Chinese Trial System

1. Chinese Trial System • ZhenlinZhou

2. The third largest country in the world after Russia and Canada. The population is over 1.3 billion in 2003. • China is a unitary, multinational Communist country with 23 provinces( including Taiwan), five autonomous regions (including Tibet) and four municipalities directly under the authority of central government.

3. There are 56 nationalities but Han nationality( Chinese) occupies over 90 per cent and most minority nationalities can speak Chinese although they may have their own languages.

4. Central Government • Provincial Government (autonomous regions and municipalities directly under the authority of central government) • Municipal Government • County or district government

5. Communist Party • The Governments on all four levels must obey the authorities of communist party. • Communist Party control everything. All the governors, mayors must be members of communist party.

6. Main Judicial Organs • The public security organs. • (State security organs) • Prosecuting Organs • Courts • Organs of Justice

7. Committee of Politics and Law On every level, there is Committee of Politics and Law in charge of Judicial Organs. Police are more powerful than other judicial organs. Procurators , Judges must carry out the decision of the committee of politics and law.

8. Criminal Investigation Organs • Criminal Investigation Organs • The public security organs shall be responsible for investigation, detention, execution of arrests and preliminary inquiry in criminal cases. • Investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by the law. • State security organs shall ,in accordance with law, handle cases of crimes that endanger national security, performing the same functions and powers as the public security organs.

9. Police • Chinese Police consists of six main components: • Public Security Police, State Security Police, Prison Police, Judicial Procuratorates Police and Judicial Courts Police. Armed Police • Public Security Police make up 86 percent of all police personnel

10. Public Security Police • Patrol, Criminal investigations, Border patrol, monitoring of all modes of transportation • the police can conduct an emergency search; They have the right to search the person, property, and residence of an accused. They can intercept mail belonging to the accused and order an autopsy whenever cause of death is unclear.

11. State Security Police • Established in 1983. • Responsible for preventing espionage, sabotage and conspiracies. ( cf CIA external intelligence & FBI domestic intelligence)

12. Other Police • Prison police supervise convicted offenders in prisons. • The judicial procuratorates police arrest suspects in cases investigated by procuratorates( similar to prosecutors) and escort procurators when they are investigate cases. • Judicial courts police maintain security and order in the courts.

13. Armed police Armed Police has the responsibility as a domestic guards, similar in some ways to the National Guards. In fact, Armed police is under the leadership of Central Military Commission

14. Police in China • Two officials are needed to conduct a criminal investigation. They are required to show identification and, apparently, to inform the accused of the crime allegedly committed before he or she is questioned. The suspect can refuse to answer only those questions irrelevant to the case. Torture is illegal. But in practice torture is very popular

15. Prosecuting Organs The People’s Procuratorates shall be responsible for procuratorial work , authorizing approval of arrests, conducting investigation and initiating public prosecution of cases directly accepted by the procuratorial organs. Crimes of embezzlement and bribery, crimes involving violations of a citizen’s personal rights such as illegal detention.

16. . Courts The People’s Courts shall be responsible for adjudication Cases of private prosecution shall be handled directly by the People’s Courts. In trying cases, the People’s Courts shall apply the system whereby the second instance is final.

17. People’s Assessors • In trying cases, the People’s Courts shall apply the system of people’s assessors taking part in trials. • When performing their functions in the People’s Courts , the people’s assessors shall enjoy equal rights with the judges.

18. People’s Assessors • Unlike American Jury System: • (1) Members are fixed and they are appointed by the local courts; • (2) It is an option not a required trial system; • (3) Only applicable in trial of first instance.

19. Four Levels of Courts Supreme People’s Court Higher People’s Courts (province) Intermediate People’s Courts( municipality ) Primary People’s Courts( district or county)

20. Jurisdiction of Courts • The Supreme People’s Court ( shall have jurisdiction as the court of first instance over major criminal cases that pertain to the whole nation) The Higher People’s Courts shall have jurisdiction as the court of first instance over major criminal cases that pertain to an entire province or autonomous region, or municipality directly under the Central government

21. Intermediate People’s Courts • The Intermediate People’s Courts shall have jurisdiction as the court of first instance over the following criminal cases: • (1)cases endangering national security; • (2) ordinary criminal cases punishable by life imprisonment or the death penalty;( in practice, more than 15 years) and (3) criminal cases in which the offenders are foreigners

22. Primary People’s Courts • The Primary People’s Courts shall have jurisdiction as courts of first instance over ordinary criminal cases; however, those cases which fall under the jurisdiction of the People’s Courts at higher levels as stipulated by this law shall be exceptions.

23. Defense Lawyer System • In addition to exercising the right to defend himself, a criminal suspect or defendant may entrust one or two persons as his defenders. • During a trial, the defendant may refuse to have his defender continue to defend him and may entrust his defense to another defender.

24. Defense Lawyer Required • A criminal suspect in case of public prosecution shall have the right to entrust lawyers. If the defendant is blind, deaf or mute, or if he is a minor, and thus has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender. If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.

25. Trial of Second Instance • Appeal: • If the defendants refuse to accept a judgment of first instance made by a local People’s Court at any level, they shall have the right to appeal to the People’s Court at next higher level.

26. Trial of Second Instance • Protest: • If a local People’s Procuratorate at any level considers that there is some definite error in a judgment of first instance made by the People’s Court at the same level, it shall present a protest to the People’s court at the next higher level.

