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China issues guideline to prevent unjust judgments

Q1, Francis Bacon Wrote in his essay of Judicature that, “One foul sentence doth more hurt than many foul examples. For these do but corrupt the stream, the other corrupted the fountain.” What’s the harmfulness of unfair trial? What harm will wrongful convictions bring to innocent people?

A1. Unfair trial will harm the innocent people’s entire life and let the criminal get away from punishment. It will destroy the public confidence of justice and make the legal system doubted by society. It will also hurt people's feelings and damage the interests of the masses.

Q2, There are always big discrepancies between the way works on paper and how it works in practice. The key test of reform will be implementation. Will this guideline work as predicted?

A2. It depends on whether this guideline will be enforced accordingly and accurately in later practices. This guideline is of strong pertinence as it has summarized the miscarriages of justice occurred in recent several years, and it focuses on the special nature of wrong judgment by reiterating a lot of specific procedural regulations. It is a comprehensive provision and may serve as an effective preventive measure if it is carried out properly.

Q3, According to the guideline, the police, prosecutors and judges will now have to bear for the cases they handle lifelong responsibilities. Does it mark a positive and much-needed step toward a fair judicial system? Will it help prevent miscarriages of justice?

A3. Of course it does. If there is no responsibility regulated for the judges, prosecutors or police officers, it will be very dangerous, since the discretion might be abused or vulnerable to external interventions. The regulated responsibilities could help to urge the judicial officers to legally and carefully verify the truth in judicial procedures.

Q4, According to the western tradition, judicial independence is something self-evident. Montesquieu’s doctrine of separation of powers is a well-known social consensus. In China, however, the traditional mode of government is basically against the separation of powers. How is the judicial independence in China?

A4. Judicial independence is the guarantee of judicial justice. Judicature shall be authoritative and dare to ignore any external interventions. Currently, due to political reason, the judicial independence in China is very special, and it is restrained by some restrictions.

Q5, General secretary of the Communist Party of China, Xi Jinping called for efforts to ensure judicial and procuratorial organs exercise the judicial and procuratorial authority independently, fairly and in accordance with the law, while presiding over a group study session of the Political Bureau of the CPC Central Committee earlier this year. Is it showing the new leadership of China’s resolve to improve judicial independence and transparency in China?

A5. Yes, it is showing the leadership’s resolve. It will be great helpful for specific judicial problem if the whole judicial system could be improved.

Q6, Zhou Qiang, President of the Supreme People’s Court, underlined his resolve to restore judicial credibility and uphold the rule of law in his debut speech in July to chief judges from provincial-level courts nationwide. Zhou said that, “Any wrong verdicts, once confirmed, must be correct. This reflects our confidence in the law and is required by justice.” What messages could we get from Zhou Qiang’s words?

A6. Judicial justice is pursuing the goal of “no wrong verdict exists, and no innocent is treated unjustly”. Once a wrong judgment or verdict is made, it must be corrected ASAP to restore judicial credibility.

Q7, Shen Deyong, executive vice president of the Supreme People’s Court, has called for efforts to prevent miscarriages of justice, saying it is even preferable to spare guilty people than to hand down wrongful punishment to the innocent. How to understand Mr Shen’s remarks? How to balance the possibility of letting off a guilty criminal and preventing miscarriages of justice?

A7. Everyone’s guilt shall be determined based on facts and evidences found out through legal procedures. Shen’s saying shows one of the most important principles, that is “in dubio pro reo”. The guideline stresses that for cases in which there are not enough evidences to prove a suspect's guilt beyond reasonable doubts, the court should reserve punishment and pronounce defendants not guilty rather than issue judgments based on insufficient evidence. By putting more efforts on finding relevant evidences and verifying truth in individual cases, the chance of letting off the guilty criminal could be reduced.

Q8, Shen Deyong said in an article published in the newspaper of People’s Court Daily that there are several elements that may lead to an erroneous conviction, including lack of relevant knowledge and capabilities as well as inadequate technological support. However, in many of miscarriage of justice cases, wrongful acts and corrupting, negligence and irresponsible attitudes in judicial agencies, as well as the excessive thirst for a high clearance rate are among the major causes. What are the main reasons for the wrong judgment to exist?

