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Criminal Reconciliation in Contemporary China

Jue Jiang

Criminal reconciliation, a special procedure stipulated in PRC’s 2013 Criminal Procedure Law, allows the alleged perpetrators and victims of certain crimes to resolve criminal cases through reconciliation or mediation. Based on empirical studies on pilot practices of this mechanism in three cities in China, this book argues that criminal reconciliation enables abuses of power and infringement of the parties’ access to justice. This programme further throws light on certain fundamental problems with the wider criminal justice system.
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Index

Jue Jiang

comparative look at criminal reconciliation 57–74

criminal reconciliation

aims of 68–9

community missing in 60

compensation, focus on 59

compensation, role of 69

conducted in context of normal criminal justice system 59

defendant as object to be educated and corrected 68

indigenous Chinese practice, as 57

‘looking outside’ and ‘looking inside’ at programme 57–8

restorative justice, and 59–60

differences between criminal reconciliation and restorative justice 59–60, 65–9

different roles of community 65–6

political goals for criminal reconciliation not in restorative justice 68–9

reintegrative shaming missing in criminal reconciliation 67–8

restorative justice 60–65

aims of 68–9

alternative to normal criminal justice system, as 59

community role/responsibility 65–6

compensation, role of 69

core values of 62

criminal reconciliation, and 59–60

definition of restorative justice, UN 64

definition of restorative justice process, UN 64–5

deliberate infliction of pain regarded as unethical 61–2

divergence on values of 62–3

escape from harsher treatments in formal system, as 62

first restorative justice practice in Canada 63

focus on 57, 58, 60

global popularity of 64

judging how restorative a programme or model is 63

non-coercion, value of 62–3

objectives of 68

real communication/exchange, in particular psychologically, stressed 59

retributive justice, and 61–3

significance of community in 60

social control, built on 65

stakeholders, interest of 61

traditional criminal justice system, compared 60–61

Victim-Offender-Mediation programmes 63–4

Victim-Offender-Reconciliation, criminal reconciliation as 58–9

Victim-Offender-Reconciliation programmes, establishment of 63

Victim-Offender-Reconciliation, Victim-Offender-Mediation from 63–4

restorative justice in practice: author’s observations in Brisbane, Australia 69–72

first observation 70–72

second observation 72–3

compensation

bargaining over compensation, focus on 130–35, 238

fulfilment of compensation obligations, focus on 59, 139–43

compensation as absolute focus 142, 143, 188, 238

concerns and criticisms over focus on 50–51, 191, 238–9

crucial importance of amount paid in deciding outcome of case 140–41, 238

different economic circumstances affecting results, unfairness of 141–3, 238

unfairness, focus on compensation leading to 191

function of compensation for victim overstated 186–8

main content of criminal reconciliation agreements, as 132, 138

private agreement reached prior to formal meeting, compensation in 135–6

compensation often paid ‘on the spot’ 135

risk of coercion 136

role of 69

smooth enforcement of 42–3

contradictory rules and ‘hidden rules’ 200–19

conflicting ideologies or power struggle? 203–5

conflicting ideologies in criminal justice system 203–4

internally conflicted design of Criminal procedure law 204

revision of law as power game between State authorities 203–4

unsuitability of values transplanted from Western jurisdictions 204

disregard for written rules as general problem with criminal justice system 199, 200

