Cambridge University Press 978-1-107-16241-9 — Criminal Defense in China Sida Liu , Terence C

Cambridge University Press 978-1-107-16241-9 — Criminal Defense in China Sida Liu , Terence C. Halliday Index More Information

Index

accessing case files, 44, 50, 53–55 types of costs paid by, 91 difficulties in for economic or white collar WeChat use by, 75, 158 crimes, 61 women, 96 interview data on, 51 actor mismatch, 5, 22, 39 ACLA Criminal Law Committee, 35, 36, 86 Ai Weiwei, 94, 160 ACLA forum, 52, 59, 145, 167 All China Lawyers Association (ACLA), 14, 21 decline of, 152 Ma Kedong case and, 69 lawyer persecution cases on, 45 silence of during Li Zhuang case, 70 Lawyer SOS case, 45–46, 59 American Bar Association (ABA), 38, 161 political liberalism on, 145–148 Rule of Law Initiative (ROLI), 163 rule of law on, 146 Amnesty International, 161, 163, 166 ACLA Regulation on Lawyers’ Handling of China Human Rights Lawyers Concern Criminal Cases (1999), 67 Group, 166 acquittal rates in criminal cases, 34 Anglo-American adversarial trial system, 54 activist lawyers, 70, 160, 171, See also legal Anglo-American law, 24 complex; motivations of activist lawyers; Anhui Law Firm, 45, 46, 92, 110, 113 notable activists; weiquan lawyers anti-black campaign, 124, 140 2012 CPL and, 40 Article 306, 40, 44, 45, 132, See also Big activist community in Beijing, 113 Stick 306 BLA election movement of 2008 and, 107–112 Article 306 of the 1997 Criminal Law, 29 black mafia and, 95 Article 307, 45 Christian, 104–106, 114–115, 120 Article 33 (2012 CPL), 39 courage of, 120 Article 34 (2012 CPL), 39 defined, 90 Article 38 of the 1996 CPL, 29 domestic networking strategies of, 112–115 Article 73 (2012 CPL), 42 educational trajectories of, 95 assaults, 95 international support institutions for, 115–119, 165 backward movement of legal reform, 122 Internet and social media use by, 173 bar associations, 4, 150, 164, See also All China mobilization on behalf of each other, 98 Lawyers Association (ACLA); American nationwide crackdown on (2015), 159–170 Bar Association (ABA); Beijing Lawyers online international networking of, 160–170 Association (BLA); Chongqing Lawyers paths to activism, 95–99 Association; City Bar of New York; professional sanctions against, 91–92 International Bar Association; Inner repression of by public and state security, Mongolia Lawyers Association (IMLA); 92–94 Lawyers for Lawyers rule of law and, 119 data from, 14

