Tải bản đầy đủ - 0trang
2 The Supreme People’s Court Review and Trial Supervision in China
A.2 The Decision of the CCCPC on Major Issues
Concerning Comprehensively Deepening Reformss
(It was adopted at the close of the Third Plenary Session of the 18th Central
Committee of the Communist Party of China on November 12, 2013.)
The following is an abridged version of the document:
… IX. To promote building the rule of law in China
In building the rule of law in China, it is necessary to uphold the rule of law,
… (There is a need to) deepen reform on justice system, accelerate building a fair,
efficient and authoritative social justice system and maintain people’s rights, so
that people have a sense of fairness and justice in every judicial case.
30. Protecting the authority of the Constitution and laws. The Constitution
is the fundamental law guaranteeing the flourishing of the Party and long-term
peace and stability of the country, and it has the supreme authority. We will further improve the supervision mechanism and procedure for the implementation of
the Constitution and raise to a new level the comprehensive implementation of the
Constitution. We will establish and improve the system within which the whole
society is loyal to, abides by, upholds and applies the Constitution and laws. We
will uphold the principle that everyone is equal before the law, and no organization
or individual has the privilege of overstepping the Constitution and laws; all acts
in violation of the Constitution and laws must be investigated.
We will establish a system of legal counsel universally, improve the review
mechanisms concerning normative documents and major decisions, set up a scientific indicator system and assessment standard for legal system building, and
improve review mechanisms concerning laws, regulations and normative documents. We will improve the law education mechanism and raise the public’s
awareness of the rule of law. We will gradually increase the number of major cities
which have the right to make regulations.
31. Deepening reform of the administrative law-enforcement system. We
will integrate major law-enforcement bodies, relatively centralize the law-enforcement power, press ahead with comprehensive law enforcement, and do our best
to resolve problems such as overlapping functions and duplicate law enforcement
to establish an authoritative and efficient administrative law-enforcement system
with the integration of power and responsibility. We will reduce the hierarchy of
administrative law enforcement, and allocate more law-enforcement resources to
the primary level in such key areas as foodstuffs and medicines, production safety,
environmental protection, labor security, and coastal areas and islands. We will
straighten out the urban management law enforcement system, and improve the
level of law-enforcement and service quality.
We will improve the procedure of administrative law enforcement, specify
areas of discretion, strengthen supervision over administrative law enforcement,
and comprehensively implement the responsibility system as well as government
funding for administrative law enforcement, in order to promote strict, standardized, fair and civilized law enforcement. We will improve the mechanism that
dovetails administrative law enforcement and criminal justice.
32. Ensuring the independent exercise of the judicial and procuratorial
power in accordance with the law. We will reform the judicial administration
system, unify the management of staffs, funds and properties of courts and procuratorates below the provincial level and explore ways to establish a judicial jurisdiction system that is appropriately separated from the administrative divisions to
ensure that the state laws are enforced properly and uniformly.
We will establish a judicial personnel management system fitting their professional characteristics, improve the system for unified recruitment, orderly
exchange and level-by-level promotion of judges, procurators and the police,
improve the classified management system of legal personnel, and guarantee the
job security of judges, procurators and the police.
33. Improving the mechanism for the use of judicial power. We will optimize the distribution of judicial functions and powers, improve the system of
judicial power division, coordination, checks and balances, and strengthen and
standardize the legal and social supervision over judicial activities.
We will reform the judicial committee system, improve the responsibility system of handling cases by the presiding judge and the collegiate bench, by which
the judges hand down verdicts and the collegiate bench is responsible for carrying
them out. We will clarify the functions of the courts at all levels, and standardize
their supervision through the judicial hierarchy.
We will have more open trials, make the procuratorial work more transparent,
and record and keep all court files. We will increase the persuasiveness of legal
instruments and press ahead with publicizing court ruling documents that have
come into effect. We must strictly regulate the procedures of sentence commuting,
release on parole and medical parole, thereby enhancing the supervision system.
We will extensively implement the people’s assessor system and people’s supervisor system to expand channels for the people to participate in legal affairs.
34. Improving the systems of the judicial guarantee of human rights. The
state respects and safeguards human rights, further regulates the judicial process
of attachment, seizure, freezing and processing belongings involved in the case.
Mechanisms for the prevention, correction and accountability of wrongful
cases shall be strengthened; extorted confession by torture, corporal punishment and abuse shall be prohibited; and the exclusionary rule on illegally
obtained evidence shall be strictly implemented. Death penalty charges shall be
(There is also a need to) abolish the re-education-through-labour system,
improve laws on punishing and correcting offences or criminal acts and strengthen
the system of community corrections.
