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Definition of foreign-related criminal cases
Foreign-related criminal cases refer to criminal cases in which there are foreign-related factors in the course of criminal proceedings, such as the place where the act occurred, the place where the result occurred, the subject of the act or the criminal proceedings.
Scope of foreign-related criminal cases
Foreign-related criminal cases include:
1. Foreigners commit crimes in the territory of People's Republic of China (PRC) or citizens of China infringe upon the lawful rights of foreigners;
2. Outside the territory of People's Republic of China (PRC), if foreigners commit crimes against countries and citizens of People's Republic of China (PRC) and People's Republic of China (PRC) and citizens of China, the criminal law can be applied: if foreigners commit crimes against countries or citizens of People's Republic of China (PRC) and People's Republic of China (PRC) outside the territory of People's Republic of China (PRC), the minimum penalty stipulated in the criminal law is fixed-term imprisonment of more than three years, except those who are not punished according to the laws of the place where the crime is committed. Anyone who commits a crime outside the territory of People's Republic of China (PRC) and should bear criminal responsibility according to the criminal law may still be investigated according to the criminal law, and his punishment may be exempted or mitigated, although he is tried in a foreign country.
3. Cases in which People's Republic of China (PRC) exercises jurisdiction within the scope of its international treaty obligations in accordance with the following provisions of the Criminal Law: If People's Republic of China (PRC) exercises criminal jurisdiction within the scope of its treaty obligations for crimes stipulated in international treaties concluded or acceded to by People's Republic of China (PRC), the Criminal Law shall apply.
[Edit this paragraph] Procedures for hearing foreign-related criminal cases
The nationality of foreigners is confirmed by their valid documents at the time of entry; If the nationality is unknown, it shall be determined by the public security organ in conjunction with the foreign affairs department. If the nationality cannot be ascertained, it shall be treated as a stateless person and the trial procedure of foreign-related criminal cases shall apply.
The criminal responsibility of foreigners who enjoy diplomatic privileges and immunities shall be settled through diplomatic channels.
In criminal proceedings, foreign defendants enjoy the litigation rights stipulated by the laws of China and undertake the obligations stipulated by the laws of China.
Where international treaties concluded or acceded to by People's Republic of China (PRC) have special provisions on criminal proceedings, the provisions of such international treaties shall apply. However, the provisions on which China has declared reservations are excluded.
The people's courts openly hear foreign-related criminal cases. However, cases involving state secrets or personal privacy shall not be heard in public. For cases tried in public, the people's court shall issue a side hearing, and the vouchers shall be allowed to attend.
When trying foreign-related criminal cases, the people's courts shall use the spoken and written language commonly used in People's Republic of China (PRC), and provide translators for foreign defendants. If a defendant of foreign nationality is familiar with Chinese language and refuses to be translated by others, he shall issue a written statement or record his oral statement on paper. The litigation documents shall be in Chinese, and shall be accompanied by a foreign language translation familiar to the defendant. If the seal of the people's court is not affixed, the Chinese version shall prevail. The translation fee shall be borne by the defendant.
If the defendant of foreign nationality refuses to serve the litigation documents, it shall be handled in accordance with the provisions of the third paragraph of Article 104 of this Interpretation.
If a defendant of foreign nationality entrusts a lawyer to defend, or if the plaintiff or private prosecutor in a civil lawsuit entrusts a lawyer to represent the lawsuit, he shall entrust a lawyer who has the qualification of lawyer in People's Republic of China (PRC) and has obtained the practice certificate according to law.
If the defendant of foreign nationality has not entrusted a defender, the people's court may appoint a defender for him. If the defendant refuses the defender to defend him, he shall submit a written statement or record his oral statement at the end of the volume, and the people's court shall allow it.
The power of attorney issued by a foreigner living outside People's Republic of China (PRC) to a lawyer in China or a citizen of China must be authenticated by the notary office of the host country, the Ministry of Foreign Affairs of the host country or its authorized organ, and the Chinese embassy or consulate in that country before it has legal effect. However, China has an agreement with that country on mutual exemption from certification.
The people's court shall promptly notify the local foreign affairs department of the trial and handling results of foreign-related criminal cases.
Defendants and other relevant criminal suspects in foreign-related criminal cases recognized by the people's court may decide to restrict their exit; Witnesses who must appear in court when hearing a case may apply for suspension of departure. The decision to restrict exit shall be notified to the public security organ or the state security organ at the same level.
If the people's court decides to restrict foreigners and China citizens from leaving the country, it shall notify the person who has been restricted from leaving the country orally or in writing, or it may take the method of detaining his passport or other valid entry and exit documents, and shall not leave the country before the trial of the case is concluded.