192

Index 193

human rights sections of, 162 China Human Rights Lawyers Concern lawyer persecution cases and, 66–71 Group, 160, 166 Li Zhuang case and, 70 China University of Political Science and Law media and, 71 (CUPL), 25 national, 162 China Youth Daily, 131–133 perjury cases and, 68, 69, 70 ChinaPol, 160 political liberalism and, 112 Chongqing Daily, 124 regulatory power transferred to in 2000s, 35 Chongqing Evening Post, 134 basic legal freedoms, 5 Chongqing Lawyers Association, definition of, 3 Li Zhuang case and, 70 fight for, xiv–xv, 173–178 Christian house churches, 97, 114–115, 120 lawyer representation and, 21 Christian lawyers, 97, 101, 103, 104–106, 120 lawyers protection of, 3, 4, 5 domestic networking strategies of, 114–115 lawyer’s pursuit of, 173–178 City Bar of New York, 163 Beihai case, 153–158 civil society, 111, 120, 175 Beijing, as element of political liberalism, 4–5 activist lawyers in, 113 rights consciousness and, 101 Beijing Bureau of Justice (BBOJ), 91, 92, client protection, 57 113, 138 Cohen, Jerome A., 107 professional sanctions and, 91–92 collective action, 3, 144 Beijing Lawyers Association (BLA), call for lawyer’s on online forums, 146 2008 election, 107–112 for basic legal freedoms, xiv–xv, 173–178 Li Zhuang case and, 70 lawyer persecution cases and, 149–151, 173 professional sanctions and, 91–92 of Chinese lawyers against populism, 122, 123 Stern Statement of, 109 of Chinese lawyers in Li Zhuang case, 142–143 Big Stick 306, 1, 44, 45, 57–60, 61, 68, 172, 179 of lawyers against bar associations, 70 criminal defense lawyers on, 57 Three Difficulties and, 172 evidence collection and, 57 collegial help among lawyers, 66–68 Li Zhuang case and, 132 colluding-style lawyers, 9 political embeddedness and professional confession by torture, 32, 34, 39 difficulties and, 60–64 Article 73 of 2012 CPL and, 42 black lawyers, 132 Constitution of the People’s Republic of black mafia, 95 China, 164 black stone lawyer, 157 constitutionalism, xii, 100, 105, 119 blogs, 152 contradictions, See ideological contradictions; Bo Xilai, 9, 123, 124, 140–141 structural contradictions bribery cases, 41, 42 corruption cases in China, 9 courage, of criminal defense lawyers, 120 capacity building, 17 courts, 5, See also Police, Procuracy, and Court cause lawyering, 3, 175 (PPC); trials Chang Boyang, 164 criminal defense lawyers, Chen Guangcheng, 89, 98 as solo practitioners, 145 Chen Guangwu, 154, 155 Big Stick 306 and, 58, 179 Chen Guangzhong, 25 courage of, 120 Chen Weidong, 38 dangers of work for, 29, 57, 87 Chen Xingliang, 34 earlier careers with PPC and, 82–85 Chen Youxi, 133 harsh conditions for, 1–2 Cheng Guangcheng, 118 interview data on motivations of, 79 Cheng Kejie, 69 motivations and political values of (in major Chi Susheng, 154 cities), 85–87

194 Index

criminal defense lawyers (cont.) procuracy and, 39, 40, 41 motivations of (smaller cities), 79–85 recursivity and, 40–42 nationwide crackdown on (2015), 159–170 Cullen, Richard, 90 participation in police interrogation, 37 Cultural Revolution, 20 political values of (smaller cities), 79–85 professional difficulties in everyday work for, data collection, 11, 14 60–64 ACLA forum and, 145 pursuit of basic legal freedoms by, 173–178 death penalty cases, 23 restraint of state power and, 4 Deng Xiaoping, 21 criminal justice law, detentions, 58 before 1979, 18–21 Internet and media and, 160 imbalance of power in justice system, 147 diagnostic struggles, 18 Criminal Law (1997), 1, 44 die-hard lawyers, 9, 10, 70, 123, 144, 157, 160, Criminal Procedure Law, 11, 17, 19 168, 175, 177 Article 36 of, 36 social media and, 153–158 striking crimes versus protecting citizens’ disappearances, 89, 93–94, 95, 113, 168 legal rights, 83 Internet and media and, 160 Criminal Procedure Law (1979), 21–24, 179 of political dissidents, 40 lawyer’s participation in, 35 of Wang Yu, 158–160 police and, 23 domestic networking strategies, 112–115 procuracy and, 23, 24 Criminal Procedure Law (1996), 37 economic crimes, 61 client protection and, 57 educational trajectories of activist lawyers, 95 evidence collection and, 56 elite mobilization, 7, 16, 144 human rights and, 34 of Chinese lawyers in Li Zhuang case, ideological contradictions in, 28 142–143 ideological contradictions inherent in, 26, 27 entry points implementation of, 29–34 of notable activist lawyers, 99 lawmaking process of, 24–29 European Union, 161 lawyer arrests after, 29 everyday political lawyering, 83 lawyers difficulty in meeting suspects, 30 everyday work, 44, 171, 172, 173 lawyers difficulty in meeting suspects struggles in, 42, 60–64 and, 30 evidence collection, 44, 56–57, 62 lawyer’s participation in, 35 1996 CPL and, 56 police and, 27, 29, 30, 31 2012 CPL and, 40 procedural rights of criminal suspects and Big Stick 306 and, 57 defendants in, 34 collegial help among lawyers and, 67 procuracy and, 27, 29, 31, 32 exclusion of illegal evidence, 32, 42, 156 state secrets in, 28, 30 falsification and, 57 structural contradictions in, 27 interview data on, 50 trial system change in, 54 Li Zhuang and, 124 Criminal Procedure Law (2012), 34–40 recursivity and, 42 accessing case files, 53–55 exemption from prosecution, 24, 26 Big Stick 306 and, 60 evidence collection and, 40, 56–57 Falun Gong, 101, 102, 103 human rights and, 40 Fang Ligang, 154 lawyer’s meeting with suspects and, 44, 53 Fengrui law firm, 92, 113, 160, 163 lawyer’s perjury and, 40 Four Comprehensives, 163 lawyer’s participation in, 35 freedom of religion, 102–104 legal proceduralism and, 40 freedom of speech, 102–104 police and, 39, 40 Fu, Hualing, 90