We will improve the national judicial relief and legal aid system. We will
improve the mechanism for protecting lawyers’ rights to practice while punishing
illegal practice, strengthen professional ethics and give full play to the important
role of lawyers in safeguarding the legitimate rights and interests of citizens and
legal persons in accordance with the law.
The CCP Central Committee Decision concerning Some
Major Questions in Comprehensively Moving Governing
the Country according to the Law Forward
(It was passed on 23 October, 2014, at the 4th Plenary Session of the 18th Central
Committee of the Chinese Communist Party)
The following is an abridged version of the document:
In order to implement strategic deployments made at the 18th Party Congress and
to accelerate building a Socialist country with the rule of law, the 4th Plenary Session
of the 18th Central Committee considered major questions in comprehensively moving forward ruling the country by law, and further made the following Decision.
I. Persisting in the road to a Socialist country ruled by law with Chinese characteristics, for building a Socialist rule of law system with them.
Ruling the country by law is an essential requirement and important safeguard for
persisting in developing Socialism with Chinese characteristics. It is inevitable to
realize the modernization of the national governing system and ability. It affects the
ruling Party’s governance to rejuvenate the country, the people’s welfare, peace and
health, as well as the long-term peace and order of both the Party and the country.
II. Perfecting a Socialist legal system with Chinese characteristics, with
the Constitution at the centre, to strengthen the implementation of the
Laws are important tools for ruling the country. Benevolent laws are preconditions
for good governance. To build a Socialist legal system with Chinese characteristics, we must give precedence to legislation and rein to the guiding and driving
role of legislation, in order to raise legislative quality. We must scrupulously put
people first and legislate for the sake of the people, and implement the Socialist
core value system, to reflect the popular will in legislation. We must allow the
principles of fairness, justice and transparency to be implemented in the entire process of legislation, improve legislative systems and mechanisms, simultaneously
carry out legislation, revision, abolition and interpretation, for strengthening the
timeliness, systemic nature, focus and effectiveness of laws and regulations.
A.6 Deeply Moving Administration According to the Law
Forward, to Accelerate Building a Rule of Law
The effect of the law lies in its implementation, as its authority does. All governments must persist in performing their duty on the track of the rule of law under
the leadership of the Party, innovating law enforcement systems, improving law
enforcement procedures, moving comprehensive law enforcement forward, straitening law enforcement responsibilities, establishing structures for administration by law. There is need to have authority and efficacy, to accelerate building a
rule of law government with scientific functions, legal powers and duties, and to
make law enforcement strictly by law, the process of which is transparent, fair and
A.7 Guaranteeing Fairness to Raise Public Confidence
with the Justice System
Fairness is the lifeline of the rule of law and plays a leading role in social justice.
Injustice is harmful to social justice. We need to improve administration the justice
and the operating mechanism of judicial power, to standardize judicial conducts,
to strengthen the supervision over judicial activities, in order to make the people
feel fairness and justice in every case.
(1) Perfecting systems to ensure judicial authority and that procuratorial authority are exercised fairly and independently, according to the law. The Party and government bodies and leading cadres should support the courts and procuratorates’
exercising their functions and authorities independently and fairly according to the
law. Establishing a system for recording, reporting, and investigating the responsibility of instances wherein leading cadres interfere in judicial activities or get
involved in the handling of certain cases. No Party or government body or leading cadre can allow judicial organs to breach their statutory duty or impede fairness; no judicial body may interfere in judicial activities from a Party, government
body or leading cadre. Party or administrative disciplinary action will be imposed
as punishments for interfering in judicial cases. If it results in unjust, false, and
erroneous cases, or other severe outcomes, those criminally responsible should be
investigated according to the law.
It is necessary to improve systems for administrative organs appearing in court
to respond to lawsuits, for supporting courts in accepting administrative cases, for
respecting and for enforcing effective court judgments. There is a need to improve
legal provisions to punish obstruction of judicial organs’ performance of their
duties according to the law, refusals to enforce effective judgments and decisions,
for contempt of court authority and other illegal and criminal conduct.
It is needed to establish and complete protection mechanisms for judicial personnel performing their statutory duties. Judges and prosecutors must not be transferred, dismissed, demoted, removed or otherwise sanctioned without statutory
grounds and without undergoing statutory procedures.
(2) Optimizing the allocation of judicial duties. It is needed to complete systems and mechanisms to ensure that public security organs, procuratorates, judicial organs and judicial administrative organs all perform their own rules, and for
mutual coordination and mutual checks between the investigation power, prosecution power, adjudication power and enforcement power.
It is needed to improve the judicial system, promote the implementation of
structural reform trials for the separation of adjudication and enforcement powers.
