

 

The existing criminal defense, criminal legal aid official statistics only in Table 3 display content. The official statistics do not show how much is in the stage of investigation, criminal suspects have been counsel; and how much is the prosecution and trial stages in the review, obtained by the defendant's criminal defense; for the trial stage, not distinguish Chu is the first or second instance. So, the official statistical data available is ambiguous in the protection of the rights of criminal suspects and the defendants has.

 

Reflected from the lawyer out of criminal defence agency the situation is not optimistic. For example, the number of articles reveal Beijing City lawyer handling criminal cases is 0.78 per capita;[22] 2008Years, the 437 lawyers in Yinchuan, often for a criminal lawyer. Less than 50 people, lawyers generally is a "difficult" to reflect the handling of criminal cases. Especially in the investigation phase meeting with the criminal suspect is very difficult, resulting in most lawyers are not willing to handle criminal cases.[23]Many lawyers said the unwilling agent in criminal cases.

 

(1) the suspect's lawyer agency

 

Not many basic statistical data obtained lawyer of criminal suspects in the investigation stage and related research. Some are relatively authority:

 

The Justice Department as a senior official in an interview, lawyers in the investigation stage ratio disclosure in 1997 16.95%; ratio of 1998 is 17.66%[24]In 2000, Professor Chen Weidong and his team of research: there are only around 10 of the suspects in the Shandong Yantai district police station a year 400-500 cases lawyers.[25]

2003Beijing Haidian District procuratorate survey:Taking the city of Beijing Haidian District detention center as an example,All the prisoners in the investigation stage lawyers met with the rate of only14.6The number of detainees%, lawyers for the average1.3Second, the per capita each meeting lasted only24Minute.[26]

 

(2) the defendant's criminal lawyer

 

The defendant's criminal defence agency most concentrated in studies involving lawyers criminal cases in many. Both official and academic circles or lawyer, general evaluation is the number of cases in the current criminal case lawyer agency is "low". For example, the Supreme People's court; the senior judge Zhang Jun disclosure, public prosecution lawyers in court rate is about 40%, in poor and remote areas only about 30%. Some local courts cannot find or specify not to bear the legal aid lawyer.[27]. Justice Department lawyers notary Secretary Gong Xiaobing spoke in an "twenty-first Century" magazine interview, criminal lawyer in court only about 30%.[28] 2008Years, Yinchuan municipal court received 1918 criminal cases, lawyers involved in the management of only 878, accounted for only 45%[29].

 

The suspect and accused person's right of criminal defense security the situation revealed in the criminal lawsuit practice, real defense system from practice or very distant.

 

At the same time, another practical obstacle seriously affect the suspect and defendant's right to defense is a criminal defense lawyer in the exercise of criminal agent or criminal defense right, have a lot of unfair treatment, and even the risk of criminal responsibility. Especially the 1996 criminal procedure bigger breakthrough: lawyers can advance access in the investigation stage, and the stage of review and prosecution has the right of investigation and collecting evidence, in practice it is difficult to realize. Many lawyers complain that they are difficult to meet with the parties in the first time, the meeting will be a variety of containment (such as investigation personnel present, or videotape); in the stage of review and prosecution is not right to exercise investigation evidence. This makes the 1996 criminal procedure revised law reflects the value and the due process of criminal suspects and defendants, various legislative protection cannot be true to practice.

 

 

6 The erosion principle of due process of law, contact the program free in judicial practice

 

The legitimate procedure of greatest impact should be the existing judicial system inherent problems, especially the unspoken rule and breeding.The so-called judicial unspoken rule, a high flying in the title"A review of judicial justice -- on the distorted under the unspoken rule of alienation"[30]Pointed out:Refers to the passage or recognized in the judicial organ interior but not released to the outside the rules and procedures. It is called a "unspoken rule", and because of these procedure handling rules without authority formally promulgated, outside cannot access is unknown; it is called the "rule", because the procedure rules almost promulgation and countries in the lawsuit has the same force and function, and sometimes become the preferred rule case. These "unspoken rule" on the static state is the main internal red head file, instructions, instructions, instruction, notice, speech, experience summary, practice form; in the dynamic, mainly for the "black box operation" [31].

 

Running these unspoken rule to contact exists in the form of judicial practice, directly affect the judicial authority and judicial personnel of criminal judicial activities of the code of conduct and the pursuit of the goal. So when the pursuit of high suing rate, high conviction rate these away from the due process values and contrary to the objective law department rules become judicial guidelines and work achievements and promotion appraisal standards, it is not difficult to understand why many kinds of covert operation.

