Judicial Reform in China

3. Protecting Lawyers' Rights to Practice

The protection of lawyers' rights to practice in the course of criminal litigation is essential to protecting the lawful rights and interests of the criminal suspect or defendant and ensuring that such cases are dealt with impartially. China is revising related laws to provide a legal guarantee for lawyers to overcome difficulties in meeting with the suspect or defendant, accessing to materials concerning the case and obtaining evidence through investigation.

The Law of the People's Republic of China on Lawyers, amended in 2007, supplemented and stressed lawyers' rights in the course of litigation, particularly criminal litigation. It stipulates that the representation or defense opinions presented in court by a lawyer shall not be subject to legal prosecution so long as they do not compromise national security, maliciously defame others or seriously disrupt court order. These measures have effectively promoted the exercise of the defense function of lawyers. From 2006 to 2011, lawyers throughout the country provided defense for a total of 2,454,222 cases, an increase of 54.16% over the period 2001-2005.

A timely meeting with a client in custody, access to case materials and obtaining evidence through investigation bear directly on the practice of the defense attorney in criminal litigation. The Criminal Procedure Law amended in 2012 specifies that, except for few cases, a defense attorney who holds a license for practicing law, a certificate of his law firm and a letter of attorney or an official legal assistance letter may meet a detained suspect or defendant. Such a meeting is not to be monitored. Starting from the date of the review by the people's procuratorate, a defense attorney may have access to, extract and copy filed materials concerning the case. A defender may apply to the relevant people's procuratorate or people's court for evidence of the innocence of the defendant or the insignificance of the alleged crime collected by the public security organ or the people's procuratorate. It also specifies that if a defender thinks the public security organ, the people's procuratorate, the people's court or their staff hinders him/her from exercising his/her litigation right, he/she has the right to make a petition/accusation to a people's procuratorate at the same level or at the next higher level. The people's procuratorate must review the petition/accusation in a timely fashion. If the petition/accusation is true, the people's procuratorate will notify the relevant department to make corrections to its acts.

4. Restrictions on Application of Custody

In order to safeguard public safety and guarantee the smooth conduct of criminal case investigation, Chinese law specifies both custodial and non-custodial measures to be imposed on a criminal suspect or defendant as well as the strict conditions of their application. To further regulate the application of these compulsory measures and strengthen the protection of civil rights, the Criminal Procedure Law amended in 2012 further improves the compulsory custodial measures.

Refining conditions and approval procedures for arrest. The newly revised Criminal Procedure Law clearly defines social risk criteria of offences, stipulating that when a people's procuratorate reviews and approves an arrest application it may question the suspect. It must question the suspect when it doubts whether the conditions for arrest are met, or the suspect requests to give a statement to the prosecutor face to face, or the investigation may have been in serious violation of the law. If the defense attorney asks to express his opinion, this request should be granted. These provisions help investigators and the investigating authorities get a thorough understanding of the case, and an accurate grasp of the conditions for arrest, thus avoid putting someone in custody by mistake.

Establishing a system of review over the necessity of detention. After a criminal suspect or defendant is arrested, the people's procuratorate should still check the necessity for detention. If the detention is found to be not necessary, the judicial authorities concerned should be advised to release the detainee or alter the compulsory measures.

Improving the procedures for terminating and altering compulsory measures imposed on detained suspects or defendants. The people's court, people's procuratorate or public security organ shall cancel or alter the compulsory measures promptly or release the detained person upon expiration of the statutory period for custody or as soon as they find that the custody measures imposed on a suspect or a defendant are not appropriate. The criminal suspect, defendant, his statutory representative, close relative or defender are entitled to request an alteration of the compulsory measures imposed, and the relevant authority shall respond within three days.

Expanding application of residential surveillance and reducing application of detention. The Criminal Procedure Law revised in 2012 defined residential surveillance as an alternative to detention. It puts under residential surveillance those who meet the conditions for arrest but are seriously ill and unable to take care of themselves, or pregnant women or women currently breastfeeding their own babies, or someone who is the only caregiver of a person who cannot take care of himself/herself.