hidden rules replacing written rules 200, 201

internal and external pressures for ‘hidden rules’ and ‘parallel systems’ 202–3

causes for malfunction of written rules 202–3

deficiencies of institutional design 202–3

officials’ enormous power 203

lack of supervision or lack of independence 207–17

further supervision mechanisms unlikely to be effective 211

judges and prosecutors not independent 211–16

mechanism needed for alleged violations of procedure 209, 210–11

media and public supervision in question 216–17

no legal liability on officials for infringing rights and rules 209

officials’ power too strong/lacking effective supervision 207–8, 210

party control 211–13, 216

supervision arrangements at Peoples’ Procuratorate 208–9, 210

supervision of the courts 209–10

‘Zhao Zuohai case’ 213–14

main ‘hidden rules’ 201–2

dismissing claims that confession induced by torture 202

irregular/illegal collection of evidence 20–2

no acquittals for lack of evidence 202, 206

preliminary conclusions 218–19

prevalence of ‘hidden rules’ and ‘parallel systems’ 201–2

disregard for written rules leading to malfunction of law 201

pursuing own interests or pressure from quota system? 205–7

internal quotas replacing legal rules in judicial practice 206–7

officials engaging in cost-benefit calculation 205–6

criminal justice through ‘correction’ and ‘thought reform’ 219–37

concept of ‘correction’ in wider criminal process 220–29

defendant’s final Statement expressing remorse 223–4

defendant’s rights heavily compromised 221

educating and correcting as aim of criminal reconciliation 219–20

educating and correcting as important features of normal trial process 220–21

education playing critical role in system of correction post-conviction 224

goal, methods, outcomes of education programmes, dubious nature of 226–7

moral condemnation as education of defendant 223

prosecution opinions as educational 222

stating goal of educating defendant 222–3

thought education and reform through labour 224–8

thought education for pre-trial detainees 227–8

wider public, education of 228–9, 231

ideology of ‘thought reform’ underlying ‘correction’ 229–33

causes of crime as reasons for educating and correcting 229–30

deficient moral consciousness and crime 229, 230

educating and reforming the person as goal of punishment 231

methods of punishment and re-education 231–2

open trials, educational function of 231–3

preliminary conclusions 236–7

thought reform, critique of 233–6

criminal justice system as authoritarian 236

criminals regarded by State as people who are not free 234

educational trial rendering presumption of innocence impossible 233

infringements of rights of individuals 236

‘inner freedom’ and ‘individual freedom’ 234–5

‘positive liberty’ 235–6

strong defence not possible as conflicting with presumption of guilt 234

Criminal Procedure Law (CPL)

new special procedure to ‘reconcile’ (criminal reconciliation) 1

Art 277: requirements and ‘scope’ of cases eligible 1

Art 278: public authorities’ role 2

Art 279: outcomes of process 2

follow-up programmes not mentioned 35

normal criminal procedure see normal criminal procedure

overcoming shortcomings of normal adversarial criminal procedure 3

pilot projects of 2

purpose of 3

voluntary participation not required 35

criminal reconciliation

aims of 68–9, 219–20

community missing in 60

compensation see compensation

comparative look at see comparative look at criminal reconciliation

conducted in context of normal criminal justice system 59

debates on see scholarly debates surrounding criminal reconciliation programmes

defendant as object to be educated and corrected 68

effects of 76–7

better protecting victim’s rights 77

more beneficial in educating offenders and reducing reoffending 77

resolving conflicts between parties 76–7

victim and suspect satisfaction with outcome 77–8

implementation of see implementation and development of criminal reconciliation

indigenous Chinese practice, as 57

‘looking outside’ and ‘looking inside’ at programme 57–8

meeting see criminal reconciliation meeting

nature of 10–13

debate over 57

defendant as object to be educated and corrected 68

indigenous Chinese practice, as 57, 60

infringing victim’s rights in statutory laws 238–9

lenient dispositions, benefit of 68

restorative justice, as transplant of 57, 58, 60

various names given to 24

victim-offender-reconciliation. defined by reference to 58–9

practice see criminal reconciliation in practice: evidence from official case files

process see process of criminal reconciliation programmes: evidence from interviews

recent developments in 38–41

‘big mediation’ 38

collaboration mechanism in conducting criminal reconciliation 39–40

serious crimes/capital cases, criminal reconciliation used in 38–9, 54–5

wider circle of persons participating in criminal reconciliation meeting 40–41

restorative justice, and 59–60, 65–9

different roles of community 65–6

political goals for criminal reconciliation not in restorative justice 68–9

reintegrative shaming missing in criminal reconciliation 67–8

see also restorative justice

stages in see stages in criminal reconciliation procedure

see also understanding wider problems with criminal justice system through criminal reconciliation

