外国人在华涉罪辩护要点

龚楚 发表于[2020-05-07]

外国人在华涉罪辩护要点

On Defending Foreign Criminal Suspects 

 

摘要 

笔者认为涉外刑事辩护在基本原理上与国内刑事案件没有重大差异，但在辩护工作中侧重点及所需技能有多处不同。笔者从10个方面对涉外刑辩所涉及的刑事法律条文、犯罪类别、授权委托、翻译问题、沟通和辅导、家属问题、国别差异、庭外策略、政治外交、收费问题进行了介绍和论述，并指出涉外刑事辩护专业化的必要性。

 

Abstract 

The author holds that, though there is no major difference between foreign criminal defense and domestic criminal defense in principle, points of focus and skills required differ. The author introduces ten aspects in foreign criminal defense worthy of discourse, which are: penal law articles, types of offence, power of attorney, translation, communication and intervention, family members, inter-country differences, out-of-court strategies, politics and diplomacy, fee payment and points out the necessity of specialism of foreign criminal defense. 

  

外国人在华涉罪辩护要点

On Defending Foreign Criminal Suspects

 

笔者2005年加入律师行业后一直从事涉外业务。涉外法律业务范围广，指具有涉外因素、需运用外语加工处理的业务，如：涉外投资、并购、贸易、家事、知识产权、劳动、法律顾问、房地产、诉讼仲裁，刑事案件，等等。其中，我做过为数不少的涉外刑案，辩护效果较好。比如，某涉外杀人命案获轻判8年（实际服刑4年多）、某涉外致人重伤案获免除处罚（实际服刑0天）的结果。以下我总结涉外刑事案件的一些规律性的辩护要点。

 

I have been processing legal affairs with foreign factors in every year since I began my legal career in 2005. Legal affairs involving foreign factors are comprehensive, namely those requiring a foreign language speaking lawyer to deal with such things as international investment, M & A, trade, family affairs, IPR, labor, legal consultancy, real estate, lawsuits & arbitration and penal cases. In this final category I have covered quite a few cases in which the suspects or the victims have been non-Chinese and my clients have received good results in terms of judgment and sentence. For example in one intentional homicide case the client was given an 8-year prison sentence (with a practical jail term of around 4 years). In another case my client caused serious injury to a Chinese person and was remitted to prison without probation. Hereinafter, I shall summarize some regular points of focus in criminal defense.

 

一、 刑事法律条文

1.Penal law articles

 

刑辩律师不掌握刑法刑诉法等相关条文，肯定无法正常工作。这是刑辩律师的基本知识储备要求。不过我认为在涉外刑辩工作中，对刑事法律条文的掌握，不是专业辩护律师的工作核心。理由如下：中国是一个成文法国家，无论刑事实体法还是刑事程序法，都已经以成文形式公布于众。一人犯什么事、判什么罪、判多重，查明事实，拿着法条对号入座即可。作为语言，中文非常科学。中国人遇到纠纷，如身边无律师可问，上网搜索一下，或拿法律书查一查，虽然无法保证质量，也能弄懂个大概。英语等语种跟汉语却不能比。英美法系国家因其刑事法律制度设计使然之外，其语言的自身特点造成一个概念一个专用单词。这些专用单词所组成的法律语言，你不进行专门的学习和训练，无法掌握。在外国，法学差不多等于是另一门外语。正因为晦涩深奥难懂，外国人一般遇到纠纷，只能找律师解决。

 

There is no way for a penal lawyer to work normally without mastery of basic knowledge of penal law articles. This is a basic qualification for any criminal defense lawyer. However, my point is that in international criminal defense work this mastery of penal law articles is not the core. The reasons are these: China is a statutory code state with both substantive and procedural criminal laws brought to light to the public. Many issues can be probed by combining case facts with criminal law articles: whether a person has committed a crime, the name of the crime, how heavily the culpable should be punished, etc. As a language, Chinese is scientific in that it basically enables any Chinese person to search on the Internet or consult a law book to have a rough idea, though not an accurate one, about how to solve their legal problem if a lawyer is unavailable. In this regard English and many other languages are not comparable to Chinese. In common law countries not only the system of criminal law is different but also the innate features of language. For example some have one special word for one concept and these words, when put together, form legal terminology that is difficult for common people to understand without investing huge amounts of time and energy in study and training. Thus, in many countries the legal terminology almost equals a foreign language even for local people who had better have recourse to lawyers.

