Political Embeddedness and its Impact on Chinese Lawyers’ Practices in Criminal Defense Cases

Based on survey data of 348 lawyers in Fujian, this study empirically tests how lawyers' political embeddedness (i.e., lawyers' bureaucratic, instrumental, and/or affective ties to the courts and prosecutors) has impacted upon their defense practices in criminal trials and their pursuit of liberal values. Our data reveal that politically embedded lawyers report more (not fewer) difficulties in practice (e.g., in requesting witness testimony in court, requesting new evidence, and requesting new evaluations and investigations of the case). Clients are more satisfied with representation by politically non-embedded lawyers than lawyers who are embedded. Using statistical evidence, this paper analyzes potential reasons and draws out the implications.     

侦查阶段律师辩护工作的理性思考

律师参加刑事诉讼、介入侦查阶段,是现实需要,也有充分的理论根 据,但实际状况不尽如人意。如介入会见难;以“有碍侦查”、“国家秘密”而阻滞律师 介入;存在辩护风险,等等。因此必须对律师在侦查阶段的法律地位、单独会见权、讯 问在场权,以及辩护豁免权等问题进行研究,确保律师辩护的作用。     

The Effects of Changes to Legal Aid on Lawyers' Professional Identity and Behaviour in Summary Criminal Cases: A Case Study

This article explores the effects of changes to legally aided representation on criminal cases in magistrates' courts according to data collected in an area of south‐east England. I consider the political factors that motivated changes to legal aid and suggest how these issues affecting lawyers' understanding of their role, and how that understanding affects the relationships between defendants, lawyers, and the magistrates' courts. I argue that the research indicates a potential relation between solicitors' risk‐taking behaviour in obtaining funding and the reintroduction of means testing: remuneration rates affect the service that defendants receive and the reintroduction of means testing decreased efficiency in summary criminal courts. Ultimately, I argue that changes to legal aid funding have increased lawyers' uncertainty about their role, leaving them torn between acting efficiently and providing a good level of service.     

Discursive mismatch and globalization by stealth: The fight against corruption in the Brazilian legal field

Law and globalization studies have documented how Global South lawyers compete over the adaptation of international norms. Yet, little is known about how this adaptation legitimates worldviews beyond the law. To advance this literature, this paper proposes a discourse-centered field analysis of the legal globalization of anti-corruption ideas in Brazil. It examines Brazilian lawyers' disputes over a 2016 anti-corruption bill. The bill supporters mobilize global anti-corruption discourses that are exogenous to the legal field to defend harsher criminal law. Their critics counter the reform by mobilizing endogenous legal ideas against criminal law expansion. In so doing, they do not challenge reformers' ideas about corruption. I show how this discursive mismatch leads to a form of globalization by stealth, whereby local dynamics allow global ideas to remain unchallenged in local fields.     

Legal Reform and Good Governance: Assessing Rights and Economic Development in Chile

Legal reforms throughout Latin America have increased the transparency of the criminal justice process and improved defendants' rights. Many scholars conjecture that such reforms also improve “good governance” and by extension economic development. Paradoxically, despite such assertions, there are few quantitative studies that examine the precise effect of such legal reforms. Using original data sets, the impact of Chile's criminal law reforms on the rights of criminals and economic development is tested. The results show that Chile's criminal law reform has enhanced defendants' rights by reducing the percent of individuals incarcerated. The reform has had a positive effect on regional economic activity, but little effect on foreign direct investment at the regional level.     

Retract,Expand: Libel Law,the Professionalization of Journalism,and the Limits of Press Freedom at the Turn of the Twentieth Century

At the turn of the twentieth century, many judges and juries considered libel law to be a robust check against a reckless and sensational press. So how did the newspaper industry convince seventeen state legislatures between 1885 and 1915 to pass laws easing liability for accidental libel? This article analyzes a debate surrounding libel law reform to tell the story of how retraction statutes were conceived in press association meetings, enacted in spite of lawyers' reservations, and challenged in state supreme courts during a pivotal era in the professionalization of journalism. It offers a better understanding of the power of the institutional press to influence Americans' conception of the purpose of press freedom and the role of journalism in democratic society, and a clearer picture of the beginnings of a more press friendly era in libel law, from the wire service defense to the actual malice standard.     