criminal reconciliation in practice: evidence from official case files 75–113

analysis of criminal reconciliation practice relying on official files 106–13

achievements and failures of official goals in practice 108–10

conflicting official goals 112–13

procedure of criminal reconciliation in practice 106–8

questioning official design of criminal reconciliation procedure 110–12

doubts about findings/conclusions of fieldwork projects 78–9

impact of undisclosed methods not able to be assessed 79

lack of important information about methods adopted 78–9

methods of data and information collection problematic 78

researchers having stake in the reports 78

fieldwork locations, overview of see criminal reconciliation in three fieldwork locations, overview of

motivation for the empirical study 75–80

doubts about findings/conclusions of fieldwork projects 78–9

extent of use of criminal reconciliation 75–6

fieldwork reports, nature of 75–9

success/satisfactory effects of criminal reconciliation practices 76–8

nature of empirical studies

fieldwork see criminal reconciliation in three fieldwork locations, overview of

locations chosen for ease of access/hospitable to idea of research 79–80

participants contacted personally for interviews to avoid interference 80

procedure of criminal reconciliation in practice 106–8

criminal reconciliation meeting 107

follow-up programme 108

initiation stage 106

official’s decision 107–8

criminal reconciliation in three fieldwork locations, overview of 80–105

basic statistical facts

criminal reconciliation rarely used in the three locations 84–5

cases eligible for criminal reconciliation

all case files involved ‘minor crimes’ and juvenile crimes 85

defendants/suspects eligible for criminal reconciliation

no preference for juvenile suspect/defendants was evident 85–6

duration of criminal reconciliation programme 100–105

People’s Courts and Procuratorates of Y and B Districts in Xi’an 104–5

People’s Procuratorate of D District, Chongqing 101–2

People’s Procuratorate of X District, Changzhou 101–2

procedure of criminal reconciliation and follow-up programmes 86–100

criminal reconciliation agreement 96

criminal reconciliation meeting 90–96

criminal reconciliation procedure following pattern of Chinese scholars 86–9

follow-up programmes 98–100

initiation stage of criminal reconciliation programme 89–90

official’s decision after criminal reconciliation programme 96–7

purpose of empirical work 80

selection of cases, limitations of 81–3

typical criminal reconciliation programme without follow-up 86–9

criminal reconciliation meeting 128–39

aims/objectives of sufficient communication and discussion 132, 135

appropriate communication between parties in some meetings 128–30

excessive participation and observation causing negative impacts 130

free communication in meetings, need for 128–30, 132

bargaining over compensation, focus on 130–35

compensation as main content of criminal reconciliation agreements 132, 138

clauses added by officials into criminal reconciliation agreements 138–9

clauses infringing on parties’ procedural appeal rights 139

compensation as main content of criminal reconciliation agreements 138

custody, extended periods of 133

essential stage of criminal reconciliation, as 128

focus on compensation 132

juvenile cases

juveniles not attending meeting in person 131–2

juveniles replaced by parents or lawyers, no legal basis for 125–7, 132

lack of communication when in meeting 130–31, 132

voluntary participation of juveniles needed 127

no communication between parties, cases where 130–31, 132

no criminal reconciliation meeting, cases where 134–5

pressure on parties to reach agreement 130, 137

private agreement reached prior to formal reconciliation meeting 135–6

compensation often paid ‘on the spot’ 135

minor criminal cases resolved through civil means 135–6

risk of coercion in private negotiations 136

tort law and criminal law, relationship between 136

suspect and victim not meeting, cases where 131–2

suspects in custody during criminal reconciliation meeting 131, 132, 134

custody

arbitrary detention 133

arrest, after 133

criminal reconciliation meeting, suspects in custody during 131, 132, 134

detention centres 133

education

education and correction expected to start in detention 176–7, 227–8