 

个人认为，在涉外刑事辩护工作中，查找、阅读、理解、分析刑事法律条文的工作，最多只占用律师全部案件处理时间的5%。如同做数学题，罪名和量刑标准是一个公式，案件要素是数据，把数据填入公式，得到判罚结果。另外国家司法主权决定了外国人犯罪的侦查、公诉、审判并不需要顾及其母国的刑事法律规定，直接按东道国法律规定操作即可。即使是引渡犯罪嫌疑人以及被判刑人国际移管也是有章可循的。因此，涉外刑辩和涉内刑辩的基本原理相同，并无特殊之处。涉外刑辩律师更多的时间用在取得案件要素及其他工作上。

 

I consider that, during the criminal defense work for foreign suspects, the time spent by a foreign defense lawyer on searching, reading, understanding and analyzing penal law articles occupies at most five per cent of the total working time.  Defending a criminal suspect is similar to solving a maths problem in that there is a formula for crime names and sentencing criteria. By filling case facts into the formula, you will get the punishment results. Besides, the judicial sovereignty of the state dictates that there is no necessity to take the criminal rules of a suspect's homeland into consideration in investigating, charging and sentencing him or her while the host country's justice can operate directly according to her own laws. There are also clear rules for extradition of criminal suspects and international transfer of sentenced persons. Hence, essentially there is no special difference in the basic way of defending Chinese or non-Chinese. Most of a criminal defense lawyer's time is spent on acquiring case facts and other work.

 

二、 犯罪类别

2. Types of offence

 

笔者在1990年代学习刑法，发现它直白、素颜、易懂。我用“危危破侵侵、妨危贪渎军”十字简化刑法的十大类罪名，牢记至今。外国人在华犯罪主要分布在四个大类上：破坏社会主义市场经济秩序罪（3），侵犯公民人身权利、民主权利罪（4），侵犯财产罪（5），妨害社会管理秩序罪（6）。

 

When I started to study Chinese penal law in the 1990s I found it to be concise, easily understandable and free from ambiguity. I memorized easily the ten categories of offence by adopting abbreviations, taking the first word of each type as a hint.  Mainly, foreigners are prone to four categories of crime i.e. Crimes of Disrupting the Order of the Socialist Market Economy (3), Crimes of Infringing upon Citizens' Right of the Person and Democratic Rights (4), Crime of Property Violation (5), Crimes of Obstructing the Administration of Public Order (6).

 

笔者辩护过的案件集中在4、6两个大类，除故意杀人、故意伤害之外，贩毒案为数不少。目前我正代理某外国公民贩卖大麻案、某外国公民走私贩卖海洛因案。

 

In my legal work criminal defense is concentrated on Category 4 and 6, mainly the cases of intentional homicide, intentional injury and drug trafficking. Currently I am processing a case of marijuana sales and another case of heroin smuggling.

 

三、授权委托

3. Power of attorney

 

涉外刑辩手续文件本质上与涉外民商事诉讼代理一样：当事人本人签字授权委托；近亲属或法定代理人授权委托；外国驻华使领馆授权委托；其他。当然，内容和形式略有不同。

 

In essence a power of attorney for a criminal case is similar to that for civil and commercial lawsuits or arbitration cases involving foreign factors in that the client, their close relative or legal representative signs it. Alternatively, an embassy or consulate to China may entrust a Chinese lawyer to act in other ways, with the content and format being a little different.

 

四、翻译问题

4. Translation

 

语言沟通问题直接排除我国绝大部分执业律师从事涉外刑辩业务。涉外刑辩律师的第一件基本素质就是要掌握外语。没有掌握至少一门外语的执业律师在原则上并非不能代理涉外刑案，只是在涉外刑案代理上，无优势，显拙劣。不会外语的律师为外国犯罪嫌疑人辩护，通常的做法是配备翻译。辩护律师带翻译会见外国人的弊端多，如：1. 翻译的水平问题造成无法准确传达原意；2. 翻译者的非法律专业背景导致翻译偏差；3. 律师通过翻译跟嫌疑人沟通，效率和质量不高。4.律师带翻译会见需获得审批，需协调时间，增加工作负担。

 

Language barriers exclude most Chinese lawyers from doing criminal cases involving foreign suspects. The first basic qualification for an international defense lawyer is the mastery of a foreign language. A certified lawyer without the grasp of a foreign language is not necessarily disqualified from such cases in principle, but would be at a major disadvantage compared with lawyers who possess such skills and qualifications - thus it may be awkward for them to undertake such work. For such a lawyer an interpreter or translator would need to be retained to assist them in their defense work. However, there are defects in bringing an interpreter to visit foreign suspects: first, the interpreter may not be able to fully understand what the suspect is saying; second, deviation may occur due to the interpreter's lack of legal knowledge; third, efficiency and quality of expression may be lower when the lawyer communicates with the suspect through an interpreter; fourth, approval must be gained in advance for the interpreter's visit and the lawyer must coordinate his/her working time with that of the interpreter, thus increasing the workload.

