An Empirical and Analytical Enquiry
Chapter 5: The participants of criminal reconciliation programmes: evidence from interviews
In this chapter, which continues to draw on the interviews conducted in this project, the officials’ and the parties’ motivations and feelings, their comments, concerns and difficulties in criminal reconciliation processes are discussed. Such information is also important to understand whether or not the purported goals of criminal reconciliation such as redressing the damage the victim suffered from the alleged crime, educating and correcting the suspect/defendant, satisfying the parties, and closure (an jie shi liao) are achieved. Accounts from the lawyers and other people participating in the criminal reconciliation programmes such as the parties’ parents, teachers, employers and leadership (lingdao) interviewed are also shown in order to complement the picture of criminal reconciliation practices drawn through the accounts of the officials and parties.
As in previous chapters, the term ‘participants’ is used broadly in this chapter. It refers to a number of persons involved in criminal reconciliation processes with different roles. It includes the prosecutors/judges who conducted criminal reconciliation programmes, victims and suspects/defendants of the criminal reconciliation cases, lawyers who represented in criminal reconciliation cases, and other people such as the victims’/suspects’/defendants’ parents, teachers, employers and other persons belonging to what in China is called ‘the leadership’ (lingdao), who also participated in the criminal reconciliation programmes. The term ‘parties,’ as defined in Chapters 3 and 4, also refers to the victim (or the direct victim’s family if the victim died in the case concerned) or the suspect/defendant of the criminal reconciliation cases.
5.1 OFFICIAL INVOLVEMENT IN CRIMINAL RECONCILIATION PROGRAMMES
5.1.1 Officials’ Leading and Dominant Role
According to the procedural regulations or guidelines, what the officials could do in the criminal reconciliation process mainly involved examining eligible cases, explaining this programme to the parties, organizing criminal reconciliation meetings, making decisions for the suspects/defendants after the criminal reconciliation programme was completed and arranging some follow-up programmes. Except for the decision-making and the arrangement of follow-up programmes, the officials’ role at the stage of initiation and criminal reconciliation meeting was passive in confronting the parties’ intentions. Moreover, since criminal reconciliation was promoted as a programme empowering the parties to resolve their cases mainly by themselves, it was also explicitly stressed in the regulations or guidelines that the initiation and proceeding of this programme ought to be entirely based on the parties’ voluntariness, and the officials were forbidden from interfering with the parties’ wishes.
Five officials interviewed (one in Changzhou, two in Chongqing, two in Xi’an) seemed to fully acknowledge this and explicitly stressed their ‘passive role’ in the criminal reconciliation programmes. For example, prosecutor L2 from the People’s Procuratorate of B district in Xi’an mentioned the prosecutor’s role especially in the criminal reconciliation meeting as follows:1
We merely preside over the criminal reconciliation meeting, and must avoid talking about our own opinions in the meeting … well, actually during the entire process of criminal reconciliation.
But she attributed the prosecutor’s passive role to the reason that ‘otherwise, it might give others grounds to act on (lao ren huabing),’2 which meant that the officials’ conduct in criminal reconciliation might be used by the parties to complain since there was no legal basis for such conduct. This motivation was not the publicly claimed one of empowering the parties to resolve their cases mainly by themselves. It sounded as though this motivation was more for the interests of the officials themselves.
However, it was found in the interview that in other circumstances, the officials were not passive in the criminal reconciliation process. It was first embodied in the officials’ arbitrary disregard of the requirements (both compulsory ones and optional ones) of eligible criminal reconciliation cases. As described in Chapter 4, instead of complying with the stipulated premises of eligible cases, the prosecutors/judges often initiated criminal reconciliation in cases that did not fulfil the compulsory preconditions, or they ‘invented’ some compulsory requirements that were not provided in the regulations or guidelines (i.e. the parties’ residence, performance before allegedly committing the suspected crime, psychological test, and so on) in examining cases for criminal reconciliation. In this sense, the officials played a fairly dominant role in the criminal reconciliation process as they could actually ‘make’ the procedure in practice and ignore the existing (formal) one.
But why did the officials do this? Interviews with them shed further light on their motivations. For example, judge N from the People’s Court of Y district in Xi’an mentioned the reason he preferred criminal reconciliation as the internal task imposed by his Court.3
It is required in our Court that three judges should resolve five hundred cases in one year,4 plus there are strict requirements on the quality of each case – ‘people-oriented judiciary’ (sifa weimin), ‘resolving disputes and satisfying parties’ (xi shi ning ren) and ‘closure’ (an jie shi liao).
But in fact, the investigation quality in a number of cases is unsatisfactory; especially there are often some problems with evidence. Moreover, our work burden has always been extremely heavy. Thus, it is very difficult for us to meet the requirements in terms of quality and quantity at the same time.
In this context, we [judges] have a strong motivation to conduct criminal reconciliation in that it can resolve cases with deficiencies in investigation or evidence much more quickly. It can also comfort both parties more easily. You know that the defendant can get a lenient punishment and the victim can get a considerable sum of compensation promptly in criminal reconciliation, which is very hard to achieve in the normal litigation procedure.
Judge N’s colleague, judge L2, attributed his motivation in initiating criminal reconciliation to the internal performance assessment system (jixiao kaohe). This system required the judge’s superiors to take into account a criterion called ‘mediation rate’ (tiaojie lü), as well as a criterion concerning the judge’s success in resolving problems of petitioning (shangfang). Both criteria, according to this judge, had been imposed by the People’s Court of Y district in Xi’an.5
It is normal that the victims or their families cannot get a decision regarding the defendants’ payment of compensation through court litigation enforced by the Court.6 In some cases, it is because the defendants just do not want to pay. Yet more often, it is because the defendants (or their families) are really too poor to pay. Whatever the reason, the conflict between the two parties cannot be resolved in this situation. And the victim/victim’s family would also be dissatisfied with us (judges), so that they might continue making trouble (naoshi) or go to petitioning (shangfang). In accordance with an internal rule, we will be disciplined (chufen) by the Court if they engage in petitioning. So we have to try our best to let the victim get compensation! I think, if the defendant really cannot afford the compensation, they should borrow money or take out a loan to pay it.
Moreover, there is an item in our internal performance assessment system requiring that the ‘mediation rate’ among all the cases each judge handled has to be at least 50 percent. And ‘marks’ will be deducted if we fail to reach such a rate.
The problems with the performance assessment system in general have been discussed in Chapter 1. So far as criminal reconciliation is concerned, judges’ accounts demonstrate that it has given officials direct incentives to bypass the procedural regulations or guidelines in consequence of which the parties’ voluntariness might be impaired and distress caused. For example, it is clear from the accounts of two judges (above) that the internal task imposed by their court and the performance assessment system were the main reasons for their breach of the regulations or guidelines in the initiation of criminal reconciliation. Such incentives were also shown in the interviews with the prosecutors.
An example was case no. seven in location B (a juvenile intentional injury case), as illustrated in Chapter 4, in which the responsible prosecutor H initiated criminal reconciliation when the defendants did not admit guilt or show any remorse towards the alleged crime. In the interview, prosecutor H further mentioned the internal task imposed by his Procuratorate as the reason for his initiation of criminal reconciliation in this case, except for the defendants’ family backgrounds.7
In the last year, the High People’s Procuratorate of Chongqing issued a document8 stating that in the context of promoting a harmonious society and the experimental practices of criminal reconciliation in other localities nationwide, all the Procuratorates in Chongqing should stress the work of criminal reconciliation. Accordingly, our Procuratorate has allocated a task of implementing at least three criminal reconciliation programmes in one year to each prosecutor. Such a requirement is also included in our performance assessment system.
Yet actually, it is not easy to identify a case eligible for criminal reconciliation. I thought that in this case involving juvenile defendants, it should be rather easy to make the parties reach an agreement. So I tried criminal reconciliation in this case.
Another prosecutor, L, from the People’s Procuratorate of B district in Xi’an frankly explained that he initiated criminal reconciliation in a case mainly out of a desire to avoid ‘losing’ – that is to say, to avoid an acquittal – as the outcome of a potential criminal litigation.9
Honestly, I conducted criminal reconciliation in that case not because of some greater goal of social harmony, social stability or conflict resolution. It was principally because I had no confidence in winning the litigation of that case.
It happened between youngsters and was charged as an intentional injury crime case. I found it very hard to prove the suspect’s subjective intention, and the investigation did not provide enough evidence either. I knew that in this case, it was difficult to win in litigation, yet it was not a problem if I could resolve the case through criminal reconciliation. In criminal reconciliation, the most important thing was to make the parties compromise and reach an agreement.
Although prosecutor L did not explicitly mention the phrase of ‘internal task’ or ‘performance assessment system’ as his motivation for initiating criminal reconciliation in that case, his strong desire to win the case implied that this might have some connection with the performance assessment system adopted in his Procuratorate. Under it, the prosecutors would try their best to avoid losing a case in court.
This, however, might produce two problems. For one thing, criminal reconciliation was more likely a tool for the officials to ‘plaster over’ cases, especially those with deficiencies in evidence, in an attempt to fulfil the various internal objectives and performance assessment system. For another, the officials would also simply view the suspects/defendants as ‘objects’ for them to accomplish the internal tasks set in the performance assessment system. Therefore, the officials would still initiate criminal reconciliation regardless of the circumstances of the cases, and repeatedly ‘persuade’ the parties, or ask the parties’ lawyers, teachers, employers or leadership to ‘persuade’ the parties to make them participate in the criminal reconciliation programmes. Judge L2 from the People’s Court of Y district in Xi’an said in the interview that the judges would normally ‘catch an opportune moment to persuade the parties’ or ‘zuo gongzuo’ (‘do some work’ or ‘do some thought work on the parties’) to get the parties’ ‘voluntary participation’ if they do not want to accept the offer of criminal reconciliation initially.10
Nevertheless, the officials’ efforts to initiate criminal reconciliation would in some cases be at the cost of the parties’ wishes and interests. This was verified by several victims’ accounts in the interviews, which are discussed in the following section.
In addition to this hard ‘persuasion,’ officials may directly use illegal methods to make the parties ‘reconcile’ and pay compensation. For instance, a lawyer disclosed that in a death penalty case he had represented, the judge simply kept detaining the defendant to ‘wait for’ any payment of compensation.11
The presiding judge was very actively conducting mediation between the two parties. He had actually implied that as long as my client could compensate, he would not give the death penalty. However, very unfortunately, my client was really too poor to afford that. As a result, no agreement was reached in the first instance trial and my client is still detained at present – the case is now in the second instance trial phase – due to this issue. Yet his current detention has already exceeded the legally prescribed time limits.
Moreover, as raised above, the officials’ dominant role in criminal reconciliation was also reflected in the fact that the officials could add some requirements themselves as compulsory prerequisites for initiating criminal reconciliation. It sounded as though a suspect/defendant could not enter criminal reconciliation without these (additional) ‘qualifications’ even though he/she had met the compulsory requirements stipulated in the procedural regulations or guidelines.
