Truth and procedural fairness in Chinese criminal procedure law
| Author | Peter Duff,Alexander Shytov |
| DOI | 10.1177/1365712719830704 |
| Published date | 01 July 2019 |
| Date | 01 July 2019 |
| Subject Matter | Articles |
The International Journal of
Evidence & Proof
Truth and procedural fairness
2019, Vol. 23(3) 299–315
ª The Author(s) 2019
in Chinese criminal procedure law
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DOI: 10.1177/1365712719830704
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Alexander Shytov
University of Chiang Mai, Chiang Mai, Thailand
Peter Duff
University of Aberdeen, Aberdeen, Scotland, UK; University of Chiang Mai, Chiang Mai, Thailand
Abstract
Chinese criminal procedural law has recently been undergoing rapid transformation. While the
search for ‘truth’, embodied in a confession by the accused, has traditionally dominated the criminal
process, efforts are now being made to secure more procedural fairness. This is exemplified by the
introduction of rules to render inadmissible at trial confessions extorted from suspects by ill
treatment. Unsurprisingly, it has proved difficult to shift the mindsets of the players in the criminal
justice process. The new rules have not been fully implemented in many respects and there is still
confusion over the criteria to be used by the courts in making decisions about inadmissibility.
Further, it has proved difficult to enable defence lawyers to play a more active role in defending their
clients and to render it normal for witnesses to testify at trial. This handicaps the drive to secure a
better balance between the search for truth and procedural fairness in the Chinese criminal trial.
Keywords
admissibility, China, confessions, criminal procedure, evidence
Introduction
Chinese criminal procedure is a fascinating object of study. It is particularly dynamic at the moment and
reflects changes in Chinese social, political and economic life. Criminal procedure law is constantly
evolving by trying to accommodate various conflicting social needs and demands. The speed of legis-
lative change in China is such that many recent academic works have already become outdated to a
greater or lesser extent. For instance, McConville and Pils (2013) contains a long ‘Postscript’ (2013:
455–503) commenting on the 2012 revision of the Chinese Criminal Procedural Law (CPL),1 which
1. Criminal Procedure Law of the PRC (CPL). 1979, 2012. Available at: https://www.cecc.gov/resources/legal-provisions/crimi
nal-procedure-law-of-the-peoples-republic-of-china (accessed 4 February 2019).
Corresponding authors:
Alexander Shytov, University of Chiang Mai, Chiang Mai, Thailand.
E-mail: shytov@yahoo.com
Peter Robert Duff, University of Aberdeen School of Law, Regent Walk, Aberdeen, AB24 3UB, UK.
E-mail: p.duff@abdn.ac.uk
300
The International Journal of Evidence & Proof 23(3)
post-dated the contributions to this major volume on criminal justice in China. Therefore, our aim in this
paper is not primarily to produce an up-to-date description of Chinese criminal procedure, an account
that would soon become outdated because of more reform, but to attempt to understand the dynamic
of legislative change. There is a need to concentrate not so much on the specific provisions of
criminal procedure law as on the forces which shape and determine their content. This study looks at
the ideological forces, or the fundamental ideas which shape the structure of Chinese criminal
procedure law, although we will make some more practical, empirically based, observations where
particularly relevant.
The most prominent idea in Chinese criminal procedural law is that it is focused on ‘obtaining
objective truth rather than satisfying rules of evidential discovery’ (Yin and Duff, 2010: 1136; see also
Zhang and Yang, 2018). This search for the truth is the reason why the principle of double jeopardy, or
ne bis in idem, is still not accommodated by Chinese law. Reflecting the emphasis on the search for the
truth, until the reforms under the ‘2010 Evidence Rules’ (Lewis, 2011: 631; Lin et al., 2017; Sun,
2018) there were in reality few rules on admissibility (Guo, 2017; Lewis, 2011: 650–655). This was
extremely significant because in China ‘the confession is king’ and to secure a confession was, and is,
seen as vital in every criminal case (Belkin, 2013: 95; Guo, 2107). The undergoing reform of the law,
however, attempts to reconcile the imperative of establishing truth with the idea of a fair trial (Long,
2015b). As we shall see, an important part of this was establishing the principle of admissibility as a
practical reality. It is important to note that the Chinese concept of fair trial is different from its
western counterpart. It goes beyond the concept of individual autonomy and affirms a variety of social
and moral values. Chinese procedural criminal law attempts to present a greater unity between law and
morals which aims to lead to an acceptance of the outcome of criminal proceedings by the public (and
a greater efficiency).
