In-Depth: Fourth Amendment to the Criminal Procedure Law -What to Expect (AI Translation)
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文｜财新周刊 张一川 单玉晓
By Caixin Weekly's Zhang Yichuan and Shan Yuxiao
素有“小宪法”之称的《刑事诉讼法》，与界定国家权力与公民权利之关系的宪法类似，是规范刑事司法中公安、司法机关权力与犯罪嫌疑人、被告人权利之关系的基本法律。自1979年第五届全国人大二次会议一次性通过包括刑诉法在内的七部法律以来，该法分别在1996年、2012年、2018年历经三次修改。在适应社会发展、司法实践的变化同时，刑诉法的历次修改都有代表现代法治文明与进步的闪光点——1996年，庭审方式改革，引入控辩对抗制诉讼模式，将律师介入刑事诉讼的时间提前到侦查阶段，废除收容审查制度，确立“疑罪从无”等原则；2012年，“尊重和保障人权”写入刑诉法任务条款，确立不得强迫自证其罪原则和非法证据排除规则，增加羁押必要性审查制度，强化一审程序中证人、鉴定人出庭制度；2018年，确立认罪认罚从宽制度等。
Commonly referred to as the "Little Constitution," the Criminal Procedure Law, much like the Constitution which defines the relationship between state power and civilian rights, serves as the fundamental legal framework regulating the relationship between the powers of law enforcement and judicial authorities and the rights of criminal suspects and defendants. Since its initial approval by the second session of the Fifth National People's Congress in 1979, along with six other laws, the Criminal Procedure Law has undergone three significant amendments in 1996, 2012, and 2018. These amendments have not only adapted to the evolution of society and judicial practices but have also consistently embodied the principles of modern legal progress and civilization. In 1996, reforms introduced an adversarial trial system, advanced the lawyer’s involvement in criminal proceedings to the investigation stage, abolished the system of detention for investigation, and established the principle of "presumption of innocence in cases of doubt." In 2012, the task clause of the Criminal Procedure Law was revised to include "respect and protection of human rights," establishing the prohibition against self-incrimination and the rule excluding illegal evidence, enhancing the review system of the necessity of detention, and strengthening the requirement for witnesses and expert witnesses to appear in court during the first instance procedure. By 2018, the system of leniency for those who confess and accept punishment was established, among other reforms.
习近平总书记多次指出，努力让人民群众在每一个司法案件中感受到公平正义。只有让人民群众感受到公平正义，才能在人民群众中树起对法治的信心，才能发挥司法在维护社会公平正义中的功能作用。而人民群众感受到公平正义的途径，无疑是案件办理中展现在人民群众面前的程序正义。如今，以程序正义实现实体正义为宗旨的刑诉法站到了第四次修改的聚光灯下。第十四届全国人大常委会2023年9月公布的五年立法规划，已将刑诉法修改纳入“条件比较成熟、任期内拟提请审议的法律草案”之中。据财新了解，相关部门正就修法事宜征求专业意见。如何在有效打击犯罪的同时减少和避免冤假错案的发生，司法实践中凸现的新问题怎样解决，刑事涉案企业合规等新的改革举措能否写入刑诉法，权利保障的法治思想如何延续并再进一步？财新遍访公、检、法、司各方专家学者，请他们畅谈对此次刑诉法四修的建议与期望。
President Xi Jinping has repeatedly emphasized the importance of ensuring that the public feels a sense of fairness and justice in every judicial case. Achieving this perception is crucial for fostering public confidence in the rule of law and for enabling the judiciary to fulfill its role in upholding social fairness and justice. The public's sense of fair justice is undeniably linked to the procedural justice displayed during case handling. Today, the spotlight is on the fourth amendment of the Criminal Procedure Law, which aims to achieve substantive justice through procedural justice. According to the five-year legislative plan announced by the Standing Committee of the 14th National People's Congress in September 2023, the amendment of the Criminal Procedure Law has been included among the "draft laws that are relatively mature and planned to be submitted for deliberation within the term." Caixin has learned that relevant departments are currently seeking professional opinions on this legislative amendment. How can the effective fight against crime be balanced with the reduction and prevention of wrongful convictions? What solutions can be found for new issues emerging in judicial practice? Can the new reforms, such as compliance for enterprises involved in criminal cases, be incorporated into the Criminal Procedure Law? How can the legal principles of rights protection be further advanced? Caixin has interviewed experts and scholars from the public prosecution, judiciary, and legal fields to discuss their suggestions and expectations for the fourth amendment of the Criminal Procedure Law.