It is needed to improve systems for enforcement of punishments, unify criminal
enforcement systems. It is needed to reform systems for judicial organs’ personnel and finance management, explore the implementation of separating courts’
and procuratorates’ judicial administrative management affairs and adjudication or
The Supreme people’s court shall establish circuit tribunals, to hearing major
administrative and civil cases that cross administrative regions. It is needed to
explore the establishment of People’s Courts and people’s procuratorates that cross
administrative districts and handle cross-regional cases. It is needed to improve
administrative litigation systems and mechanisms, reasonably adjust the jurisdiction system for administrative litigation cases, truly resolve prominent issues such
as difficulty in filing, hearing and enforcing administrative litigation cases.
It is needed to Reform systems for court acceptance of cases, change the case
filing review system to a case filing registration system, and in cases that should
be accepted by the People’s Courts, ensure parties’ procedural rights by requiring filing when there is a case, and requiring acceptance where there is a lawsuit.
Increase the force of punishments for false and malicious litigation and acts of
unreasonably vexatious litigation. In criminal proceedings, it is needed to improve
systems for leniency for admitting guilt and accepting punishment.
It is needed to improve appeals systems, the focus in first-instance cases is
to resolve factual determinations and application of law, the focus in the second
instance is resolving disputes of fact and law and ensuring that the second instance
is the last, in retrials, the focus is on the decision to correct mistakes according
to the law and safeguarding the authority of judgments. It is needed to improve
implementation of oversight systems for compulsory measures that involve the
people’s personal and property rights and interests. Where procuratorate organs
discover, in the course of performing their duties, that administrative organs have
unlawfully implemented their duties or have not performed their duties should
supervise the matter and urge them to correct. It is needed to explore the establishment of systems for procuratorates raising public interest lawsuits.
It is needed to clarify the duties of all levels within judicial organs and complete internal supervision and inspection mechanisms. Internal personnel of judicial organs may not interfere with other personnel’s handling of cases in violation
of regulation, establish recording and accountability systems for internal personnel’s retrieval of cases. It is needed to improve case handling responsibility
systems for presiding judges, collegial panels, head procurators and lead investigators, to implement a system where those handling the cases bear responsibility.
It is needed to strengthen management of clues concerning crimes abusing
public office, to establish systems for accepting, categorizing, investigating and
handling information and feedback, clarify standards and procedural connections
for discipline inspection and criminal justice case handling, strictly investigate and
handle cases of criminal abuse of public office.
(3) It is needed to move straitening the judiciary forward. It is needed to persist in basing things on facts and using the law as the criterion. It is needed to
strengthen legal systems for fact-finding that conform to objective truth, ensure
that results of a case conform to substantive justice, and case procedures conform
to procedural justice. It is needed to enhance and standardize judicial interpretation and case guidance, and unify standards for applicable law.
It is needed to promote structural reform in litigation with trials at the centre,
and ensure the facts and evidence of cases under investigation, examination and
prosecution can stand the test of law. It is needed to fully implement evidentiary
judgment rules; collect, fix, preserve, investigate, and use evidence strictly according to the law; perfect systems for witnesses and experts appearing in court, ensure
that courtroom hearings play a decisive role in ascertaining the facts, identifying
the evidence, protecting the right of action, and adjudicating impartially.
It is needed to clarify the work duties, workflows and work standards of all
types of judicial personnel, implement a system of lifetime responsibility for case
quality and of accountability for miscarried cases accountability system, ensuring
that case handling stands the test of law and time.
(4) Guaranteeing the popular masses’ participation in the judiciary. It is needed
to persist in people’s justice for the people, rely on the people to move judicial
fairness forward, and protect the people’s rights and interests through judicial
fairness. It is needed to guarantee the public’s participation in judicial mediation,
judicial hearings, petitioning involving litigation and other judicial activities. It is
needed to improve the people’s assessor system, guarantee citizens’ right to participate in adjudication, expand the scope of participation in trial, perfect random
selection methods, and increase the credibility of the people’s assessor system. It
is needed to gradually implement that people’s assessors no longer hear questions
of applicable law, and only participate in issues of fact determination.
It is needed to build an open, dynamic, transparent, and convenient sunshine
judicial mechanism; move forward with open trials, open prosecutorial work, open
police work, and open prison work; promptly publish law enforcement and judicial basis, procedures, processes, results, and effective legal documents according
to the law; and put an end to secretive work. It is needed to strengthen the explanation and interpretation of legal documents, and create an online integrated open
inquiry system for effective legal documents.
