Relief for Defendants Whose Litigation Rights have been Infringed upon by Courts: Problems and the Way out
August 12,2016   By:CSHRS
Relief for Defendants Whose Litigation Rights have been
Infringed upon by Courts: Problems and the Way out
YANG Jiehui*
Abstract: In regard to the people’s court’s infringement upon the litigation right of defendants, there are two relief means in our country: procuratorial supervision and appeal, neither of which can realize the goal of relief. The conflict between interrogation and defense has to do with the lack of relief mechanism. To solve the problem concerning relief to the defendant whose litigation right is infringed upon the court, independent procedural appeal mechanism must be established, the relationship between which it and factual appeal must be properly dealt with. The procedure for procedural appeal should be made in accordance with the characteristics of procedural appeal.
Keywords: litigation right, relief, procuratorial supervision, court
Even though the infringement upon the defendant’s litigation right might occur throughout the process of litigation and is more likely to occur in other procedures than in judicial procedure, the infringement in the latter case tends to have worse effect.
In recent years, our government has realized that relief mechanism for the infringement of the court upon litigation right should be established so that the defendant can resort to it when the infringement occurs. It was pointed out at the Fourth session of the 18th CPC National Congress that “stress should be put on the institutional protection of the right to know the facts, locus standi, the right to defense and argument, the right to application and that to appeal.” The institutional protection here includes the establishment of relief mechanism. This article is aimed to research how to establish this mechanism.
I. The Existent Relief Means for the Infringement of the Court upon the Defendant’s Litigation Right 
There are relief means for the infringement of the court upon the defendant’s litigation right, namely, procuratorial supervision and appeal.
A.The relief of procuratorial supervision
According to Constitution and the Criminal Procedure Law of the People's Republic of China, People's Procuratorates are the organs to supervise the enforcement of laws in our country and have the right to supervise criminal proceedings, thereby the right to request it to make corrections if a special state organ violates the law in judicial action. Even though this function has been questioned theoretically, it has the tendency to expand and be strengthened in legislative and judicial practice.1 Procuratorial supervision is in essence a power control mechanism rather than right relief mechanism.2 Since power control and right relief in criminal proceedings have the same target, that being power, they can make use of each other. Power can be used to control mechanism and realize right relief, while right relief mechanism can be used to check power. Therefore, right relief can be achieved indirectly by procuratorial supervision: when infringement occurs, the infringed can apply to the procuratorial organs for supervision over the infringer to make corrections, thus providing relief to right. It can be seen that procuratorial supervision is not right relief mechanism; nonetheless, it has elements that enables it to realize right relief in a direct way. There exists the possibility that it could be transformed to direct right relief mechanism.3 The Criminal Procedure Law published in 2012 rendered this possibility into reality, according to which the counsel or litigation agent has the right to appeal or complain to the people’s procuratorate of the same level or above if they think the public security organ, the people’s procuratorate, the people’s court or their personnel prevents them from exercising their litigation right in accordance with law. The people’s procuratorate should make timely examination into the appeal or accusation and notify the organs concerned to make corrections if it is the case. Article 57 and Article 58 of The People’s Procuratorate’s Regulations on Criminal Litigation give a detailed explanation about the range of litigation right in terms of the application for procuratorial supervision and elaborate on the procedure of procuratorial supervision relief. These regulations mean that the Criminal Procedure Law of 2012 makes the supervision of the procuratorial organs over infringement upon litigation right become a special supervision independent from general procuratorial supervision and transforms it into a specialized right relief mechanism. Since this mechanism was established upon the basis of procuratorial supervision, it can be called procuratorial supervision relief mechanism (ibid). The transformation of procuratorial supervision into right relief mechanism reflects the legislator’s good intension: this transformation of a relatively ripe supervision system into a relief mechanism can solve the problem of right relief without much increase of cost, meanwhile, it can further activate procuratorial supervision and make it live up to its name.4