企业刑事合规的程序应对

在刑事合规的制度设计中,程序法承载了治理犯罪、保护权利、提升经济效率等多项重要职能。当前,全球范围内企业合规的刑事程序运行呈现出如下发展态势:立案管辖范围扩张,侦(调)查措施更加灵活多样,检察官主导实现多样化的诉讼激励,刑事合规的司法审查逐步加强,律师充分参与刑事合规得到保障。我国刑事合规的理论研究逐步兴起,实践中企业合规试点单位进行了相应的刑事程序改革与探索。随着刑事合规的全面深入发展,我国刑事诉讼程序应从立案、侦查、起诉、审判、辩护等多个环节进行系统、科学改造,以满足企业合规对刑事程序的实质需求。     

论英美刑法中胁迫的理论基础——兼论对我国胁从犯规定的借鉴意义

胁迫是英美法系刑法中的一个概念,具体是指行为人在受到他人死亡或者严重的身体伤害威胁的情况下被迫实施一定的犯罪行为。胁迫作为一种公认的普通法辩护事由,有其科学合理之处。分析了英美刑法中胁迫的成立条件及其存在的理论根基,并分析了其对我国刑法中胁从犯规定的借鉴意义。     

Lawyers' perspectives on ‘what is court-connected mediation for?’

This article analyses the results of an empirical investigation into lawyers' perspectives of the goal of court-connected mediation in the Supreme Court of Tasmania, Australia. The findings of other empirical studies are drawn upon to contextualise the results. The data reveal a tendency for lawyers to emphasise settlement in accordance with the law as the main purpose of court-connected mediation. There was evidence that some lawyers maintain a competitive approach to court-connected mediation, seeking to ‘win’ for their clients with minimal regard to the other party's goals or to achieve outcomes that reflect a legal assessment of the case. However, where non-legal, satisfaction-related needs were met, many lawyers viewed such outcomes as particularly positive. A mixed range of views was revealed, with the common goals of an opportunity for settlement and a focus on law as a reference point. The findings contribute to knowledge about lawyers' understandings of ‘what is mediation for?’.     

The adequacy of China's responses to wrongful convictions

This paper examines a series of reforms that followed the discovery of high-profile wrongful convictions in China since 2005. There have been two waves of criminal justice reforms to prevent future wrongful convictions and to improve China's criminal justice system more generally. But it will be suggested in this paper that China's responses are inadequate because they allow traditional police and judicial practices that will lead to future wrongful convictions to continue. Further reforms will be suggested. First, police interrogations should be fully recorded, and the entire recording should be played back at trial. Second, the role of the defense counsel should be expanded. The use of state secrets as evidence against the accused should be curtailed. The close cooperation between the police, procuratorates and judiciary in the criminal justice should be counteracted by the creation of an independent body to review all serious convictions. Finally, the Chinese criminal justice has proven itself not safe enough to allow the broad use of capital punishment as a punishment for non-violent offences and at the very least, the immediate execution of prisoners who lose their final appeal must be abolished.     

中国刑事辩护的困境与出路

公、检、法、律是推进社会法治进程不可或缺的四个车轮 ,缺乏现代辩护律师制度的刑事司法制度 ,永远不可能驶入现代法治的轨道。就刑事诉讼法的修改对于中国刑事辩护制度所引起的实质性影响而言 ,有关部门权利本位的司法解释或规章使得中国的刑事辩护正在面临着让立法者始料不及的、尴尬而艰难的困境。刑事辩护制度的改革已经成为刑事司法改革的当务之急。     

中国刑事辩护制度发展的命运——以建立中国控辩协商制度为视角

从立法的角度看,中国刑事诉讼法的修改,无疑是中国刑事司法改革的一个巨大进步,甚至有人把它说成是刑事诉讼立法科学化、民主化的“一个重要里程碑”也不为过。然而,在司法实践中,就刑事诉讼法的修改对中国刑事辩护制度所引起的实质性影响而言,不仅不是巨大进步,而且是严重倒退。中国的刑事辩护正面临着让立法者始料不及的艰难困境。中国目前的辩护制度状况尚无法满足辩诉交易中国化的基本要求。只有实现中国辩护律师队伍的专业化,赋予中国律师必要的辩护权利和执业保障权利,才能使得辩诉交易在中国移植后,被告人有适格的辩护律师提供帮助,以确保其在控辩协商中得到公平对待。     

