The International Convergence of Criminal Procedural Law in China: A Criminal Discourse Analysis of Defendant's Rights

• Author: Suqing Yu & Mingxue Zhu
• Position: Ph.D., Dean and Professor of School of Foreign Studies at East China University of Political Science and Law/Master candidate in Legal Linguistics at East China University of Political Science and Law
• Pages: 29-50

International Convergence of Criminal Procedural Law in

China: A Critical Discourse Analysis of Defendant’s Rights

Suqing Yu & Mingxue Zhu1

Abstract: After the Second World War, the issue of human rights protection has

aroused extensive discussion on a global scale, and many domestic and international

laws that have been born after that have reflected concerns about human rights issues.

As far as criminal litigation is concerned, due to the obvious inequality of power in

the criminal litigation process, the issue of how to restrain public power and protect

the rights of the defendant in criminal litigation has also received a lot of attention.

From 1979 to 2018, in the context of globalization and reform and opening up

policies, China’s criminal procedure law has also undergone a series of reforms.

During the reform of the Criminal Procedure Law of the People’s Republic of China,

there is an obvious trend of internationalization, and the gradual improvement of the

protection of the rights of the defendant is an example of this trend. The attention paid

to the rights of the defendant in the reform of the Criminal Procedure Law of the

People’s Republic of China is reflected in the specific language use in each version.

This article aims to use Fairclough’s critical discourse analysis theory to analyze the

differences in language expression related to the rights of the defendant in the four

editions of the Criminal Procedure Law of the People’s Republic of China revised

from 1979 to 2018 from a language level. Based on the theoretical framework of

Critical Discourse Analysis proposed by Fairclough, three types of verb phrases

related to the accused: “k ěyǐ+X”(may+X), “yǒuquán+X” (have the right to+X), and

“tígōng+X” (provide+X) in the four versions of the Criminal Procedure Law of the

People’s Republic of China from 1979 to 2018 are analyzed for two other interrelated

dimensions of discourse-discursive practice and social practice that occur in a specific

political and social context. The research results of this article show that these three

types of verb phrases have been used more frequently in the several editions of the

Criminal Procedure Law revised in 1996 and later, and their collocations are more

abundant. This linguistic phenomenon shows that the Criminal Procedure Law of the

People’s Republic of China has gradually given the defendant more rights in the

reform process, so that it can have more opportunities to contend with public power.

The emergence of this change is closely related to the globalization of law, the

development of market economy, the development of socialist democracy and the rule

of law. In addition, this article also found that since the outbreak of the COVID-19

pandemic, the judicial department has also taken corresponding convenient measures

to protect the rights of the defendant in criminal proceedings.

Keywords: Human Rights Protection; Criminal Procedural Law; Fairclough’s

Critical Discourse Analysis Theory

1The first author: Suqing Yu, Ph.D., Dean and Professor of School of Foreign Studies at East China

University of Political Science and Law; the second author: Mingxue Zhu, master candidate in Legal

Linguistics at East China University of Political Science and Law. This article is the preliminary output

of National Social Science Fund o f China named “The Legal Language Changes and Contextualization

in the Modernizing Process of Criminal Procedure System in China”(NO.20byy075).

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1. Introduction

The development of globalization has become prominent after the Second World

War, as interactions between different countries and regions rapidly increase,

benefiting from the fast development of transportation and communication.

Globalization of law is an important part of the whole process of globalization, and

the past few decades have witnessed active interactions between different legal

systems. The integration of common law system and civil law system has become a

new trend, and countries today frequently transplant and learn about other countries’

law and legal systems. Globalization of law has become the universal background for

all countries seeking legal innovations and reform, including China.2From 1979 to

2018, the Criminal Procedure Law of the People’s Republic of China went through a

series of reforms, in which a clear sign of international convergence can be witnessed,

especially in its focus on the rights of the accused. Due to the special power relation

that is very asymmetric in criminal proceedings, there has been much attention to how

to restrain public power and protect the rights of criminal defendants. Such focus on

the rights of the accused in the Criminal Procedure Law of the People’s Republic of

China reforms reflects the influence of the widespread concern about the protection of

human rights after the Second World War. Many international laws and domestic laws

in other countries have already tried to address the issue of human rights protection,

and they all provide experiences and lessons for Chinese legal system.3

The focus on the rights of the accused in the Criminal Procedure Law of the

People’s Republic of China reforms can be seen in the specific language used in the

four versions. Meanwhile, changes in language use are not merely a linguistics

phenomenon, as many discourse scholars have revealed. Power relations and

ideologies related to language use are also important aspects of discourse. Therefore,

based on the theoretical framework of Critical Discourse Analysis4proposed by

Norman Fairclough,5this article intends to analyze three types of verb phrases related

to the accused: “kěyǐ+X” (may+X),6“yǒuquán+X” (have the right to+X),7and

“tígōng+X” (provide+X) in the four versions of the Criminal Procedure Law of the

2See Shaobo Li, Condition, Limits and Means of Globalization of Criminal Proceedings, 25(5)

Journal of South-Central University for Nationalities (Humanitie s and Social Sciences) 97, 97-102

(2005).

3See Yuhong Hu, The Construction of An Academic Discourse System in the Discipline of Law in

Contemporary China, 29(4) Journal of Shanghai J iaotong University (Philosophy and Social Sciences )

21, 21-8 (2021).

4Critical Discourse Analysis is an interdiscip linary approach to the study of discourse that views

language as a form of social practice. Certain notable writers of this approach include Norman

Fairclough, Paul Chilton, TeunA. van Dijk and Ruth Wodak.

5Norman Fairclough is an emeritus Professor of Linguistics at Department of Linguistics and English

Language at Lancast er University. He is one of the founders of Critical Discourse Analysis as applied

to sociolinguistics.

6“Kěyǐ”, written as “可以” in Mandarin Chin ese, is a modal verb. “X” refers to any word or phrase

that collocates with “kěyǐ”, and a further discussion o f the use of “Kěyǐ” in legal context is provided in

Section Ⅴ. According to Modern Chinese Dictionary, “Kěyǐ” has three senses: expressing possibility or

capability; expressing permission; and expressing p ositive evaluation of something. See Dictionary

Editing Office, Modern Chinese Dictionary (7th Edition), The Co mmercial Press, p.739 (2016).

7“Yǒuquán”, written as “有 权” in Mandar in Chinese, is a formulaic sequence that is frequently seen

in legal context (which will be further analyzed in Sec tion Ⅴ). “Yǒu” is a verb that is primarily used to

express ownership, it can also be used to indicate a certain amount or degree of something, the

occurrence of an illness or situation, etc. “Quán”, as a noun, commonly refers to right or power. See

Dictionary Editing Office, Modern Chinese Dictionary (7th Edition), The Commercial Press, p.1081

(2016).

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