Like procuratorial supervision, procuratorial supervision relief runs through the whole process of litigation and applies to all the circumstances where the infringement upon litigation right occurs, while relief to the infringement by the court is a very important part of procuratorial supervision relief, which is founded upon the supervision of the procuratorial organs over judicial procedure. But this supervision was the most controversial in procuratorial supervision system and theoretically objected to by almost a majority who think it will distort the normal structure of trial and undermine the authority of the court.5 The normal trial structure has the judge in the centre making judgment and prosecution and defense in equal confrontation, but procuratorial supervision over trial makes the procuratorial organ play two roles, namely, the accuser and the supervisor, which is contradictory. The former role requests it to be beneath the judge like litigants and in equal confrontation with the defendant, but the role of supervisor requires it to be above the litigants and become the judge of judges.6 These contradictory roles will put the procuratorial organ above the judge, harming the equal confrontation of prosecution and defense as well as the neutrality and authority of the judge. This structural problem in the procuratorial supervision over trial will necessarily exist in procuratorial supervision relief mechanism based upon procuratorial supervision over trial. According to the logic of procuratorial supervision relief mechanism, when the court as the neutral judge violates the defendant’s litigation right, the defendant appeals to the procuratorial organ, which is in confrontation with him for relief. The procuratorial organ checks the court’s judicial activities and notifies it to make corrections. This mechanism makes the accuser a censor above the judge and the savior of the defendant. It not only distorts the trial structure but also violates the principle of relief. Even if we put these structural problems aside, the effect is open to doubt. Strictly speaking, the procuratorial organ is theoretically not one of the parties, but an organ to insure the fair implementation of law and therefore has objective duties. As a result of its function of indictment in trial procedure, it is in essence one of the litigants and in confrontation with the defendant. This relationship means that when the court violates the defendant’s litigation right, how can the procuratorial organ provide relief to its opponent at the risk of offending the court? How can a mentally normal defendant appeal to his opponent for relief? The judicial practice of procuratorial supervision over trial has proved that it is impossible.
It can be inferred that the intensity of and effect of procuratorial supervision over trial (written suggestion for corrections made by the procuratorate) has been rising year by year, but in view of the many cases where judicial procedure was against the law, the procuratorial organ only put forward one written suggestion in one hundred cases. This indicates that the utilization rate of procuratorial supervision is very low and the actual result is very limited. Moreover, not all these limited number of written suggestions were aimed at the infringement upon the defendant’s litigation right. A considerable percentage of them were aimed at the violation of procedure that did harm to the procuratorial organ. I found when doing research in many procuratorates that some procuratorates never sent correction notice to courts within several years and those that did send such notice did this just after when they found the courts’ activities were to the disadvantage of the procuratorates. None of the notices were sent out for the reason that the defendant’s right was violated. This means lower utilization rate and less effect of procuratorial supervision, which proves that procuratorial organs are almost unlikely to provide relief to the defendants. According to the questionnaire answered by defense counsels, all of them chose not to appeal to the procuratorial organs when their clients’ litigation rights were infringed upon by the court. In contrast, when asked whether they will appeal to the procuratorial organs when their clients’ litigation rights were violated by investigation organ, more than half of the counsels chose the answer “it depends,” which also proves that the defendants are almost unlikely to appeal to their opponents for relief when their rights were infringed upon.
B. The relief of appeal
Appeal is a type of relief mechanism when the defendant considers the judgment of first instance wrong and unacceptable. According to different criteria, appeals can be classified into different types: there can be the differentiation between factual appeal and legal appeal, based on whether the appeal is concerned with facts or law; there can also be a distinction between substantive appeal and procedural appeal, depending on whether the appeal is aimed at substantive or procedural problem. The appeal out of the infringement upon litigation right belongs to legal appeal and procedural appeal at the same time. There is no specially set procedure concerning legal and procedural appeal in China. All issues, including those concerned with factual, legal and procedural appeal are settled in the same procedure. What’s more, the review of the appealed case is comprehensive and all the problems will be settled compulsory and simultaneously. That is, whenever there is an appeal, whether it is factual, legal or procedural, the court of appeal must examine the case from these three aspects. It can be seen that the appeal relief in China is a comprehensive one, which includes the relief to the defendant whose litigation right is infringed upon by the court. There is regulation about the violation of judicial procedure in China. Article 227 of the Criminal Procedure Law of the People's Republic of China stipulates that the court of second instance should make the decision to withdraw the original sentence and send the case back to the court of first instance for retrial if it finds the court of first instance violated litigation procedure stipulated in the law. The infringement of the court upon litigation right is a violation of trial procedure. The five types of procedural breaches named in Article 227 include in fact five types of infringement upon litigation rights.7 Therefore, when these five types of litigation rights are violated by the court, the defendant can file an appeal and request the court of second instance to withdraw the original judgment and send it back for retrial.
