Rule by Criminal Law is a Seismograph for the Protection of Human Rights - JOURNAL - Humanrights

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Rule by Criminal Law is a Seismograph for the Protection of Human Rights
July 17,2018   By:CSHRS

Rule by Criminal Law is a Seismograph for the Protection of Human Rights

LIN Wei*

Criminal law involves crucial rights of the public,including property rights,political rights,freedom,and even life. As a result,on the one hand,any change to the rule by criminal law may have a significant impact on people's lives; on the other hand,any change to the rule by criminal law is a highly sensitive issue. In view of these points,the rule by criminal law is often referred to as the seismograph for the protection of human rights,indicating the utmost importance of rule by criminal law in the protection of human rights. The discussion on progress in human rights protection should cover progress in the field of rule by criminal law,as a country's rule by criminal law is a key indicator of the human rights protection.

As criminal law protects legal interests,it should protect the legitimate interests of the general public and the general well-being of society. Criminal law legislation should respond to the expectations of the public that their interests will be well protected. Therefore,against the background of social transformation,increasing public risk,the emergence of new rights and interests,and the expanding and segmenting of the legal protection of people's interests,the legislation of criminal law should follow a modest and restrained principle and be continuously active to show a more proactive manner of intervention. This reflects the fundamental role of criminal legislation to the protection of legal interests,so it realizes the function to protect human rights in the most basic sense. The Amendment (IX) to the Criminal Law of the People's Republic of China increases the punishment on whoever buys an abducted woman or child by holding them criminally responsible for the behavior and clarifies that if anyone who has the duty of ward or nurse to a juvenile,an elderly person,a sick person,or a disabled person maltreats a person under his or her guardianship or provides execrable nursing that person shall be considered as committing a crime,which fully reflects the protection for vulnerable groups in the Criminal Law. Especially for the latter,when a number of child abuse cases have been found,it is of great significance for the protection of the human rights of juveniles. In addition,in the context of serious cyber-crimes,the Amendment (IX) to the Criminal Law of the People's Republic of China includes such crimes as the failure to fulfill the information network security management obligation,the buying and selling of personal information,and providing assistance for information network crimes. This will help better protect people's property rights,privacy rights,and other rights and interests.

Meanwhile,the Chinese government has further promoted humanitarian concepts and attached greater importance to the protection of the right to a personal life to constraint infringements on people's right to privacy. Through adopting amendments to the criminal law,nine the death penalty has been abolished for nine crimes. All this demonstrates the great attention the country is paying to people's right to a private life. The death penalty now only applies to extremely serious crimes. By reducing the number of crimes that are subject to the death penalty,a clear signal has been sent to the judiciary to lay a solid foundation for further limiting the death penalty. The Decision on Repealing Legislation on Reeducation through Labor of the Standing Committee of the National People's Congress repealed the 60 years system of reeducation through labor. Although it doesn't belong to the field of rule by criminal law,it is closely related to rule by criminal law. Despite the system of reeducation through labor playing a historical role in maintaining public order,ensuring social stability,and educating and rehabilitating offenders,the repeal not only shows our determination to implement the requirement that penalties involving deprivation of a citizen's political rights or restriction of personal freedom shall be realized through legislation in Article 9 of the Legislation Law of the People's Republic of China but also makes it clear that social governance should follow the ideology and methods of the rule of law,signifying further clarification of the concept of human rights protection and implementation of the rule of law.

As stated in the New Progress in the Legal Protection of Human Rights in China While Paper,the judicial system plays a significant role in human rights protection,judicial branches are of vital importance in rule by criminal law and human rights protection. The Supreme People's Court and the Supreme People's Procuratorate have given full play to their judicial and supervisory functions including judicial interpretations. According to the principal of a legally prescribed punishment for a specified crime,relevant crimes have been interpreted in official documents such as Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Specific Application of Law in the Handling of Defamation through Information Networks and Other Criminal Cases,Announcement on Preventing and Cracking down on Crimes of Telecommunication Network-related Fraud,which crack down on crimes to maintain national security,public security,personal safety and the security of property.

The most severe violations against human rights protection relevant to the rule by criminal law are wrongful convictions that deprive innocent people of their rights,including at times their right to life. Wrongful convictions are destructive to people's faith in the rule of law. One wrongful conviction may undermine people's faith and belief in the rule of law. Considering wrongful convictions unjustly deprive people of their basic human rights,and in order to realize the fundamental goal of striving “to let the people feel the fairness and justice in every judicial case,” we should reform the criminal procedure system to establish a trial-centered criminal procedure system in which the evidence should stand up to legal scrutiny and innocent people are not subject to criminal prosecution. The fundamental goal of the rule of law is to avoid wrongful convictions. A series of documents issued by the Ministry of Public Security,the Supreme People's Court,and the Supreme People's Procuratorate to prevent wrongful convictions,such as the Opinions on Advancing the Reform of the Trial-Centered Criminal Procedure System,and its implementation opinions; and the Notice on Issuing the Provisions on the Several Issues concerning the Strict Exclusion of the Illegally Collected Evidence in the Handling of Criminal Cases; and so on. These are all of milestone significance and value in reform of the criminal procedure system. Under the guidance of the concept of human rights protection,the correcting of wrongful convictions in the recent period is unprecedented in history in terms of the speed,number,and degree of reflection. These above mentioned documents and relevant measures have forcefully promoted the realization of justice,the correction of inherent misconception,and unequivocal proposition and full realization of human rights protection in the rule of law. Through continuous confirmation of procedural justice and resolute construction of the mechanism for its realization,we can maximize the conceptual support and institutional guarantee for realization of human rights protection.

In the process of human rights protection in the rule of law,we should attach great importance to and give full play to the institutional function of defense lawyers,because they play an irreplaceable role in ensuring the fairness and legitimacy of all criminal trials. Recently,a number of documents on defense lawyers have been released,including On Further Protection of Lawyers' Practicing Rights,Measures for Launching the Pilot Program of Full Coverage of Defense Lawyers in Criminal Cases,and so on,which to a certain extent opens up a new situation for criminal defense work. It means not only that criminal defendants have the right to engage lawyers but also that the country provides full protection for the legitimate rights of defendants to a defense. Defense lawyers should not only be those who promote human rights protection but also those who construct and realize human rights protection goals.

It is no doubt that the realization of human rights protection in the rule by criminal law still need high level of legal balance. For a long period,the rule of law will be considered as the seismograph for protection of human rights. We have reasons to believe that a new era for the rule of law and protection of human rights is coming under the background of comprehensively promoting the rule of law and accelerating the construction of a socialist country under the rule of law. The level of legal protection of human rights in China will be greatly improved and China will make greater contribution to the development of political civilization of the mankind.

(Translated by HU Lian)

* LIN Wei ( 林维 ),Vice President of the University of Chinese Academy of Social Sciences,Professor,Vice President of Graduate School of Chinese Academy of Social Sciences.

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