In recent years, with the rapid development of China's economy and the rapid increase of internationalization, more and more foreigners have come to live in China for a long time. According to the results of the seventh national population census released by the National Bureau of Statistics in May 2021, as of 00:00 on November 1, 2020, there were 845,697 foreigners living in China (excluding Hong Kong, Macao and Taiwan). Foreigners have come to Live in China for business, education, study, work and family visits, and have played a great role in China's economic development, social construction and international exchanges. But at the same time, the crime problem of foreigners in China is also increasing gradually, and there are more and more news reports about illegal crimes of foreigners into the public view. How to deal with foreigners who commit crimes in China, what are the differences between them and Chinese criminal judicial procedures, and whether there will be special treatment, have become issues of concern. This article chooses a few people to care about the degree of higher questions to be answered.

1. Jurisdiction and proceedings

First, substantive law. According to article 6 of the Criminal Law, this Law applies to all crimes committed within the territory of the People's Republic of China, except as otherwise provided for by law. The general provisions of criminal law reflect the principle that everyone is equal before the law. And "except for the special provisions of the law", foreigners are not granted any privilege. As long as foreigners commit crimes in China, their crime and penalty standards are the same as those of Chinese nationals, except for the additional punishment of deportation.

Second, procedures. The new Criminal Procedure Law has been revised, so that crimes committed by foreigners will be under the jurisdiction of basic people's courts instead of the Central people's Courts. But because foreigners have their particularity after all, in the criminal law procedural law, and Chinese people still have some differences.

(1) On the question of nationality. Because concluded with multiple foreign organizations and countries and regions have different multilateral and bilateral agreements, so in the face of foreigners from different countries crime, the criminal judicial cooperation, mutual reciprocity treatment principles, and in the way that extradition will be different, if processes is not good, easy to cause diplomatic dispute, may also conflict with international law rules. Therefore, the confirmation of the nationality of the suspect and the defendant is the first step of foreign-related criminal justice. Internationally, many countries, such as Canada, the United States, Australia, New Zealand, the United Kingdom, France and so on, recognize dual or even multiple nationalities, and the parties involved may also hold the nationality and passport of multiple countries. In addition, there may be cases where foreigners who commit crimes in China do not have passports and their nationalities are unknown. In this case, the Chinese embassy or consulate in China should clarify their nationalities rather than simply treat them as stateless.

To this, "criminal prosecution explanation" the 477 is particularly clear, the nationality of the foreigner, the valid certificate that holds when entering according to its is confirmed; If the nationality is unknown, it shall be confirmed according to the certificate issued by the public security organ or the embassy or consulate of the relevant country in China. Article 359 of the Provisions on Procedures for Handling Criminal Cases by Public Security Organs (hereinafter referred to as the Provisions on Public Security Procedures) stipulates that the nationality of a foreign criminal suspect shall be confirmed by the valid certificate he/she holds when entering China; Those whose nationality is unknown shall be ascertained with the assistance of the Exit and Entry Administration departments; those whose nationality really cannot be ascertained shall be treated as stateless persons.

(2) On special litigation rights. In order to reflect the fairness and equivalence of the rule of law, compared with Chinese crimes, considering the particularity of foreigners in language and diplomatic relations, China provides a lot of special rights and interests protection to foreigners in the provisions of criminal judicial procedures.

China has always attached great importance to foreign-related justice. In criminal Procedure Law and its related interpretations, Provisions on Procedures for Handling Criminal Cases by Public Security Organs, Criminal Procedure Rules of the People's Procuratorates and other important criminal judicial procedures, there are special chapters or provisions for foreign-related justice. The protection of the special rights of foreigners is mainly reflected in translation, notification, defense, visitation and other aspects. During the investigation phase, if the foreigner is not familiar with Chinese language, he/she shall be provided with translation; if he/she is familiar with Chinese language and does not need to provide translation, he/she shall issue a written statement. It should be pointed out that many foreigners often request to contact their embassies and consulates in the first time when facing The Chinese judicial organs. In fact, this is not a litigious right of the parties, but the judicial organs have the duty to inform their embassies and consulates in the statutory link. The main ones are: when compulsory measures are taken against foreigners, procuratorial prosecution or court trial, the embassies and consulates of the countries to which the foreigners belong shall be notified. Where the arrest of a foreigner is suspected of a crime endangering state security or involving political or diplomatic relations, the arrest shall be approved by the Supreme People's Procuratorate at various levels. Relevant departments shall arrange visits at the request of foreign embassies and consulates in China. A foreign party may appoint his guardian or close relative as his defender or agent AD litem. However, if a defense lawyer is hired, only a Chinese lawyer from a Chinese law firm can be hired.

(3) on diplomatic immunity. Clause 2 of Article 16 of China's Criminal Procedure Law stipulates: "If a foreigner who has diplomatic privileges and immunities commits a crime and should be investigated for criminal responsibility, the case shall be solved through diplomatic channels." Who enjoys diplomatic privileges and immunities? According to the Regulations of the People's Republic of China on Diplomatic Privileges and Immunities, diplomatic privileges and immunities include civil, administrative and criminal immunities. Different diplomatic identities have different immunities. It should be noted in particular that not all diplomatic personnel enjoy criminal immunity.

