An ariticle on Chinese Criminal Law .
* The content of the following articles only represents the author’s personal views and has nothing to do with this blog. This blog does not assume the corresponding responsibility caused by the author’s personal remarks.
This ariticle illstrates my personal experinece as a lawyer in a criminal case related to drugs. In this article, I will combine the judicial practice with the Chinese Criminal Law theoretical analysis to illustrate the case.
Today, the family members of the alleged offender found me again, and let me see if there is any way to do this criminal case. I couldn’t bear it, so I sorted out her case, found some people, discussed and analyzed the case. Writing this article is to share the experience and experience of handling the case. This article will elaborate and share more from the perspective of judicial practice.
The family member is the suspect’s girlfriend. In fact, they were married according to a religious ceremony, but the marriage was not registered. From a legal point of view, they are not legal husband and wife, but in a religious sense, they are already husband and wife.
The suspect’s girlfriend is only 22 years old this year. According to the sentencing recommendation of the procuratorate, she is expected to be sentenced to 3 years and 6 months. Imagine that at the age of 22, you need to wait for a person for 3 and a half years in the Mood for Love, and as always, you will always wait for him. Find a way, find a lawyer, and advocate. How much persistence and belief is required, so I still think about how to help.
The alleged offender’s family is not very good, the elderly are worried about this matter because of the sick, the alleged offender’s father three strokes, missing his son, the condition is even worse.
Criminal Case in China | Case situation
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He was arrested last August and is now awaiting trial.
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The suspect, an Uzbek national, was arrested on suspicion of drug trafficking.
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The alleged offender made a total profit of 7,766 yuan before and after 14 transactions.
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The alleged offender made a profit of 50 yuan per gram, and the amount involved was 155 + 12 (unpaid) = 167 grams.
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The type of drug involved is: marijuana.
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The alleged offender has a very good attitude of pleading guilty and accepting punishment. After being arrested, he truthfully explained and actively confessed to his accomplices, and has signed a plea affidavit.
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At present, the procuratorate’s sentencing recommendation is 3 years and 6 months, and the court will most likely make a judgment according to this sentencing recommendation.
Chinese Criminal Law| Difficulty Analysis & Discussion
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Identification of family members of alleged offender
The whole matter was handled and followed up by his girlfriend. Because the suspect is a foreigner, his family members are in his home country. The girlfriend, as his closest person, handles all things. For the identity of his girlfriend, it brought a lot of inconvenience to the case.
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Unable to hire a lawyer or appoint a lawyer for it
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Unable to visit after trial
Although his girlfriend married the alleged offender in a religious ceremony, she is not a legal couple recognized by Chinese Criminal Law.
According to Chinese “Marriage Law “:
Article 8 Both men and women who are married are required to go to the marriage registration authority to register their marriage in person. Those who comply with the provisions of this Law shall be registered and a marriage certificate shall be issued. Obtaining a marriage certificate establishes the relationship between husband and wife. If the marriage registration has not been completed, the registration shall be re-filed.Article 9 After the marriage is registered, according to the agreement between the man and the woman, the woman can become a member of the man’s family, and the man can become a member of the woman’s family.
Only when both parties have registered with the marriage registration authority can they belong to a legal marriage under the protection of the law and can enjoy the rights that close relatives can enjoy.
According to the Chinese Criminal Procedure Code :
Article 33Where the alleged offender or defendant is in custody, his guardian or close relative may also appoint a defender on his behalf.
According to my Chinese Criminal Procedure Law and Chinese Criminal Law, only close relatives can appoint defenders on their behalf, and generally speaking, my country’s identification of close relatives is: up, down, left, that is, parents (top), children (bottom), husband/wife (left and right).
* Siblings may be considered close relatives in some cases
In this case, because his girlfriend is not a close relative of the criminal suspect, according to Chinese Criminal Law , he/she cannot hire a lawyer or appoint a lawyer for him, nor can he visit after the trial. This brings great obstacles and gaps in spiritual counseling to both the alleged offender and his girlfriend.
