China’s legal system “In death avoid hell, in life avoid the law courts.” This is a famous Chinese saying. From this quote, one might conclude that the litigation process in China is used as a last resort. We, the C. C. N. Y.
Black Alumni Association, were afforded a brief opportunity to be exposed to China’s legal system. The Chinese culture, both past and present, does not hold the legal profession in high regard. Their system is quite different from the United States. In fact there are only a few thousand attorneys in China (less than 10, 000 to serve a population of 4 times the U.
S. ), while in the U. S. there are millions of attorneys (about 250 per 100, 000).
The Chinese are taught early in life, through Confucius’ teachings of the “ideal family”, the importance of family relationships and that these relationships are the foundation of moral behavior. According to Confucius, one must observe “filial duty” – that is, “behave in such way that your father and mother have no anxiety about you, except concerning your health.” These teachings are also reinforced by society at large.
In essence an informal network is formed via teachers, employers, neighbors, community members and if all else fails, government. If a youth should deviate from normal behavior, (even in the slightest) the “network” would immediately intervene to counsel the youth and take responsibility for his or her behavior. In the U. S.
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, intervention would not be taken by society until the youth demonstrates significant deviant behavior or possibly not until a crime has been committed. At this point it will be more difficult to help individual change his / her behavior (not to mention the harm done to society).
It is important to take note of how crucial the role of the “network” in China. Through peer pressure and counseling, the deviant is often redirected into conforming to the proper acceptable behavior If the deviancy continues, and the network fails, additional reinforcement is given. The network continues to grow. Distant relatives and prominent members of the community may all get involved in the counseling process.
China is a country where there is little privacy! It is difficult for a young person to slip further into trouble and most youths never go as far as breaking the law. Therefore, the crime courts do not have the crowded agenda as of those in the U. S. We were able to visit the “People’s High Court” in Shanghai. Our tour was escorted by Judge Lu Guo giang.
We visited several court rooms to become familiar with their set up and to take some photographs. The court rooms were spacious, simple in structure but quite functional. There were few, if any, objects of decoration on the walls. At the front of each court room were seats for the panel of judges and the court clerk.
To the left of the judges’ panel were the seats for the defense and to the right was the prosecution area. In the middle of the room was a wooden stall which was the place for the defendant to stand (no seat).
We immediately realized the difference in the seating arrangements from those in the U. S. The defendant would not have any contact with his / her attorney, only through formal questioning. The halls in The “High People’s Court” were spacious and simple in architecture with huge marble walls.
These areas were not crowded (phenomenal! ).
In fact, we saw very few people about the area, unlike the busy, crowded areas of the U. S. courts The training of a judge is rigorous in China. One must attend law school for 4 years and then serve as a court clerk for at least 3 years. There is an additional 3 years of post law school training.
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Most attorneys are public defenders who go on to become judges, however, a small percentage do engage in public practice. The direct translation for attorney from Chinese to English is “litigation trickster”, which again demonstrates that attorneys do not seem to be held in high esteem. While the legal system in China is that of socialist law, the court system is inquisitorial. There is no trial by jury, The judges are the decision making entity. Their holdings are based on evidence presented in court by both the prosecution and the defense. In China, if a case comes to court it is because there is sufficient evidence to convict the defendant.
Circumstantial evidence is rarely considered. The court’s function at this point is only to establish the degree of guilt. During a typical trial, present in the courtroom are; 3 judges – 1 chief justice and 2 assistants, 1 clerk, 2 prosecutors, an attorney (s) for the defense and the defendant (s).
Most cases are open to the public. In the court system there are a significant number of women functioning both as prosecutors and judges. Judge Lu informed us that this was intentional.
The trial begins by the clerk declaring the principles for the court (calling the court to order).
The charges are read to the defendant by the chief justice after which the prosecution presents it’s facts. During this presentation, the judges may question the defendant concerning the case. It is important to note that the judges address the accused directly throughout the entire trial proceedings.
This procedure is significantly different from the U. S. courts where the judges only address the defendant at the end of the trial. When the prosecution has ended it’s presentation, the defense is given time to present it’s case. Again, the judges may question the defendant and this time the prosecution is also allowed to ask pertinent questions. At the end of the trial the judges deliberate and hand down their verdict.
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As in the U. S. , there is a division between the criminal and civil courts. The civil court system hears disputes concerning inheritance, reputation-defamation, economic and divorce cases. The courts have 3 levels; low, intermediate and high. Each province has a division of at least one of the three levels.
Shanghai has 3 smaller (or lower courts), 2 intermediate and 1 high level court. There is a court of appeals. However. a case can only be heard on appeal once. As part of our visit to the “High People’s Court”, we were allowed to view an actual case. A young man was being accused of murdering his grandmother for money.
The charges were murder and theft. The prosecution, through their investigation, found the murder weapon and the bank notes (which the defendant tried to cash) at his home. The defendant himself admitted to committing the crime and his defense was that his wife and child were very ill and that he needed the money desperately. Remorsefully, he claimed that he wanted to go to his grandmother and ask for the money, but instead decided to steal it for fear of being rejected. His grandmother caught him in the act of stealing the bank notes and a struggle ensued. In a moment of anger, the defendant stabbed and then strangled her to death.
The court found him guilty of murder and theft. Judge Lu. our escort, outlined the categories of murder that the court would consider as a conviction; first: murder of “negligence”, second: murder with “intent”, and last: “unintentional” murder. The young man was found guilty of murder with “intent”, based on the evidence presented. As we left the courtroom, Judge Lu informed us that there could be only one of three types of sentencing in such a case. The options would be; life imprisonment, a suspended sentence (not really an option in this case because of the defendant’s prior record), or, the most severe, capital punishment.
We did not find out the final sentencing of the defendant but we all seemed to have a feeling the court would not be lenient. China is a country that is geographically large and is densely populated. However, it is not a litigious society. Instead it relies on it’s closed social structure and it’s loyalty to family values to maintain order.
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Self conduct is more relevant in achieving compliance with the law rather than the authoritative policeman ship of the U. S… Although there are obvious structural and societal differences, I came away with an acute appreciation of Chinese society, it’s law structures and it’s unique position in world affairs.
