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Notes
One notable exception is a collection of the practice of several nations (Bradley 2007). Nevertheless, discussion in this collection was rather sketchy and the majority of countries collected are still Western nations. As anonymous reviewers pointed out, our review of previous and comparative studies in this article are largely limited to English publications dominated by common law nations such as the United States. We well recognized such a limitation and our very effort in this study is to examine a non-Western nation that is not practicing a common law system.
The CPL was first adopted in 1979, and was amended in 1996 and 2012. Discussions in this article are based on the most recent 2012 CPL.
Under the CPL (e.g., Articles 187 and 208), a single judge could be utilized in cases subject to simplified/summary procedure (jianyi chengxu) where the defendant could be sentenced to a fixed-term of imprisonment of not more than three years, public surveillance or punished with fines, the facts of the case are clear and the evidence sufficient, and the procuratorate agree to the procedure. In contrast, cases with more serious nature shall be tried by a collegial judge panel, and all cases tried by intermediate level courts and provincial high courts utilize a judge panel.
This was confirmed by an empirical study conducted by a research team (The Research Group of Revolution and Improvement on Chinese Criminal Procedure of Second Instance, 2010).
A distinction is made between a judicial judgment (panjue) and a judicial order (caijue) in China. While the former deals with substantive issues, the latter deals with procedural issues. In case of the latter, the defendant has 5 days to make a final decision about appeal after receiving such an order.
Per CPL, a 2-month extension may be allowed upon approval by the High People’s Court of a province, autonomous region or municipality under the following circumstances: in (a) grave and complex cases in outlying areas where traffic is most inconvenient; (b) grave cases that involve criminal gangs; (c) grave and complex cases that involve people who commit crimes from one place to another; (d) grave and complex cases that involve various quarters and it is difficult to obtain evidence; or (e) in case of a criminal suspect who may be sentenced to death (Article 232). In addition, Article 232 allows further extension (no specific terms stipulated) upon approval by the national Supreme People’s Court. Theoretically, such extension can go unlimited without any violation of the officially stipulated statute of limitations. In our analysis below, we did not include in our calculation such a privilege as it is non-quantifiable.
Technically, as one reviewer pointed out, the variable ‘appeal length’ (measured in days) could be treated as an interval level variable and therefore a series of ‘T-tests’ could have been utilized for most of our analyses in Table 3 (with ‘trial court sentence’ as an exception with multiple categories). However, we grouped the variable ‘appeal length’ into three categories and turned to cross-tab analyses in this study. As we showed, categorizing ‘appeal length’ into three categories based on the stipulated statute of limitations by law would allow the reader to gain more detailed information about the law (Fig. 1) and see how many cases were actually concluded within the statute of limitation and how many others went beyond the statute of limitations (Table 2). Note that the results based on T-tests (available upon request) are essentially identical to the outcomes of the cross-tabulations.
We dichotomized (as ‘yes/no’) all crimes into crimes against persons and others. The former in our sample include robbery, rape, assault, sexual assault against woman and children, false imprisonment, kidnapping, homicide, and affray. Then, we followed the Western standard to dichotomize whether the crime is violent crime or not. Violent crimes include homicide, robbery, rape, and assault. Note that our violent crime categorization is actually part of and therefore embedded in crimes against persons.
Further diagnoses show that the level of appellate courts and the economic level of the court locale are significantly correlated, and the results of cross-tab Chi-square analysis and partial correlation analysis between the economic level and the appeal length are no longer statistically significant after controlling for the level of appellate courts.
Our reversed group includes also modified cases (conviction and/or sentence).
Two other documents that Chinese judges brought to our attention on this particular issue are the Adoption of Standard Format of Court Judicial Documents (Trial) (issued by the Supreme Court in 1993) and a related interpretation in 1993. Neither specifically stipulated that dissenting opinions are necessary in judicial documents.
Granted, it is very likely that our measure of proactive review is underestimated, as it is possible that appellate judges exercised proactive review but found no mitigating factors, therefore reporting none in the final judicial documents. Our focus is indeed on the effect of finding mitigating factors via proactive review on the final disposition.
Note that in five cases (with nine defendants), attorneys utilized the ‘no specific reason’ ground nine times against their clients’ convictions, simply hoping such grounds successful thanks to co-appellants in the same case whose appeal turned out to be successful. One of such claims was actually accepted.
We run further testing and diagnosis (results not shown in this paper) based on the 2009 data only: the overall results indicated rather similar patterns as reported in our analyses, but many of the bivariate results failed to pass the conventional .05 significance level (possibly due to the reduced sample size). Among the ones that are still significant, we note that (1) under closed court review, appellants with attorneys in appeal would be more likely to have an extended appeal length than appellants without attorneys (p < .001) and appellants whose cases went into distance with extended appeal length were more likely to have their cases reversed (p < .001); (2) when appellate judges found mitigating facts for defendants via their proactive review, defendants were more likely to have their cases reversed (p < .001); (3) appellants assisted with attorneys were more likely to have their cases reversed (p < .001). All of them reconfirmed our analyses based on the overall data.
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Kuang, K., Liang, B. Efficiency and Justice and Fairness: An Empirical Analysis of Criminal Appeals in Hunan Province, China. Eur J Crim Policy Res 21, 565–590 (2015). https://doi.org/10.1007/s10610-014-9266-2
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DOI: https://doi.org/10.1007/s10610-014-9266-2