goal, methods, outcomes of education programmes, dubious nature of 226–7

playing critical role in system of correction post-conviction 224

thought education and reform through labour 224–8

thought education for pre-trial detainees 227–8

long period of custody for suspects/defendants 132, 133

causing hurt to family of suspect 177–8

no presumption of innocence

education and correction expected to start in detention 176–7

suspects viewed as criminals 133

no supervision or examination in deciding extensions of custody 133

origins of custody problems

cooperation between pubic authorities/‘line process’ 133–4

power of Public Security Bureau, difficult to challenge 134

pre-trial custody 133

trial, custody during 133

enforcing victims’ compensation claims through civil litigation 238–42

preliminary conclusions 242

reasons for problem with enforceability 239–41

adjudication and execution as two different powers 240–41

Criminal Reconciliation Aid Association, effectiveness of 241

direct interference or resistance from powerful authorities 240

local protectionism/lack of judicial independence limiting court’s action 240

mediation delaying enforcement 241

problem lying with court or system 239–41

subordinate position of execution to jurisdiction 240–41

follow-up programmes 33–7, 66, 108, 146–51

community correction as non-custodial criminal punishment 33–5, 66

effects and problems of the follow-up programmes 149–50

concerns about teaching and help programme 149–50

good effect of follow-up programmes 149

forms of 146–9

limited substantiation of findings in case file examination 146–9

officials’ continuous contact with suspect/defendants, families, teachers 147

potential failure of official aim of correcting suspect without follow-up 150–51

importance of follow-up programme for rehabilitation 151

less good results without follow-up 150

small sample of cases, effect of 151

procedure of criminal reconciliation 108, 98–100

supervision periods 146–7

teaching and help programmes 33, 35, 147–9

concerns expressed about people knowing about case 149–50

time for follow-up programmes 35

wider circle of persons participating in, reasons for 40–41

harmonious society, concept of

criminal reconciliation helping to promote 60, 69

maintaining harmony as political task of judicial system 3

mediation promoting 9

new value, as 46

policy of establishing a socialist harmonious society 6

central policy as 8

political goal, as 5–6

six main requirements of 6

‘social unrest’, increase in 5–6

value of harmony, criminal reconciliation serving 46, 48

implementation and development of criminal reconciliation 24–41

conduct of criminal reconciliation

conducted at stage of filing case for investigation and trial stage 25

initially conducted at stage of examination for prosecution 24–5

differences between criminal reconciliation and normal criminal proceedings 35–7

admission of guilt or remorse, criminal reconciliation based on 37

criminal reconciliation based on communication and negotiation 37

criminal reconciliation initiated at four stages of normal criminal procedure 36

judges’ role as neutral and independent 37

normal criminal procedure as adversarial system 36

normal criminal procedure, stages in 36

officials’ role/discretion 37

voluntariness as basic/core principle underlying criminal reconciliation 37

growth of programme 25–6

parties’ roles and rights, process and effect of criminal reconciliation on 28

‘pioneer’ programme 25

regulations and guidelines issued by local authorities 27

regulations and guidelines not publicly available 27–8

stages in see stages in criminal reconciliation procedure

unbalanced developments of programme 26–7

judicial system

adversarial system, judges’ neutral and independent role in 37

Chinese peoples’ real needs/characteristics, adjusting system towards 4, 13–14

democracy and rule of law, and 6

fairness and justice, and 6

harmonious society policy as retrogression of Chinese judiciary 15, 18

judges’ power in criminal reconciliation 191–2

judicial independence 4, 15, 37

external judicial independence 144–5

hierarchy of judges 145

internal judicial independence 145

lack of 143–6, 211–16, 240

ways in which judicial independence has been eroded 214–15

judicial professionalism 4, 7, 15

