China's criminal 'suspected' complaints focus on tax lawyers
2022-08-08: [Article Link] In previous years, a number of influential grievances have been redressed, such as the Hunan Teng case, the Yunnan Dupeivu case, the Hebei Li Kuming case, the Hubei Chae Lin case, the Henan Zhao case, the Zhejiang Xiaoshan 5 youth robbery case, the Hainan Huang family case, the Liaoning Riede case and the Inner Mongolia Hug case, many of which were redressed not on the basis of the complaint of the person concerned, but because of an accident such as the “return of the deceased” or the “real reappearance of the guilty”. In the process of generating, detecting and redressing these wrongs, there have been some dramatic changes and some obstructions that have given rise to public, prosecutorial and legal challenges, and one wonders what to do “if the real perpetrators are not found and the dead are not returned”.
In recent years, as the judiciary's efforts to correct the wrongs have intensified, there have been fewer cases of “return of the dead” or “resurrection of the real” and a number of “suspects” have been acquitted in the form of “unsubstantiated evidence” and “unsubstantiated”, such killings as Golden Dragon, the Yangtze case, the Guangdong Xuhui case, the rape of the uncle-in-law of Zhejiang Xiaoping, the Yunnan Jinfung case, the Hainan Chen case, etc., the recently corrected cases of Fujimun Xinhua murder, the “five weeks” killing of An Xin, the Jilin Liu Jin Lin case, the Jiangxi Li Jinlin case...
The original court in these cases also found that the evidence was problematic and that the death penalty should have been imposed, but did not dare to impose a heavy sentence directly, “in the light of the circumstances of the case”, and that the suspicion had been lightened and reduced to a “reduced” sentence.
Following the initiation of the retrial, the Court, by examining the original evidence, found that there were serious problems with the original conviction evidence, the existence of unlawful evidence, the falsification of the original evidence, contradictions of evidence, the difficulty of establishing confessions, the inability to form a chain of evidence, the existence of doubts about the expert opinion, etc., and the fact that, on the basis of the principle of innocence, the Court found that the original offence had not been sufficiently substantiated and that the original defendant had been acquitted in accordance with the law. In practice, most criminal complaints may fall into the “suspect” category of evidence at issue, while the “return of the deceased” and the “recurrence of the real perpetrators” are, after all, highly accidental events. At the same time, a large number of suspected “suspects” have been convicted or executed in the past, and there has been a constant flow of complaints to the judiciary. The “two highs” have received a large number of “suspects” complaints from all over the country, as well as so-called “suspects” complaints from the prosecution services where I am present.
These serious criminal cases, which took place more than a dozen or 20 years ago, were punishable by heavy penalties under the law at the time, as well as by a “leaving room” judgement under the “suspended” approach, due to the weakness of the evidence, which now gives hope to the complainants of some “leaving room” judgements, who continue to file a complaint with a higher judicial authority for redress. The question of how to properly deal with the complaints of these “suspects” is now a matter of urgency in criminal proceedings. Here, in the light of current judicial practice, I will try to explore a few of the issues raised in the “suspects” complaints.
I. WHAT'S THE PROCEEDINGS?
What's the problem?
It is generally accepted that a suspect case refers to a case where there is substantial evidence that the accused is suspected of having committed a serious crime, but the whole case does not reach a level of certainty and sufficient evidence to establish that the accused is the perpetrator.
A suspect case is not a statutory concept, but a description of a particular type of exceptional criminal case, which can also be termed a suspect crime from the point of view of conviction.
According to Justice Hu Yunten, the suspicion refers to circumstances in which, in the course of criminal proceedings, due to insufficient evidence, it is difficult to properly determine the criminal suspect, whether the accused is guilty of an offence and whether the offence is of a serious nature, whether the offence is one and the number of counts. Including counts of crimes and non-offences, counts of suspicion, counts of suspicion, counts of guilt and counts of guilt. 
The cases discussed here refer to cases where the offence or non-offence is in doubt.
The Criminal Procedure Code in force in our country clearly defines the circumstances of the case and the principles governing its disposition at the prosecution, trial and re-trial stages.
Article 171 stipulates that “the People's Procuratorate shall take a decision not to prosecute if it considers that there is insufficient evidence and does not meet the conditions for prosecution in the case of the second supplementary investigation, while examining the prosecution stage”;
Article 195 (iii) provides that: “If there is insufficient evidence to establish the guilt of the accused, a judgement of acquittal shall be rendered where there is insufficient evidence to establish the guilt of the alleged offence”;
Article 242, paragraph 2, states: “The evidence on which the sentence was based is inaccurate, insufficient, legally excluded, or there is a contradiction between the principal evidence proving the facts of the case”.