The scope and related privileges and immunities of diplomatic personnel are specified in the 1961 Vienna Convention on Diplomatic Relations and the 1963 Vienna Convention on Consular Relations. My country acceded in 1987 to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, including Diplomatic Agents. Therefore, China's judicial organs should abide by the provisions of the Convention when handling criminal cases involving foreign element. China's "Criminal Procedure Law" has clarified the principle that foreigners who have diplomatic privileges and immunities should be solved through diplomatic channels if they violate China's criminal law. Secondly, China's "diplomatic privileges and immunities regulations" on the people who enjoy criminal immunity made specific and detailed provisions, these people are also the people who have committed a crime to take diplomatic solutions, including :(1) visiting foreign heads of state, heads of government, foreign ministers and other officials with the same status; (2) Diplomatic agents; (3) the spouse and minor children living with the diplomatic agent; (4) Administrative and technical personnel of the Embassy and their spouses and minor children living with them; (5) Diplomatic agents residing in third countries passing through our country and their spouses and minor children living with them; (6) Diplomatic officials who come to China with Chinese diplomatic visas or diplomatic passports (with mutual visa exemption under agreements); (7) other foreign visitors to China with the permission of the Chinese Government to grant privileges and immunities; (8) Foreign representatives who come to China to participate in international conferences and who shall enjoy diplomatic privileges and immunities in accordance with the international conventions to which China has acceded and the agreements concluded between China and relevant international organizations, as well as officials and experts of the United Nations and its specialized agencies who come to China on a temporary basis and personnel of representative offices accredited to China. In addition, the relevant bilateral treaties signed by China and many other countries, such as Sino-American Consular Treaty and Sino-Italian Consular Treaty, have made specific provisions on the enjoyment of diplomatic immunity. Those who commit crimes within our borders will be resolved through diplomatic channels.

Although diplomatic personnel enjoy immunity from criminal charges and solve criminal problems through diplomatic channels, they are not exempt from punishment. Our country can refuse to accept them as diplomatic personnel or declare them persona non bata and ask them to leave the country.

2. On extradition

International extradition has always been a difficult problem, and successful extradition cases between countries are rare. At present, China has signed extradition treaties with more than 50 countries, but most of them are South American and Eastern European countries. Although there are no specific articles on extradition in China's Criminal Law and Criminal Procedure Law, China has promulgated and implemented the Extradition Law of the People's Republic of China in 2000, which makes relatively specific provisions on extradition. The relevant contents can be referred to the law.

The act referred to in the request for extradition must constitute a crime under the laws of both China and the requesting state. Even if there is no extradition treaty between the two countries, the criminal can be brought to the country of nationality for trial by means of persuasion or repatriation. In 2013, Neil Robinson, a British sex offender, was extradited from China to the UK and sentenced to 12 years in prison. He committed the crime in the UK and had been wanted by police for more than 10 years. He had married in China, which became a successful case of cooperation between China and the UK in extraditing criminals. But generally speaking, foreigners who commit crimes in China, especially crimes against Chinese nationals, are generally not extradited and must first be subject to litigation and adjudication by Chinese judicial organs. Article 9 of the Extradition Law of the People's Republic of China stipulates that the People's Republic of China has criminal jurisdiction over the crime indicated in the request for extradition and may refuse extradition if criminal proceedings are under way or criminal proceedings are being instituted against the person sought.

3. On deportation

Article 35 of the Criminal Law stipulates: "Deportation may be applied independently or in addition to criminal aliens." Deportation applies only to foreign citizens and stateless persons who do not hold Chinese nationality but commit crimes in Chinese territory. However, according to the Refugee Convention, if a state deports a refugee, it shall not expel him or her from the country unless it finds that he or she has seriously jeopardized national security or committed a serious crime, and even if it does, it shall grant a reasonable period of time to obtain permission to enter another country legally.

There are two reasons for the expulsion of foreigners, one is the penalty of expulsion in administrative law, the other is the penalty of expulsion in criminal law, and there are essential differences between them. The Ministry of Public Security may deport those who violate the provisions of the Law on Entry and Exit Administration and whose circumstances are serious and do not constitute a crime. Aliens who are decided to be deported by the Ministry of Public Security shall not be allowed to enter China for 10 years from the date of deportation. For aliens who have violated the Provisions of the Espionage Act, and individuals who have been expelled from China by the State Security organs under The State Council, they shall not be allowed to enter China for 10 years from the date of their expulsion.

As for the penalty of expulsion stipulated in the criminal law, the period of exclusion from entry after expulsion is generally set at 1 to 5 years. In accordance with the provisions of the Enforcement Measures for The Compulsory Exit of foreigners and the Specific Measures for the Notification of the List of Persons who are Not allowed to enter the Country, the certificates permitting residence in China held by foreigners who are forced to leave the country shall be confiscated. The validity period of a visa on the passport shall be shortened, a stamp shall be affixed on it prohibiting extension, or the visa shall be cancelled. All aliens expelled from the country must be included in the list of those denied entry. Embassies, consulates, offices and domestic visa authorities shall refuse to issue visas; If a visa authority considers it necessary to issue a visa under special circumstances, it must apply to the Ministry of Public Security for approval.

China is an open country. We welcome friends from all over the world to come to China for business, study, employment and life. China is also a country under the rule of law and protects the rights and interests of foreign friends in China in accordance with the law. At the same time, foreigners in China must strictly abide by Chinese laws and operate within the limits permitted by the law.

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The copyright of this article belongs to the original author, some pictures are from the Internet. If there is infringement, please contact the background of this number, we will timely correct, delete, thank you!