legal formalism, emphasis on 7–8

legal reform towards rule of law

indigenous rejection of 58

upsurge in petitioning resulting from 4, 7

maintaining social stability and harmony as political tasks of 3

mediation, importance/prioritization of 7, 8–10

criminal justice system, in 10–12

debate on 13–17

even wider coverage of mediation 38

harmonious judiciary, as 10

promoted at all stages of a case 10

mediation/reconciliation

embedding China’s traditional culture 4

most effective way to address factors of instability 7

new procedure overcoming shortcomings of normal criminal procedure 3

procedural fairness and justice, reforms embodying 8

ruling party intensifying control of judiciary 4, 14–15

well-functioning litigation, need for 16–18

juvenile cases

eligibility of 85

follow-up programmes for 146

officials’ continuous contact with suspect/defendants, families, teachers 147

supervision periods 146–7

teaching and help programmes 147–9

teaching and help programmes, concerns expressed about 149–50

long period of custody for suspects causing harm to family 177–8

meetings

focus on compensation 132

juveniles not attending meeting in person 131–2

lack of communication when in meeting 130–31, 132

no follow-up programme for 150–51

no evident preference for juvenile suspect/defendants 85–6

non-local juveniles excluded from programme 120–21

preference for criminal reconciliation in juvenile cases 116

social circumstances in terms of correcting juveniles, concerns about 164

voluntariness principle, and

juveniles replaced by parents or lawyers, no legal basis for 125–7, 132

voluntary participation of juveniles needed 127

lawyers as actors (participants) in criminal reconciliation cases 188–92

lawyers’ comments on criminal reconciliation 191–2

concern with focus on compensation 191

officials’ dominant role/discretionary power, concerns about 192

unfairness and coercion, problem of 191–2

lawyers’ role as mediators between officials and parties 188–91

assisting bargaining over compensation 189

defendant’s remorse, conveying 189

erosion of adversarial and rights-centred conception of justice 190–91

facilitating criminal reconciliation 189–91

lawyers as ‘go-betweens’ 188–9, 190

legal reforms in China 3, 5–18

constraints on State behaviour and 7

debate on reforms 13–17

development of formal legal framework 7

individual rights 7

legal education/training, resources for 7

legal formalism, emphasis on 7–8

legal professionalism 7

mediation

criminal justice system, promotion in 10–13

litigation, and 16–18

prioritization of 7, 8–10

socialist harmonious society, policy of establishing 5–6

socialist rule of law, establishing 6–7

well-functioning litigation, need for 18

mediation/reconciliation

adjudication, and 9–10

‘big mediation’ 38

closure, brining 3, 9

criminal justice system, in 10–13

aims of reconciliation 13

‘combining severity with leniency’, policy of 10–12

facilitating reconciliation 13

minor crimes 12–13

reconciliation and mediation in disputes among the people 13–14

scope cases suitable for reconciliation/lenient disposition 12

sentencing, factors in 13

embedding China’s traditional culture 4

importance of/prioritizing 7, 8–10

litigation, and 16–18

mediation systems from Mao era to criminal reconciliation today 19–23

Mao era: suppressing disputes to serve Party’s policies 19–20

mediation today: still coercive process 21–3

post-Mao era: ‘plastering over’ disputes and serving the Party’s policies 20–1

most effective way to address factors of instability 7

not preferred by Chinese people 16–18

private mediation, preference for 18

voluntariness and lawfulness, based on 8

normal criminal procedure

adversarial system 36

community missing in traditional system 61

criminal reconciliation conducted in context of/supported by 59

diversion from 65

establishing guilt as key issue 37

judges’ neutral and independent role in 37

no presumption of innocence 37

officials’ discretion restricted 37

restorative justice as alternative to 59

retributive justice as spiritual core 60, 61

severe and flawed criminal justice system 56

stages in 36

top-down approach/restricted room for offenders, victims and stakeholders 60–61

see also understanding wider problems with criminal justice system through criminal reconciliation

