Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law

Liu, Sida; Halliday, Terence C.

doi:10.1111/j.1747-4469.2009.01169.x

Cited by 74 publications

(43 citation statements)

References 19 publications

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“…In addition, Chinese prosecutors are very reluctant to prosecute cases that do not have a very high chance of conviction. They sometimes withdraw prosecution of weaker cases, or cases in which evidence was later found to have been obtained illegally or could not be substantiated (Liu and Halliday 2009). The proportion of withdrawn cases does not appear in official enforcement statistics and thus distorts conviction rates.…”

Section: Current Issuesmentioning

confidence: 97%

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The Criminal Enforcement of Intellectual Property Rights in China: Recent Developments and Implications

Liu

2010

Asian Criminology

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This article systematically introduces and analyzes a number of aspects of the criminal enforcement of intellectual property rights (IPR) in China, focusing on recent trends and developments. China has been under tremendous pressure from the US to expand the criminalization of its IP infringement. The article first summarizes the substantive criminal law regarding IP offenses in China and describes the main enforcement agencies and judicial organs responsible for the investigation and processing of IP crimes. Analysis of the substantive criminal IP law and enforcement practices shows a steady pattern of rapid criminalization, not only on the books but also in action. Newly promulgated judicial interpretations and notices substantially expand criminalization of IP infringements. In addition, the enforcement rates of IP and related crimes have been rising consistently and rapidly. There have also been numerous joint meetings, information exchanges, issuance of provisions, collaborative "strike-hard" enforcement campaigns and other major efforts initiated by the police, the prosecutors, and administrative agencies to facilitate agency cooperation and strengthen the criminal enforcement of IPR. However, accompanying this rapid criminalization of IP infringement control are serious problems rooted in the Chinese criminal judicial system, including local protectionism, the lack of respect for procedural justice as well as the protection of defendants' basic rights, and inadequate training, professional incompetence, misconduct, or corruption.

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Section: Current Issuesmentioning

confidence: 97%

“…Heavy reliance on interrogation can lead to forced confessions and police abuse of power in forms such as torture and overly lengthy detention. SPP and PSB have issued numerous notices directly addressing such problems since 1996 without much success (Liu and Halliday 2009). …”

Section: Current Issuesmentioning

confidence: 99%

The Criminal Enforcement of Intellectual Property Rights in China: Recent Developments and Implications

Liu

2010

Asian Criminology

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“…draws much of its meaning from the social realms that it seeks to regulate. And, legal endogeneity elaborates ideas about recursivity in law, which point to the cyclical relationship between formal lawmaking and cycles of social norm making (Halliday and Carruthers 2007;Halliday 2009;Liu and Halliday 2009). As Halliday andCarruthers note (2007: 1144), legal endogeneity is a form of recursivity that tends to be more invisible than the more overt efforts at reform that are typically studied.…”

Section: How Legal Endogeneity Theory Elaborates Extant Literaturementioning

confidence: 99%

When Organizations Rule: Judicial Deference to Institutionalized Employment Structures

Edelman

Krieger

Eliason

et al. 2011

American Journal of Sociology

186

179

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Although there is now a considerable literature on how law and legal principles serve as institutionalized models for organizations, there has been far less attention to how organizational practices may serve as institutionalized models for courts. This article offers a theoretical and empirical analysis of legal endogeneity -a subtle yet powerful process through which institutionalized organizational structures and practices influence judicial conceptions of legality and compliance with antidiscrimination law. We argue that, irrespective of their effectiveness, organizational structures, such as grievance procedures, anti-harassment policies, evaluation procedures, and formal hiring procedures, become symbolic indicators of compliance with anti-discrimination laws, first within organizations, but eventually in the judicial realm as well. As organizational structures become increasingly institutionalized, lawyers and judges become more likely to associate them with rationality and fairness and to infer nondiscrimination from the mere presence of those structures. Legal endogeneity has observable manifestations: judges increasingly refer to organizational structures in their opinions, find them relevant to determinations of legal liability, and ultimately defer to those structures by inferring nondiscrimination from their presence. We test legal endogeneity theory by analyzing a random sample of 1024 federal employment discrimination decisions from 1965-1999. We find that legal endogeneity has increased over time; that judicial deference is most likely when plaintiffs lack social and economic clout; and that judicial deference is most likely when the legal theories require judges to rule on organizational attributes that are not directly observable. We suggest that legal endogeneity weakens the impact of law as judges come to view organizational structures as indicators of legal compliance even when those structures are ineffective in combating discrimination.2

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“…Research based on interviews with police officers reports that Chinese police do not generally think of themselves as evil but rather seem to feel that coercing confessions is justified and they regard themselves as the guardians of the interests of society in combating crime and criminals (Wang, 2002;Wu, 2006b). It was observed that the police often abused Article 96 of the 1996 CPL to set the time and place for the lawyer-suspect meeting and be present at the meeting (Liu and Halliday, 2009). Notably, some senior ranks also share a similar view that the ends-convicting criminals-justify the means (Lin, Yu and Zhang, 2006).…”

Section: Resultsmentioning

confidence: 99%

Relativism and Universalism in Interrogation Fairness: A Comparative Analysis Between Europe and China

Beken

2012

Eur J Crim Policy Res

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[Abstract]This paper addresses Chinese interrogation rules from historical and comparative perspectives by relating them to the very different development of interrogation procedure in Europe. A fuller understanding of the evolution of the rules in both contexts is relevant to the present day controversy concerning the universal versus relative nature of interrogation fairness. The comparative analysis reveals that, in fact, the influence of ancient Greek and Chinese civilizations resulted in a great difference between Europe and China regarding legal cultures and institutional arrangements for criminal interrogation procedure. Considering future legal reforms in China, and given the very different historical and institutional context, the likelihood seems low that an 'autonomous version' of the right to remain silent and the privilege against selfincrimination will develop on China's very different soil. However, traditional native resources are also available to legal reformers to ensure a cooperative interviewing style in criminal questioning, and eliminate police-coerced confessions.

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Recursivity in Legal Change: Lawyers and Reforms of China's Criminal Procedure Law

Cited by 74 publications

References 19 publications

The Criminal Enforcement of Intellectual Property Rights in China: Recent Developments and Implications

The Criminal Enforcement of Intellectual Property Rights in China: Recent Developments and Implications

When Organizations Rule: Judicial Deference to Institutionalized Employment Structures

Relativism and Universalism in Interrogation Fairness: A Comparative Analysis Between Europe and China

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