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Chinese Criminal Law|Criminal facts and sentencing determination
In this case, although the amount of drugs suspected is small (less than 200g of marijuana), the aggravating circumstances of fixed-term imprisonment of more than 3 years apply because the alleged offender has repeatedly trafficked and touched on the corresponding aggravating circumstances according to the Chinese Criminal Law .
My thoughts and defense:
The subjective viciousness of the parties is not great. It is only an exchange of marijuana for the purpose of smoking, and it does not have deep subjective malice and social harm. Moreover, the defendant is a foreigner. In many foreign countries, marijuana is legal., the defendant does not have the possibility of illegal knowledge. Therefore, the defendant does not have a deep subjective viciousness. From the perspective of legislative interpretation, the judicial interpretation is aimed at the deep subjective viciousness of criminals, while the defendant does not have a deep subjective viciousness. Therefore, serious circumstances should not be applied.
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Chinese Criminal Law |Rights for correspondence
In this case, the alleged offender’s girlfriend said that she had not been able to receive letters from the suspect and was very anxious. Because the alleged offender has a very necessary and strong psychological need to communicate with his family and loved ones during coercive measures. The family members are very worried about the situation of the criminal suspect, and the alleged offender also has a strong need to express his heart. From a humanitarian point of view, freedom of communication is a basic human right. Even in war, prisoners of war should be guaranteed basic freedom of communication.
In this case, the letter has not been received. We estimate that it is because the letter needs to be translated, but the court does not have the corresponding funds to hire the corresponding translator. Therefore, the court and the detention center shirk each other. The court said that the letter was not received, and the detention center said that this piece is under the control of the court.
Response measures:
Let the parties request the local consul to intervene, the consul requests the foreign affairs department, and the foreign affairs department contacts the court to attract the attention of the court.
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Chinese Criminal Law |Case handling period
The time limit for handling the case in this case is obviously beyond the reasonable range. In judicial practice, the time limit is often exceeded . Although the Criminal Procedure Law stipulates that it is necessary to apply to a superior for overdue, in the process of practice, it is often the case that when the parties ask the corresponding department to issue a certificate approved by the corresponding superior, there is often no way to resort, the court phone cannot be reached, and the interview is not received. In addition to the current epidemic, there are more reasons for overdue.
In addition, the alleged offender in this case has been taken compulsory measures for nearly a year. Although the sentence will be deducted, the conditions in the prison will be significantly better than those in the detention center . The case will not be reviewed and concluded one day, and the alleged offender can only be in the detention center. Therefore, from the perspective of better living conditions for the alleged offender, the case should be closed as soon as possible and transferred to the prison, so that the suspect can obtain good living conditions.
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Seized property
In this case, after the alleged offender was taken coercive measures, several mobile phones, watches, and his girlfriend’s jewelry were confiscated. In practice, although the Criminal Procedure Law stipulates that items unrelated to the case should be returned in a timely manner, in judicial practice, generally speaking, they will only be returned after the case is completed , and for property items, such as security deposits, It is often withheld for what reason (as the funds of the relevant authorities).
According to the Code of Criminal Procedure:
Article 115: Parties, defenders, agents ad litem, and interested parties have the right to appeal or accuse a judicial organ or its staff of any of the following acts:(1) The statutory time limit for taking compulsory measures expires, and it is not released, lifted or changed;(2) The bond for release on bail pending trial shall not be refunded;(3) Sealing up, seizing or freezing property unrelated to the case;Article 139: All kinds of property and documents discovered during investigation activities that can be used to prove the guilt or innocence of the alleged offender shall be sealed up or seized; property and documents unrelated to the case shall not be sealed up or seized.The sealed or seized property and documents shall be properly kept or sealed, and shall not be used, exchanged or damaged.Article 140: The sealed or seized property and documents shall be checked clearly together with the witnesses present and the holders of the sealed or seized property or documents, and a list shall be made in duplicate, signed or sealed by the investigators, witnesses and holders , one copy shall be handed over to the holder, and the other copy shall be attached for future reference.Article 143: Seized or seized property, documents, mail, telegrams, or frozen deposits, remittances, bonds, stocks, fund shares and other properties, if it is found that they are indeed irrelevant to the case, shall be released within three days. Seizure , seizure, freezing, and return.
Summary
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