Restorative justice resonates with idea of traditional Chinese culture

The purpose of restorative justice resonates with some embedded idea of traditional Chinese culture which regards the ultimate goal of judicial activities as avoidance of lawsuits.

The term “restorative justice” first appeared in American scholar Randy E. Barnett’s article “Restitution: A New Paradigm of Criminal Justice.” Although not used in Chinese legal texts, the thinking behind it is reflected in traditional Chinese culture and legal practices.

Historical Roots

Traditional Chinese culture regards the ultimate goal of judicial activities as avoidance of lawsuits, which bears strong similarity to the purpose of restorative justice. “Harmony is precious” — the idea underpinning “non-litigation” — was hence the fundamental principle in ancient China for dispute resolution. Within such a close-knit society, the traditional judicial system was intended, above all, to restore losses to offenders, victims and social relationship caused by criminal activities. This stance reflects the Chinese people’s pursuit of social harmony.

Even though the integration of all laws and punishment was the mainstay of the ancient Chinese legal system, the social governance concept most deeply rooted in the minds of the Chinese people is that “morality dominates while punishment assists.”

The law certainly played an important role in regulating the social order, but as Article 1 of the Comments on Tang Dynasty Laws states, “Moral education is the foundation of governance, while criminal punishment is a tool of governance.”

Moral education is the fundamental method of improving the quality of the population, according to Confucian theories. Confucius said, “If you govern the people legalistically and control them through punishment they may avoid crime, but will feel no personal sense of shame. But governing them through virtue and propriety will engender in them a sense of shame and the motivation to correct themselves.” In other words, punishment is always a measure of last resort, and must not be relied upon to prevent crime.

In their handling of disputes, ancient China’s officials carried the dual responsibilities of adjudicating cases in ways calculated to educate and reform the public, in regard to both rationality and moral sensibility. Consequently, social governance was exercised not just through adjudication. It also emphasized the need to adopt informal procedures to resolve conflicts, and to educate and influence through a large number of non-judicial procedures prior to judicial ones, in efforts to avoid further deterioration of civil behavior. Restorative justice also places special emphasis on early intervention in this regard, to root out any latent eruption of crime. The two concepts are hence highly compatible.

Having emphasized throughout its long history the need for maintaining and restoring social relations, mediation played an irreplaceable role in China’s traditional model of governance. Unlike the general criminal justice model, the mediation process attaches great importance to the subjectivity and initiative of the victim, and to providing them with comfort and compensation.

In so doing it promotes justice and protects the victim’s interests by reducing the risk of their becoming perpetrators, heals rifts in interpersonal relations, and eventually restores social order. At the same time, the subjects and applications of mediation have rendered it a diverse and flexible medium. Ancient mediators ranged from local gentry to intellectuals and community elders. Discussions held in various localities enabled them to bridge the social relations that illegal behaviors had damaged, and at the same time considerably reduce both judicial and social costs.

Introduction to China

Despite the appearance in traditional Chinese governance and judicial models of the ideas and practices of restorative justice, it did not enter China’s mainland as a Western judicial concept until the early 21st century. Efforts have since been made to integrate restorative justice with Chinese judicial practices in a trial basis.

For example, in 2002, the Beijing Municipal People's Procuratorate introduced reconciliation into criminal proceedings. In 2006, the Shanghai Minhang District Procuratorate applied the concept and methods of restorative justice in its handling of a juvenile delinquency case. With prosecutor’s mediation, the suspect and the victim negotiated and communicated with each other and reached a settlement without resorting to court ruling. As a result, China’s public prosecutors and judicial authorities encourage reconciliation between offenders and victims in both private and public cases. In 2012, the criminal reconciliation system was legalized in the Criminal Procedure Law.

Restorative justice becomes a judicial practice in modern China against a social background similar with that in the West. Since the country’s reform and opening-up in 1978, China's economy has made remarkable progress. However, this dramatic change has disrupted the social structure, leading to seismic changes in social relations and intensified social conflicts. New types of illegal and criminal acts have proliferated, and the structure of crime itself is undergoing significant changes. The steep increase in numbers of incarcerated persons poses a heavy financial burden on the state and puts enormous pressure on social correction resources. It is also often difficult for ex-offenders to reintegrate themselves into society. Cases where victims have not been adequately compensated make repairing ruptured relations between the concerned parties problematic, so potentially escalating conflict and giving rise to new crimes.

It is under this circumstance that the concept of restorative justice has entered Chinese scholars’ field of vision and been introduced into China. In other words, its integration with traditional Chinese judicial theories has revitalized judicial practices in China.

The introduction and implementation of the concept of restorative justice is conducive to repairing social relationships that criminal behavior has damaged, to reducing excessive reliance on criminal punishment and imprisonment, thereby ultimately re-establishing a more stable social order, and achieving social harmony. It is congruous with China’s traditional culture which is centered on Confucianism and judicial traditions that prioritize mediation.

Recent Developments

It is generally recognized that China’s legal norms on restorative justice are mainly reflected in the two systems of criminal reconciliation and victims’ forgiveness.

The Criminal Procedure Law, amended in 2012, includes provisions on criminal reconciliation in Articles 277, 278, and 279. The 2018 revision of the law includes procedures for reconciliation between concerned parties in cases of public prosecution. The provisions stipulate the basic conditions, scope of participants, procedures, and substantive consequences of criminal reconciliation.

According to them, a reconciliation agreement can be applied to public prosecution when the criminal suspect or defendant sincerely regrets their crime and has obtained the victim’s forgiveness through compensation and apologies, and when the victim agrees to accept the settlement.

Typical cases include those in which offenders infringe on others’ personal or property rights and could face a fixed-term imprisonment of up to three years, or offenders committed a crime out of negligence other than the crime of dereliction of duty and could face up to seven years in prison. If the criminal suspect or defendant has committed intentional crimes over the past five years, the reconciliation procedures shall not apply.

Criminal reconciliation is also applicable to crimes committed by minors. For example, in cases where a minor inflicts minor injuries, commits a first-time crime or a crime of negligence, attempts a crime, or is deceived or instigated into committing a crime, they may be exempted from prosecution if they show genuine remorse; and both parties voluntarily reach an agreement on civil reparation, or an effective guarantee is provided upon the victim’s agreement. Under such circumstances, the people's procuratorate may decide not to prosecute but instead admonish or order a statement of repentance, apology, and compensation for losses. Competent department could also mete out administrative penalties.

The Supreme People's Court made further clarifications on the sentencing standards for perpetrators in several documents. It is stated that the nature of the crime, the amount of compensation, apologies, and sincere repentance should be taken into consideration. If the crime is relatively minor, “the base penalty may be reduced by more than 50 percent, or the penalty may be exempted in accordance with the law.”

At the same time, the system of victim forgiveness, which is complementary to the criminal reconciliation, is taking shape in China. The victim’s forgiveness is an important factor that judges take into account when deliberating on sentences. If a suspect compensates the victim for financial losses and obtains forgiveness, their sentence may be reduced by less than 40 percent. And even if the suspect obtains an understanding without offering compensation, their sentence may still be reduced by less than 20 percent.

Certain problems are still to be resolved in China’s application of restorative justice. They include how to ensure the reconciliation is voluntary, and how to give play to the role of mediators. Whether the scope of its application can be further expanded — for example, in cases of felonies or even capital punishment — and how to carry out scientific evaluation of its application all require further study. We need to keep an open mind, learn from the experience of other countries, and integrate it with our own. In tapping into the advantages of this system, we will advance the modernization of China’s governance capacity and build a more harmonious society.

Author: LIN WEI is a professor of the Law School, Southwest University of Political Science and Law.