5. Protecting the Legal Rights and Interests of Detainees

A house of detention is a criminal custody institution for detaining persons who have been arrested and taken into custody in accordance with the law. Protecting detainees' legal rights and interests not only demonstrates the level of civilized and standardized legal enforcement of the house of detention but is also the need for human rights protection.

China attaches great importance to improving the surveillance level of houses of detention, prohibits extorting confessions by torture and overdue custody, improves the conditions for detention and surveillance, improves the living conditions of detainees and protects their lawful rights and interests. A body surface examination will be conducted on a detainee daily within seven days after he/she is sent to a house of detention, and this examination system is also strictly implemented before and after a round of interrogation, as well as before and after a detainee is sent away from or back to a house of detention. The system of one bed for each inmate will be gradually adopted, and medical care for prison inmates will be socialized, so as to ensure that an inmate gets timely treatment in case of illness. The system of investigation and handling of complaints by detainees will be improved, so will the system of detainees' meeting with the police, officials of detention houses or resident procurators upon their requests, so as to receive and investigate complaints and accusations by detainees on time. When the term of detention for a detainee is to expire, the house of detention should submit a written report to the resident procurator's office, which in turn will supervise whether the release of the detainee or alteration of the compulsory measures by the investigation authorities are carried out promptly. From 2008 to 2011, procuratorial organs conducted supervision and examination of houses of detention throughout the country, and corrected 5,473 cases of illegal detention. Efforts are being made to crack down on bullying rogues in prisons, and alarm devices are installed in each cell so that the detainees can call the police on time in case of abuse. The practice is adopted whereby officials talk to detainees upon their release from the house of detention, with follow-up observations and meetings with them for better monitoring over bullying rogues in houses of detention. A responsible system is implemented for chief and assistant policemen in management of prison cells, and those concerned shall be held accountable if there are serious injuries or deaths of detainees inflicted by bullies because of lax management. The system of inviting special supervisors to inspect detention facilities will be established whereby invited special supervisors may come and inspect the performance of duties and law enforcement by the police in the houses of detention during working hours without notification in advance. In 2010, the number of accidents in houses of detention fell by 31.6% compared with 2009. Video meetings with detainees is being introduced in houses of detention across the country to facilitate family visits. The systems of security risk assessment and separate management of detainees have been established, and psychological intervention has been strengthened for detainees. The working principle of "education, persuasion and rehabilitation," which integrates educational measures with management and care for detainees, is upheld in order to help them foster again a positive attitude towards life and healthy lifestyle.

6. Protecting the Legal Rights and Interests of Juvenile Suspects and Offenders

China adopts the measure of combined punishment and protection to help juvenile offenders and does the utmost to rehabilitate them and get them reintegrated into society. China specifies the principle of "education, persuasion and rehabilitation" for juvenile offenders, sticking to the principle of applying primarily educational measures, and taking punitive sanctions as ancillary means. The judicial organs assign officials who have a good knowledge of the physical and psychological characteristics of minors to handle juvenile cases. If a minor defendant has not appointed a defender, the judicial organs should notify a legal assistance agency to assign an attorney to defend him/her. There are strict rules regarding the arrest of a juvenile suspect or defendant. When a people's prosecutor's office reviews and approves an arrest and a people's court decides on the arrest of a minor, the minor shall be questioned and the defense attorney's opinion shall be heeded. Minors held in custody, arrested or are under criminal punishment shall be detained, administered and educated separately from adults. During the interrogation and trial of juvenile criminal cases, the legal representative of the minor should be present. The court may also inform the minor's other adult relatives or representatives of his/her school, work unit, place of residence or juvenile protection organizations of the trial so that they shall be present. If the legal representative or any other relevant person present believes that the legitimate rights and interests of the minor have been infringed upon during the interrogation or trial, he/she may express his/her opinion thereon. The interrogation or court records shall be made available on the spot to the legal representative or other relevant person present to read or be read out to them. When female juvenile suspects are interrogated, a female officer shall be present. For a minor whose offence is not serious, therefore may be sentenced to less than one year in prison but who has shown remorse, the people's procuratorate may decide not to proceed with prosecution, with conditions attached. The judicial organs may take into consideration the family and school background, cause of crime, guardianship and education of a juvenile offender and use them as reference when handling the case. Trial of cases in which the offenders are under the age of 18 shall not be open to the public. If the offender is under 18 at the time of the crime and sentenced to less than five years of imprisonment, the records of the crime shall be sealed. These records shall not be disclosed to any institution or individual unless they are required by judicial authorities for handling cases or by relevant institutions for inquiry in accordance with state regulations. Amendment Eight to the Criminal Law promulgated in 2011 makes clear the conditions under which probation is applicable to a minor. It also stipulates that juvenile offenders do not constitute recidivists. By July 2011, a total of 2,331 juvenile courts had been set up across the country. From 2002 to 2011, thanks to efforts from all sectors of society, the rate of recidivism of China's juveniles remained at 1% to 2%. In recent years, cases of juvenile delinquency have been falling, and the proportion of juvenile offenders among the criminal population is gradually decreasing.

