Commentary on China’s Trial in Absentia: Purpose, Legitimacy, and Application

To provide an additional procedural device to pursue the corrupt officials who fled China and have been hiding abroad, the 2018 PRC Criminal Procedural Law (CPL) has introduced the trial in absentia procedure (TIA procedure). As a special mechanism that might infringe on the defendant's rights, China's TIA procedure has adopted the French model and designed sophisticated rules for the notice of the trial, the right to a lawyer, and the right to a retrial so that it could pass the legitimacy test following the principle of due process. However, this article argues that more significant crises of applying trials in absentia lie in the substantive aspects. Although China's TIA procedure can mostly meet the procedural requirements of a fair trial, TIA procedure in China might fail to achieve its legislative purposes. For instance, the accused who has been convicted in a trial without his presence might be a refusal ground to an extradition request, and the convictions in absentia might not be able to be enforced. In order to promote the interest of justice, it is recommended to adopt a purposive approach to interpret the rules of the TIA procedure, which leads the prosecutor to play a role as a filter to limit the prosecution in absentia. Only if the benefits of conducting a trial in absentia, such as pushing the fugitives to return to China, maintaining obedience to law and order, and providing comfort and relief to the victims, etc. outweigh the costs of conducting such a trial may the prosecutor file a prosecution with the absence of a suspect.