official involvement in criminal reconciliation programmes 154–71

difficulties faced by officials in charge of criminal reconciliation 168–71

confusion regarding performance assessment system 168–9

criminal reconciliation programme taking too much time/energy 169–70

extent of use of criminal reconciliation process 167, 169

performance assessment system, further problems with 171–2

reasons why criminal reconciliation agreement not reached 170–71

officials’ expressed concern about criminal reconciliation 165–8

clause impeding parties’ right to appeal, reasons for 167–8

confusion from lack of clear and solid legal basis for process 166–8

lack of legal restriction of officials’ power in criminal reconciliation 168

uncertainty about legal basis for criminal reconciliation programmes 165–6

officials’ leading and dominant role 154–61

avoiding acquittal, as reason to initiate process 157–8

avoiding potential failure of criminal reconciliation programme 160–61

compulsory requirements, officials adding 159–61

discretionary power of officials 192

efforts to initiate process at cost of parties’ wishes and interests 158

illegal methods to make parties reconcile, use of 158–9

internal performance assessment system, as reason to initiate process 155–8, 161

officials’ arbitrary disregard of requirements of eligible cases 155

officials’ passive role under regulations/guidelines 154

reasons for passive role 154

resolving deficient cases, as reason to initiate process 155, 158

officials’ negative comments on criminal reconciliation 164–5

impact of criminal reconciliation on victim/society, concerns about 164–5

social circumstances in terms of correcting juveniles, concerns about 164

officials’ positive comments on criminal reconciliation 161–4

advantages over normal criminal process 162–3

legal knowledge popularization as advantage of criminal reconciliation 163–4

officials’ satisfaction with criminal reconciliation process 161–2

participants of criminal reconciliation programmes: evidence from interviews 153–98

