Victim-Offender Reconciliation in the People's Republic of China and Taiwan

Riccardo Berti

• Publisher: Palgrave Macmillan
• Year: 2016
• eBook ISBN:
  9781137527547
• Print ISBN:
  9781349580064
  9781137527530
• Subtopic: Criminal Law

This book examines the conciliatory institutions that operate within criminal law in the People's Republic of China and Taiwan. Despite having the same legal traditions, the two countries have taken very different political and social roads over the past century. Taking these important factors into account, the book compares the conciliatory mechanisms that have emerged in the two countries, particularly focusing on the influence of Confucian tradition in current criminal reconciliation practices. By drawing upon in-depth interviews with multiple experts in the area, the role of tradition in the discipline of modern Xingshi Hejie is explored, alongside an analysis of the reasons that lead victims and offenders to choose this conciliatory procedure. The book offers a fascinating account of this feature of criminal justice in China and Taiwan, and will be of particular interest to scholars interested in comparative approaches to criminology and criminal justice.

1

Introductory Profiles

1 Premise

In dealing with criminal law each country of the world has to confront several issues; among these certainly the most common are prison overcrowding, the difficulty in the recovery of debts arising from criminal offenses, and the problems created by the excessive duration of trials. But on closer inspection, these issues could be defined as “practical ones” that are not part of the difficult problems with which criminal lawyers around the world are dealing with nowadays.

What is in front of us is a real crisis in criminal justice; a crisis that emerges especially on the side of rehabilitation, an issue the world pursues through the instrument of criminal proceedings and sanctions that follow. However, the results, as confirmed by many studies,¹ are largely contradictory and lacking.

These and other reasons lead scholars to look more often and more carefully to legal solutions adopted in foreign jurisdictions in order to solve, or at least mitigate, these problems. An institution surely interesting in these regards is the so-called Xingshi Hejie, 刑事和解, a criminal procedure active in the Republic of China and in Taiwan. When we say Xingshi Hejie (刑事和解),² which could be translated as “victim-offender reconciliation” (VOR), we are talking about a conciliatory practice that was only recently implemented in China’s criminal legal system, although it has very ancient roots.

It is founded, basically, on a choice that the person accused of minor criminal offenses makes to enable a conciliatory procedure with the consent of the judge and the prosecutor to obtain a less severe punishment at the end of the judicial process. It is a procedure that allows the victim to receive and promote the offender’s repentance; in fact very often the rules of Xingshi Hejie emphasize a formal apology from the offender to the victim and society, or acts expressing repentance and contrition. These features of Xingshi Hejie lead to its insertion in what are called practices of restorative justice that consist of encouraging the offender to repent for his/her criminal actions, which in turn leads to a meeting.

Including VOR in the list of restorative justice practices is essential to understand how deeply rooted in Chinese history and philosophy these practices are, and therefore how far back in time the beginnings of criminal reconciliation in China go. John Braithwaite, one of the greatest theorists of restorative justice, recognizes the famous Chinese philosopher Confucius as probably the most influential thinker in the field. Braithwaite supports his argument with a significant sentence in Confucius’s Dialogs. Braithwaite says: “One of Confucius’s best-known views is that ‘if the people be led by laws, and uniformity sought to be given punishments by them, they will try to avoid the punishment, but have no sense of shame’ (Confucius 1974, p. 16).³ In opposition to his contemporaries, he was against capital punishment (pp. 92–93, 98). Reciprocity, mutuality, and harmony were central to his ways of seeing.”

2 Purpose of the research

This research is interested in Xingshi Hejie as it is enforced in the legal systems of Mainland China and Taiwan.

With regard to Mainland China, this means examining regulations enacted by the central government. Thus the institutions operating in Macao and Hong Kong, which are two Special Administrative Regions that benefit from strong traits of autonomy are excluded, as are the five Autonomous Regions: Tibet, Inner Mongolia, Guangxi, Ningxia and Xinjiang.

Consideration of the practice in both the People’s Republic of China (PRC) and Taiwan is justified by the fact that it allows observation of the same legal tradition in two realities that have taken very different political and social roads over the past century, thus permitting a more detailed examination of the influence of Confucian tradition in current criminal reconciliation practices.

3 Outline of the elaborate

The Chinese legal tradition

The paper then presents an overview of the Chinese legal tradition with particular attention to the Confucian philosophy and its values. This study aims to understand if and how the age-old legal tradition of China has now been transposed to modern Chinese law, and how much of the modern Xingshi Hejie in both China and Taiwan is influenced by this tradition.

The Xingshi Hejie in Chinese and Taiwanese law

Then we analyze the institution of the VOR in both the continental Chinese reality and the Taiwanese one, considering various aspects, including in particular:

The offenses involved

The Chinese Criminal Code in Article 37 states the possibility of giving up criminal punishment in case of a reconciliation between the victim and the offender, thus simply establishing that it must be a case involving a “minor offense”.