This comprehensive relief mechanism for appeal in China deals with the appeal for all problems simultaneously in one procedure, saving judicial resources and improving litigation efficiency. But this mechanism does not treat all problems equally. Under the influence of “priority of substantive over procedural” it naturally pays more attention to the relief of substantive problems and less attention to that of procedural problems, which has been shown in legislation and judicial practice. First, in the mode of review, how to deal with the instance of appeal will affect the effect of relief. Generally speaking, court review is more effective than written review. However, according to the law, only in case of controversy over factual issues will court review be held. If the issue is just procedural, no court review will be held and only written review will be applied to. This selective treatment reflects the attitude of “priority of substantive over procedural” in the relief mechanism in China. Second, the consideration of whether to send back for retrial as reflected by the affiliation of procedural appeal to substantive appeal. In judicial practice, except for the five circumstances stipulated in Article 227, whether to send back for retrial does not depend upon whether the procedure is against the law, but on whether the violation of procedure affected the accuracy of the verification of facts. If not, violation of procedure itself will not lead to retrial. This practice means that in China appeal is the way to solve the relief of substantive issues, and that of procedure is just incidental and whether or not the procedural issues will receive relief depends on the relief of substantive issue. This dependent relief mechanism turns procedure into the tool of the substantive and cannot achieve the goal of procedural relief.8
II. The Establishment of Independent Procedural Appeal System
It can be seen from the above analysis that even though there exist two types of relief in the law, with flaws, neither of them can achieve the goal of relief to the defendants whose litigation rights are violated. Then, where is the way out?
Generally speaking, after one’s right is infringed upon and the obligee wants to obtain effective relief, the normal logic of relief should be this: the obligee appeals to a neutral third party, which, with the participation of both the obligee and the infringer, has authority higher than the infringer, verifying the facts of infringement, determining what types of relief should be given and making binding a judgment. In accordance with this logic, the establishment of a relief mechanism should conform to the following principles: first, the subject of relief should be neutral and independent of both the obligee and the infringer, which insures the justice of relief; second, the relief subject should have authority higher than the infringer, which insures the authority of relief; third, the procedure of relief should involve the participation of both the obligee and the infringer, which insures the equality of relief; and fourth, the decision of relief should be legally binding, which insures the effectiveness of relief. 
According to the aforesaid logic and principles, only appeal is a proper relief mechanism for the infringement of the court upon the defendants’ litigation right. First, even though this mechanism is a relief provided by a higher court for a lower court, the relationship between them is supervision and they are independent of each other; therefore, the relief subject bears neutrality independent of the obligee and the infringer. Second, whether litigation rights are violated or not is a legal question and the judges in the higher court tend to be more proficient in law than those in the lower court, hence their judgment more authoritative, which, however, doesn’t necessarily mean that they are better at verifying facts. This is one of the important reasons why many countries allow legal appeal but not factual appeal.9 Third, the court of appeal belongs to the trial procedure, consisting of three parties, the prosecution, defense and trial. The roles of the original court and the original defendant change, with the former becoming the defendant and the latter becoming the prosecutor. They participate in the trial with the higher court as the chair and guide, confronting each other on equal footing.10 It is in accordance with the equal participation principle of relief. Fourth, regarding the infringement upon litigation right, the court of appeal makes the decision of withdrawing the original judgment and sending it back for retrial, which has compulsory execution effect and must be executed no matter whether the court of first instance accepts or not. The original court is thus corrected and the breached litigation rights of the defendant are restored in the new trial procedure, so it is in accordance with the efficacy principle of relief.
