Category: Law Essay

The judiciary is one of the branches of government of China. Technically, the judiciary is the court system in China. Chinese judicial system is predicated on civil law. The judicial system in China is similar to that of France or Germany. However, it is tailor-made to address local socio-political and economic characteristics. Courts exercise their power independently as bestowed on them in the Constitution. It comprises of the procuratorate system, court system as well as the public security system. Therefore, the judicial system does not only refer to courts but also to security organs and procuratorates. Unlike in most countries, in China, the judiciary is not autonomous from the ruling party. Court system aims at dispensing justice to the parties involved.

This essay will attempt to delve into the judicial system of China. More specifically, the paper will seek to evaluate the criminal responsibility vis-à-vis the procedural and substantive legal practices. Additionally, the essay will give a brief but precise description of China’s judicial system when rape or murder is a criminal act involved. The paper will analyze the considerations employable during the assignment of criminal responsibility. Again, the essay will provide an argument as to the approach applied by China and what benefits accrue to an offender, the Chinese government or both the offender and the government.

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According to Professor Herbert Packer, there are two crime control models – the due process model and the crime control model. These two models are competing for value systems within the criminal justice system in the world. There are disharmony and conflict between these two approaches. The crime control approach helps in crime repression, as this is the most significant role of criminal justice. This model is advantageous to the offender. The Chinese judicial system assigns criminal responsibility to the defendant in the event of a case of murder or rape. This is because the criminal justice system ought to focus on vindicating the rights of a victim as opposed to protecting defendants’ rights. The crime control approach gives the police more powers to enable them to investigate criminal activities, search, arrest, seize and even convict criminals. The legal technicalities, which obstruct actions of the police, are eliminated.

Additionally, the Chinese judicial system operates like a conveyor belt, moving cases along towards their disposition. The police arrest criminals while prosecutors file criminal charges against them. An accused is always presumed guilty until proven not guilty since the fact-finding missions by the prosecutors and the police are highly reliable. In such a model, the objective of the judicial process is to discover the truth or to establish the factual guilt of the accused. The due process approach is completely opposite to the crime control approach. The due process model provides all parties with fundamental evenhandedness under the law. The criminal justice system does not concentrate on victims’ rights or defendants` rights. Police powers in a due process are limited in order to prevent any official oppression. The due process emphasizes the constitutionality of rights, which are not mere technicalities.

The judicial authorities should be accountable to guidelines, rules, and procedures in order to ensure consistency and fairness in the judicial process. In such a model, there are procedural safeguards, which protect the innocent until they are found guilty. There are legal procedures that are followed in fact-finding. This is not the case in China’s judicial system, which uses the crime control approach and not the due process approach. The justice system in China represents the country’s conservative values as advocated by the Communist Party. Contrariwise, the due process approach represents liberal values. The political climate in China provides a good environment for the application of the crime control model. The Chinese justice system prefers the crime control model due to the country’s political nature as opposed to the due process model that is common in countries with liberal political climates.

The Chinese government supports the use of the crime control method as opposed to the due process method. This is primarily because the model is in sync with the country’s political ideology. The police officers possess the power to arrest criminal offenders, as well as prosecute and convict them. This is a complete contrast to the due process used in most liberal countries. The rights of those accused of murder and/or rape are guaranteed under the due process approach. Profiling, undercover operations, surveillance, wire trapping, aggressive searches, and raids, targeting crime areas, increased traffic stops and patrols are used to break the back of criminal activities. Towards this end, the Chinese judicial system recognizes that sacrificing particular individual rights for egalitarian good is inevitable. Law enforcers directly target those accused of rape and/or murder. This is because while it is important to uphold the fundamental rights and freedoms of every citizen, the Chinese judicial system understands that individual interests cannot surpass public interests. In China, the law allows police to detain any suspect for up to 37 days.

There ought to be some injured party as a result of a crime. The injured party is corpus delicti. Complaints are prima facie valid whenever injured parties exist. Corpus delicti must be available in order to accuse an individual of a crime. It is important to know corpus delicti when prosecuting a criminal. Corpus delicti is the body of any crime. Prosecutor must prove the existence of corpus delicti, which is the party that bears the loss, injury and/or harm. In the case of rape or murder, the victim of rape endures harm and bodily harm while the family of the deceased endures the loss of their loved ones. Therefore, corpus delicti exists in both cases. The criminal can be detained for many days or indefinitely amongst other penal sanctions. However, the Chinese judicial system requires that personal freedom does not encroach. This is important in establishing social order and discipline. The facts relating to any case should be thoroughly investigated. Everybody is equal before the law.

Penal sanction refers to the punishment that is meted on an individual who committed a crime. For instance, restitution, imprisonment, fines, and probation are penal sanctions. Thus, the penal sanction is a legal penalty. In the Chinese judicial system, the eventual penal sanction for a murderer or a rapist is a death sentence. Serious offenders who commit violent crimes like rape and aggravated murder are convicted of capital punishment. This crime control approach aims at reducing crime. While drug trafficking is a capital offense, it is nonviolent. The death penalty is used to assuage people’s anger. Most commonly, people convicted of rape or murders are subjected to capital punishment.

Legally, all people should be equal before the law. The socialist government does not permit anyone to disrupt the social order. The Chinese Congress creates all the judicial system organs. All legal persons and natural persons possess equal status. The Chinese judicial system provides that the procedural law give a defendant a fair and open trial. However, most criminals in China are executed every year. Therefore, in either a murder or a rape case, the sentence can be rather harsh. China uses two execution methods: lethal injection and firing squads. Unlike corruption and other economic crimes, firing squads execute murderers and rapists. However, such capital punishment has faced criticism from various parties. For instance, an innocent Wei Qingan was executed in 1984 for the rape of Liu. In 1995, Nie Shubin was executed for allegedly raping and murdering Kang Juhua. However, later Wang Shujin admitted to the crime. This amounts to injustice.

Common law requires that intent to commit a crime exists for a person to be found guilty. Mea rea is criminal intent. A person must have committed a crime purposefully, negligently, recklessly and knowingly. Offenses that involve strict liability require actus reus and not mens rea. They involve crimes that intent to protect the public. Additionally, concurrence between criminal intent and a criminal act must be proven. There must be both legal as well as proximate cause. Mens rea and actus rea must be concurrent. The two combine leading to prohibited harm or injury. The Chinese judicial system does not give room to examine mens rea when rape and/or murder are involved. A murderer or a rapist is thought to possess guilty knowledge and guilty mind. The crime control approach does not give room for the rapist or the murderer to take an exculpatory plea. The basic criminal law principle requires that a crime is preceded by mens rea or omission of a criminal act. The Chinese judicial system still punishes criminal acts without paying attention to the mental state of an individual. Murder of other people is punished by capital punishment regardless of whether the action was committed recklessly or intentionally. Mens rea is not a rule in China’s criminal jurisprudence. People with criminal intent pose a threat to others. They have to be punished to avert the violation of the law. However, the punishment ought to be appropriate for the crime committed. The prosecution has to establish the necessary mens rea, which is beyond any reasonable doubt.

China’s legal system has elaborate procedural and substantive legal practices. However, it has been without a clear criminal procedure or criminal code. This is explained by the fact that the country is a communist and totalitarian state. Historically, the Tang Dynasty had an all-inclusive legal code. The subsequent dynasties expanded, amended and revised the code in order to make it correspond to their needs. During 1949-1979, China had no code of procedural or substantive law. In July 1979, Congress enacted