Much attention has been paid to the Guiding Cases issued by China’s Supreme People’s Court. The Supreme People’s Procuratorate, China’s top prosecutor, likewise issues guiding cases. In his recent paper, Colin Hawes finds that these cases in recent years indicate a significant turn in prosecution work in China, which is characterized by close cooperation between police, local governments and courts (see Grace Mou’s work).
My interest in guiding cases came through my previous research on the growing use of case precedents by Chinese judges, especially focusing on corporate law cases.1 With the huge increase in publication of Chinese court judgments on freely available online databases – over one hundred million judgments have now been published in the past ten years – it is possible to trace how the law is being applied at a very granular level, whether in individual Chinese regions/cities or specific levels of court, in all types of legal cases except those involving sensitive political interests (which remain unpublished).
China is a civil/continental law jurisdiction, so prior Chinese court judgments are officially not binding on subsequent cases; but in practice, I found that both judges and lawyers would refer to previous judgments, especially those from higher courts, to support their opinions and maintain consistency. However, while they do routinely refer to prior judgments during court hearings, judges are still not permitted to openly cite those precedents in their written judgments. The only exception is a very small number of “guiding cases” (指导性案例) that have been selected by the Supreme People’s Court (SPC) and given official approval to be cited and effectively binding on all courts in China, when dealing with similar legal issues.
The problem is, the selection process for these SPC Guiding Cases is so slow, and the legal issues that they deal with are mostly so narrow, that it is very rare for lawyers and judges to find a relevant guiding case to assist their legal arguments. As compared with over one hundred million published judgments online dealing with all manner of legal issues, at the time of writing there were less than two hundred guiding cases available.2 Not surprisingly, therefore, lawyers and judges continue to make use of the larger database of online judgments as an informal case precedent system.
Not only the SPC, also China’s public prosecutor, the Supreme People’s Procuratorate (SPP) had started publishing its own SPP Guiding Cases. Though also relatively few in number, these cases are likely to have a much greater impact on the administration of justice in China, both in criminal law cases and environmental protection cases.
The reasons are, firstly, that several of the SPP Guiding Cases focus on aspects of the death penalty, so if followed by all procurators as they are supposed to, they will literally have a life-or-death impact on criminal suspects.
Secondly, the SPP Guiding Cases make it clear that a key role of procurators is to uphold the public interest against abuse by powerful officials or corporate interests. Many of the SPP Guiding Cases deal with prosecution of government officials or state representatives working at agencies such as the environmental protection and food safety bureaus as well as urban control officers and police officers, The most common charges are corruption and criminal negligence. The eighth set of cases focuses entirely on People’s Procurators bringing civil public interest lawsuits and administrative lawsuits against environmental polluters and government officials who fail to prevent pollution. This pilot project has resulted in a huge increase in the number of successful environmental pollution lawsuits in China, now numbering in the tens of thousands.
Finally, several SPP Guiding Cases go beyond narrow and specific points of law to cover broad procedural issues that are generally applicable over a wide range of criminal cases. For example, one of the most significant issues is the exclusion of illegally obtained evidence, especially evidence obtained through torture or beating of suspects, which is clearly addressed in SPP Guiding Case 27. The rule in this case can be applied to any criminal prosecution. If it is followed consistently by local branches of the People’s Procuracy, it should reduce the number of wrongful convictions, and in the longer term, remove the incentive for police to mistreat criminal suspects in custody which, according to international human rights groups, commonly occurs.
To be sure, these SPP Guiding Cases are only one part of a broader reform effort in the sphere of criminal procedure and regulation of procurators. Others include a comprehensive revision of the Criminal Procedure Law in 2012, regulations issued by the SPP in relation to public interest lawsuits in 2016, and an amended Procurators Law in 2017. There is also some ambiguity about the legal status and weight of SPP Guiding Cases in relation to these more formal legal sources, an issue discussed further in the concluding sections of my article.
Even so, the SPP Guiding Cases clearly demonstrate to people’s procurators throughout China how the revised laws and regulations should be applied in practice. They provide local procurators with precedents endorsed at the highest levels of the SPP to support battles against criminal activity and environmental pollution at the local government levels. And perhaps most importantly, both the content of the Guiding Cases and the fact that they were issued at all reveals an unprecedented cultural change within the people’s procuracy itself from a body that was essentially an extension of the police or local power interests to one that sees itself as a professional and relatively independent institution with a focus on protecting individual rights and the public interest.
Having said this, criminal defence lawyers and civil society groups are still severely restricted and often persecuted in China. And due to the continued Communist Party interference in the Chinese legal system, demonstrated in more detail in the paper, it is too early to say whether the greater respect for basic legal rights revealed by these Guiding Cases is a step towards increased liberalization of the Chinese legal order and political system.
