2019-07-18 11:05:36 Civil and commercial litigation service network
There are two kinds of detainment in china, one is administrative, another is criminal. Here, we discuss only criminal detainment.
When a person is suspected of violating Chinese criminal law, sometimes a police will call him to go to a police station to coorperate for investigation, other times police officer will find where the suspect is and capture then take him back to police station by force. If a person taken to police station has not been released within 24 hours, he must be formally detained.
When a person is detained for criminal investigation, according to Chinese criminal law, a notice about his detainment will be served to his relatives within 24 hours after the detainment. For a foreigner, a notice will also be served to consulate or embassy of the country the detainee belongs to.
The term for detainment will be no more than 30 days, within which the police bureau must apply to procuratorate to get a writ for arrest, if the writ is obtained, the term for custody will be extended to 2 more months. The procuratorate has 7 days to determine whether to issue the writ.
The detainee and his close relatives shall hire a lawyer to help after the person is detained. The lawyer can help to provide legal advices , to claim against malpractice from police officer and apply for bail.
At expiration of the term for investigation mentioned above, the police bureau in charge of criminal investigation must conclude its investigation and transfer the case to procuratorate for preparation for public prosecution. Time for reviewing (preparation for public prosecution) in procuratorate is no more than 1 month. In case of complexity, the term can be extended for another 15 days. But if the procuratorate thinks evidence got from the investigation conducted by police is not sufficient or effective for public prosecution, it can return the case to police bureau for further investigation, which shall be put an end in 1 month. Such returning can be done no more than twice.
At this period of reviewing for public prosecution, the lawyer hired can check all case files and evidence. Usually at this time, the lawyer can give clear assessment of the case. If the lawyer thinks continuance of custody is unnecessary or illegal, he can apply for reviewing of the necessity of custody.
After the period of reviewing for public prosecution, the case will be transferred to court for adjudicating. The adjudicating time for a summary case will be no more than 20 days and can be extended to no more than 1 month and 15 days. If it is a case adjudicated by normal procedure, the shortest time for adjudicating will be no more than 2 months and can be extended to 3 months. For those case that the defendant will be possibly sentenced to death or life imprisonment, the time, subject to approval of next higher level court, will be extended to another 3 months and can be further extended, provided that the supreme court approve such application.
Collecting evidence and defending in hearing is the main and the most important job for a lawyer in the period of adjudication. After collecting enough evidence and discussion with the defendant, the defense plan can be determined, which will be defense for no guilty or for mitigation.
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