Transparency and legitimacy in Chinese criminal procedure : beyond adversarial dogmas / Shuai Zhang.
2017
KNQ4610 .Z458 2017 (Map It)
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Details
Author
Title
Transparency and legitimacy in Chinese criminal procedure : beyond adversarial dogmas / Shuai Zhang.
Published
Utrecht : Eleven International Publishing, [2017]
Call Number
KNQ4610 .Z458 2017
Former Call Number
Ch.P 860 Z613 2017
ISBN
9462367620
9789462367623
9789462367623
Language Note
In English; preface and summary in Chinese.
Description
xxv, 281 pages : illustrations ; 24 cm.
System Control No.
(OCoLC)995306396
Summary
In recent years, the legitimacy of China's criminal justice system has been increasingly challenged by the Chinese populace, in part due to the numerous exposed miscarriages of justice. The Chinese academic mainstream as well as the political and judicial authorities have looked towards the classical Anglo-American model of an adversarial criminal justice system to solve this problem. Reforms were subsequently introduced to add weight to court sessions and to provide external transparency of criminal trials, whilst curtailing the weight of pre-trial proceedings and the case file. Yet, these solutions have failed to restore the legitimacy of China's criminal justice. This book goes beyond adversarial dogmas and concentrates instead on internal transparency of criminal procedure, presupposing that in a criminal justice system such as that of China internal transparency of criminal procedure is a critical condition for external transparency and crucial to the achievement of legitimacy. The author proposes to nurture impartiality of public prosecutors and to emphasise internal transparency of criminal procedure. Prosecutorial control over the police and judicial checks on the procuratorates should be improved as well and active judicial investigation restored where necessary. External transparency, on the other hand, needs to be enhanced in a more cautious or internalized way.
Note
In recent years, the legitimacy of China's criminal justice system has been increasingly challenged by the Chinese populace, in part due to the numerous exposed miscarriages of justice. The Chinese academic mainstream as well as the political and judicial authorities have looked towards the classical Anglo-American model of an adversarial criminal justice system to solve this problem. Reforms were subsequently introduced to add weight to court sessions and to provide external transparency of criminal trials, whilst curtailing the weight of pre-trial proceedings and the case file. Yet, these solutions have failed to restore the legitimacy of China's criminal justice. This book goes beyond adversarial dogmas and concentrates instead on internal transparency of criminal procedure, presupposing that in a criminal justice system such as that of China internal transparency of criminal procedure is a critical condition for external transparency and crucial to the achievement of legitimacy. The author proposes to nurture impartiality of public prosecutors and to emphasise internal transparency of criminal procedure. Prosecutorial control over the police and judicial checks on the procuratorates should be improved as well and active judicial investigation restored where necessary. External transparency, on the other hand, needs to be enhanced in a more cautious or internalized way.
Bibliography, etc. Note
Includes bibliographical references (pages [251]-262).
Series
Record Appears in
Table of Contents
List of abbreviations
xvii
Introduction
1
1.
Interaction between legitimacy and transparency
1
2.
Interaction between legitimacy and transparency in China
8
3.
Research topic
10
3.1.
Historical background of the research topic
10
3.2.
Problem setting
17
3.3.
Research questions
26
4.
Methodology
27
4.1.
Literature review and normative analysis
28
4.2.
Theoretical review and check-scientific added value
29
4.3.
Common case study
29
4.4.
Comparative legal study
29
4.5.
Analysis from a perspective of macro-history
31
Part I: China's Status Quo: Legitimacy In Decline
33
ch. 1
Basic tenets of China's current criminal justice system
41
1.1.
Introduction
41
1.2.
principles of Chinese criminal procedure
45
1.2.1.
independence of adjudicative and procuratorial powers
45
1.2.2.
check and balance principle
46
1.2.3.
'two-tier' system of hearing
48
1.2.4.
presumption of innocence
51
1.3.
major actors involved in the Chinese criminal procedure
54
1.3.1.
public security organs
54
1.3.2.
people's procuratorates
58
1.3.2.1.
development of the procuratorial system in China
60
1.3.2.2.
current position of the public procurators in different stages
65
1.3.2.3.
current prosecutorial system of China
68
1.3.2.4.
checks subject to procuratorates
70
1.3.3.
people's court
71
1.3.4.
prison
71
1.3.5.
political-legal work committee
72
1.3.6.
defence
72
1.3.7.
victims
74
ch. 2
Transparency of Chinese criminal procedure
75
2.1.
process of common criminal cases in China
80
2.1.1.
Filing a case
80
2.1.1.1.
Reporting and accepting a case
80
2.1.1.2.
Preliminary investigation and decision of filing a case
83
2.1.2.
Investigation
85
2.1.2.1.
Summoning, custody and first interrogation
85
2.1.2.2.
Formal pre-trial detention and ongoing interrogation and questioning
88
2.1.2.3.
