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Transparency and Legitimacy in Chinese Criminal Procedure: Beyond Adversarial Dogmas
Published by Eleven International Publishing
The author would like to caution Chinese liberal intellectuals, including himself, against their inherent, and perhaps unconscious, sense of superiority over both the officialdom and the populace, regarding political and legal issues. Such sense of superiority will blind one to what really contributes to the well-being of the country and the people
In recent years, the legitimacy of China's criminal justice system has been increasingly challenged by the Chinese populace, in part due to the numerous exposed miscarriages of justice. The Chinese academic mainstream as well as the political and judicial authorities have looked towards the classical Anglo-American model of an adversarial criminal justice system to solve this problem. Reforms were subsequently introduced to add weight to court sessions and to provide external transparency of criminal trials, whilst curtailing the weight of pre-trial proceedings and the case file. Yet, these solutions have failed to restore the legitimacy of China's criminal justice. This book goes beyond adversarial dogmas and concentrates instead on internal transparency of criminal procedure, presupposing that in a criminal justice system such as that of China internal transparency of criminal procedure is a critical condition for external transparency and crucial to the achievement of legitimacy. The author proposes to nurture impartiality of public prosecutors and to emphasise internal transparency of criminal procedure. Prosecutorial control over the police and judicial checks on the procuratorates should be improved as well and active judicial investigation restored where necessary. External transparency, on the other hand, needs to be enhanced in a more cautious or internalized way. Transparency and Legitimacy in Chinese Criminal Procedure is part of the Pompe series; publications that combine legal and social-scientific approaches to the problems of criminal law, written by staff members of the Willem Pompe Institute for Criminal Law and Criminology in Utrecht and by authors who share the Institute's school of thought. Its central theme is the protection and enforcement of fundamental rights in a changing world, focussing on the position of vulnerable groups in relation to the state and on the significance of individual human rights in an international context.
Introduction; Part I China's status quo: Legitimacy in decline; Chapter 1. Basic tenets of China's current criminal justice system; Chapter 2. Transparency of Chinese criminal procedure; Part II Exemplary adversial systems; Chapter 3. Basic tenets of the 'pure' adversarial system; Chapter 4. Basic tenets and internal transparency of the English criminal procedure; Chapter 5. Basic tenets and internal transparency of the Scottish criminal procedure; Chapter 6. Basic tenets and internal transparency of the US criminal procedure; Chapter 7. Comparison between the adversial systems; Part III China revisited and final conclusion; Chapter 8. China's typical pattern of legitimate truth-finding and fair justice; Chapter 9. Final conclusion
Shuai Zhang (1984) obtained an LL.M in Human Rights Law at the China University of Political Science and Law, where he specialized in Civil Rights and Criminal Justice. From October 2012 onwards, Shuai worked as a PhD candidate at the Willem Pompe Institute for Criminal Law and Criminology at the Utrecht University, under the bursary of the China Scholarship Council.
Reviewer: Caleb Simmons
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