Abstract

This article examines case screening discretion in the Chinese adjudicative committee system from a sentencing perspective. During the screening process, a trial judge will decide whether to pass jurisdiction over an individual case on to an adjudicative committee. This practice raises several noteworthy questions. First, which legal and extra-legal factors influence this decision, and how? Second, does the notion of judicial independence continue to survive in the adjudicative committee system? An answer to these questions requires an analysis of the application of the nulla poena sine lege principle and the main sentencing criteria for adjudicative committees to apply, which can at times include the death penalty, an article 13 proviso, and forgiveness of criminal liability. At first glance, Chinese-style nulla poena appears strict on the surface. Yet, this strictness is offset by the undetermined statutory sentencing guidelines. As regards the death penalty, prevailing capital polices and a tightened review procedure tend to serve as substantial disincentives for a court to hand down a capital sentence. In the discussion of article 13 proviso and exemption from criminal liability, empirical methods are employed and local contexts are explored. This study employs a socio-legal approach and casts new light on the understanding of judicial independence in Chinese legal system.