The Roles of Local Rules of Criminal Procedure in the Process of Rule by Law in China

By Changcheng, Li | Canadian Social Science, March 1, 2014 | Go to article overview

The Roles of Local Rules of Criminal Procedure in the Process of Rule by Law in China


Changcheng, Li, Canadian Social Science


Abstract

Although China has a unitary tradition, there exist a large number of local rules in criminal procedure. Based on more than one thousands of copies of local rules of criminal procedure and relevant investigations, the article analysis the important functions of local rules of criminal procedure in the process of rule of law in China. In order to refine laws and regulations and guide pilot reforms, judicial offices draw up local rules of criminal procedure. These local rules also build mechanisms of coordinations between judicial offices and judicial internal offices and government departments, and local rules regulate the administration of justice system of judicial personals and business. In the aspect of protection of rights, local rules of criminal in China succeed in strengthen the rights of defendant and counsel and victim and prisoners. In addition, some controversies against local rules of criminal procedure in China are discussed. Finally, the article offer some suggestions to improve the justify of local rules in criminal procedure in China,such as admitting the power of local judicial offices to make rules and standardizing the procedure of formulating rules,and it's necessary to set a bottom line and effective relieving courses.

Key words: Local rules of criminal procedure in China; Rule by law; Function

INTRODUCTION

Local rules of criminal procedure in China refer to the rules related to criminal procedure which is laid down by local judicial offices in Chinese mainland. Although China has a unitary tradition, there exist a large number of local rules in criminal procedure. The author collected more than one thousands of copies of local rules of criminal procedure in three years. In January in 2012 the Supreme People's Court and the Supreme People's Procuratorate sent a notice which prohibited local courts and procuratorates to lay down rules of criminal procedure. But two years on, the notice isn't been carried out, and many judicial offices in various regions continued to formulate local rules to implement the new criminal procedure law which come into force in 2012 in China.

Why there are so many local rules of criminal procedure in China? Probing the causes help to break the unified illusions on the system of the rule of law which are hold by people and promote a new route of rule by law from lower to upper.

What's the function of local rules of criminal procedure in China? What's the controversy against local rules of criminal procedure in China? Based on these two questions, the following article is divided into two corresponding parts.

1. THE FUNCTIONS OF LOCAL RULES OF CRIMINAL PROCEDURE IN CHINA

In the process of rule of law in China, the local rules of criminal procedure play an important role which cannot be replaced in five aspects as below.

1.1 Refining Laws and Regulations

On the whole, Chinese law aren't detailed and meticulous. Because there are many detailed problems which couldn't be regulated comprehensively by one time of legislation during the primary stage of socialism, so Chinese legislations always adopt the principle of from-coarse-to-fine. It's less than forty years since China adopted the policy of the reform and opening up policy, therefore Chinese mainland is inexperienced in the construction of legal system. Deng xiaoping once stressed the point that China should step up the pace of legislation,and he said that people should not wait for complete sets of fine laws because of better than nothing. The total articles of criminal procedure law in China are less than three hundreds, which is much less than in other developed countries.

Local judicial offices who formulate local rules refine criminal procedure law from all aspects. For example, in 2008, guangdong higher people's court laid down Guidance on Commutation and Remand for New Trial of Criminal Cases, which clearly defined the situations of insufficient evidence and erroneous application of the law. …

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