Find the paper, published with the New Criminal Law Review, here. Dr. Colin Hawes is an associate professor in the Faculty of Law, University of Technology Sydney, Australia. He has an LL.B. and a Ph.D. in Chinese studies from the University of British Columbia, Canada, and a B.A. Hons. from the University of Durham, UK. He also studied Chinese language at People’s University in Beijing and Wuhan University. He has published widely on Chinese corporations, law, and culture, including three books, the latest of which is The Chinese Corporate Ecosystem (Cambridge University Press, forthcoming July 2022).
1 Colin Hawes, “How Chinese Judges Deal with Ambiguity in Corporate Law: Suggestions for Improving the Chinese Case Precedent System,” Australian Journal of Asian Law Vol 19 No 1 (August 2018): 1-22; and Colin Hawes, Alex K L Lau and Angus Young, “Lifting the Corporate Veil in China: Statutory Vagueness, Shareholder Ignorance, and Case Precedents in a Civil Law System,” Journal of Corporate Law Studies vol.15.2 (2015): 341-376. Both papers are available at https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=503318.
3 SPP Chief Procurator Zhang Jun stated that 84,000 environmental public interest cases were brought by procurators in 2020 alone: Zhang Jun, “Zuigao Renmin Jianchayuan Gongzuo Baogao, 2020 Nian” [SPP Work Report 2020], National People’s Congress, 8 March 2021, section 2, http://www.gov.cn/xinwen/2021-03/15/content_5593016.htm.
To start off: What drove your interest in criminal justice in China?
My research interests in Chinese criminal justice came from my experience when I first observed a criminal trial as a teenager. The crime scene, as described at the beginning of my book, was strange to me: I was expecting some form of cross-examination, just like those commonly seen in television court dramas. The trial, however, had no drama and did not make much sense to me at the time. The prosecutor read out the case dossier in an aggressive manner. The defence lawyer, whose response was not addressing the issues raised by the prosecutor, sheepishly read her pre-prepared defence statement. The trial was by no means exciting – it was a boring presentation of the criminal case dossier. Sitting in the audience, I was at a loss to understand what they were talking about. The case dossier apparently was a critical instrument, which was passed on from the prosecutor to the judge to decide the guilt or innocence of the defendant. This encounter of criminal justice prompted me to think about the way in which criminal justice is conducted in China; but differing from the criminal justice literature which focuses on why witnesses are absent, the question that piqued my curiosity was – if case dossiers play such an important role, determining the outcome of the case, how are they created? Are they truly reliable? Have the criminal procedures provided sufficient safeguards to ensure that the convictions made on the basis of the dossier are really safe? These questions motivated me to think about criminal justice from a different perspective.
Your book is extraordinarily rich in empirical data on a field that is very hard for scholars, and non-Chinese scholars in particular, to observe. Can you also tell us a little bit about the data collection process?
I was lucky enough to access the field site at a time when criminal justice institutions (the procuratorate and the courts in particular) were still open to researchers. The data gathering process was a mixed experience. After staying at the prosecutor’s office for a period of time, it was relatively easy to strike-up a conversation with different people who came to the procuratorate on business. I had lots of conversations with police officers, defence lawyers and sometimes victims in the prosecutor’s offices. Those conversations were extremely informative in revealing various aspects of the criminal justice process. My understanding of how criminal cases were constructed, for example, was initially described to me by some police officers and prosecutors during an informal conversation. Surprisingly, I found it more difficult to set up formal interviews with defence lawyers. I approached a number of defence lawyers after I finished my observation in the prosecutor’s office in 2012. But quite a few defence lawyers declined the interview request (some of them declined in the last minute), expressing their concerns about the topic and how it could affect them in a deleterious way.
The most frequently mentioned fact about the PRC’s criminal justice system is probably the extremely high rate of convictions – over 99.9%. What explanations have you found?
The exceptionally high conviction rates can serve as a useful indicator of the functions of the criminal justice institutions. With the high conviction rates, we can say with confidence that acquittal is not a commonly accepted result of court decisions. For this we must question the function of the courts and their truth-finding mechanism. A lot of questions will inevitably follow. Are judges allowed to acquit criminal cases? If not, why? What are the implications of an acquittal? Are the overwhelmingly majority of prosecution cases strong enough to convict? To answer these questions, we have to understand the pre-trial process, especially the role of the prosecutor and how the criminal cases are constructed. For example if the courts are divested of the power of acquittal (apart from exceptional cases), how are weak cases filtered out of the system? What role do the prosecutors play? How do they scrutinise the police evidence and evaluate the persuasiveness of the case? Since the courts rarely exercise the power of acquittal, the defence lawyers need to engage earlier in the process with the true decision-maker in order to make an effective impact. What are the relationships between the prosecutor and the defence lawyer like? Can the defence lawyer positively influence the prosecutorial decision-making? To answer all these questions, we need to comprehensively assess the pre-trial process and understand the practices on the ground. These areas are featured in Chapters three, four and five of my book, which depicts a depressing picture of the ways in which criminal justice operates on the ground.