On the other hand, the finding of evidence of the facts of the case, regardless of that stage, was unanimous, and pursuant to article 53 of the Code of Criminal Procedure, evidence of the guilt of the accused must be proven and sufficient. “The evidence is authentic and sufficient and the following conditions shall be met: (i) the facts giving rise to the conviction and sentence are proven; (ii) the evidence on which the case is based is established is substantiated by due process of law; and (iii) the entire evidence is consolidated and beyond reasonable doubt as to the facts found. In judicial practice, the capacity of judicial personnel to handle cases, the level of law and the knowledge of the factual evidence of the case are different, and are influenced by criminal policy, operational procedures, the judicial environment, performance evaluation, etc., as well as inconsistent determination of the evidentiary requirements of the case. After all, the factual findings in criminal cases are not always black and white, and sometimes there are “grey areas”, i.e., situations in which it is not possible to determine precisely whether the suspect is guilty or innocent. After all, the criminal facts are historical events of the past, and we can only do our best to restore the original case, that is, the legal facts, through the traces of evidence left behind by the crime, which are always at a distance from objective facts.
In some cases, although some evidence was obtained or even broken through, it was difficult to form an adequate chain of evidence due to repeated confessions, lack of objective evidence, and, even if the suspect was suspected of having committed a crime, the case was frequently divided between guilt and innocence due to evidentiary shortcomings. In determining the veracity and adequacy of the evidence in the case, and in the light of the evidence analysis of the expert in the field of evidence, he divided the standard of proof into five levels:
The evidentiary standard in hard evidence or iron cases, i.e. 100 per cent of the probability that the accused has committed the criminal acts alleged in the case as a whole;
The facts of the case are clear and the standard probability of sufficient evidence is 90 per cent;
(a) The facts of the underlying case are clear and the criterion that the basic evidence is indeed sufficient is more than 80 per cent;
• The facts of the case are generally clear and the standard of evidence is essentially adequate, with a probability of more than 70 per cent;
The standard probability that a case can be settled despite doubt is more than 60 per cent.
In practice, the first level of evidentiary standards is difficult to meet, the second level is required by the Code of Criminal Procedure, the third level is practical for the judiciary, i.e. the “two basics”, the fourth level is the “two basics” for some jurisdictions, and the “two basics” for some jurisdictions, especially during periods of severe beatings. The fifth level of the evidentiary standard is the practical application of the “reduced” “marginary” decisions of certain judicial bodies, particularly in the case of “triggers”. In our view, according to the evidentiary requirements of our current judicial practice and criminal law, a criminal case that does not produce more than 80 per cent of the probabilities of proving the guilt of the accused falls short of the “probability and adequacy” requirement, i.e., the “suspect case”. In summary, the “suspect case” referred to here is the case where there is substantial evidence that the accused is suspected of having committed a serious crime but does not form a complete chain of evidence, where there is insufficient evidence at some important point in proving the facts of the crime or where there is a contradiction of evidence directly proving the principal facts of the crime, which leads to the failure of the whole case to a level of certainty and sufficiency of the evidence, the insufficiency of the evidence in the case before the court, the lowering of the sentence or the passing of a “leaving margin” judgement. Its main thrusts are:
There is some evidence that the accused was at trial, that the accused at trial was suspected, and that in a number of cases the statements of the accused at trial were broken.
On the entire chain of evidence, there was a lack or contradiction in the corroboration of the evidence and insufficient evidence of objectivity.
Three statements were often contradictory and repeated.
The age of the four years, or the passage of time, makes it difficult to complete the evidence, leaving a gap from the point of view of the investigation in terms of evidence, surveying, identification, identification, etc.
The defendants at the original trial often defended their innocence at that time and complained about it after sentencing.
In its judgement, the court, although it considered that the evidence was inadequate, imposed a reduced sentence or “reserved” sentence.
Suspected cases do not amount to a grievance, where there is evidence that the original accused is suspected of having committed a crime or that the original accused is innocent, but the original accused cannot be found guilty because of insufficient evidence or the incomplete chain of conviction evidence. According to article 181 of the Judicial Interpretation of the Supreme People's Court on the Implementation of the Criminal Procedure Law of the People's Republic of China, “The People's Court shall, after examining cases in which a public prosecution has been initiated, treat them separately in accordance with the following circumstances:... (iv) Once the accused has been acquitted in accordance with article 195, paragraph 3, of the Code of Criminal Procedure, the People's Procuratorate shall, on the basis of new facts and evidence, re-indict him in accordance with the law. Once new facts have been discovered, new evidence can re-establish the criminal responsibility of the “suspected” accused, whereas the grievance is a fixed state in which not only the original accused cannot be found guilty, but also the original accused can be found innocent, thus excluding the possibility that he or she has committed a crime. Suspected cases are also different from those where there is sufficient evidence for conviction and evidence for sentencing is suspected to be “leaving room” for sentencing, which means that the available evidence is sufficient to establish “who committed the offence”, but there is a contradiction between the evidence in the specific circumstances affecting the sentence, i.e., the evidence in the circumstances of the conviction is authentic and sufficient, and the evidence in the circumstances of the sentence is flawed. In the case of the intentional killing of Deng, the circumstances of Deng's killing are clear, the evidence is real and sufficient, and the available evidence confirms that Deng's age is 16 years and over, and that he is criminally liable. However, there is a contradiction between the evidence on the question of whether Deng is 18 years of age or not, as evidenced by the fact that Deng is under 18 years of age and by the fact that Deng is over 18 years of age. Finally, the court had to leave room for a stay of death in a manner consistent with the principles of “deliberate killing” and “associated interests to the accused”. In article 7 of the 2013 Regulation on the Effective Prevention of Grievances, issued by the Central Council of Political Science and Justice, it was stated that: In cases where there is a proven and sufficient conviction, but where there is doubt as to the evidence affecting the sentence, the defendant should be dealt with in his favour at the time of sentencing. Doubts are also different from contentious cases in which the application of the law is contested, which are based on factual evidence, and the latter on the application of legal policy. As in the recent case of fraud and misappropriation by the chairman of the former United States Group, acquitted by the Supreme People’s Court, the facts of which are clear, the main point of contention is the question of whether private enterprises can declare to the state the funds of the NTRP. The principle of “no one at all” should be observed in a case of suspicion.