 

 

In 1996, after the practical essence of criminal procedure modification method or a crime control model, but it has absorbed the reasonable factor of due process, and has the intention of target mode.

 

 

1996The criminal procedure amendment implications: judicial reform ideas or reality

 

 

Due process value and its mechanism The theoretical background of due process is the potential power of established in the country can be seen as false, may violate the individual rights of citizens in such a background, legal tradition of national culture and politics under the. Based on this understanding, it requires countries to put forward reasonable grounds for any act of infringement of citizens, must be in the law to provide enough and favorable evidence to prove its claim rights, and efforts should be made to confirm the accused citizen has his. This belief by the established system to consolidate, namely: from the beginning of the program, represents the power of the country - the police power restrictions, set the corresponding obstacles, in the procedure such as: mandatory limit the rights of the police interrogation, set up a strict rules, and make clear the illegally obtained evidence in court will not admit the legal effect.[32]

 

China program values and its mechanismAs everyone knows, Chinese traditionally has been followed and inheritance is "light procedure, heavy entity", "individual obedience to the state". Our local culture, procedure value is the value idea and the due process has a natural barrier, and at the same time, the existing judicial education, personnel system, nor to the adversary system to establish or create a proper soil.

 

 

First of all, our traditional culture has many violate due process values. Such as "answer blows with blows" values, making the use of criminal procedures to control crime, the punishment of crime has a wide and profound social and mass soil. Not like the western scholars simply understand the ideology and method of rule as a government. At the same time, just as many scholars have already realized, China traditional culture and harmonious values and a middle course, and the traditional agricultural society to form blood culture. The adversary system requires the attendance of witnesses to achieve, nature of the disorder may be impossible to solve by law.

 

At the same time, our traditional legal education, even to the 1996 criminal procedure amendment today no design for the future operation procedures for legal defense services "".

 

Combined with our training mechanism, judicial personnel recruitment channels and related institutions, the "due process" is only a concept, from the judicial reality far.[33]

 

The 1996 criminal procedure modification methodPartial acceptance of the concept of due processAndIn part to establish adversary structureThe impact of the judicial system, Chinese maximum should be its anti traditional, anti practice. Because more of the anti tradition comes from a transplant, which lack the deep cultural roots and the corresponding security system, will inevitably cause it with the existing practice collide. The 1996 revision of the criminal procedure law is not on how to protect the new idea and reduce it with the reality of judicial practice operation gap to guarantee system.

 

 

　　

The problem: the legal reform -- logic? / reality? 　

 

Legal reform in the "law" (Law in paper)? Or "in action" (Law in action)? This is the contemporary western law sociologist and the Anglo American countries many of the criminal judicial circles of scholars to explore legal reform discussion. Whether it will be beneficial to our discussion on the reform of the judicial system?

 

While the transplantation procedure in law, or more frankly speaking on paper, it would"Clear logic perfectly"But in any case is transplanted, due process"Need to seeJustice ", and should beVisible in action, rather thanIn the paper the visible.

 

 

Conclusion

 

The 1996 criminal procedure modification to promote value for the study of judicial reform and legal China law has milepost sense. While the transplantation procedure, the China contemporary criminal justice to the internationally recognized trial standards and protection of human rights is a positive meaning of great ideas. But when we face again when the amendment of the criminal procedure law, must learn from the past, to the 1996 revision of criminal procedure law itself deep reflection.

 

 

Packer "due process" and "crime control" mode, mode of criminal justice is only an ideal, the ideal mode is not a country of typical model or a criminal justice. It could not reflect the true state of any national criminal justice, but because of the 1996 revision of criminal procedure law itself uses a lot of "due process" in rhetoric, so this paper analysis from the perspective of criminal procedure revised 1996 help examine the contradiction itself, as well as the gap between reform and look forward to the introduction of criminal justice value idea and the criminal judicial practical operation, try to use it to investigate the should pay attention to the reform of the criminal justice issues related to.

 

If the ultimate aim of the reform is to justice and protection of human rights, the other side of the bridge is the same to this should be what kind of? When we choose a "bridge", whether we should also be thinking: the design idea at the same time, we should also consider whether we have the building it should have the technology, capital, technical personnel, management personnel and management system etc..

 

The criminal procedure law is a practical law, as a judicial reform practice operation, it needs the reformers cannot be separated from the existing practical and spoil things by excessive enthusiasm. An unworkable legal than perhaps a imperfect laws on the idea and system of justice has destroyed the greater role: because it is possible to destroy the people of the law and justice belief and worship.