Abstract
A Chinese court case dossier reveals much about the routine criminal justice practice with the associated organizational structure and power dimensions.
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Notes
- 1.
Terminologies such as “police” and “public security” are used interchangeably in reference to common police functions at local level. Contents included in this book do not touch upon the “national security” aspect of the Chinese policing.
- 2.
Each of Hegel’s (2009) carefully selected and translated Imperial criminal cases offers a window of opportunity to peek into and piece together the contour of a fast changing Chinese society three centuries earlier that appears remarkably similar to the one we live in today. The human tragedies illustrated in the twenty murder cases are valuable raw materials for criminologists. The Imperial Magistrate’s judgment cited here can be seen as a “quintessential official speech in the name of and to everyone.” (Bourdieu 1987: 838) Likewise, contents included in the court case dossier illustrated in this chapter could be viewed in the same light.
- 3.
Crimes committed by migrants and among migrants, official corruptions, domestic violence and other family tragedies (often outcomes of greed, love and lust) are familiar storylines that seem to transcend time and space. These 18th century cases can indeed be found in the 21st century.
- 4.
Brush writing has long been abandoned in the production of formal court documentation. Calligraphy written in brush, however, remains omnipresent inside Chinese courthouses as a form of artistic expression. Photography and calligraphy produced by the court officials are major ingredients of a Chinese courtroom culture that showcases the soft side of the judicial environment. Our visits to many Chinese courthouses in recent years form the base for this impression. This may be seen as an extension of the authentic Chinese scholar-official tradition from the Imperial time. The same observation is much less applicable to the other branches of the justice apparatus, i.e., the People’s Procuratorate or the Public Security Bureaus.
- 5.
We will save more detailed discussions on the different perceptions of access to police evidentiary files, contrasting the views from the criminal justice officials (i.e., judges, prosecutors, and the police) and the defense attorneys, for a later chapter (Chap. 8) focusing on Bourdieusian power and control.
- 6.
Political Embeddedness and the work of Chinese criminal defense lawyers are well articulated in Liu and Halliday’s (2011) recent work.
- 7.
English translation of the Article 306 of the Chinese Criminal Law was accessed on 5/17/2012 from the web site of the U.S. Congressional Executive Commission on China. To avoid unnecessary confusions on the use of different legal terminologies, we will apply the same English translation source when citing Articles from the Chinese Constitution, Chinese Criminal Law and Chinese Criminal Procedure Law. Grateful acknowledgement is made to the excellent translations posted on CECC web site. http://www.cecc.gov/pages/newLaws/criminalLawENG.php. See also New York Times editorial titled “Big Stick 306 and China’s Contempt for the Law (5/6/2011) http://nytimes.com/2011/05/06/opinion/06fri3.html?_r=0.
- 8.
Guilty verdict is rarely a discussion point for the adjudication committee since virtually all criminal defendants are convicted.
- 9.
He’s (2012) case study using data from one Basic Court located in China’s hinterlands may or may not be representative of practices in more developed regions with more progressive judiciary. In fact, exploring the regional variations in Chinese court practices is a challenging but meaningful research topic.
- 10.
The three letters indicate the location of the trial court (using the first letter of the city name), criminal trial (indicting where it is a criminal or civil or administrative case) and a trial of first instance (to separate trial of first instance from appeal or retrial), respectively. The method of designation is standardized nationwide.
- 11.
It is common that multiple criminal defendants share the same case dossier and are tried together on the same date. Co-defendants are separated during the court questioning and cross-examination phase.
- 12.
A square stamp indicating that this dossier is to be kept as a “short term” (30 years) item. Two other categories are “long term” which is for 60 years and “permanent.”.
- 13.
Lawyer’s license is issued for one-year duration only. Annual registration is required. The Lawyer’s Association is subject to the control of Bureau/Department of Justice at corresponding levels. The three defense lawyers involved in this case all have the same registration due date stamped on their licenses. They are from three different law firms.
- 14.
A round XXX Bureau of Public Security stamp is placed in the middle of the titles for both documents.
- 15.
Six digits number with the first two indicate the year of arrest.
- 16.
Article 59 of the Chinese Criminal Procedure Law states that: “An arrest of a crime suspect or a defendant must be approved by the People’s Procuratorate or decided by the People’s Court, and it shall be executed by the Public Security organ”.