27. Trial of Second Instance • After hearing a case of appeal or protest against a judgment of first instance, the People’s Court of second instance shall handle it in one of the following manners in light of the different situations: • Three different situations

28. Situation One • If the original judgment was correct in determination of facts and application of law and appropriate in the meting out of punishment, the People’s Court shall order rejection of appeal or protest and affirm the original judgment.

29. Situation Two • If the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriate meted out, the People’s Court shall revise the judgment.

30. Situation Three • If the facts in original judgment were unclear or the evidence insufficient, the People’s Court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the People’s Court which originally tried it for retrial.

31. Procedure for Trial Supervision • All judgments of second instance and all judgments of Supreme People’s Court are final • A party or his legal representative or his near relative may present a petition to a People’s Court or a People’s Procurator ate regarding a legally effective judgment, however, execution of the judgment shall not be suspended.

32. Procedure for Trial SupervisionConditions • A petition conforms to any of the following conditions, the People’s Court shall retry the case • (1) There is new evidence to prove that the confirmation of the facts in the original judgment is definitely wrong;

33. Procedure for Trial SupervisionConditions • (2) The evidence upon which the condemnation was made and punishment meted out is unreliable and insufficient, or the major pieces of evidence for supporting the facts of case contradict each other; • (3) The application of law in making the original judgment is definitely incorrect; • (4) The judges in trying the case committed acts of embezzlement, bribery, or malpractices for personal gain, or bended the law in making judgment.

34. Protests naturally produce Retrial • With respect to a case protested by a People’s Procuratorate, the People’s Court that has accepted the protest shall form a collegial panel for retrial.

35. Process of Trials in Courts • Trials of cases of first instance in the Primary and Intermediate people’s Courts shall be conducted by a collegial panel composed of three judges or of judges and people’s assessors totaling three. However, cases in which summary procedure is applied in the Primary People’s Court may be tried by a single judge alone( defendants may be lawfully sentenced to fixed-term imprisonment of not more than three years.)

36. Process of Trials in Courts • Trials of cases of first instance in the Higher People’s Courts or the Supreme People’s Court shall conducted by a collegial panel composed of three to seven judges or of judges and people’s assessors totaling three to seven.

37. Process of Trials in Courts • When performing their functions in the People’s Courts , the people’s assessors shall enjoy equal rights with the judges. • Trial of appealed and protested cases in the People’s Courts shall be conducted by a collegial panel composed of three to five judges( people’s assessors can’t take part in the trial of second instance).

38. Age of Culpability A person who has reached the age of fourteen but not the age of eighteen who commits a crime shall be given a lesser punishment or a mitigated punishment. A person who has reached the age of eighteen who commits a crime shall bear criminal responsibility

39. Partial Criminal Responsibility A person who has reached the age of fourteen but not the age of eighteen who commits the crimes of intentionally killing another or intentionally injuring another, even causing serious injury or death, and the crimes of rape, robbery, drug trafficking, arson, explosion, and poisoning shall bear criminal responsibility.

40. Types of Punishments • One:The types of principal punishments are: • (1) control; • (2) Criminal detention; • (3) fixed-term imprisonment; • (4) life imprisonment; and • (5) The death penalty.

41. Types of Punishments • The types of supplementary punishments are: • (1) Fines; • (2) Deprivation of political rights; and • (3) Confiscation of property. • Supplementary punishments may also be applied independently.  • Deportation may be applied in an independent or supplementary manner to a foreigner who commits a crime.

42. Deprivation of political rights • (1) The right to elect and the right to be elected; • (2) the right to freedom of speech, of the press, of assembly, of association, of procession, and of demonstration; • (3) the right to hold a position in state organs; and • (4) the right to hold a leading position in a state-owned company, enterprise, or institution or people's organization.

43. Death Penalty The death penalty is only to be applied to criminal elements who commit the most heinous crimes. In the case of a criminal element who should be sentenced to death, if immediate execution is not essential, a two-year suspension of execution may be announced at the same time the sentence of death is imposed.

44. Death Penalty Except for judgments made by the Supreme People's Court according to law, all sentences of death shall be submitted to the Supreme People's Court for approval. Sentences of death with suspension of execution may be decided or approved by a high people's court.

45. Limitation of Death Penalty The death penalty is not to be applied to persons who have not reached the age of eighteen at the time the crime is committed or to women who are pregnant at the time of adjudication.

46. Organs of Justice • Ministry of Justice( central government) • Local organs of Justice( three levels) • Responsible for prisons • Responsible for lawyers • Responsible for notary

47. Prison Detention center Reeducation-through labor facilities Reform-through-labor camps prisons

48. Detention Center • Like jails in U.S.A. house offenders awaiting sentencing, those suspects whose cases are being tried and waiting to be tried but those suspects are violent offenders, like murders, rape or other serious crimes; • and those serving less than two-year sentence.

49. Reeducation Through Labor • Also called rehabilitation through labor • A kind of correctional facility that incarcerates those who have administrative detention status. • Administrative detention is a form of punishment that allow authorities to impose incarcerate people without the benefit of a trial.

50. Administrative Detention • The police has the power to impose people without a trial in a court. • It can include incarceration for up to two years and plus one more year. In fact, any citizen may be incarcerated up to three years without any trial.