【Reading Notes】Procedural Response to Misdemeanor Governance

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1. Article information:

Title of the article: "Procedural Response to Misdemeanor Governance"

The author of the article: Bian Jianlin, doctoral supervisor of procedural law and evidence law. Honorary Dean of the Institute of Procedural Law, China University of Political Science and Law, Chief Scientist of the Collaborative Innovation Center for Judicial Civilization of the National 2011 Program.

Source: Chinese Journal of Criminal Law, Issue 2, 2024

2. Read your notes

Professor Bian Jianlin pointed out that with the significant changes in the criminal structure of criminal cases and the rising proportion of minor crimes, the mainland has entered the "era of misdemeanors". Improving the level, quality and efficiency of misdemeanor governance and building a complete misdemeanor governance system is the only way to promote the modernization of national governance and improve the efficiency of national governance. The management of misdemeanors requires the active response and participation of procedural law, and gives full play to the unique function and role of procedures in criminal governance. However, the criminal procedure in mainland China obviously does not meet the requirements of misdemeanor management, which is manifested in the passivity, confrontation, punishment, singularity and lag of the procedure. Misdemeanor cases have many characteristics. The procedures for misdemeanor cases are necessarily different from those for serious crimes, and should be consistent with their own characteristics and governance needs. In the management of misdemeanors, in addition to the need for timely adjustment of the substantive law, it is also necessary to actively respond and participate in the criminal procedure law.

At present, the mainland has not yet formed a set of judicial concepts and procedural arrangements specifically for minor crime cases. The main manifestations are: first, the passivity of the program. At present, the overall procedure is passive and passive, which cannot fully respond to the needs of misdemeanor governance and promote the effective implementation of misdemeanor governance. Second, the adversarial nature of the program. For a long time, criminal proceedings have been regarded as a struggle between the state and crime, and a confrontation between specialized organs representing the state and criminal suspects and defendants. The main purpose of the investigating and prosecuting organs is to prosecute and punish the prosecuted, and the antagonistic and tense relationship between the prosecution and defense persists. Third, the punitive nature of the procedure. The current criminal procedures in mainland China are obviously and inappropriately punitive, mainly manifested in the high rate of pending detention and the arbitrary seizure, seizure and freezing of property involved in the case before trial. Fourth, the singularity of the procedure. The mainland basically applies a single litigation procedure to the handling of criminal offenses, and no matter how serious the case is, it usually has to go through various stages of litigation, such as case filing and investigation, examination for prosecution, first instance, and second instance. Although judicial reform in recent years has increased the application rate of summary procedures and expedited procedures in the trial stage, in general, there is still a lack of adequate pre-trial transfer procedures and diversified case resolution mechanisms. Fifth, the lag of the procedure. At present, the handling of misdemeanor cases is obviously lagging behind and delaying, the litigation procedures are lengthy, and the litigation burden on the parties is heavy.

Based on the current situation of the criminal justice system and procedures in mainland China, the reform and improvement of the procedures for misdemeanor cases can be achieved through the following paths:

1. Improve criminal settlement procedures. According to article 290 of the Criminal Procedure Law, the public security organs and people's procuratorates may make recommendations for leniency in cases where a settlement agreement has been reached. Based on the circumstances of the case, the people's procuratorate may grant leniency to the prosecuted person, such as not approving the arrest or modifying compulsory measures. It can be seen that the criminal conciliation procedure is an important procedure for handling misdemeanor cases, which is conducive to achieving leniency in cases. How can the settlement process be improved? We can start from the following aspects: First, expand the scope of application of criminal reconciliation procedures. The restriction on the application of "arising from civil disputes" has been abolished, and the application has been extended to all misdemeanor cases where the victim has been identified. The second is to strengthen the effective participation of victims and the protection of their rights and interests. Ensure that victims are able to participate more and more effectively in the criminal reconciliation process and fully express their opinions and demands by urging case-handling organs to perform their duties and responsibilities and improve legal assistance to victims. The third is to clarify the impact of settlement on the final disposition of public prosecution cases. In the course of litigation, the person being prosecuted should be given as much leniency as possible, and the use of compulsory measures restricting personal liberty and investigative acts of sealing and seizing property should be avoided.