The relief mechanism of procuratorial supervision is not in accordance with the logic and principles of right relief and should not be the relief mechanism for the infringement upon the litigation rights of the defendants by the court. First, it goes against the principle of neutrality. It is in nature a relief provided by the prosecutor for the defendant, so the relief subject is not neutral. The interference of procuratorial supervision in trial procedure as relief mechanism, no matter how designed, will render neutrality impossible. On the contrary, it will distort the normal structure of trial, which is the most important reason why procuratorial supervision should not be relief mechanism for the infringement of the court upon the defendant’s litigation right.11 Second, it is against the principle of higher authority of the relief subject. The relief of procuratorial supervision is a relief provided by the procuratorial organ against the procedural offense of the court, but the former is not more authoritative than the latter. Third, it is not in accordance with the principle of joint participation on both sides of the relief procedure. The relief of procuratorial supervision works either by administrative decision made unilaterally by the procuratorate after review or by quasi-judicial means where the procuratorial organs listen to the obligee and the infringer unilaterally, neither of which is conducted with the joint participation of both sides.12 Fourth, it is not in fit with the principle of legal binding force required of relief judgment. Procuratorial supervision works by notifying relevant organs to make corrections, but it does not have binding force. Whether the corrections will be made or not depend on the relevant organs themselves. What’s worse, this mode has an arbitrary and capricious nature and at most is a warning of “no such mistake again”. It does not punish the infringer and the obligee does not receive any substantive relief. 
It can be seen from the above analysis that the way out for the relief of the infringement of the court upon the defendant’s litigation right is to establish an appeal relief mechanism and not the procuratorial trial supervision. An appeal system has been established in China. The reason why the relief for the infringement of the court upon the defendant’s litigation right is not realized is that within this system, procedural appeal is not independent, but affiliated to substantive appeal, which rendered it impossible for the procedural relief of the appeal system to function. The ultimate way out is to establish procedural appeal mechanism independent of substantive appeal, which is quite common worldwide.13
How to establish independent appeal relief mechanism? There are two examples to follow. First, set grades for trial appeal and put relief for factual issues and that for procedural issues at different levels, which is reflected in the three-instance system in most countries. The second instance deals with the relief of factual issues and the third instance deals with the relief of legal issues including procedures.14 The establishment of a special grade for procedural appeal separates it from factual appeal spatially, preventing the influence of factual appeal on procedural appeal and maintaining the independence of procedural appeal. The other alternative is to put relief of factual issues and that of procedural issues in the same trial of appeal rather than in different trials. Certain procedural devices are set up to separate the relief of factual issues and the relief of procedural issues, preventing one from influencing the other. Violation of these devices are grounds for appeal, which limits the range of appeal relief to the grounds for appeal. For appeal regarding factual issues, the court of appeal reviews and deals with only factual issues; for appeal regarding procedural issues, the court of appeal reviews and deals with only procedural issues. This system can prevent factual appeal from affecting procedural appeal and insures the independence of procedural appeal.15 What needs to be pointed out is that this mode is different from the existent mode in China. Though both factual and procedural issues are dealt with in the same court of appeal, we did not have the grounds for appeal system as separation device, plus the principle of comprehensive censor, so the relief of all the issues is solved as one bundle. It is therefore impossible to avoid the influence of the relief of factual issues upon that of procedural issues and realize the independence of procedural appeal within this system.
Both aforesaid modes can realize the independence of procedural appeal. Whether to list procedural appeal as an independent grade and solve it separately or to put it in the same level as factual appeal is just a matter of formal difference; in the former mode, factual appeal involves retrial and the court of appeal realizes the relief of factual issues through retrial of the case; 16 in the second mode, factual appeal involves post trial and the court of appeal does not reinvestigate facts and only examines facts on the basis of the evidence provided by the original court, thereby realizing the relief of factual issues. The differences existent in factual appeal between the two modes are mainly related to the reliability and appropriateness of fact verification in the first instance. The more reliable and appropriate the factual verification of the first instance, then the more trustworthy it is and the more respect it can win., Otherwise, appeal is needed to complete the factual investigation unfinished in the first instance. “The basic principle of the second instance relief in factual trial is to consider the appropriateness of the first instance procedure. The more appropriate the procedure of first instance is, the narrower the scope of factual relief in the second instance is.”17 In accordance with this principle, idealistically, the first mode should be adopted in China, that is, three-instance system. Second instance solves the relief of factual issues and the third instance deals with the relief of legal issues including procedural ones. The adoption of this mode is decided by the present factual verification condition in China. After the revision of Criminal Procedure Law and the reform of the trial model several times, the substance of first instance factual verification in China has been improved and the accuracy has been increased; however, the factors that influence factual verification in the first instance, such as the defense system, the system of witness testimony at court, and the independent judgment of the judge nonetheless have not been improved fundamentally. Therefore, the problem of factual trial in the first instance being formalized and failing to verify facts still exists.18 To improve the accuracy of factual verification, the second instance must be resorted to supplement and even substitute the first instance in the verification of facts, completing the task unfinished by the first instance.19 However, this mode means radical modification of judicial hierarchy, which cannot be achieved within a short time and can only be regarded as a long-term goal. Before realizing this goal, a feasible transitional means should be adopted to deal with the relief of procedural issues.
