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What are the characteristics of foreign-related criminal proceedings

Author:Unknown Source:Internet Time:2020-04-28
1. What are the characteristics of foreign-related criminal proceedings
 
1. The principle of sovereignty
 
The principle of sovereignty, that is, the principle of applying Chinese law to prosecute alien crimes, is the primary principle of foreign-related criminal proceedings.
 
Article 16 of China's Criminal Procedure Law stipulates: "For foreigners who should be investigated for criminal responsibility, the provisions of this law shall apply. For foreigners who enjoy diplomatic privileges and immunities shall be investigated for criminal responsibility. They shall be resolved through diplomatic channels.
 
2. Abide by the principles of international treaties
 
That is to say, when the public security and judicial organs handle foreign-related criminal cases, while applying China's criminal procedure law, they must also take into account the international treaties concluded or participated in by China, and perform corresponding obligations in accordance with the provisions of the treaties.
 
In terms of foreign-related criminal proceedings, there are usually two ways to ensure compliance with international treaties through domestic law. First, the recognized international treaty content is specifically formulated as a law through the domestic legislative process for implementation; second, in the domestic The law stipulates the conditions and principles for recognizing international treaties. Any international treaty that conforms to this provision is automatically adapted to domestic law and implemented in the country.
 
3. The principle of equal rights in litigation
 
The principle of equal rights in litigation refers to foreigners participating in criminal litigation in China, enjoying the same litigation rights as Chinese citizens and assuming the same litigation obligations according to law.
 
4. The principle of litigation in China's common language and script
 
Proceedings in the country ’s common spoken and written languages ​​is a common practice in various countries and an important manifestation of independent exercise of national judicial sovereignty. It is also the guiding principle of China ’s foreign-related criminal proceedings.
 
5. Principles for designating or entrusting Chinese lawyers to participate in litigation
 
The lawyer system is an important part of a country's judicial system, and it should only be applied in the field of the country, and should not be extended abroad. -A sovereign country also does not allow the foreign judicial system to interfere in its judicial affairs in its field, which is also an important manifestation of the principle of sovereignty. Therefore, lawyers in one country can usually only perform their duties as lawyers in their own country.
 
2. The procedure specific to foreign-related criminal proceedings is
 
1. Jurisdiction of foreign-related criminal proceedings. As for the jurisdiction of foreign-related criminal proceedings, China's Criminal Procedure Law already has principled provisions. That is, criminal cases involving foreigners (including stateless persons) committing Chinese criminal law, and criminal cases in which Chinese citizens violate the legal rights of foreigners are all within the scope of the case. But it must be a crime in China. That is, one of the perpetrator's actions or results occurs in China's territorial waters, territories and airspace, as well as all Chinese ships and aircraft, and the judicial organ should accept them. The jurisdiction, review, prosecution and trial of foreign-related criminal cases are based on the relevant provisions of China ’s Criminal Procedure Law and the provisions of the Joint Notice on the Implementation of Criminal Law and Criminal Procedure Law of the Supreme People ’s Court, Supreme People ’s Procuratorate and Ministry of Public Security. It shall be under the jurisdiction, investigation and prosecution of public security, security organs and people's procuratorates equal to those of intermediate people's courts, and be tried by intermediate people's courts. Cases that are particularly serious and have a great impact can also be reported to the people's court at the next higher level and people's procuratorates, public security, and security organs at the same level.
 
2. The question about when lawyers will participate in the lawsuit. China's Criminal Procedure Law stipulates that the defendant can only entrust a defender or be appointed by the court at the trial stage of the court. In foreign-related cases, the actual situation in which the defendant is a foreigner should be considered. From the perspective of facilitating criminal proceedings, it may be considered that a defender may be entrusted to intervene and the right to defend may be implemented during the review and prosecution stage. Can be handled in this spirit. It is possible for foreign defendants to require guardians to intervene in criminal proceedings, but they cannot act as guardians as diplomats with privileges or immunities. They can only intervene in criminal proceedings as close relatives to prevent factors such as diplomats ’privileges and immunities. Affect criminal proceedings.
 
3. Procedures for implementing mandatory measures. China has signed the "Vienna Diplomatic Convention" and the "Vienna Convention on Consular Relations." Naturally, we should abide by the relevant provisions of the above conventions. That is, if a country participating in the convention arrests or detains a foreigner, it shall promptly notify the foreign consulate in this country according to the requirements of the detainee, and allow visits and correspondence. In this regard, in accordance with China ’s principle of abiding by relevant international treaties, the Criminal Procedure Law stipulates that, unless it hinders the investigation, the arrested person shall notify the family or the unit within 24 hours after the arrest. This provision is basically consistent with the notification to the consulate. As for visits and communications, China ’s Criminal Procedure Law is not allowed in principle, and in this regard, the “Rules on Interviewing Detained Offenders and Criminals Communicating with Outsiders” issued by the Ministry of Public Security of China should be followed.
 
4. On the time limit for litigation. In view of the difficulty of foreign-related criminal litigation cases and the long investigation process, criminal cases that can be sentenced to light sentences should be settled within the time limit prescribed by the Criminal Procedure Law. For major difficult cases, the time limit for litigation should be appropriately extended.
 
5. Judgment and execution are subject to review. Refers to the actual needs of diplomatic struggles to be considered in the judgment or execution of criminal cases. If the relationship between the two countries is better or better, and there is reciprocity, the punishment should be appropriately reduced, reduced or exempted. But it can't affect the principle of sovereignty and just give way.
 
3. Seven conditions applicable to foreign-related criminal proceedings
 
1. Cases of crimes committed by Chinese citizens against foreign citizens, stateless persons and foreign legal persons outside China.
 
2. Cases where a foreign citizen, stateless person or foreign legal person commits a crime against a Chinese country, organization or citizen within the Chinese territory.
 
3. Foreign citizens, stateless persons, and foreign legal persons have committed crimes against foreign citizens, stateless persons, and foreign legal persons in Chinese criminal law in China.
 
4. International criminal acts that China has an obligation to govern under international treaties concluded or participated in by China. For example, (1) The Convention for the Suppression of Unlawful Hijacking of Aircraft (the Hague Convention) and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (the Montreal Convention), which joined in October 1980. (2) "United Nations Convention on the Sea" signed in December 1982 (3) "United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances" ratified in October 1989, etc.
 
5. Foreign citizens, stateless persons, and foreign legal persons who have committed to the Chinese state or citizens outside the Chinese domain in accordance with the provisions of the Chinese Criminal Law shall have a minimum penalty of more than three years in prison.
 
6. Certain criminal prosecution activities require non-foreign-related criminal cases carried out abroad. include:
 
(1) Cases of crimes committed by Chinese citizens outside the Chinese territory as stipulated in Articles 7 and 8 of the Chinese Criminal Law;
 
(2) Cases where Chinese citizens fled abroad after committing crimes in the Chinese domain;
 
(3) Cases where the criminal suspect, defendant and victim are all Chinese citizens, but the witnesses are foreigners and have left the country during the lawsuit.
 
7. In cases under the jurisdiction of foreign judicial organs, in accordance with international treaties or the principle of reciprocity, foreign judicial organs request Chinese judicial organs to provide criminal judicial assistance to them.