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Criminal procedure, law reform and stability

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Criminal procedure, law reform and stability
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   250 8 Criminal procedure, law reform and stability Zhiyuan Guo The Criminal Procedure Law (CPL) is one of China’s most important laws. Directly or indirectly it involves the rights and interests of all citizens, since any citizen can be  potentially a suspect or victim of a criminal offence. A number of provisions in the CPL have bearing on the fundamental rights of citizens as listed in the Constitution since they provide concrete mechanisms for implementing these abstract principles. The CPL has therefore long been considered China’s ‘mini Constitution’, ‘practical Constitution’ or ‘Constitution in action’. The first CPL was enacted in 1979, substantially revised in 1996 and overhauled again in 2012. 1  This chapter traces the development of these reforms to China’s CPL, and explores how concerns for stability have impacted upon them. In China establishing and maintaining order in society is considered the ultimate goal of both crime control and human rights protection. Social order is interchangeable with stability so it can be said that stability concerns underlie both the crime control and due  process goals of criminal procedure. For legal reformers, reform proposals conducive to 1  English-speaking observers of Chinese law use different terms to account for the change to the CPL legislated in 2012. For some, this change is an amendment, for others it is a revision. Some reference the quality rather than the quantity of the change and speak of it as reform.   251social stability will usually prevail. In this chapter I first introduce the background and  process of law reforms relating to criminal procedure and follow with discussion of some key changes in the new CPL. 2  I then explore the reasons for these reforms, arguing that in the 2012 CPL amendment, stability is the most important goal. In conclusion I anticipate the challenges that will confront China in implementing the new CPL. CPL reforms in the last decade Since the CPL was amended in 1996, circumstances for reform of both the CPL and the overall system of law in China have changed significantly. Both the overall national goal of ‘managing state affairs according to the law’ (  yifa zhiguo ) and the imperative that ‘the state should respect and protect human rights’ have been codified in the Constitution and made essential constitutional principles, indicating the increasing importance China has placed on the concepts of rule of law and human rights protection. Yet over the past two decades, newly emerging crime categories have precipitated the 2  A full English translation of the 2012 CPL courtesy of the Danish Institute for Human Rights is available at http://lawprofessors.typepad.com/files/130101-crim- pro-law-as-amended-en.pdf. Accessed 27 August 2013.   252need to strengthen the capacity of crime control. 3  In this context the CPL has an obvious role in legal reform, to accommodate new requirements from judicial practice and society as a whole. The imperative for CPL reform has also srcinated from defects in the 1996 CPL. Some of the legal processes created by previous revisions to the CPL proved unworkable in practice and created problems in implementing the 1996 law. For example, extorting confessions by torture was not addressed appropriately in the 1996 CPL, leading to a number of wrongful convictions. The cases of She Xianglin (Li 2005), Du Peiwu (Peng and Shi 2000) and Zhao Zuohai (Ji 2010) illustrate the numerous examples of such scandals. Another defect was the criminal defence system, which remained undeveloped even after the 1996 revision, and defence lawyers continued to encounter many ‘difficulties’ in fulfilling their responsibilities. For instance, it was still difficult for lawyers to access both clients who were criminal suspects and these clients’ case files for review, and to collect evidence from witnesses on the victim’s side. The CPL needed comprehensive revision not only to improve the letter of the law, but also to solve practical problems in its operation. However this revision took much longer than anticipated. It was on the legislative agenda for the 10 th  National People’s Congress (NPC) Standing Committee as early as 3  As terrorism crime has become a global problem, China is no exception. Yet corruption remains China’s biggest crime headache and juvenile delinquency has  become an ever more serious social problem.   253in 2003. By the end of 2004, the central government issued a series of judicial reform  plans with many of their 35 goals involving revisions to the CPL. In 2006–07 the NPC Standing Committee’s Legislative Affairs Commission convened several symposiums on CPL reforms. However the participants, including practitioners and academics, held divergent opinions on many issues such as the use of illegally obtained evidence in criminal trials and the standing of a defence lawyer in the investigative stage. The revision plan was therefore postponed until 2008 when the central government issued another set of judicial reform opinions that proposed 60 goals for judicial reforms, a number involving CPL reform. Only after this was revision to the CPL returned to the legislative agenda, this time for the 11 th  NPC Standing Committee in 2009. During the 2000s, the CPL revision process was a constant focus of academic research and debate, and progress in other areas of law paved the way for formal amendments to the CPL. For example, the Supreme People’s Court (SPC) took back the exclusive power to review all capital cases in January 2007 (Li and Cheng 2008). A revised Lawyers’ Law took effect on 1 June 2008, and two sets of important evidence rules were enacted in 2010, including ‘Rules on Examining and Judging Evidence in Death Penalty Cases’ and ‘Rules on Exclusion of Illegal Evidence in Handling Criminal Cases’. All of these judicial interpretations and regulations have been incorporated into the new CPL. After intense preparations and discussions, on 30 August 2011 a draft of the amendment to CPL was posted on the website of the National People’s Congress for  public comment. This was the first time the Chinese legislature had invited the general   254 public to comment on a proposed amendment to the CPL. The move opened another chapter in the struggle to protect society against crime while protecting individuals against arbitrary state power. By the end of September 2011, the legislature had received 80,953 items of comments or suggestions by 7,489 persons or organizations from all walks of life (Zhang 2011). The draft amendment srcinally contained 99 articles, but with comments from the public and experts, 111 amendments expanded the new CPL to 290 articles. The process presents clear proof of public participation in the legislative process. On 14 March 2012 a 92 per cent majority passed the new CPL, to become effective on 1 January 2013. 4  The amendment overall concerns seven key areas: rules of evidence, coercive measures, criminal defence and representation, investigative measures, trial  procedure, enforcement procedure and special proceedings. This amendment has a number of features. 5   4  Because legislated in 2012 and enacted in 2013, this version is commonly referred to as the 2012 CPL and as the 2013 CPL, depending upon the user. Either is taken as acceptable. 5  Key features of the revised CPL in the view of some NPC members (  Focus on Ten  Highlights of the ‘Great Revision’ of the Criminal Procedure Law  are on the NPC website in Chinese at http://www.npc.gov.cn/huiyi/lfzt/xsssfxg/2012-03/09/content_1707024.htm. Accessed 24 August 2013; and in English on the Law Library of Congress website at
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