Reforming China's Criminal Procedure Law

By Winckler, Hugo | China Perspectives, July 1, 2012 | Go to article overview

Reforming China's Criminal Procedure Law


Winckler, Hugo, China Perspectives


(ProQuest: ... denotes non-US-ASCII text omitted.)

Analysis by Hugo Winckler based on:

- Wang Jianxun, "The provisions of the reform of criminal procedural law legalising secret investigations are a step backwards," Caijing wang, 5 September 2011. (1)

- Chen Youxi, "The legalisation of secret investigations is an important violation of political integrity," Zhongguo wangluo dianshitai - CNTV web site, Opinion section, 27 November 2011. (2)

- Wu Zhehua, "Chen Weidong discusses reform of the criminal procedure law: Behind each article there is a story," Zhongguoguangbo wang, 8 March 2012. (3)

- Chen Guangzhong, "The provisions of the great reform of [China's] criminal procedure law represent progress," Jinghua Shibao - Beijing Times, 9 March 2012. (4)

- Xie Doudou, Wang Heyan, "The vicissitudes of the clause on secret detention,"Caixin wang, 12 March 2012.(5)

- "A focus on the great reform of criminal procedure law: Important perspectives on the 'little constitution'," Banyuetan wang, 13 March 2012.(6)

- Li Xiangning and Xu Kai, "Criminal procedure law amendment passes amid controversy," Caijing, 25 March 2012.(7)

- Yao Dongxing, "Behind the scenes of the 'great reform': Four protagonists' narratives about ten years of power games," Zhongguo jingji zhoukan- China Economic Weekly, 27 March 2012. (8)

On 14 March 2012, the PRC adopted a draft amendment to its crim- inal procedure law (CPL), bringing an end to a process of reform begun in 2009. In that year, the National People's Congress created a task force to conduct a national survey on the proposed amendment. This committee interviewed legal professionals from all levels of the judicial sys- tem, and in doing so began a wide-ranging debate on legal reform. The re- vised law will enter into force on 1 January 2013, and the consultative process involved in its preparation shows that China's political leadership wants to be seen as listening to the people.

Over the last few years, the Chinese media have carried news of a series of highly publicised criminal cases. Yao Dongxing says that the public was allowed to express opinions on each of these cases and that people took an active interest in the legal proceedings. Wang Jianxun says the use of illegal methods to collect evidence led to several unfair convictions (yuancuo anjian ...). These miscarriages of justice caused a public outcry and a dramatic drop in confidence in the authorities. The crisis of confidence in the judicial system is frequently discussed in the Chinese media. The way the amendment to the CPL was presented to the public was therefore as important as its substance: reform was seen as a step towards regaining public confidence. This meant the Chinese press had an important role to play in explaining and justifying the new law. The framers of the law hoped to find a balance between giving concessions to the public and maintaining the judicial system as a tool of control over Chinese society.

A new discourse on criminal procedure law

The media coverage of the new law shows a shift in perspective on the role of criminal procedure law in China. The CPL is no longer presented as a tool of the authorities for bringing criminals to justice. Instead, the law is described as guaranteeing individuals' fundamental freedoms, but with a necessary trade-off between respect for those freedoms and the require- ments of justice. This conception of the spirit of the CPL is very different from the Maoist interpretation. The transition took place in stages. The CPL was enacted in 1976 and amended for the first time in 1996. The 2012 re- form will be its second revision. Yao Dongxing says the evolution of the CPL reflects increasing public awareness of fundamental individual freedoms. Including individual rights in the text made the CPL a "mini-constitution" (xiaoxianfa ...). This is a real breakthrough, since judicial application of constitutional provisions remains limited and uncertain, and unlike a con- stitution, the CPL is fixed and is applied every day in all criminal cases at every level of the judicial system. …

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