Transparency and Legitimacy in Chinese Criminal Procedure: Beyond Adversarial Dogmas

Abstract

In recent years, the legitimacy of China's criminal justice system has been increasingly challenged by the Chinese populace, in part due to the numerous exposed miscarriages of justice. The Chinese academic mainstream as well as the political and judicial authorities have looked towards the classical Anglo-American model of an adversarial criminal justice system to solve this problem. Reforms were subsequently introduced to add weight to court sessions and to provide external transparency of criminal trials, whilst curtailing the weight of pre-trial proceedings and the case file. Yet, these solutions have failed to restore the legitimacy of China's criminal justice. This book goes beyond adversarial dogmas and concentrates instead on internal transparency of criminal procedure, presupposing that in a criminal justice system such as that of China internal transparency of criminal procedure is a critical condition for external transparency and crucial to the achievement of legitimacy. The author proposes to nurture impartiality of public prosecutors and to emphasize internal transparency of criminal procedure. Prosecutorial control over the police and judicial checks on the procuratorates should be improved as well and active judicial investigation restored where necessary. External transparency, on the other hand, needs to be enhanced in a more cautious or internalized way.