CHINA LAW 2 0 1 2 / 0 2
Frontiers of Legislation
The Greatest Improvement of Criminal Procedural Law
— —
“R espect and protection of human rights”
By Chen Guangzhong (the Professor granted tenure from China University of Political Science and Law)
The world is universally recognized that improvements
of criminal procedural law are passed by National People’s
Congress and supported by the majority on March 14, 2012.
T he g re a te s t im provem ent of crim inal procedural law is
“respect and protection of human rights”.
According to The Blackwell Encyclopedia of Political
T h o u g h t, h u m a n rig h ts a r e d e fin e d a s “in a lie n a b le
fundam ental rights to which a person is inherently entitled
simply because she or he is a human being”. The Universal
Declaration of Human Rights passed by UN on December 10,
1984, firstly points out that inherent dignity and universal rights
shared by all human beings are common aims that all people
and countries strive to realize. Human rights are thought as
values and political ethics universally recognized by the whole
world right now. W hether human rights are respected and
safeguarded has becom e a criterion to evaluate dem ocracy
and m onocracy in a country. The principle of “the country
respecting and protecting human rights”, which appeared in
the constitution in 2004, has been an important principle in
C hinese constitution. This principle represents an essential
demand of democracy in socialism in our country.
In criminal proceedings, special d ep a rtm en ts in our
country usually investigate or punish crim es beyond their
authorities deliberately or undeliberately, even with ab u se
of power. F urtherm ore, p a rtie s in crim inal p ro ceed in g s,
su spects or the accused in particular, are infringed. Judicial
justice is seriously dam aged. Therefore, criminal procedural
law, commonly called as “little constitution”, should highlight
protection of hum an rights specially. Protection of human
rights in criminal proceedings can be explained from three
p erspectives. Firstly, rights of su sp e cts, the ac cu sed and
o ffen d ers should be g u a ra n te e d . Secondly, rights of all
p arties in proceedings, specially rights of victims, should
be safeguarded. Thirdly, rights of punishing crim es so a s to
protect all people should not be infringed. In particular, the
most im portance is protection of prosecutors’ rights. There
is no doubt that an em phasis on the importance of protecting
hum an rights in criminal procedural law d o e s not m ean
ignoring values and purposes to punish crimes. Punishment of
crimes and protection of human rights are two different value
orientations. They are opposites of a contradiction. They are
distinctive but inter-connected, even mutually transformed. A
unity of legal effects and social effects can be well realized
provided that they are in balance. Moreover, th e b alance
benefits to keep the society stable and the country peaceful.
China traditionally em phasized cracking down on crimes
but neglected to protect hum an rights. The article o ne of
p u rp o ses of legislation in criminal procedural law of 1979
and of 1996 w rites “punishm ent of crim es and protection
of people”. This statem en t highlights to protect people not
to be infringed by offenders by cracking down crim es. It is
not involved in su sp e cts, the ac cu sed and offenders who
are prosecuted from criminal liability and w hose legal rights
should be guaranteed too. It is evidently lacking in “protection
of human rights”. This legislative thought that is to em phasize
cracking down crimes but to neglect to protect human rights
also is show n in specific sy stem s and in construction of
procedures. The thought leads to judicial injustice in practices,
which is negative. As a result, the new Criminal Procedural
Law, led by holding punishm ent of crim es and protection of
human rights both, strongly highlights to protect human rights.
The requirem ents in article two add “respect and protection
of human rights”. It is the first time to regulate “respect and
protection of human rights’ in branch laws, which is largely
innovative and significantly influential. Firstly, “resp ect and
protection of human rights” taken as an important requirement
in article two of criminal procedural law is able to direct basic
principles, sy stem s and p ro ced u res in th e whole criminal
procedural law. Secondly, it m ust make other branch laws
highlight “respect and protection of human rights”, which is an
important principle in the constitution, when th e se laws are
constituted or am ended.
Guided by the thought of highlighting protection of human
rights, the new Criminal Procedural Law further improves
m easu res to protect rights of su sp e cts and the accu sed in
the d efense system , the evidence system , the com pulsory
system, investigations, judges and so on. The main points are
shown in the following.