lawyers as actors (participants) in criminal reconciliation cases 188–92

lawyers’ comments on criminal reconciliation 191–2

lawyers’ role as mediators between officials and parties 188–91

official involvement in criminal reconciliation programmes 154–71

difficulties faced by officials in charge of criminal reconciliation 168–71

officials’ expressed concern about criminal reconciliation 165–8

officials’ leading and dominant role 154–61

officials’ negative comments on criminal reconciliation 164–5

officials’ positive comments on criminal reconciliation 161–4

‘participant’, meaning of 151

parties participating in criminal reconciliation programmes 172–88

active role for parties only in private reconciliation 179–82

function of compensation for victim overstated 186–8

no presumption of innocence 176–9

parties’ comments on criminal reconciliation 182–5

parties’ difficulties in criminal reconciliation programmes 185–8

parties’ satisfaction with criminal reconciliation process 182–5

suspects pressed to enter criminal reconciliation 178–9

victim’s participation under coercion 172–6

role of other participants in criminal reconciliation programmes 193–6

other participants’ comments on criminal reconciliation 194–6

serving officials’ purposes 193–4

Peoples’ Mediation Committee 40

petitioning

blocking access by officials 82–3

criminal reconciliation preventing petitioning in criminal cases 45–6, 69

upsurge in petitioning resulting from legal reform towards rule of law 4, 7

presumption of innocence 121–2, 199

no presumption of innocence 118, 121–2, 133, 176–9

formulaic engagement with question of regret 122

individual rights subverted by public power 133

normal criminal procedure, in 37

requirement of guilt or remorse to enter criminal reconciliation 122

suspects in detention viewed as criminals 133, 177–8

process of criminal reconciliation programmes: evidence from interviews 114–52

criminal reconciliation meeting 128–39

appropriate communication between parties in some meetings 128–30

clauses added by officials into criminal reconciliation agreements 138–9

compensation as main content of criminal reconciliation agreements 138

focus on bargaining over compensation 130–35

pressure on parties to reach agreement 136

private agreement reached prior to formal meeting 135–6

deficiencies in case file examination, interviews necessary as result of 114

factors affecting official decisions in criminal reconciliation process 139–46

focus on fulfilment of compensation obligations 139–43

lack of judicial independence 143–6

initiation stage 115–27

additional pre-requirements as compulsory determinants 120–21

eligibility requirements 115–16

juvenile cases, preference for criminal reconciliation in 116

no presumption of innocence 118

non-local juveniles excluded from programme 120–21

risk of pressure on suspect to enter programme 118

stipulated requirements not always observed 118–20

suspect’s remorse/admission of guilt as result of programme 118

suspect’s remorse not taken into account 118–19

violations of eligibility requirements 115–21

insights into follow-up programmes 145–51

effects and problems of the follow-up programmes 149–50

limited substantiation of findings in case file examination 146–9

potential failure of official aim of correcting suspect without follow-up 150–51

interviews

private, in 115

prosecutors’ offices, in 114–15

no presumption of innocence 118, 121–2

formulaic engagement with question of regret 122

requirement of guilt or remorse to enter criminal reconciliation 122

violations of principle of voluntariness 122–7

benefits of criminal reconciliation explained to get participation 124

efforts required to persuade parties to accept criminal reconciliation 123–4

explanation of nature of programme required 122

importance attached to voluntariness precluding use of representatives 127

influence of powerful persons, effects of 125

juveniles replaced by parents or lawyers, no legal basis for 125–7, 132

offers of criminal reconciliation coinciding with parties’ wishes 122–3

officials’ conduct impairing parties’ voluntary participation 127

perception that suspects viewed as criminals 127

persuasion meaning voluntariness questionable/impaired 125

regret, relevance of 127

voluntary participation of juveniles needed 127

reconciliation see criminal reconciliation; mediation/reconciliation

reintegrative shaming

definition of 67

missing in criminal reconciliation 67–8

restorative justice 60–65

aims of 68–9

alternative to normal criminal justice system, as 59

community role/responsibility 65–6

compensation, role of 69

core values of 62

criminal reconciliation, and 59–60

definition of restorative justice, UN 64

definition of restorative justice process, UN 64–5

deliberate infliction of pain regarded as unethical 61–2

divergence on values of 62–3

escape from harsher treatments in formal system, as 62

first restorative justice practice in Canada 63

focus on 57, 58, 60

global popularity of 64

judging how restorative a programme or model is 63

non-coercion, value of 62–3

objectives of 68

real communication/exchange, in particular psychologically, stressed 59

restorative justice in practice: author’s observations in Brisbane, Australia 69–72

