Reference no: EM133441012

1. What obstacles do defense attorneys face in the Chinese legal system? How are they treated by the government?

2. Although modern Chinese law is clearly in the Socialist law tradition, elements of Confucianism still exist in its political and legal system. What aspects of the Chinese political and legal system reflect this Confucian influence?

3. The Chinese government is highly bureaucratic. Describe the Chinese civil service. Some questions to consider: How professionalized is the civil service? How are civil servants appointed? How are they held accountable? How are they paid?

4. How independent are judges in China? What political influences do they face and from whom?

In Chinese legal history, we can observe the tension between Fa and Li. Fa refers to formal law, punishment, sanction. Li refers to the tendency toward mediation, conciliation, consensus. Fa was emphasized by the Legalists who held power in the Ch'in Dynasty in the third century BC. It was that dynasty that was notable for codifications of law and strict enforcement of those codes. From that time however, with the beginning of the Han Dynasty, right afterwards all the way to the Ch'in Dynasty in 1911. China emphasized Confucianism instead, that it was those who favored mediation, preserving the social harmony and flexibility. Those impulses in the law were paramount. Confucian Law lacked a separation of powers. Unlike Japan, where the Shoguns and the military Samurai class could serve as a counterweight to the emperor, China didn't have that system of checks and balances. Confucianism emphasized respect and loyalty. Confucian law emphasized this inherent flexibility. Although these Fa codes, especially as revised in the Tang dynasty, lasted for centuries, partly because they were so flexible. They were tempered by many exceptions and by the consideration of many mitigating factors. Confucianism did not have an institutionalized priesthood or bureaucracy, but it was still a learned legal system. In which case it did have scholars who were trained in the law. Confucianism also had no notion of individual rights, but it did preserve individual values and individual autonomy within the context of relationships and social networks. When China became a republic in 1912 under the Kuomintang regime, it turned toward Western law as its framework law. It passed six codes that were based on Japanese and German law. The communist revolution of 1949 and the end of the Kuomintang regime except in Taiwan, was it turned towards Soviet law. At first China adopted Soviet law wholesale until the break between China and the Soviet Union in the late 1950s. After that point, China preferred a more informal educational means of enforcing socialists law rather than the harsh punishments on coercion that we saw in the Soviet Union. Criminal law, in China, like in other social systems, extends to economic crimes as well. Because the economy is also controlled by the state, and so challenges to the economic order are implicitly challenges to the State. China defined crime as counterrevolutionary. Crime was something that the criminals did. Those who oppose the socialist revolution. That saw implicitly criminals as political challenges to the state. For that reason, China did not respect due process rights for people in the criminal justice process. Why should you respect the rights of your enemies, those who are threats to the true people. Today, legislation in China is highly detailed, and China has a professionalizing legal system in many ways. But mediation still dominates and the formal legal system has persistent challenges. There's no stable budget. Litigation is still rare. Case reporting and precedents are unreliable and often unable to be found. But that is slowly changing as we'll see. The Chinese legal system is quite bureaucratic. Judges, even are civil servants. That has long historical roots, both Confucianism and Legalism have supported centralized hierarchical bureaucracy, and they've emphasized loyalty and respect to the state. Notably, communism does as well. That ideology dovetails with these. Chinese law does not have a strict separation historically between civil and criminal law or between law and politics. That the political realm is not fully separate from the legal system. In the modern Mandarin dominated bureaucracy, civil servants, like judges and procurers, are appointed through examinations, not through political favoritism. That tends to make them neutral, but it also reduces their accountability. Civil servants and the Chinese legal system have low pay and they exist, in a gift-giving culture which has a tendency toward corruption. The civil service is also not fully specialized or professionalized, and that's a shortcoming compared to the modern administrative states in the Western world. Judges tend to follow executive interpretations, and they tended to apply the law as it's written. They're not completely free agents. It's unlikely at a Chinese trial that you'll have a smoking gun moment of a huge surprise. Because it's so mundane and so predictable. The police, the executive branch, including the cabinet, and the Chinese Communist Party, have great power over the criminal process and over criminal courts. As we saw in the Soviet Union after the Bolshevik Revolution, law was not a central concern of the Chinese Communist Party after 1949. That's