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Yihong Jiang

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Jiang Zhipei

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Jue Jiang

Criminal reconciliation, xingshi hejie, is a ‘special procedure’ laid down in the 2012 PRC Criminal Procedure Law. This mechanism allows the alleged victims and suspects/defendants of certain crimes to ‘reconcile’ and thereby close criminal cases. Actually, since the early 2000s, this mechanism has been practised as an ‘experimental programme’ in many places in China. This chapter first provides a background of the introduction of criminal reconciliation, which is mainly a result of the authorities’ changing perspectives on legal reforms as well as on the criminal justice system. Following it, this chapter conducts a historical review of the Chinese mediation systems that have been in place since the Mao era, showing the connections between China’s mediation systems and various political ends, as well as the impacts of these connections on the parties’ rights and voluntariness. The last section of this chapter critically overviews the existing debates over criminal reconciliation practices, and the deficiencies with the existing literature on this mechanism.
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Jue Jiang

This chapter derives from the heated debate especially among domestic Chinese scholars over the ‘nature’ (xingzhi) of criminal reconciliation, namely, whether it is China’s transplant of restorative justice, or a purely indigenous Chinese practice. It provides a comparative study of criminal reconciliation and restorative justice. On the one hand, this chapter analyses three essential discrepancies between these two systems, including the different roles of community or society, of ‘reintegrative shaming’ and the ultimate goals embedded in the two systems. On the other hand, for further illustrating these discrepancies, this chapter provides the author’s observation notes of three restorative justice meetings in Brisbane, Australia in 2009. The discussion of the theory and practice of restorative justice in this chapter is also helpful as to understanding the gap between criminal reconciliation ‘on paper’ and it ‘in practice’ as shown in the ensuing three chapters.
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Jue Jiang

In 2008 and 2010, the author conducted empirical studies in the People’s Procuratorates and People’s Courts in three selected places in China, namely: Changzhou in Jiangsu province, Chongqing Municipality, and Xi’an in Shaanxi province. The empirical studies involve two steps, first, an examination of case files, and then interviews with prosecutors, judges, lawyers, as well as the parties and other people participating in the criminal reconciliation programmes. This chapter discusses the background, the deficiencies and the findings of case file examinations. With statistics, case examples, and official documents obtained in the fieldwork, it details the procedure and operation of criminal reconciliation in practice, examines the achievements and failures of the officially alleged aims, and points out the necessity of interviews in order to have a full picture of this programme, as these case files may very likely be ‘the best examples’ selected by the officials.
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Jue Jiang

Based on the interviewees’ accounts, this chapter depicts a picture of criminal reconciliation different from what the case files have shown. Interviews show that serious violations of the official procedures occurred in all the four stages of this programme, namely, initiation, criminal reconciliation meeting, official decision and follow-up programmes. These violations have not only violated the vital principles of criminal reconciliation, such as voluntariness, but also impaired the parties’ rights protected in the law, such as presumption of innocence. Moreover, some violations, for instance, the prosecutors or judges added compulsory pre-requirements like local household registration (hukou) or the ability to pay monetary compensation as prerequisites for initiating this programme, or clauses impeding the parties’ rights to appeal in the reconciliation agreements, have further obstructed the parties’ access to justice and caused unfairness.
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Jue Jiang

This chapter, which continues to draw on the interviews, critically discusses the interviewees’ motivations, feelings, comments, concerns and difficulties in criminal reconciliation programmes. It shows that, contrary to the claimed goal that criminal reconciliation can empower the parties to resolve their cases mainly by themselves, it is still the officials who play the leading and dominant role during the whole process. This has weakened the parties’ role with the result that they felt they were employed as a tool for meeting the officials’ goals. Yet some prosecutors and judges also talked about their difficulties with criminal reconciliation. For instance, criminal reconciliation took too much of their time and energy, which were in conflict with some other requirements set in the internal performance assessment system. The findings in this chapter show that the officially purported goals of criminal reconciliation, such as redressing the victim’s damage, educating the suspect/defendant, restoring the parties’ relationship, bringing ‘closure,’ were not achieved in many cases, which placed the ultimate official goal or merit of promoting this programme – promoting a harmonious society – in question.
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Jue Jiang

This chapter analyses the problems with the wider criminal justice system that led to the specific problems with criminal reconciliation. First, legal rules are ignored, in part counteracted by internal regulations and in part supplanted by ‘hidden rules’ (qian guize) in practice, which, rather than showing the officials’ rampant power, reveal their weakness in facing the various external and internal pressures coming from, for example, the Political-Legal Committees (zhengfa wei), the Public Security Bureaus, People’s Congresses, local governments and the internal performance assessment systems. Second, the criminal process reflects an authoritarian approach to education aimed at thought reform. Third, evading the real problems leading to difficulty in enforcement (zhixing nan): the government fails to take sufficient responsibility for protecting the victims’ rights to get compensation in civil litigation collateral to criminal proceedings (xingshi fudai minshi susong).