A8. Based on the current situation, the wrongful acts and the thirst for a high clearance rate are the two main factors. Taking court system as an example, it is no secret that it would be hard to successfully file a claim when it comes to the end of a year, because the case could not be closed in the same year, which would affect the clearance rate of the specific court and the assigned judge. Considering clearance rate is also a major criteria of assessment in the police and procuratorate system. There is no wonder even the whole society clearly express hatred to torture behavior of the police department, the scandals just keep happening all the time under such assessment criteria. Everyone in the system is driven by such rule. On the other hand, the opinion of justice procedure is not valued much in the system. The police officers do not get praise or promotion for complying with the investigation protocol. The protocol can only slow the pace of investigation or lower the clearance rate. Under such assessment structure, it is not hard to make the choice. You choose to get the praise bearing the risk that the wrongful acts may be discovered later, because you know that the system would protect you. For so many occasions, we found that some disposed officials were assigned new jobs and the suspension of duties became paid holiday. The problem is always not the individual in the system, but the creed the whole system values and advocates. In our judicial system, we feel that the system values efficiency more than justice. That is why we have so many misjudged cases.

Q9, Last week, Yu Yingsheng who served 17 years of a life sentence for murdering his wife was freed after a Higher People’s Court in Anhui ruled that the “facts about the alleged homicide were unclear and the evidence inadequate”. However, after years behind bars, Yu is in a state of poor health and has left home to recuperate in private. Apart from applying for state compensation, in what way could we compensate the victims of miscarriages of justice? Should the maker of unjust trails also be accountable for compensating the victims?

A9. The maker of unjust trails sure should be accountable for the wrongful victims. If he or she caused the miscarriage of justice due to negligence or corruption, he or she shall be criminally responsible as a government official. But the government shall be the part civilly responsible for the victims. The police officer, prosecutor or judge is conducting the rights authorized by the government, therefore the government shall be liable for their behaviors. The police officer, prosecutor or judge only shall take the responsibilities caused by violating the protocols they as the police officer, prosecutor or judge should comply with.

Q10, After 10 years in jail in central Henan Province, Zhao Zuohai was acquitted after his victim, Zhao Zhenshang, reappeared alive in 2010. Three former police officers allegedly tortured Zhao Zuohai into confessing to a crime that never happened. Theoretically, the three branches of China’s justice system, the courts, the prosecutors and the police should have provided the checks and balances to prevent the wrongful conviction. However, in this case, why the “evidence” was never properly scrutinized? Three years has passed, has the situation improved in China?

A10. The situation has been improved during the past years, as least the society have reached an agreement that extorting an confession by torture is unjust. But on the regulatory level, things have been changed much. We do not have the “recording the whole course of interrogation” regulation enforced in the whole country. Only some cities are enforcing it. Even though it is small, but still is a progress.

Q11, In recent years, the media has increasingly exposed wrong convictions, which helps to promote judicial justice process with the wide attention of society on the one hand, on the other hand, will the “media trial” increase the pressure on the judicial independence?

A11. There is absolutely no doubt the “Media Trial” causes increased pressure on the judicial independence. Sometimes media plays good, but sometimes it does not. We have that “Yao Jiaxin Case” in Xi’an[Case background, Yao Jiaxin, a college student then, stabbed a woman to death after he hit her by a car. At the beginning, Yao Jiaxin was wrongfully described as a Rich Second Generation, and stabbing the poor woman to death was because he feared nothing with his background at his back. It drew enormous attention from the public and aroused huge outcry on the internet. But later on it turned out Yao Jiaxin was from a common family. Yao Jiaxin was sentenced to immediate execution of death penalty.] On the other hand, we have the Zhang Hui & Zhang Shuping Case, who were wrongfully accused of raping and killing a seventeen year old girl and after serving 10 years behind the bars, Zhang Hui & Zhang Shuping were released after years of complaining of their families, and of course under the pressure of the public attention drawn by the media. Transparency needs media, but we also have the fear that the court will be kidnapped by the public opinion. The media shall be well regulated in the condition of not being deprived of the freedom granted to the press.

Q12, Building a western-style modern judicial system in China, which began in the late Qing Dynasty has a history of only about 100 years while the China’s history of law and social control goes back at least 2000 years. This historical comparison indicates that modern court system is only a newborn baby in China and the construction of the new system is a very difficult and arduous task. What are the key issues in the reform of the judicial system in China? What are the difficulties facing the Chinese court system in the process of reform?

A12. Experiences or techniques of ruling the society by modern law may be lack, but we shall always remember, justice is the most important value in legislation, enforcing the laws and judicial procedure. It is not untrue that we have evil regulations. Cities have the power to make the price for compensation of demolition, instead of letting it decided by the market. Huge profits are occupied by the government. People cannot afford to buy an apartment in the same area with the compensation or are given bum apartments different from the apartments developed by the same real-estate developer. When the city was passing the regulations or orders, interests of the government is the only concern. That is just unjust, which we should abandon in the reform.


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