During the past three decades, dissatisfaction with respect to limitations of the traditional criminal justice system in controlling crime has given rise to restorative justice, which provides a new pattern of thinking about justice. Restorative justice offers a new lens with which to view crime and justice. Howard Zehr describes restorative justice in this way: ‘Crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation, and reassurance.’ A restorative response to crime focuses on reparation of the victim’s injury and loss, integration of the offender back into the law-abiding community and restoration of community harmony. The victim, the offender and the community are given primary responsibilities for deciding how to work out the solution rather than criminal justice institutions and professionals.

Programs of restorative justice have been widely established in industrialized countries as an alternative to formal sanction or as part of such processes. Proponents of restorative justice claim that victims and offenders record a higher level of satisfaction than those who go through court process. This is because restorative processes are empowering; they enable the victim, the offender, and the community to work out the solution to crime. The strong ties made to the community reduce the offender’s likelihood of future offending. Although restorative justice is not a complete model, it suggests that criminal justice is not the sole response to crime.

The Chinese criminal justice system seems to be punitive and retributive; nearly all criminal offences are publicly prosecuted, there are few diversions from criminal penalties, and China is viewed as one of the countries in which the death penalty is most often used. However, the emphasis on harmony in Confucian culture and informal social control practices at the grassroots level seem to have restorative values and possibilities. As John Braithwaite argues, ‘What a pity that so few Western intellectuals are engaged with the possibilities for recovering, understanding, and preserving the virtues of Chinese restorative justice while studying how to check its abuses with a liberalizing rule of law’. Therefore, this essay aims to audit the Chinese criminal justice system using restorative criteria.

The Chinese criminal justice system is very different from Western justice systems. Influenced by Confucian communitarian ideology and communist philosophy, mass organizations at the grassroots level play a very important role in crime control. Mediation committees and bang jiao groups exist in nearly every local community to deal with minor deviances, resolve conflicts, and rehabilitate juvenile delinquents and released offenders. While the formal criminal justice system is used for more serious offenders, mass participation in conflict resolution and crime prevention is an integral part of the Chinese criminal justice system.

The formal criminal justice system does seem to be punitive and arbitrary. The major statutes are the Criminal Law (CL) and the Criminal Procedure Law (CPL). The CL defines the specific crimes and their relevant punishments. Sentences are divided into primary and supplementary categories, and all sentences are offender-centered. The CPL sets out the rules for the criminal proceedings. However, not all criminal offenses are governed by the CL and CPL. Minor offenses are handled through administrative sanctions without trial. Punishment of up to four years imprisonment can be imposed under administrative statutes. The ‘severe strike on crime campaign’ (SSCC) policy, adopted in 1983, aims to control crime through deterrence by modifying criminal procedures to allow for quicker proceedings and harsher punishments.

The essay will correlate four essential restorative values, ‘personalism, participation, reparation, and reintegration’, with the practices and traditional culture in China to audit the Chinese criminal justice system. Chinese criminal justice relies heavily on informal social control at the grassroots level. Furthermore, the Confucian culture greatly influences the thinking and behavior of Chinese people. Therefore, this audit considers not only the formal criminal justice system, but also the practices of informal social control at the grassroots level that have been profoundly influenced by Confucian culture. The essay aims to identify restorative elements in the total Chinese response to crime.



See the full essay below.

Xinzhou Zhang
October 2005