Academic journal article International Journal of Criminal Justice Sciences

Between Reality and Idea: Implementing the Rule of Law in China's Pre-Trial Process

Academic journal article International Journal of Criminal Justice Sciences

Between Reality and Idea: Implementing the Rule of Law in China's Pre-Trial Process

Article excerpt

Introduction

The Chinese pre-trial process is generally characterized by legal scholars as the preparatory stage of the Chinese criminal justice system (Leng & Chiu, 1985; Turack, 1999; Fan & Zhang, 2005; Chen, 2005). At this stage, arrest, detention, investigation and prosecution are respectively carried out by the Chinese public security organs (the police) and the procurators serve the trial sessions. Professor Chen Ruihua, one of the leading legal professionals in China, further points out that the pre-trial process in China is composed of three separate and independent stages, namely initiation of a case (Li'an), investigation and prosecution (Chen, 2005). Each stage is regulated by self-governing procedural settings, constituting one fragment of the "streamlined work processes" in the Chinese criminal justice system (Chen, 2005). Therefore, the Chinese legal circle is normally inclined to examine the pre-trial process in the context of criminal justice. In terms of its deficiencies, legal practitioners and academics are intended to promote this phase by reforming the current criminal procedure law in order to meet the requirements of the rule of law and proceduralism (See, e.g., Chen, 2007; Chen, 2006). However, as a stage of implementing law prior to trial, the Chinese pre-trial process should not be defined exclusively as a criminal process. Rather, a uniquely designed administrative justice system that has been long employed in the Chinese legal history is supposed to be considered as another important constituent in China's pre-trial justice system.

In parallel with the formal criminal justice system, China's administrative justice system has been in existence for several decades since its establishment in the 1950s. Unlike the former that is aimed at punishing criminality, the latter serves as an effective means to deal with minor offences. Those who commit deviant acts, such as prostitution, drug abuse and public order offenses, are handled by the administrative apparatus through administrative procedures, and sanctioned by administrative regulations. Therefore, conceptually, the administrative justice system refers to the regulatory framework in which the Chinese authorities, particularly the police, incarcerate minor offenders under a variety of administrative detentions to maintain public order, social and political stability. Among all administrative custodial measures, Reeducation through Labor (Laodong Jiaoyang), Detention for Education (Shourong Jiaoyu), Coercive Drug Rehabilitation (Qiangzhi Jiuedu) and Public Order Detention (Zhi'an Juliu) are four major measures comprising of incarceration imposed on offenders who commit socially disruptive behaviors.

Clearly, the administrative justice system is largely employed alongside the state's criminal justice powers to target conduct considered to be socially disruptive (Biddulph, 2007). Since the introduction of the economic modernization policy in the late 1970s, the maintenance of social control has been very important to guarantee the success of the economic reforms (Senger, 2000). Many legal scholars have even argued that the policy of social control itself has been one of the crucial pillars of reform (Bakken, 2000; Chen, 2002). Therefore, the administrative justice system has been heavily relied on in practice to serve as a "second line of defense" to preserve social order and public security.2 The use of administrative detention powers is viewed as a flexible tool in the hands of the police to address social order problems, constituting the lower level of crime prevention strategies.

Despite the practical effect the Chinese pre-trial process exerts on the maintenance of social order, both the criminal pre-trial process as well as the various forms of administrative detentions are often portrayed as representative of China's failure to establish rule of law (Peerenboom, 2004). Clearly, one of the most heavily criticized aspects of the Chinese criminal justice system has been the miscarriage of justice in the pre-trial process. …

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