The Structure of the Chinese Criminal Justice System: A Comparative Perspective

88 Pages Posted: 6 Sep 2008

See all articles by Dolores A. Donovan

Dolores A. Donovan

University of San Francisco - School of Law

Date Written: September 4, 2008

Abstract

Though in many ways rooted in indigenous Chinese custom and political tradition, the Chinese legal system nevertheless bears the imprint of Western influence. This article uses the Chinese criminal justice system as the medium for exploring the foreign legal traditions -- particularly the civil law tradition of continental Europe and the socialist law tradition of the Soviet Union -- that have influenced the modern Chinese system of law. This Article examines six elements of the structure of the formal criminal justice system, placing special emphasis on those aspects of that system that are derived from, or analogous to, features of European or Soviet civil law. The six elements are: (1) the Organic Law of the People's Courts; (2) the Organic Law of the People's Procuracy; (3) the Code of the Criminal Law; (4) the Code of Criminal Procedure; (5) the Constitution of 1982; and (6) the opinions of the Supreme People's Court. [The article also includes English translations of these six elements.]

The article argues that the major legacy bequeathed to the Chinese by the European and Soviet legal traditions is a judiciary which is neither expected, nor able, to exert significant checks or restraints on the arbitrary exercise of state power by the executive and legislative branches of government. The article also asserts that the structure of the formal criminal justice system contains many distinctively Chinese features the thrust of which is to inject flexibility into the criminal justice system so as to allow for the exercise of administrative discretion founded in and guided by political ideology.

Keywords: comparative Law, Chinese law, People's Republic of China, criminal law, criminal justice, criminal procedure

Suggested Citation

Donovan, Dolores A., The Structure of the Chinese Criminal Justice System: A Comparative Perspective (September 4, 2008). University of San Francisco Law Review, Vol. 21, No. 2/3, 1987, Available at SSRN: https://ssrn.com/abstract=1263623

Dolores A. Donovan (Contact Author)

University of San Francisco - School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States

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