If it is necessary to stop foreigners and China citizens from leaving the country at the frontier inspection station, the people's court shall fill out the Notice of Port Stop from Leaving the Country. If the control port is in the province, autonomous region or municipality directly under the Central Government, it shall go through the transfer control formalities with the public security department (bureau) of the province, autonomous region or municipality directly under the Central Government. If the control port is not in a province, autonomous region or municipality directly under the Central Government, the transfer control formalities shall be handled through the public security department (bureau) of the relevant province, autonomous region or municipality directly under the Central Government. In case of emergency, if necessary, the control can be handed over to the frontier inspection station first, and then the control procedures can be handed over.
According to the international treaties concluded or acceded to by People's Republic of China (PRC), or according to the principle of reciprocity, the courts in China and foreign countries may request each other to represent certain litigation acts.
Matters requested by foreign courts are inconsistent with People's Republic of China (PRC)'s sovereignty, security or social interests, and violate the laws of China, and shall be rejected; If it is not under the jurisdiction of our hospital, it shall be returned and the reasons shall be explained.
Where a court of a country that has signed a judicial assistance agreement with China requests agency, it must be reported to the Supreme People's Court by the higher people's court of the province, autonomous region or municipality directly under the Central Government for approval. If the court of a country that has signed a judicial assistance agreement with China requests the court of our country to handle it on its behalf, it shall be reviewed and transmitted by the Supreme People's Court.
The following methods shall be adopted to serve litigation documents to the parties living outside the territory of People's Republic of China (PRC):
(a) served through diplomatic channels;
(two) for the parties of China nationality, we can entrust our embassies and consulates abroad to serve them on their behalf;
(3) If the law of the country where the party is located allows it to be served by mail, it may be served by mail;
(4) If the country where the parties are located has an agreement with China on criminal judicial assistance, it shall be served in the manner stipulated in the agreement;
(5) The party concerned is a private prosecutor in a private prosecution case or a plaintiff in an incidental civil action. If there is an agent ad litem, it may be served by the agent ad litem.
Where a people's court and a court of a country that has diplomatic relations with China request each other to serve legal documents through diplomatic channels, it shall do so in accordance with the principle of reciprocity, except that the country has an agreement on judicial assistance with China.
Foreign courts request China courts to serve relevant criminal legal documents on China citizens and third parties in China through diplomatic channels, except for judicial assistance agreements, and the following procedures shall be followed:
(a) by the country's embassy and consulate in China to submit legal documents to the Department of Consular Affairs of the Ministry of Foreign Affairs, forwarded to the relevant higher people's court. If the higher people's court considers that it can serve on its behalf after examination, it shall designate the relevant intermediate people's court to serve on its behalf. If the requesting party attaches a service receipt, the parties concerned shall sign the service receipt; If the service receipt is not attached, the intermediate people's court responsible for service shall issue a service receipt. The Higher People's Court shall, through the Consular Department of the Ministry of Foreign Affairs, forward the receipt or proof of service to the requesting party;
(2) If the addressee enjoys diplomatic privileges and immunities, it shall not be served; If it does not fall within the scope of the people's court's functions and powers or cannot be served due to unknown address or other reasons, the relevant higher people's court shall indicate the reasons for the non-service, and the consular department of the Ministry of Foreign Affairs shall explain it to the requesting party and return it.
Article 330 The provisions of Article 329 of this Interpretation shall apply to foreign embassies and consulates in China requesting China courts to serve legal documents on their nationals in China through diplomatic channels.
The people's court shall serve legal documents on foreign parties through diplomatic channels in accordance with the following procedures:
(a) the legal documents requested to be served must be examined by the Higher People's Court and handed over to the Consular Department of the Ministry of Foreign Affairs;
(2) The foreign name, gender, age, nationality and detailed address of the person to be served must be accurately stated, and the basic information of the case shall be communicated to the Consular Department of the Ministry of Foreign Affairs;
(3) A service request must be attached, indicating the name of the requested method hospital. If the name of the requested court is unknown, it may request the court with jurisdiction where the party is located to serve it. The legal documents sent must be accompanied by a translation in the official language of the requested party or a third language agreed by that country. If the requested party has special requirements for notarization and authentication of the request and legal documents, the Consular Department of the Ministry of Foreign Affairs shall notify the Higher People's Court.
The people's court entrusts Chinese embassies and consulates abroad to serve legal documents to China citizens abroad, and shall handle them according to the following procedures:
(a) the legal documents entrusted to be served must be examined by the Higher People's Court and handed over to the Consular Department of the Ministry of Foreign Affairs;
(2) The foreign name, gender, age and detailed address of the person to be served must be accurately stated, and the basic information of the case shall be communicated to the Consular Department of the Ministry of Foreign Affairs.
The fees charged by China courts and foreign courts for requesting the service of legal documents through diplomatic channels shall be handled with reference to the Notice of the Supreme People's Court, the Ministry of Foreign Affairs and the Ministry of Justice on the Measures for Charging Fees for Entrusting the Service of Legal Documents through Diplomatic Channels by China Courts and Foreign Courts.
