Academic journal article Asia Pacific Law Review

Win Some, Lose Some: Reforms of China's Simplified Criminal Procedure

Academic journal article Asia Pacific Law Review

Win Some, Lose Some: Reforms of China's Simplified Criminal Procedure

Article excerpt

I.Introduction

'Fairness is priceless, but resource is limited.' Criminal procedure in each country must balance two values - justice and efficiency - through the split-flow of complicated and simple cases. Since the 1950s and 1960s, there has been a relatively sharp increase in crime rates in Europe and the United States.1 Both the Anglo-American countries that use the adversarial system and the European countries that adopt the inquisitorial regime initiated a far-reaching judicial movement based on the principle of negotiated justice (including plea bargaining, criminal reconciliation, etc.)2 and the value of efficiency. For example, the U.S. Supreme Court authorized the use of plea bargaining as a form of American justice in case Brady v United States, that is, as long as certain procedures were followed, plea bargaining was constitutional.3 In Germany, criminal penalty order and summary trial are the two main simplified procedures aiming to alleviate the heavy workload. In addition, a form of negotiated justice in practice that is similar to the plea bargaining in the United States has been developed in order to enhance the efficiency of handling white-collar and other complicated criminal cases.4 Since Italy changed its criminal procedure from inquisitorial model to adversarial model in 1988, several kinds of simplified criminal procedures that aimed to enhance judicial efficiency were incorporated into the Italian criminal justice system.5 The application of above-mentioned simplified procedures generally depends on two preliminary conditions: the minor criminality (usually in continental countries) and the defendant's guilty pleading (generally in the Anglo-American countries).6

Legal scholars around the world have also reached a consensus that simplified procedure is necessary under some circumstances. For example, the 14th Congress of the International Association of Penal Law has once made the following recommendations:

It is possible to use simplified procedure in simple cases, and it should be used. However, the defendant should have the right to know the content of the allegations against him/her and the evidence thereof, and the defendant should also have the right to trial, including the right to provide evidence and the right to hire a lawyer for defense.7

It can be said that how to build a scientific, efficient and righteous simplified procedure has become an important issue in criminal justice reform of each country.8

China, as one of the largest transitional regimes in the world, is undergoing the modernization of ordinary and simplified procedures simultaneously. Since 1978, how to ensure the legitimacy of procedures has been the main theme of China's criminal justice reform.9 Meanwhile, because of increasing crime rate and caseload as shown in Section II (A) below, the Criminal Procedure Law (CPL) 1996 set up the simplified procedure for the first time. Subsequently, another two kinds of simplified procedures were created by the Several Opinions on Application of Ordinary Procedure to Hearings in 'Cases Where the Defendant Pleads Guilty' (for Trial Implementation) (Opinions 2003) and the CPL 2012, respectively. The goal of strengthening the simplified procedure was further emphasized in the Communique of the Fourth Plenary Session of the 18th Chinese Communist Party Central Committee (2014).10 To enforce this central policy, in June 2014, the Standing Committee of the National People's Congress adopted the Decision of the Standing Committee of the National People's Congress on Authorizing the Supreme People's Court and the Supreme People's Procuratorate to Launch the Pilot Program of Fast-track Procedure for Criminal Cases in Certain Areas (Decision) in the form of legislation. Then, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security and the Ministry of Justice jointly issued the Measures for Launching the Pilot Program of Fast-track Procedure for Criminal Cases in Certain Areas (Measures), which started a new round of reform on the simplification of criminal process. …

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