To establish this means, the relatively practical way is to keep the existent judicial hierarchy unchanged and learn from the experiences of the second mode, making minor adjustments to it. To be more exact, a formal grounds of appeal system must be established for procedural appeals on the basis of present judicial hierarchy. A defendant must make clear that his appeal is aimed at procedural issues when he is filing an appeal for procedural issues. Under such circumstances, the court of second instance reviews procedural issues rather than factual issues, checking whether the original procedure violates the law and whether to withdraw the original judgment and send it back for retrial. If the defendant does not particularly appeal against procedural problems, the present practice should be followed and no grounds of appeal need to be clarified. The court of second instance still conducts comprehensive examination and reviews the case from the aspects of fact, law and procedure.
(Translated by Liu Ruiying)
* YANG Jiehui (杨杰辉),doctor of law, associate professor at Law School, Zhejiang University of Technology.
1. Zhang Zhaosong, The Supervision and Control Mechanism of Procuratiorial Power in China, Tsinghua University Press, 2014, p. 25.
2. Ibid, at 78.
3. Zhan Jianhong, “The Institutional Mode and Reform of Procedural Relief,” China Legal Science, No. 2, 2015.
4. Guo Jing, “On the Transformation of Procedural Supervision—from the Declaration of Illegality to Gradual Restriction,” Modern Legal Science, No. 1, 2014.
5. Long Zongzhi, “Problems Concerning the Procuratorial Supervision over Trial in the Perspective of Relatively Reasonable Doctrine,”Sichuan University Journal, No. 4, 2004.
6. Chen Xingliang, “From ‘Judge above Judges’ to ‘Judge before Judges’: The Procuratorial Power in the Perspective of Rule by Criminal Law,” Peking University Law Journal, No. 6, 2000.
7. Chen Ruihua, “Procedural Appeal in Criminal proceedings,” Social Science Front Bimonthly, No. 5, 2005.
8. Chen Ruihua, Theory on Procedural Restriction, China Legal Press, 2005, at 254.
9. Sun Changyong, Exploring Just Procedure: Comparative Criminal Proceedings, China Legal Press, 2005, at 620.
10. See Note 8, at 415.
11. Liu Jihua, “The Deconstruction of the Procuratorial Organ’s Function in the Supervision of Criminal Trial,” China Legal Science, No. 5, 2012.
12. Wan Yi, “On the Transformation of Procuratorial Supervision,” Legal Review, No. 1, 2010.
13. Huang Chaoyi, The Criminal Procedure Law, Xin Xue Lin Publishing Corporation, 2013, the third edition, at 664-665.
14. See Note 8, at 620.
15. Wang Zhaopeng, “The Gap between Appeal and Second Instance and the Filling of it--a Research on theory and Practice,” Sun Yat-Sen University Law Review, No. 2, Vol. 9, at 344.
16. Ibid, at 269.
17. Long Zongzhi, “To Establish Factual Verification Mechanism based on First Instance,” China Legal Science, No. 2, 2010.
18. Ibid, at 150.
19. Chen Ruihua, “On Thorough Finding of Factual Issues: A Theoretical Line of Thinking to Reconstruct the First Instance Criminal Procedure in China,” Peking University Law Journal, Vol. 3, 2013.