first observation 70–72

second observation 72–3

retributive justice, and 61–3

significance of community in 60

social control, built on 65

stakeholders, interest of 61

traditional criminal justice system, compared 60–61

Victim-Offender-Mediation programmes 63–4

Victim-Offender-Reconciliation, criminal reconciliation as 58–9

Victim-Offender-Reconciliation programmes, establishment of 63

Victim-Offender-Reconciliation, Victim-Offender-Mediation from 63–4

retributive justice

criticisms of 61–2

ethically questionable, as 61

instrumentally inefficient 61, 62

restorative justice, and 61–3

spiritual core of criminal justice system 60, 61

‘stigmatic shaming’ and ‘labelling’ 67

rule of law

democracy, and 6

harmonious society, and

contradictions between 18

harmonious society dependent upon rule of law 6–7

landmarks in path towards 8

legal reform towards rule of law

indigenous rejection of 58

upsurge in petitioning resulting from 4

socialist rule of law, establishing 6–7

criminal reconciliation, and 49

scholarly debates surrounding criminal reconciliation programmes 41–56

concerns and criticisms 49–56

adequate supervision mechanism, need for 53–4

compensation payment, focus on 50–51

equality as equality of opportunity provided by criminal reconciliation 51

extended use of criminal reconciliation to felonies/capital cases 38–9, 54–6

heavy reliance of positive appraisals on official information 49

judicial corruption, risk of 55

lighter sentences as judge’s decision 51–2

obvious coercion 52, 57–8

officials’ added power and risk of rent-seeking 53

officials’ discretion, reliance on 55

privatization of criminal law, criminal reconciliation as 54–5

public power’s infringement on parties’ voluntariness 52–3, l57

State law weaker in rural China 49

subtle coercion, forms of 52–3

unfairness to economically weak suspects 49–52

focus on effects of programme 41

positive appraisals 42–9

closure to criminal cases, criminal reconciliation bringing 45

‘four zeros’, criminal reconciliation achieving 46

educating and rehabilitating suspect 43–4

more reasonable allocation of limited resources 43

preventing petitioning in criminal cases 45–6, 69

resolving crimes privately, criminal reconciliation absorbing practice of 46–8

smooth enforcement of compensation 42–3

tangible benefits to three parties concerned 42

value of Chinese culture/customs, State’s laws adoption of 48–9

value of harmony, criminal reconciliation serving 46, 48

value of justice served by criminal reconciliation 44–5

social control theory 65

stages in criminal reconciliation procedure 28–41

criminal reconciliation meeting 31–2

attendance at 31–2

official or mediator, role of 31

steps in 32

follow-up programmes 33–7, 66

community correction as non-custodial criminal punishment 33–5, 66

help and teaching programmes 33, 35

time for follow-up programmes 35

wider circle of persons participating in, reasons for 40–41

official’s decision 32–3

decision not to prosecute 32

dismissal of case 32

lenient sentence, suggested to court 32–3

transfer back to normal criminal procedure 33

principle of voluntariness see voluntariness, principle of

stage of initiation 29–31

both parties agreeing to participate in criminal reconciliation 29

factors in official examination of cases 29–31

initiated on either party’s application 29

official initiation 29

parties’ own agreement, submission for examination of 29

‘thought reform’, criminal justice through 219–37

ideology of ‘thought reform’ underlying ‘correction’ 229–33

causes of crime as reasons for educating and correcting 229–30

deficient moral consciousness and crime 229, 230

educating and reforming the person as goal of punishment 231

methods of punishment and re-education 231–2

open trials, educational function of 231–3

thought reform, critique of 233–6

criminal justice system as authoritarian 236

criminals regarded by State as people who are not free 234

educational trial rendering presumption of innocence impossible 233

infringements of rights of individuals 236

‘inner freedom’ and ‘individual freedom’ 234–5

‘positive liberty’ 235–6

strong defence not possible as conflicting with presumption of guilt 234

thought reports 88–9

understanding wider problems with criminal justice system through criminal reconciliation 199–247

contradictory rules and ‘hidden rules’ 200–19

conflicting ideologies or power struggle? 203–5

disregard for written rules 199, 200

internal and external pressures for ‘hidden rules’ and ‘parallel systems’ 202–3

lack of supervision or lack of independence 207–17

preliminary conclusions 218–19

prevalence of ‘hidden rules’ and ‘parallel systems’ 201–2

pursuing own interests or pressure from quota system? 205–7

criminal justice through ‘correction’ and ‘thought reform’ 219–37

concept of ‘correction’ in wider criminal process 220–29

ideology of ‘thought reform’ underlying ‘correction’ 229–33

preliminary conclusion 236–7

thought reform, critique of 233–6

State’s failure to enforce victims’ compensation claims through civil litigation 238–42

preliminary conclusions 242

reasons for problem with enforceability 239–41

Victim-Offender-Mediation programmes 63–4

Victim-Offender-Reconciliation

criminal reconciliation as 58–9

programmes, establishment of 63

Victim-Offender-Mediation from 63–4

voluntariness, principle of 31

basic/core principle underlying criminal reconciliation, as 37, 154

local regulations and guidelines, voluntary participation stressed in 35

mediation based on voluntariness and lawfulness 8

public power’s infringement on parties’ voluntariness 52–3, 57

guaranteeing voluntariness when public power taking active role 37

violations of principle in practice 122–7

benefits of criminal reconciliation explained to get participation 124

efforts required to persuade parties to accept criminal reconciliation 123–4

explanation of nature of programme required 122

importance attached to voluntariness precluding use of representatives 127

influence of powerful persons, effects of 125

juveniles being replaced by parents or lawyers, no legal basis for 125–7, 138

offers of criminal reconciliation coinciding with parties’ wishes 122–3

officials’ conduct impairing parties’ voluntary participation 127

perception that suspects viewed as criminals 127

persuasion meaning voluntariness was questionable/impaired 125

regret, relevance of 127

voluntary participation of juveniles needed 127

Extract

comparative look at criminal reconciliationcriminal reconciliationaims of