Criminal FAQ

Before  turning  to  the  specific  provisions  of  Chinese  criminal procedure, it is worth noting some fundamental differences in approach between Chinese and American jurisprudence. First, from the Chinese perspective, whether or not someone has committed a crime is a matterof ascertainable fact. In contrast, the American system acknowledges the inherent weakness of human beings to ascertain objective truth. The goal of our system is to create a set of rules that help us come as close as  possible to determining the truth, but we acknowledge that somemeasure of uncertainty is inevitable. Thus, we have determined that all reasonable doubt should be resolved in favor of the accused.


In the American experience, there is a difference between factual guilt  or  innocence  and  legal  guilt or innocence. Someone may  be factually guilty of an offense but, unless twelve jurors unanimously agree that the prosecution has proven guilt beyond a reasonable doubt, the defendant is not guilty under the law. In some cases, the evidence may seem as plain as a videotape, but we leave it to a properly instructed jury to decide what facts have been proven.From the Chinese perspective, at least as reflected in China’s criminal procedure code, the facts are ascertainable and the rules of criminal procedure are simply a means by which those facts will be disclosed. Any rule that promotes conflict or detracts from the tribunal's ability to render an uncontested verdict is discouraged. This bedrock principle colors every facet of Chinese criminal justice.


Preliminary investigation: Chinese procurators report that the first stage in any criminal case is the preliminary investigation, which begins after a criminal activity is reported. Articles 84 and 85 of the Criminal Procedure Law (CPL) make clear that the police and the procuratorate should make provisions for receiving such reports, while CPL Article 84 specifically grants citizens the right and imposes the duty to make such reports.


Filing  a  case:  A  criminal  case  begins when the police or the procurator files a case. The standard for filing a case is somewhat vague and conclusory. CPL Article 83 provides that a case should be filed for investigation "upon discovering facts of crimes or criminal suspects." CPL  Article  86  provides  that  if,  after  examining  a  citizen  report  or complaint and the materials associated with it, the responsible official" believes  that  there  are  the  facts  of  a  crime  and  that  criminal responsibility should be investigated" then it shall file a case. If not, or, if "the facts are obviously incidental and do not require the investigation of criminal  responsibility"  then  the  case  should  not  be  filed  and  the complainant should be notified as to the reason.

Thus, even in setting the standard for filing a case, the Chinese CPL proceeds on the assumption that it is possible, even at this early stage, to ascertain whether ”there are the facts of a crime.” The CPL does not even entertain the possibility that there may be some evidenceof  a  crime  and  some  evidence to the contrary, and thus a need toinvestigate further.


"Filing a case" is both a symbolic and practical step. The act of filing provides some official acknowledgement that a crime has been committed. The practical significance is that only after a case is filed are investigators permitted to use the investigative techniques set out in the criminal procedure code, which include detention of the suspect.


The authority to decide whether to file a case is a powerful one. Refusal  to  file  a  case  may  result  from  an  honest  appraisal  that insufficient evidence exists to prove the commission of an offense. There is at least the potential, however, for the police to decline to file a case for reasons of improper influence or outright corruption. To address that potential, the CPL provides some check against police authority in this regard. If the police refuse to file a case, the procuratorate may require the  police  to  explain  their  decision.  If  the  explanation  is  deemed inadequate, the procuratorate may direct the police to open a file (CPL, Article 87).


A private citizen also has the right to bring a criminal case directly to the  People's  Court.  If  successful,  the  case  will  result  in  criminal punishment for the defendant (CPL Article 88). A private citizen may also bring a civil case as a companion to a criminal case brought by the Procuratorate (CPL Article 77).

Client Testimonial

One of the best China lawyers based in Shenzhen! I appreciated this Shenzhen lawyer's service because they helped me achieved my goals, though it was a tough mission. They are English speaking lawyers, so there are absolutely no communication barrier you likely encounter elsewhere. What impressed me is these Shenzhen lawyer's quick response and professional service, two characteristics which I treasure most. Although the Shenzhen lawyers are based in south China, they represent clients across the country, so you can also call them China lawyer! - Johnson youporn sex teen tube