I. Issues concerning the determination of the nationality of the defendant
When trying foreign-related criminal cases, we should first examine and determine the nationality and identity of the foreign defendant and whether the nationality has diplomatic relations with China. According to the Supreme People's Court 1994 "the Supreme People's Court's Specific Provisions on the Procedure of Hearing Criminal Cases" and the newly promulgated "the Supreme People's Court's Provisions on Application", when accepting foreign-related criminal cases, the people's courts should confirm the nationality of the defendants according to the spirit of the provisions on the interpretation of foreign-related criminal cases. Valid documents refer to passports issued by foreign governments or other documents that have the same effect as passports and can replace passports as entry documents.
We pay attention to distinguish the following situations in judicial practice:
1. For defendants with dual nationality documents, only the documents used at the time of entry can be used as the basis for determining the nationality of the defendant; For defendants who have entered the country with different nationality certificates for many times, the nationality certificate they held at the time of their last entry before the crime shall be used as the basis for determining their nationality.
2. If the nationality of the defendant is unknown, the conclusion ascertained by the police in conjunction with the foreign affairs department shall prevail. If the nationality cannot be ascertained, it shall be treated as a stateless person, and "nationality unknown" may be stated in the judgment document.
3. Generally, the identity of the defendant involving overseas Chinese and Hong Kong, Macao and Taiwan regions is confirmed according to the valid documents of the defendant at the time of passage or the documents issued by the local overseas Chinese affairs department, the Hong Kong and Macao Affairs Office and the Taiwan Affairs Office. For people in Hong Kong and Macao, it is also necessary to confirm whether they are China citizens or foreign citizens living in Hong Kong and Macao. Any Hong Kong resident or Macao resident born in China, regardless of whether he holds a British Dependent Territories Citizen passport or a British (Overseas) national passport, and regardless of whether he holds a Portuguese travel agency certificate or identity document, is a China citizen. Except those who have applied for foreign nationality and obtained approval.
Second, the problem of translation.
According to the regulations of the Supreme People's Court, the people's courts should use the spoken and written language of People's Republic of China (PRC) when trying foreign-related criminal cases, and should provide translators for foreign defendants. When choosing translators for foreign defendants, we should not only consider and implement the principle that "citizens of all ethnic groups have the right to use their own spoken and written languages for litigation" stipulated in China's Criminal Procedure Law, but also pay attention to the following points according to the actual situation:
First, consider hiring an interpreter who is familiar with the defendant's mother tongue. In judicial practice, no matter what language, translators who are proficient in the defendant's mother tongue should be equipped as much as possible. During the trial, the translators provided by the people's court shall undertake the task of trial translation, and the translators shall sign the relevant transcripts for confirmation. If you can't find a translation in a small language, after informing and soliciting the opinions of the embassies and consulates involved abroad in advance, use large languages such as Britain and France to respect the national identity feelings of diplomats and defendants who come to attend. Courts at all levels should pay attention to collecting and mastering the contact information of translators in different languages in judicial practice, so that courts at all levels in the province can coordinate their contact when trying such cases. In addition, if a foreign party or his country of nationality or embassies and consulates in China requests to hire someone to provide language assistance in litigation activities, the people's court may allow it, and the relevant expenses shall be borne by it.
Secondly, the defendant was familiar with the language of China and refused to translate. According to the judicial interpretation of the Supreme Court, if a foreign defendant is familiar with China language and refuses to be translated by others, he should make a written statement or put his oral statement on record. The court cannot take it for granted that the trial can be conducted directly in Chinese. In addition, the courts at all levels should report to the provincial court in time, and the provincial court should inform embassies and consulates in China of the nationality of the defendant in time. It should be considered that some foreign embassies and consulates in China may send staff to attend the trial and remind them to bring their own translators.
Third, the translation of legal documents. The newly promulgated Interpretation of the Supreme People's Court on Several Issues Concerning Application: The third paragraph of Article 401 states that "if a foreign party is familiar with China language and refuses to be translated by others, or does not need a foreign translation of litigation documents, it shall issue a written statement by himself". Generally speaking, in addition to the Chinese version, the judicial documents of foreign-related cases should also be translated into foreign languages that the defendant is familiar with. If the foreign language translation is not stamped with the seal of the people's court, the Chinese version shall prevail. In addition, the Chinese judgment and the foreign translation judgment can also be made into a book, with the Chinese judgment in the front and the foreign translation in the back.