Conclusion of investigation and compilation of police dossier
89
2.1.3.
procuratorate proceedings
90
2.1.3.1.
Review and approval of request for arrest
90
2.1.3.2.
Review and initiation of public prosecution
91
2.1.4.
Court proceedings
93
2.1.4.1.
Pre-trial preparation
94
2.1.4.2.
Court session
96
2.1.4.3.
Judicial deliberation and decision
97
2.1.5.
Execution
97
2.2.
Internal transparency in common criminal cases
97
2.2.1.
Police disclosure
98
2.2.2.
Prosecution disclosure
109
2.2.2.1.
development of prosecution disclosure in China
109
2.2.2.2.
current mechanisms of prosecution disclosure
113
2.2.3.
Defence disclosure 115 Interim conclusions of Part I
117
Part II: Exemplary Adversarial Systems
119
ch. 3
Basic tenets of the 'pure' adversarial system
123
3.1.
General: A common law tradition
123
3.2.
Conceptual level
124
3.2.1.
Epistemology and methodology
124
3.2.2.
outlook on justice
125
3.2.3.
Community-based administration of justice
125
3.3.
Institutional level 126 Contents
ch. 4
Basic tenets and internal transparency of the English criminal procedure
131
4.1.
basic tenets of the English criminal procedure
131
4.1.1.
historical development of the modem English system
131
4.1.2.
current position of the public prosecutors in England
139
4.1.3.
Checks and balances with regard to the CPS
143
4.2.
Internal transparency of the English criminal procedure
146
4.2.1.
Prosecution disclosure
146
4.2.2.
Defence disclosure
149
4.3.
Summary
150
4.3.1.
reasons that underlie England's reform on disclosure
150
4.3.2.
Primary conclusions
151
ch. 5
Basic tenets and internal transparency of the Scottish criminal procedure
155
5.1.
Basic tenets of the Scottish criminal procedure
155
5.1.1.
current function and position of Scottish prosecutors
156
5.1.2.
check and balance subject to the Scottish prosecution service
158
5.2.
Internal transparency of the Scottish criminal procedure
160
5.2.1.
Historical development of disclosure mechanism in Scotland
160
5.2.2.
state-of-the-art disclosure mechanism in Scotland
161
5.3.
Summary
163
5.3.1.
reasons that underlie Scotland's recent reform on disclosure
163
5.3.2.
Primary conclusions
164
ch. 6
Basic tenets and internal transparency of the US criminal procedure
167
6.1.
Basic tenets of the US criminal procedure
168
6.1.1.
Investigators
169
6.1.2.
Prosecutors
170
6.1.3.
defence
172
6.1.4.
decider
174
6.2.
Internal transparency of the US criminal procedure
174
6.2.1.
Pre-trial discovery
175
6.2.1.1.
Discovery by the defence
176
6.2.1.2.
Discovery by the prosecution
178
6.2.1.3.
Remedies and sanctions
180
6.2.2.
defence's constitutionally guaranteed access to evidence
181
6.3.
Summary
182
ch. 7
Comparison between the adversarial systems
185
7.1.
Basic tenets
185
7.1.1.
Similarities
185
7.1.2.
Differences
186
7.2.
Internal transparency
187
7.2.1.
Similarities
187
7.2.2.
Differences
187
7.3.
Summary 188 Interim conclusions of Part II
191
Part III: China Revisited And Final Conclusion
193
ch. 8
China's typical pattern of legitimate truth-finding and fair justice
195
8.1.
historical background of the Chinese legal system
195
8.1.1.
Feudal Era (21st century BC-221 BC)
196
8.1.2.
Imperial Era (221 BC-1911 AD)
203
8.1.2.1.
First Empire
204
8.1.2.2.
Second Empire
206
8.1.2.3.
Third Empire
206
8.2.
China's essential pattern of legitimacy building
209
8.2.1.
traditional pattern
209
8.2.2.
state of the art
215
8.3.
prospect of China's essential pattern of legitimacy building
219
8.3.1.
impossibility to restore the traditional duality-patterned legitimacy
219
8.3.2.
possible way to reform the legitimacy building in China
222
ch. 9
Final conclusion
223
9.1.
Comparison between China and the adversarial systems
223
9.1.1.
Basic tenets
225
9.1.2.
Internal transparency
225
9.1.3.
Summary
226
9.2.
Possible solutions in the future
228
9.2.1.
pitfalls in the current system and sensible orientation of the solution
228
9.2.2.
desirable normative solution
234
9.2.2.1.
About the basic tenets
234
9.2.2.2.
About internal and external transparency
235
9.3.
feasibility and pitfalls of the proposed solutions
236
Summary
241
Samenvatting
245
249
References
251
Annex I: Samples of relevant case file instruments in China
263
Annex II: Relevant legal provisions mentioned
275
Annex III: Statistics
277
Curriculum Vitae
283