Glittery Promise vs. Dismal Reality: The Role of a Criminal Lawyer in the People's Republic of China after the 1996 Revision of the Criminal Procedure Law

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ABSTRACT

In this Article, the Author examines the recent revisions to the Chinese Criminal Procedure Law. The Author maintains that while the revisions were intended to promote a more equitable criminal justice system, the political climate in fact has rendered the revisions a step down for both defense attorneys and defendants. The Author analyzes different aspects of the revised law in order to support this point. In his conclusion, the Author suggests some changes to the criminal procedure law that may help to bring the Chinese defense system up to international standards.

I. INTRODUCTION

Historically, Chinese lawyers have been characterized as "state legal workers" (1) who were supposed to safeguard the interests of the state instead of their particular client. An independent lawyer who confronts the state prosecutor is alien to the Confucian tradition. During the Dynasty period, individuals who aided others in litigation or advised them in legal matters were treated negatively by the government and were given the nickname "litigation tricksters" (song gun). (2) Ironically, there was an official recognition of the legitimate need for legal service, particularly in view of the high rate of illiteracy in the society. (3) While there remained a hostile attitude toward the legal professional into the Republic era, some changes were made following efforts to modernize the legal system.

After seizing power, the Chinese Communist Party (CCP) immediately abolished all Republic of China laws and prohibited the practice of the abolished laws by legal professionals. (4) As an independent profession, lawyers virtually disappeared from society. In the mid-1950s, however, China began to rehabilitate the legal system after the enactment of the Constitution (5) and the Organic Law of People's Courts. (6) The total number of lawyers nationwide in 1995 totaled only eighty-one in twenty-six cities. (7) The number of lawyers grew rapidly in the following year to 2800. (8) The number of bar associations was nineteen nationwide. (9) With the introduction of the Anti-Rightist Campaign in 1957, lawyers were criticized and purged. Many lawyers were sent to labor camps for re-education because of their professional role in defending the criminally accused. Until 1959, the government closed aU law offices through which lawyers provided legal services throughout the nation. Again, lawyers vanished from the normal life of the ordinary Chinese. (10)

In the two decades between 1959 and 1980, China did not have any active lawyers, nor did China have any viable laws to be practiced by lawyers. The introduction of the Interim Regulations on Lawyers enacted by the National People's Congress Standing Committee on August 26, 1980 began the rehabilitation of the role of lawyers. Chinese lawyers have played an increasingly important role, initially in the commercial area and then in all aspects of society.

More specifically, the Lawyers Law of People's Republic of China (Lawyers Law), which was promulgated in 1996, turned a historical page for the legal profession. (11) Under the Lawyers Law, a lawyer is defined as "a professional who provides society with legal service" (wei shehui tigong falu fuwu de zhiye renyuan) instead of "a state legal worker" (guojia de falu gongzuozhe) as in the old provision. (12) This change is expected to enable lawyers to work more independently and to provide legal services more effectively. In addition, the Lawyers Law details the scope of legal services that a licensed lawyer can provide and ensures that lawyers are protected by law while performing their legal duties. (13) Lawyers are also legally required to provide legal aid to indigent people. (14) The Lawyers Law provides a legal guarantee for the lawyer's practice in a psychological and arguably a material sense. Overall, the Lawyers Law brings prosperity to the legal profession. …