The System And Application Of Criminal Coercive Measures

In the past 10 years, particularly the past 5 years, amendments to China’s criminal procedure law have been put on the legislative agenda. Increasing attentions have been paid to non-custodial coercive measures as an irreplaceable means to prevent violations of human rights, such as extended custody and torture, an issue that is worth academic and social concern at both levels of international and domestic laws. Studies of criminal coercive measures become more active in the wake of the amendments to the criminal procedure law, and rising public consciousness of human rights and legal rights. The concern of legislative organs is rather evident in The Amendments to the Criminal Procedure Law of the People’s Republic of China (Draft), issued by the Commission of Legislative Affairs under the Standing committee of the National People’s Congress on 30 August 2011.However, the effects of non-custodial coercive measures seem unsatisfactory in practice, mainly because of their low application in enforcement. A lot of theoretic and empirical studies have been conducted. Researchers have generally attributed the phenomenon to two major reasons. On the one hand, from the conceptual perspective, legislations of non-custodial coercive measures are criticized as being deviated in legislative and value orientations. On the other hand, from the perspective of institutional design, these measures are criticized as vague, non-operable, and in want of new technical support, remedial means and sanction procedures.Taking a holistic view on non-custodial coercive measures, and stressing integration of criminal justice, as well as that of non-custodial coercive measures with community social work, this dissertation tries to examine non-custodial coercive measures in the broader context of criminal justice system, and even the entire social system, which is essential for more refined and deepened studies in this field. The author particularly wishes to stress reformative approaches to raise applicability of non-custodial coercive measures and to gear to international standards for criminal justice through examining these measures in empirical studies and in the context of protection of human rights.The eight chapters in this dissertation are divided into two parts: part one of ontological study, and part two of a study of operation.In the Introduction, two cases with large media coverage are quoted to show the significance of the topic. This chapter discusses the present condition and inadequacy of current studies, and outlines the approach and framework of this study.The first three chapters are devoted to ontological analysis. Chapter 1 offers a general discussion of problems facing non-custodial coercive measures, and defines the connotation and extension of the system of criminal coercive measures. Despite its variations in micro-legislation, the system stands on a common ground of criminal coercive measures to persons, objects and rights to privacy. Examining different types of coercive measures from different perspectives, one may find the single“standard”defined in this dissertation: whether these measures violate citizens’constitutional rights. Based on this, the author further defines the concept of“custody,”and draws a line between custodial and non-custodial coercive measures. The chapter concludes with detailed analysis and elaboration on principle and application of right-oriented non-custodial criminal coercive measures.Chapter 2 tries to reflect and reconstruct the criminal coercive measures system in China. Based on an analysis of provisions in current criminal procedure law, the author classifies three types of coercive measures: those to persons, objects and rights to privacy. Given the Chinese realities, the author differentiates between measures of coercion and coercive measures. China’s current criminal coercive system only contains 5 custodial criminal coercive measures to persons. But an examination of foreign laws reveals more personal coercive measures. In an age of information, it is possible and necessary to introduce new personal coercive measures, for instance, personal restraining order, into China’s system. Setting up and regulating coercive measures toward objects are important for issues such as protection of citizens’property rights. Based on these discussions, the author elaborates on the necessity of constructing warrant in China. In the meantime, the author considers the importance of coercive measures towards rights to privacy, and that of incorporating surveillance and other investigation means that interferes with citizens’rights to privacy in the system of coercive measures. The author proposes to build up a theory of reasonable privacy expectance in China.Chapter 3 analyses the prominent problems in application of current criminal coercive measures in China, and suggests tentative solutions. This chapter contains a critical introduction to extended custody in contemporary China, and identifies some practical problems such as high rate of initial custody, long custodial time, and difficulties in post-custody correction. Further discussions are made on the harm derived from these problems, including the burden to state budget, the violation of human rights, and the obstacles to correcting wrong judgments. A special discussion is devoted to the view of some researchers that“the rate of custody in China is incomparable with that in the West given the different legal systems.”Based on these considerations, the author tries to attribute the current phenomenon of extended custody to five contributing factors: the conceptual factor, the low threshold of the procedure, lack of post-custody correction mechanism, and incentives from performance review system. The author also proposes some possible solutions accordingly.The second part of this dissertation, or Chapters 4, 5 and 6, provide analysis on the operation of China’s coercive measures. Chapter 4 discusses the current application and the evolution of Chinese system of summons for custody, and compares the system in different countries. The connection and mutual relations between summons for custody and lien are explored through empirical studies. Possible reforms in the area are discussed.Chapter 5 discusses the issue of bail pending trial. Systematic analysis is made on current bail pending trial system and its problems at legislative level, identifying contradictions of the system in legislation, judicial interpretation and departmental regulations. Quantitative analysis is made to identify the determining factors of application of bail pending trial in practice, and to reveal the prevailing problems of high arrest rates for misdemeanors, and bail pending trial as expediency in case solving. Taking the application of bail pending trial on juvenile as a starting point, the author systematically considers the perfection of bail pending trial system.Chapter 6 discusses the reform of residential surveillance system in China. Based on an observation of current residential surveillance system and the debate around its banning, the author points out that the system is poor in applicability and is often used as an alternative form of custody. The author argues that residential surveillance system is still necessary in China given the inadequacy of non-custodial criminal coercive measures in China’s current legal system. The author elaborates on possible reforms to the system, and suggests that“designated residence”should be redefined and further clarified, and that reform should be made in relation to police services.In Chapter 7 or the concluding chapter, more discussions are made on other issues that may relate to non-custodial criminal coercive measures from the particular perspective of relations among criminal procedures, the constitution and human rights.The main purpose of this dissertation is to provide a panoramic view over the system of criminal coercive measures. The emphasis of the discussion falls on non-custodial coercive measures, in particular, the improvement of China’s criminal coercive measures and the applicability of non-custodial coercive measures. Some tentative institutional suggestions are made in line with the basic principles of restricting power and expanding rights.