- 17.
A square stamp of the name of the chief of Public Security Bureau is place to the right of the signature.
- 18.
The arrestee’s thumb print in red ink is placed on top of her signature.
- 19.
She is the sister-in-law of the escaped criminal suspect XYZ.
- 20.
No precise date was given.
- 21.
XYZ is the younger brother of the second criminal suspect/defendant (B) in this case.
- 22.
Article 277 in the Chinese Criminal Law (1997) is under Chapter VI Crimes of Obstructing the Administration of Public Order, Section I Crimes of Disturbing Public Order. It contains four paragraphs. The first paragraph states that “Whoever by means of violence or threat, obstructs a functionary of a State organ from carrying out his functions according to law shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance or be fined.” The second paragraph applies to obstructing a deputy to the National People’s Congress from carrying out his functions (omitted). The third paragraph deals with obstructing the workers of the Red Cross Society from performing their functions during natural calamities/emergencies (omitted). The fourth paragraph states that “whoever intentionally obstructs officers of a State security organ or a public security organ from maintaining State security in accordance with law and causes serious consequences, though without resort to violence or threat, shall be punished in accordance with the provisions of the first paragraph”.
- 23.
Article 129 of the Chinese Criminal Procedure Law (1996) states that “when a public security organ concludes the investigation, it shall make sure that the basic facts of the case is clear and the evidence is reliable and sufficient, shall write a recommendation for prosecution, and transfer the case, together with case files and evidences, to the people’s Procuratorate at the same level for examination and decisions”.
- 24.
A square stamp of the name of the chief of the Public Security Bureau is placed atop the signature.
- 25.
There is an inconsistency in the birth month for suspect A: in the Recommendation for Prosecution submitted by the police, her birth month was listed as September, in the Criminal Indictment produced by the prosecution it becomes June. The year and exact date of birth are consistent. None of the parties involved in the case seems to have noticed this discrepancy.
- 26.
Article 141 of the Chinese Criminal Procedure Law states “when the People’s Procuratorate believes that the facts of a crime committed by the crime suspect have been ascertained, that the evidence is reliable and sufficient and that criminal responsibility shall be investigated according to law, the People’s Procuratorate shall make a decision to initiate a prosecution, and shall, in accordance with the provisions on trial jurisdiction, initiate a public prosecution in the People’s Court”.
- 27.
The table of contents provided by the prosecution indicates that this folder contains a total of 138 pages (for all three defendants). Apparently, the prosecution evidences (originated from the police investigation) are only selectively included in the formal court case dossier.
- 28.
Defense Attorney C apparently made a mistake here by citing the wrong Article in the Criminal Procedure Law. It should be Article 162, paragraph 3 which states that a judgment of not guilty should be rendered for lack of sufficient evidences.
- 29.
The letter code and numeric serial number match those on the front page of the court case dossier.
- 30.
The court has made the correction of Defendant’s birth month from June as stated in the prosecution’s Criminal Indictment to September as stated in the police Recommendation for Prosecution. The court also enters Defendant A’s occupation as “peasant,” not “unemployed” as stated in all prior documents.
- 31.
The exact date of birth for Defendant C is now added. In all previous documents, only the birth year and month for Defendant C were listed.
- 32.
The court seems to have independently verified Defendant C’s occupation which was listed as “unemployed” in all earlier documents.
- 33.
This paragraph is virtually word-to-word repeat of the same statement by the prosecution in the Criminal Indictment.
- 34.
The court did not make any mention of the mistake made by the Defense Attorney C who cited Article 163, instead of Article 162 of the Criminal Procedure Law (1996).
- 35.
This is a second repeat of the identical statement made by the prosecution in the Criminal Indictment (which in turn is almost a “copy and paste” from the statement made by the Public Security Bureau in its Recommendation for Prosecution).
- 36.
Article 25 of the Chinese Criminal Law specifies that “a joint crime refers to an intentional crime committed by two or more persons jointly”.
- 37.
A round court stamp is placed on top of the judges’ names.
References
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He, N. (2014). Court Case Dossier: Anatomy of Chinese Criminal Trials. In: Chinese Criminal Trials. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-8205-5_6
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DOI: https://doi.org/10.1007/978-1-4614-8205-5_6
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