论文对中国的刑事和解制度进行了实证研究。刑事和解被官方视为通过加害方同受害方自愿达成和解促进社会和谐，并通过赋予案件当事人解决案件的权力实现“案结事了。这一程序也被认为弥补了以对抗制为基础的普通刑事司法程序的所谓的不足。 / 基于2008年和2010年在中国三个地区进行的案卷调查和访谈，论文指出这项制度严重侵害犯罪嫌疑人、被告人及被害人（统称“当事人）的权利并损害公平正义。虽然案卷显示刑事和解遵循为其设计的程序及确立的原则并取得了良好效果，访谈却揭示了完全相反的情况。访谈显示，自愿性，这一被视为刑事和解的主要优势的原则，遭到严重破坏。实践中，官员们主导着刑事和解全过程。此外，赔偿成为了这一程序的唯一焦点，造成其对经济上处于弱势地位的犯罪嫌疑人或被告人的不公平。研究发现在一些案件中，刑事和解程序结束后，矛盾依然存在甚至恶化了。 / 这些发现令刑事和解呈现出中国刑事司法制度的三个根本性问题。首先，保护当事人权利的法律规则常常被执行这些规则的法官或检察官忽视并取而代之“潜规则。 这些“潜规则主要是由政治目标驱动的绩效考核标准和来自诸如政法委的其他组织的干预而形成。此外，中国的刑事司法程序反映了专制主义、家长制及教育型（以思想改造为目的）的刑事司法体制，而当事人的权利被视为次于这一政治目的。最后，国家在保护当事人获得刑事附带民事诉讼赔偿的权利方面亦未承担应负的责任。 / 论文指出，依靠和解来解决刑事案件会令这些已影响普通刑事司法程序的问题更加严重，因为这一程序旨在弱化对程序性权利的保障及削弱刑事司法程序的对抗性。因此，刑事和解制度或是中国正逐渐远离其领导者曾明确确立的法治目标的一个信号。 / This thesis examines the practice of ‘criminal reconciliation’ (xingshi hejie) in the People’s Republic of China by means of empirical research. ‘Criminal reconciliation’ is officially understood as a mechanism to promote a ‘harmonious society’ (hexie shehui) through voluntary offender-victim reconciliation and bringing ‘closure’ (an jie shi liao) to criminal case in a way that empowers the parties. It has been designed as a mechanism that overcomes perceived deficiencies of the ordinary, in principle adversarial criminal justice process. / Based on case examples and interviews conducted in three localities in mainland China in 2008 and 2010, however, this thesis argues that this mechanism may infringe the rights of suspects and defendants as well as of alleged victims (summarily referred to as ‘the parties’) in criminal cases, and that it may lead to injustice. While the case files accessed for the purpose of this research purport to document a well-functioning process of criminal reconciliation in accordance with the rules and principles supposed to govern it, interviews provide a drastically different picture. In practice, the criminal justice process was not characterized by the principle of voluntariness supposed to be one of its main advantages; rather, the officials in charge dominated the process. In addition, the entire process exclusively focused on compensation, so it was potentially unfair to economically weak suspects and defendants. It was also found in some cases that the conflict between the parties still existed or had worsened at the end of the criminal reconciliation programmes. / On the basis of these findings, it is argued that criminal reconciliation throws light on fundamental problems with the wider criminal justice system. First, officials in the criminal justice system, routinely ignore certain legal rules protecting the parties’ rights and to some extent replace these rules with ‘hidden rules’ (qian guize), whose content is largely shaped by politically driven performance assessment criteria, as well as in some cases by intervention from other entities such the Political-Legal Committee. Second, the criminal proceedings in China reflect an authoritarian, paternalistic and educational (thought-reform-based) approach to criminal justice; the parties’ rights are regarded as secondary to this political end. Third, the State does not take sufficient responsibility to protect the victim’s right to get compensation in the civil litigation collateral to criminal proceedings. / In conclusion, this thesis argues that resolving criminal cases through ‘criminal reconciliation’ may aggravate the problems already affecting the ordinary criminal justice process, because it is a mechanism designed to weaken procedural rights protections, and eliminate the adversarial character of the criminal justice process. Thus the promotion of ‘criminal reconciliation’ may be one of several signs that China is deviating from the path of rule of law development that was once the leadership’s clearly stated goal. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Detailed summary in vernacular field only. / Jiang, Jue. / "December 2012." / Thesis (Ph.D.)