China's Criminal Detention as a Compulsory Measure under Exigencies: a Comparative Analysis
Author | Yi Yanyou |
Pages | 173-203 |
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2014] CRIMINAL DETENTION 173
CHINA’S CRIMINAL DETENTION AS A COMPULSORY
MEASURE UNDER EXIGENCIES: A COMPARATIVE ANALYSIS
YI Yanyou
I. INTRODUCTION
A man who has no knowledge about other countries has no
knowledge about his own. This is also the case in the field of law. It
becomes evident that comparing other countries’ laws with Chinese law
helps us to understand ourselves better. As Zweigert and Kotz put it:
“Only when a lawyer knows about other country’s legal knowledge can
he understand his home country’s laws correctly.”1 This is one of the
values of comparative law research. However, there are also risks in
comparing laws between countries. This is because different legal
systems use different terms to describe the same things. For example, in
many Western countries, the search of a person is called a “search”
while in China the search of a person is sometimes called “examination
of the person.” Although called differently, they function in the same
manner. In addition, Chinese law requires the investigative organ to
produce and show a paper (证明文件) when conducting an inquest of
the crime scene. The paper is not called a “warrant” although it
functions as the warrants used in Western countries. There are many
other examples. When making a comparison between two legal
systems, we must first make sure that we are comparing the same
things. At the same time, when we cannot find the same thing based on
its name, we should try to find it by examining its function. I call this
methodology a comparison based on function. We shall make
comparisons among things that function in the same way,
notwithstanding what they are called. For things that have the same
name but function differently, we must be careful to not to treat them
the same. For things that have different names but function the same
way, we shall compare them as the same kind of things without
hesitation.
This essay uses such a methodology to explore China’s criminal
detention in the global context in comparison to other jurisdictions. Part
I shows the nature of China’s criminal detention in a historical and
comparative context. It demonstrates that China’s criminal detention
was originally designed as a provisional measure under exigent
circumstances in the 1954 Constitution and this nature was inherited by
the 1954 Regulation on Arrests and Detentions and the 1979 Criminal
1 KONRAD ZWEIGERT & HEIN KOTZ, EINFUHRUNG IN DIE RECHTSVERGLEICHUNG, AUF DEM GEBIETE
DES PRIVATRECHTS, BAND I: GRUNDLAGEN [General Introduction to Comparative Law], translated in Bijiao
Fa Zonglun (比较法总论) 1 (Pan Handian (潘汉典) et al. trans. 2003) (Preface to the Chinese edition).
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174 TSINGHUA CHINA LAW REVIEW [Vol. 6:171
Procedure Law. It argues that only when a detention is designed and
treated as a provisional measure under exigent circumstances shall it be
regarded as constitutional. It also compares criminal detention with
other Chinese provisional measures such as stop and further
interrogation, seizure and delivery, and summons and forced summons.
Based on the observation in Part I, the following parts deal with
procedural safeguards for criminal detentions by comparing them to
those in Western countries. Part II discusses the issue of probable cause
and targets for criminal detentions. It shows that although there is no
probable cause requirement in conducting a criminal detention, China’s
Criminal Procedure Law limits the power of law enforcement by
defining targets of criminal detentions in the way that is commonly
accepted in Continental countries. It argues that limiting the applicable
scope of a criminal detention by defining its targets has the same effect
as requiring a show of probable cause.
Part III discusses the issue of warrant requirements. It compares
common law and civil law rules, and concludes that both have
exceptions for warrant requirements. Particularly, it points out that in
exigent circumstances, there is no warrant requirement in both common
law and civil law countries. It then argues that, although Chinese law
does not require a judicial warrant for criminal detentions (only a
warrant issued by investigatory organs) it is justifiable because in
Chinese law, a criminal detention is applicable only in exigent
circumstances.
Part IV introduces time periods for China’s criminal detentions, and
argues that time periods for criminal detentions function in the same
way as the requirement of “bringing the detainee to a judge without
unnecessary delay”. It also explores the relationship between the
prolonged time period of criminal detention in the 1996 Criminal
Procedure Law and the abolishment of shelter for examination
(Shourong Shencha), and argues that the prolonged time period for
criminal detention violates the intent of the Constitution as it is
designed to be a provisional measure under exigent circumstances.
Part V discusses other procedural safeguards for criminal detentions
including sending the detainee to a detention house immediately,
interrogating the detainee within 24 hours, notifying the detainee’s
family or the unit to which he belongs, and notifying the local public
security organ when executing a criminal detention in another place.
Part VI discusses exclusionary rules which function as a remedy for
violations of procedural safeguards concerning criminal detentions. The
last part then concludes the article.
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