 

外语过硬的执业律师完全没有这个障碍，他本身是法律加外语的复合型人才。

 

A certified lawyer with a good grasp of a foreign language is an inter-disciplinary talent who can operate free of hindrance.

 

除了会见，律师时常需要联系外语人士（嫌疑人的圈子），全程需跟家属沟通工作，做不到让翻译随时协助，成本也高。阅卷、庭审、质证国外产生的证据等工作中，律师如果能超越翻译，甚至指出和纠正翻译错误，不但不需盲从，反而能占据上风，控制全场，震慑公诉方及审判方，促进最佳辩护效果的取得。

 

Apart from visiting the suspect, the lawyer needs to talk to non-Chinese speaking people from the suspect's social circle from time to time. Also, the lawyer has to be able to communicate with the suspect's family members at any time. It is not realistic for the interpreter/translator to always be present with the lawyer and, besides, this would make the cost high. If the lawyer is superior to the interpreter/translator in language skills, he will not be led blindly by the latter during case file reading, proof appraisal and the court hearing. On the contrary, he will be able to point out translation errors and correct them. In this way the lawyer can take the upper hand, control the rhythm and even hold the prosecutor and judge in awe, thus helping the suspect in getting the best judgment.

 

涉外刑辩律师掌握多门外国语言是技能加分项。相当一部分来华外国涉嫌犯罪者文化不高，英文差，经常需要用他们的母国语言沟通。这些语种的中国翻译较难聘请。即使嫌疑人会说英语，很多人达不到精通程度，会夹杂母语的单词。比如母语是法语的非洲人用英语说“Support”，但他要表达的并不是“支持”，而是“忍受、承担”（法语单词Supporter）；母语是西班牙语的南美人用英语说“Pan”, 不要理解为 “平底锅”，他说的是“面包”。并且，他们往往会用母语语法套英文单词。碰到这种情况，翻译难以理解，遑论准确传达。如律师本人通晓其母国语言，效果比带翻译工作还更好。

 

A foreign criminal defense lawyer possesses an even higher value should he have a grasp of several foreign languages. Quite a few suspects from overseas are not very well educated, speaking no Chinese and with poor or little English. Communication is only achieved by speaking their mother tongues. English language interpreters are far easier to retain than interpreters of other languages. Also, very often even when a suspect speaks English he or she may utter words or phrases of his or her mother tongue. For example, a native speaker of French from Africa may say "Support", but this word does not necessarily mean "Support" in English. Rather, it means to "Tolerate somebody or Burden the consequences" in French; a native speaker of Spanish from South America may say "Pan", but this is not actually a cooking tool, and his real intention is to say "Bread". Besides, they may speak English with the grammars of their mother tongues. It will be difficult for the interpreter to properly understand the suspect if he or she does not have a working knowledge of such linguistic nuances. If the lawyer is knowledgable of the suspect's language he will be better able to understand and assist them.

 

学过多门外语的中国执业律师从事涉外刑辩工作，最能把法律和外语用到极致。其外语学习亦从单纯的乐趣转变为律师自我技能培训。

 

Thus, a certified Chinese lawyer who has studied a few languages is able to obtain the best working quality in representing such a category of cases. Also, studying a foreign language for this lawyer becomes a self-training legal skill and more than just a joy.

 

五、 沟通和辅导

5. Communication and intervention

 

涉外刑辩工作中绝对不能弱化的两项工作是沟通和心理辅导。

 

Two work tools that a defence lawyer working with foreign suspects should not underestimate are communication and psychological support.

 

外国嫌疑人异国被拘，除部分使领馆会探视或电话（仅可谈论案件以外事项）之外，他无法获得外界协助，容易丧失安全感，坐卧不安。外国籍嫌疑人因跟同室者语言不通，拥有会见权的律师往往是他唯一能深入交流的对象。律师应尽力消除其心理恐慌、负面情绪。会见中律师应全面细致地回答嫌疑人的问题，进行普法讲解，并拨出时间与其聊天。

 

Detained in another country, as well as cut off from his family and homeland, except for personal visits or telephone calls, often not carried out by some embassies/consulates to China, during which parties are forbidden to discuss the case itself, the suspect will no doubt lack a sense of safety. He is often troubled and in turmoil. Communication difficulties with roommates can also lead to the assigned lawyer becoming the only person with whom the suspect can talk in-depth. Efforts should be made to eliminate the suspect’s fear and to calm any negative emotion. This can be done by the suspect’s lawyer allotting time for the suspect and by explaining to him the rules and articles of law in detail.

