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Criminal Process in the People's Republic of China

NCJ Number
Justice Quarterly Volume: 2 Issue: 1 Dated: (March 1985) Pages: 117-125
D G Rojek
Date Published
9 pages
This article compares criminal processes in China with those of the West.
Distinction is made between common law and civil law; the Chinese judicial system's foundation in civil law is noted. Western legal traditions are said to emphasize the rule of law, due to a basic distrust of human nature. Chinese tradition on the other hand, is based on informal social control mechanisms that do not require formal law and due process. The two judicial systems that regulate Chinese society are discussed: a formal system based upon statutory provisions in China's constitutions of 1954, 1974, and 1978, and an informal process based upon community association. The three tiers of China's criminal justice system are addressed; the informal system, clearly the most critical element in Chinese social control techniques, is identified as the bottom tier. The second tier is comprised of neighborhood associations and mediation units; the third consists of the formal court process. Numbers of lawyers in China and in the United States are compared, and the primary function of the lawyer in China, to be present at the sentencing phase of the criminal proceeding and to implore mercy, is highlighted. Also described are trial procedure and the concept of procuratorates, borrowed from Soviet criminal law. The Confucian doctrine of individuals' intrinsic goodness, which pervades much of China's legal codes, is determined to be the most crucial factor in differentiating the Western legal process from China's. Thirteen references are included.