As shown in Chapter 4, such requirements often concerned the suspect’s/defendant’s (or his/her family’s) residence, performance prior to committing the alleged crime, and most important, their ability to pay compensation. Interviews showed that officials had incentives to create additional requirements, for instance because they wanted to avoid failure in the criminal reconciliation process. For instance, prosecutor N from the People’s Procuratorate of B district in Xi’an mentioned the reason that non-local suspects were precluded from participation in criminal reconciliation.12
Nowadays, the floating population (liudong renkou)13 is too large. It is dangerous and troublesome for us if we cannot find the suspects after making a decision not to criminally arrest them, or during the follow-up supervision period in criminal reconciliation. You know that police power is also limited.
So we will only initiate criminal reconciliation for the suspects who are registered as Xi’an residents (i.e. have a Xi’an hukou). We have also established some cooperation with residential communities (shequ) in Xi’an to supervise the suspects (who have gone through the criminal reconciliation process). So of course this programme is only applicable in cases involving local people.
Another prosecutor, Z, from the People’s Procuratorate of Y district in Xi’an explained why criminal reconciliation was only applicable to local suspects in a similar way.14
It is very hard for us to trace the suspects’ situation in the follow-up programmes if they live in other locations rather than in Xi’an. That is really too inconvenient and we do not have that much time and energy.
If the suspects’ household registration (hukou) was a consideration chiefly motivated by the desire to avoid trouble and save time and energy, according to the officials, the officials’ considerations of the suspect’s/defendant’s performance prior to the alleged crime and ability to pay compensation were mainly motivated by the desire to avoid the potential failure of the criminal reconciliation programmes. Prosecutor C from the People’s Procuratorate of Y district in Xi’an explained this.15
A difficulty I once encountered in implementing a criminal reconciliation programme was that it still failed after a long time of reconciliation and after the conclusion of a ‘teaching and help’ programme. Some children really could not control themselves. Their parents and schools did not supervise them well either. So they found their ‘bad’ friends and committed some offence again. Then the criminal reconciliation programme had to end and fail. That was really a waste of our time and effort in conducting criminal reconciliation.
In order to resolve this problem, now, for one thing, we have added psychological tests for juvenile suspects to test their ability to control themselves before making the decision to implement criminal reconciliation. If the result of this professional test is not satisfactory, we will definitely not initiate criminal reconciliation. For another, we will take the suspect’s performance before the alleged crime into account before making the decision to initiate criminal reconciliation. I think a usually good performance can to a large extent guarantee a good correction effect and the success of criminal reconciliation.
The ability to pay compensation, as noted in Chapter 4, was a very critical element affecting the officials’ initiation of criminal reconciliation. And the officials interviewed indicated that criminal reconciliation was rarely initiated if they found that the suspects/defendants were going to be unable to afford a sum of compensation. And this was also mainly to prevent the failure of criminal reconciliation due to the suspects’/defendants’ failure to implement the compensation agreements.
So, it emerged from the interviews that the prerequisites added by the officials in initiating criminal reconciliation such as the suspects’/defendants’ self-control, usual performance and ability to pay compensation, were related to the officials’ desire for the success of criminal reconciliation programmes. Although the officials only mentioned the reason to avoid the waste of time and effort they had put into such programmes, it also had some relationship to the internal performance assessment system. Taking into account the internal tasks and requirements, such as the ‘mediation rate’ set down in the performance assessment system, it was hard to exclude the influence of such a system on the officials’ conduct.
It is also likely that the internal tasks and the performance assessment system were also the reason that the officials played a dominant and active role in the criminal reconciliation meeting. As described in Chapter 4, the officials repeatedly held criminal reconciliation meeting(s) in order to allow the parties to bargain about the compensation sum and reach an agreement. And the officials added some clauses themselves into the parties’ criminal reconciliation agreement which infringed upon the parties’ rights of appeal. Considering the requirement on ‘mediation rate’ in the performance assessment system and perhaps some restriction on ‘appeal rate,’ it was not hard to understand the officials’ conduct in criminal reconciliation meetings.
5.1.2 Officials’ Positive Comments on Criminal Reconciliation
In the interview, 16 officials (two in Changzhou, six in Chongqing, eight in Xi’an) indicated their satisfaction with the criminal reconciliation meeting(s), or the follow-up programmes or the whole criminal reconciliation process. For example, prosecutor H expressed his satisfaction with the criminal reconciliation meeting held for case no. seven in location B (an intentional injury case) as follows.16
In this criminal reconciliation programme, mutual understanding between the parties was achieved; the suspects and their parents realized their faults and changed their indifferent attitudes; the victim and his parents discarded hatred and forgave the suspects; the compensation agreement was enforced fully and in a timely fashion. These outcomes could hardly be achieved in the formal criminal procedure.
Another prosecutor, F, from the People’s Procuratorate of X district in Changzhou also gave a high evaluation to the criminal reconciliation meeting and the whole programme conducted by him in case no. nine in location A (a juvenile intentional injury case).17
This case was resolved peacefully by the face-to-face criminal reconciliation meeting. Conflicting emotions between the two parties were also eliminated through dialogue and discussion in that meeting. Furthermore, the problem of compensation enforcement was effectively resolved in criminal reconciliation programmes. It is helpful to maintain harmony in society. Therefore, I think that criminal reconciliation is a great programme that needs to be expanded to the whole country as soon as possible.
He also praised the criminal reconciliation programme he conducted in case no. six in location A (a theft case).18
I was quite satisfied with the outcome of this case closed through criminal reconciliation. For one thing, the victim gave up his anger and chose to be tolerant which was fairly appreciated by his leadership. For another, the suspect’s work, life and future were not affected by the act he committed on impulse. It was really very important for a young man to have such a chance after making mistakes. Moreover, I got feedback information from the suspect’s boss and parents to the effect that he performed even better than before the criminal reconciliation programme during his supervision period. I was informed that he worked much harder now and even proposed to work overtime; he rarely went to internet bar and often helped his parents to do some farming work.
It sounded as though the officials rated the criminal reconciliation meeting(s) and programmes highly mainly from the aspects of the officially predicted aims of this programme such as redressing the harm the victim suffered, educating the suspect/defendant, resolving the parties’ disputes and establishing a ‘harmonious society.’ Moreover, four officials (one in Chongqing and three in Xi’an) particularly talked about the advantages of criminal reconciliation as compared with the normal criminal process. For example, prosecutor S from the People’s Procuratorate of B district in Xi’an said that:19
The most impressive advantage of criminal reconciliation compared with the normal procedure is that the suspect would know that others may forgive them after they have done something wrong. I believe that this is good for the suspect’s future performance and mental development.
Judge L2 from the People’s Court of Y district in Xi’an mentioned the effect of legal knowledge popularization (pufa) as the main advantage of criminal reconciliation.20
A very significant function of criminal reconciliation is legal knowledge popularization (pufa). In criminal reconciliation programmes, we (judges) have to do much work to persuade the parties to accept our offer of criminal reconciliation. In doing this, we have to patiently explain to them that the outcome of the case resolved through criminal reconciliation is in accordance with the law and therefore is fair to them. During such a process, we would give them much relevant legal knowledge. The normal criminal procedure does not have such a function.
It is beneficial. Often, the parties are unsatisfied with the Court’s adjudication and then petition. But it is largely out of their disregard of legal knowledge! Too many people in China do not understand law and do not trust law, so as a judge in China, I think it is my responsibility to help them know some legal knowledge. Criminal reconciliation is a good channel, as we can have much communication with the parties in this programme.
It seemed that it was hard to learn negative comments from the officials as the people conducting the criminal reconciliation programmes, especially considering the fact that criminal reconciliation was connected so closely with their marks in the performance system. Yet the benefit of ‘legal knowledge popularization (pufa)’ as raised by judge L2 was debatable. It was problematic to assert that the reason parties petitioned was largely their disregard of the law. As noted in Chapter 1, it was in many cases due to the judicial officers’ violations of law. Second, considering the fact that criminal reconciliation was only participated in by a comparatively small number of people (often only the victim and the suspect/defendant of the case concerned) it was a bit far-fetched to say that it was a better way of legal knowledge popularization compared with the normal procedure. It was also questionable to assert that the normal criminal process did not embody this function; this will be further discussed in Chapter 6. Yet most importantly, was legal knowledge popularization really a proper goal that a legal process or a criminal process should pursue? Probably, it should not be over-stressed for a legal process, compared to the values of fairness, justice and protecting the parties’ rights. All in all, it might not be proper to rate legal knowledge popularization as an advantage of criminal reconciliation.
5.1.3 Officials’ Negative Comments on Criminal Reconciliation
Two officials out of 18 who were interviewed expressed some negative views on the criminal reconciliation programmes and their likelihood of achieving the predicted outcomes. Prosecutor C from the People’s Procuratorate of Y district in Xi’an was worried about social circumstances in terms of reaching the aim of correcting juvenile suspects.21
Nowadays, the social context is terrible. Too little concern is put on the juveniles. Also, juvenile crime prevention work is far from enough. There has been much propaganda, while all what we have is merely propaganda. The function of propaganda is so superficial. It cannot touch the juveniles’ mind.
Concern for juveniles not studying in school is even less. Could we reckon on such a society to address the problem of juvenile crime and to correct juvenile criminals effectively? What we (prosecutors) can do, or what criminal reconciliation and the ‘teaching and help’ programme can do is so limited. I believe that either crime prevention or criminal correction should rely on long-term efforts and the general social context.
Another prosecutor, L, from the People’s Procuratorate of B district in Xi’an, expressed his misgivings concerning criminal reconciliation’s impact on the victim (or his/her family) as well as the whole society.22
I think that criminal reconciliation would bring about some negative feelings to the victims (or their families). For example, in the traffic accident related crime cases, the victims’ families would think that they get money because of their relatives’ death. But they have no opportunity to express such a feeling. And in fact, it is useless for them to express it.
It is bad for society too – other people would think that it is just a monetary exchange in criminal cases. Criminal law is unfair in that it only deals with the poor, or people living at the bottom level of society. They will be further dissatisfied with our society.
Besides, I do not think that criminal reconciliation can have great influence on society. Criminal reconciliation cases are minor and usually would not attract public attention. The public cannot get any feedback from these criminal reconciliation cases either.
Now we use reconciliation as a way of resolving civil cases to deal with criminal cases. I feel that such a method is very utilitarian since it is used in the context that conflicts in our society today are too sharp and too much. Yet this has made the People’s Procuratorate more like an official ‘debt-collection company.’
Prosecutor L’s comments on the problems of unfairness and the negative influence on the victim in criminal reconciliation could be further shown by the parties’ accounts in the following sections. But he might somewhat underestimate the influence of criminal reconciliation cases on society. As noted in Chapter 1, there have been many news reports and articles about criminal reconciliation and some of them have attracted wide attention and discussion in society.
5.1.4 Officials’ Expressed Concerns about Criminal Reconciliation
In the interviews, the officials also expressed uncertainty about the legal basis for criminal reconciliation programmes, even though in some of the locations studied, procedural regulations for these programmes existed at the local level. For example, prosecutor S from the People’s Procuratorate of B district in Xi’an mentioned such confusion in the application of this programme:23
Criminal reconciliation is in accordance with the criminal policy of ‘combining leniency with severity’ (kuan yan xiang ji). Thus, apparently it cannot be used in all kinds of crimes. But for which kinds of crime is it applicable? I really feel a bit confused.
