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Monday, April 19, 2010

Myths and truths about Chinese criminal law

Here's a very interesting case that seems to reveal a lot about the Chinese criminal process. In particular, it sheds some light on the accuracy of various common perceptions about that process.

In this case, Cao Tian (an alias) was on his way to work (or perhaps already there). His colleague Feng Xiaoqiang suddenly discovered that his motor-assisted bicycle was being stolen. Cao and another colleague, Feng Minggao, rushed over, hopped on a motorcycle together, and gave chase. As they came alongside the thief, Cao took off his belt and swung it at him. The thief turned his body to avoid the blow, lost his balance, crashed, and died of a head injury.

Cao was prosecuted on a charge of intentional injury and convicted on a charge of negligent homicide. (Sorry, that's what the news report says; I'm just repeating it here.) He was sentenced to three years in prison, suspended for three years (i.e., he probably won't actually spend any time in prison).

Apparently the sentence has generated a great deal of controversy. In a Sohu poll (quite unscientific, of course), 97% of respondents thought Cao's actions were justified and constituted "seeing what is right and acting bravely" (见义勇为). This is the term usually applied to a third party who acts in defense of a crime victim. It's the kind of thing people think should be encouraged. The other 3% thought that one had to pay attention to the methods used when it was a question of defense of property, and that life-threatening means should not be used. One internet commenter said, "Catching thieves is the police's business; next time mind your own business." But another said, "After this, who is going to dare help crime victims?"

There certainly seem to be many reports of people who get into trouble because they tried to help someone who was injured either in an accident or because of a crime (sorry I don't have the links handy), and people have asked this question often. Indeed, sometimes the problems suffered by good samaritans are proferred as the reason why sometimes injured people are ignored by passers-by. (There have been some pretty egregious cases recently.)

But I digress. The point of this post is to suggest how this case confirms or disconfirms certain stereotypes about Chinese law.

Stereotype #1: Chinese law doesn't value human life. Yes and no. It would be easy to get this impression, given China's high number of executions and the extraordinarily casual procedures that were behind some famous convictions. A number of scandalous cases, including one in which the alleged murder victim showed up alive, recently led to a recentralization of all death penalty approvals in the Supreme People's Court, but there are still some pretty questionable cases out there. (Of course, China is not unique in this. China is given a good run for its money by Texas, where an experienced death-penalty defense lawyer once told me all error "is either harmless or waived".) But this case is not unusual in that death, even though accidental and even though of a clearly guilty criminal for whom people probably don't have a lot of sympathy, has serious consequences for everyone involved. I've seen other cases where the person punished was even less at fault than here. The point is, if someone dies, someone must be blamed. That seems to be a pretty firm rule - even the Deng Yujiao case is not an exception, since she was actually convicted of intentional injury, although, like Cao, not required to actually serve any time.

Stereotype #2: The Chinese state doesn't like to delegate. Confirmed. You can think of the doctrines of self-defense and defense of third parties (见义勇为) as something like the state delegating, in special situations, its monopoly on the use of force. If you use force, you had better be pretty darn sure you use exactly the right amount. There's not a lot of tolerance for getting it wrong.

Actually, Stereotype #2 partly explains the mixed assessment of Stereotype #1. It explains why #1 can be true when the state is doing the killing, but false when someone else is doing the killing.

Stereotype #3: Symbolism often trumps substance. Partly confirmed. Again, I wouldn't want to give the impression that only Chinese law worries about symbolism. Just think about all the rituals of a full criminal trial in many other countries. I just want to point out here that the defendant Cao, like Deng, did not actually have to spend any time in jail. [4/20 UPDATE: A reader suggests that I clarify that Cao, like Deng, may have spent time in pre-trial detention, which is certainly no fun.] Of course, having a criminal record is not a great thing, either. I'm not sure what the actual impact on Cao's life will be. Presumably he will keep his job, since most people (if the Sohu poll is any indication) think he did the right thing.

Stereotype #4: Chinese courts bend to the winds of popular pressure. Hard to say. Academics are always trying to identify conventional wisdom so that they can proudly proclaim that it's wrong. The conventional wisdom about Chinese courts keeps changing so fast, though, that it's hard to keep track. At first the conventional wisdom was that Chinese courts were docile tools of a dictatorial state, and dictatorships can do what they want. This was challenged by the idea that China's increasingly open media (print and web-based) made popular opinion more important than before, and that in many cases courts had to do X or Y because popular opinion demanded it. (A good example: the eventual execution of Shenyang gang leader Liu Yong after public uproar about his first sentence.) Yet here the authorities still insisted on trying and convicting the defendant despite overwhelming public support for him. On the other hand, of course, he won't serve any more time. It's hard to believe that the people doing the prosecution really thought Cao was a bad guy. I think it's more the force of the rule that when a life is lost, responsibility must be assigned, even if only formally. This suggests in turn that when the authorities really want to do something, they can do it, and public opinion be damned.

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In English and in other Western languages there is only one word for “life”. Life is perceived as an unitarian entity.

The idea that one can make a distinction between a life that is worth of protection and a life that can be destroyed or killed at will may seem aberrant. But, this distinction existed in the Classical World/Ancient Greece. Some hold that it persists in Western legal systems, where it is made through legal mechanisms. In some cases derogations are made to the RoL and to certain rights. Once legal norms protecting personal freedom or life are derogated to, life becomes worthless and can be killed.


The question is if we can find this or a similar mechanism in China.

According to Stereotype #1 – the answer would be yes.


In a work which is in press now, I’ve tried to prove how the answer is – as you say – “yes and no”. Those cases that make it to the criminal process prove how the perception that PRC law does not value human life is not accurate. But, if we examine those areas of the criminal justice system outside of the reach of criminal legislation, then the picture is bleaker. A systematic derogation from rights has become a normal, an ordinary way of dealing with certain problems (addictions, corruption, public order, threats to stability etc.) In my opinion derogation from rights is a constitutive element of the legal system. To me, stereotype #1 is problematic in that it does not make this much needed distinction between two different components of the criminal justice system – an area where people can and indeed do enjoy their rights - and an area where exceptions have become the norm. Just some late evening thoughts.

Posted by: F. Sapio | Apr 20, 2010 1:41:43 PM

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