Suspects should follow the principle of “no guilt, no guilt,” which today is uncontroversial, and which must be respected. No system derived from the principle of the presumption of innocence is a manifestation of the “favourable” idea of modern criminal law. In other words, the presumption of innocence in cases where the guilt of the accused cannot be proved and the innocence of the accused cannot be established, it emphasizes the protection of the rights of the suspect, the accused, as an important measure to avoid miscarriages and as an important sign of modern criminal justice civilization and progress. My country's attitude towards the presumption of innocence has evolved through a twist.
The principle of presumption of innocence is not provided for in the 1979 Code of Criminal Procedure, which established the fundamental principle of presumption of innocence in 1996, and article 12 of which states: “No one may be found guilty without a lawful decision by a people's court”, while article 162 states: “If there is insufficient evidence to establish the guilt of the accused, a verdict of innocence shall be handed down where there is insufficient evidence to establish the guilt of the alleged offence”. The Criminal Procedure Code, as amended in 2012, continues to retain the presumption of innocence, while clearly establishing the burden of proof on the prosecution, adding the principle that self-incrimination must not be forced, so as to more fully and accurately reflect the basic requirements of the presumption of innocence.
However, judicial practice over the past two decades has shown that the principle of the presumption of innocence has not been applied satisfactorily, that the concept of presumption of guilt is still deeply entrenched in the minds of some judicial personnel, that suspicion has never existed and that suspicion has been reduced to varying degrees, that the arraignment of case thinking has not fundamentally changed, and that most of the errors corrected in the second paragraph of the present document are minor and that court decisions “leave room for leeway”. This “leaving room” method of adjudication has provoked intense criticism from all parties involved and from the public at large.
In the view of the victim, since the court has declared the accused guilty of a crime, which is extremely cruel and has serious social consequences, the immediate imposition of the death penalty is clearly a “light sentence for serious crimes”;
In the defence's view, since the court had clearly stated that the facts of the case were unclear and insufficient evidence was available, there was a clear suspicion that the accused constituted a crime and that a judgement of acquittal should be handed down on the basis of the principle of “no doubt”, it was clear that such a decision by the court “no doubt exists” violated the principle of the presumption of innocence and, as a result, it was often the victim and the accused who were not satisfied in practice. In both cases, such as the An Chi Chi Chi Zhao case and the Fujian Xinbin case, a number of judges have taken a tacit view of the “marginable” approach to the case, considering it to be the best possible outcome of the court’s decision under China’s political and legal system.
Some judges even strongly value this method of decision-making as an innovation in the court system that balances procedural fairness with substantive fairness, justice and harmony.
The former Vice-President of the Supreme People's Court, Liu Jiaxin, stated in his address to the Fourth National Conference on Criminal Trials on 1 September 1997 that “in some cases, despite the gravity of the circumstances and consequences of the crime, there are doubts about the evidence and it is difficult to rule it out. On the other hand, both the legal profession and the legal profession have made acute criticisms of this method of adjudication as a sign of the Court's failure to uphold the presumption of innocence and as a result of the Court's compromise on the reality of justice. Theoretically, in cases where the evidence of conviction is in doubt, the court can only make a judgement of acquittal based on insufficient evidence, the implausibility of the charge, and insufficient evidence of conviction is never the basis for the court's lightening and mitigating sentence, without any causal link. In previous judicial practice, however, cases of insufficient evidence of conviction had led to a realistic relationship between the severity of the sentence and the appearance of a “suspended” sentence. In the context of a series of criminal misdeeds, such as the cases of Xianglin, Zhao Shuihai, Doupewu, Uncle-in-law Zhang and Chen Man, it is highly likely that the abuse of judicial power will lead to the occurrence of wrongs if the national judicial authorities are allowed to still criminalize them in cases where the evidence is in doubt.
In such cases, who can guarantee that innocent people in society will not be wrongly prosecuted and wrongly accused?
The former Vice-President of the Supreme Court, Shen Dejong, stated: “In particular, in the absence of a complete eradication of the presumption of guilt and the presumption of innocence, there is a greater probability that there will be a miscarriage of justice, which we must be conscious of, while at the same time strengthening our intellectual awareness of the need to protect against a miscarriage of justice as if it were a flood beast, preferring to prevent a miscarriage of justice and not miscalculation, miscarrying a real criminal and misconstruing an innocent citizen, especially by killing an innocent person”. Therefore, insisting that there is no doubt is the final option for us to face it. “Do not wrong a good person or a bad person” or “do not wrong a bad person” is just a good wish, and we have to face reality.
