The Right to Dissent in Trial in Absentia Procedures within the Realm of Chinese Criminal Legal Proceedings

DOI: https://doi.org/10.62517/jel.202414223

Author(s)

Xinyu Yuan

Affiliation(s)

Law School, China Jiliang University, Hangzhou, Zhejiang, China

Abstract

During the 2018 revision of the Criminal Procedure Law, China introduced the trial in absentia procedure into its criminal justice system. Concurrently, the concept of the “right to dissent”, outlined in Article 295 of the revised Criminal Procedure Law, was enshrined. This right stands as a pivotal component of defendants’ recourse within Chinese criminal trial in absentia scenarios, serving as an indispensable safeguard for defendants’ litigation rights. However, the current legal stipulations concerning the right to dissent are notably concise. The exercise of this right by defendants neither necessitates justification nor is bound by a definitive timeframe. This deviation not only contravenes the legislative ethos underpinning the establishment of the right to dissent, but also poses impediments to the preservation of judicial stability. Consequently, a recalibration of the underlying rationale is imperative, entailing a systematic analysis of extant issues and predicaments to formulate proposals for enhancing the system further. Such endeavors aim to facilitate the continuous amelioration and judicious application of this aspect of the legal framework.

Keywords

Procedure; Criminal Proceedings; Trial in Absentia; Right to Dissent

References

[1]Chen Wei, Wang Wenjuan. Origin of Criminal default trial system. Clarification of current situation and differences. Hebei Jurisprudence, 2019(11):38-43. [2]Zhao Linlin. Multidimensional Analysis of Criminal default Trial Procedure in China. Journal of China University of Political Science and Law, 2019(02):104-113+208. [3]Chen Weidong. On Criminal Default Trial System with Chinese Characteristics. Chinese Journal of Criminal Law, 2018(03):14-26. [4]Yang Yuguan. Research on the Protection of Defendant's Rights in Criminal default Trial. Contemporary Jurisprudence, 2020(06):129-140. [5]Yuan Yikang. Rationality and Perfection of Criminal Default Trial Procedure. Journal of East China University of Political Science and Law, 2019(02):132-142. [6]Wan Yi. Three Technical Issues in legislation of Criminal default trial System: Focusing on the Criminal Procedure Law of the People's Republic of China (Draft Amendment). Chinese Journal of Criminal Law, 2018(03):27-37. [7]Huang Feng. Some Issues on the implementation of the Law on International Legal Assistance in Criminal Matters by Procuratorate Organs. Journal of the National Academy of Prosecutors, 2019(04):161-176. [8]Chen Guoqing. Revision of Criminal Procedure Law and New Development of Criminal Prosecutorial Work. Journal of the National Academy of Prosecutors, 2019(01):16-39. [9]Shaoshao. The Right to Dissent in the Criminal Trial in Absentia in China. Chinese Jurisprudence, 2021(05):102-123. [10]Yang Fan. A Study on the Comparative Law of Criminal default trial System -- from the scope of application and the protection of rights. Politics and law, 2019(07):26-37. [11]Liu Jing. On the Three Dimensions of the systematic construction of Criminal default Trial Procedure. Xuehai, 2023(02):173-182.