The Gap between Law and Practice: An Empirical Study on China's High Pretrial Detention Rate
![handle is hein.journals/honkon47 and id is 529 raw text is:
THE GAP BETWEEN LAW AND PRACTICE:
AN EMPIRICAL STUDY ON CHINA S HIGH
PRETRIAL DETENTION RATE
O1
Xifen Lin*, Zihui Gu** and Xi Lin***
Through participatory observation and in-depth interviews with 38
practitioners, this research provides an explanation for the high pretrial
detention rate in China by examining the underlying mechanisms as to
how prosecutors make their decisions in practice. Three legal conditions
for pretrial detention that should be simultaneously satisfied, ie, evidence
condition, penalty condition and necessity condition, are either distortedly
enforced or hardly enforced in practice. The complexity of enforcement of the
legal requirements makes the fewer and more cautious detention[s] policy
hardly realised in China. The implementation of China's pretrial detention
also suggests that fact-finding, though of the utmost importance in China's
criminal justice system, might sometimes make a concession to crime control.
Also, compared to fact-finding and crime control, protection of human rights
and due process of law are usually under-evaluated.
1. Introduction
As a transitional country, China is on the way to align its criminal justice
system with universal legal values, such as human right protection and
due process of law. Since 1949, China has promulgated three versions of
Criminal Procedure Law (CPL), each in 1979, 1996 and 2012. Some of
the rules have reflected the legal principles or democratic values upheld
by the rule of law countries to some degree, such as the presumption
of innocence and prohibition of self-incrimination, making pretrial
Professor of Law, Shanghai Jiao Tong University, School of Law, Shanghai, China.
JD, University of Illinois at Urbana-Champaign Law School, Champaign, USA.
Assistant Research Fellow, Fudan University Institute for Advanced Study in Social Sciences,
Shanghai, China.
The research is sponsored by three research grants: the Fundamental Research Funds for
the Central Universities (16JXRZ10), the Funds from Shanghai Social Science Innovation
Research Base/Shanghai University Think-Tank (BV-COLP2016010) and the Funds for
Chengxing Young Scholars. An earlier draft of this article was presented in the Brown Bag Talk
organised by CEAPS, University of Illinois at Urbana-Champaign on 26 October 2016. The
authors are grateful for the comments and suggestions made by Professor Jeffrey T Martin, Tim
Liao, Yuchia Chang, Cheng Chen and other participants in the seminar. The authors want to
express their gratitude to 38 anonymous interviewees for providing their invaluable insight on
China's criminal justice.](ViewImageLocal?handle=hein.journals/honkon47&div=29&collection=&method=preview&ext=.png&size=3)
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The Gap between Law and Practice: An Empirical Study on China's High Pretrial Detention Rate
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