With the ongoing reform of the judiciary, the establishment of a trial-centred procedural system and the substantiveization of the trial, such a decision as “suspended” and “marginalized” is bound to be withdrawn from the historical arena, the rule that judicial trials revert to evidentiary decisions, and the principle of “no doubt” has been universally applied in current judicial practice. The following three are typical of the absence of a case of suspicion.
1. The Beijing West Station female corpse
On 11 July 2006, in the North Heng building at North Square, in Beijing West Station, the manager prepared to renovate the unused part of the parking area on the second basement of the building and found a female body that had been dry for many years in a deserted room.
On the night of 7 October 1999, 19-year-old Guo Xiaoyu, who was found dead by the Beijing City Public Security Bureau, disappeared after he stopped in a garage at the Beijing West Station.
The police were informed that, in October 1999, the construction of the North Heung House had not yet been fully completed, and that the second basement level was closed, with only some of the construction personnel living there, among whom the police felt that there was a high risk that the perpetrators of the crime would be present.
After several investigations, the police found Yang, Zhao and Wang, the construction workers of the same year.
However, the case did not end because the suspect was arrested. In 2007, the Beijing City People's Procuratorate instituted proceedings against three suspects, and the court terminated the trial of the suspect Wang because of a brain infarction in the same year.
In 2008, the First Intermediate People's Court of Beijing ruled on the case and found the suspects Yang and Zhao to be innocent because of the lack of evidence to prove directly that Yang and Zhao had killed Gu Xiaoqin, but only their own statements.
In accordance with the provisions of our Code of Criminal Procedure, convictions cannot be based solely on confessions, but additional evidence is required to prove each other in order to form a chain of evidence, after which the People's Procuratorate of Beijing City filed a suit against the High Court of Beijing City. In 2009, the Beijing City High People's Court upheld the sentence after a second trial.
Since seven years had passed since the body of the case had been found, the relevant physical evidence had been difficult to obtain and, if available, could no longer be validly identified. (b) I fear that there is nothing more vulnerable to the fact that the accused, knowing that he or she is suspected of having committed a serious crime, is never suspected because of insufficient evidence;
For society, the continued impunity of offenders meant not only a social risk but also the failure to achieve justice; especially for the families of the victims, that was an unacceptable fact, and it could be said that there was no alternative to suspicion.
2. Intentional killing by Kun Ming Chen Hui - Chinese version of the Simpson case
On 4 April 2014, the People's Procuratorate of Kunming City, Yunnan, filed a public complaint with the Kunming Municipal Intermediate People's Court, accusing Chen Hui, the former Director of the Planning Department of the Yunnan Provincial Aviation Administration, of using blunt instruments to kill his cohabiting girlfriend, Hu Ziaoying, at his home between 8 and 9 March 2012 and burying him in a ditch near his red estate villa in the county of Dian Dian. The prosecution cited a series of evidence in support of Chen Hui's murder, such as the existence of children, economic and emotional contradictions and motives between Chen and the victim; also the time of the crime, when he had been driving to the red mansion on the night of the crime; in particular, the police had extracted six Chen Hui's finger prints, two of which were “blood-deep fingerprints”, on the front of the tape tied to the body of Hu Su-in, and on various items, such as the entangled towels covering the body, which were identical to the contents of Chen's home articles. In response to the evidence of guilt adduced by the prosecution, Chen Hui testified and pleaded not guilty:
There is no evidence to determine the exact time of death of the victim, and the time of death of the victim is based only on an inference from the autopsy report and is not unique or definitive.
There is no evidence to establish the crime scene in the present case, which is merely a presumption that it is closed or open, and that it is not possible to specifically identify the persons present at the scene.
The motives of the accused, Chen Hui, in the present case are unclear.
According to the evidence submitted by the Public Prosecution Service, the identification of Chen's bloodprints on the tape sheet that tied the victim's body can only prove Chen's contact with the body and the tape sheet that was used to bind him, and the only conclusion that Chen's killing could not be drawn.
Two possibilities cannot be ruled out: first, that the tape used by the killer to bind the victim's body was used before Chen Hui, so Chen Hui's fingerprints were left on it, and second, that the killer had no intention of collecting Chen Hui's fingerprints before the crime was committed, and then that he was blamed after killing Chen Hui. According to the cellular analysis system provided by the public security authorities, the address of the accused and the base station of the victim's two mobile phone numbers on 9 March 2012 and of the text message was located at Chen Hui's office location, which can only prove that the two mobile phones may be close to one location or location and cannot be based on which the only conclusion is that they are located. On the basis of a physiological examination conducted by the public security authorities, it was established that the green towels containing the body had the same composition as the light blue towel fibres extracted from the Chen Hui family, and only concluded that they were the same and not the only ones.
There is no tool for the crime and the victim's cell phone in the present case, nor is there any traces of the victim's blood on the vehicle used by Chen Hui, i.e. there is no evidence of the accused's alleged murder and burial of the body. On 19 May 2015, the Kunming Municipal Intermediate People's Court handed down a first instance judgement and acquitted the accused, Chen Hui, on the grounds of “insufficiency of evidence, suspicion of the case”. 3. The murder of Guangdong Chen Xiaojun
Both Chen and the victim were from Guangdong Guangjian Ray, where they became lovers and cohabited after a 2005 party.
