Research on the Deprivation of Liberty from Criminal Suspects: Focusing on Pre-trial Criminal Procedure in China

Abstract

riminal procedure law of China sets out five pre-trial compulsory measures. Arrest and detention deprive individual liberty while the other three measures only restrict it. In 1996 and 2012, the National People's Congress passed a comprehensive set of amendments to the criminal procedure law of China. In China, criminal law and criminal procedure law have long been recognized as a weapon to fight the waves of criminal behavior. Following the inquisitorial model of European, defendants in China as well as criminal suspects, have long been recognized as mere objects of trial and punishment, not as independent actors fighting against the prosecutor as in the adversarial model. Pre-trial investigation tends to depend largely on dossiers or investigation documents, with the dominant authorities being the prosecuting party and court. The author presents the research question as to how appropriately the new criminal procedure law of China protects the rights of those arrested or detained in pre-trial stages of criminal procedure. The reform efforts of the Chinese government will be assessed as part of the journey to balance crime-control and the due process model of criminal procedures. The research explores the changes in criminal procedure law of China particularly regarding pre-trial arrest and detention. Legal grounds, conditions, duration of the arrest and detention will be reviewed along with noteworthy amendments to relevant articles. In addition, the rights of those arrested or detained will be categorized into three phases of the proceeding: (a) preventive legal devices to deter arbitrary detention, (b) procedural rights of detained suspects, (c) remedies for the violation of rights. In addition, major changes and the background of each amendment to the Chinese criminal procedure law will be reviewed in the next chapter. Finally, the author concludes that despite extensive reform efforts in 1996 and 2012, the rights protected by the newest law fall short of international standards represented by the International Covenant on Civil and Political Rights or when compared to the U.S. or Korean institutions. Moreover, the effective implementation of the 2012 Criminal Procedure Law is still in question due to systematic limitations such as the dominating nature of crime-control, the inquisitorial model and the lack of independence of the judiciary from the Chinese Communist Party.