Index 195

Gang of Four trial, 122, 143 international legal complex, 162 Gao Zhisheng, 89, 98, 118 international mobilization, Gao Zicheng, 133 social media and Internet and, 163 Global Law Firm, 92, 98, 113 International Olympic Committee, 164 global networks of lawyer, 158 international practices and global standards, 38 Gong Gangmo, 124 international religious organizations, 116 Gong He Law Office, 151 international support institutions, 115–119, 165 grassroots activists, 8, 10, 145, 172 Internet, 5, 75, 173, See also media; online media use by, 74, 78 mobilization; social media reform and, 83 grassroots activist lawyers use of, 172, 173 Guangdong Provincial Lawyers international mobilization and, 163 Association, 69 lawyer disappearances and detentions Guangzhou Municipal Lawyers and, 160 Association, 69 Li Zhuang on Tianya (online forum) guerrilla policy style, 94 and, 134 interview data, 12, 45, 65 heroic lawyering, 83, 148 notable activists, 90, 95, 120 house church, 97 on criminal defense work as choice despite Huang Yabin, 58 dangers, 79 Huarui Law Office, 46 on political embeddedness and lawyers’ human rights, 175 difficulties, 60 1996 CPL and, 34 Three Difficulties and, 50 2012 CPL and, 40 iron triangle of Chinese criminal justice, 1 bar associations and, 162 rights consciousness, 101 Jasmine Revolution, 113, 114 Wang Yu case and, 158–160 Jiang Tianyong, 95, 114, 160, 164 WeChat Human Rights Lawyers Group, Joint Regulation, 28, 41 114, 158 judges, 100 persuading in court, 50, 51, 61 ideal types of lawyers, 6, See also grassroots judiciary for the people slogan, 122 activists; notable activists; pragmatic brokers; progressive elites; routine practi- Kangda Law Firm, 122, 124, 126, 140 tioners; types of lawyers compared, 6–11 Law Blog, 152 ideological contradictions, 123 lawmaking, 5, 175 in CPL, 26, 27, 28, 42 1996 CPL lawmaking process, 24–29 in Li Zhuang case, 131, 142 ideological contradictions in 1996 CPL, 27 illegal evidence, 42 lawyer’s input in 1979 and 1996 CPL and, 35 exclusion of, 32, 156 lawyer’s participation in post-1996 CPL illiberal political societies, x–xi, 178 and, 35 imprisonment, 89 three major mechanisms of, 17 indeterminacy, 41 lawyer persecution, 29, 58, 59, 145 indirect coercion, 17 1996 CPL and, 29 Inner Mongolia Lawyers Association Amnesty International and, 161 (IMLA), 68 bar associations and, 66–71 International Bar Association, 162 Big Stick 306 and, 57–60 International Covenant on Civil and Political black mafia and, 95 Rights (ICCPR), 34 collective action and, 173 International Covenant on Economic, Social collective action and online mobilization and Cultural Rights (ICESCR), 34 and, 149–151 international human rights organizations, 116 Lawyer SOS case, 45–46, 59