Your book addresses the complex question of how the police makes out the facts of the case, the truth of what happened – or as they call it, create the ‘official version of truth’. How is diverging evidence treated and how is the police’s account treated in court? Has the practice of ‘aligning later evidence’ become common practice?
To begin with, introducing new evidence to challenge the police/prosecution case at trial is extremely difficult in China. It is well documented that defence lawyers who tried to contact the witnesses to verify the prosecution case in the past were arrested and prosecuted for perjury contrary to Article 306 of the Criminal Law. Defence lawyers may expose themselves to various professional hazards in the course of collecting evidence in favour of their clients. Due to such constraints, it is challenging to present an alternative version of the facts at trial. There are a very small number of cases in which defence lawyers have managed to creatively construct a defence case to contradict the prosecution case (without sacrificing their own safety) and have then secured an acquittal. But these cases are very rare. Of course, the courts may decide not to admit the defence evidence which contradicts the prosecution evidence and to reject the alternative version if they are not convinced with the story of the defence.
Why do police officers try to align evidence? What incentives does the police have – and how do they work together with the prosecutor?
The reason why the police construct their case in such a way is because few witnesses come to the court to testify and the court relies on the case dossier to determine the guilt or innocence of the accused. According to Article 200 of the Criminal Procedure Law, convictions should be based on a chain of evidence that points to the same guilty facts without reasonable doubt. Therefore, in order to formulate a persuasive narrative against the accused, the police have to ensure that different accounts from witnesses, the victims and the accused corroborate each other, or at the very least they do not contradict each other in order to prove the guilt of the suspect. It would be very difficult for judges to make a decision if the items of evidence contradict one another. This is also necessary as the evidence contained in case dossiers are a manifestation of the objective facts, which are treated as ‘objective’ in the sense that whoever reads the dossier will come to the same conclusion that the accused is guilty. This is also a protecting mechanism for judges, as the facts presented in the case dossier can be repeatedly reviewed, by their leaders and the higher court. To achieve this result, police and prosecutors have to make sure that the facts are well supported by the evidence.
What role does the guilty plea play in China? Since 2019, if a suspect admits the crime and accepts the penalty, the punishment may be reduced – 认罪认罚. Is this procedure a step towards improving the criminal justice system?
The guilty plea system has a profound impact on criminal justice in China. In a chapter that I recently completed on Leniency for Pleading Guilty and Acceptance of Punishment (LPGAP, 认罪认罚), I have argued that the guilty plea system under the principle of LPGAP has paved a route to miscarriages of justice en masse. This is very much due to the fact that the system has significantly empowered the prosecutor, who has taken on the roles of a policymaker, case manager, adjudicator and sentencer. Judges have retreated from the substantive decision-making process (including sentencing). The rights of the accused are further eroded and safeguards diminished. The guilty plea system is largely dominated by the procuratorate and has largely replaced the traditional criminal justice system.
To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. […] A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
Given the high conviction rate, how powerful are defence lawyers? Which strategies do they adopt and what are their limits?
Defence lawyers have never been powerful in Chinese criminal justice. They are marginalised by the criminal justice system, which is dominated by the Iron Triangle – the police, the procuratorate and the courts. As mentioned in my answer to Q4, defence lawyers are subject to various obstacles, which include (and are not limited to) criminalisation pursuant to Article 306 of Criminal Law when they engage in the proactive construction of defence cases, difficulties in meeting their clients in detention centres and in accessing the case dossier in a timely manner. To effectively defend their cases (especially to the effect that their clients receive a reduced sentence), defence lawyers need to learn how to adapt to the system without exposing themselves to great dangers. In Chapter five of my book, I described that a defence lawyer did successfully challenge the prosecution case and secure an acquittal through creatively using Google’s satellite map and the weather report. A successful defence in China requires much more courage, experience, commitment and sometimes even luck, compared to their peers in Western countries.
What problems have officials in charge of improving the criminal justice system identified, which suggestions do they make and which ones do you think are promising?