We are now just exploring this programme in practice. The guideline issued in our Procuratorate is too general and vague. So when I conducted criminal reconciliation programmes, I often asked myself whether what I was doing was legitimate. I hope that there would be clearer regulations for this practice. Then we (prosecutors) would feel much more secure if there was a solid legal basis for our work.
This prosecutor even viewed this as the main problem of criminal reconciliation practices.24
It is the major problem of criminal reconciliation practices. In some criminal reconciliation cases, the suspects [whose cases are handled through criminal reconciliation] may think that committing a crime is not serious and that they may do that again in the future. That is awful, so we must control the use of criminal reconciliation.
I think that the way to prevent this problem is to limit the use of criminal reconciliation in suspected minor crime conducted by young people or minor crimes completely on impulse. And we should consider the suspects’ characteristics in making the decision to use criminal reconciliation.
But there is no solid legal basis for the criteria now used to judge if a case should be handled through criminal reconciliation. So they rely too much on the responsible official’s subjective judgement, which would produce too much uncertainty as various people may have various criteria.
Another prosecutor, L, from the People’s Procuratorate of B district in Xi’an, also talked about some confusion coming from the lack of a clear and solid legal basis for criminal reconciliation practices:25
The first unclear issue in criminal reconciliation is whether it only applies to juvenile crimes or also includes adult crimes. There is no clear legal regulation for this programme now. I myself have conducted this programme for about one year in both juvenile and adult crimes.
Second, I always feel confused about its nature. Is it plea bargaining? No. Plea bargaining is related to the problem of evidence, while in criminal reconciliation, the requirement of its application is that the evidence is ‘clear and sufficient’ (zhengju queshi chongfen). Then, is it something merely related to the circumstances to be considered in sentencing? Obviously it is not the statutory sentencing circumstances (fading liangxing qingjie); it is something concerning the officials’ discretionary power. Yet there is no legal basis for such a discretionary power either.
There is also no definition of criminal reconciliation, so I am not sure whether it is just an idea or a system, or a method adopted at a certain period in the context of ‘establishing a harmonious society’ (hexie shehui)?
He further talked about the officials’ actual conduct facing this confusion.26
Since criminal reconciliation has not been provided in any legal regulation yet, you cannot find this phrase in any document in the People’s Court, People’s Procuratorate or the Public Security Bureau. We can only write down those systems that have legal basis in the documents. With regard to criminal reconciliation cases, we would write that ‘there is compensation’ or ‘there are circumstances affecting sentence’ in the documents, instead of ‘xingshi hejie.’
The leadership in the Procuratorate did not support this programme much due to the lack of a clear legal basis. We could avoid being criticized by observing legal procedure. In criminal reconciliation, however, our conduct easily attracts criticism (shuo san dao si) by the parties since there is no clear legal basis for it.
Prosecutor L’s account also helps explain the phenomenon noted in Chapter 1 that the statistics on the implementation of criminal reconciliation delivered in the public resources showed that this process was rarely used by the state authorities. Altogether 10 out of 18 interviewed officials (one in Changzhou, four in Chongqing, five in Xi’an) mentioned their problems with conducting criminal reconciliation programmes on the grounds that ‘this practice currently has no legal basis.’27 This problem also gave rise to the officials’ conduct of adding a clause into the criminal reconciliation agreement which impeded the parties’ rights to appeal. The prosecutor who had done this, Y, explained his motivation in the interview:28
It is for the efficiency and effectiveness of the criminal reconciliation programme. On the one hand, litigation after criminal reconciliation is a waste of judicial resources.29 On the other hand, it would impair the effectiveness of the criminal reconciliation agreement and the prosecutor’s image [if the parties could go back to a litigation process after concluding criminal reconciliation]. If the parties could renege on their agreements at their own will, what would be the difference between agreements reached in the People’s Procuratorate through criminal reconciliation and private agreements?
It seemed that, in prosecutor Y’s opinion, the criminal reconciliation agreement should have the effect of barring any further litigation. Yet the validity of the agreement reached in criminal reconciliation was also unaddressed in the current legal system (even in Articles 277 to 279 of the 2012 CPL). Therefore, the situation that there was no legal basis for criminal reconciliation (before the 2012 CPL took effect on 1 January 2013) had given rise to two problems. Firstly, the officials felt insecure about the legal force of this programme, so they ‘created’ something (i.e. adding a clause into the parties’ agreement that explicitly prohibited either party bringing about litigation after signing the criminal reconciliation agreement) in an attempt to give it stronger force.
Secondly, these additions were in fact in conflict with the existing laws and infringed upon the parties’ rights, while there was also no restriction in the law concerning the officials’ conduct in this regard in criminal reconciliation programmes. The problem caused by the lack of legal restriction on the official’s power in criminal reconciliation might lead to further problems. This will be further elaborated in the next chapter. Prosecutor L from the People’s Procuratorate of B district in Xi’an mentioned the problem of corruption.30
The official’s discretionary power in criminal reconciliation is too great. So it is easy to earn personal benefits in this programme, especially given that there is no judicial supervision of this programme.
5.1.5 Difficulties Faced by Officials in Charge of Criminal Reconciliation
An official, prosecutor S from the People’s Procuratorate of B district in Xi’an, expressed some confusion regarding the performance assessment system. She talked about the contradiction between a requirement regarding high ‘prosecution rate’ (gongsu lü) in the performance assessment system of her Procuratorate and the policy of ‘establishing a harmonious society.’31
There is a requirement on arresting and prosecuting a certain number of cases each year in my Procuratorate’s performance assessment system. In fact, this system directly impacts the number of cases in which we would make a decision of non-prosecution and conduct criminal reconciliation.
Sometimes we will not initiate criminal reconciliation merely in order to meet the assessment requirement on ‘prosecution rate,’ even though the case in itself is suitable for this programme.
There is also a competition about these (i.e. arrest and prosecution) rates among all the districts in Xi’an. We will lose in the competition if we do not prosecute a sufficient number of cases. But isn’t there a contradiction? Now we are advocating the establishment of a harmonious society, but in the meanwhile we are pursuing a high prosecution rate, which is a sign of non-harmonious society. I really feel puzzled.
Prosecutor S’s account highlighted again the close relationship between the performance assessment system and the officials’ conduct in their work. They used this system as the real ‘guideline’ for their work, even though they might also consider the system itself unreasonable.
The kind of pressure indicated by prosecutor S may also explain the finding obtained through case file examination that in contrast to the message delivered by public sources, according to which criminal reconciliation was developing rapidly and widely nationwide, not many cases were resolved through this programme in the two People’s Procuratorates in Changzhou and Chongqing (the number was not obtained for Xi’an). Since criminal reconciliation would normally lead to a decision of non-prosecution, the prosecutors might restrict the use of it in order to fulfil the requirement on ‘prosecution rate’ in the performance assessment system.
Almost all of the officials interviewed expressed the view that this programme took too much of their time and energy. For example, prosecutor L from the People’s Procuratorate of B district in Xi’an said:32
Criminal reconciliation programmes take too much of our time and energy. In fact, it requires us (prosecutors) to possess mediation skills, which we should not be supposed to possess as judicial officials. Aunts of the Resident’s Committee (ju wei hui) are much more competent in this aspect. And they have much time to do such work.
Prosecutor H from the People’s Procuratorate of D district in Chongqing also described a criminal reconciliation programme he once implemented as very time-consuming:33
Compared with prosecution, criminal reconciliation consumed much more of my time and energy given that I had spent much time before the criminal reconciliation meeting to seek the parties’ agreements to participate, to prepare for the various activities in the meeting, and to do the supervision work after the criminal reconciliation meeting. Since my work burden as a prosecutor of the People’s Procuratorate at basic level has been already quite heavy, I am inclined not to initiate another use of criminal reconciliation in the future even if I come across a case that by itself is suitable, so long as there is no ‘task requirement’ for that.
Yet, the officials said that a worse situation for them was that even after such hard work over a long period, the parties still could not reach an agreement. For example, prosecutor S from the People’s Procuratorate of B district in Xi’an indicated it as the main difficulty she encountered in the criminal reconciliation cases:34
In conducting criminal reconciliation programmes, the most serious problem for me is that I feel embarrassed when the parties cannot reach any agreement after a long period of reconciliation. In this case, the victim would be concerned that it is because we (prosecutors) have taken some ‘benefits’ from the suspect, so that we did not want to prosecute the suspect.
Concerning why the parties could not reach an agreement, the officials attributed it to the victim’s unreasonable requirements on compensation or the suspect’s/defendant’s likely inability to pay compensation. For example, prosecutor L2 from the People’s Court of Y district in Xi’an said:35
Sometimes victims were fairly unreasonable (bu jiang li). They asked for too much and could not be persuaded to compromise. As a result, the parties could not reach a criminal reconciliation agreement and we had to go back to the normal procedure. This wasted our time.
Judge L from the People’s Court of B district in Xi’an also viewed the failure to reach a criminal reconciliation agreement as the victim’s responsibility.36
Criminal reconciliation relies too much on the parties’ will. Some victims are too stubborn; they put their own interests above anything else. In some cases like minor injury, we (prosecutors) do not think a very serious harm has been done, while they insist that they have been harmed so badly that they deserve a colossal sum of compensation from the defendant. In this kind of case, it is almost impossible for us to persuade such victims to compromise and, as a result, the parties cannot reconcile.
Two officials (in Xi’an) thought that it was the suspect/defendant, rather than the victim, that should be blamed for the failure in reaching a criminal reconciliation agreement. For instance, Judge Z, also from the People’s Court of Y district in Xi’an, mentioned the defendant’s inability to pay compensation as the chief obstacle to reaching a criminal reconciliation agreement.37
Generally, the success rate of mediation and reconciliation in our Court is about 50 percent to 60 percent. The chief element affecting the success rate is the defendant’s ability to pay compensation. If the defendant cannot afford the compensation demanded by the victim, it is impossible for them to reach a criminal reconciliation agreement. In criminal reconciliation, we should mainly take into account the victims’ difficulties and needs since they are the party without fault in the suspected crime.
As indicated above, criminal reconciliation was included in the Procuratorate’s and Court’s internal performance assessment system, so the officials would try their best to make the parties reach an agreement once they had initiated this programme. Yet in the sense that criminal reconciliation would take too much time, the task set in the performance assessment system concerning a certain number of criminal reconciliation cases baffled the officials. A judge, L2, talked about a dilemma he met in criminal reconciliation practice, which resulted from the contradiction between criminal reconciliation’s time-consuming character and the internal task imposed by the Court he was based in.38
Normally, criminal reconciliation would take us at least three months to close a case. It is longer than the time the formal procedure would take, since minor crimes are usually dealt with by the simplified procedure (jianyi chengxu) which takes less than one and a half months. So in my opinion, criminal reconciliation has increased our workload. And it has put us in a very difficult position – the Court requires that three judges resolve five hundred cases per year.
