Emerging in China and Taiwan around the beginning of the 21st century, victim–offender reconciliation (VOR, xingshi hejie) allows a suspect or defendant of minor crimes to reconcile with the victim. This programme often involves an apology, compensation or other acts expressing repentance from the offender, and can result in lenient punishment if an agreement can be reached. It allegedly carries the advantage of addressing the crisis of the traditional retributive criminal justice system, especially in terms of rehabilitation and restoration.
As academics and practitioners have been debating whether VOR is a transplant of restorative justice or a Chinese innovation, Riccardo Berti argues that it is a complex and dynamic system drawing on elements of China's traditional culture, inter alia Confucianism, the global trend towards restorative justice, and the principles underpinning China's judicial reform towards a rule of law system. His choice to compare PRC and Taiwanese practices of VOR allows Berti to discuss the influence especially of Confucian values and practices in these two otherwise different jurisdictions. This book provides a new angle for understanding VOR, as well as alternative dispute resolution mechanisms more generally. Scholars of alternative dispute resolution, criminal justice, and law and politics in China will find it interesting.
This book starts with a historical review of Chinese legal tradition from the Shang dynasty to today. Berti shows that the core of Confucianism, which includes redemption (and correspondingly forgiveness), harmony (and restoration of harmony impaired by offences) and no-litigation (wusong), “transcends time and political and social changes” (p. 21) and has “inserted” itself in China's socialist legal system (p. 24). The following comparative study on VOR in China and Taiwan not only reinforces this argument but also describes the values of restorative justice entailed in VOR. By advancing this core argument, Berti further explores VOR's changed features and prospects in the context that the legal system is evolving towards the rule of law, and society is evolving towards individualism (“Westernization” according to Berti). Berti acknowledges the increasing weight of rule-of-law elements in VOR and also contends the “stubborn persistence” (p. 65) of Confucian values. This combination, on the one hand, leads to the success of this programme, especially in terms of rehabilitation and restoration. On the other hand, VOR in some cases erodes the paramount due process principles such as the presumption of innocence and marginalizes individuals. Given the interaction among Confucian values, restorative justice and the principles underpinning rule of law reforms, Berti proposes three hypothetical trajectories for VOR: a programme where traditional values fade away and more rights protection is infused; a programme where traditional values retain the strength; or a programme where the coercion and rights infringement components get restrained by the “Westernization” of the legal system while the rehabilitation and restoration components are untouched. Berti concludes that the third trajectory “seems convincing as well as hoped for” (p. 88).
This book valuably alerts us to understand VOR in a complex setting where tradition, culture, rule-of-law principles and the global trend towards restorative justice mingle and interact. It also provides us with first-hand experience and expert interpretations of this programme, drawing upon interviews with six long-time observers and practitioners in these two jurisdictions. The points raised in this book, by both the author and the interviewees, are significant to understand this programme and the judicial systems of the PRC and Taiwan.
Among all these crucial elements discussed in this book, the role of the political system deserves some more attention. Noting the risk of violating rights and voluntariness in VOR, Berti attributes it mainly to the complex shades of Confucianism, namely that Confucian ideology stresses community good, rather than individual rights. According to Berti, the PRC legal system is a mix of traditional culture and Marxist elements, which is characterized as socialist legality supporting VOR values including repentance and rehabilitation. This argument might be strengthened by exploring the interplay between the shades of Confucianism and the socialist elements supporting VOR values. A critical discussion of the scholarly work probing the role of the Chinese Communist Party in deliberately shaping and employing the mediation system as a coercive tool serving various political goals ever since the Mao era might reinforce Berti's argument. A comparative look at China and Taiwan could be rather crucial and illuminating, yet Berti's discussion of the two political systems remains largely limited to a basic introduction of the institutions conducting this programme. Overall, this book seems to follow the logic of Asian values – it essentially stresses the contrast between China/Taiwan and the West based on Confucian values and thereof refutes the exportation of VOR – while concluding that the “Westernization” of the legal system and society can promote VOR. This core point may benefit from further explanation.