If a defendant of foreign nationality is arrested, tried or killed during the trial of a case, he shall notify the embassy or consulate of the country to which he belongs and handle it in accordance with relevant regulations.
The request for judicial assistance made by a foreign court and its attached documents shall be accompanied by a Chinese translation or other texts stipulated by international treaties.
Other matters in the trial of foreign-related criminal cases shall be handled in accordance with the Interpretation of the Supreme People's Court on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) and other relevant provisions.
[Edit this paragraph] Legal application of foreign-related criminal cases
There is no separate legislation to adjust foreign-related criminal proceedings in China, and the current criminal procedure law basically belongs to the second legislative example, while the judicial interpretation in the Supreme People's Court adopts the third legislative example. China's criminal procedure law only stipulates the principles of foreign-related criminal proceedings in articles 16 and 17, and the first
There is no separate legislation to adjust foreign-related criminal proceedings in China, and the current criminal procedure law basically belongs to the second legislative example, while the judicial interpretation in the Supreme People's Court adopts the third legislative example. China's Criminal Procedure Law only stipulates the principles of foreign-related criminal proceedings in Articles 16 and 17, while Article 20 stipulates the relevant provisions on jurisdiction, lacking comprehensive and specific provisions. Dealing with foreign-related criminal cases in judicial practice mainly depends on some administrative regulations, judicial interpretations and policy documents, in addition to criminal law and criminal procedure law, including:
1.1Regulations on Diplomatic Privileges and Immunities of People's Republic of China (PRC) adopted by the National People's Congress Standing Committee (NPCSC) on September 5, 986;
2.65438+ Decision on the exercise of criminal jurisdiction over crimes stipulated in international treaties concluded or acceded to by People's Republic of China (PRC), adopted in the NPC Standing Committee on June 23rd, 0987. These international conventions and related provisions are:
Article 3, paragraph 2, of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents;
Article 4, paragraph 2, and Article 7 of The Hague Convention1970;
Article 5, paragraph 2, and Article 7 of the Montreal Convention1971;
Article 5, paragraph 2, and Article 8, paragraph 1, of the International Convention against the Taking of Hostages.
Article 8, paragraph 2, of the Convention on the Physical Protection of Nuclear Material;
3. 198 1 06 19, the Ministry of Public Security, the Ministry of Foreign Affairs, the Supreme People's Court and the Supreme People's Procuratorate issued the Notice on Dealing with Foreign Criminals and Foreign Criminals' Contact with the Outside World;
4.1Provisions on Several Issues Concerning Handling Foreign-related Cases issued by the Ministry of Foreign Affairs, the Supreme People's Court, the Supreme People's Procuratorate, Ministry of Public Security, Ministry of National Security and Ministry of Justice on August 27th, 987;
5.65438+ the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) on June 29th, 0998;
6.199865438+February 16 Rules of Criminal Procedure of People's Procuratorate, etc. With the deepening of the construction of the rule of law, in view of the increasingly obvious trend of crime internationalization, it is increasingly urgent to integrate and standardize the legislation of foreign-related criminal proceedings.
The subject of foreign-related criminal cases
The criminal subjects in foreign-related criminal cases include foreigners or stateless natural persons. According to the provisions of Article 30 of the Criminal Law on unit crimes, that is, "companies, enterprises, institutions, organs and groups commit acts that endanger society, which are legally defined as unit crimes and should bear criminal responsibility", as well as foreign legal persons and foreign-invested enterprises established in China.
On the issue of unit crime, whether a wholly foreign-owned enterprise constitutes a unit crime has been debated endlessly. One view is that the ownership of a wholly foreign-owned enterprise is privately owned, and the owner of the enterprise should bear criminal responsibility for its criminal acts, not the enterprise. The opposite view holds that the form of ownership should not be the standard for identifying the subject of crime. Everyone is equal before the law, and private enterprises have equal subject qualifications compared with other forms of enterprises. The interests of enterprises of all ownership are equally protected, and the same laws should be applied to the punishment of their criminal acts. The unit referred to in Article 30 of the Criminal Law generally refers to various companies and enterprises, which shows that the latter of the two controversial views is accepted by law, that is, a wholly foreign-owned enterprise is the subject of unit crime just like other foreign-funded enterprises.
According to Article 31 of the Criminal Law, "if a unit commits a crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished". Therefore, when a foreign-funded enterprise is suspected of committing a crime, the enterprise itself and its supervisors or directly responsible personnel will be taken compulsory measures and will be subject to criminal punishment after conviction. A foreign-funded enterprise established in China is a legal person in China, but due to the existence of foreign capital, the foreign party is actually bearing criminal responsibility. If the person in charge and the person directly responsible are foreigners, the foreign natural person will also be punished.