An Empirical Study On The Application Of Summary Procedure After The Implementation Of The New Criminal Procedure Law

The concept of summary procedure was still not mentioned in the 1979 Criminal Procedure Law of the People’s Republic of China(“CPL”). During the “Strike Hard” period in 1983, the process of “Fast-trial” was created to make up for this gap, however, with some major flaws. In 1996, the concept of summary procedure has been introduced in the CPL for the first time, the provisions regarding this were simple but not practical. Although some judicial interpretation was made later to refine and expand the scope of CPC, a lot of problems remained for the next 10 years, such as, the over narrow scope, no legislative authorization for “simplifying the common procedure”, lack of protection for the accused’s right to choose trial procedure or a counsel, the disorder in court proceedings caused by the absence of the prosecutor, and so on.Therefore, the new CPC in 2012 made significant changes to the summary procedure and has achieved notable progress. For example, it has expanded and clarified the scope of applying summary procedure, and also pointed out that the accused shall have the right to choose or decline his trial procedure, furthermore, it has expressly stated that the prosecutor needs to be present during the trial and meanwhile, the People’s Procuratorate has no right to determine whether the summary procedure shall apply.From January 2013 to date, the new summary procedure has been running for more than a year. Based on the research result on the application of summary procedure in the grass-root courts in Chongqing, we found that, overall, compared to the days before the implementation of this new CPC, the application of summary procedure has a positive effect on the court proceedings. The proportion of the application of summary procedure by the people’s courts has increased, and the trial period has been shortened. Meanwhile, it also better safeguarded the procedural justice for those cases closed by summary procedures. However, there are still many problems need to be addressed while applying summary procedures.For instance, the specific conditions of applying summary procedures are still vague, as a result, it may still be difficult to protect the accused’s right to choose the procedure himself, or hard to ensure the confession is actually voluntary, as well as secure the accused’s right to defend. In fact, most of time, prosecutors just go through the motions when required to be present in the trial, or they may find a concealed way to exceed the required time period for reviewing and prosecuting a case, moreover, the lack of standardization for sentencing may also cause plea bargaining in substance. For future reference, we need to further clarify the conditions of applying summary procedures via legislations or judicial interpretations. In the event that we have any queries regarding discovering criminal facts, confessions, performing merits, or recidivists during the trial that may have an impact on the sentencing, we shall reserve the right to apply the summary procedure but shall also differentiate such cases from other common cases. We need to refine the accused’s right to select his trial procedure, which shall include the right to start the procedure, the right to be notified, and the right to modify his procedure. In order to avoid forcing the accused to choose summary procedure or confess through either threats, misleading or any other means, we shall ensure the voluntariness of confession as well as the accused’s right to hire a counsel to defend for himself. Furthermore, we shall create new standards to require prosecutor’s presence during the trial, extend the summary procedure to the stage of reviewing and prosecuting a case, shorten the time period of reviewing and prosecuting a case, and last but not the least, regulate the process of sentencing and non-prosecution procedures for the purpose of preventing unjust plea bargain.In order to further improve judicial efficiency, in June 2014, the National People’s Congress(“NPC”) has authorized the “two supreme organizations”(i.e. the supreme court and the supreme procuratorate) to reform the process of “speeding up the trial for criminal cases”. This is actually an “experimental legislation” in the judicial area, by doing so, the judicial reform will have its own legal basis. The notable changes in this reform include removing the limitation of the time of notice before the trial for summary procedures, shortening the trial period, adding the permission to hear a case non-publicly on the ground of protecting reputation, and establishing the system to ensure the counsel on duty to protect suspects’ rights, etc. We believe that along with the more detailed rules coming out, the policy of “speeding up the trial for criminal cases” will definitely provide a new guideline for the reform of summary procedure.