Instead in Taiwan Articles 57 and 59 of the Criminal Code establish a relevant mitigation of the punishment if the accused shows true repentance and if he/she is found forgivable by the court. Taking the cue from this regulation, a judicial recognition has been developed of pre-trial reconciliation between the victim and the offender.⁴

The procedure:

In June 1989 the PRC proceeded to reform the system of the People’s Committees of Conciliation; substantially, the “People’s Mediation Committees” (PMC) by that time lost their legitimacy to mediate in criminal matters, maintaining their function only for the civil cases. Nonetheless shortly after, some provinces (e.g., Shanghai) reinstated the PMC’s mediating function in minor criminal offenses.

The mediation procedure in the PRC consists of a system for which thecivil process that is established on the basis of an offense for criminal damages can undergo a procedural simplification, and in this case the process ends the penal prosecution with no punishment if the conciliatory solution is satisfactory for the victim and the Procuratorate believes it is acceptable.

Whereas in Taiwan, the process is founded on the chance given to the judge to pursue and support an informal mediation between victim and offender, or to direct the parties to social workers specialized in this kind of reconciliation procedure. Then the judge can consider and take into account the reached agreement in conveying the judgment.⁵

The pan-Chinese cultural environment

The scene just depicted requires further inquiry into the positive environment where this sort of reconciliation takes place. In Chinese society collectivism plays an important role and is a significant factor in crime control. Thus we then have to examine the phenomena like Guanxi 关系⁶ and collectivism in order to better understand Chinese reconciliation procedures in criminal matters.

These peculiar traits lead to a major question: whether this reconciliation model constitutes a unicum that we cannot separate from its positive-communitarian environment, and therefore whether or not it is exportable abroad to societies more individual-centered and with no consolidated tradition in restorative justice practices.

Research profiles about victim-offender reconciliation in China and Taiwan

The Xingshi Hejie

The research that I have realized in China and Taiwan has highlighted some issues that deserve further study, in particular, we will talk about the debt that modern Xingshi Hejie has toward the legal tradition of Imperial China, and we will examine how this debt is effective and to which traditional steam it is actually due.

In addition, we will try to highlight the real reasons why the victim and the offender choose the reconciliation process as an alternative to ordinary civil proceedings. Do we face, therefore, a mere commercial-like trade between compensation on one side and reduction of sentence on the other, or on the contrary is it effective in China because of the “culture of forgiveness” preached by the Confucian classics in which the exchange between the offender’s apology and the forgiveness of the victim is much more meaningful than any legal or economic exchange, which can take place only in the background.

Another aspect that deserves attention concerns the future prospects open for the VOR, with particular reference to its compatibility with the principles of the criminal justice system, a relationship that is likely to affect the extent to which these practices have a very burdensome future.

Other models, role of the U.N. and the exportability of the Xingshi Hejie

The issue of mediation in criminal matters, as well as the wider one about restorative justice, have been the subject of increasing academic attention in recent years. Therefore it is suitable to review the most significant examples of these practices in the various states in which these are well established.

The role of the U.N.

Before proceeding to the conclusions, we analyze how the Chinese experience in the field of mediation has emerged clearly at the supranational level. When the U.N. decided to develop the “Basic Principles on the Use of Restorative Justice Program in Criminal Matters” the delegation of the PRC was chosen from among 18 countries appointed to study a model of supranational criminal reconciliation to be proposed as a scheme.

The exportability of the Xingshi Hejie

Although there is a growing interest throughout the world in restorative justice and mediation in criminal matters, we must examine whether the Chinese example can or cannot be profitably exported abroad. In this sense, it is important to point out why this reconciliation mechanism works well and how much its success depends on environmental elements, which are difficult to reproduce in another country. As it results from the research, the Xingshi Hejie seems sustained by Chinese tradition and, to a certain extent, it is able to survive the social transformation that is occurring in China, thanks to the extensive effort in formation made from its authorities.

So what the Chinese experience teaches us is that we must focus on a comprehensive education of all of the parties in criminal justice matters in order to obtain a functional and fruitful restorative justice mechanism.

4 Method note

The examination of an institution belonging to a legal culture that is utterly original and far from that of the writer is certainly suitable for a comparative methodology.

In particular this ...

Table of contents

• Cover
• Title
• 1  Introductory Profiles
• 2  The Chinese Legal Tradition
• 3  The Xingshi Hejie in Chinese and Taiwanese Law
• 4  Research Profiles about Victim-Offender Reconciliation in China and Taiwan
• 5  Other Models, Role of the UN and the Exportability of the Xingshi Hejie
• 6  Conclusions
• Appendix
• Notes
• Index