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Bureaucracy and Law a Study of Chinese Criminal Courts and Social Media

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Bureaucracy and Law a Study of Chinese Criminal Courts and Social Media BUREAUCRACY AND LAW A STUDY OF CHINESE CRIMINAL COURTS AND SOCIAL MEDIA A dissertation presented by Yu Zhang to The School of Criminology and Criminal Justice In partial fulfillment of the requirements for the degree of Doctor of Philosophy in the field of Criminology and Criminal Justice Northeastern University Boston, Massachusetts August, 2014 1 BUREAUCRACY AND LAW A STUDY OF CHINESE CRIMINAL COURTS AND SOCIAL MEDIA by Yu Zhang ABSTRACT OF DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Criminology and Justice Policy in the College of Social Sciences and Humanities of Northeastern University August, 2014 2 Abstract Born in a firmly-rooted bureaucratic society, Chinese judiciary has never gained the opportunity to build its own identity. Concurrently, Chinese people, immersed in a bureaucratic culture, always pin their dream of justice on a powerful bureaucracy rather on a weak judiciary. The current study discusses the thousands years of Chinese history and the significant impact of bureaucracy on Chinese society and courts, and then look into the potential change in a global era revolutionized with technology and internet. A story-telling mode is used to analyze eleven important criminal cases to disclose the operations of criminal courts in China. Large amount of social media data are presented to showcase the dynamic legal community and online activism. We do not know exactly the impact of government monitoring of the social media and it is an open question. Chinese online legal activism derives its methods and vitality from multiple and intersecting forces, including the particular internet transmitting formats, actual contemporary protest forms, incipient public space promotion. This study weaves these strands together to create a vivid story of a new era of informational politics in a background of criminal court framed in bureaucratic culture. The current research claimed that we have to review Chinese bureaucracy within Chinese cultural context rather than from a Western perspective. We found the history and characters of Chinese bureaucracy has significant influence on legal system and the vibrant social media has become an emerging force for potential change. 3 ACKNOWLEDGEMENTS I would like to begin by sincerely thanking my chair, Dr. Peter K. Manning, and my committee members, Dr. Phil He and Dr. Chester Britt. Without your assistance none of this would have been possible. You provided me with invaluable input in terms of leading me to where I am today professionally and personally. Professor Manning, you have not only taught me theories, but also educated me on American culture and this will benefit me my whole life. Thanks for training me with Western logic and jokes…I hope my dissertation is not used as a doorstop…If not for you, I would not have had this opportunity to look into the past, present and future of my homeland. Phil, I still remember the day I received your first email notifying me of my admission to Northeastern and a new beginning in Boston. I cannot thank enough for your help and support during my long journey. I certainly would not be here without your motivation and inspiration. You are such a good teacher and friend, how could I ask for more? Chet, I will always remember that you told us to “work with the system” instead of “beating the system”. I remember your statistics class and all the assignments which have been beneficial for us. Thanks for all the things you taught me: statistics, research and career advice. 4 In addition, I want to thank Laurie Mastone. I cannot imagine where I would be in this program without your assistance and friendship along the way. I need to thank my editor and friend, Maynard, who has spent his valuable time to polish my dissertation. Maynard, I have learned a lot from your edits. I need to thank my parents who have accompanied me during all these years and gone through all those difficult times. You both provide great role models and told me that the most important thing is to be a good person no matter what kind of profession I take. You taught me the importance of learning and are always supportive of my life. I am able to face all those challenges because I know you are there whenever I need help. I might almost reconsider pursuing this degree because I have missed so much time which could be spent happily with you and my elder sister. Dad, thanks for having pushed me toward success and you are truly an inspiration to me both in profession and personality. Mom, thanks for all the Chinese tradition you have taught me; you have prepared me well for the tough life. My elder sister, thanks for taking care of our parents while I have been away. I would be