Scholars Complete Working Draft of Revised Criminal Procedure Law

October 26, 2005

Chinese legal scholars have completed a working draft of the second set of revisions to China's Criminal Procedure Law (CPL), according to an October 11 report by government-run China Radio International Online (CRI). Professor Xu Jingcun of Southwest University of Political Science and Law formally announced completion of the document during the 2005 National Conference on Procedure Law, held from September 24 through 26 in Tianjin.

Chinese legal scholars have completed a working draft of the second set of revisions to China's Criminal Procedure Law (CPL), according to an October 11 report by government-run China Radio International Online (CRI). Professor Xu Jingcun of Southwest University of Political Science and Law formally announced completion of the document during the 2005 National Conference on Procedure Law, held from September 24 through 26 in Tianjin. In his interview with CRI, Professor Xu revealed that a scholar-led working group has been discussing the revisions since June 2004 and should be ready to release their draft to affected public security, procuratorial, and court agencies for review and comment in November. The Beijing News previously reported that the National People's Congress was working toward final passage of the CPL amendment by 2007.


Professor Xu pointed out that the working draft revisions add the following safeguards absent in the first revised CPL, which went into effect on January 1, 1997:

  • Witnesses must appear in court. In an effort to establish more concrete guidelines on the collection of evidence, the working draft revisions include language requiring that "a witness must appear in court as long as it is possible for that witness to appear in court."
  • Lawyers must be present during interrogation of a criminal suspect. In response to a series of wrongful convictions that raised concerns about the use of torture in the Chinese criminal justice system, CRI reported that drafters included this provision as a measure to help guard against further confession by torture. Drafters have recognized that about 204 counties currently lack the presence of any lawyer at all and have thus used language conditioning notification or appointment of a lawyer on the actual availability of one, according to CRI.
  • Residential surveillance and detention are now synonymous with formal arrest. Chapter 6 of the CPL currently includes an order to appear, an order to obtain a guarantor pending trial (a process analogous to bail), residential surveillance (a form of house arrest), detention, and formal arrest as separate categories of restraint on a suspect's freedom, each with their own time limits. Article 58 authorizes up to six months of residential surveillance, while Article 69 authorizes detention without formal arrest charges for up to 37 days in exceptional cases. The working draft revisions eliminate reference to "residential surveillance" and "detention" and equate these actions with formal arrest, for which public security officials must produce an arrest warrant. Authorization of formal arrest will remain with the procuratorate.
  • Testimonial freedom. Experts working on the draft revisions suggested incorporation of an explicit "right to remain silent," but Professor Xu explained that the drafters have instead opted for the term "testimonial freedom." They have defined this term to include the right to choose between testifying or remaining silent.