Criminal appellants’ claims and appellate courts’ answers: An empirical analysis of criminal appeals in Hunan province, China
| Date | 01 December 2015 |
| Author | Kai Kuang,Bin Liang |
| Published date | 01 December 2015 |
| DOI | 10.1177/0004865814537653 |
| Subject Matter | Articles |
Article
Australian & New Zealand
Journal of Criminology
2015, Vol. 48(4) 543–571
Criminal appellants’ claims
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DOI: 10.1177/0004865814537653
An empirical analysis of
anj.sagepub.com
criminal appeals in Hunan
province, China
Kai Kuang
Law School, Hunan University, Hunan, China
Bin Liang
Department of Sociology, OSU-Tulsa, Tulsa, USA
Abstract
To date, studies (especially empirical studies) on China criminal appeals are still rather limited,
and most of them focused on the review mode, functions and values of appellate review, and
correction of judicial judgments of the first instance. Based on 444 judicial documents ren-
dered by appellate courts in Hunan Province, China, this study focuses on grounds raised by
appellants and appellate courts’ answers, and addresses two specific questions: (1) what are
grounds raised by criminal appellants in their appeals and how successful are they (measured
by acceptance by appellate courts)? (2) How do appellate courts come to the final disposition
decision, and are their dispositions subject to influences of systematic factors? Our analyses
found that the nature of a comprehensive review in criminal appeals and discretional power
possessed by Chinese judges affected both defendants’ appeals and appellate judges’
responses. Only three variables (the number of grounds accepted by appellate courts, the
number new mitigating factors found by the courts, and the presence of attorneys) were
found to have significantly impacted the final disposition. This empirical inquiry sheds light on
the practice of criminal appeals in general.
Keywords
Appeal grounds, China’s criminal appeals, empirical study, final dispositions
Introduction
Criminal appeal is an important step in any criminal justice system, as it guarantees
criminal defendants’ right to appeal and serves a critical function in correcting potential
Corresponding author:
Kai Kuang, Law School, Hunan University; 523 Law School, Yuelu Mountains, Changsha, Hunan, China 410082.
Email: kai_kuang@hnu.edu.cn
544
Australian & New Zealand Journal of Criminology 48(4)
errors from the trial courts. As pointed out (e.g. see Cross, 2003; Williams, 1991), though
decisions of national and/or state supreme courts are more preeminent in many aspects
(e.g. in law-interpretations and law-making via setting up legal precedents) and catch
more media and public attention, decisions by appellate courts at lower levels are far
more numerous and of far greater practical significance as they are often the courts of
last resort for the vast majority of litigants and for the vast majority of contested legal
issues.
As a unique component of the criminal justice system, the practice of criminal appeals
varies greatly from one jurisdiction to another. The majority of studies on criminal
appeals reflected such diversity. For instance, many studies indeed debated over the
review power and scope of criminal appeals (e.g. on issues such as the feasibility and
practicality of factual review and/or modification of trial court sentences) (Burr, 1971;
Orfield, 1936; Rickey, 1978; Shapiro, 1939). Despite academic disagreements and oper-
ational diversity across jurisdictions, studies singled out two key concerns in criminal
appeals: one on how to improve systemic efficiency (e.g. to avoid/curb frivolous appeals)
and the other on how to protect and defend fairness and justice (e.g. effective assistance
of legal counsel) (e.g. see American Bar Association, 1970; Hermann, 1972; Wasserman,
1990). In addition to these fundamental issues on how to construct an ideal and work-
able appeal system, scholars turned to empirical studies in the last three decades in order
to gain a better understanding of how the existing appeal systems actually function:
First, often based on interview data, a number of studies paid special attention to the
nature of the work of appellate judges and explore how different factors (e.g. partisan
ideology) may have affected their daily work (e.g. see Broscheild, 2011; Cross, 2003;
Davies, 1982; Wold & Caldeira, 1980). Second, relying upon quantitative statistical
techniques, some studies examined how appellate judges make final decisions in criminal
appeals and whether both legal and nonlegal factors (e.g. one’s race) may have affected
their decision-making (e.g. see Foley, 1999; Neubauer, 1991; Williams, 1991, 1995).
