Rongjie Lan | Zhejiang University (original) (raw)
Papers by Rongjie Lan
UCLA Pacific Basin Law Journal, 2010
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and gr... more China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China's record of human rights protection. This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two highprofile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences. The reality is that many of these problems are caused by institutional flaws in China's criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair
Ius Gentium: Comparative Perspectives on Law and Justice
Although the use of torture and other illegal means to gather evidence was prohibited in China in... more Although the use of torture and other illegal means to gather evidence was prohibited in China in 1979, legislators did not begin to embrace exclusionary rules until the turn of the 21st century. However, this legislative promise has yet to be fulfilled in practice as few defendants request that illegally obtained evidence be excluded and even fewer judges approve such requests. Even if such a request is granted by the court, it remains highly unlikely that the outcome of the case will change. Such discrepancies between legislative endeavors and judicial practice might suggest that torture and other illegal means of acquiring evidence are not routine practice in China, that the Chinese culture tends to trust the government and to prefer substantive truth over procedural fairness, and places public interest above individual interests. As a result, the future of China's exclusionary rules will depend upon transformation of China's legal culture in addition to practical application of the corresponding changes to the law. As an effective measure to defer police wrongdoings, exclusion of illegal evidence in criminal procedure, ever since articulated by the United States Supreme Court in Mapp versus Ohio, 1 has emerged to be a core institution in any regime with genuine rule of law. The People's Republic of China (China), with the longest uninterrupted legal history in the world, has a legal legacy of obtaining evidence by coercive measures, and nowhere in its 2,000-year-plus documented history has seen the practice of excluding such evidence. After the Communist Party initiated the "Open-up and Reform" policy in late 1970s and endeavored to embrace universal principles and institutions of rule of law and human rights protection, legal academia
Washington and Lee Journal of Civil Rights and Social Justice, 2019
In times of social upheaval, lawyers can mark the way toward social change. In particular, when l... more In times of social upheaval, lawyers can mark the way toward social change. In particular, when lawyers become more aggressive than traditional lawyers in the cause of fighting injustice, they face backlash from multiple sources, including government and their own profession. Such was the case during the U.S. civil rights movement. Unusually aggressive behavior by cause lawyers was met with hostility from their own profession and from government action. Those lawyers, while battered at times with physical violence, bar ethics charges, contempt of court, and state hostility, survived and changed social conditions at the same time they altered the culture of their own profession. Some have blamed them for the so-called civility crisis in the legal profession. A phenomenon with some, but not perfect parallels is happening in China. Activist human rights and criminal defense lawyers have undertaken tactics that are dramatically outside norms of behavior for Chinese lawyers and arguably ...
SSRN Electronic Journal, 2000
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and gr... more China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.
This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two high-profile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences.
The reality is that many of these problems are caused by institutional flaws in China’s criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair trials by relying on the procedure itself, rather than on unreliable judges.
由于现行体制对地方法院因地制宜自定规则的宽容甚至鼓励，加之各地客观情况的差异，基层法院诉讼规则呈现广泛的“地方化”现象。这种以权力行使方便性为导向的“地方化”规则虽有其现实合理性，却导致对当事人... more 由于现行体制对地方法院因地制宜自定规则的宽容甚至鼓励，加之各地客观情况的差异，基层法院诉讼规则呈现广泛的“地方化”现象。这种以权力行使方便性为导向的“地方化”规则虽有其现实合理性，却导致对当事人诉讼权利的随意剪裁，损害到司法统一和程序透明、程序法定原则，并在助长司法腐败的同时，强化了本地律师对当地案件的区域性垄断。
As tolerated and even encouraged by the current system, local courts are used to setting procedural rules to local conditions, which results in indigenization of trial rules. Focusing on conveniently exercising judges' power and discretion, these power-orientated rules are practically reasonable, but they inevitably manipulate the rights of the parties, impair the consistency, legality, and transparency of laws, and further judicial corruption by enhancing the monopoly of local lawyers.
