I. Introduction

A man who has no knowledge about other countries has no knowledge about his own. This is also the case in the field of law. It becomes evident that comparing other countries’ laws with Chinese law helps us to understand ourselves better. As Zweigert and Kotz put it: “Only when a lawyer knows about other country’s legal knowledge can he understand his home country’s laws correctly.” This is one of the values of comparative law research. However, there are also risks in comparing laws between countries. This is because different legal systems use different terms to describe the same things. For example, in many Western countries, the search of a person is called a “search” while in China the search of a person is sometimes called “examination of the person.” Although called differently, they function in the same manner. In addition, Chinese law requires the investigative organ to produce and show a paper (证明文件) when conducting an inquest of the crime scene. The paper is not called a “warrant” although it functions as the warrants used in Western countries. There are many other examples. When making a comparison between two legal systems, we must first make sure that we are comparing the same things. At the same time, when we cannot find the same thing based on its name, we should try to find it by examining its function. I call this methodology a comparison based on function. We shall make comparisons among things that function in the same way, notwithstanding what they are called. For things that have the same name but function differently, we must be careful to not to treat them the same. For things that have different names but function the same way, we shall compare them as the same kind of things without hesitation.

This essay uses such a methodology to explore China’s criminal detention in the global context in comparison to other jurisdictions. Part I shows the nature of China’s criminal detention in a historical and comparative context. It demonstrates that China’s criminal detention was originally designed as a provisional measure under exigent circumstances in the 1954 Constitution and this nature was inherited by the 1954 Regulation on Arrests and Detentions and the 1979 Criminal Procedure Law. It argues that only when a detention is designed and treated as a provisional measure under exigent circumstances shall it be regarded as constitutional. It also compares criminal detention with other Chinese provisional measures such as stop and further interrogation, seizure and delivery, and summons and forced summons.

Based on the observation in Part I, the following parts deal with procedural safeguards for criminal detentions by comparing them to those in Western countries. Part II discusses the issue of probable cause and targets for criminal detentions. It shows that although there is no probable cause requirement in conducting a criminal detention, China’s Criminal Procedure Law limits the power of law enforcement by defining targets of criminal detentions in the way that is commonly accepted in Continental countries. It argues that limiting the applicable scope of a criminal detention by defining its targets has the same effect as requiring a show of probable cause.

Part III discusses the issue of warrant requirements. It compares common law and civil law rules, and concludes that both have exceptions for warrant requirements. Particularly, it points out that in exigent circumstances, there is no warrant requirement in both common law and civil law countries. It then argues that, although Chinese law does not require a judicial warrant for criminal detentions (only a warrant issued by investigatory organs) it is justifiable because in Chinese law, a criminal detention is applicable only in exigent circumstances.

Part IV introduces time periods for China’s criminal detentions, and argues that time periods for criminal detentions function in the same way as the requirement of “bringing the detainee to a judge without unnecessary delay”. It also explores the relationship between the prolonged time period of criminal detention in the 1996 Criminal Procedure Law and the abolishment of shelter for examination (Shourong Shencha), and argues that the prolonged time period for criminal detention violates the intent of the Constitution as it is designed to be a provisional measure under exigent circumstances.

Part V discusses other procedural safeguards for criminal detentions including sending the detainee to a detention house immediately, interrogating the detainee within 24 hours, notifying the detainee’s family or the unit to which he belongs, and notifying the local public security organ when executing a criminal detention in another place. Part VI discusses exclusionary rules which function as a remedy for violations of procedural safeguards concerning criminal detentions. The last part then concludes the article.