The characteristics of The Criminal Law of PRCAfter the introduction of the guiding principle of the Criminal Law of PRC, it should be noted that there are five guiding principle of it. When we evaluate the Criminal Law of PRC, we have found that some of the characteristics of the Criminal Law and it will be summarized in the following paragraphs. There are, in general, have three general layers of the characteristics of the Criminal Law.
China has one layer of law which is a Western-style penal code which became effective in 1980 and is known simply as the Code of Criminal Law. This discusses criminal responsibility, distinguishing between intentional and negligent acts and providing for diminished responsibly in various circumstance such as where the offender is young or mentally ill. This code has rules on sentencing and parole and a statute of limitations. In many cases convicted criminals continue to work and receive wages and must report regularly to the local police, sometimes there is confinement in a local detention house. Only in extreme cases is there “penal servitude” which often is tied to the commission of multiple crimes and usually results in commitment to hard labor in a prison camp. Capital punishment may be imposed to be executed immediately, or in many cases, with a two-year suspension under which if the individual shows repentance and reformation the sentence may be lessened to years in penal servitude. Crimes under this law code include counter-revolutionary crimes (it has been changed to the ??endangering state security crime?? in the revised criminal law of 1997), property violation, disruption of marriage and the family, and dereliction of duty and corruption.
The second layer of Chinese criminal law is the Security Administration Punishment Regulations. This is a set of rules most recently revised in 1994. Most of Chinese social order is administered at this level and not at the level of the criminal code. The SAPR took up 3 million cases in 1992, compared with only 423,000 criminal cases that year. Three punishments are possible: a warning, a fine of up to 200 Yuan, and detention for up to 15 days. The administration of these punishments is done at the many sub-stations across the country. The offences are disruption of public order, interfering with public safety, infringing the personal rights of others, damaging public or private property. Where a striking difference between Western law and practice in the PRC is that a trial is not for the purpose of determining guilt or innocence in the PRC. Guilt is determined before hand by the accused, lawyers, and police (Political-Legal Committee of the Party). The Chinese rule is xian pan hou shen (verdict first, trial second). The defense lawyer’s role is usually to plead mitigating circumstances and to help the defendant admit his crime and encourage the defendant and his/her family to submit to the law. This means that the main function of a trial is educational. It is meant to educate persons about what is considered wrong and what actions will be taken. A trial is a public performance and will probably be rehearsed and staged before the “audience” (public) is admitted.
The third layer of Chinese criminal law is re-education through labor. This law is administered by the Ministry of Public Security. Punishments may be longer and harsher than under either of the other forms of law. This administration has the power of custody and investigation, according to which suspicious persons can be detained while police is investigating crimes that they have committed, might have committed, or might commit. In China, when law is invoked it is a device for shaming the participants into rejoining the community. That is what the pre-trial phase is all about. It is the shame of the investigation and litigation phase that is suppose to do the work of restoring persons to the community. Indeed the China historian, BrianMcKnight, has surveyed the dynastic histories and has demonstrated that across 2000 years, the gates of the prisons were thrown open with amnesties and pardons every two or three years. In general, all of this is deeply rooted in the Confucian assumptions about a viable community. People are always located within a context of moral and communal ties and interdependence. This traditional concept still somewhat affects the theory of law in China today.
As in general, the Criminal Law has following general characteristics from the previous incomplete criminal law system. It gives a clear distinguish between criminal and non-criminal offenses. The principle of equality before the law applies to all crimes and to all criminals, it represented PRC??s Criminal Law closely approach to Western style and principle. The policy of combining punishment with leniency which imposed different penalties according to criminal offences. It was, the Criminal Law clearly stipulates that adoption of capital punishment under circumstances as specified. Above features are the general principles as mentioned in the previous paragraphs and it also becomes characteristics of the Criminal Law.
Problems concerned to the Criminal Law of PRCFirstly, it will be the problem of arbitrary arrest and detention—-in China a person could be detained because it is believed he is are preparing to commit a crime, the law requires that a detainee’s family be notified within 24 hours, unless this hinders investigation or is not possible. Often this means that a notification may be delayed for long periods or never issued. By law, the authority must either approve the arrest or order the release of the suspect within three days, but police reportedly detain persons for much longer periods.