The graphics shows punishments meted out by people's courts on juvenile criminals from 2009 to 2011, according to China's white paper on judicial reform published by the Information Office of the State Council on Oct. 9, 2012. (Xinhua)

(Table 2. Punishments Meted Out by People's Courts on Juvenile Criminals, 2009-2011)

7. Strict Control over and Prudent Application of the Death Penalty

China retains the death penalty, but strictly controls and prudently applies it. China's Criminal Law stipulates that the death penalty shall only be applied to criminals who have committed extremely serious crimes, and has very strict stipulations on its application. Amendment Eight to the Criminal Law promulgated in 2011 eliminated the death penalty for 13 economy-related non-violent offences, accounting for 19.1% of the total death penalty charges. It stipulates that death penalty shall generally not be used for people who are already 75 years old at the time of trial. It also established the system of death penalty with a suspension of execution and put restrictions on reduction of sentences. These are attempts to create conditions in legislation and system to gradually reduce the use of the death penalty.

The death penalty bears directly on the citizen's right to life, so it must be applied in a very prudent manner. Starting in 2007, only the Supreme People's Court has the right to approve death penalty. In China, court trials of all death penalty cases of the second instance are open to the public. The state has improved the death penalty review procedure and strengthened supervision over the death penalty review. When the Supreme People's Court reviews a death sentence, it shall question the defendant, and hear the opinion of the defense attorney if the attorney makes the request. During the review of a death sentence, the Supreme People's Procuratorate may advise the Supreme People's Court of its opinions. The reform of the death penalty review procedure guarantees fairness in handling death penalty cases. Since 2007, when the Supreme People's Court began to exercise the right to review death sentences, the standard for the application of the death penalty has been more uniform and the number of death sentences in China has dropped gradually.

8. Improving Community Correction System for Persons Serving Sentences and Assistance System for Persons Released from Prison

Improving law-enforcement conditions of prisons and results of education and reform. China is striving to build a just, clean, civilized and efficient prison system, realizing its reform objective of "full-sum guarantee, separation of administrative and business functions, separation of revenues and expenditures, and standardized operation" of prisons. The expenses for jail administration, criminal reformation, prisoners' cost of living, and jail facilities are all guaranteed by the government budget. Inmates are required to work in prison and get paid. Every week, they work for five days, receive classroom education for one day and rest for one day. Attempts are made to strengthen moral, cultural, and technical education to inmates and give them vocational training so as to enhance their ability to make a living after being released. Since 2008, a total of 1.26 million inmates have completed literacy and other compulsory education courses while serving their sentences, and over 5,800 people have acquired college diplomas recognized by the state. Over 30,000 skill-training courses of various kinds have so far been conducted by prisons across the country, and over 75% of inmate trainees have received related certificates, made about 14,000 technological innovations and obtained over 500 invention patents.