This indicated the problem with the performance assessment system again: regardless of whether the officials wanted to implement criminal reconciliation, or whether the case in itself was not suitable for this programme, the officials had to initiate it largely for the purpose of meeting the requirements set in the performance assessment system.
5.2 THE PARTIES PARTICIPATING IN CRIMINAL RECONCILIATION PROGRAMMES
According to domestic scholars, an essential difference between criminal reconciliation and the normal criminal procedure was that criminal reconciliation empowered the parties to resolve their cases mainly by themselves. In this sense, it protected what was referred to as the parties’ ‘rights of participation (canyu quan)’ in the criminal justice process.39 During this process, the victim was expected to be redressed both financially and psychologically and the suspect/defendant was expected to be properly ‘educated’ and ‘rehabilitated.’
It could be seen from those descriptions that the parties were expected to be at the core and play a leading role in the criminal reconciliation process, especially at the stage of initiating this programme and during the criminal reconciliation meeting itself. The parties’ voluntariness and leading role at these two stages were also stressed in the procedural regulations or guidelines.
However, as already discussed, in practice, it was the officials that controlled and led the whole process of criminal reconciliation. They might also pressurize the parties in this programme. They had the incentive to do so considering the performance assessment system and the capacity to do so considering their almost unrestricted power in criminal reconciliation processes. In this section, the parties’ accounts are provided to further support this point. And the accounts further indicate that the officials’ dominance in criminal reconciliation can cause harm to the parties.
5.2.1 The Victim’s Participation under Coercion
It was found in two cases (in Changzhou) that the victims did not want to accept the offer of criminal reconciliation but they still agreed to participate mainly because of the pressure exerted by the officials. An example was victim C in case no. nine in location A (an intentional injury case).
In the interview, C looked very shy and initially did not want to talk. He just responded that ‘you can ask the prosecutor and my coach,’ or ‘I cannot remember,’ or ‘just so-so’ to the questions concerning the case, the criminal reconciliation meeting and his feelings. When the author asked more questions aimed at probing further into these vague responses, he did not say anything and remained expressionless, giving an impression of resistance and reluctance. After the author had explained to him again that the only purpose of this interview was for the writing of a PhD thesis and that the interview had nothing to do with the prosecutor or the final disposition of his case, he looked more relaxed and started to talk. He talked about how the attack by the fellow students hurt him deeply.40
I could be enrolled in a university on the condition that my performance in the 16th national sports meeting was good, but the injury caused by them (the three defendants) compelled me to give up the sports meeting and so I lost the opportunity of going to university. Even worse, I had to change the training course because of the wound to my legs. You know that it is not easy to exercise a new discipline, so the progress and the grade of my training are now unsatisfactory. And I am very uncertain about the future – I have no idea when I will ever get another chance to go to university. Therefore, I hate the suspects very much and even view them as the murderers of my bright future.
Asked why he agreed to participate in the criminal reconciliation programme if he ‘hated’ them that much, C confessed that he really wanted to see them tried in court, yet his coach and the responsible prosecutor F had spoken to him many times and taught him to ‘consider the relationship between them as schoolmates, so he should give them one more chance as their schoolmate.’41 He said that he was also told by prosecutor F that criminal reconciliation was beneficial for educating the suspects and letting them realize their faults. And for C himself, criminal reconciliation could resolve the case in a short time and he could continue training as soon as the case was resolved. Therefore, at last C chose to accept criminal reconciliation for he did not want to offend his coach and the prosecutor. Also, he wanted to restart training as soon as possible.42
Thus, it is clear that actually C (the victim) did not want to participate in the criminal reconciliation programme initially, but the repeated ‘persuasion’ from his teacher and the responsible prosecutor and the promised benefit that criminal reconciliation would bring led him to accept it eventually.
C’s account, while merely one case, illustrated that ‘persuasion’ could diminish the meaningfulness of the parties’ ‘voluntary’ participation. In such circumstances, the criminal reconciliation meeting could not be expected to produce the projected outcomes such as redressing harm done to the victim and restoring the parties’ relationship. Victim C further described the criminal reconciliation meeting as follows:43
It was terrible! Actually, I did not want to see the suspects and discuss my painful experience anymore. Accordingly, I did not say anything in the meeting. The only impression I had about the meeting was a bargaining over the compensation amount between the parents of both parties. I even did not want to see the agreement containing the compensation amount reached finally. And I have not heard the suspects’ apologies yet.
It seemed that a criminal reconciliation meeting without the parties’ or one party’s genuinely voluntary participation was merely an arrangement for negotiating over compensation, and that such arrangement was not appreciated by the parties or one of the parties in this case. When the author further asked C whether he viewed it as a fair process, or whether he felt satisfied with it, he paused, as though did not know how to answer. Finally, he just murmured that all the bad things had passed away and he could feel better now by trying as best he could to forget the case and the suspects.44
The second example was case no. six in location A (a theft case). The victim of this case, Q, also said that he still could not forgive the suspect after the incident:45
I felt outraged when I found my motorbike stolen as the theft made me lose face in front of my friends. I hated the thief very much and only wanted to ‘teach the thief a lesson’ (jiaoxun ta) when I caught the suspect, X.
Then the author asked him why he had agreed to participate in criminal reconciliation if he hated the suspect that much. He said that he did not want to participate but that his leadership (lingdao), X’s boss and the prosecutor F approached him no fewer than five times separately to persuade him to engage in criminal reconciliation. He was also told by them that X felt very remorseful and that, since X was very young, he should give X an opportunity given that prosecution would destroy his future.
Although Q really could not understand why in such circumstances X should be immune from prosecution and be given another chance, he finally agreed to participate in the criminal reconciliation programme. But obviously he was unhappy with this:46
Motorbike theft happens very often in our village. Why was X different from others? And why was I chosen to be a different victim from other victims (who were not pushed into a criminal reconciliation process), and why should I give him another chance? I am afraid that such a programme is not helpful in terms of cracking down on offences in our village. Yet under the circumstances at that time, I had no other choice, as it was impossible to say no to my lingdao and the prosecutor. I did not want to offend them and make them unhappy. That [antagonizing them] would not have been good for me.
Then the author asked him whether he viewed criminal reconciliation as a fair and just programme. He laughed and said that only students at school (like the author) still cared about things like fairness and justice nowadays, while in society, a variety of issues (i.e. relationships, connections and your leadership’s ‘image’ or mianzi) mattered more.47 ‘Compromise is necessary in life. That is the truth and you have to accept it,’ said Q.48 But when the author asked him whether he felt satisfied with the criminal reconciliation programme, he only commented, ‘It’s alright.’ And he said that ‘I don’t want to see X and mention the case anymore because I still feel furious now’ at the end of the interview.49
It could be seen that, in this case, the victim Q did not participate in the criminal reconciliation programme voluntarily either. He was actually participating because of pressure from the official and his leader. His emotions as a victim could not be addressed appropriately through such a coercive process, though he viewed the ‘compromise’ as vital. Moreover, his anger might show that actually he viewed the process as unfair and unjust though he did not want to state this explicitly.
In a case in location C (a juvenile robbery case), the victim, Z’s father, explicitly expressed his discontent with the situation resulting from the responsible judge’s repeated persuasive efforts to get their acceptance of criminal reconciliation:50
Actually I think what the judge did was really a waste of time. It is because of this that the case has not been decided until this moment! In such a situation (the case has not been resolved yet), how could we comment on our government and our judicial system?
Moreover, Z’s situation is awful now. All the students in his class heard about this matter, and some of them laughed at him. Especially considering that this case has not been resolved, my son and his classmates may think that there would be no consequences for the boys that had done something wrong. What is worse, some of the suspects once threatened my son since they are not detained and still continue to study with my son.
So Z is under such great pressure now that his life and study have been greatly impaired. We, as parents, feel terrible and upset too. At present, we even have no idea on how to explain this situation to Z as a juvenile. So we wrote a letter to the Court. We can only ask for a fair and timely trial of this case. If we get that, we could convince Z that there is fairness and justice in our society and we could help him get out of this trouble as soon as possible.
5.2.2 No Presumption of Innocence
The procedural regulations or guidelines stipulated that criminal reconciliation could only be initiated if the suspect/defendant had admitted guilt (renzui) or expressed regret (huizui). It was the basis of the official goal of criminal reconciliation, namely to educate and correct the suspect/defendant. However, from the descriptions in Chapter 4 it appears that the officials virtually initiated criminal reconciliation ignoring this premise and initiated it when the suspect/defendant did not admit guilt. For example, in case no. seven in location B (an intentional injury case), the responsible prosecutor H talked about his initiation of criminal reconciliation when none of the juvenile suspects showed any regret regarding the case. Another prosecutor, S, mentioned that normally the prosecutors would not consider the issue if the suspects admitted guilt since the suspects were detained at that moment. In this sense, the suspect/defendant was simply viewed by the officials as a ‘criminal’ in need of education and correction through criminal reconciliation processes.
This attitude was also reflected in the officials’ accounts when they talked about the suspects/defendants in detention when they considered initiating criminal reconciliation. Some, as set out below, even expressed the view that the ‘education and correction’ (jiaoyu he jiaozheng) of the suspects/defendants could be expected to start from the moment they were detained, and that the detention house was a suitable place for ‘education and correction.’ For example, prosecutor S from the People’s Procuratorate of B district in Xi’an said that:51
Some suspects may get better after being educated in the detention house, yet some may get worse after staying in that kind of place.
Such a description was popular for juvenile suspects/defendants as well. Another prosecutor, L2, from the People’s Procuratorate of B district in Xi’an mentioned that:52
The circumstances in the detention house are rather bad and that is a good education for those children. Then they would bear in mind the outcome of committing crime and would not dare to do that again in the future.
However, the problem with excessively long custody (chaoqi jiya), as shown in case no. five in location C (a juvenile robbery case) and as discussed in Chapter 4, was found to cause much hurt to the family of the people detained in the interview. The mother of the defendant in case no. five in location C (a juvenile robbery case) could not help crying during the interview when she talked about her son, S, in the detention house after the first instance trial.53
I have not seen S for about half a year, except for his brief appearance in court during the first instance trial.
Although according to an internal rule, detainees may be visited by their families every 10th and 20th of the month, I have not seen him since he was sent there. I was only permitted to write him notes which were said to be passed on to S by the people working there.
I feel extremely worried and upset, but I do not know why I was not allowed to see him and what I can do about it. What worries me most is my son’s condition in the detention house because I have been unable to find out how he has been doing for such a long time. The whole family is under very great pressure and S’s father is sick now out of being too angry and worried. So we insist on appealing (shangsu) for a fair sentence for S. The presiding judge also supports our appeal.
The reason for S’s detention and segregation from seeing his family was not obtained in the interview, but the account above, as a snapshot, showed the seriousness of the problem of excessively long custody (chaoqi jiya) during the criminal reconciliation process on the one hand, and its harm to the parties’ family on the other hand.
So far as the officials of the system regarded the suspects/defendants as criminals in need of education and correction, it was likely that the suspects/defendants would be pressed by the officials to enter criminal reconciliation to accept education and rehabilitation. And it was really hard to say no to officials holding such strong views since the suspects/defendants would also know that the officials were the ones having great power in making crucial decisions in their cases. None of the suspects/defendants interviewed mentioned this point. But it must be remembered that in Changzhou and Chongqing, for the purposes of this research, all the parties were contacted by the officials and interviews took place under their observation.