借助最高法院的积极提倡和地方法院的行政化推进，当庭宣判制度在基层迅速展开。但表面的成绩背后却多有走形和变异，主要原因在于权力本位的推进方式过于压制化、简单化和功利化，未能合理照顾被告人的诉讼权利... more 借助最高法院的积极提倡和地方法院的行政化推进，当庭宣判制度在基层迅速展开。但表面的成绩背后却多有走形和变异，主要原因在于权力本位的推进方式过于压制化、简单化和功利化，未能合理照顾被告人的诉讼权利，忽视了制度的内生性动力。因此，建构式制度变迁应以具体行动者为起点和目标，形成一个开放、互动、回应型的制度生长系统。
UCLA Pacific Basin Law Journal, 2010
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and gr... more China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China's record of human rights protection. This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two highprofile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences. The reality is that many of these problems are caused by institutional flaws in China's criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair
Ius Gentium: Comparative Perspectives on Law and Justice
Although the use of torture and other illegal means to gather evidence was prohibited in China in... more Although the use of torture and other illegal means to gather evidence was prohibited in China in 1979, legislators did not begin to embrace exclusionary rules until the turn of the 21st century. However, this legislative promise has yet to be fulfilled in practice as few defendants request that illegally obtained evidence be excluded and even fewer judges approve such requests. Even if such a request is granted by the court, it remains highly unlikely that the outcome of the case will change. Such discrepancies between legislative endeavors and judicial practice might suggest that torture and other illegal means of acquiring evidence are not routine practice in China, that the Chinese culture tends to trust the government and to prefer substantive truth over procedural fairness, and places public interest above individual interests. As a result, the future of China's exclusionary rules will depend upon transformation of China's legal culture in addition to practical application of the corresponding changes to the law. As an effective measure to defer police wrongdoings, exclusion of illegal evidence in criminal procedure, ever since articulated by the United States Supreme Court in Mapp versus Ohio, 1 has emerged to be a core institution in any regime with genuine rule of law. The People's Republic of China (China), with the longest uninterrupted legal history in the world, has a legal legacy of obtaining evidence by coercive measures, and nowhere in its 2,000-year-plus documented history has seen the practice of excluding such evidence. After the Communist Party initiated the "Open-up and Reform" policy in late 1970s and endeavored to embrace universal principles and institutions of rule of law and human rights protection, legal academia
Washington and Lee Journal of Civil Rights and Social Justice, 2019
In times of social upheaval, lawyers can mark the way toward social change. In particular, when l... more In times of social upheaval, lawyers can mark the way toward social change. In particular, when lawyers become more aggressive than traditional lawyers in the cause of fighting injustice, they face backlash from multiple sources, including government and their own profession. Such was the case during the U.S. civil rights movement. Unusually aggressive behavior by cause lawyers was met with hostility from their own profession and from government action. Those lawyers, while battered at times with physical violence, bar ethics charges, contempt of court, and state hostility, survived and changed social conditions at the same time they altered the culture of their own profession. Some have blamed them for the so-called civility crisis in the legal profession. A phenomenon with some, but not perfect parallels is happening in China. Activist human rights and criminal defense lawyers have undertaken tactics that are dramatically outside norms of behavior for Chinese lawyers and arguably ...
SSRN Electronic Journal, 2000
China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and gr... more China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.
This article will argue that, despite some progresses in formality, the new law has been poorly implemented and has failed to fulfill its promise of fair trials. This article will examine two high-profile cases in detail to demonstrate how procedural safeguards prescribed by the new law are frequently manipulated by judges, either to pursue efficiency and convenience or to accommodate outside influences such as political concerns, public outrage, personal friendship, or even bribes. These manipulations have caused the essence of fair trials intended to be created by the 1996 law to be largely nonexistent in modern proceedings, while at the same time allowing interferers to freely produce wrongful verdicts and disproportionate sentences.
The reality is that many of these problems are caused by institutional flaws in China’s criminal justice system, particularly the absence of a responsible judiciary. However, instead of pinning hopes for reform on unrealistic constitutional changes, this article proposes a technical approach that focuses on restructuring the 1996 law to make criminal trials less vulnerable to manipulation and interference. This technical solution would help to ensure fair trials by relying on the procedure itself, rather than on unreliable judges.
由于现行体制对地方法院因地制宜自定规则的宽容甚至鼓励，加之各地客观情况的差异，基层法院诉讼规则呈现广泛的“地方化”现象。这种以权力行使方便性为导向的“地方化”规则虽有其现实合理性，却导致对当事人... more 由于现行体制对地方法院因地制宜自定规则的宽容甚至鼓励，加之各地客观情况的差异，基层法院诉讼规则呈现广泛的“地方化”现象。这种以权力行使方便性为导向的“地方化”规则虽有其现实合理性，却导致对当事人诉讼权利的随意剪裁，损害到司法统一和程序透明、程序法定原则，并在助长司法腐败的同时，强化了本地律师对当地案件的区域性垄断。
As tolerated and even encouraged by the current system, local courts are used to setting procedural rules to local conditions, which results in indigenization of trial rules. Focusing on conveniently exercising judges' power and discretion, these power-orientated rules are practically reasonable, but they inevitably manipulate the rights of the parties, impair the consistency, legality, and transparency of laws, and further judicial corruption by enhancing the monopoly of local lawyers.
借助最高法院的积极提倡和地方法院的行政化推进，当庭宣判制度在基层迅速展开。但表面的成绩背后却多有走形和变异，主要原因在于权力本位的推进方式过于压制化、简单化和功利化，未能合理照顾被告人的诉讼权利... more 借助最高法院的积极提倡和地方法院的行政化推进，当庭宣判制度在基层迅速展开。但表面的成绩背后却多有走形和变异，主要原因在于权力本位的推进方式过于压制化、简单化和功利化，未能合理照顾被告人的诉讼权利，忽视了制度的内生性动力。因此，建构式制度变迁应以具体行动者为起点和目标，形成一个开放、互动、回应型的制度生长系统。