The main problem of the way criminal justice operates in China is miscarriages of justice. Since 2014, a series of reforms have been carried out to re-shape criminal justice in China. For example, a quota system (员额制) was introduced in 2017 to classify the working staff within the procuratorate and the courts into three categories, namely quota prosecutors/judges, auxiliary prosecutors/judicial staff and administrative staff. Only a fixed, small number of quota prosecutors/ judges now count as professionally recognised judicial staff, who are expected to lead criminal prosecutions or adjudicate criminal cases. There was also a devolution within the procuratorate and the judiciary to de-bureaucratise the internal approval process. For example, in 2019, the departments within the procuratorate formerly in charge of various facets of criminal procedures, that is the Department of Public Prosecution and the Department of Investigative Supervision in particular, were merged (捕诉合一), with prosecutors being re-grouped into new cohorts and dedicated to handling specific types of cases from investigation to trial. Apart from a small categories of cases which are still required to be signed off by the Chief Prosecutor and/or discussed by the prosecutorial committee, the internal hierarchical reviews appear to be relaxed and prosecutors are accorded more autonomy in the vast majority of instances. More significantly, a lifelong accountability reform was introduced to tie judges’ and prosecutors’ reputation and career perspectives to the quality of the cases regardless of their employment status. Realising the crucial role that prosecutors play in the criminal process, the Procurators Law from 2019 has required prosecutors to be bound by the facts and law and adhere to an objective and just position (秉持客观公正的立场) in performing their functions. In my article on prosecutorial accountability, I have argued that the building of judicial and prosecutorial professionalism would be a welcome advance to improve the criminal justice system. However, as we have seen in practice, aside from restructuring the institutions, little has been done in practice to cultivate professional integrity, which lies at the heart of minimising miscarriages of justice. Hitherto no systematic review of criminal justice took place. Judging from the on-going criminal justice reform, eliminating institutional vulnerabilities has not been the chosen route in those reforms. With the mass implementation of the guilty plea system under the principle of LPGAP, wrongful convictions are likely to remain numerous but more difficult to detect.
In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions.
Your illustration of day to day criminal justice in China offers rather bleak prospects. Do the problems you identify not undermine the judiciary’s legitimacy and more broadly, that of the government or Party?
Miscarriages of justice can certainly undermine the legitimacy of the judiciary and that of the rule of the Party. For example, the wrongful conviction of Zhang Yuhuan reported in August 2020 had long-lasting repercussions on public trust in the criminal justice system. The criminal justice institutions, including the courts, are fully aware of the damaging effect. In 2014, the Supreme People’s Court announced that miscarriages of justice had a damaging effect on public trust in the judicial system and said that to resolutely combat the problem, “systematic pitfalls must be tackled at the institutional level.” In fact, almost all criminal justice reforms within the last decade are focused on preventing and minimising miscarriages of justice. However, no comprehensive official report has been produced to identify the systematic risks that are likely to lead to wrongful convictions. The current reforms appear to be on an ad hoc basis and lack in creating an overarching principle or guidance.
Based on your findings, what do you think the judicial reforms in the next years hold for the criminal justice system?
Although the judicial reforms may enhance the awareness of the problem of miscarriages of justice and curtail wrongful conviction to a certain degree, the effort can be easily offset against political agendas, according to which the criminal justice system should first and foremost be perceived as the ‘dagger’ (刀把子) in maintaining the social security of the Party-state regime. Alongside the judicial reforms, there has been a backlash that prioritises procedural economy at the expense of suspects’ rights as well as political pressures to reinforce the punitive nature of the public prosecution crime control in the last two years. For example, the trial centred reform initiated in 2018 which attempted to introduce cross-examination to the trial proceedings came to a halt recently. There are a lot of uncertainties as to how the system will evolve in the future. Although I hope that the reform gradually improves the system, it will be very difficult to implement in practice and may take much longer than most people expect.
Chinese criminal law scholars have increasingly been establishing links with colleagues in other jurisdictions and drawing benefits from comparative research, and more than anything else with those from Germany. As both Germany and China are at their core civil law systems, and German scholarship in criminal law historically had, and still has, a reputation abroad for a high degree of doctrinal sophistication that may appeal to other legal systems with a similar conceptual DNA. One major factor which keeps recurring in the recent Chinese debate is the dramatically increasing level of interest in a particularly Teutonic tool of legal scholarship, the code commentary.
China is currently carefully reconsidering its previous stance with regard to substantive criminal law, in that reliance on the old Soviet-based criminal code is gradually being replaced by a concept that is owned by Chinese legal scholars, practitioners and law-makers, and shaped to the indigenous principles influencing and guiding modern Chinese culture and society. In other words, Chinese criminal law is increasingly progressing to a Sino-centric understanding of law based on the founding principles of the People’s Republic, the current policies of the CPC and the more recent wider guidance by Xi Jinping Thought as expressed for example in the two volumes of collections of President Xi Jinping’s ideas, The Governance of China.