In November 2008, Zhang Xiang unilaterally broke up, Chen Ying did not agree, and Zhang Xing insisted on moving to a rental room in the next building alone.
On the evening of 13 January 2009, Zhang Xing had had dinner at Chen's residence, stayed until 2200 hours and offered to leave.
On 15 January, Zhang's father was unable to contact his daughter for a few days in Lei County, asking Chen for help. At around 4 p.m. the same day, he accompanied Chen Ying-hoon to Zhang's rented residence, where he was found dead in his bed, and he immediately called the police.
On 24 February 2009, the public security authorities found Zhang Shui's mobile phone and personal belongings, such as a hang-up, in Chen's rented house, and summoned Chen Ying-ho as a suspect in the murder. Shortly after Chen said he had killed his girlfriend.
According to his statement:
On 13 January 2009, at about 16 p.m., Zhang Xi came to his house to play games and at 22 p.m. Zhang Xi said he was going back to his place of residence. When Chen sent Zhang Shui back to her place of residence, he shouted at both sides, and she resisted beating him with her hands when she was afraid that the neighbours would hear her thinking that she had been ill-treated. He then grabbed her hands with his left hand, covered her mouth and nose with her right hand, pushed her down on the bed and kept her mouth and nose under cover, and found her not moving and dead. On 14 December of the same year, the Guangzhou City Public Prosecutor's Office filed a public indictment against the accused, Chen Yung Yiu, for intentional homicide. The court found that two confessions made by Chen Yung Yung's confession were made at intervals of more than one month, and that the officers of the case were different, but that the transcripts of the interrogation were of a high degree of consistency, in particular the long length of the statement documenting the killing of Zhang, which was only three words different, and that there were two errors in the transcripts, and that the court informed the investigators to appear as witnesses to explain the statements, but that the investigators could not reasonably explain the two transcripts except by denying that the confessions had been extracted under torture. This indicates that there is a clear representation of the manner in which the investigators conducted the interrogation, which is consistent with the confession of Chen Ying to be used by the investigators to teach them about the methods of their statements of murder and the content of the charges, which they have prepared for him to sign, and the fact that the investigators were unable to give a reasonable explanation, which the court ruled out on the grounds that the two interrogation transcripts did not rule out the possibility of the statements being made. On 18 October 2015, the Guangdong Provincial High Court issued a judgement in which he was acquitted of Chen Yingjun's statement, which resulted in insufficient evidence in the case. It is likely that the above-mentioned cases will be sentenced a year or two ago, and even if the evidence is insufficient, they may be reduced to “leaving room” judgements. On the contrary, what should we do if the above-mentioned cases were “leaving room” for judgement 10 or 20 years ago, and when these defendants are released from prison, they are now brought before a judicial authority? Approach to previous “suspicious” complaints in practice
Most of these historical “suspect” complaints, as public prosecutors, especially at the grass-roots level, are not in favour of a reversal of the case for the following reasons:
These so-called “suspicious cases” are not necessarily faults, even if they lack any evidence, and if all of these “suspicious cases” are corrected, they will seriously undermine the authority of the judiciary.
These cases occurred many years ago, when, at the time and at the level of the conditions in which they were handled, the evidence in many cases did not meet the requirement of being “genuine, sufficient, without reasonable doubt” and could lead to a conviction if the confession breaks through. If all of them were corrected, there would be a large number of complaints, leading to a “circumstance”.
The present legal policy requirements cannot be used to evaluate previous cases or to apply the existing rules of evidence in deciding the cases at hand.
• The conditions for re-trial under the Code of Criminal Procedure are “legitimate errors” in the original case; in the case of the so-called “suspect case”, it is difficult to say that the original case was a mistake, although it is somewhat “soft” in the original case. If that is done, then who is the real culprit and who is defending the rights and interests of the victim? However, the judiciary is generally called upon by the legal profession and the general public to follow up on the case in its entirety, to address the case firmly and to consider the conviction of a “suspicious case” as a mistake that should be corrected. At any time, a “leaving room” for judgement in a case where the evidence is questionable is an error that cannot be rectified until the truth of the case has been established or the “convict” appears. We share the view that in the case of a “suspicious case” complaint, the judicial authority should review it if it is sufficiently substantiated and, if there is insufficient evidence, correct it on the basis of the principle of “no doubt”.
On the one hand, they agree that these historical “suspects” are problematic, but from the point of view and evidentiary conditions at the time, the suspicion is reasonable; on the other hand, they believe that if these “suspects” were to be dealt with now, the evidence would be questionable and the suspicion would never be respected. The application of the law to complaints of “suspicious cases”
In the case of “suspects”, the application of the Code of Criminal Procedure of 1979 and 1996 as the “old law” at the time of the act, or of the Code of Criminal Procedure of 2012, as the “new law” is highly controversial as far as the proceedings are concerned, is concerned.
