Abstract
This chapter provides nuanced observations of selected provisions of the Chinese Criminal Law and their practical interpretations. A two-prong approach is adopted to illustrate how the government is coping with the dilemma of maintaining legitimacy of the legal system on the one hand while adhering to the increasingly confused and challenged orthodox socialist legality on the other. The remainder of the chapter contains examples of the actual application of the recently installed Chinese Sentencing Guidelines and observations of the Basic People’s courts in operation.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Dworkin’s (1986) book is an inspiration for the title and theme of this chapter.
- 2.
Due to its overwhelming caseload, civil cases have long been tried in multiple courtrooms simultaneously.
- 3.
Articles 194 and 195 in the CL97 specify in similar format with similar sentences frauds by the means of “financial bills” (Article 194) and “letter of credit” (Article 195). In the latest revised version of Chinese Criminal Law (which took effect in May, 2011), Article 199 is revised to read as “Whoever commit the crime mentioned in Article 19 of this section shall, if…” without any mentioning Articles 194 and 195.
- 4.
It is interesting that the defense made a point that Fortune 500 companies operate in a similar way, i.e., borrowing from investors while already in debt and without certainty for the margin of return for the new investors.
- 5.
Complete defense scripts filed at all stages of Wu Ying’ trial are posted on the website of King and Capital Law Firm http://www.king-capital.com/templates/second/index.aspx?nodeid=182.
- 6.
Article 203 of the CPL96 provides that “A party or his legal representative or near relative may file a petition to a People’s Court or People’s Procuratorate against a legally effective judgment or ruling, notwithstanding, the execution of the judgment or ruling may not be suspended.”.
- 7.
Majority of the non-government owned businesses in China have great difficulty in borrowing loans from the government owned banks. For these types of businesses, only ten percent of the needed loans are acquired from the government owned banks (Chinese Industry-Commerce Times 2012-3-13). Private fund-raising and loan relationship thus run a constant risk between the lines of legality and illegality. Criminalizing failed business (private loan) relationship and selective enforcement are brewing frustration and contention among small business owners. Many of the provisions in CL97 are regarded as outdated. Likewise, socialist market economy is increasingly a contested concept and a diluted orthodoxy.
- 8.
The original recommendation for prosecution is a typed document. The XXX Bureau of Public Security visibly crossed off in ink the original legal provisions cited (in italics). The substituted provision of law was added in handwritten form with the Bureau’s official stamps placed atop of each revised spot. Articles 7 and 8 included in the Decision of the Standing Committee of the Chinese National People’s Congress would later become Articles 176 and 192 in the CL97 which went into effect on October 1, 1997.
- 9.
Time (July 1, 1995) of the issuance of the National People’s Congress decision was not indicated in this document.
- 10.
The court calculated her sentence length as from Jan., XX, 19XX to Oct., XX, 20XX. The defendant would be 67 years old when released from prison.
- 11.
Similarly, in the international business arena, the U.S. and other nations have repeatedly raised serious issues about the government manipulation of the value of RMB, China’s currency. Foreign business entities sometimes take for granted the nature of Chinese socialist market economy, seeing more of the “market” but missing the critical word “socialist.”.
- 12.
Article 395 is intended to target crimes committed by the so-called “state functionary.” The line becomes blurred since the downsizing and the conversion of the former State Enterprises into flexibly structured private–public joint ventures.
- 13.
The defendant was first detained for suspected bribery charge by a specialized investigative unit within the Chinese Custom local branch. The court case dossier includes the Approval Form for Criminal Detention, the Search Warrant, the written record of the home search, signed, and thumb-printed by the defendant’s wife, a list of all personal items seized at the defendant’s home (bank deposit books, saving account numbers, deposit slips/receipts, gold jewelries, cash in the amount of RMB 180,000). Also included in the dossier are the case filing decision letter prepared by the Anti-corruption division of the XXX Intermediate People’s Procuratorate, the Arrest Warrant, and the copies of Asset-Freezing Orders issued by the State (this applies to each bank account held by the defendant and his wife).
- 14.
Although the senior judge is named as the Presiding Judge for the case, one of his junior colleagues is documented to have actually conducted all the questionings in this court hearing. The senior judge did sign off on the court transcript at the end. We are not certain how common this practice is.
- 15.
The defendant joined the Communist Youth League in the early 1970s and became a Chinese Communist Party (CCP) Member in late 1980s. The file is kept by the branch office of the CCP embedded in the company and the 13 page personal file carries the stamp of the CCP branch.
- 16.
The defendant made less than RMB 4000 a year in the late 1980s and early 1990s. Beginning from the mid-1990s, his official annual income increased to five digits and ended at about RMB 120,000 a year prior to his arrest. Altogether, his employer certified that the defendant made a total of RMB 430,000 during his employment with the company from 19XX to 19XX.
- 17.
The defendant’s wife retired at the age of 49 as a low-level municipal government employee. Her income record corresponds with the national economic growth in the last three decades of the twentieth century and its impact on ordinary government employees. She made a little over RMB 200 a year in 19XX and a little over RMB 26,000 in 19XX when she retired.
- 18.
A certificate from the XXX City Statistics Bureau is included in the dossier, stating the average yearly rate of consumption based on a family of 3 (such as the defendant’s-both parents and a single child) living in the city (survey based estimate). It is estimated that the defendant and his family would have spent a total of RMB 140,000 during the years from 19XX to 19XX.