Three. Jurisdiction of foreign-related criminal cases
In addition to following the principles of personal jurisdiction, territorial jurisdiction and universal jurisdiction, the emphasis here is on the jurisdiction of foreign-related criminal cases. Although the Criminal Procedure Law has been revised, the jurisdiction of first instance of foreign-related criminal cases has been delegated to the grass-roots courts, "there is no small matter concerning foreign affairs". In view of the sensitivity and complexity of such cases, as well as the experience of grass-roots courts, after the implementation of the revised Criminal Procedure Law, it is not appropriate to delegate all foreign-related criminal cases to grass-roots courts, but should gradually guide and standardize them, and do not rule out the practice of selecting a few grass-roots courts to centrally administer foreign-related criminal cases within their jurisdiction, so as to ensure the handling quality of such cases. At the same time, according to Article 23 of the Criminal Procedure Law, the intermediate people's court can raise the trial level and handle foreign-related criminal cases that should be tried by the grass-roots courts, and the grass-roots courts can also transfer them to the intermediate people's court for trial.
IV. Matters concerning the employment of lawyers and agents by foreign parties in litigation.
Where a foreign party entrusts a lawyer to defend or represent the lawsuit, or the embassy or consulate of the foreign party's nationality in China entrusts or employs a lawyer who is qualified as a lawyer in People's Republic of China (PRC) and has obtained a practice certificate according to law. If the defendant of foreign nationality entrusts his close relatives or guardians as defenders, which conforms to the provisions of the Criminal Procedure Law and relevant judicial interpretations, the people's court shall allow the above-mentioned personnel to provide valid proof of their relationship with the defendant of foreign nationality when handling the matter of entrusting defenders. If a foreign defendant has not entrusted a defender, the people's court may appoint a defender for him. If a foreign defendant refuses a defender appointed by the people's court to defend him, he shall issue a written opinion, or record his oral opinion in a book and sign it, and the people's court shall allow it. If a defendant of foreign nationality may be sentenced to life imprisonment or death, or is blind, deaf, dumb or with limited capacity, or a minor who is under the age of 18 at the time of court hearing has not entrusted a defender, he shall notify the legal aid institution to defend his appointed lawyer.
It should be noted that 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, and the certificate of the relationship with the defendant of foreign nationality provided by his close relatives or his country of nationality, embassies and consulates in China, shall be certified by the notary office of the defendant's country of nationality, the foreign diplomatic service agency or its authorized agency, and the embassy or consulate of China in that country, thus having legal effect. However, unless there is a mutual exemption agreement between China and the country.
Five, about the problem of timely reporting.
In the trial practice, the lower courts need to establish and improve the timely reporting system, ask for instructions immediately if there are problems, and coordinate up and down to solve urgent problems. According to the judicial interpretation of the Supreme Court, if a people's court needs to notify the relevant country embassies and consulates in China when trying a foreign-related criminal case, it shall report to the Higher People's Court, which shall promptly notify the relevant country embassies and consulates in China. However, notification is an act of China to fulfill its obligations related to nationality conventions and bilateral treaties. Delay or failure to notify will lead to negotiations between the foreign party and China, and may even have an impact on bilateral relations. At the same time, how to treat foreign-related parties in China is related to whether foreign governments take actions to protect the legitimate rights and interests of China citizens when they are involved in overseas cases.
Six, about sentencing
When accepting foreign-related criminal cases, as a people's court, we should not only adhere to the principles of judicial sovereignty and independence, but also adhere to accurate justice and fair trial. At the same time, we should also pay attention to the specific cases, criminal circumstances and special circumstances of some foreign defendants who violated China's criminal law in trial practice. For the sentencing of foreign defendants, we should strictly implement the principle of a legally prescribed punishment for a specified crime and the principle of suiting punishment to crime stipulated in China's criminal law. Generally speaking, for foreign-related criminal cases, most charges are accompanied by deportation after the application of punishment, but foreign defendants in some cases need to be treated differently according to specific circumstances. For example, with the deepening of reform and opening up, more and more foreigners trade, settle down or travel in China, especially those who settle down and study in China. Some of these foreigners have violated the criminal law, so they cannot be "deported" across the board in specific sentencing.
In judicial practice, we will occasionally meet some unreasonable or even illegal demands put forward by diplomatic agencies of individual countries in China. As a court, we should give a polite reply to diplomatic letters that generally require a lighter punishment, indicating that People's Republic of China (PRC) is a country ruled by law and everyone is equal before the law. Please believe that the courts in China will handle foreign-related cases fairly according to the laws of China. We can try our best to help some countries complete what they can on the basis of not damaging the judicial image of the country, but we must resolutely refuse some unreasonable demands.
To sum up, the trial of foreign-related criminal cases is influenced by many factors such as politics, law, religion, culture and social system. And there will always be some specific circumstances different from dealing with domestic defendants. In trying these cases, we should take into account national interests, national justice, the image of a country ruled by law and other major issues, and properly handle such cases.