The Law and Policy of Police and Prosecutorial Control of Detention in China

Asia-Pacific Journal on Human Rights and the Law 21 (2020) 121-137

Posted: 30 Jun 2020

See all articles by Zhu Kuibin

Zhu Kuibin

Law Department, Southwest Jiaotong University

David M. Siegel

New England Law | Boston

Date Written: June 6, 2020

Abstract

In China, police control of street protests can be accomplished under existing law both directly, through administrative penalties including detention that police can impose on their own authority, and indirectly, through the threat of detention as part of the ordinary criminal process. In the ordinary criminal process Chinese law provides police and prosecutors extensive discretionary authority to detain suspects and defendants for periods of six months or more without judicial review. While the structure of these detention provisions superficially resembles that in Western countries, their operation is wholly subject to internal policies and practices of police and prosecutors. In addition to providing an overview of these provisions, we review here a recent prosecutorial policy change in decision-making on extended detention (dàibǔ, 逮捕) that places the same prosecutor in charge of both this decision and the ultimate presentation of the case. We conclude that this may encourage individual prosecutors to assess their cases more thoroughly and realistically at an earlier stage and may alter the litigation dynamics of detention during the investigative phase, but it does not reduce the threat of detention as a means of deterring protests. At most, the change may provide negotiation opportunities for defense counsel. Until a Chinese criminal case is formally presented to a court, control over detainees remains firmly in the hands of the police and prosecutors.

Keywords: Pre-Charge Detention, Police, Prosecutor, Discretion, Chinese Criminal Procedure

Suggested Citation

Kuibin, Zhu and Siegel, David M., The Law and Policy of Police and Prosecutorial Control of Detention in China (June 6, 2020). Asia-Pacific Journal on Human Rights and the Law 21 (2020) 121-137 , Available at SSRN: https://ssrn.com/abstract=3620574

Zhu Kuibin

Law Department, Southwest Jiaotong University ( email )

No. 111, Sec. North 1, Er-Huan Rd.
Chengdu
Chengdu, Sichuan 610031
China

HOME PAGE: http://userweb.swjtu.edu.cn/Userweb/zhukuibin/english.htm

David M. Siegel (Contact Author)

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States
(617) 422-7270 (Phone)
(617) 422-7453 (Fax)

HOME PAGE: http://www.nesl.edu/clsr/

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