One view was that the old law should be applied. The main reason was that:
• These suspects are criminal retrials, which in themselves took place prior to 2012, in accordance with article 10 of the Supreme People's Court's Interpretation of Certain Questions Relating to the Time-Effect of the Application of the Criminal Law [Law Interpretation (1997) 5], which states: “The law applicable to acts when retried in accordance with the trial supervision procedure. The question of the exclusion of unlawful evidence cannot be resolved if the new law is applied. Since most “suspects” complainants explicitly request the court to exclude unlawful evidence from their original conviction during the review and retrial of their claims, the application of the old law may dismiss the complainant's claim for the exclusion of unlawful evidence.
If the “new law” were applied, it would also raise another issue, namely, the need to evaluate historical cases, in particular the conduct of the original staff, against the procedural and evidentiary standards established by existing law, which would be clearly unfair to the original staff and would in turn entail a chain reaction or negative effect in dealing with similar cases, which would also require careful consideration. According to another view, the new law should apply to the retrial of “suspicious cases” for the main reasons:
The fundamental factors that determine the application of the choice of law, both old and new, depend on whether it is in the interest of the parties concerned, and of the accused in particular, it is clear from the two amendments to the Code of Criminal Procedure that the protection of the rights of the accused has been strengthened more than once and that the application of the new law is in the interest of the accused. Therefore, the new principle should be maintained with regard to the opt-in of old and new procedural law, which would apply as an exception only if the relevant provisions of the new law were not favourable to the accused. The applicable principles of criminal law are different from those of criminal procedure, since the revision of criminal law may benefit both the accused, such as the abolition of the death penalty for certain offences or the raising of the criteria for the conviction of certain offences, and the accused, such as the criminalization of acts that were not offences or the imposition of statutory penalties for certain offences, so that the choice of the old and the new criminal law is based on the principle of “bringing from the old to the lesser”. In the social context of the progressive development of the rule of law, the revision of procedural law is generally in favour of the accused, and very few amendments are against the accused, and cannot simply be dealt with under the “from old and light” principle of criminal law.
At the same time, the above-mentioned judicial interpretation expressly addresses the temporal effect of the “applicable criminal law” rather than the “applicable criminal procedure law”, so that the term “law at the time of the act” in article 10 of the above-mentioned judicial interpretation refers only to the criminal law at the time of the act and does not include the criminal procedure law at the time of the act.
Although the 1979 Code of Criminal Procedure does not establish a system for excluding illegal evidence, article 32 clearly states that “judges, prosecutors and investigators must collect, in accordance with the procedure established by law, evidence of guilt or innocence of the accused and of the gravity of the offence. The use of torture to extract confessions and the collection of evidence by threat, inducement, deception and other illegal methods is strictly prohibited.” The same is true of the 1996 Code of Criminal Procedure, according to which, even if examined under the old law, the relevant evidence in the case is excluded by law from the procedure for excluding unlawful evidence under the new law and its judicial interpretation. We share the second view, that is, that the law applicable to acts in substantive law is clear and uncontroversial with respect to the “questions” of the complaint, that the “new law” should be applied in the application of procedural law, which, in addition to the above-mentioned grounds, is primarily the law governing the conduct of proceedings by the organ and the person conducting the case, and that the application of procedural law to procedural law is based on new principles that better reflect the defence of human rights and norms. It is well known that the main tasks of the Code of Criminal Procedure are to establish the facts of the case, to punish the crime accurately and to guarantee human rights, and that the “new law” is better than the “old law” in protecting the rights of citizens, such as not to compel self-incrimination, strengthening the right to a defence, etc., and to make more scientific sense in the investigation, prosecution and punishment of crimes, such as the simultaneous recording of interrogations, the exclusion of illegal evidence, etc. It could be argued that the application of the “new law” would better fulfil the mandate of the criminal procedure law, make it easier to establish the truth of the case, combat crime accurately, and make the case more likely to stand the test of history, and that the “suspicious cases” of previous convictions have been corrected precisely because they did not stand the test of history.
Thus, the Court applied the “new law” in its re-examination of the “suspect case”, such as the Chen Man case and the Jiang Si Leping retrial judgement, which stated that “in accordance with articles 245, 225, paragraph 1 (c), of the Criminal Procedure Code of the People's Republic of China, the Supreme People's Court's Interpretation of the Application of the Criminal Procedure Code of the People's Republic of China, article 389, paragraph 2, of which reads as follows ”. In its re-trial judgement in the case of Uncle Zhang, Zhejiang Province, the Zhejiang Provincial Court, in accordance with article 245, article 50, article 54, article 58, article 225, paragraph 1 (c), of the Criminal Procedure Code of the People's Republic of China, article 207, article 119, and article 170, paragraph 1 (b), of the Civil Procedure Code of the People's Republic of China, decided that the following provisions were directly applicable to the exclusion of unlawful evidence. Thus, the application of the 2012 Code of Criminal Procedure has already been settled when a previous “suspect” complaint is being re-examined. Thus, the evidentiary requirements of a previous “suspect” retrial must be fully reviewed in accordance with the provisions of the 2012 Code of Criminal Procedure, and it is clearly incorrect to assume that the “old law” was the basis for such a retrial. Of course, the re-examination of a “suspicious case” involves an evaluation of the original case procedure and the conduct of the case, in accordance with the original provisions, so that the treatment of the original party is more reasonable and acceptable.