Carrying out community correction. In recent years, China has committed itself to reforming and improving the punishment system. It launched this effort in 2003 to introduce community correction experiments first, and then spread it across the country in 2009, putting criminals who have been under surveillance, received a suspended sentence, been released on parole or temporarily served a sentence outside prison into community correction organizations. The aim of this is to correct their crime-prone mentality and harmful behavior with the assistance of social forces and help them reintegrate into society. Community correction has been established as a legal system by China's Criminal Law and Criminal Procedure Law. By June 2012, a total of 1.054 million people had received community correction, and 587,000 people had been released from such correction. The recidivism rate of those undergoing community correction is around 0.2%.

Improving the system of assistance to people released from prison. The Chinese government pays great attention to helping solve difficulties encountered by people released from prison in life and employment. Those who are eligible for the minimum subsistence allowance are covered by this system. Others who face economic difficulties but ineligible for the minimum subsistence allowance are given temporary assistance. People released from prison who are starting their own businesses and enterprises providing jobs for them can enjoy tax breaks and reduction of administrative fees. According to available statistics, people who are released from prison and receive social assistance across the country increased 2.7-fold from 2008 to 2011. The recidivism rate of such people remains low.

9. Improving the State Compensation System

China has established a state compensation system to compensate citizens, legal persons or other organizations if their lawful rights and interests are damaged by state organs or their functionaries in the course of enforcing their power in accordance with the law. The State Compensation Law of the People's Republic of China amended in 2010 sets up necessary offices responsible for state compensation, opens up the channels for claiming compensation, expands the compensation scope, specifies the burden of proof, adds compensation for psychological injury, increases the compensation standards, and guarantees the timely payment of compensation. This has further improved the system of administrative compensation, criminal compensation, and non-criminal judicial compensation. In recent years, the standard of state criminal compensation has been rising along with social and economic development. The daily payment for infringement upon a citizen's right to freedom was increased from 17.16 yuan in 1995 to 162.65 yuan in 2012. In 2011, a total of 6,786 cases concerning administrative compensation (first instance), criminal compensation and non-criminal judicial compensation were concluded by people's courts at all levels. Among them, 868 were criminal compensation cases, with the aggregate amount of compensation standing at 30.67 million yuan, representing increases of 16.04% and 42.9% respectively as compared with 2009.

10. Establishment of Assistance System for Crime Victims

In recent years, China has been actively exploring ways to establish an assistance system for crime victims. The government will provide appropriate financial support to crime victims who are not able to get effective and timely compensation, live in poverty and particularly to those violent crime victims who are severely injured, disabled or dead or to their immediate family members. The assistance standard and scope for crime victims shall be set in the light of the local economic and social conditions. The crime victim assistance work should be done in combination with related measures, such as legal assistance, judicial assistance and social security, improving the guarantee system for the rights and interests of crime victims. From 2009 to 2011, the judicial authorities issued assistance funds worth a total of 350 million yuan to 25,996 crime victims, and provided legal assistance in 11,593 cases.

IV. Enhancing Judicial Capabilities

Improving judicial capabilities is an important goal of China's judicial reform. In recent years, China has continuously improved its qualification system for the legal profession, strengthened occupational and ethical training, and improved its funding guarantee, thus effectively improving judicial capabilities and laying a solid foundation for enhancing the public credibility of the judiciary.

Implementing a unified national judicial examination system. China has established and constantly improved its national judicial examination system by incorporating qualification examinations for junior judges, junior prosecutors, lawyers and notaries. The national judicial examination system for access to the legal profession plays an important role in regulating qualifications for legal personnel, improving the overall quality of judicial staff and promoting the professionalism of legal personnel. Since 2002, the national judicial examination has been held annually. Organized and implemented nationwide, it has evolved into a unified system for access to the legal profession. By the end of 2011, nearly 500,000 people had passed the national judicial examination and were qualified to work in the field of law.

Establishing a tiered law-enforcement qualification examination system for the police. To enhance the capabilities of its police officers, China requires all on-the-roster police officers in public security organs to take a qualification examination on law enforcement. Those who fail shall not be entitled to enforce the law. In 2011, the examination was taken by a total of 1.73 million police officers, of whom over 1.69 million passed.