- 19.
A small detail is noticed in the hand-written statement read by the Procurator (which is included in the case dossier) that the word “bribery” was scratched off and replaced with words indicating the charge based on CL97 Article 395. A bribery charge under CL97, if substantiated, carries a far more serious sentencing outcome, from 10-year imprisonment (for taking in bribery in a minimum amount of RMB 100,000) to life imprisonment or death sentence, plus confiscation of property. It all depends on various statutory and discretionary circumstances. Certainly, in a case charged under the bribery clauses (CL97 Articles 385 and 386), the State has much of the burden of proof, unlike using the Article 395 where the burden of proof rests solely with the defendant.
- 20.
This is within the allowable additional discretionary sentencing length adjustment (up to 10 %) that a single presiding judge or a Collegial Panel could make according to the Chinese Sentencing Guidelines (SPC 2010).
- 21.
For example, in a Basic Court we visited, there are a total of 362 court personnel among which only 141 are judges.
- 22.
Our site visits in southeast coastal provinces in China reveal the typical construction cost of about RMB 200 million for the building. Office furniture and courtroom equipment are state-of-the-art. Courtroom interior design is increasingly westernized.
- 23.
Courts with sufficient resources are asked to designate a room as the court history museum that puts on display documents and photos from the past. These materials help to make connections of the Imperial legal tradition and the evolving socialist ideology.
- 24.
45 steps from the street level to the court house entrance door were counted at one of our visits to a Basic People’s Court in a Southeast province.
- 25.
Inside the People’s Procuratorate building, we noticed that Chairman Mao’s other writing “Enforcing the Law with Gusto” (严肃执法) is posted on the wall instead (see Photo 7.1).
- 26.
We have seen digital bulletin board placed inside or outside of the court building, and sometimes in both locations.
- 27.
There is a clear historical continuity here. Interrogations and trials have always been conducted in the public since imperial time. Van Gulik’s (1956 1997) fascinating rendition of Chinese detective stories features crime solving by Judge Dee (modeled after a real imperial magistrate who lived from 630 to 700 AD in Tang dynasty), who demonstrates ample wisdom in applying shrewd psychological insights in open court trials. The customs and costumes of van Gulik’s crime novel are borrowed from Ming Dynasty (1368–1644 AD), however.
- 28.
In describing late Qing mediation practice in China, Katz (2009) cites a tea ceremony called chijiangcha in which teahouse is used as a sort of public court where disputes are resolved.
- 29.
All but one of the five photos was taken in the 1970s. The more recent photo has a stage and a curtain in an auditorium setting. It showcases a sentencing rally with symbolic public announcement of sentences that have already been given in court. The rally is one of the major components of any anti-crime campaign that puts the faces of the criminals and their crimes in front of the public (see also Trevaskes 2007, 2003).
- 30.
Variations of practices do exist across jurisdictions. For example, local courts may implement internal policy that sorts out important/sensitive cases that would either require judicial review (by a Vice-President of the court) or judicial intervention (by the criminal/civil/administrative section chief judge) prior to being considered by the full Adjudication Committee as a last resort. The former is a cautious response to the potential impact of the case outcome (e.g., cases that involve foreigners, retrial, judgment against an administrative agency, civil/commercial cases with more than RMB 2 million in dispute, or cases of concern by superior agencies or court leadership. The latter is typically targeted intervention prompted by “problematic cases” or “problematic judges” or serious disagreements with regard to the facts and/or the application of law. These internal decisions would be documented in confidential court case files (CX) included in Fig. 6.1 in the previous chapter.
References
Bourdieu, P. (1977). Outline of a theory of practice. Cambridge: Cambridge University Press.
Bourdieu, P. (1987). The force of law: Toward a sociology of the juridical field. Hastings Law Journal, 38, 805–853.
Dworkin, R. (1986). Law’s empire. London: Fontana Press.
Katz, P. R. (2009). Divine justice: Religion and the development of chinese legal culture. London and New York: Routledge.
Lubitz, R., & Ross, T. W. (2001). Sentencing guidelines: Reflections on the future. In Sentencing & Corrections: Issues for the 21st century (Research in Brief, No. 10).
Michigan Judicial Institute (2012). Sentencing guidelines manual. State of Michigan.
Supreme People’s Court, the People’s Republic of China (2010a). People’s court sentencing guidelines. Beijing.
Supreme People’s Court, the People’s Republic of China (2010b). 2009 Annual report. Beijing.
Trevaskes, S. (2003). Public sentencing rallies in China: The symbolizing of punishment and justice in a socialist state. Crime, Law and Social Change, 39, 359–382.
Trevaskes, S. (2007). Courts and criminal justice in contemporary China. Lanham: Lexington Books.
van Gulik, R. ([1956] 1997). The Chinese Maze Murders: A Judge Dee Mystery. Chicago: University of Chicago Press.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2014 Springer Science+Business Media New York
About this chapter
Cite this chapter
He, N. (2014). People’s Justice and Law’s Embattled Empire. In: Chinese Criminal Trials. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8205-5_7
Download citation
DOI: https://doi.org/10.1007/978-1-4614-8205-5_7
Published:
Publisher Name: Springer, New York, NY
Print ISBN: 978-1-4614-8204-8
Online ISBN: 978-1-4614-8205-5
eBook Packages: Humanities, Social Sciences and LawSocial Sciences (R0)