Research on Establishing China's Adversary-Mediator Negotiation System: A Collection of Essays on Litigation and Arbitration

Author: Ji Xiangde
Publisher:
Publish Date: 2006-11-01
Features: The contractual view of criminal procedure is the foundational factor for the emergence and development of plea bargaining; the utilitarian philosophical view is the driving factor; the judicial efficiency view is the inciting factor; the adversarial litigation structure is the supporting factor; and the well-developed right to defense, including the right to silence and the evidence disclosure system, is the safeguarding factor. Plea bargaining originated in the United States and has been widely adopted in countries such as Canada, the United Kingdom, Germany, Italy, Russia, and Japan. Despite widespread criticism and condemnation, it has maintained vigorous vitality. The emergence and development of this system are undoubtedly intrinsically linked to its unique institutional value, which cannot be matched by other criminal justice systems.
The Chinese legal academia has evolved from general introductions of this system to theoretical debates over its adoption or rejection. The judicial practice sector, from its cautious approach in cases like the "Qijiang Rainbow Bridge Case" and the "confidential witness immunity" issue, to the bold experiment by Mudanjiang Railway Transport Court in the "Meng Guanghu Intentional Injury Case," has all revealed the deep concern of litigation law scholars and judicial practitioners regarding whether this system can be adapted to China. The author proposes a criminal justice reform idea of establishing a "Chinese" (Chinese Adversarial Negotiation System). After a careful examination of China's cultural background, judicial conditions, and litigation system, the author systematically argues for the appropriateness of introducing and transplanting plea bargaining from a normative perspective, while also rationally analyzing the existing obstacles within China's current judicial system from a realistic one.
The author points out that the construction of the Chinese requires the realization of contractual concepts and criminal value ideals among the Chinese public, as well as multidimensional reforms in the models of investigative, prosecutorial, judicial, and defense powers, the status of defendants and victims in criminal proceedings, and the concepts, rights, and institutions of evidence disclosure and the right to silence. The author emphasizes that the successful introduction of the right to litigation theory in China's criminal procedure and the profound transformation of the judicial system under political reform are two indispensable fundamental factors for establishing the Chinese.
The successful cross-over of plea bargaining between the two legal systems and the significant transformation of China's economic system demonstrate that, through rigorous institutional design, China's criminal justice reform can fully absorb reasonable elements of foreign criminal litigation systems without being confined to the background of legal systems or passively waiting to hinder judicial institutional reform. The Chinese should rely on a litigation model that combines the strengths of both adversarial and inquisitorial systems, with fairness as its fundamental legal concept and efficiency as a complementary one. The bold exploration and meticulous arguments by scholars in the theoretical field, as well as the innovative and courageous practices of decision-makers in the practical field, are the immediate causes for the emergence of this model and the Chinese.