2. Improve mechanisms for judicial exoneration of crimes. Among them, the most important thing is to add a review of the necessity of prosecution in the review of prosecution, and pay attention to public interest considerations when judging whether there is a necessity for prosecution. In the course of reviewing for prosecution, the procuratorate is to determine whether there is value and necessity in initiating a public prosecution in a case that meets the requirements for initiating a public prosecution by comprehensively considering factors such as the factual circumstances of the crime, the criminal suspect's personal circumstances, and the societal public interest, and then decide whether to submit the case to the court for trial.

3. Improve mechanisms for diversion of pretrial procedures. In the context of the governance of misdemeanors, consideration may be given to giving the investigating organs the power to honor the plea leniency policy in advance, and for plea cases where the circumstances of the crime are minor and there is no need to transfer them for review for prosecution, the investigating organs may withdraw the case after performing the legally-prescribed approval procedures. At the same time, the experience and practices of relevant countries can be used as a reference, and the investigating organs may be given a certain amount of power to punish minor crimes during the investigation phase. Minor crime sanctions are mainly applied in cases where the circumstances of the crime are minor and no criminal punishment is required in accordance with the provisions of the Criminal Law, or criminal punishment may be waived. In addition, the procedures for the application of misdemeanors may also be improved from the perspectives of improving the procedural disposal of assets involved in cases, improving and standardizing compulsory measures, and simplifying the trial procedures for misdemeanor cases.

3. Learning and understanding

Judging from the relevant data disclosed in the White Paper on Criminal Prosecution Work (2023) released by the Supreme People's Procuratorate, the proportion of minor crimes in the mainland has continued to rise and serious violent crimes has continued to decline over the past 20 years. In order to cope with the practical manifestations of light criminalization in criminal cases, the criminal justice system in mainland China is also undergoing a transformation from "punishment of crimes" to "equal emphasis on punishment and governance". In August 2023, the Supreme People's Procuratorate issued the "2023-2027 Procuratorial Reform Work Plan", which clearly stated that "promote the construction of a misdemeanor governance system that attaches equal importance to crime punishment and governance". Under the conditions of the new era, to build a misdemeanor governance system with Chinese characteristics, it is necessary to gradually realize the "two turns" of criminal justice. At the same time, it is necessary to uphold systematic thinking and explore the procedural and substantive law countermeasures for the "separation of severity and seriousness" in criminal cases. Traditionally, mainland judicial organs attach great importance to the factual basis for conviction and sentencing. In terms of procedures, the legislation requires the public security and judicial organs to accurately and promptly ascertain the facts of the crime, correctly apply the law, and ensure that the guilty receive the punishment they deserve and the innocent are not criminally prosecuted. However, in misdemeanor cases, there is usually no controversy as to whether the criminal act was committed by the suspect, and the suspect may even plead guilty and accept punishment in order to seek leniency. Therefore, for misdemeanor cases, if the traditional case review mode is still adhered to in the pretrial procedure, and the focus is on the examination of evidence of whether the crime was committed, it is obviously impossible to make an effective procedural diversion treatment. In this regard, in misdemeanor cases, when judging "whether there is a need for arrest" or "whether there is a need for prosecution", the focus of the review should be shifted from "criminal acts" to "criminal perpetrators". Specifically, a review of facts shall be used as the basis, focusing on factors such as the perpetrator's subjective malice, the likelihood of recidivism, as well as the reasons for the perpetrator's commission of the crime, and the attitude and expression of remorse after committing the crime. In cases of misdemeanors, the principle of non-detention shall be adhered to, and detention shall be the exception. The review of whether or not to arrest should not only be satisfied with the review of the conditions for punishment and evidence, but should also focus on the independent review of the conditions of danger to society, based on the principle of proportionality, and substantively judge whether there is a need to arrest the prosecuted person in the case. Second, as Mr. Bian Jianlin's article wrote, in misdemeanor cases, the diversion function of prosecutorial discretion should be actively played. During the review for prosecution phase, the procuratorate shall pay full attention to whether it is necessary to prosecute. In fact, misdemeanors are usually less harmful to society, so there is no need for redress through criminal punishment. In cases of misdemeanors, the procuratorate should review the necessary conditions for prosecution, fully consider factors such as the cause of the crime and the offender's harm to society, and comprehensively determine whether crime prevention can be achieved without criminal punishment.

Producer: Zhang Yongjiang

Author: Deng Pinyu, 2022 Master of Laws (Law) student at the Law School of Xiangtan University

Editor: Deng Pinyu

Editor-in-charge: Liao Peilei

Review: Li Lan

Hunan Provincial Criminal Rule of Law Research Association

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