Thus, the subject of this research is to examine the way in which Chinese criminal procedure attempts
to reconcile the search for the truth with the ideal of fair trial or procedural fairness. At the outset, there
are two basic questions are to be answered. First, is the pursuit of substantive truth in Chinese law
achieved at the expense of procedural certainty? Second, does this pursuit make impossible the estab-
lishment of procedural safeguards for fairness and the rule of law? In tackling these two questions,
considerable attention will be paid to the normative framework of Chinese criminal procedure because it
is evident that, in practice, any system of criminal justice can be abused. Therefore, this research focuses
not solely on the actual application of procedural rules but on analysing the normative framework to
perceive the way in which the imperative of finding the truth is related to the idea of procedural fairness.
Truth v fairness
The amount of literature on Chinese criminal procedure law is substantial and, as noted above, much of
it has become outdated because of the speed of legislative reform. The literature that deals with the
foundational ideas of Chinese criminal procedure tends to focus on two basic issues. The first is the
attempt to categorise Chinese law generally within a particular family of legal systems (David and
Brierley, 1985; Glenn, 2014; Zweigert and Kotz, 1998) and, more particularly, within a particular model
of criminal trial (see Yin and Duff, 2010, for further references and discussion of this literature). The
second issue concerns the extent to which Chinese criminal procedure law reflects the principles of the
rule of law and fair trial, along with the idea of human rights (McConville, 2013).
In relation to the first issue, there is a general consensus that China follows an inquisitorial model of
criminal trial, meaning that the emphasis is on finding the truth rather than on the prosecution or defence
winning the contest as in the adversarial model (Damaska, 1973). Nevertheless, some authors point to
the influence of adversarial ideology since the reforms of 1996 (McConville, 2012: 10). However, this
trend has also been noted in European inquisitorial jurisdictions, largely owing to the influence of the
European Court of Human Rights, leading several comparative scholars to speculate that the adversarial
and inquisitorial traditions are converging (Jorg et al., 1995; McConville, 2013: 50–51; Weigend, 2003).
Shytov and Duff
301
Nevertheless, significant ideological differences remain between these two models (Roberts, 2008). A
number of commentators on Chinese criminal procedure have noted the difficulties of combining both
the inquisitorial and adversarial traditions in the Chinese legal context (Capowski, 2011; Liu and Halli-
day, 2009). Yu (2017a: 69–70), for example, wrote that ‘the absence of witnesses in the Chinese court
contrasts with this reformed adversarial format’. In this context, it is interesting to note that in Europe,
inquisitorial systems have been forced by decisions of the European Court of Human Rights to provide
the defence with more opportunity to confront and question prosecution witnesses either at trial or as
part of the formal pre-trial procedures.2
For some Chinese scholars, the inconsistencies between inquisitorial and adversarial systems are of
little practical significance. Professor Wei Pei from Beihang School of Law in Beijing, in correspon-
dence with one of the authors of this article, expressed an attitude common among Chinese scholars as
well as practitioners. In her view, there is no contradiction between the adversarial and inquisitorial
elements of the revised Chinese law on criminal procedure. A Chinese judge does not per se have the
obligation to verify the evidence presented at trial. If there is doubt about the evidence presented in court
by the prosecutor or the defence, the judge has limited power to demand or collect additional evidence.
In Chinese criminal procedure, the way to discover truth is not through confrontation with witnesses but
through the cooperation of all official participants in the process. Indeed, this view is very clearly
articulated in Article 7 of the CPL: ‘In conducting criminal proceedings, the People’s Courts, the
People’s Procuratorates and the public security organs shall divide responsibilities, coordinate their
efforts and check each other to ensure the correct and effective enforcement of law.’
We would observe that, in the eyes of most comparative scholars, the Chinese judge’s limited
involvement in the verification of evidence would be a hallmark of adversarial procedure while the
emphasis on cooperation in this regard closely resembles that of...
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