Intellectual Property Rights: Open Access

Abstract

China's Long March towards the Adversarial System: Establishment and Development

Na Jiang

In China’s current judicial reform and human rights progress, the growth, development and institutionalization of an adversarial approach to criminal justice in China have paved the way for a changing legal culture since 1996. But the use of non-adversarial controls that do not depend on the accused long still underpins the Chinese legal tradition and remains in some aspects of criminal systems. This paper examines the currently effective legislation on China’s undergoing reform on criminal law and criminal justice, particularly on non-adversarial controls retained in its road towards the adversarial system, in order to explore into the major obstacles of, and certain potential for, its transition.
Whilst the use of non-adversarial controls that do not depend on the accused long underpinned the Chinese legal tradition and still remains in some aspects of criminal systems, the growth, development and institutionalization of an adversarial approach to criminal justice in China have paved the way for a changing legal culture since 1996. Following the adoption of first revised Criminal Procedure Law of PRC in 1996 (1996 CPL), the theory and practice of this adversarial mode has allowed a broadening of attitudes towards criminal litigation, so as to redress the imbalance between adversarial challenges by the accused and supervision by either the court or procuratorate. In order to strengthen the accused’s right to defence and form a solid structure of equilateral triangle among the three parties, the latest amendment to 1996 CPL effective from 2013, has put into practice more adversarial processes with defense’s cross-examination on prosecution witnesses rather than inquisitorial approaches by court or procuratorate. This development evidences an institutional shift from such non-adversarial controls that depend on the court or procuratorate, towards the greater inclusion of adversarial elements in criminal procedures to prevent miscarriages of justice, concerning which the retained controls can be demonstrated in law as follows.