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Judicial Reform In China And Its Impact On Foreign Investment. Part Two, The Criminal Side.

Posted in Legal News

By Steve Dickinson

This is part two of a series on a White Paper on Judicial Reform in China just published by the PRC State Council Information Office. The purpose of the White Paper is to provide a snapshot view of the progress of legal reform in China over the past ten years. This White Paper provides insight into what the top level of the Chinese government believes is important about China’s legal system and its future development. In the first part of our series,, Judicial Reform In China And Its Impact On Foreign Investment, we talked about four civil law issues in the White Paper that are of particular interest to foreign investors in China. In this, part two, we look at the White Paper’s view on Chinese criminal law.  Though China’s criminal laws are obviously less connected to foreign companies doing business in China, we still think a look at the criminal law section of the Paper is important because China’s criminal laws sometimes reach into what Americans and Europeans typically consider to be the civil arena.

Chapter III of the White Paper is entitled Strengthening Human Rights Protection and it primarily focuses on criminal law and procedure. The chapter lists series of major changes in the law that are intended to substantially improve Chinese law in this area.

There are four major areas of improvement:

  •  The rights of a defendant to counsel are clarified and the right of the accused to early representation is established.
  •  The rights of lawyers to access their clients is guaranteed.
  •  The use of the death penalty is severely curtailed.
  •  The system of providing relief to victims is strengthened and a system for protection of witnesses is implemented.

Many foreign observers will be skeptical about whether such reforms will have any real impact in China. Much of this skepticism arises because foreign observers become aware of Chinese criminal cases only in highly charged political settings. This provides a skewed impression of how the system works. The fact is that most criminal cases in China have no political background.

The test for the Chinese efforts to improve the criminal justice system must concentrate on such non-political cases. My law firm is often called on to work with Chinese lawyers representing foreign parties in criminal matters in China and so we have had involvement with China’s criminal justice system. Unlike in the United States, where there is usually a fairly clear line between civil and criminal lawyers, Chinese lawyers are often called on to assist their civil law clients in criminal defense. It is considered part of their legal duties. In seeing what they do on a daily basis and in discussions with them as they work through major cases, it appears to me that Chinese government efforts to improve China’s criminal justice system are sincere.

There has been a dramatic change in procedure over the past 20 years, with much of the major change occurring in the past five years. Based on my personal experience, I think it would be wrong to dismiss recent changes in criminal law as mere window dressing. Sincere efforts at reform are in progress and changes are already being seen on the ground. Of course, the fact that political cases are excluded from these positive changes is a major challenge for the Chinese legal system. This is particularly true as political cases become more common and more public. The Chinese government is currently facing the challenge in many arenas. Whether or not the issue can be resolved will determine a lot about China over the next decade. The leaders of the Chinese government are aware of this, which is of course why the White Paper was published in the first place.