论程序正义视域下的中国刑辩律师困境

律师职业自产生之初就与正当程序有着紧密联系,正是程序正义赋予了律师职业以内在的价值追求.但现今的中国刑事辩护律师却处境尴尬：他们参与刑事辩护率低迷;在刑事诉讼中的各项权利难以保障;有时深受社会公众与媒体舆论的怀疑、攻讦,甚至有可能面临牢狱之灾.一系列问题表明,刑事辩护作为司法程序中的重要环节,正日益失去其维护司法公正的的意义和作用.因此,要突破律师现今面临的种种困境,必须在现念上和制度上进一步落实程序正义.     

Does the Controversy Matter? Comparing the Causal Determinants of the Adoption of Controversial and Noncontroversial Rape Law Reforms

Do the causal determinants of legal change differ for controversial and noncontroversial laws? Using rape law reforms as an example of legal change, I answer this question via a longitudinal examination of the intrastate characteristics and interstate processes that affect the adoption of both controversial and noncontroversial rape law reforms. The results show that the adoption of partial reforms significantly decreases a state's likelihood of passing a stronger version of the reform only for controversial rape law reforms. Other factors, such as women's economic power and the interstate process of diffusion similarly affect both controversial and noncontroversial reforms. Thus, contrary to the idea that the process of diffusion operates differently for controversial reforms, the results indicate that spatial proximity negatively affects the adoption of both controversial and noncontroversial rape law reforms. These findings have important implications for theoretical explanations of legal change, research on rape law reforms, and social movement research and activism.     

刑事诉讼法律观的嬗变——俄罗斯新刑事诉讼法评析

俄罗斯联邦新刑事诉讼法典中有关辩论式诉讼模式的确立 ,证据规则的发展 ,犯罪嫌疑人、被告人辩护权保障机制的完善 ,检察机关在刑事诉讼中的职能转换以及被告人认罪的特别审理程序等项内容 ,构成俄罗斯刑事诉讼法的新亮点。尤其对被告人诉讼权利和自由保障的优先性考虑 ,对程序公正与诉讼效率的双向追求 ,成为支撑新法典的全新价值理念 ,也是对一些守旧的传统法律观念的否定     

The New Code of Criminal Procedure in the People's Republic of China: Protection,Problems, and Predictions

This paper is a “nuts and bolts” look at criminal procedure in China as outlined by Chinese and Western scholars, the Chinese code of criminal procedure, and my own observations in the People's Republic of China. China has finally formalized, at least to some degree, its criminal justice procedures and protections after years of ad hoc procedures. Also, along with codifications of criminal procedures, the Chinese are making greater use of defense attorneys, and trying to work out their version of “presumption of innocence.” Finally, the Chinese are grappling with these new rules and procedures, attempting to develop a fair and consistent system of criminal procedure that sometimes still gives way to political expedience.     

The Cultural Defense

Because of immigration in the West, increased cultural diversity poses a variety of problems for the criminal justice system. This paper examines whether a so-called "cultural defense" ought to be allowed as a freestanding defense to a criminal charge. Such a defense would "negate or mitigate criminal responsibility where acts are committed under a reasonable good-faith belief in their propriety, based on the actor's cultural heritage or tradition." The cultural defense, as a formal defense, and the use of cultural evidence in order to buttress one of the traditional defenses, are distinguished. Three cases are discussed to illustrate the issues. The possible similarity of the cultural defense to an ignorance or mistake of law defense is then considered. The latter is accepted by such theorists as Gunther Arzt and George P. Fletcher and also apparently in German law, but it is rejected by Jerome Hall on the ground that it undermines the objectivity of the criminal law. The similarity, however, is shown not to hold. It is concluded that a freestanding cultural defense should not be allowed.