USALI Executive Director Ira Belkin and Adjunct Professor at NYU Law Takashi Maruta will present a new offering at NYU Law for Spring 2019. This class is available for NYU Law Students, as well as auditors.
COMPARATIVE CRIMINAL JUSTICE: CHINA AND JAPAN
China and Japan share many things but also diverge in many ways, each having followed its own path of development. In terms of their culture and politics in 2018, it seems that they could not be more different. Japan is a vibrant democracy with a constitution that has been heavily influenced by the United States and is fully integrated with the global community. The People’s Republic of China is a one-party state dominated by the Chinese Communist Party. The PRC opened up to the rest of the world in 1979 and is still in the process of a great transition to a global economic and geopolitical power.
How does each country deal with criminal justice? How do Japan and the PRC balance the protection of individual rights and the need for law and order? What does a comparison of criminal justice in China and Japan tell us about those societies and about the state of criminal justice globally? To what extent do culture and politics determine the way a particular country deals with crime and with the rights of individuals when confronted by state power?
This course will analyze and compare the criminal justice systems of Japan and the PRC with occasional reference to criminal justice in the U.S. and Taiwan and other countries. Through this analysis and comparison, we hope to address several questions. To what extent do culture and political structure influence criminal justice? How is it that both China and Japan still heavily rely upon confessions in criminal investigations and provide ample opportunities for the police to obtain confessions by giving police the power to detain suspects for lengthy periods and subject them to repeated interrogation without the presence of a lawyer? Is this a product of culture, history, politics or other factors?
I. CRITERIA FOR EVALUATION
Evaluation will be done on two bases: (1) a research paper (20-30 pages) on a topic relevant to class. The paper must be submitted in 10 days after the last class day (80% of the overall evaluation); and (2) class participation (20% of the overall evaluation).
J.D. students may also use the course to satisfy the Substantial Writing requirement.
II. COURSE OUTLINE
Week 1: HISTORICAL BACKGROUND OF CRIMINAL JUSTICE IN CHINA AND JAPAN (1)
a. Historical Development of Chinese Law (Legal System and Legal Profession)
b. Historical Development of Japanese Law (Legal System and Legal Profession)
Week 2: HISTORICAL BACKGROUND OF CRIMINAL JUSTICE SYSTEM IN CHINA AND JAPAN (2)
a. The Modernization of Chinese Criminal Procedure and Criminal Law in the Mao Period and including the Cultural Revolution – 1949-79
b. The Modernization of Japanese Criminal Procedure in the Meiji Period and the Americanization of Criminal Procedure after World War II
Week 3: SOURCES OF LAW
1. Sources of Law in China: the Constitution, the Criminal Procedure Law, judicial interpretations, agency rules, normative documents. 1979-2018
2. Sources of Law in Japan
Week 4: ARREST AND DETENTION
(1) Arrest and detention requirements of the Constitution and Criminal Procedure Law; China and Japan
Week 5: INTERROGATION
1. Interrogation in the PRC; investigatory detention; the importance of confessions
2. Interrogation in Japan:
a. Voluntary interview by the police/detention of mentally handicapped suspects
b. Right to appointed lawyer
c. Right to remain silent
d. Right to meet with counsel
e. Police seizure
Week 6: OTHER INVESTIGATIVE MEASURES
1. Search and seizure
2. Undercover investigations
3. China – Supervision commission
4. China – other forms of detention
Week 7: TRIAL PROCEDURES
1. Plea bargaining
2. Indictment: role of the prosecutor
3. The public prosecutor system in China and Japan
Week 8: EVIDENCE LAW (1)
1. General Rules – China, Japan
2. Confession statement
a. Voluntary or involuntary
b. Corroborating evidence
c. Videotaping (China) and exclusionary rule (China)
Week 9: EVIDENCE LAW (2)
1. Hearsay evidence
2. Evidence obtained during an undercover investigation
3. GPS investigation and other “scientific” evidence
4. Exclusion of Illegally obtained evidence
Week 10: CITIZEN PARTICIPATION IN CRIMINAL TRIALS: LAY ASSEORS SYSTEM
1. Chinese lay assessors system
a. Selection of lay assessors
b. Role of lay assessors
c. Other actors – adjudication committee, law and politics commission
2. Japan: System and Function of Saiban-in System
a. Selection of Saiban-in
b. Pretrial conference
c. Attendance of victims or victims’ family
d. Special voting system
e. Sentencing
f. Reversal of sentencing by upper courts
3. Pros and Cons of citizen participation in criminal trials
Week 11: DEATH PENALTY - 1
a. History of the death penalty in Japan and China
b. Method of execution
c. Constitutional challenges
Week 10: DEATH PENALTY -2
1. Constitutional challenges
b. Cruel punishment
c. Human rights aspects
2. Public opinion and the argument for abolition
Week 11: WRONGFUL CONVICTIONS (1)
1. The concept of wrongful conviction
2. Case analysis
3. Causes of wrongful convictions
Week 12: WRONGFUL CONVICTIONS (2)
1. Retrial/review system and procedure
2. System of civil compensation for the exonerated
Week 13: CRIMINAL JUSTICE PRACTICE IN THE CONTEXT OF INTERNATIONAL HUMAN RIGHTS PROTECTION
1. NGO reports
2. United Nation’s Human Rights Committee’s Claim
3. Response from the Japanese Government
4. Response from the Chinese Government
Week 14: STUDENT PRESENTATIONS