Do Confessions Contribute to Lenient Punishments in China? An Empirical Study Based on Crimes-of-Intentional-Injury Trials

• Author: Wang Fang and Guo Liang
• Pages: 59-85

3 ARTICLE_CONFESSION.DOCX (DO NOT DELETE) 2019-12-20 11:52 AM

2019] AN EMPIRICAL STUDY BASED ON CRIMES-OF-INTENTINAL-INJURY TRIALS 59

DO CONFESSIONS CONTRIBUTE TO LENIENT

PUNISHMENTS IN CHINA?

AN EMPIRICAL STUDY BASED ON

CRIMES-OF-INTENTIONAL-INJURY TRIALS

Wang Fang

Guo Liang

Abstract

The statutory confession (

法定的坦白犯

) in China’s criminal justice

system is oriented toward the policy that “leniency shall be granted

to those who confess, severity shall be imposed on those who resist”

(

坦白从宽，抗拒从严

). This is part of a long tradition with

distinctive Chinese characteristics. We collected 6,876 intentional

injury judgment documents (2014-2017) and analyzed them using an

OLS model. We found that, 1) statutory confession did not contribute

to the overall lenient punishments; and 2) confession had an

independent function, without interference from other circumstances

of statutory leniency. These findings highlight a dilemma: an act of

confession does not contribute to lenient punishment. This is legal

and rational but deviates from legislative intent. It also fails to

conform to people’s expectations.

I. INTRODUCTION

The confession institution is “a unique precedent found in the

Chinese legal system. It allows people to repent and change and is

naturally the result of the Confucian emphasis on the cultivation of

an inner sense of shame.” 1 In China, judicial decisions involving acts

of confession are frequently questioned by the public, creating a

predicament for the criminal justice system. In contrast to the policy

of “leniency to those who confess”, there is a folk saying, “confess,

but rot in prison” (坦白从宽，牢底坐穿).

After the confession institution was established in the Eighth

Amendment to China’s Criminal Law, a few studies focused on the

understanding and application of confession, mainly about the

concept, justification basis, and applied requirements for the new

1 Chen Guyuan (陈顾远 ), Zhongguo Fazhishi Gaiyao (中国法制史概要) [A Brief History of

Chinese Legal System] 205 (China Commerce and Trade Press, 2011).

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60 TSINGHUA CHINA LAW REVIEW [Vol. 12:57

Article. The main argument is that, statutory confession is the act of

surrendering or turning oneself in;2 balancing passively turning

oneself in and the judicial efficiency (兼顾被动投案和效益) is the

main justification basis of statutory confession; 3 and the

considerations for lenient punishment include judicial efficiency and

the attitude of confessors.4 There are some empirical studies from

judges on the application of lenient punishments to confessors, which

refer specifically to the accusation and the procedure. 5 Zimmerman

made an experimental simulation on guilty pleas accounting for the

vast majority of criminal convictions, and found a significant effect

for culpability: guilty participants are more inclined to accept the

plea; however, 32.6% of the innocent participants indicate that they

would plead guilty to the crime in order to receive a guaranteed

lesser sentence. 6 Liu Qigang made an empirical research on the

recognition and attitude of suspects to the policy of leniency to

confession, and found that almost 67.2% of the suspects believe that

there is a more lenient punishment to confession while 32.8% do not

believe it; meanwhile, there are some differences according to the

accusation type. Some compare the confession institution with the

plea bargain in the U.S., arguing that, there are some similarities

between the system of leniency towards guilty plea (which includes

statutory confession) and plea bargain, in both of which the

prosecutorial discretion is expanding. To restrict vindictive

prosecution arising from plea bargain, which disobeys the due

process, vindictive prosecution defense was developed. Zhao

Xuguang and Chen Ruihua argue that, under the obligation-oriented

2 Dong Shuguan (董书关) & Liu Cao (刘操), Xingfa Xiuzhengan (Ba) Tanbai Zhidu de Lijie yu

Shiyong (《 刑法 修 正 案 （八 ） 》 坦白 制 度 的理 解 与 适用 ) [Understanding and Application of

Confession System in Criminal Law Amendment (VIII)], 87 HUADONG ZHENGFA DAXUE XUEBAO (华东

政法大学学报) [JOURNAL OF EAST CHINA UNIVERSITY OF POLITICAL SCIENCE AND LAW] 79 (2013).

3 Wu Zhanying ( 吴占 英 ), Lun Tanbai de Chuyu (论 坦 白 的 处 遇 ) [On the Treatment of

Confession], 47 XINGFA LUNCONG (刑法论丛) [CRIMINAL LAW REVIEW] 276 (2016).

4 Zhao Xuejun(赵学军), Tanbai de Zhengdanghua Genju yu Hefaxing Shiyong (坦白的正当化根

据与合法性适用) [The Justification Basis and Legitimate Application of Confession ], 7 FALÜ

SHIYONG (法律适用) [JOURNAL OF LAW APPLICATION] 76 (2019).

5 Cai Wei (蔡未) & Cai Xiaoying (蔡晓颖), Tanbai Congkuan Keyi you Duokuan — Xingshi

Susong Zhong Renzui Renfa Congkuan Zhidu de Neizai Luoji yu Zhidu Chonggou Tanjiu (坦白从宽可

以有多宽——刑事诉讼中认罪认罚从宽制度的内在逻辑与制度重构探究) [How lenient to

Confessors: Study on the Internal Logic and System Reconstruction of Leniency System in Criminal

Procedure], 45 FAZHI LUNTAN (法治论坛) [NOMOCRACY FORUM] 250 (2017).

6 Emalee J. W. Quickel & David M. Zimmerman, Race, Culpability, and Defendant Plea-

Bargaining Decisions: An Experimental Simulation, 19 J. FORENSIC PSYCHOLOGY RES. & PRACTICE 93

(2019).