Which kind of party? The role of crime victims in Chinese criminal procedure

Abstract

Criminal procedure in China was an inquisitorial one before the 1996 amendment to the Criminal Procedure Law. The amendment introduced a series of "adversarial" elements and constructed criminal trial as a contest between the prosecutor and the defendant. There is a widely shared presumption that victims may play a more active role in an inquisitorial system than in an adversarial system. However, China's case presents a counterexample. The new "adversarial" system in China recognises the victim as a "party," enjoying equal procedural rights with the defendant. This article examines the procedural rights guaranteed to victims by the amended criminal procedure law, identifies the major changes in the role of victims, and evaluates the effectiveness of these doctrinal changes. The central argument is that, with a largely policy-implementation orientation, the Chinese system is unlikely to endorse victims' rights to the extent of sanctifying victims' autonomy. The system is more likely to accept a "punitive victims' rights" model, which would subsume victims' interests in the larger policy objective of crime control. The development of welfare rights and informal arrangement of restorative justice may be more beneficial for victims than the codification of formal participatory rights in China's current political and legal context.