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Criminal procedure involving foreign elements in China

author:James Ling Released in:2016/7/29 14:09:17 Click quantity:

Criminal procedure involving foreign elements is the principles applicable to the work guideline of five bureaucracy organs including people’s court, people’s Procuratorate, public police department , state security ministry  , reform through labour Institution in handling criminal cases involving foreign elements. The so-called foreign elements refer to the criminal case in which of defendant or victim is a foreigner or stateless person; or on the basis of the criminal procedure law applicable is not domestic law only, also with reference to the relevant international conventions, agreements and other; or is in the sentencing or executing, to consider international relations, in order to adapt to international situation, maintain national diplomatic strategies, principles and policies. The foreign elements determine the special principles and procedures of the criminal procedure. On the basic principles and procedures of implementing the criminal procedure law in our country, at same time, it also stipulates the principles and procedures to criminal case with foreign involved elements. The special principles of criminal procedure concerning foreign affairs are:

 (a) Sovereignty principle, that is to prosecute foreigner who made crime within the territory of China by our Chinese laws. Sovereignty is the utmost independent power in a country, which is mainly reflected in the following aspects:

 I  Foreigners, stateless persons and unidentified individual who conducting criminal proceedings in the people's Republic of China, China's criminal procedure laws are applicable;

 the applicable on international treaties, to comply with the provisions of the criminal procedure law of our country when applying international treaties .

 No foreign judicial organs may interfere the jurisdiction power of China ;

  The verdict from  foreign court does not have effective valid on the Chinese territory, only after the Chinese people's court in accordance with the provisions of the criminal procedure law or relevant bilateral agreements and treaties, to be admitted and recognized by through official legal formalities that can be valid .

 (b) The equal reciprocal principle of litigation rights. The obligation of foreigners inChinais responsible to criminal litigation.Chinais a independent socialist country, we oppose blindness nationalism, and against excessive compromise.

 (c) To abide by the principles of international treaties. The international treaty is an agreement between nations, and is implemented by the member states. In criminal proceedings with foreign elements, the methods of how to apply the relevant international treaties to domestic criminal proceedings is not unified in our world. The criminal legislature of our country do not make clear define, only with reference to the relevant provisions of the Civil Procedure Law of China, that is the international treaties concluded or acceded to by the people's Republic of China are different with China's criminal procedure law, the international treaties shall prevail, except for the terms we state reserved when ratification.

 (d) Using our official Chinese language, Foreigners to participate in criminal proceedings by use of the language of the hosting court’s language, is the world's common standard. Is also one of indications to independently exercise of judicial power in our territory. The use of our common used language of our country is a principle of dealing with foreign criminal cases. This principle requires that the criminal procedure and the judicial documents must use the language of our country, if translation contents have errors, the judgment; ruling of Chinese version shall be prevailing.

 (e) The principle of appointing or authorizing Chinese lawyers to participate in the proceedings. Lawyer’s law system is an important part of the judicial system, a country's judicial system can not be interfered with foreign countries, a sovereign state does not allow foreign interference in the country's judicial affairs. On October 20, 1981, China's Ministry of justice, Ministry of foreign affairs, bureau of foreign experts issued a joint statement explicated that foreign lawyer should not be allowed to represent clients as defender or agent in the name of lawyer identity  to appear in our people’s court .  Therefore, foreign criminal or victim can only be entrusted to the Chinese lawyer as a his ∕her defender or agent.



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Email: linghuiming@yingkelawyer.com     Copyright  reserved by James Ling
Email: linghuiming@yingkelawyer.com     Copyright  reserved by James Ling