Legal Reform and Administrative Detention Powers in China

Abstract

Using a conceptual framework, this 2007 book examines the processes of legal reform in post-socialist countries such as China. Drawing on Bourdieu's concept of the 'field', the increasingly complex and contested processes of legal reform are analysed in relation to police powers. The impact of China's post-1978 legal reforms on police powers is examined through a detailed analysis of three administrative detention powers: detention for education of prostitutes; coercive drug rehabilitation; and re-education through labour. The debate surrounding the abolition in 1996 of detention for investigation (also known as shelter and investigation) is also considered. Despite over 20 years of legal reform, police powers remain poorly defined by law and subject to minimal legal constraint. They continue to be seriously and systematically abused. However, there has been both systematic and occasionally dramatic reform of these powers. This book considers the processes which have made these legal changes possible.

Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law

“…During these campaigns, the procedures enacted in the 1979 CPL were largely replaced by the “severe and swift” ( congzhong congkuai ) principle and by unrestricted discretion of the police, procuracy, and court (Dutton 1992; H. Tanner 1999; Bakken 2005; Biddulph 2007; Trevaskes 2007). Among all the various procedural problems in the criminal process, two measures frequently used by the police and procuracy aroused the most attention of both Chinese legal scholars and foreign observers: shelter for investigation ( shourong shencha ) and exemption from prosecution ( mianyu qisu ) 12 .…”

Political Ideology, the Party, and Politicking: Justice System Reform in China

“…A more general debate about RETL revolves around the question of which organs should have the authority to send an offender to RETL (Biddulph, 2007). Some argue that the courts rather than the police should have this authority.…”

Hukou Status and Sentencing in the Wake of Internal Migration: The Penalty Effect of Being Rural‐to‐Urban Migrants in China

“…Li further argues that this enhanced punishment on the urban underclass population is particularly manifested in the development of a variety of administrative penalties that are restructured to incarcerate and manage precarious rural‐to‐urban migrants and laid‐off workers. This administrative detention, standing outside the criminal justice framework and formal prison system, has become China's primary tool used against the urban underclass, including rural‐to‐urban migrants (Biddulph ).…”

“…Despite its thoroughness and depth, past research on China's urban underclass population and penal policy has centered largely on the institutional expansion of China's punishment of rural‐to‐urban migrants and its attendant development of administrative detention (Li ; Biddulph ); it has paid less attention to the potential punitive control imposed on these migrants that is embedded within the criminal justice system. Given prior evidence of the association between the harshness of punishment and offender Hukou status in China (Lu and Kelly ; Liu et al ), it is possible that punitiveness reminiscent of an earlier era is still retained in the criminal justice system for rural‐to‐urban migrants, notwithstanding the exalted “lenient turn” in China's ongoing penal reform (Trevaskes ).…”