Secondly, it is the Torture and cruel or degrading punishment—-Although this seems must not happen in China under the guidance of the present Criminal Law, but in China since a part of the investigation process is helping the accused to come to admit his/her crime, measures are often employed which violate the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which China says it supports. But mistreatment during interrogation ranges from beatings, to assault with electric baton, use of shackles and chains, suspension by the arms or feet, confinement in tiny and dark cells, deprivation of sleep and food, etc. Further, medical care is seldom given to those who have suffered torture during interrogation. Currently, since these practices are considered “acts of investigation” rather than “acts of administration” citizens wronged in this way cannot bring suit or complaint.
Thirdly, Chinese people today still have no right to counsel, to have fair and to join public hearings–in China trials are held in public, but the hearing and determination of guilt or innocence and even what punishment will be implemented is already determined before the trial. Trials can be attended, but only by ticket. Seating is limited. There is no presumption of innocence for an accused. In fact, it is the defense’s responsibility to prove innocence, or that the crime is minor, or that punishment should be mitigated. The burden of proof is on the accused. Under Chinese law, the authority does have a duty to guarantee that defendants obtain defense, but this need not be professional legal counsel. It could be an ordinary citizen or relative.
Although as we have mentioned in the above guiding principle of the Criminal Law that under article 67 and 68, but actually this principle cannot be fully functioned. As sometimes defendants who fail to “show the right attitude” by confessing their crimes are typically sentenced more harshly. Criminal trials remain essentially sentencing hearings, despite official denials of this. Confessions without corroborating evidence are insufficient for a conviction under law, but coerced confessions are still frequently introduced into evidence.
Fourthly, there still no fully freedom of opinion and expression in China, as no need to mention, China today is still an one party rule country. The ruling party?XChinese Communist Party (CCP) represents all voices from people, no one could challenge it. Therefore, it is illegal to attack the CCP, socialism, or Mao’s thought. Freedom of speech and expression is limited, and violations are counter-revolutionary (now is amended as endangering state security). The goal is to create a society which exercises self-censorship and this is based on the belief that all party officials also exercise self-criticism. There are limits on demonstrations, assemblies, and parades which can cause harm to the interests of the state and society. Furthermore, Freedom of religion is also limited—though the law provides for freedom of religion, proselytizing and foreign missionary work are not officially permitted on the grounds that these activities lead to the foreign domination of Chinese believers. Many churches, temples, mosques have been reopened since the Cultural Revolution.
ConclusionSince 1979, the first completed Criminal Law was adopted, it brought China ??s concept of rule of law into a new era. After almost 20 years, there have been changes in the criminal law passed during the 1997 which showed a significant development in China??s transition to the rule of law. Difficulties and problems remain with the implementation of both the revised Criminal Law but there is growing recognition in the reforms of the protection of human rights. Clearly, the 1979 Criminal Law as amended in 1997 now represents a formalistic approach towards crime and punishment. It also is a symbol of formally abolish the concept and direction of class struggle and revolution under the CCP, as the most obvious one is the amendment of the ??counter-revolutionary crime?? to the ??endangering state security crime?? in the revised Criminal law of 1997. This change reveals the modernization of the Chinese Law. The debate on reform of the judicial system is still continued and ongoing. Where there is an active research and often-heated debate on how to introduce this covenant into China??s domestic criminal justice system. Although the new revised Criminal Law added, improved and amended many of its articles, let it become more modernized as new concept and wording are incorporated into the Law. Some problems still exist in the revised Criminal Law such as some wording still to be too vague to have interpretation, this give large latitude to judges whenever they make verdict. As under Civil Law system, it rarely referred to the previous law cases. There are also improper sentence by the Court when referred to the same case as different region has different routines when give a sentence. This kind of unfair situation must be solved in the future. Generally speaking, it is believed that the Criminal Law will soon be considered by the Chinese authorities to revise again as to make it become even more completed.
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