如何“以审判为中心”
How to "Focus on Trials"
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- The Criminal Procedure Law, often called "Little Constitution," was enacted in 1979 and has been amended in 1996, 2012, and 2018 to adapt to societal and judicial developments.
- The fourth amendment aims to improve procedural justice to prevent wrongful convictions and enhance legal protections, including debates over "residential surveillance at a designated location," rights of defense, and corporate crime compliance.
- The article discusses balancing effective crime fighting with justice, procedural fairness, trial-centered reforms, and the roles of prosecutorial discretion and judicial accountability.
The Criminal Procedure Law, known as the "Little Constitution," sets out the regulations governing law enforcement and judicial processes relative to criminal suspects and defendants. It has undergone three significant amendments since its introduction in 1979: in 1996, 2012, and 2018. These amendments have sought to adapt to societal and judicial changes while embodying principles of modern legal progress and civilization [para. 1][para. 2].
In the 1996 reform, key changes included the adoption of an adversarial trial system, earlier involvement of lawyers in criminal proceedings, the abolition of detention for investigation, and the establishment of the principle of "presumption of innocence in cases of doubt." The 2012 amendments introduced the prohibition against self-incrimination and the exclusion of illegal evidence, among other reforms aimed at protecting human rights. By 2018, the leniency system for those who confessed and accepted punishment was established [para. 2].
Currently, attention is on the fourth amendment scheduled according to the legislative plan by the 14th National People’s Congress in September 2023. The amendment's goals include achieving justice through procedural fairness and addressing new issues emerging in judicial practice [para. 3].
Ensuring trial-centered procedures has been a core issue through the amendments and continuous judicial reforms. Experts propose embedding "trial-centered" procedures explicitly within the Criminal Procedure Law. A central focus of these reforms is to make trial proceedings substantive rather than perfunctory, emphasizing the pivotal role of trials in achieving justice [para. 10][para. 11][para. 12].
Some changes introduced in previous amendments have still seen inconsistent implementation. For example, despite requiring witness appearances when their testimony significantly impacts the case, in practice, witnesses rarely appear, weakening the trial process's integrity. Experts advocate for more stringent laws mandating the presence of witnesses and the actual conduct of second-instance trials, broadening the principle of direct oral evidence, and eliminating conditions that prevent witness appearances [para. 16][para. 17][para. 18].
The proposed reforms also consider enhancing trial-centeredness by addressing the higher court’s involvement, which can unduly influence lower court decisions, undermining the trial's impartiality. Legislative changes should ensure that the judiciary independently exercises its power according to the law and free from administrative interference [para. 20][para. 21].
Furthermore, improving litigation rights, such as granting suspects the right to remain silent and enhancing lawyers' roles throughout the legal process, has been suggested. Currently, the legislation does not offer comprehensive protection for defense rights during interrogation, leading to coerced confessions [para. 32][para. 33][para. 34].
The compliance reform for enterprises facing legal charges, primarily focusing on balancing crime punishment with corporate governance and fostering internal compliance systems, is another point of debate. As of now, the Criminal Procedure Law does not codify specific provisions regarding corporate compliance. This reform aims to promote appropriate handling of corporate crime while encouraging enterprises to rectify internally [para. 38][para. 39][para. 40].
The "residential surveillance at a designated location" (RSDL), a custodial measure perceived as severe as detention, is widely debated for reform or abolition. Originally intended for suspects without fixed residences, its application has broadened excessively, raising human rights concerns and legal ambiguities about its proper use [para. 50][para. 51][para. 52].
Lastly, while the high pre-trial detention rate has decreased, alternatives like designated residential surveillance and supervisory detention are often not reflected in the reduction statistics for pre-trial detention. This skews the true representation of detention practices, necessitating further scrutiny and reform [para. 54][para. 55].
The fourth amendment to the Criminal Procedure Law aims to address these and other issues. However, experts emphasize the significance of a detailed and principled approach to ensure fairer and more effective judicial processes, preserving the rights of defendants and preventing wrongful convictions [para. 57][para. 58].
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