196 Index

lawyer persecution (cont.) Li Jinxing, 154 Letter of Protest against China’s Arrest of Li Jizhou, 69 Rights Lawyers and, 164 Li Kuisheng, 58 Ma Guangjun case, 48–50 Li Tiantian, 94 Ma Kedong case, 68, 69 Li Zhuang case, 40, 57, 132, 172 media and, 71 allegations of prostitution use by, 133–135 professional sanctions against activists, 91–92 controversial coverage of in China Youth Wen Zhicheng case and, 46–48 Daily, 131–133 Zhang Jianzhong case, 69 hidden poem episode of, 135 lawyer representation, 21 Law Blog and, 152 Lawyer SOS case, 45–46, 59, 149 political mobilization of Chinese lawyers in, lawyer’s perjury, 1, 29, 40, 69, 126, 128, 132, 142–143 136, 139 political ramiﬁcations for Bo Xilai and, lawyer’s rights, 36 140–141 lawyers, See grassroots activists; ideal types of professional mobilization in, 136–140 lawyers; notable activists; pragmatic bro- professionalism vs. populism in, 131–136 kers; progressive elites; routine practi- silence of ACLA in, 70 tioners; types of lawyers summary of, 124–131 Lawyers for Lawyers (L4L), 162 Liu Shihui, 94 Lawyers Law, 13, 39, 65, 108, 150 Liu Xiaoyuan, 160 lawyers’ mobilization, See elite mobilization; Liu, Sida, 90, 153 online mobilization; political mobilization; professional mobilization Ma Guangjun case, 45, 48–50, 56, 68, 151 legal complex, vs. Ma Kedong case, 69 comparative historical mobilization, xiv–xv, Ma Kedong case, 68, 69 173–174 vs. Ma Guangjun case, 69 deﬁned, 10 media, 5, 31, 165, See also Internet; online mobilization in China, 176–178 mobilization; social media mobilization of international, 161–162, caution of reporting on defense lawyers 166–170, 171–178 by, 72 political mobilization by, 11 commercialization and legal coverage in, 71 legal proceduralism, controversial coverage of Li Zhuang case in 2012 CPL and, 40 China Youth Daily, 131–133 legal professionalism, 122, 143 international, 116, 117, 171 legal reform, lawyer characterizations in, 71 1979 CPL and, 21–24 lawyer persecution cases and, 71 activist lawyers on, 100–104 lawyer use in smaller cities, 73–75 backward movement of, 122 Li Zhuang on Tianya (online forum) competing ideologies in, 123 and, 134 future of, xi–xiii Ma Guangjun case and, 45 Gang of Four trial vs. Li Zhuang case, 143 media exposure in smaller cities, 71 grassroots activists and, 83 political intervention and, 73 recursivity theory and, 18, 41 restoring the defendant’s social reputation legal scholars, 22, 25, 31 and, 72–73 Letter Calling for the Immediate Release of the Wang Yu case and, 159 Defendants of the Beihai Case, 156 Michelson, Ethan, 60, 62, 90 Letter of Protest against China’s Arrest of Ministry of Justice (MOJ), 21, 22, 25–26, 28, 29, Rights Lawyers, 164 35, 39, 147 Li Chunfu, 93, 108 Ministry of Public Security (MPS), 22, 25, 27, Li Fangping, 160 28, 39, 41, 147 Li Heping, 93, 95, 98, 160, 166 Ministry of State Security (MSS), 22, 28

