This book is an extensive survey and appraisal of Chinese criminal justice by Mike McConville, dean of the faculty of law of the Chinese University of Hong Kong, and five colleagues. It should interest not only specialists in Chinese law but any reader seeking insights into China's political culture. It is distinguished by the depth of its empirical approach, displayed notably by extracts from interviews. Its publication is timely, coinciding with publication of a draft revision of the Criminal Procedure Law (CPL, last revised in 1996) that is being considered at the China's National People's Congress. The book's analysis of the current criminal process could assist observers of Chinese law reform to appraise practice after any new law becomes effective.
This book presents a survey of basic- and intermediate-level courts by a team of researchers who from 2001 to 2006 observed the criminal process at work and interviewed key actors in the daily operation of the courts, with some additional follow-up in 2007–09. They studied every stage in the formal criminal process at 13 courts throughout China where they had “unmediated access” to case files of at least 50 of the most recently decided cases (a total of 1144), and observed trials and interviewed judges, procurators and defence lawyers. (They did not interview police, nor did they include extra-judicial administrative punishments under the Security Administration Punishment Law, although that is summarized in an Appendix based on the work of Sarah Biddulph).
The researchers' objective was to examine “the working practices and philosophies” by examining the conduct of the political-legal personnel involved in each stage of the formal criminal process. The introduction, after providing background on the 1979 and 1996 CPL, describes how the research was conducted. Twelve chapters then follow which analyse the stages of criminal prosecutions from origination of cases through trial, as they were observed and key participants interviewed; each chapter ends with a pithy summary of the main characteristics of each stage. Western institutions and practice are sometimes mentioned, but the principal focus is on the extent to which practice is consistent with, or deviates from, the CPL.
A unique dimension is added to the authors' analysis by quotations from some of their interviews. Limitations of space prevent extensive quotation here, and some brief examples will have to suffice:
Although prosecutors may return a case to the police for supplementary investigation, one prosecutor said “The prosecutor will be penalized 100 RMB if the case is returned for supplementary investigation. If the prosecution is not the same as the final judgment of the court, we have scores deducted that are connected with bonus and evaluation” (p. 131).
Although the 1996 CPL was supposed to insulate judges from case preparation, a judge in one of many interviews said “I will question the defendant to learn about his attitude to admitting his guilt.” (p. 149).
The position of the courts, another judge: “The judiciary is not independent. There is too much influence from various quarters” (p. 404).
The researchers' assessments are similarly instructive: Some examples:
Commencement of the formal construction of the case by the police: “police focus on evidence that ‘incriminates the suspect’ rather than producing a balanced dossier” (p. 72).
Prosecutorial decisions on initiating a prosecution: they are made within a “bureaucratic and extremely hierarchical environment so that individual decisions may have heavy political and socio-cultural overtones which are determinative.” Illustratively, a procurator told an interviewer that when a case is assigned to him “by a leader … we may relax the evidence requirement but it will be treated carefully” (p. 113). Prosecutors seek to avoid acquittals because they must maintain a specified low rate of acquittals or else evaluation of their performance will be negatively influenced.
Trials: “The verdict of those cases which are prosecuted is never in doubt” and lawyers “are no match” against “the dossier prepared by police and prosecution” (p. 376).
The authors find that the state actors in the criminal process share “core values.” Judges and prosecutors are “different parts of the same entity,” dedicated to preserving public order and social stability, which has been re-emphasized in recent years. Judges are “particularly susceptible to external domination because they have low self-esteem and see themselves as small cogs in a big machine” (p. 401).
The authors conclude that the “permissive character of the legal process enables state actors to construct criminal cases using legal provisions” (p. 433, italics in the original). The system is one of “cooperation without restraint” (p. 435) while the Party “continues to control the legal process” (p. 441).
These conclusions are not surprising, but this is not a criticism. The authors performed a difficult task by assembling a source-book of data and nuances that anyone seriously interested in Chinese law, China's legal culture and the political context of legal institutions will find insightful and convincing. They conclude that changing legal rules by themselves would not be sufficient to improve rights and the reliability of the system. For this result to be within reach, the Party-state must have the political will that it refuses to assert at this time. If and when the current CPL law is revised, Party-state policy – more than anything else – will shape law in practice. This unexceptionable conclusion is buttressed by the empirical data gathered by the authors, which will provide a useful guide to assessing practice under any successor to the 1996 CPL.