Third, a few studies utilized data overtime to examine longitudinal changes with
regard to criminal appeal practices and how certain policy changes (e.g. the adoption
of sentencing guidelines) may have affected such practices (e.g. see Meeker, 1984; White,
1975; Williams, 1992).
Compared to this body of diverse research on criminal appeals, comparative studies
in this field to date seem to concentrate only on a few nations practicing a common-law
system such as England (e.g. see Knight, 1970; McClean, 1980; Meador, 1973; Sutcliffe,
1965) and Scotland (e.g. see McCluskey, 1992). One notable exception is a collection of
the practice of several nations (Bradley, 2007). Nevertheless, discussion on criminal
appeals in this collection was rather sketchy and majority of countries collected are
still Western nations. Though it is easier to compare nations with identical systems,
more could definitely be gained from non-Western nations with different systems. In
such an effort, we turn to China in this study.
Similar to other nations, China faces increasing demand on criminal appeals: as its
number of overall cases increased dramatically over time in the new reform era after
1978 (e.g. see Liang, 2008, chapter 3), so did its numbers of criminal cases and criminal
appeals. As Xing’s study (2011) showed, the total number of criminal appeals increased
from about 40,000 in 1980 to over 90,000 in the new century, and further broke the
100,000 marker in 2009. Nevertheless, the ratio of criminal appeals to all criminal cases
Kuang and Liang
545
declined over time (with fluctuations) from over 22% in the early 1980s to below 15% in
the new century. Facing increasing number of cases, however, Chinese appeal courts
managed to maintain a 70% affirmance rate in the last three decades.
Compared to the diverse body of research on criminal appeals, studies on China’s
criminal appeals are still rather limited, and most of them focused on the review mode,
functions and values of appellate review, appellate sentencing, and modification of trial
court judicial judgments. Based on 444 judicial documents rendered by appellate courts
(both intermediate courts and the provincial high court) in Hunan province, in China,
this study focuses on grounds raised by appellants in appeals and appellate courts’
answers. Specifically, we address two research questions: (1) what are grounds raised
by criminal appellants in their appeals and how successful are they (measured by accept-
ance by appellate courts)? (2) How do appellate courts come to the final disposition
decision, and are their dispositions subject to influences of systematic factors?
In the remainder of the article, we first review the procedure and features of criminal
appeals in China, paying particular attention to unique Chinese characteristics in com-
parison to that of other nations. Second, we review previous studies on China’s criminal
appeals. Given the absence of relevant works published in English, our review focuses on
the Chinese literature instead and critically evaluate the quality and insufficiency of these
past studies. Next, we discuss data utilized in this study and present our data analyses
based on two research questions earlier. Lastly, we summarize the main findings of this
study, highlight potential policy implications, and discuss limitations of the current
study.
Trial of second instance (appeals): Appellate procedure and
features
The procedure of criminal appeals in China is specifically stipulated in the Criminal
Procedural Law1 (CPL thereafter). The CPL covers areas including initiation of appel-
late review, type of appeals, review procedure and mode, statute of limitations, and type
of dispositions.
Initiation of the appellate review
per CPL stipulations, criminal appeals may be initiated by either parties involved in a
case or the people’s procuratorate in a form of protest (kangsu in Chinese). First,
criminal defendants, private prosecutors (hired by victims) and their legal represen-
tatives, as well as a party to an incidental civil action and his/her legal representative
who refuse to accept a judgment or an order of the first instance made by a local
people’s court may file appeals to the people’s court at the next higher level (Article
216). Second, if a local people’s procuratorate finds definite error in a judgment or an
order of the first instance, it shall petition a protest to the people’s court at the next
higher level (Article 217). In addition, victims and their legal representatives who
disagree with a judgment or an order of the first instance may request the people‘s
procuratorate to petition a protest on their behalf. The people’s procuratorate, how-
ever, may exercise its discretion in its decision whether or not to initiate such a
protest (Article 218).
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Australian & New Zealand Journal of Criminology 48(4)
When an appeal is filed by interested parties through the people’s court which ori-
ginally tried the case (the original trial court), the original trial court shall, within three
days, transfer the petition...
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