Criminal reconciliation in China: consequentialism in history, legislation, and practice
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Criminal reconciliation in China: consequentialism in history, legislation, and practice Wei Pei
© China-EU School of Law 2014
Abstract Criminal reconciliation has become a watchword in the Chinese criminal justice system since the beginning of the twenty-first century. Similar devices were marginalized during the 1980s and 1990s when a strong effort towards formalization and adjudication overwhelmed the criminal justice field. In the last 10 years there has been a shift away from these practices in favour of less formal, more flexible mechanisms in criminal law and in practice. Underlying this shift is a type of consequentialist rationale that emphasizes the overall outcome rather than the legality of the proceedings. This rationale is deeply rooted in the authoritarian state’s reaction to the rampant social instabilities which challenge both its legitimacy and its control over society. Criminal reconciliation is an epitome of the relay race of consequentialism, in which criminal justice authorities are pressurized to act pragmatically, even to the extent of risking their own legitimacy. Keywords Criminal reconciliation · Social stability · Political pressure · Consequentialism · Chinese criminal justice
1 Introduction Mediation and similar devices have always been recognised as a key hallmark of the Chinese legal system. Despite the fact that research has been conducted on such dispute resolution devices, very few of them are particularly concerned with its
W. Pei (&) Erasmus Law School, Erasmus University Rotterdam, Rotterdam, The Netherlands e-mail: [email protected]
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W. Pei
applicability in criminal justice.1 In the past decade this situation has changed as a result of the rise of ‘criminal reconciliation’. Criminal reconciliation refers to the situation within criminal proceedings where offenders and victims have their civil disputes partly or completely settled; based on this, certain forms of lenient dispositions for offenders will follow. Criminal reconciliation had its genesis at the dawn of the new century at a local level, and gradually became manifest on a national scale. In 2012, this trend peaked when the newly revised criminal procedure law (2012 CPL) absorbed criminal reconciliation into public prosecution proceedings. Criminal reconciliation favours less formal and more flexible practices, and represents a shift away from efforts made in the 1980s and 1990s towards formalization and adjudication in the criminal justice field. Such a shift has created confusion and this article aims to uncover the reasons, both in law and in practice, for the rise of criminal reconciliation. This article will also assess any implications to the role of the judicial system and function of criminal procedure. In order to conduct the necessary assessments, the article draws upon legislative sources, academic literature, and propagandist materials, and is supplemented by interviews conducted in 2012 with judges and prosecutors in nine criminal justice institutions, located across three cities. The analysis comp
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