2011 Articles

Promoting the Rule of Law in China: Criminal Defense Lawyers and The Politics of Article 306

Doshi, Rush

"The repeated abuse of Article 306 by prosecutors in China has largely intimidated the defense bar, rendering China’s criminal justice system dysfunctional. Article 306 is primarily used by prosecutors at the local level. Thus, understanding the reasons for its abuses requires detailed examination of the local incentive structure. I will argue that the abuse of Article 306 is in part a result of the cultural and institutional difficulties posed by the transition from an inquisitorial system, in which the prosecutor was dominant, to an adversarial one that formally subordinates the prosecutor to judges and places them on equal footing with the defense. Within this climate of uncertainty, prosecutors are able to use their immense power against their adversaries without any real checks. As a result, repeal or revision of Article 306 will accomplish little if the local incentive structure that leads to abuse and the central politics that formed the structure are not addressed. !is paper will examine the enabling factors and current incentives behind prosecutorial abuse. It will then examine what reformers might learn from the politics and history of China’s criminal reforms in the 1990s. It will close with a series of structural reforms that could alter the incentive structure at the local level and protect defense lawyers from suffering harm for merely representing their clients."--from page 128-129