--Chinese University of Hong Kong, 2013. / Includes bibliographical references. / Electronic reproduction. Hong Kong : Chinese University of Hong Kong, [2012] System requirements: Adobe Acrobat Reader. Available via World Wide Web. / Abstract and appendixes also in Chinese. / Chapter Chapter I: --- The Criminal Reconciliation System (xingshi hejie) In China --- p.1 / Chapter 1.1 --- The idea of ‘criminal reconciliation’ (xingshi hejie) --- p.4 / Chapter 1.2 --- The implementation of criminal reconciliation --- p.15 / Chapter 1.2.1 --- The procedure and scope of application of criminal reconciliation --- p.16 / Chapter 1.2.2 --- Criminal reconciliation and the normal criminal procedure --- p.24 / Chapter 1.2.3 --- The involvement of lawyers in criminal reconciliation processes --- p.27 / Chapter 1.2.4 --- Different criminal reconciliation practices nationwide --- p.29 / Chapter 1.3 --- Further reported practices in criminal reconciliation --- p.40 / Chapter 1.3.1 --- Practice of criminal reconciliation outside its stipulated scope --- p.42 / Chapter 1.3.2 --- Cooperation among authorities: ‘duijie’ and ‘liandong’ mechanisms --- p.43 / Chapter 1.3.3 --- Wider involvement of participants in criminal reconciliation --- p.46 / Chapter 1.4 --- Summary --- p.48 / Chapter Chapter II: --- The Scholarly Debate Around Criminal Reconciliation --- p.51 / Chapter 2.1 --- Scholarly debates of criminal reconciliation practices --- p.52 / Chapter 2.1.1 --- Positive appraisals --- p.52 / Chapter 2.1.2 --- Criticisms --- p.60 / Chapter 2.1.3 --- The debate concerning uses of criminal reconciliation outside its stipulated scope --- p.66 / Chapter 2.1.4 --- The debate concerning lawyers’ role in criminal reconciliation processes --- p.68 / Chapter 2.2 --- Scholarly debates of justifications for criminal reconciliation --- p.70 / Chapter 2.2.1 --- Differences between criminal reconciliation and restorative justice --- p.72 / Chapter 2.2.2 --- A critique of the theory of ‘private cooperation’ (sili hezuo) --- p.77 / Chapter 2.2.3 --- A critique of the theory of ‘third realm’ (di san lingyu) --- p.79 / Chapter 2.2.4 --- A critique of the theory of ‘civil mediation’ --- p.88 / Chapter 2.3 --- Summary --- p.89 / Chapter Chapter III: --- Criminal Reconciliation In Practice: Evidence From Official Case Files --- p.91 / Chapter 3.1 --- The motivation for the empirical study --- p.91 / Chapter 3.1.1 --- The deficiencies of doctrinal research --- p.91 / Chapter 3.1.2 --- Existing empirical studies: findings and remaining concerns --- p.94 / Chapter 3.2 --- An overview of criminal reconciliation practices in the three fieldwork locations --- p.100 / Chapter 3.2.1 --- Selection of cases --- p.101 / Chapter 3.2.2 --- The basic statistical facts --- p.103 / Chapter 3.2.3 --- The cases eligible for criminal reconciliation --- p.105 / Chapter 3.2.4 --- The suspects/defendants eligible for criminal reconciliation --- p.106 / Chapter 3.2.5 --- The procedure of criminal reconciliation and follow-up programmes --- p.-106 / Chapter 3.2.6 --- Duration of criminal reconciliation programmes --- p.127 / Chapter 3.3 --- An analysis of the practice of criminal reconciliation relying on the evidence from official case files --- p.138 / Chapter 3.3.1 --- The procedure of criminal reconciliation in practice --- p.138 / Chapter 3.3.2 --- Achievements and failures of the official goals in practice --- p.141 / Chapter 3.3.3 --- Questioning the official design of the criminal reconciliation procedure --- p.143 / Chapter 3.3.4 --- Conflicting official goals --- p.145 / Chapter Chapter IV: --- The Process Of Criminal Reconciliation Programmes: Evidence From Interviews --- p.147 / Chapter 4.1 --- The initiation stage --- p.148 / Chapter 4.1.1 --- Violations of eligibility requirements --- p.148 / Chapter 4.1.2 --- No presumption of innocence --- p.155 / Chapter 4.1.3 --- Violations of the principle of voluntariness --- p.156 / Chapter 4.2 --- The criminal reconciliation meeting --- p.162 / Chapter 4.2.1 --- Appropriate communication between the parties in some reconciliation meetings --- p.163 / Chapter 4.2.2 --- Focus on bargaining over compensation --- p.166 / Chapter 4.2.3 --- Private agreement reached prior to the formal reconciliation meeting --- p.