remiss if I did not mention the teachers and mentors who taught me the meaning of education and value of good counsel. I want to also thank my cohort for the memories they gave me during the first three years, although all of them have since left. 5 TABLE OF CONTENTS Abstract 2 Acknowledgements 4 Table of Contents 6 List of Tables 7 Preface 8 Chapter 1: Introduction: Bureaucracy and Law 1 3 Chapter 2: Bureaucracy and Chinese Criminal Court in History 20 Chapter 3: The Court and Criminal Justice System in China 76 Chapter 4: Methodology and Research Design 119 Chapter 5: Chinese Criminal Court: Case Study 13 8 Chapter 6: Social Media and Rule of Law in China 184 Chapter 7 Conclusion 236 References 253 Appendix 301 6 LIST OF TABLES AND FIGURES Table 1: Comparison of Judge Numbers, Case Numbers, Population, and GDP 88 Figure 1: Land dividing outline of the feudal system in Zhou dynasty 28 Figure 2: The Judiciary Structure in Imperial Times 47 Figure 3: The Judiciary Structure in Republican Era 62 Figure 4: Establishment of Courts in China after 1949 85 Figure 5: Number of Judges and Ruled Cases in Chinese Courts (2006-2010) 87 Figure 6: The Structure of the Court in China 92 7 Preface An increasing number of English writings in recent decades, focusing broadly on Chinese criminal justice and its imperial legal history (e.g., Bodde & Morris, 1967; Ch’u, 1961; Cohen, 1968, 1969; Watt, 1972), the modern criminal justice system and practice (e.g., Brown, 1997; He, 2013; Hegel, 2009, 2007; Leng & Chiu, 1985; Lo, 1995; Lubman, 1999; McConville & Pils, 2012; Shih, 1999; Trevaskes 2007), and criminal court procedures and legal reform (e.g. Lu and Miethe, 2002; 2003). These studies have important discussions regarding the theoretical and conceptual framework of Chinese criminal courts. However, they rarely review the court and criminal justice system within the framework of Chinese bureaucratic hierarchy. Therefore, this study emphasizes the style and characteristics of the Chinese bureaucracy due to the particular characteristics of Chinese bureaucracy, using the abbreviation CB to refer broadly this special type of bureaucracy. What is the Chinese style of bureaucracy? Why is it important to explore the bureaucracy framework in a study of the courts? During the past three millennia, Chinese society has been deeply rooted in a hierarchical bureaucratic culture. Without understanding the bureaucratic context of the Chinese court, we cannot understand why it is so difficult for China to build up judiciary independence and the rule of law, which are considered so important in Western democracies. This thesis argues that ’rule of law’ concepts dwarf against a tradition of hierarchical bureaucracy which has endured for thousands of years. 8 The Chinese people have their own uniquely Chinese dreams in history, as do all peoples on Earth. However, in the tradition of political thought, these dreams tend to relate to bureaucracy rather than individuals. The three Chinese dreams are: wise Emperor, honest Official, and upright Knight (Yi Ming, 2010). Born in a culture of bureaucracy, Chinese people rest their hope of justice and a good life in the bureaucracy, their emperors, and their officials. They expect that there could be a good emperor who can bring a well-ruled dynasty in which people can live in peace and wellness. They expect local officials to be honest and to care about people. If these two dreams are broken, they expect that some brave knights could save poor people by hacking the richer ones. None of these three dreams is related to the rule of law or resorting to legal assistance to protect ordinary people. Now thousands of years have passed, has this type of culture changed? Has the rule of law and democracy entered Chinese people’s minds? Have the Chinese people had set up new dreams of their future? This current research will examine criminal court and legal reform in the context of bureaucratic society in China, present both historical and cultural angles to reflect on the legal reforms, and explore through social media the extended legal changes. We will discuss the complex nature of the criminal justice system in China, investigating whether the Chinese judiciary can build its independent identity out of the bureaucracy and contribute to the future of democracy. We argue that the Chinese judiciary was born in bureaucracy and has been functioning as a bureaucratized system. The bureaucratized judiciary is a heritage from thousands years of Chinese history rather than a random development after the revolution of 1911 or 1949. 9 The current study looks back through the long Chinese history (Chapter2) for roots of the ambivalent state of the Chinese judiciary. Born, nurtured, and functioning in the imperial bureaucracy, the judiciary has never had opportunity to develop an identity independent of the bureaucracy. Around 1000 B.C.
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