(5) Strengthening the judicial protection of human rights. Strengthen procedural protection of parties’ and other litigation participants’ right to know, right
to make comments, right to defence and debate, right to make requests, and right
to appeal in the course of litigation procedures. It is needed to improve legal systems to implement principles such as statutory punishments, no punishment in
cases in doubt and exclusion of illegal evidence. It is needed to improve judicial oversight of judicial measures and investigatory methods that limit personal
freedom, strengthen prevention at the source against confessions extracted through
torture and illegally acquired evidence, complete effective prevention measures
against unjust, false and wrongfully decided cases, and mechanisms for prompt
It is needed to truly resolve difficulties in enforcement, to draft a law on coercive enforcement, standardize judicial procedures for sealing, seizing, freezing and
disposing of assets involved in cases. It is needed to accelerate the construction of
a legal system for supervision, deterrence and punishment of persons not executing judgments. It is needed to ensure the prompt realization of the rights and interests of winning parties in lawsuits according to the law.
It is needed to implement final judgment and litigation finality systems, separate litigation and petitioning, guarantee that parties exercise their right to appeal
according to the law. For appeals due to dissatisfaction with effective judgments or
decisions by judicial organs, it is needed to gradually implement a system of lawyer representation. It is needed to bring appellants unable to hire a lawyer within
the scope of legal aid.
(6) It is needed to strengthen supervision over judicial activities. It is needed to
improve legal systems for prosecutorial organs to exercise supervisory powers, to
strengthen legal supervision over criminal procedure, civil procedure and administrative procedure. It is needed to improve the people’s supervisor system, focus on
the supervision of prosecutorial organs’ investigation of criminal offences occurring during law enforcement activities including case registry, arrests, detention or
freezing of assets, filing complaints, etc. Judicial organs must timely respond to
social concerns. It is needed to standardize media reporting over cases, to prevent
that public opinion influences judicial fairness.
It is needed to standardize the links and interactions between judicial personnel and the parties, lawyers, people with particular relationships and intermediary
organizations according to the law. The personnel should be strictly prohibited
to secretly contact the concerned parties and their lawyers, leak or make secretive inquiries about case details, to accept dinner invitations or receive assets from
them, introduce agency or defence business to lawyers and other such acts violating laws and regulations, to firmly punish acts of judicial brokerage, prevent the
transportation of interests.
Judicial personnel being dismissed from office for violating laws or discipline,
and lawyers and notaries public with licences revoked shall be prohibited from
working in the legal profession, if it constitutes a crime and criminal liability must
be prosecuted according to the law.
It is needed to firmly break through all kinds of unwritten rules. It is not permitted to bestow favours against law, to deal with cases for benefit or interests such
as guanxi or connection. It is needed to firmly oppose and to overcome privileged
thinking, a yamen or overbearing work style, and to punish those enforcing law
by cruel treatments. There is no tolerance of corruption in justice practice. It is
needed to firmly eliminate the black sheep, namely those against law, detrimental
(The List of Key Reference)
Armstrong S et al (eds) (2006) Perspectives on punishment: the contours of control. Oxford
University Press, Oxford
Baker Mark DA (1999) Prosecutors in their own words, 1st edn. Simon & Schuster
Bakken B (ed) (2005) Crime, punishment, and policing in China. Rowman & Littlefield,
Beare M (ed) (2008) Essays in honour of Dianne Martin. University of Toronto Press, Toronto
Beare M, Murray T (eds) (2007) Police government relations. University of Toronto Press,
Belkin I (2007) Chapter 3 China. In: Bradley CM (ed) Criminal procedure: a worldwide study,
2nd edn. Carolina Academic Press
Blackstone W (1979) Commentaries on the laws of England. University Chicago Press, Chicago
Blom-Cooper LJ (1997) The Birmingham six and other cases: victims of circumstance, 1st edn.
Bradley C (ed) (2007) Criminal procedure: a worldwide survey. Carolina Academic Press,
Bryman A (2008) Social science research methods. Oxford University Press, Oxford
Cao L, Sun IY, Hebenton B (2013) Handbook of Chinese criminology. Routledge
Chang J, Mao HJ (2005) The unknown story. Jonathan Cape, London
Chen J (2007) Chinese law: context and transformation (Brill)
Cheng A, Rosett L, Woo M (eds) (2002) East Asian law: universal norms and local cultures.
Cheng L (ed) (2010) China’s emerging middle class: beyond economic transformation.
Brookings Institution Press, Washington, D.C.
Chirot D (1996) Modern tyrants: the power and prevalence of evil in our age. Princeton
University Press, Princeton
Christianson S (2004) Innocent: inside wrongful conviction cases. New York University Press,
Collins W (2005) Wilkie Collins’s the dead alive: the novel, the case, and wrongful convictions.
Northwestern University Press, Scott Turow, USA
Cullen FT et al (2011) The origins of American criminology. Transaction Publishers, New
© Springer-Verlag Berlin Heidelberg 2016
N. Jiang, Wrongful Convictions in China, DOI 10.1007/978-3-662-46084-9