Deriving from this view held by the officials (that the suspects/defendants were criminals) it became clear that the suspects/defendants were further used as ‘examples’ embodying educational meaning to their peers. Thus, as noted in Chapters 3 and 4, the criminal reconciliation meetings in four juvenile cases (three in Changzhou and one in Xi’an) were attended not only by the parties and the officials, but also by the parties’ schoolmates. For example, the criminal reconciliation meeting held in case no. five in location A (a juvenile theft case) in the parties’ school was attended by the responsible prosecutor, F, both parties, several teachers who had taught the parties and some student delegates selected from the parties’ class (they were from the same class) and all the other classes of the school.54
The student delegates’ observation, according to the responsible prosecutor interviewed, was for the purpose of ‘making this meeting a good chance for the other students to learn more about law’; and the teachers’ observation was to ‘help the teachers know this matter more comprehensively which was good for their educational work in the future.’55
However, it was possible that such a set-up mainly served the purpose of putting pressure on the parties (the suspect especially) to behave according to the teachers’ and the officials’ expectations (i.e. to serve the end of ‘education’). Such a criminal reconciliation meeting was more like a show that sacrificed the parties’ needs or interests for the so-called larger good or other people’s expectations (i.e. ‘education’ in this case). But it was not the end that criminal reconciliation was claimed to pursue and it had violated the goal of empowering the parties during this process.
Although both the suspect and victim expressed their satisfaction with such a criminal reconciliation meeting in the interview, the victim of this case still mentioned that the suspect ‘was very nervous in the criminal reconciliation meeting.’56
In this sense, the suspect might be unhappy with this arrangement, while having agreed out of the teacher’s or the prosecutor’s pressure. After all, it was hard for him to offend these people who acted as ‘powerful persons’ for him. His extreme nervousness in the meeting mentioned by the victim might be a sign of his reluctance of that extensive observation. In this regard, to what extent the criminal reconciliation meeting focused on the parties and granted them real power to resolve their own cases was questionable, now that even they could not have the criminal reconciliation meeting in the way they really wanted.
Yet the responsible prosecutor, F, further commented on such a criminal reconciliation meeting as ‘a vivid lesson on law for the other students observing the meeting.’57 Such comments again indicated that, rather than empowering the parties to resolve the case by themselves, criminal reconciliation and the parties were actually controlled by the officials to serve their own ends, sometimes at the price of sacrificing the parties’ intentions and needs. And it might echo the doubt on the benefit mentioned by a judge that criminal reconciliation was expected to have the function of legal knowledge propaganda (pufa). However, neither the suspects/defendants nor the programme itself should be a tool or a show which accorded some ‘larger good’ greater than the parties’ interests. Otherwise, it might violate the predicted aim of this programme as ‘empowering the parties’ and cause hurt to the parties.
5.2.3 Active Roles for Parties only in Private Reconciliation
It was found in the interview that in the criminal reconciliation programmes, the parties were not always ‘used’ by the officials to serve their own interests. They also negotiated and reached an agreement privately prior to the criminal reconciliation programme, as happened in case no. eight in location B (a traffic accident related crime case). The accounts from the parties in the interview provided further important details allowing a better understanding of the parties’ attitudes.
I really felt very sorry and regretful. I also expressed such feelings to the prosecutor. Nevertheless, in my view, the most important thing, rather than sadness or regret, was to find a way best for him and the victim’s family to resolve the problems resulting from the accident as soon as possible.
So I commenced to search information on the way of handling traffic accident related crime cases on the internet, and then found out a number of news reports about dealing with this kind of case through criminal reconciliation in many other cities in China. I found criminal reconciliation to be a win-win choice for me and the victim’s family – I might not be prosecuted and they could get a considerable sum of compensation promptly. These were tangible benefits! Then I found a friend who also knew T (W’s son) to help me communicate with T. These efforts were successful and T agreed to meet and discuss the way of resolving the problems together with me.
The victim’s son T described the change in his thoughts before his acceptance of X’s offer of private negotiation and reconciliation.60
After the accident happened, I was sorrowful and angry. I felt that it was impossible for me to forgive the person who ‘had killed’ my mother. My family was full of that kind of emotion too at that time. When I knew X’s intention from my friend, at the beginning I thought that I could not accept this suggestion as I just wanted to see X sent to trial and fired from his job.
However, my father was so tolerant that he persuaded me and my brother and sister to forgive X and to give the young man another chance after he heard X’s situation and regret from the prosecutor. Since I and my brother and sister firmly disagreed with our father’s opinion, family conferences attended by my father and all the children were held many times to discuss whether we should accept X’s reconciliation proposal.
At first, all the three children refused to listen to our father’s views. But in the meantime, I learned from the internet that in traffic accident related crime cases, the suspect often did not pay compensation according to the sentence delivered in the Court, and the suspect would not be sent to prison anyway since it was a minor crime. Then I began to consider my father’s reasons and X’s suggestion.
Finally, I thought that my mother cannot come alive again; it is correct to rationally pay attention to the method how to best address this matter. Therefore, I agreed to meet with X and negotiate with him.
However, T’s account showed that the main reason leading to his change of mind and acceptance of X’s suggestion of reconciliation was his realization of the frustrating reality that it was almost impossible to get X sent to jail as he wished, and that it was very likely that his family would not get any compensation if X was convicted and sentenced in a criminal trial process. In other words, if T had been convinced that X would be punished harshly in accordance with T’s wishes and that his (the victim’s) family could also get compensation according to the Court’s adjudication, he would not have chosen criminal reconciliation.
Concerning the private meeting between X and T, T described it as follows in the interview:61
In our private meeting, we mainly talked about compensation and reached an initial agreement on that. We later suggested to prosecutor Y that we wanted to resolve the case through an alternative way other than litigation, which was smoothly adopted by Y.
This process showed that in this case, criminal reconciliation was factually driven more by X, the suspect, and T, the son of the victim, rather than by the prosecutor. The prosecutor was involved informally prior to the resolution meeting; but the parties had, de facto, come to an understanding, if not full agreement, beforehand based upon their assessment of what could be achieved in the reconciliation process as against the criminal process. In addition, it is interesting to see in this case that information on the general issue was available from the internet which might become an increasingly important source of ‘legal advice.’
Subsequently, as shown in Chapter 4, the formal criminal reconciliation meeting was held by the responsible prosecutor Y simply to confirm the private agreement. Such a simple criminal reconciliation meeting, which revolved around confirming the parties’ private agreement, could hardly serve the claimed purposes such as redressing the victim’s damage and educating or correcting the suspect. It was further noticed in T’s account that it seemed that the dispute between the parties was not well addressed either:62
In fact, my brother and sister could not understand my choice of reconciliation even now. My brother and sister argued that I was putting a price tag on our mother’s life. My father and I would continue persuading my brother and sister. And I believed that they would eventually understand that.
In this sense, actually a potential dispute remained since T’s brother and sister still firmly objected to criminal reconciliation and its outcome. This made it hard to accept the official position that criminal reconciliation brought about ‘closure.’
The suspect X’s account in the interview confirmed that the claimed goal of educating and correcting the suspect was not reached in such a criminal reconciliation programme (see further below).
As to why the official accepted the parties’ proposal of criminal reconciliation and the parties’ private reconciliation, this was attributed to the fact that the parties’ proposal met his expectation of using criminal reconciliation in this case. Maybe the official also knew that there might be some problems in the parties’ private negotiation and such a criminal reconciliation was hardly likely to produce the predicted outcomes such as repairing the harm of the victim and educating and correcting the suspect/defendant. Instead of implying the parties’ dominance, this might actually show that in fact, driven by the performance assessment system, what the officials cared about most was that they could close the case as they wished, the sooner, the better. The parties were actually marginalized in this process.
5.2.4 The Parties’ Comments on Criminal Reconciliation
It was found in the interviews that most of the parties expressed satisfaction with criminal reconciliation. For example, in case no. five in location A (a theft case), the suspect commented on the criminal reconciliation programme he participated in as necessary and fair.63
I am satisfied with this programme. It first provided an outlet for the victim L to express his emotions, and second, during this process, both of us could say what we wanted. After the case was resolved, my life went back to what it had been before.
I felt stressed at the time I was discovered by the police, but this pressure disappeared when I found that my classmates, especially the victim L, and my teachers did not look down upon me and I reintegrated into the group easily after the case was resolved through criminal reconciliation. Moreover, since there was no criminal record, my future would not be affected by this case. I also felt good that I had learnt some useful legal knowledge from the prosecutor in the meeting; it could help me control myself better in future.
The victim in this case also briefly expressed his satisfaction with this criminal reconciliation programme in the interview.64
I have got what I wanted in the criminal reconciliation meeting, which really met my expectation. So I was fully satisfied with this programme.
In case no. six in location A (a theft case), the suspect, X, also expressed his satisfaction with the criminal reconciliation programme.65
The best point of criminal reconciliation was that my work and life were not adversely affected by my wrongdoing. And the criminal reconciliation meeting provided a place for me to say anything I wanted freely, and to express my remorse and extend an apology to the victim. Accordingly, I regard criminal reconciliation as a fair and just programme that meets all my expectations. As to the relationship between us (the parties) after criminal reconciliation, on my side, I am very willing to say hello to the victim Q if we meet some day, though we have not met again after the case was resolved.
Even in the case mentioned above in which the essential negotiation was conducted before the formal criminal reconciliation meeting, the suspect stated his satisfaction with the outcome of the formal criminal reconciliation programme.66
I am very satisfied with this programme and the outcome. After the case was resolved, my work was not adversely affected, and my life went back to what it had been before.
If the suspect’s family had insisted on litigation, I would have tried my best to avoid paying the compensation awarded by the Court in the civil suit collateral to criminal proceedings, since litigation would make me lose a job and have a criminal record which would badly influence my future. In this sense, I would have hated the victim’s family and would not have wanted to pay anything to them.
Indicating satisfaction with the criminal reconciliation programme notwithstanding, X2’s account led to reasonable doubts about the sincerity of his regret and apology in this programme. It seemed that those were merely built on the positive outcome criminal reconciliation could bring to him; had the outcome not met his expectations, he would have abandoned his remorseful emotions and become resentful. This, however, was not noticed by the responsible prosecutor in the criminal reconciliation programme, which was in fact an official formality to confirm the parties’ agreement reached in the private negotiation. Perhaps this was also due to the problem pointed out above that what the officials cared about most was having the parties sign a criminal reconciliation agreement to reach the requirement set in the performance assessment system.
In this case, the victim’s son who participated in the criminal reconciliation also expressed satisfaction with this programme in the interview, facing his brother and sister’s objection though.67
Although I am still sombre too, I do not regret my choice. I am pleased to have given the young suspect another chance and to see that his career and life were not affected. Also, since my mother could not be brought back to life even if X were sent to court and fired, for my family, receiving a considerable sum of compensation promptly was rational and meaningful.
