Comparing the implementation of restorative justice in the inquisitorial system of China with the adversarial tradition in Hong Kong

Abstract

This chapter compares the use of restorative justice processes in China and Hong Kong, the latter having a post-colonial era of adversarial justice tradition whereby the State adopts an inquisitorial approach based on the civil law system. The practice of restorative justice in Hong Kong is minimalized as a diversionary measure exercised under restricted circumstances because no formal procedural rule is in place. In China, however, the inquisitorial approach is much institutionalized and formulated that resembles not only a legal justice process, but also embedding a rich socio-legal traditions that exist in a Chinese society. Based on fieldwork in Hong Kong and case studies from China, it emerges that though the inquisitorial system in China might have provided a better premise to embed the practice of restorative justice within the system than the adversarial tradition in Hong Kong, in real practice, the true essence of restorative justice practice is entrenched more in the cultural root, the people, and the administrative structure within the systems. This Chapter compares the differences of the legal systems and the similarities in cultural norms that have influenced the use of restorative justice at practice level in China and Hong Kong. The convergence of socio-cultural norms resulting from a homogenous population in both China and Hong Kong supports the practice of restorative justice. However, from the research results on real cases handled, a divergence in the implementation of restorative justice is revealed.