Addressing the need to ground any law reform on the prevailing conditions in China and the need to lay the “emphasis on what is practical, what is contemporary and what is quintessentially Chinese”, Xi Jinping expressly realises the benefits and risks of international and comparative engagement in the context of law reform:
“Basing our work on reality does not mean that we can develop the rule of law in isolation from the rest of the world. The rule of law is one of the most important accomplishments of human civilization. Its quintessence and gist have universal significance for the national and social governance of all countries. Therefore, we must learn from the achievements of other countries. However, learning from others does not equate to simply copying them. Putting our own needs first, we must carefully discern between the good and the bad and adopt the practices of others within reason. Under no circumstances can we engage in “all-out Westernization”, or a “complete transplant” of the systems of others, or copy from other countries indiscriminately.”
Using a “Western” tool does not eo ipso equate to crafting Western things with it, in other words: process does not equal substance. From the point of view of a Chinese domestic debate about the pros and cons of commentary use it is ultimately irrelevant whether Western lawyers approve or disapprove of the material and political essence of the legal system which the commentary is meant to elucidate. Elucidation is a worthwhile and unobjectionable aim in and of itself and, as the inevitably patchy practice of the SPC in issuing interpretative guidelines has shown, something for which the need is clearly felt at the highest echelons of the Chinese legal establishment.
The choice of analytical or conceptual lenses is paramount for the contribution a commentary can make to the development of any area of law, but certainly in the field of criminal law. This process of choice begins, however, even with the meta-question of who decides these analytical parameters: Will they be ordained by the Party structures or the SPC or will each academic (team) be free to choose their own? In the former case, it is to be expected that a much wider array of society- or community-related criteria will find entry into the project and serve as a more or less tight strait-jacket for the development. Even if the overall tendency might be to move away from the old Soviet-style model, it is unlikely that a major shift towards an ideology incompatible with modern Sino-socialist thinking would be advocated or tolerated.
It might be highly beneficial for the Chinese context to rethink the relationship between academia and practice. Judicial and wider practitioner involvement in commentary writing would appear to be crucial in order to achieve a harmonious blend of scholarly penetration of the material on an analytical basis with the views and practical experience of seasoned – and ideally also scholarly-minded – judges, prosecutors and counsel.
Finally, what shape should Chinese commentaries adopt? The easy avenue of copying the mere phenotype of the various German commentaries may make it difficult, if not to say unattractive, for the Chinese debate to reflect on its own approach from scratch, as it were. One might be tempted to say that the desire for a working commentary culture and the apparent respect for the German experience may have forestalled a proper fundamental debate within the Chinese legal community about the merits and aims of engaging in commentary writing, its underlying philosophical parameters and policy directions – in other words: Is there a particularly Chinese DNA that would give rise to a different genotype?
While the focus of this paper is on exploring the lessons that can be drawn from the German case, it is far from clear that this model is best-suited for the Chinese legal environment, possibly adding the further qualifier: At this time? The current relationship between academia and practice and the alleged lack of practitioner interest in scholarly exploration may militate in favour of a less ambitious format, at least initially: Judicial practice may be unlikely or unwilling to have recourse, leave alone contribute to commentaries if their impetus is too much focused on the academic debates of scholars and does not sufficiently address the needs of practitioners.
Overall, the situation appears rather more complex than it might seem at first glance. There are two Chinese proverbs, “Be not afraid of being slow, be afraid of standing still”(不怕慢, 就怕停), and “Teachers open the doors, you enter by yourself” (师父领进门，修行在个). In the debate about the proper use of the idea of commentaries in China, it seems that these proverbs may prove to be wise counsel.
Michael Bohlander’s paper, published with Peking University Law Journal, is now available here.
Professor Michael Bohlander holds high judicial office as the International Co-Investigating Judge in the Extraordinary Chambers in the Courts of Cambodia, having been on leave from Durham University and serving as a full-time judge at the Court in Phnom Penh from 2015 – 2019, and again since April 2020 after his re-instatement in the post by the United Nations Secretary-General, to deal with residual litigation. He is also on the roster of international judges at the Kosovo Specialist Chambers in The Hague, to which he was appointed in February 2017. His extensive published research on German, English, comparative and international criminal law has found wide reception, including outside academia. In his book series, Studies in International and Comparative Criminal Law with Hart, Liling Yue recently published Principles of Chinese Criminal Procedure.