-171 / Chapter 4.2.4 --- Pressures on the parties to reach agreements --- p.172 / Chapter 4.2.5 --- Compensation as the main content of criminal reconciliation agreements --- p.173 / Chapter 4.2.6 --- Clauses added by officials into criminal reconciliation agreements --- p.174 / Chapter 4.3 --- Factors affecting official decisions in criminal reconciliation processes --- p.175 / Chapter 4.3.1 --- Focus on fulfillment of compensation obligations --- p.175 / Chapter 4.3.2 --- The lack of judicial independence --- p.179 / Chapter 4.4 --- Insights into follow-up programmes --- p.182 / Chapter 4.4.1 --- Limited substantiation of findings in case file examination --- p.182 / Chapter 4.4.2 --- The effects and problems of the follow-up programmes --- p.185 / Chapter 4.4.3 --- The potential failure of the official aim of correcting the suspect/defendant in criminal reconciliation cases without follow-up programmes --- p.186 / Chapter 4.5 --- Summary --- p.187 / Chapter Chapter V: --- The Participants Of Criminal Reconciliation Programmes: Evidence From Interviews --- p.191 / Chapter 5.1 --- Official involvement in criminal reconciliation programmes --- p.191 / Chapter 5.1.1 --- Officials’ leading and dominant role --- p.192 / Chapter 5.1.2 --- Officials’ positive comments on criminal reconciliation --- p.200 / Chapter 5.1.3 --- Officials’ negative comments on criminal reconciliation --- p.203 / Chapter 5.1.4 --- Officials’ expressed concerns about criminal reconciliation --- p.205 / Chapter 5.1.5 --- Difficulties faced by officials in charge of criminal reconciliation --- p.208 / Chapter 5.2 --- The parties participating in criminal reconciliation programmes --- p.213 / Chapter 5.2.1 --- The victim’s participation under coercion --- p.213 / Chapter 5.2.2 --- No presumption of innocence --- p.218 / Chapter 5.2.3 --- Active roles for parties only in private reconciliation --- p.222 / Chapter 5.2.4 --- The parties’ comments on criminal reconciliation --- p.225 / Chapter 5.2.5 --- The parties’ difficulties in criminal reconciliation programmes --- p.229 / Chapter 5.3 --- The lawyers as actors (participants) in criminal reconciliation cases --- p.232 / Chapter 5.3.1 --- Lawyers’ role as mediators between officials and the parties --- p.232 / Chapter 5.3.2 --- Some lawyers’ comments on criminal reconciliation --- p.235 / Chapter 5.4 --- The role of other participants in criminal reconciliation programmes --- p.237 / Chapter 5.4.1 --- Serving officials’ purposes --- p.238 / Chapter 5.4.2 --- Other participants’ comments on criminal reconciliation --- p.239 / Chapter 5.5 --- Summary --- p.241 / Chapter Chapter VI: --- Understanding Wider Problems in the Criminal Justice System through the Lens of Criminal Reconciliation --- p.245 / Chapter 6.1 --- Contradictory rules and ‘hidden rules’ (qian guize) --- p.246 / Chapter 6.1.1 --- The prevalence of ‘hidden rules’ and ‘parallel systems’ --- p.247 / Chapter 6.1.2 --- Internal and external pressures as the reason for ‘hidden rules’ and ‘parallel systems’ --- p.248 / Chapter 6.1.3 --- Preliminary conclusions --- p.261 / Chapter 6.2 --- Criminal justice through ‘correction’ (jiaozheng) and ‘thought reform’ (sixiang gaizao) --- p.263 / Chapter 6.2.1 --- The concept of ‘correction’ in the wider criminal process --- p.264 / Chapter 6.2.2 --- The ideology of ‘thought reform’ underlying ‘correction’ --- p.271 / Chapter 6.2.3 --- A critique of thought reform --- p.274 / Chapter 6.2.4 --- Preliminary conclusions --- p.277 / Chapter 6.3 --- The State’s failure to enforce victims’ claims to compensation through civil litigation --- p.278 / Chapter 6.3.1 --- The reason leading to the problem with enforceability --- p.280 / Chapter 6.3.2 --- Preliminary conclusions --- p.282 / Chapter Chapter VII: --- Conclusion --- p.283 / Chapter Appendix I --- Sentencing Normalization Form of the Criminal Division of B District People’s Court [in Xi’an] --- p.288 / Chapter Appendix II --- Article 277-279 of The Criminal Procedure Law of the People’s Republic of China (2012 Revision) --- p.291 / Chapter Appendix III --- Chapter 21of Supreme People’s Court Judicial Interpretation on Some Issues Concerning the Implementation of the Criminal Procedure Law (Draft Issued to Solicit Opinions) --- p.293 / Chapter Appendix IV --- Opinions of the Supreme People’s Procuratorate on the Handling of Minor Criminal Cases When the Parties Have Reached Reconciliation --- p.302 / Chapter Appendix V --- Opinions of the Supreme People’s Procuratorate on Implementing the Criminal Policy of Combining Severity with Leniency in Procuratorial work --- p.314 / Chapter Appendix VI --- Opinions of the Supreme People’s Court on Implementing the Criminal Policy of Combining Severity with Leniency --- p.335 / Bibliography --- p.368

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University of Macau / Faculty of Law