Chinese legal practices, and the concept of “justice”

After looking at the effects of Weibo on the Chinese justice system yesterday, I thought it was important to take a closer look.

The Chinese Courts

Until 1949 there was very little litigation in China. If someone wronged you, you would have to appear in front of the local leader. There you, and the person you accused were usually beaten  before your testimony would even be heard. The leader would then decide, based on anything from your moral character to the ugliness of your face which party deserved the punishment. That person would then be tortured until they confessed, and the common folk would marvel at the leader’s wisdom. This is paraphrased from the book “From the Soil” which I will be reviewing shortly.

Not enough has changed in the last 60 years.

Judges in China still use their own “reason” to decide whom is guilty or innocent, irrespective of the evidence or precedence. Like the now infamous story of a man from Nanjing, who on seeing an old woman fall out of a bus brought her to a nearby hospital. When the bill arrived, he gladly paid it. The old woman later sought damages in the accident and sued the man who had cared for her. After considering the case the judge concluded that the man must be guilty, after all, why would an innocent man help a stranger? (This case is often cited as a reason for inaction among the Chinese when it comes to helping those you don’t know).

Torture, sadly, is still a part of the Chinese legal system, even though it has been illegal for years. This was highlighted by a case in which a man was arrested for murder, and confessed the crime while being tortured. He spent 7 years in jail, only to be released when the man he had supposedly murdered returned to town. A law is now being revised that states not only is torture illegal, but confessions given after torture will also be inadmissible.

Equality in legal proceedings is also frequently absent. I had a co-worker tell me that she wanted to leave China for fear that someday her or her husband may have a problem with an official, and would have no hope of ever winning in a trial against them. She said it was because they had no guanxi (special connections), but it is also a systemic problem.

The gov’t also frequently holds closed-door trials for those accused of political crimes, which makes the system seem even more suspect. Ai Weiwei is still awaiting his day in court for tax evasion. The gov’t will insist on his guilt, but will likely have no proof to show the world.

Justice

Here justice is still largely based on the concept of an “eye for an eye”, which partially explains why China executes more prisoners than the rest of the world combined. Thankfully the number of crimes making a person eligible for the death penalty is slowly being reduced, but the list of capital offences still includes many non-violent crimes, most notably corruption.

Another common practice is to harshly punish an individual as a sign to the other offenders. This is often seen in corruption cases and other scandals. In the melamine powder scandal, which killed several infants, the farmers linked to this incident were executed, and some directors were forced to step down. This was seen as just, even though there must have been hundreds of people who knew that the practice was happening.

Police are also in favor of allowing the two parties to fight out personal matters instead of getting involved. While this might be ideal for small claims, that it has been seen as acceptable for manslaughter cases, seems to be beyond reason.

China now claims to be a country under the rule of law, and yet its legal system still seems to be full of loop holes and favors. Yet, progress is being made, and as more people leave their hometowns, where the judge could rule on past knowledge of their behavior, a more equal system will emerge.

Bonus

An interesting discussion about the influence of religion on the courts of imperial China can be found over at The China Beat. The following pictures are from my trip to a Daoist temple in Beijing, and show trials, torture and punishment as they would happen in the afterlife (which explains the demons and ghosts). A bit unsettling.