Criminal Justice in China

Criminal Justice in China

An Empirical Inquiry

Mike McConville

The political, economic and social transformations that have taken place in China over the last half-century have had a major impact upon the formal methods, institutions and mechanisms used to deal with alleged criminal infractions. This path-breaking book, based upon the largest and most systematic empirical inquiry ever undertaken in China, analyses the extent to which changes to the formal legal structure have resulted in changes to the law in practice.

Chapter 6: Pre- trial involvement of judges

Mike McConville

Subjects: asian studies, asian law, law - academic, asian law, criminal law and justice, human rights, politics and public policy, human rights


6. Pre-trial involvement of judges INTRODUCTION Under the 1979 CPL the court had extensive pre-trial involvement in cases, with judges heavily involved in the consideration and investigation of cases prior to the opening of the trial. It was the duty of the procuratorate to send all case documents to the court, and it was the duty of the court to review and examine the case thoroughly in deciding whether the case should be accepted for trial, sent back with an order for supplementary investigation by the procuratorate, dismissed or sent back with a request that the case be withdrawn. As part of this process, judges were themselves empowered to conduct inquests, interrogations, searches and seizures, and obtain expert evaluations in deciding whether a case should be accepted for prosecution (Chow, 2003, p. 271). This system of prosecutorial and judicial alliance was criticized for blurring the line between prosecution and adjudication.1 In deciding whether to accept a case for trial the judiciary were obliged to ask whether the facts of the crime were clear and the evidence sufficient, and to make this determination on the basis of all the prosecution evidence, supplemented if necessary by further investigations ordered by the judiciary itself. As the standard for conviction was the same as that for deciding whether a case should be accepted (namely, whether the facts were clear and the evidence sufficient) it followed that there was a large element of predetermination on the part of the court as soon as the trial...

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