Index 197

mobilization, See also elite mobilization; persecution, See lawyer persecution online mobilization; political mobiliza- police, 1, 11, 36, 41, See also Police, Procuracy, tion; professional mobilization and Court (PPC) Model Criminal Procedure Code, 38 1979 CPL and, 23 moderate state, xi, 2, 43, 145, 181 1996 CPL and, 27, 29, 30, 31, 32 as element of political liberalism, 5 2012 CPL and, 39, 40 motivations of activist lawyers, 89–90 activist lawyers on power of, 99 fostering rights consciousness, 101 arrest of Ma Kedong by, 68 freedom of speech, religion and property as, defense lawyers participation in 102–104 interrogation by, 37 no expectations of fundamental changes in lawyers meeting with suspects and, 30, legal system and, 100 44, 53 paths to activism, 95–99 placement of outside homes of activists, 92 religious beliefs as, 104–106 shelter for investigation and, 24, 26 solidary relationships, 107 witness coercion and, 56 speaking for the public and, 101 Police, Procuracy, and Court (PPC), 9, 11, 63, victim empowerment and, 102 65, 67, 70, 147 motivations of criminal defense lawyers, data from, 14 in major cities, 85–87 earlier careers of lawyers in, 82–85 in smaller cities, 79–85 political embeddedness and, 75–79 political activists, 6 National People’s Congress (NPC), 22 political embeddedness, 1, 66, 158 Ni Yulan, 89, 96 as spatial concept, 87 Ningcheng County, 48 connections with state agencies and, notable activists, 8, 9, 42, 70, 166, 173, See also 75–79 activist lawyers defined, 5, 6 dangerous cases taken by, 89 of pragmatic brokers, 172 entry points of, 99 of progressive elites, 9 liberal values and motivations of, 87 political liberalism and, 85–87 marginal status and mobilization powers professional and everyday work difficulties of, 112 and, 60–64 on meeting suspects, 41 spatial limits and, 6 repression against, 173 political lawyering, 3, 5, 171, 175 use of media by, 71, 72, 75 political liberalism, 1, 7, 143, 147, 151, 172, 173, NPC Legal Work Commission, 25, 28, 35, 39 174, See also basic legal freedoms; civil NPC Symposium, 35 society; moderate state; illiberal political societies online mobilization, 144 activist lawyers and, 99 ACLA forum a, 145–148 bar associations and, 112 Beihai case and, 153–158 basic legal freedoms and, 175 international networking, 160–170 defined, 3, 5 lawyer persecution cases and, 149–151 future of in China, 173–178, 181–182 skeptics of, 148 lawyer mobilization and, 5 Wang Yu case and, 158–160 lawyers’ professional difficulties and, 62 organized crime, 124 on ACLA forum, 145–148 political embeddedness and, 85–87 People’s Daily, 159 structural restraints and, 5 perjury cases, 1, 40, 49, 57 three components of, 5 bar associations and, 68, 69, 70 political mobilization, 2, 6, 7, 148, 171, See also in 1997 CPL, 29 Li Zhuang case in 2012 CPL, 40 activist lawyers on behalf of each other, 98

198 Index

political mobilization (cont.) supervisory power of, 37–38 blogs and, 152 witness coercion and, 56 by legal complex, 11 professional mobilization, 3 domestic networking strategies, 112–115 comparative examples, xiv–xv international legal complex and, 162 in the Li Zhuang case, 136–140 lawyer advantage in, 3 inverse relationship between political of Chinese lawyers against populism, 122 liberalism and political embeddedness of Chinese lawyers in Li Zhuang case, and, 7 142–143 lawyer participation in lawmaking of notable activists, 112 process, 35 of politically liberal lawyers, 5 professional sanctions, against activist lawyers, of professionals, 2 91–92 two major strategies for, 173 professionalism, 123, 142, 172 Wang Yu case and, 158–160 vs. populism in Li Zhuang case, 131–136 Weibo and, 152–158 progressive elites, 6, 9, 35, 67, 136, 173 political values of criminal defense lawyers, as activist lawyers, 70 in major cities, 85–87 difﬁculties in workplace of, 40 in smaller cities, 79–85 liberal values and motivations of, 85–87 Political-Legal Committee (PLC), 99, 100 political mobilization and, 7 politically conservative lawyers, 7 use of media by, 71, 72 politically embedded lawyers, 6, 7, 9 Project 211 universities, 61 politically liberal lawyers, 7 property rights, 102–104 politically sensitive cases, 2012 CPL and, 41 recursivity, 174 populism, 122, 142 2012 CPL and, 40–42 criminal prosecution during socialist era four mechanisms of, 18 and, 134 illegal evidence and, 42 mobilization of Chinese lawyers against, of legal change, 41, 178–180 122 theory of, 18 vs. professionalism, 123 religious beliefs, 90, 101 vs. professionalism in Li Zhuang case, freedom of religion, 102–104 131–136 Renmin University of China, 38 power in Chinese law, 99–100 repression, 29 pragmatic brokers, 6, 9, 172 disappearing of political dissidents, 40 media use and, 74 grassroots activists and, 172 political mobilization and, 7 Internet and social media and, 173 proactive judiciary slogans, 122 motivation of lawyers to persist despite, procedural justice, 85 89 procedural rights, 44 nationwide crackdown on lawyers and 2012 CPL, 40 activists (2015), 159–170 of criminal suspects and defendants in 1996 of activist lawyers, 92–94, 112, 173 CPL, 34 residential surveillance, 93, 94, 156 protection of lawyers, 39 designated, 40, 42 proceduralism, 8, 10 rights consciousness, 101, 110 procuracy, 1, 44, See also Police, Procuracy, Rosenzweig, Joshua, 93 and Court (PPC) routine practitioners, 3, 7, 8, 40, 149, 172 exemption from prosecution and, 24 media use and, 74 in 1979 CPL, 23, 24 political mobilization and, 7 in 1996 CPL, 27, 29, 31, 32 rule of law, 119, 145, 146, 149 in 2012 CPL, 39, 40 collective action and, 147 power of exemption from prosecution, 26 Rule of Law Initiative (ROLI, ABA), 163