because in communist systems, law is the means to enact. In a true socialist state, you don't need law, because laws of bourgeoisie invention. Law remain under developed during the Mao era, and during the culture revolution, when a lot of social structures, were torn down, judges and lawyers were themselves targeted as counterrevolutionary. It was only after 1976 that China could really begin to a modern legal system. Mao's death in 1976 prompted economic reform, and this really came before the legal reforms. China began to move toward a socialist market based economy from a centrally planned economy. The 1982 constitution helped accentuate these trends and it's been amended several times. According to that constitution, the National People's Congress is the supreme law making organ. Because it is only a part-time body, it has a standing committee that is full-time. The State Council is beneath the National People's Congress in the hierarchy, it can't contradict the National People's Congress. The State Council is the cabinet and it's headed by the Premier, who's the Chinese Head of Government. China does have a President, but the President is mostly a figure head roll. The State Council is very large. China has a lot of government ministries. That's because the state presence in people's lives is so great and so all encompassing. Certainly there's a Ministry of Defense and a Ministry of Foreign Affairs and a treasury and that sort of thing. But there's also going to be a Ministry of Television, and a Ministry of Newspapers and administrative other aspects of daily life that in a typical Western democratic society would not be controlled by the government. The basic court system structure in China is it a case begins at the basic people's court, appeals to the higher people's court, then to the intermediate people's court, and then finally to the Supreme people's court. There are several 100 higher people's courts and 30 intermediate people's courts. The Supreme people's court is the final arbiter, and it gives guiding cases to the lower courts, which serve as a persuasive precedent. The goal here is to some standardization among the lower courts because their reasoning and their rulings can be quite inconsistent. Until just very recently, most judges in China have not had legal training or a law degree. That is, in the process of changing as the legal profession becomes more professionalized. The Chinese communist party's political legal committee, which is a subcommittee of the parties central committee, oversees the entire legal system. The Political legal committee can review and make recommendations to judges before trials. They can make their views known and they can have a say in the outcome even before the trial takes place. Judges who disagree with the recommendations of the political legal committee can be disciplined or transferred. That's again, part of this effort in China to prevent the state from contradicting the state, and that's embarrassing to the regime when that happens. This is a way for the regime to get the results it wants without any surprises. Chinese courts systems do not have plea-bargaining. Most cases go to trial and often go to trial on the strength of a confession. This results in resource shortages and backlogs. Chinese courts don't have any regular budgets. They have to be paid for by local government revenues and by court imposed fees. Defense attorneys also face big challenges when they're up against the government. They have trouble retrieving case files, obtaining evidence, even accessing their clients. The state sees them as troublemakers who are interfering with the state's investigation. China's legal system has had several persistence issues. One of these is the use of torture during police interrogations. This was technically outlawed by reform to the Criminal Justice and Criminal Procedure act in 1996. However, that change did not contain a remedy. There is no way to challenge or complain about police torture. In 2005, China began videotaping interrogations to prevent torture. That led to thousands and thousands of trainings for officials and tens of thousands videotaped interrogations just in the first few years. The criminal code has been amended a number of times to protect the defendant's rights. However, China does not have an exclusionary rule that excludes evidence from trial in the event of a violation of defendants rights, such as unlawful police interrogation or in an unlawful search. Police powers are broad. There's no probable cause necessary to arrest, detain, or interrogate someone, and there's no warrant necessary even for an undercover investigation or for electronic surveillance. Defendants don't have a right to remain silent. Silence can be an inference of guilt. Nonetheless, there are positive signs as well in China's legal system. First, there's growing judicial autonomy and growing respect for judicial decisions, which are themselves becoming more professional and standardized. There's increasing competence of criminal justice officials and administrators. There's an emerging civil society that is serving as a watchdog to the government's abuses. Finally, there's a professionalizing identity among people who work in the criminal justice field. They see themselves as true professionals. All of this helps improve the legitimacy of the Chinese legal system. But there's still a long way to go.