Opening to Reform? Analysis of the Revisions NPC to enact a law on"shelter and investigation"and thereby place it on possibility of drafting a separate law on"shelter and investigation.77 In a more secure legal footing.However,these efforts also failed,reportedly the end,however,the extent of dissatisfaction was so great,particularly due to broad opposition by the courts,procuratorate and the NPC itself.7 in other parts of the legal apparatus,that the decision was reached to In the meantime,increasing numbers of Chinese legal scholars were abolish "shelter and investigation"altogether.Since "shelter and calling openly for the abolition of"shelter and investigation"5 and foreign investigation"is not contained in the CPL,its elimination is not critics were citing it as a particularly blatant example of the failure of the mentioned in the 1996 NPC Decision.However,official documents from Chinese criminal justice system to meet international human rights standards.76 the NPC session explicitly state that "shelter and investigation will no longer be retained as an administrative coercive measure"78 and the There are some indications that in the early stages of revising the Ministry of Public Security has begun to take steps to achieve its CPL,the Ministry of Public Security may have once again raised the elimination in practice. While on the face of it the elimination of "shelter and investigation" quanshu [Complete Public Security Laws of the People's Republic of China],Jiang may appear to be a major setback for the police,in other respects the Xianjin et al.,eds.(Changchun:Jilin People's Press,1995),at 1374;Notice of the 1996 NPC Decision accomodates the specific concems which purportedly Ministry of Public Security Concerning Further Controlling the Use of the Method of Shelter and Investigation.June 11,1991,in id.at 1377:Notice of the Ministry of Public Security Concerning Resolutely Correcting Indiscriminate Use of the Method of Shelter and Investigation,February 15.1992.in id.at 1379. Author interview,Beijing,January 1996. See Guanyu di qijie quanguo renda di si ci huiyi zhrituan jiaofu falu weiyuanhui shenyi See Gu Angran,"Guanyu Zhonghua renmin gongheguo xingshi susongfa xiuzhengan de daibiao tichu de yian shenyi jirguo de baogao [Report Concerning the Results of (cao'any de shuoming"[Explanation Concerning the "(Draft)Amendments to the Deliberation of Motions Raised by Delegates and Handed Over to the Law Criminal Procedure Law of the PRC"].in Explanation and Application,supra note Committee for Deliberation by the Presidium of the Fourth Session of the 47.at 400,401.The elimination of 'shelter and investigation"has also been Seventh National People's Congress].7 Zhonghua renmin gongheguo quanguo renmin publicly confirmed in numerous press reports.See,eg,"New laws to protect the daibiao dahui changwu weiyuanhui gongbao (1991),at 67:Author interview,Beijing. innocent,"China Dally,March 23,1996,at 4;"NPC session closes successfully," February 1995. China Daily,March 18,1996,at 1;Yan Jun &Zhang Weili,"Xingsufa riugai beishou gejie guanzhu"[All Circles Play Close Attention to Revision of the Criminal 1sSee,e.g.Zhou Guojun."Guanyu shourong shencha cunfei zhi yanjiu"[Research Procedure Code].Fazhi ribao,February 3.1996.at 1;Liu Songshan,"Yange Regarding the Retention or Abolition of Shelter and Investigation].I Zhengfa quanrian,qianghua zhiyue,wanshan fazhi,baohu renquan"[Tighten Up Limits on luntan (1989).at 35;Yang Lianfeng Wei Huaming,"Guanyu jiang 'shourong Power,Strengthen Checks,Improve the Legal System,Protect Human Rights]. shencha'naru xingshi qiangzhi cuoshi chutan"[Preliminary Explorations Regarding the Fazhi ribao,January 24,1996,at 2. Incorporation of"Shelter and Investigation'into Criminal Coercive Measures],5 Fare pinglun (1989).at 29:Wang Xinxin,"Shourong shencha yingyu feichu"[Shelter See,e.g..Mao Lei."Gonganbu zhaokai huiyi bushu guanche shishi ringshi susongfa he and Investigation Should be Abolished].3 Zhongguo fare (1993).at 110:Zhang xingzheng chufafa"[Ministry of Public Security Convenes Meeting to Plan the Jianwei Li Zhongcheng,"Lun feizhi shourong shencha"[On the Abolition of Shelter Implementation of the Criminal Procedure Law and the Administrative Penalties and Investigation].3 Zhongwai fare (1994).at 55. Law].Renmin ribao,April 13,1996,at 2:Yi Zhongli Wu Tao,"Gonganbu xueri xingsufa he xingzheng chufafa"[Ministry of Public Security Studies Criminal eePunishment Without Crime,supra note 32.at 5-14:Howe Report.supra Procedure Law and Administrative Penalties Law],Renmin ribao,March 27,1996, note 34,at 42-43:Criminal Justice with Chinese Characteristics,supra note 32,at 67- at 3:Sun Baosheng."Jicjue shourong shencha wenti burong zhiy"[Solving the Problem 71. of Shelter and Investigation is Not Open to Doubt),Fazhi ribao,February 6,1996, at 5. 24 25
