Abstract
Inspired and guided by a Bourdieusian framework, this chapter explores how struggles in each stage of criminal trial process challenges the perceptions of the modalities of power and control within the Chinese juridical field. The focus of this chapter is placed more on discovering what the current practices are (as perceived by the key actors in the Chinese legal system) than to determining what the right practices should be.
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Notes
- 1.
For example, we often see either the disproportional portray of “criminal justice reform successes” in reports released by the Chinese government or reports of “incidents of human rights abuses” by foreign governments or NGOs.
- 2.
The group of professionals involved in a criminal trial could be far more complicated in an adversarial legal system where jury consultants, expert witnesses, private investigators, and other professionals may be included.
- 3.
Jones (2003) offers a good discussion on the ‘political-legal system’ (that is consisted of the Security Administration, the Procuracy, and the Courts) which essentially is the same as the ‘Iron Triangle’ referred here.
- 4.
Branch CCP committees are often expected to be established in non-government organizations as well. By 2012, there are more than 4.2 million CCP committees at all levels nationwide.
- 5.
The total number of CCP members is reported to be 75 million (or about 6 % of total Chinese population) by the U.S. Congressional-Executive Commission on China 2010 Annual Report (CECC 2010). Data represented in Fig. 8.1 are based on a June 30, 2013 report released by the Chinese Ministry of Organization (accessed via Sina.com news).
- 6.
For example, the singing of “Red Songs” by the mobilized mass which rekindled the memories of the revolutionary past is nostalgic to some but terror to others. Led by the Party boss Bo Xilai in Chongqing, the purported purity of the leftist revolutionary spirit dissipates as quickly as Bo’s political downfall in 2012 that included expulsion from the CCP, charges of corruption and abuse of power. BO is sentenced to life imprisonment in september, 2013.
- 7.
The authors found that the Chinese entrepreneurs are closely tied to the state politically and financially. These ties shape their views toward democracy. For example, they would favor multi-candidate election under the current one-party system but not advocating for multi-party competition and political liberties.
- 8.
Lawyers Committee for Human Rights (1993) provides a widest range of estimates, from 20 % to 80 % of all criminal cases, depending on information gathered from individual lawyers.
- 9.
Estimated rates of criminal legal representation reported in the majority of existing studies do not differentiate between the types of crime charged.
- 10.
Statistical results reported in Tables 8.2 and 8.3 are estimated using Bootstrap resampling methods with 1,000 random samples with replacement form the original dataset. Bootstrapping is based on the idea that inference about a population from sample data can be modeled by resampling the sample data (see Efron 1979, 1982).
- 11.
There is very little empirical data on Chinese criminal acquittal rate. Brown (1997: p. 122) once commented that “…the court merely rubber stamp the procuracy’s criminal cases since the criminal acquittal rate is less than 1 percent.” The exact source for this estimate is not clearly stated.
- 12.
We intent to offer flavors of responses from a small sample with a mixture of gender, occupational status, CCP affiliation, and years of work experience of respondents. Unfortunately, almost all of the police officers and most of the procurators in our sample offered no additional written comments.
- 13.
“Unhook” is the literal English translation of the Chinese word
(tuo gou), which captures the image of Chinese lawyers’ symbolic occupational separation from the judicial apparatus. The legal practice of Chinese lawyers as an occupational group remains under control at local level by the Bureau of Justice and at national level by the Ministry of Justice.
(tuo gou), which captures the image of Chinese lawyers’ symbolic occupational separation from the judicial apparatus. The legal practice of Chinese lawyers as an occupational group remains under control at local level by the Bureau of Justice and at national level by the Ministry of Justice.References
Belkin, I. (2011). China’s tortuous path toward ending torture in criminal investigations. Columbia Journal of Asian Law, 24, 273–302.
Bourdieu, P. (1987). The force of law: Toward a sociology of the juridical field (translated by Richard Terdiman). Hastings Law Journal, 38, 805–853.
Bourdieu, P. (1977). Outline of a theory of practice. Cambridge: Cambridge University Press.
Brown, R. C. (1997). Understanding Chinese courts and legal process: Law with Chinese characteristics. Hague: Kluwer Law International.
Chen, J., & Dickson, B. J. (2010). Allies of the state: China’s private entrepreneurs and democratic change. Cambridge: Harvard University Press.
Congressional-Executive Commission on China. (2010). Annual report. One-hundred eleventh congress, second session. Retrieved from http://www.cecc.gov
Dezalay, Y., & Madsen, M. R. (2012). The force of law and lawyers: Pierre Bourdieu and the reflective sociology of law. Annual Review of Law and Social Science, 8, 433–452.
Efron, B. (1982). The Jackknife, the bootstrap and other resampling plans. Philadelphia: Siam Publishing.
Efron, B. (1979). Bootstrap methods: Another look at the jackknife. Annals of Statistics, 7, 1–26.
Inglehart, R. & Welzel, C. (2009, March/April). Development and democracy: What we know about modernization today. Foreign Affairs, 33–41.
Jones, W. C. (2003). Trying to understand the current Chinese legal system. In S. Hsu (Ed.), Understanding Chinese legal system: Essays in honor of professor Jerome A. Cohen (pp. 7–45). New York: New York University Press.
Lawyers Committee for Human Rights. (1993). Criminal justice with Chinese characteristics: China’s criminal process and violation of human rights. New York: Lawyers Committee for Human Rights.
Liu, S., & Halliday, T. C. (2011). Political liberalism and political embeddedness: Understanding politics in the work of Chinese criminal defense lawyers. Law and Society Review, 45, 831–865.
Lu, H., & Miethe, T. D. (2002). Legal representation and criminal processing in China. British Journal of Criminology, 42, 267–280.
Lubman, S. (2003). The study of Chinese law in the United States: Reflections on the past and concerns about the future. Washington University Global Studies Law Review, 2, 1–35.
Michelson, E. (2008). Dear lawyer Bao: Everyday problems, legal advice, and state power in China. Social Problems, 55, 43–71.
Michelson, E. (2006). The practice of law as an obstacle to justice: Chinese lawyers at work. Law and Society Review, 40, 1–38.
Michelson, E. (2003). Unhooking from the state: Chinese lawyers in transition (Ph.D. Dissertation, University of Chicago).
Terdiman, R. (1987). Translator’s introduction. The force of law: Toward a sociology of the juridical field by Pierre Bourdieu. The Hastings Law Journal, 38, 805–813.
Zheng, Y. (2009). Can the communist party sustain its rule in China? In K. Lee, J. -H. Kim, & W. T. Woo (Eds.), Power and sustainability of the Chinese state (pp. 186–209, Chap. 10). London: Routledge.
Zuo, W. (2007). Empirical study on the operation mechanism of criminal procedure in china (中国刑事诉讼运行机制实证研究). Beijing: Law Press (法律出版社).
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He, N. (2014). Modalities of Power and Control: Perceptions of Chinese Juridical Practice. In: Chinese Criminal Trials. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8205-5_8
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