There are also ‘direct’ parties of the criminal reconciliation cases expressing their satisfaction in the interview. For example, in case no. seven in location B (an intentional injury case), the victim’s mother expressed her positive evaluation of criminal reconciliation in the author’s interview with her over the phone:68
I felt relieved to participate in the criminal reconciliation meeting and viewed it as a win-win practice. On the one hand, we felt much better through having been able to speak of our distress and other feelings in the meeting, and getting a sincere apology from the suspects. On the other hand, we were happy to see the changes in the suspects and to give them this chance after they had done something wrong.
The suspects’ parents in this case also positively commented on the effect brought about by the criminal reconciliation programme in the telephone interview as ‘the children became more mature than before; they studied much harder and their teachers in the school often praised them now.’69 Nevertheless, the author only got the juvenile parties’ parents as the ‘indirect’ parties to grant interviews, because the author was informed by the parents that all the children were extremely busy with preparing for their final examinations at that time. Although all the parents used ‘we’ not ‘I’ in the interview, which meant that they spoke also for the ‘direct’ parties, namely their children, the possibility that the juvenile parties in fact would not have provided such positive comments on the criminal reconciliation programme cannot be precluded.
Concerning why these parties expressed satisfaction with criminal reconciliation programmes, it might be because they had participated in this programme voluntarily, and the outcome of the programme had met their expectations. Referring to the earlier analysis, the victims who had participated mainly under pressure from officials of the justice system or their teachers or leaderships expressed displeasure and irritation with this programme. Those distinct emotions, to a certain extent, demonstrated that voluntary participation was crucial to whether or not criminal reconciliation could satisfy the parties. But it was also possible that the parties just did not want to show their negative comments on this programme for fear of any potential negative consequences this interview might have for them, especially since the interviews with the parties were contacted and observed by the officials in Changzhou and Chongqing.
5.2.5 The Parties’ Difficulties in Criminal Reconciliation Programmes
Although being satisfied with the criminal reconciliation programmes, the parties also met difficulties in this programme. One difficulty mentioned by the victims interviewed was that not much attention was paid to them, except for the monetary issue which had little influence sometimes (i.e. the victim did not care or need money very much; or the psychological harm was more important than the monetary loss in the victim’s mind). An example was the account delivered by the victim M in case no. five in location C (a robbery case):70
In the criminal reconciliation meeting, I could really feel the defendants’ parents’ upset and remorse from their sincere apologies. Some of the parents even cried, and they were positive towards compensation. So I changed my mind to be willing to give the juveniles one more chance and signed the agreement.
However, actually I do not think such a programme helped me a lot and it did not alleviate my hurt feelings. My psychological harm cannot be relieved through money. Now I still feel bad. I became a very timid person after that. I am very scared of going somewhere alone. I always feel very insecure now but I do not know how to deal with it.
Although criminal reconciliation effectively resolved the problem of compensation enforcement, from these remarks, the function of compensation for the victim in criminal reconciliation might be overstated. As mentioned by the lawyers interviewed, in fact some victims in good economic circumstances would not accept criminal reconciliation. This point was substantiated by the account of the victim’s father in case no. six in location C (a juvenile intentional injury case). In this case, the first criminal reconciliation meeting failed and the victim’s father firmly insisted on refusing the responsible judge’s proposal of another criminal reconciliation meeting. The family asked for a trial as soon as possible even though the responsible judge had communicated with him no fewer than three times.71 The victim’s father, Z, explained his insistence in the interview:72
My son Z’s wound was so serious that there was now symptoms in his brain. Yet after the attack, when Z was in hospital, none of the defendants (or their families) appeared to visit him, or to apologize to him. We felt infuriated about the defendants’ indifference, so honestly we did not want to see the defendants anymore.
However, later we still agreed to meet them as arranged by the judge L in the so-called criminal reconciliation meeting. We did so purely to show the judge some respect. But the meeting made me even angrier, as we could not see even a gleam of sincere apology or remorse or concern for Z from them.
All of their talk concentrated on our forgivenesses being essential for their children. And the parents attending the meeting even found various excuses for their children, rather than apologizing to us sincerely. It was really ridiculous, and made us feel angrier.
So what we hope now is that the case could be decided in court as soon as possible. Now we do not care about money. We have spent all the money needed for Z’s cure and we can afford that. We just want to see them sentenced according to law even if we cannot get any compensation from them.
It could be seen from Z’s father’s account that, different from the opinion widely expressed by the officials that compensation was of paramount importance for the victims, not all victims actually view it as that important. But the frustrating fact that they could hardly get compensation could to a large extent force victims needing it to enter criminal reconciliation by sacrificing their other needs or voluntariness. In such a context, however, to what extent the criminal reconciliation programme could redress the victims and satisfy them was questionable.
Concerning the defendant’s difficulty in criminal reconciliation, it mainly related to the compensation they had to pay. As mentioned in the preceding chapters, the sum of compensation the suspects/defendants needed to pay in criminal reconciliation was normally higher than a court would award in the same kind of case. And it needed to be paid in a timely fashion. Otherwise, the suspects/defendants could not get the expected outcome like non-prosecution or a lenient sentence.
This was attested to by the fact that all the suspects/defendants, even though they had paid the compensation in the agreements, talked about the difficulties in life caused by such payment, and rated compensation as the top difficulty in criminal reconciliation. For example, L, the suspect of case no. two in location C (a traffic accident related crime case), mentioned it as follows:73
Although I have got the suspended sentence I appreciate most through criminal reconciliation, my life is still impacted by this matter. As a migrant working here, the compensation of thirty thousand yuan is indeed a large sum of money for me. But I know that I do not have any choice. On the one hand, I really did something wrong so that I owe them (the victim); on the other hand, it was the only opportunity for me to get a lighter sentence.
So I think that overall, criminal reconciliation is a fair process and I am satisfied with it since I have got the suspended sentence. But my difficulty is that I have borrowed too much money to pay the compensation, so now I have to work very hard to pay back the debt. Actually I am worried about that and under tremendous pressure.
It seems from L’s account that he rather justified the difficulty caused by the compensation in terms of receiving the suspended sentence and he viewed criminal reconciliation as the only way for him to get that outcome. Such a thought was very common among the suspects/defendants interviewed. In a juvenile intentional injury case in location A, all the juveniles’ parents also said that, because of the amount of compensation, although they were heavily in debt after the case was resolved, it was still worth resolving the case through criminal reconciliation. It meant that their children had no need to go through the criminal trial process and could resume school quickly. And they were willing to earn money and work harder to pay off the debt.74
Nevertheless, it seemed that the suspects’/defendants’ difficulty was because compensation was the absolute focus of criminal reconciliation, and the officials even connected it directly with the suspects’/defendants’ remorseful attitudes, the victim’s satisfaction and the decisions they would make. However, was it totally the suspects’/defendants’ burden to address the problem of enforcement? Alternatively, was it mainly or only the suspect/defendant that was to blame for this problem? Besides, could or to what extent did this mechanism really address the problem of enforcement? These are elaborated in the following chapter.
As noted in Chapter 4, more than that, the idea that identifying the suspects’/defendants’ remorseful attitudes and the victim’s satisfaction with compensation was absurd. While the suspects/defendants could still pay a large sum of compensation mainly for a lighter sentence, the victim still felt hurt after being paid.
5.3 THE LAWYERS AS ACTORS (PARTICIPANTS) IN CRIMINAL RECONCILIATION CASES
5.3.1 Lawyers’ Role as Mediators between Officials and the Parties
As demonstrated in Chapter 4, it was noticed in the interview that in two cases the officials only approached the lawyers during the process of getting the parties’ agreement to participate, and then the lawyers successfully persuaded the suspect to accept the offer of criminal reconciliation. Judge L from the People’s Court of B district in Xi’an described how the lawyer acted as a ‘bridge’ or ‘go-between’ between her and the defendants (and their parents) during this process in case no. five in location C (an intentional injury case).75
I first communicated with the defence lawyers assigned by the Court about the possibility of criminal reconciliation.76 In my communication with the lawyers, I chiefly mentioned as the advantageous outcome of criminal reconciliation a lighter sentence or a suspended sentence, which was conditional upon the victim’s acceptance of their clients’ apologies and compensation payment. Since all the defendants were in the detention house at that point, I did not approach them. Then the lawyers conveyed my intention to the defendants in detention and their parents.
In the notes recording the meetings between the lawyers and the defendants which were also enclosed in the case file, all the defendants explicitly talked about their repentance and regret, and expressed their willingness to go through a criminal reconciliation process. The lawyers also told me that all the defendants’ parents agreed to fully compensate the victim and participate in the criminal reconciliation programme. Then the parents were required by me to write a statement about their voluntary participation in criminal reconciliation.
In the criminal reconciliation meetings that followed, the lawyers also conveyed the defendants’ remorse on behalf of the defendants and helped the defendants’ parents with bargaining over compensation. In an interview, Judge L2 from the People’s Court of Y district in Xi’an also mentioned that ‘usually the lawyers would actively facilitate criminal reconciliation.’77
The stated reason the officials sometimes approached the lawyers, instead of the parties they represented, to talk about the offer of criminal reconciliation, was that this would make the process easier. Prosecutor S from the People’s Procuratorate of B district in Xi’an explained this as follows:78
Often, the relationship between the two parties is tense immediately after the case has happened. The victim (or his/her family), especially, is angry with the suspect. Thus, it is hard for us to get them to accept criminal reconciliation and make some compromise. Besides, the suspect is generally detained at that time and it is not very convenient for us to meet him/her.
In this kind of case, we would normally seek out their lawyers. It is much easier to communicate with the lawyers, as legal professionals, and they would know that criminal reconciliation is beneficial for their clients. Then they would persuade their clients, and it is also easier for the parties to accept their lawyers’ advice.
It seemed that the officials had made working with their lawyers a ‘strategy’ to get the parties’ participation in criminal reconciliation. Lawyer L interviewed in Xi’an also described this role played by lawyers in criminal reconciliation:79
At first, the judge/prosecutor/police would tell us about the possibility of criminal reconciliation and the benefits of it. At this stage, the individual parties will not meet each other. I feel that the conflict between them still exists. So in fact they do not want to see each other.
Normally, we will give our clients suggestions on accepting criminal reconciliation as it is really beneficial for them. The suspect/defendant could get some lenient punishment and the victim could get compensation promptly. After all, getting those ‘concrete’ benefits like money or a lighter sentence is much more significant for them, I believe.
Yet we will definitely respect their opinions. If they do not want to accept it after we have tried to persuade them, we will not insist on that.
In the criminal reconciliation meeting, the agents of both parties will discuss the compensation agreement.
Lawyer L’s account sounded as though the lawyer viewed criminal reconciliation as beneficial for both parties so that he assisted the officials to facilitate this programme. But he also talked about the problems with this programme, which made the benefits regarding compensation of questionable value.