In the case of Liu Jinlin, who was re-tried in April this year, Liu was sentenced to death in 1995 by the High Court of Jilin Province for intentional murder. Since at that time the judicial authorities did not appoint a defence for him, under article 34 of the current Code of Criminal Procedure, the accused may be sentenced to life imprisonment, death, and without a lawyer, the judicial authorities should appoint an advocate for him. When retried, the Jilin Provincial High Court, in accordance with article 27 of the Code of Criminal Procedure of 79, provides that “in a case in which the Public Prosecutor appears before the Court, the accused does not have a defence, the People's Court may appoint a defence counsel for him. The People's Court shall appoint a defender for the accused person who is deaf, dumb or a minor and who has not appointed a defender.” At that time, the judicial authority was not required to appoint a defender for the accused person who may be sentenced to life imprisonment or more, and the court of re-trial therefore found that the original judgement did not violate the procedure. V. EVIDENCE STANDARDS FOR SUPPLEMENTARY CORRECTIONS
Articles 241, 242 and 243 of our Code of Criminal Procedure provide for the conditions for the re-examination of criminal cases, which contain a provision on “deficit error” in the application, and some judicial authorities use the original sentence as a condition for the filing of a complaint and the initiation of a re-examination. In some cases, the requirement of “factual error” was interpreted as a criterion for conviction, i.e. “the facts of the case are clear and the evidence is genuinely sufficient”, and the complainant was therefore required to prove his innocence with sufficient evidence, or that the other person was “genuinely guilty”, to the extent that “false error” made it a condition for the accused at the trial to prove his innocence. This artificially high-level situation has led to a large number of “suspect cases” in practice where complainants have been denied access to different evidentiary standards in cases of ordinary proceedings and re-trial proceedings, and where the evidentiary standard for correcting complaints is significantly higher than the evidentiary requirements of ordinary criminal cases, otherwise they will not be rectified. In addition, there are extra-judicial requirements, artificial interference, and accountability, which make it difficult to correct “suspects”, such as Chen Mang, Yu Yingsheng and Liu Jinlin, who have complained for more than 10 or 20 years, as well as Doo Bewu, Zhao Shuhai, Zhang's uncle, Hu Gugiltu's parents, etc., until “the true perpetrators have reappeared” and the dead have returned. These circumstances have forced us to reflect on the evidentiary standard of a “suspicious” claim. Some eminent scholars have suggested a shift in the conditions for criminal complaints from “factual error” to “suspicious and unchallenged” and Professor Ryu Jongji has argued that “false error means that the evidentiary facts on which the original decision was based were wrong, or that new evidence has emerged to prove that the original decision was wrong.” What is referred to here as “a mistake” includes unquestionable confirmations of error, such as the reappearance of the real perpetrator, as well as the fact that the original decision has a high probability of error, i.e. that the possibility of error is clearly superior to the possibility of a correct decision. It is questionable whether a re-examination of the facts on which the original decision is based and the applicable law, or a combination of new evidence, reveals a possible error in the original decision, i.e. a reasonable doubt as to the factual findings of the original decision. With the development of modern human rights concepts, later discourse has become a school of general learning, and in judicial practice it is often used as a basis for re-examination.
Japan had a long-standing system of retrial, which had to be corrected by finding errors in the decision, but in its annual decision on the Whitebird shooting complaint, the Supreme Court of Japan had held that the basic principles of criminal procedure, `in which the interest is attributed to the accused if there is doubt', applied even in the retrial system. This is the so-called ‘Whitebird Decision’, which has far-reaching implications for Japan’s re-trial system. The Supreme Court further explained this principle in subsequent re-trial decisions, such as in the Toyota case, thus opening a new way for criminal re-trials to focus on safeguarding human rights. “Professor Ryu made a “probably questionable” proposal in the light of the current state of our criminal complaints. 