Index 199

September 2 Decision, 23 Three Difficulties, 44, 45, 50, 76, 86, See also Shandong Province, 62 accessing case files; evidence collection; shelter for investigation, 24, 26 suspects, difficulty in meeting for lawyers Shen Zhigeng, 151 collective action and, 172 Shouwang church, 115 interview data and, 50 shuanggui, 40 Tianya (online forum), 134 Sichuan Province, 61 torture, 42, 95, 124, See also confession by media in, 74 torture Sinking of the Rule of Law, A Critique on the trials, 9, 23, 26, 31, 44, See also Beihai case; Li Extraordinary Article of the China Youth Zhuang case; Ma Guangjun case Daily (Chen Youxi), 133 1996 CPL and, 54 social media, 5, 75, 144, 160, See also Internet; Gang of Four trial, 122, 143 media; online mobilization lawyer solidarity and, 113 die-hard lawyers and, 153–158 moral trials, 134 international mobilization and, 163 Sun Zhigang case, 97 Law Blog and, 152 types of lawyers, 171–172, See also ideal types of microblogs and, 152 lawyers online international networking, 160–170 Wang Yu case and, 160 US Embassy in Beijing, 160 WeChat and, 158 US-China Rights Dialogue, 164 Weibo and, 152–158 United Nations, 34 solidarity, 173 solidary relationships, 107 victim empowerment, 102 South China Morning Post, 160 Southern Metropolitan News, 48 Wang Cheng, 114 spokespersons for publics, lawyers as, Wang Yibing, 58 4–5, 102 Wang Yu case, 92, 93, 96, 158–160, 164, 167 state compensation, 32, 33 Wang, Cheng-Tong Lir, 15 state moderation, 21, 81 Washington Post, 166 state secrets, WeChat, 74, 114, 158 1996 CPL and, 28, 30 Human Rights Lawyers Group, 158 statutory recommendations, 37 WeChat Human Rights Lawyers Support strike hard campaigns, 23, 140 Group, 114 structural contradictions, 2, 5, 8 Weibo, 152–158 in 1996 CPL, 27 weiquan lawyers, 90, 95, 99, See also activist in 2012 CPL, 42 lawyers; notable activists political embeddedness and, 6 Wen Zhicheng, 150 substantive justice, 85 Wen Zhicheng case, 46–48, 56 Sun Zhigang case, 97 white-collar crimes, 61, 67, 74 Supreme People’s Court (SPC), 9, 22, 25, 27, witness coercion, 56 28, 147 workplace interactions, 44 Supreme People’s Procuracy (SPP), 22, 25, 27, Wu, Hongqi, 15 28, 39, 41, 147 survival strategies, 87 Xi Jinping, 162, 163 suspects, difficulty in meeting for lawyers, 27, Four Comprehensives of, 163 30, 31, 39, 41, 44, 50–53 Xu Wensheng, 56 symbiotic exchange, 78 Yang Xuelin, 157 Tang Jitian, 114, 160, 164 Yang Zaixin, 156 Teng Biao, 93 Yitong law firm, 92, 98, 110, 113

200 Index

Zeng Hailin, 47 Zhejiang Provincial Public Security Zhang Jianzhong case, 58, Bureau, 76 69, 151 Zhou Shifeng, 92, 160, 166 Zhang Kai, 95, 108 Zhou Yongkang, 9 Zhang Lei, 157 Zhou Ze, 156 Zhao Wei, 167 Zhu Dexin, 46