Importantly, lawyer L’s account implies that rather than challenging public power, the lawyers acted as ‘go-betweens’ to get their clients to accept the offer of ‘reconciliation,’ and this further facilitated the officials’ ‘persuasion.’80 Although it was understandable considering the dilemma the lawyers might face – the potential adverse results their clients might get if they ‘offended’ the officials and the fact that their clients found it hard to get compensation through the normal procedure, this process was an erosion of the adversarial and rights-centred conceptions of justice underlying earlier reform efforts.81
5.3.2 Some Lawyers’ Comments on Criminal Reconciliation
Lawyer L expressed the view that the problems of criminal reconciliation arose mainly from its focus on compensation.82
I have been the agent in about five criminal reconciliation cases; they were all traffic accident related crime cases. As to the process of criminal reconciliation, it is mainly bargaining over compensation. Often the officials would simply connect the degree of the suspect’s/defendant’s regret with the amount of compensation he/she would be willing to pay in criminal reconciliation.
I find that the parties might fight with each other when they meet at the beginning of the criminal reconciliation meeting. But the situation changes after the criminal reconciliation agreement on compensation is reached. In particular, the victim changes his/her attitude of anger when he/she gets the money.
However, I think that criminal reconciliation is an unfair system. It readily conveys the impression that criminal law or penalty is just for poor people who cannot afford paying compensation. I do not know how to resolve this problem as a lawyer. Maybe poor people will just have to accept this unfairness resulting from wealth disparity? It is really disappointing.
Therefore, in the opinion of lawyer L, although compensation in criminal reconciliation was advantageous for both parties, it led to unfairness. Yet of course, concerning the specific clients in one case, he would try to make criminal reconciliation successful since it was good for his clients.
Another lawyer interviewed, Z, also commented on the importance and the problem of compensation in criminal reconciliation.83
I noticed that the victim’s (or his/her family’s) economic circumstances mattered crucially for whether or not the parties could reach a criminal reconciliation agreement. Often, victims from families in good economic circumstances would refuse to enter into a criminal reconciliation process.
Lawyer Z further talked about the problem of unfairness and coercion in criminal reconciliation from the perspective of the judge’s power.84
The most serious problem with criminal reconciliation, in my opinion, is that the judge’s discretionary power is unreasonably great. It is thereby easy for them to do some under-the-table things.
According to my own experience, in some cases, the defendants cannot get the expected lighter sentence after the enforcement of the compensation agreement. When that happens, it is really unfair. And the defendant would in such a case think that the judge must have gained something from the other party. However, reducing the sentence after the defendant has paid compensation is just a way of taking into account an extenuating circumstance in sentencing (zhuoding liangxing qingjie) as provided in the Criminal Procedure Law, rather than a statutory one (fading liangxing qingjie). It is totally up to the judge’s discretionary power. So it is hard for the defendant to challenge such an outcome.
In this regard, in criminal reconciliation programmes, defendants in the same kind of crime may get different sentences because of the judge’s discretionary power. Such differential treatment will give the impression that law is unfair.
Moreover, since in the current system mediation and reconciliation are directly connected with the judges’ own interests coming from their internal performance assessment system, it is possible that they would use their discretionary power to put pressure on the parties during the process of criminal reconciliation to make it successful. And it is easy for them to make it successful as it is hard for the parties to offend the judge who will judge their cases afterwards.
As for ways to resolve this problem, we as lawyers have to ‘communicate’ well with the judges to help our clients obtain a reasonable and expected outcome.
Lawyer Z’s account substantiated the discussion of the officials’ dominant role in the process. It seemed that the officials’ dominance in criminal reconciliation largely came from their very great discretionary power in this programme. As a result, the parties (and their agents) faced much uncertainty concerning the outcome of the case in criminal reconciliation, while the lawyers could only resort to ways outside the legal system, like building a good personal relationship with the officials, to resolve this uncertainty in the outcome of the case. Thus, the officials and the parties (and their agents) would have much personal contact in criminal reconciliation which was likely to produce some under-the-table trade. This was exactly what prosecutor L from the People’s Procuratorate worried about, as shown in the first section.
5.4 THE ROLE OF OTHER PARTICIPANTS IN CRIMINAL RECONCILIATION PROGRAMMES
5.4.1 Serving Officials’ Purposes
The term ‘other participants’ refers to those people who participated in the criminal reconciliation programmes apart from the parties and the responsible officials. They included the victims’ or the suspects’/defendants’ parents, teachers, employers, leadership (lingdao), peers such as their schoolmates, and some officials observing the criminal reconciliation meeting (i.e. the police officer responsible for the case and the officials from the local Justice Bureau).85
As we have seen, except for observing the criminal reconciliation meeting, these people, especially the parties’ parents, teachers, employers, leadership, assisted the responsible prosecutors/judges in the criminal reconciliation programmes. Specifically, they helped the officials in getting the parties’ agreements to participate in criminal reconciliation, making the parties reach criminal reconciliation agreements, and supplying updated information regarding the suspects’/defendants’ performance in the follow-up programmes to the responsible officials.
Nonetheless, as noted in Chapter 4, such assistance might have constituted coercion impairing the parties’ voluntariness in criminal reconciliation. For instance, they helped the officials to persuade repeatedly the parties to give their ‘voluntary participation’ in circumstances where it was hard for the parties to offend these people. And the extensive observation of the criminal reconciliation meeting in itself was likely to make the parties feel uncomfortable or unhappy.
In addition, it was found in the interviews with the juvenile parties’ parents that they largely took it for granted that they could represent their children in the criminal reconciliation process. They appeared to believe that they could express the emotions and stands expected to be shown from the parties in criminal reconciliation like voluntary participation, remorse about the alleged crime and satisfaction with the criminal reconciliation programmes.
All these activities of the other participants further lowered the status of the directly involved parties and lessened the parties’ intentions in criminal reconciliation programmes. In this sense, those other participants also assisted the officials in terms of marginalizing the parties in this programme.
5.4.2 Other Participants’ Comments on Criminal Reconciliation
All the other participants interviewed expressed their zealous enthusiasm for criminal reconciliation and high opinions of this programme. For instance, in case no. five in location A (a theft case), the juvenile parties’ teacher, W, who had helped the responsible prosecutor arrange the criminal reconciliation meeting with extensive observation by the parties’ teachers and schoolmates, talked about his welcome to this programme.86
When the responsible prosecutor F contacted me about resolving the case through criminal reconciliation, I expressed my strong support immediately and promised to help F to persuade the suspect and victim to accept this offer, because I believed that it was beneficial for the suspect and the relationship between the two parties as classmates.
He further evaluated this programme highly:87
First, it resolved the contradiction between the suspect and the victim caused by the case; second, it gave both parties a chance to learn more about law; third, as many student delegates from other classes also attended the meeting, it had a great educational meaning to more students.
At this point, the author asked whether or not such an extensive participation might embarrass the parties, especially the suspect. W did not share this opinion by saying that it surely would not since he had told the victim, C, before the meeting that attending a meeting observed by his schoolmates and teachers was the right way to face the mistake, and rumour or judgements concerning him could only be eliminated through such a public channel.88 Thus, C himself agreed to that type of meeting.
In case no. nine in location A (an intentional injury case), the parties’ coach also talked about her activities and thoughts in the criminal reconciliation process in the interview.89
My husband and I have lived with these children for many years as their coaches. We know these children very well that they are all good youngsters; this case happened just because youngsters are always impetuous.
After the incident had happened, we were anxious about (the victim) C’s injury and worried about the awful influence the case might bring to the three suspects too. We knew that a criminal trial and sentence would not only badly affect the suspects’ current performance on the training programme, but also affect their future. So we felt glad when the responsible prosecutor F approached us to introduce criminal reconciliation. We thought that it was good since according to F’s introduction, firstly there would be no criminal record for the suspects, and secondly the victim could get compensation quickly.
Then we helped prosecutor F to suggest the use of this programme to the parties’ parents and the young parties. The suspects’ parents were willing to participate for they did not want their children to be prosecuted and have a criminal record. As for the victim’s parents, getting compensation promptly through criminal reconciliation to cover the operation fee was the most attractive point, so they also agreed to participate.
In the first criminal reconciliation meeting, the two parties could not reach an agreement on compensation. This coach even helped them to reach an agreement via consulting a judge she was acquainted with about the sum of compensation after the failure of the first meeting.90 She then conveyed the information given by that judge to the victim’s parents, which led to the victim’s parents’ compromise in the second criminal reconciliation meeting and the parties’ coming to an agreement.91 At the end of the interview with her, she also praised criminal reconciliation as ‘a good way to handle criminal cases since the result benefited both parties.’92
It seemed that these people thought it a really good chance for the parties (especially the suspect/defendant perhaps), so that the parties should take the opportunity. However, it might also be possible that these people assisted the officials because they did not want to offend the officials. They might be concerned that they would still have to deal with those officials in the future and it would be adverse to them if they offended the people with power.
This chapter further addressed the role of the official, the lawyer, the parties and the other participants in criminal reconciliation, as well as their comments and feelings about this programme through their accounts in interviews, in an attempt to shed some light on the questions raised in Chapters 3 and 4.
It was found that, contrary to the claimed goal that criminal reconciliation would empower the parties to resolve their cases mainly by themselves, it was the officials who played the leading and dominant role during the process of criminal reconciliation. The parties, by contrast, could play only a somewhat passive role. The officials could arbitrarily disregard the procedural regulations or guidelines during the process of criminal reconciliation for the purpose of meeting the various requirements set in the internal performance assessment system. So in fact, it was not the procedural regulations or guidelines, but the performance assessment system, that guided the officials’ conduct in this programme. The unrestricted power of the officials facilitated this outcome. The lawyers’ assistance and the other participants’ assistance in criminal reconciliation, possibly out of their consideration of the benefits of criminal reconciliation or their personal wish to keep good relations with the officials, further facilitated the officials’ dominant and leading role in this programme. This weakened the parties’ role in the criminal reconciliation processes with the result that the parties were usually passive and employed by the officials as a ‘tool’ to meet their own goals.
In this context, it was not surprising that the officials and the other participants mostly commented positively on criminal reconciliation as having achieved the claimed goals, and the official case files drew a positive and uncritical picture of this programme. Some of the parties also rated criminal reconciliation highly at interview. It might be because they indeed participated in this programme voluntarily, while it might be also because the interviews with them were conducted under official observation. However, two victims explicitly expressed negative comments and their distress out of somewhat coercive participation caused by the officials and their teachers or leaderships. This showed the significance of voluntary participation in criminal reconciliation on the one hand, and the coercion coming from the repeated persuasion of the officials and their teachers or leaderships on the other hand.
The interviewees’ accounts also illustrated difficulties some of the officials met in criminal reconciliation. Some officials felt uncertain about the structure of the programme in the absence of clear regulation. Additionally, criminal reconciliation took too much of their time and energy, which conflicted with some other requirements set in the performance assessment system. The lawyers felt uncertain in criminal reconciliation processes since the official’s power was too strong, possibly causing unfairness to the parties. For the parties, the main difficulty came from the absolute focus on compensation in this programme. For one thing, it brought heavy pressure on the suspect/defendant; for another, it actually could not do much to redress the victim.
