We already know that there are different judicial procedures in China, but since each procedure contains several stages, questions like what is the usual length of each stage, and what should be done or expected at each stage are something usually asked by people. In today’s article, I will give you a brief introduction.
PHASES OF CHINESE LEGAL PROCESS: CRIMINAL, CIVIL AND LABOUR DISPUTES
1. Criminal Procedure
In China, the criminal justice process or criminal procedure usually consists of three stages, namely, the investigation stage, the review and prosecution stage, and the trial stage. Among them, the investigation stage is the responsibility of the public security agency or organs (that is, the Chinese police), the review and prosecution stage is the responsibility of the procuratorate, and the trial stage is the function of the court.
A criminal case usually starts at the stage of investigation. At this stage, the public security agency will carry out investigations against the criminal suspect, usually accompanied by compulsory measures, such as detention, summons, and arrest. The investigation stage can be further divided into pre-arrest investigation and post-arrest investigation. The former refers to the situation that the public security agency will first detain the suspect after grasping the basic facts and evidence of the crime and the purpose of it is to facilitate interrogation and prevent the suspect from continuing infringement. At this time, the suspect has not yet been arrested, so it is called pre-arrest investigation and detention. The law stipulates that the public security agency must apply to the procuratorate for an arrest order within 30 days after the pre-arrest detention, and the procuratorate has 7 days to consider and respond. Therefore, the detention period prior to arrest is usually at most 37 days. If the procuratorate recognizes the preliminary evidence held by the public security agency and believes that the suspect’s behavior may indeed constitute a criminal offense, it will issue an arrest approval. In that case, the public security agency can continue to detain the suspect for an additional 30 to 60 days for further improvement of the investigative work and obtain sufficient evidence to prepare for the next stage of review and prosecution. This continuous detention is called post-arrest investigation and detention.
After the public security organs have sufficient investigation evidence (as mentioned above, usually completed within 97 days), all the information and materials (called case files in China) obtained from the case will be transferred to the procuratorate, and the case, at the time is transferred from the investigation stage to the stage of review and prosecution. At this stage, the procuratorate will review the case files submitted, and personally interrogate the suspects or conduct other necessary investigations to determine whether the case files submitted by the public security organs are sufficient for prosecution. This stage usually lasts from 30 days to 60 days, depending on the complexity of the case. If the procuratorate finally believes that the case files submitted is sufficient for them to prosecute the criminal suspect, the procuratorate will generate a prosecution indictment and submit the file together with the indictment to the court to start the trial phase. It is worth noting that if the procuratorate considers that the case files submitted by the public security agency is not sufficient to prosecute the suspect, the procuratorate will return the case file to the public security agency and require them to carry out supplementary investigations. Therefore, the case will return to the first stage, that is, the investigation stage, and the public security agency will have 30 days to carry out supplementary investigation work. After that, the public security agency will submit the original case file and the supplementary case file obtained from the supplementary investigation to the procuratorate again, and the procuratorate will still have 30 to 60 days to review them. The law stipulates that such supplementary investigations can only be carried out twice. In other words, if the procuratorate still lacks confidence in prosecuting the suspect after the two supplementary investigations by the public security organs, the case will be dismissed.
Once the procuratorate decides to prosecute the suspect and submit the case file together with the indictment to the court, the case will enter the trial stage. This stage usually takes 60 to 180 days, depending on the level and busyness of the court. At this stage, the court will register the case, assign judges, and schedule the trial time. The time for trial and sentencing is also included in the above-mentioned time limit. In general, the process of China’s criminal justice process may take 6 months to a year to complete, but due to different circumstances of the case, it may take longer. However, this does not include the time for appeals, applications for retrial, and death penalty review procedures and certain other specific procedures.
- Civil Procedure
China’s civil procedure is generally simpler than criminal procedure. Normally, the civil judicial process starts with the plaintiff going to the court to register a civil lawsuit, that is, initiating a civil lawsuit against the defendant. Of course, based on the original agreement between the plaintiff and the defendant, the application for arbitration at the agreed arbitration institution is also sometimes regarded as a civil judicial procedure.
In China, first-instance civil litigation usually takes six months, and the starting date of these six months is the date of notice of case registration. Specifically, after the plaintiff initiates a civil lawsuit, the court will conduct a formal review of the complaint information and materials provided by the plaintiff. After determining that the plaintiff meets the basic requirements of the law and the plaintiff has paid the court fees in full, the court will issue a formal notice of case registration to the plaintiff, which is usually in the form of a subpoena, informing the plaintiff of the registration number of the case (we call it the case number), the name of the trial judge, the address and date of the trial, and other information. By receiving such notice, the six-month trial period will begin.
If you are not satisfied with the first-instance judgment and want to file an appeal, then you usually have 15 days (30 days for subjects living outside of China) to submit your appeal petition and the evidence required for the appeal. After you file an appeal complaint and have paid the second instance litigation costs to the court, the case will enter the second instance procedure. Generally, the second-instance procedure requires shorter time than the first-instance procedure, and the court will generally make an appellate judgment within one month to two months.
In China, the appellate judgment is the final judgment. Of course, the law allows you to request a retrial for the final judgment, but there are strict legal regulations on whether to accept the retrial request. Since there are relatively few cases of retrials and the procedures are more complicated, I will not introduce them in this article.
- Labor Disputes
Labor dispute cases are also a type of civil judicial cases in the strict sense, but since they have unique characters, they are usually introduced separately.
According to Chinese laws, if a labor dispute case is really to be resolved by litigation, the parties need to conduct labor arbitration before the case is brought to the court. That is to say, when it is necessary to intervene by law to resolve the dispute, the parties to the labor dispute case must first go to the labor arbitration institution to apply for labor arbitration. After obtaining the labor arbitration award, if the parties are not satisfied with the award, they can then go to the court to apply for a civil lawsuit. At this time, the court will require the parties to submit the arbitration award that has been obtained, but even so, the court will still review all the file materials and information, and will not refer to the arbitration award as the important or sole gist to make their own judgment.
Labor arbitration usually takes 60 to 180 days to complete. The date starts when the labor arbitration tribunal notifies the registration of the case with the date of the hearing determined. As for the civil proceedings initiated by the parties after the labor arbitration, the trial term is the same as the time limit for the general civil proceedings introduced above, so I will not repeat the introduction here.
- Suggested Phases of Resolutions
Unlike many countries, Chinese laws do not require parties to try to conclude a pre-trial negotiation or settlement before litigation, and submit the proof of such negotiations as one of the evidence for the lawsuit. However, for cases where the subject matter is small or the dispute is not serious enough to a certain extent, we usually recommend our client to take the following steps to try to resolve the dispute when it arises:
First of all, the client can try to negotiate with the other party. We will provide the client with legal opinions and negotiation strategies so that such negotiations can achieve better results.
Secondly, if the result of the preliminary negotiation is not satisfactory or the other party ignored it, we usually recommend the client to entrust us to send a formal lawyer’s letter to the other party based on the situation of the case, urging and requesting the other party to start or continue the negotiation. Generally, the lawyer’s letter will serve as a warning and sign of the escalation of the dispute. Usually, the counter-party will pay more attention to it, but this also means that the relationship between the client and the counter-party may deteriorate.
Finally, if the initial negotiation and the lawyer’s letter cannot achieve satisfactory results, then we will evaluate the feasibility of the case together with the client, including whether the facts are clear, whether the evidence is sufficient, the possibility of winning the case, and the cost estimation. After that, The case may enter the proceedings.