I. Reforming and improving th e d efe n se system and
expanding the range of legal aid. The defense system is the
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core to protect rights of suspects and the accused in criminal
proceedings. A big su ccess is achieved in revising this area.
Firstly, the status of lawyers a s defenders in investigations
is confirm ed. A ccording to the new Criminal P ro ced u ral
Law, su sp e c ts have rights to entrust defenders when they
are questioned by investigation organs at the first time or
since th e se organs take coercive m easures. Therefore, the
em barrassm ent in which the status of defenders is fuzzy in
investigations ends. Furtherm ore, the prem ise of carrying
out rights of d efen d ers in investigations is also provided.
Secondly, the procedure of meeting lawyers is improved. The
detention house should arrange the meeting on time between
d efe n d ers who are qualified and su sp e c ts , the a c cu sed .
Moreover, the meetings should not be monitored. However,
meetings involved in c a se s of endangering national security,
the terrorism and serio u s bribery should be approved by
investigation organs. Thirdly, the right of defenders’ reading
is expanded. Defenders are able to consult, to copy and to
write down all m aterials involved in c a se s since the day of
investigation and prosecution. Fourthly, the rule of prosecuting
for criminal liability has been revised. Defenders who commit
crim es should be investigated by o rg an s which a re not
involved in ca se s where defenders are entrusted. Therefore,
professional security of defenders is enhanced. Fifthly, the
right of confidentiality involved in c a se s’ information between
d efenders and trustors is confirmed. Sixthly, the range of
legal aid is largely expanded. First of all, provided that the
a c c u s e d do not e n tru st d e fe n d e rs b e c a u s e of financial
problem s or other reasons, they should be provided legal
aid s by applications approved. In th e am en d e d version,
“can” in the previous versions has been revised as “should”.
Applicants who are qualified are able to accept legal aids from
the country. Furthermore, two c a se s where defenders should
be appointed are supplem ented. The one refers to the ca se
where psychotics have som e recognization and control their
behaviors. The other one refers to the c a se w here parties
might be se n te n c e d to life im prisonm ent. In addition, an
application of legal aid is expanded from the stage of judgment
to the stage of investigation and examination so that kinds of
ca se to adopt legal aid and the range of application both have
been expanded.
II. The revised version stipulates that su sp e cts or the
accu sed should not be forced to admit their crim es, which
confirms the rule of removing illegal proofs. The new Criminal
Procedural Law evidently stipulates that any one should not
be forced to prove himself or herself guilt and the new law also
confirm the rule of removing illegal proofs, in order to further
prevent confession by tortures and proofs illegally obtained, to
guarantee legal rights of parties in proceedings and to show
procedural justice. Exclusion of illegal evidences consists of
two types. The one refers to exclusion of verbal evidences
illegally obtained. In details, statem ents of su sp ects and the
accu sed are gathered by illegal ways, such a s make them
confess by tortures, and words of w itnesses and statem ents
of victims are gathered by illegal m ethods, such a s turning
to violence, threatening and so on. T h ese m ethods should
be prevented. The other one refers to exclusion of physical
ev idences illegally obtained. That is to say, procedures to
g a th e r m aterial ev id e n c e s and d o cu m en tary ev id en c es,
which are not in line with rules so that judicial justice might be
seriously influenced, should be supplemented and am ended
or added reasonable explanations. T hese illegal evidences
should be removed provided that no supplem entation and
am endm ent or no reaso n ab le explanation is provided. In
addition, the new version h as estab lish ed a procedure of
removing illegal evidences, which is operational.
III. Relatives are not noticed after coercive m easures are
carried out, which is strictly constrained. According to previous
versions of Criminal Procedural Laws, relatives of susp ects
and the accused are able not to be noticed if the investigation
is blocked after they are detained and arrested in all cases.
F urtherm ore, th e previous versio n s also do not stipulate
w hether relatives should be noticed provided that appointed
h o u se s w here relatives live in are monitored. With regard
to problem s above, the new Criminal Procedural Law has
improved. Relatives are not noticed after coercive m easures
have been taken, which is strictly restricted. Relatives should
be noticed within 24 hours when suspects or the accused are
arrested or the living is monitored in appointed houses. At
the sam e time, c a se s where relatives are not notices in order
not to block investigations after suspects or the accused are
detained are constrained to be those involved in endangering
national security and terrorism. This improvement is a big
advance under the practical situation.