In our view, the reasons for the difficulty of a “suspicious case” are manifold, but the most important factor is the misunderstanding by some judicial bodies of the conditions for a “suspicious case” complaint. First, in accordance with the provisions of our Criminal Code and the Code of Criminal Procedure, the evidentiary requirements and the standard of proof are the same for any type or circumstance of crime, i.e. to be “valid, sufficient and to exclude reasonable doubt”, not because of the different stages of the proceedings, the evidentiary requirements or the high or low level of conviction of the accused, but also because of the principle that “no suspicion” applies throughout the criminal proceedings, as is the case at the stage of review of criminal complaints. Secondly, according to article 242 of the Code of Criminal Procedure, the People's Court shall re-examine the complaint of the person concerned and his or her legal representative, close relatives, if there is new evidence of the conviction, the facts found to be incorrect, which may affect the sentence of conviction; the evidence on which the conviction is based is inaccurate, insufficient, should be excluded by law, or there is a contradiction between the main evidence proving the facts of the case, etc. The first scenario provides for a high evidentiary standard for the commencement of a criminal retrial, i.e., the above-mentioned “veritable error”, which is very demanding for the complainant and is not easy to meet. The conditions for re-trial under the second scenario were not high, and re-trials could be initiated as long as the evidence in the case was inaccurate and insufficient and there were reasonable doubts that had not been ruled out. This is essentially a “suspicious case”, but in practice the judiciary is too cautious and too restrictive, and there are fewer cases of “suspicious case” being re-examined; to this end, the “two highs” detail the cases of “suspicious case” complaints. If, in accordance with article 47 of the Regulations of the People's Procuratorate on the Review of Cases of Criminal Complaints, the people's courts have been reviewed for error in the determination of a criminal judgement that has the force of law, they shall, in accordance with the trial supervision procedure, submit a challenge to the people's courts:
(i) The existence of new evidence that the original judgement and the findings of facts were erroneous and could affect the sentence of conviction;
(ii) The evidence on which the sentence was based is inaccurate and insufficient;
(iii) Evidence on the basis of which a conviction or sentence is established shall be excluded by law;
(iv) There is a contradiction between the principal evidence on which the sentence was based;
(v) The main factual basis of the original judgement or decision has been changed or set aside by law;
(vi) If the offence is found to be wrongful and has a clear impact on the sentence;
(vii) Breach of a statute of limitations provision of the law;
(viii) When the sentence is manifestly inadequate;
(ix) Proceedings that violate the provisions of the law and may affect a fair trial;
(x) Adjudication by the judge during the hearing of the case involves embezzlement, misappropriation and iniquitous conduct.
In particular, article 3 of the Regulations on the Review of Criminal Complaints by the People's Procuratorate stipulates that “the People's Procuratorate shall review cases of criminal complaints on the basis of the following principles: (i) separation of the right to proceed with the case from the right to review of the complaint; (ii) review in accordance with the procedure established by law; (iii) review of the case in its entirety, public impartiality; and (iv) correction of errors in accordance with the law. This provision establishes the principle of review of criminal complaints “factually, wrongly, in accordance with the law” and replaces the previous principle of “factually, wrongly,” the revision of which represents a significant step forward in the review of criminal complaints, which fully reflects the spirit of the rule of law in criminal proceedings, and allows criminal complaints to be reviewed and re-examined, provided that they are in conformity with the provisions of the law, which is more in line with the current state of criminal complaints. Thus, in the case of a “suspicious case” claim, under the Criminal Procedure Code, a retrial can be initiated at any time or at any stage, provided that the evidence for the conviction is insufficient, without having to dwell on whether there is “a mistake” or not, and “a mistake in accordance with the law” is a better interpretation of “a doubt-and-require”.
On the whole, the standard of proof for “suspicious cases” is in fact the standard of proof laid down in the criminal case law in force in our country. The law does not impose special requirements on the evidence in a “suspicious case” complaint. In practice, the judicial authorities have done much less to correct “suspicious cases” than the public demands. Although the “two highs” are pushing the case forward, and a number of “suspects” are corrected every year, there is still considerable distance from the population's claims. Moreover, the fact that these cases can be remedied is due mainly to the complainant's persistent complaints, as well as extensive media coverage, the high priority attached by the superior, the constant appeals of the expert scholars, etc., makes it possible to say that the current “suspect” complaints are not on the normal rule of law track and that only a change of mindset at all levels of the judiciary and a legal error can provide a real defence against grievances. Notes:
1 Hu Yunteng, “Study on the question of guilt”, Chinese Law, No. 3, 2006.
2 Ho Jia Hong: " Case analysis of the criteria for proof of criminal error ", Law of China, No. 1, 2012.
3 Hu Changlong Sun Yantao: Analysis of Death Delayed Cases with leeway, Probative Action No. 3 of 2004.
4 Liu Huahua, Law School, Gansu School of Law, 2017 Master of Laws dissertation on leaving room for judgement in criminal proceedings, p. 15.
5 Chen Swift: Leave leeway judgements - a form of judicial adjudication worthy of reflection, Jurisprudence Forum, No. 4, 2010.
6 Shen Deok-jung, No. 5, Chinese Law, 2013.
7 “The price of no suspicion! A suspect in the Beijing West Station female body admitted to rape and murder and was acquitted”, Voice of China, 24 February 2017.
8 Cho Hongbo Bear Xiaobing Zhang Chimin: Is the acquittal in the Kunming Chen Hui Deliberate Murder Case?, Chinese Case Law Review, Series 1, 2017.
9 Criminal Judgement No. 351 of the High People's Court of Guangdong Province, with the final sentence of Quan Gao (2014).
10 Hu Yunten: Reconsideration of Neeki Bin: Origin, Problem and Meaning, Law of China, No. 4 of 2017.
11 Criminal Judgment No. 2 of the Zhejiang Provincial High People's Court (2015); Criminal Judgement No. 1 of the Jiangxi Provincial High People's Court (2016); Criminal Judgment No. 2 of the Zhejiang Provincial High People's Court (2013).
Criminal Judgement No. 9 of the High People's Court of Jilin Province (2012).
13 Dragon Soji: Jurisprudence in the Neki Bin case, Law No. 8 of 2013