To sum up the findings shown in Chapters 3 to 5, it emerged from the case file examination and interviews that criminal reconciliation practices in the three studied locations differed from the accounts in public sources. The parties did not have power in this programme to resolve the case mainly by themselves. This programme was still controlled and led by the officials to serve interests arising out of the performance assessment system. The parties’ rights and voluntariness were easily harmed by the officials’ unrestricted power during this process. In addition, in many cases, the predicted goals of criminal reconciliation such as redressing the victim’s damage, educating the suspect/defendant, restoring the parties’ relationship, bringing ‘closure’ were not achieved, which placed in question the end of ‘promoting a harmonious society.’ As the interviews showed, the focus of this programme was actually on compensation. But such a focus led to unfairness and the parties’ discontent and difficulties, all of which further impeded the criminal reconciliation’s achievement of those purported goals.
Although the fieldwork for the present study was small-scale, two arguments may further support the author’s findings shown in Chapters 4 and 5.
First, concerning the limited access to research samples, since the author’s access was restricted to those cases ‘selected’ by the officials as ‘good examples’ and the parties’ accounts might have been affected by the officials’ presence in the interview, the real picture can only be worse.
Second, increasing public reports from a variety of locations in China have also demonstrated problems with criminal reconciliation of the kind the author found in the empirical study. For example, a news report published in April 2012 disclosed that the suspect of an alleged crime of illegal confinement, Niu Hao, who was the deputy director of the housing bureau of Zhaolin district of Luohe city in Henan province, had signed a compensation agreement with the victims through ‘reconciliation’ to resolve this case.93 According to their ‘agreement,’ as an ‘exchange’ for the payment of the compensation, the victims needed to express their forgiveness, ask the Public Security Bureau not to investigate the suspect’s liability and cooperate with the Public Security Bureau in order to make sure of this outcome, and the ‘reconciliation’ should mean a ‘closure’ to the matter.94 At first, the victims had fully complied with the ‘agreement.’ What finally irritated the victims and made them reveal this matter was the suspect Niu Hao’s further ‘requirement’ to ask them to change their testimony at the Public Security Bureau before he paid the last instalment of the agreed compensation.95 According to the victims, Niu asked them to say that they had not been beaten by Niu; their wounds were caused by their own fall.96
This case implies that criminal reconciliation mainly revolves around compensation, and how easy it is for the rich and powerful to use this process to impose coercion (on the other party) and avoid punishment. What the officials did (or failed to do) in this process further infringed the weaker party’s rights and harmed justice. This might indicate that, as argued in this chapter, under pressure or from personal interests to meet the internal performance assessment criteria, what the officials care about most in criminal reconciliation is compensation.
1 Interview with prosecutor L2 in Xi’an in September 2010.
3 Interview with judge N in Xi’an in August 2010.
4 Judge N did not specify in the interview why the task was allocated to three judges. Yet it was possible that in Y district People’s Court in Xi’an, three judges as a group were to be disciplined (chufen) if the task could not be fulfilled.
5 Interview with judge L2 in Xi’an in August 2010.
6 Article 41 of the Organic Law of the People’s Courts of the People’s Republic of China provides that ‘Local people's courts at various levels have marshals to carry out the execution of judgments and orders in civil cases and the execution, in criminal cases, of the parts of judgments and orders concerned with property.’ It means that in China the People’s Court also has the responsibility of execution (zhixing), other than adjudication. This is rather unique since courts in other jurisdictions do not have to take such administrative responsibility. The Chinese People’s Court often becomes a party in the disputes concerning execution thereof. Such a ‘mix’ of administrative and judicial roles would cause the Court to lose its neutrality in such sorts of disputes and the difficulty in enforcement. See: Guo Songmin [郭松民] ‘The Embarrassment of the Enforcement Agency [法院执行局的尴尬]’ at http://news.sina.com.cn/c/2005-09-20/18087819132.shtml (last accessed on 18 June 2011). More discussion of this problem can be seen in Chapter 6.
7 Interview with prosecutor H in Chongqing in June 2008.
8 Prosecutor H did not specifically mention whether or not it was an internal document, but the author was unable to obtain this document from public sources.
9 Interview with prosecutor L in Xi’an in September 2010.
11 From a lawyer’s talk at the seminar held by the Centre of Rights and Justice, the Chinese University of Hong Kong in February 2012.
12 Interview with prosecutor N in Xi’an in September 2010.
13 The floating population or liudong renkou in China is largely caused by the current household registration (huji) system. The current household registration system in China divides the Chinese population into people with urban household registration and people with rural household registration. Such a division was originally for the purpose of controlling the population and restricting free migration of the people. But since the 1980s, more and more of the rural population has migrated to cities to earn their living, which raises a lot of questions about this system and many argue for the abolishment of this system in China. See: Wang Xiang [王向] ‘An Analysis on the Social Welfare Policy to the Floating Population [流动人口社会保障政策分析]’ (2003) 4 Information of Economics and Law [财经政法资讯] 33.
14 Interview with prosecutor Z in Xi’an in August 2010.
15 Interview with prosecutor C in Xi’an in August 2010.
16 Interview with prosecutor H in Chongqing in June 2008.
17 Interview with prosecutor F in Changzhou in May 2008.
19 Interview with prosecutor S in Xi’an in September 2010.
20 Interview with judge L2 in Xi’an in August 2010.
21 Interview with prosecutor C in Xi’an in August 2010.
22 Interview with prosecutor L in Xi’an in September 2010.
23 Interview with prosecutor S in Xi’an in September 2010.
25 Interview with prosecutor L in Xi’an in August 2010.
27 Interview with prosecutor C in Xi’an in August 2010.
28 Interview with prosecutor Y in Chongqing in June 2008.
29 Nowadays, there is no legal provision in China governing the way to deal with the parties’ repentance after they reach/sign the criminal reconciliation agreement. Hence, the legal force of the criminal reconciliation agreement is uncertain according to Chinese Law. There are also debates in academia over this issue. See e.g. Feng Renqiang [冯仁强] Xie Meiyin [谢梅因] ‘Definition and Disposition of the Repentance in Criminal Reconciliation [刑事和解“反悔”行为的认定与处理]’ at http://www.procedurallaw.cn/xsss/zdwz/200902/t20090227_185404.html (last accessed on 25 June 2011). Yet Article 188 of the 1998 Judicial Interpretation on CPL issued by the Supreme People’s Court [最高人民法院关于执行《中华人民共和国刑事诉讼法》若干问题的解释] provides that the parties can initiate a lawsuit in the People’s Court concerning the casereconciled.
30 Interview with prosecutor L in Xi’an in September 2010.
31 Interview with prosecutor S in Xi’an in September 2010.
32 Interview with prosecutor L in Xi’an in September 2010.
33 Interview with prosecutor H in Xi’an in August 2010.
34 Interview with prosecutor S in Xi’an in September 2010.
35 Interview with prosecutor L2 in Xi’an in August 2010.
36 Interview with judge L in Xi’an in September 2010.
37 Interview with judge Z in Xi’an in August 2010.
38 Interview with judge L2 in Xi’an in August 2010.
39 Ge Lin [葛琳] On Criminal Reconciliation [刑事和解研究] Beijing, The Chinese People’s Public Security University Press [中国人民公安大学出版社] 2008, 198.
40 Interview with C, the victim of an intentional injury case, in Changzhou in May 2008.
45 Interview with Q in Changzhou in June 2008.
50 Interview with Z’s father in Xi’an in September 2010.
51 Interview with prosecutor S in Xi’an in September 2010.
52 Interview with prosecutor L2 in Xi’an in September 2010.
53 Interview with S’s mother in Xi’an in September 2010.
54 Interview with the victim of this case in May 2008.
55 Interview with prosecutor F at the People’s Procuratorate of X district in Changzhou in May 2008.
56 Interview with the victim of this case in May 2008.
57 Interview with prosecutor F at the People’s Procuratorate of X district in Changzhou in May 2008.
58 On the basis of the case file.
59 Interview with X in Chongqing in June 2008.
60 Interview with T in Chongqing in June 2008.
63 Interview with C, the suspect of case no. five, in location A in Changzhou in May 2008.
64 Interview with L, the victim of case no. five, in location A in Changzhou in May 2008.
65 Interview with X, the suspect of case no. six, in location A in Changzhou in June 2008.
66 Interview with X2, the suspect of case no. eight, in location B in Chongqing in June 2008.
67 Interview with T in Chongqing in June 2008.
68 Telephone interview with the suspect L’s father in Chongqing in June 2008.
69 Telephone interview with the victim P’s mother in Chongqing in June 2008.
70 Interview with M, a victim of a juvenile robbery case, in Xi’an in September 2010.
71 Interview with judge L in Xi’an in September 2010.
72 Interview with the victim Z’s father in Xi’an in September 2010.
73 Interview with L in Xi’an in September 2011.
74 The above description is based on the telephone interview with the suspect L’s father, Y’s father and M’s mother in June 2008 in Chongqing.
75 Interview with judge L in Xi’an in September 2010.
76 Article 36 of the Judicial Interpretation on CPL issued by the Supreme People’s Court [最高人民法院关于执行《中华人民共和国刑事诉讼法》若干问题的解释] provides that ‘the People’s Courts should assign defenders for the defendants under 18 years old and do not have defenders when trials proceed.’ It is to protect the interests of the juvenile defendants and to make up their deficient abilities in litigation. In this case, since the juvenile defendants could not afford and did not appoint defence lawyers, the Court assigned the lawyers for them.
77 Interview with judge L2 in Xi’an in September 2010.
78 Interview with prosecutor S in Xi’an in September 2010.
79 Interview with lawyer L in Xi’an in August 2010.
80 Joshua Rosenzweig, Flora Sapio, Jiang Jue, Teng Biao and Eva Pils ‘The 2012 Revision of the Chinese Criminal Procedure Law: (Mostly) Old Winein New Bottles’ at http://www.law.cuhk.edu.hk/research/crj/papers.php (last accessed on 7 January 2013).
82 Interview with lawyer L in Xi’an in August 2010.
83 Interview with lawyer Z in Xi’an in August 2010.
85 Article 41 of the 2010 Opinions of the Supreme People’s Court on Implementing the Criminal Policy of Combining Severity with Leniency [最高人民法院关于贯彻宽严相济刑事政策的若干意见] mentions the role of these participants in mediation: ‘We shall make full use of the roles of the defendant’s and the victim’s work units, basic level community organizations, defence lawyers, legal representatives and relatives in the process of mediation of collateral civil disputes and coordinate these [persons’ or entities’] efforts in the process of mediation, to try to eliminate the dispute and promote harmony through getting the parties to reach an agreement on civil compensation and allowing the defendant to obtain the victim’s and his family’s forgiveness.’
86 Interview with W in May 2008 in the People’s Procuratorate of D district in Changzhou.
89 Interview with the coach Y in May 2008 in Changzhou.
93 Lai Yang [来扬] ‘The Expert Talked about the Incident Where the Deputy Director Beat the Journalist and Said “Private Resolution” with the Exemption from Criminal Liability Is Invalid [专家谈副局长持枪打记者事件称免刑责的私了无效]’ at http://www.chinanews.com/fz/2012/04-09/3803624.shtml (last accessed on 24 April 2012).
ExtractThis 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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