Opening to Reform? Analysis of the Revisions gave rise to its use.First,the arrest standard has been relaxed.Rather extensions,upon approval of the provincial-level procuratorate,in certain than having to show that the "principal facts of the crime have already been clarified,"under the revised CPL an arrest can be authorized if"there "major"or "complicated"cases and in parts of the country with poor is evidence to prove the facts of the crime"(you zhengju zhengming you fanzui transportation.ss shishi).Second,the provisions of the CPL on pre-arrest detention have The 1996 Decision has formally incorporated the 1984 NPC Decision into the CPL while adding yet another circumstance where a two-month been expanded to include the categories of persons to which "shelter and extension may be granted:in "major,complicated cases where the scope investigation"was meant to be applied in the first place:those who "do not tell their true name or place of residence or whose identity is unclear" of the crime is broad and gathering evidence is difficult.Moreover,the NPC Decision contains an entirely new provision allowing suspects to be and those"strongly suspected of wandering around committing crimes,of held for a further two months-above and beyond all previous committing multiple crimes,or of forming bands to commit crimes." Moreover,for suspects in the latter of these two categories,the period of extensions-during investigation of all crimes punishable by sentences pre-arrest detention has been greatly extended,from seven days to of ten years or longer.Thus whereas the original CPL envisioned that thirty.32 The period within which the procuratorate must make its suspects would be held for a maximum of three months during the decision whether or not to authorize arrest has also been lengthened,from investigation stage,the revised CPL permits detention for up to seven three days to seven.s months.The revised CPL also retains the provision in the original law In addition to relaxing the arrest standard and increasing the scope that in "extremely large or complicated"cases,indefinite extensions of and length of pre-arrest detention,the 1996 NPC Decision contains still these periods can be granted by the NPC Standing Committee upon the other provisions granting the police greater leeway to hold suspects prior request of the Supreme People's Procuratorate. to trial.Under the 1979 CPL,once a suspected criminal had been Under the 1979 CPL,once the police had completed their investigation and forwarded the case to the procuratorate,the latter had arrested,the period of time during which he or she could be held in one month,extendable by a half-month in "major"or "complicated"cases, custody while the police carried out their investigations was generally to decide whether to bring a prosecution.During this period suspects limited to two months(including time spent in pre-arrest detention).In "complicated cases."this period could be extended an additional month who had been arrested would generally continue to be held in custody. with the approval of the procuratorate at the next higher level.4 As In practice,however,this time limit could be evaded if the procuratorate discussed above,in 1984 the NPC authorized further two-month requested "supplementary investigation"by the police.Although the CPL 51984 NPC-SC Decision,supra note 12,arts.1.2. Revised CPL,art.60. BRevised CPL,art.126. Id,at.61(6).61(7). 7d.,art.127.This new extension was apparently added to the draft revisions 21d,art.692). only in late February 1996.See Draft Laws Revised,supra note 53,at 35,37. 8d,at69(3). 1979 CPL,art.92(2);Revised CPL,art.125.There are no known instances where this procedure has been used. 41979CPL.art.92(1. 1979CPL,art.97. 26 2>