WISELINK LAW FIRM SHANGHAI

With the process of global economic integration, more and more foreigners come to China to work and live.However, foreign misconduct in daily life and business activities has caused some criminal risks because of strangers to Chinese law. As the number of such cases increases, we also feel that it is necessary to conduct a detailed study of this issue.

We organized the frequent questions in regards to the foreigners’ criminal cases in China as the following.

1、What should the family member do after the suspect is detained?

The family member shall maintain close contact with the Consulate upon receipt of the notice of the Consulate that someone was arrested and shall immediately seek a Chinese lawyer to intervene in the case.According to Chinese law, foreigners suspected of criminal offence in China must entrust a Chinese lawyer.Foreign lawyers cannot handle cases as lawyers in China.

2. How to entrust a Chinese lawyer?

The criminal suspect and his family may entrust a lawyer to defend when the investigating organization interrogates the suspect for the first time or takes coercive measures against the suspect.

When a foreigner has been arrested,and the relatives who have the right to entrust a lawyer are abroad, how can they entrust a defence lawyer?

The first way is that the family members sign the Power of Attorney abroad and get notarized by the local notary office plus being authenticated by Chinese embassy.This will take some time and may affect getting help from a lawyer in time.

The second way is to seek assistance from the your Embassy or Consulate in China. A Chinese lawyer can be entrusted by an ambassador or minister of the foreign country’s Embassy or Consulate in China in the name of the Embassy or Consulate as per the VIENNA CONVENTION OF CONSULAR RELATION.

3. Please introduce the criminal procedure in China.

I.  Investigation Phase

(1)First summon of the suspect by police

(2)Detention of the suspect

(3)Application to the prosecutor of arrest approval by police

(4)Arrest of the suspect

(5)Investigation closed

In the investigation phase, police will be in charge of the case. During this phase, all the content including witness testimonies, suspect’s statements, and other information of the case are confidential. However, lawyer can figure out the key points of the case by meeting the suspect in detention house. 

II.  Prosecution Phase

(1)Case is transferred to the prosecutor

(2)Interview with the suspect by the prosecutor

(3)Case is withdrawn to the police for supplementary investigation (Only for some case)

(4)Bill of prosecution is submitted by the prosecutor

(5)lodge the legal action to the court

In the prosecution phase, one to two prosecutor will be in charge of the case. All the testimonies, statements and other information of the case are unveiled for the lawyer. At the end of the phase, the prosecutor will submit a bill of prosecution to the court, which is one of the key points of a criminal case.

III.  First Instance of court trial

(1)First instance of court trial

(2)First instance sentence made by judge

In the first instance phase, the case will be transferred to the court. The judge will arrange a date for oral hearing after the case is officially filed. Most hearing will be finished in one day. The first instance judgement will be released immediately after the hearing or take some days in some complicated cases.

IV.  Appeal

Second instance phase will be activated when the first instance defendant appeals or the prosecutor counter appeals. The second instance sentence will be the final judgment of the case.

V. Review of Death Sentences

Death sentences shall be approved by the Supreme Court. If the defendant lawyers request to submit the opinion, the Supreme Court should hear the opinion during the reviews by the Supreme Court of cases involving death sentences.

4.What can lawyers do in three legal procedures?

The responsibility of a defense lawyer shall be to present, according to the facts and law, materials and opinions proving the innocence of the criminal suspect or the accused, the pettiness of his/her crime and the need for a mitigated punishment or exemption from criminal responsibility, thus safeguarding the lawful rights and interests of the criminal suspect or the accused.The followings are the main work of Defense Lawyer in Three phrases.

(1) In the Investigation Phrase

I. To meet the criminal suspect in custody at the very first time after entrustment, and to bring him/her comfort and the support of the families.

II. To acquire the case information from the criminal suspect, and to provide him/her the legal advice.

III.  To meet the families and to give the families legal advice according to the initial case information.

IV.  To communicate with police officers about the circumstances of case.

V. To apply for bail in possible circumstance, or to apply to the police to transfer the case to the procuratorate as soon as possible.

VI. To communicate with the prosecutor about the necessity of arrest.

VII. To attend the hearing meeting of arrest necessity held by the prosecutor.

(2) In Prosecution Phase

I. To follow the case for the very first time and to know the responsible prosecutor of the case.

II. To contact the procuratorate for reading and copying the case documents.

III. To research the case and relevant laws and regulations.

IV. To communicate with suspect and families about defending strategy taken.

V. To provide the possible trend judgment of the case and the legal advice to the suspect and the families.

VI. To communicate with the responsible procurator, submit the legal opinion of defendant lawyer (oral or written) according to the case situation.

VII. To apply for bail in possible circumstance, or to apply to the prosecutor to transfer the case VIII. to the court as soon as possible.

IX. To apply for case-dismissal in written to the prosecutor depending on the case.

(3) In first Instance Phase

I. To follow the case for the very first time and to know the responsible judge of the case.

II. To communicate with the judge about the opinion of attorney before the trial.

III. To apply to the court for requesting witnesses to testify in the court if necessary.

IV. To attend the meeting focus on the procedure problem before the trial hosted by the judge.

V. To do the legal research, court preparation, internal discussion of debate strategy by team.

VI. To communicate with the defendant and families about defending strategy taken.

VII. To give the introduction to the defendant about the court session procedure and the key points.

VIII. To notify the families about the time of the court session and relevant notifications.

IX. To appear on the oral hearing to defend for the suspect.

X. To submit the written version of the speech of defense if necessary.

XI. To apply for bail in possible circumstance.

5.Is it possible to extradite?

Extradition means that a person who accuses or is convicted in other countries in the territory is transferred to the requesting State for trial or punishment according to the request of the State concerned.

When a State makes a request for extradition to another State, the relevant authorities of the requested State, including the judicial authorities, examine the request for extradition in accordance with its domestic law and the provisions of the relevant treaties signed and ratified on the conditions for extradition.Extradition shall normally be granted for those who meet the conditions for extradition, and extradition shall be refused for those who do not meet the conditions for extradition.

Therefore, extradition is required to analyze whether China and request state have signed or jointly signed the extradition treaty.

 Thanks for your reading.

 This Article was wrote by Vivian Zhuang from Melink Law Firm Shanghai,We are local lawyers in China.If you need legal helps,pls feel free to contact with us.Our contact informations are as follow:

Contact person: Marra Won

E-mail: marra@wiselinklaw.com

Our web: www.wiselinklaw.com

Address：RM321,Blgd20,No.8633,Zhongchun Rd,Shanghai,China.