IV. T h e p r o c e d u r e of q u e s tio n in g s u s p e c t s in
investigations is improved. At the sta g e of investigations,
su sp e cts are easily forced to confess by tortures, so their
rights are infringed. Therefore, the new Criminal Procedural
Law further regulates the procedure of questioning suspects
at the sta g e of investigations. S u sp ec ts should be sen t to
detention h o u ses within 24 hours since they are detained.
Detectives are able to record sounds or pictures of the whole
questioning p ro ce ss while su s p e c ts are questioned. With
regard to c a se s involved in life sentence, death sentence or
other serious crimes, sounds or pictures of the questioning
pro cess should be recorded. Furtherm ore, records should
be th e w hole p ro c e ss of questioning and m aintain their
com pleteness.
V. The right of the accused to be judged justly further
is safeg u ard ed . The new Criminal Procedural Law mainly
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CHINA LAW 2 0 1 2 / 0 2
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Frontiers of Legislation
reform s and im proves th e pro ceed in g of judgm en t from
th ree a re a s a s follows. Firstly, th e system of w itn e s s e s ’
giving evidences is strengthened. O nce two parties disagree
on ev id en ces provided by w itn e sse s at the first in stan ce
and further w itn esses’ statem ents have a critical effect on
conviction and sentence, w itnesses should be summoned to
give evidences if people’s courts consider it necessary. The
people’s court could force w itnesses to be present in courts,
even adm onish or detain them if it is necessary . The new
version also stipulates that public security organs or judicial
organs are responsible to protect w itnesses and their relatives
not to be hurt. N ecessary fees used for w itnesses’ appearing
in courts also should be provided a subsidy. Secondly, the
proceeding at the second instance is improved. Times of re­
judgments are limited and further the principle of guaranteeing
th e p ro sec u tio n w ithout an in c re a s e of p en a lty ca n be
effectively carried out. C a ses are rem anded for a new trial
b ecau se of fuzzy facts or insufficient evidences in previous
ju dges, or w hen the ac cu sed appeal for higher co u rts or
people’s procuratorate lodges a protest. P eople’s courts at
the second instance should legally judge these ca se s and not
return the ca se to previous people’s courts to be re-judged. In
the mean time, previous people’s courts should not aggravate
the penalty of the accused in c a se s that peoples’ courts at
the second instance remand to be re-judged by the previous
people’s courts except for an existence of new evidences or
except that people’s procuratorate supplements a prosecution,
in order to be in line with the principle of the prosecution
without an increase of penalty in a new trial rem anded by
people’s courts. Thirdly, the proceeding of death sentence to
be re-examined is reformed. This proceeding is transformed
from in tern al ex a m in atio n by ad m in istra tiv e o rg a n s to
p ro ceed in g s within limits. According to th e new Criminal
Procedural Law, the accused should be questioned when the
suprem e people’s court re-examines ca se s involved in death
sentence. The courts should listen to defenders’ suggestions
if they raise claims.
VI.The function of legal supervision of procuratorial
o rg a n s is s tre n g th e n e d , so a s to p ro tect hum an rights.
Procuratorial organs are identified as departm ents to monitor
the execution of laws by the constitution. Procuratorial organs
are responsible to legally su p erv ise the whole p ro ce ss of
criminal proceedings. In the new Criminal Procedural Law,
legal supervision of procuratorial o rg an s is developed, in
order to protect human rights. The new version supplements a
series of legal supervision rights, such as legally supervising
defenders or legal agents to perform their duties legally, who
should not be interrupted by public security organs, judicial
organs and their personnel. They should legally supervise the
proceeding that the living in appointed houses is monitored,
that detectives gather evidences illegally, that ca se s involved
in death sentence are re-examined and so on.
T he new crim inal p ro ce d u ra l law u n d o u b ted ly h a s
som e defects and problems of protecting human rights. For
example, the principle not to force su spects to prove himself
or herself guilt is confirmed on the one hand. On the other
hand, the principle that su sp e cts should “answ er questions
honestly” when they are questioned remains. T hese problems
a re ex p ected to be su p p lem en ted and solved during the
development of dem ocracy and monocracy in our country in
the future.
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