Understanding the presumption of innocence in China: Institution and practice

Xifen Lin, Casey Watters

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Introduction: China has a time-honoured history and culture, but a young and maturing legal system. To those from the West who are used to laws, judicial decisions and regulations, it may seem very strange indeed that China, such a large country both in population and size, did not promulgate its first modern criminal procedure law until 1979. However, even that law, the Criminal Procedure Law (CPL), does not explicitly address a common presumption in the criminal laws of other nations, that is, the presumption of innocence (POI). As POI is a legal principle originating in the West, its acceptance in the criminal justice context of China is a gradual and longstanding process. The CPL’s first revision, in 1996, adopts the clause ‘no person shall be found guilty without being judged as such by a People’s Court according to law’, but the protection guaranteed to criminal defendants under Article 12 of the CPL (2012) is different from the classic concept, which, according to the International Covenant on Civil and Political Rights (ICCPR), requires POI. Article 12 focuses on who has the power to issue a guilty verdict rather than on the presumption of the accused’s guilt or innocence during the investigation and trial. However, Article 12 holds the key to understanding POI in the Chinese context. To determine whether and how the Western understanding applies in that context, several questions must be answered first: What are the differences between China’s POI institution and international POI standards? Is explicitly detailing POI in the CPL the most important factor in evaluating the development of the POI principle? If not, then what needs to change with regard to both the law on the books and the law in practice to promote POI in China? Section 2 of this chapter briefly outlines the meta-principles of the standard view of POI in the international context. These include the principle that the judiciary alone has the power to adjudicate a criminal proceeding, that the prosecutor bears the burden of proof, that a guilty verdict must be based on evidence, that the defendant should be treated with dignity and respect and that in dubio pro reo. Section 3 looks into the misinterpretation and misunderstanding of POI within the Chinese legal context, which to some extent has hindered the principle’s acceptance by reformers.

Original languageEnglish
Title of host publicationChinese Legal Reform and the Global Legal Order
Subtitle of host publicationAdoption and Adaptation
EditorsY. Zhao, M. Ng
Place of PublicationCambridge
PublisherCambridge University Press
Number of pages19
ISBN (Electronic)9781316855645
ISBN (Print)9781107182004, 9781316859629
Publication statusPublished - 2018
Externally publishedYes


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