Strengthening occupational training for judicial staff. To keep up with the times and meet the public's increasing demands on the judiciary, China pays increasing attention to improving the occupational training system for judicial staff and elevating their capabilities. The central and provincial-level judicial organs have now established training agencies, formulated training plans, and extended training for all judicial staff, while setting up various specific training systems, including required training for junior officials and officials prior to promotion. The training programs have changed the traditional mode that focused on higher academic degrees and theoretical knowledge, but selected judges, prosecutors and police officers who have rich practical experience and a relatively high level of theoretical knowledge to serve as teachers. This educational training is designed to tackle the key, difficult points and newly emerging conditions and problems, and constantly improve practicability. Over the past five years, China has trained some 1.5 million judges, 750,000 prosecutors and 6 million police officers.

Intensifying professional ethical training for judicial staff. In light of different features of their work, judicial organs have formulated basic work ethics, setting forth specific requirements for judicial staff in such aspects as moral values, conduct in performing duties, discipline, style and etiquette in work, and conduct off duty. In 2011, a campaign for spreading core values was launched among China's judicial staff, taking "loyalty, for the people, justice and incorruptibility" as the common values to be held by them.

Strengthening professional ethics training for lawyers. This training, which highlights "always following the law, observing good faith, working diligently, and ensuring justice," is being carried out to build up the professional ethics of lawyers. Attempts are made to consolidate the self-discipline of the lawyers association, to establish a credibility system for practicing lawyers, and to improve the mechanism for evaluating and supervising the credibility of practicing lawyers and for punishing dishonest practicing lawyers so as to spur lawyers to increase their sense of responsibility in safeguarding the lawful rights and interests of the recipients of their services, to guarantee proper enforcement of the law, and to uphold equity and justice and ultimately to improve the moral standards and credibility of lawyers.

The graphics shows composition of lawyers in China in 2011, according to China's white paper on judicial reform published by the Information Office of the State Council on Oct. 9, 2012.

(Chart 1. Composition of Lawyers in China, 2011)

Expanding space in which lawyers play their role. China has borrowed international experience in establishing the systems of public defenders and corporate lawyers. Since 2002, the country has trial-established the systems to provide legal counsel for government decision-making and major corporate operations, thus improving the structure of the law business that is composed of public defenders, corporate lawyers as well as lawyers in the common sense (including full-time and part-time ones). The Lawyers Law, revised in 2007, improves the organizational form of law firms, allowing individuals to open law firms. Thus, a setup of state-funded, partnership and individually owned law firms has been established. By the end of 2011, China had had 18,200 law firms, an increase of 31.6% compared with 2008. Among them, 13,500 were partnerships, 1,325 state-funded ones and 3,369 individually owned ones. There had been more than 210,000 lawyers, of whom full-time lawyers accounted for 89.6%, part-time ones made up 4.5%, while the rest were corporate lawyers, public defenders, legal-assistance lawyers and military lawyers. In 2011, China's lawyers acted as legal counselors for 392,000 clients, an increase of 24.6% compared with 2008; they handled 2.315 million litigation cases, 625,000 non-litigation cases and 845,000 legal-assistance cases, up by 17.7%, 17% and 54.5% respectively as compared with 2008.

The graphics shows cases undertaken by lawyers from 2008 to 2011, according to China's white paper on judicial reform published by the Information Office of the State Council on Oct. 9, 2012.
(Chart 2. Cases Undertaken by Lawyers from 2008 to 2011)

Reforming the funding guarantee system for judicial organs. China initiated a new round of judicial reform in 2008, clearly proposing that a funding guarantee system for judicial organs will be established, featuring "funding by category, separate management of income and expenditure, and full-sum coverage." The central and provincial governments have increased their funding for judicial organs, ensuring full-sum coverage for the expenses of judicial organs at all levels, resulting in great improvement in the performance capacity of grassroots judicial organs. Litigation fees collected by judicial organs in accordance with the law and revenues from fines and confiscations are all turned over to the national treasury to ensure the separation between income and expenditure as well as between penalty decisions and penalty payments, so as to halt wanton collection of fees and fines that are driven by the hunger for economic gains. The state has also formulated standards for the construction of basic facilities and equipment for judicial organs to improve their working conditions and information and technological levels, providing concrete guarantees for enhancing judicial capabilities.