 

聊天看似与罪案无关，却有用处：一来使其放松，适应关押生活；二来了解他的人品、个性等，助力判断案发原因、主观恶性等要素，促进办案。

 

Despite seeming irrelevant, spending time talking with the suspect is very useful for two main reasons: a. The lawyer can support the suspect to relax and adjust to life in custody; b. By spending time talking with the suspect, the lawyer can understand the suspect’s personality, self-development, etc. to help analyse case factors including cause, subjective culpability, etc. which can facilitate the defence work.

 

良好的沟通对嫌疑人一般有利。比如，律师通过会见沟通中获得的信息，可在辩护意见里对嫌疑人进行正面描述，力争影响检察官、法官，酌情轻诉轻判。

 

Good communication often benefits the suspect. For example, the lawyer may comment positively about the suspect in his defending documents to the Prosecutor General's Office or to the Court, in order to make a good impression on the prosecutor or the judge. This may work to help the suspect in getting a lighter prosecution or punishment.

 

六、 家属为王

6. Family is king

 

涉外刑辩律师代理案件不能闷声低头只管工作，而要充分沟通，家属为王。律师要多向家属汇报工作，传达嫌疑人情况，不厌其烦地与之沟通。这是涉外刑辩律师工作的重中之重。原因有三：1.家属不在中国，主要信息来源是律师，律师是家属的耳朵、眼睛、嘴巴。2. 家属能提供有用的信息或材料。3.支付律师费及案件全部环节，律师都需要家属配合。

 

The lawyer should not focus solely on the case to the detriment of communication with the suspect’s family members. On the contrary, he must always keep the family in mind, be ready to communicate with them at all times, update them with the latest developments in the suspect’s case, and show the family unwavering patience in his discussions. The reasons for this are: a. As the suspect’s family are not in China, the defence lawyer is their eyes, ears and mouth and their main source of information; b.The family may provide useful information and/or documentation related to the case; c. Cooperation is required from the family at all stages of the defence work. It is also worth noting that the suspect’s family processes the defence’s retainer.

 

在我执业之初，曾有当事人当庭被宣判后认为判得太重，表情激怒地望向律师，但服刑后出狱见到家属后，才知道律师为其辩护付出了大量的工作，才争取到最好的判罚。10几年后该当事人仍对律师心怀感激。

 

I worked on a case early in my career in which the suspect directed his fury against me as his lawyer immediately after the judgment, due to what he felt was an unduly severe punishment served by the Court. Eventually he began to realise that I, his defence lawyer, had done a large amount of work in order for his case to deliver that result. He continues to be grateful towards me, even though upwards of ten years has since passed.

 

从某种意义上说，家属才是涉外刑辩律师真正的当事人。律师跟家属沟通的质量高低，能直接决定家属会采取什么样的其他措施。比如有些家属情急之下会找本国报社和电视台披露案件，对记者讲述的情况可能不实。外国媒体添油加醋炒作一番，客观上对我国公检法带来负面影响。我国刑事辩护律师从这个角度讲也起着国际“维稳”的作用。家属的反应甚至比外国犯罪嫌疑人最终获得什么样的判罚，更为敏感、更为重要。

 

In one sense, the suspect’s family members are the lawyer’s true clients. The quality of the lawyer’s communication with the family members will directly determine what the family will be willing to do. For example, some family members will talk to the local media out of fear of the process and will sometimes divulge untruths about the case. Foreign media may also share false information based on only knowing one side of the story. This can have a negative impact on the Chinese justice system. From this point of view, a Chinese foreign criminal defence lawyer also performs the key role of maintaining international stability. How the family members react to the case can be even more sensitive and important than the Court’s final judgment on the suspect.

 

不同于敢于来华的外国犯罪嫌疑人，其家属往往只说母语。这一点支持论证了涉外刑辩律师掌握多种语言的优势及有用性。全球语言极多，无法全部掌握，但律师能掌握世界上大多数国家使用的官方语言的确是一种对比性优势。

 

As opposed to the suspects who actually relocate to China to live and work, their family members often only speak their native language. This highlights the advantage of being a bilingual (or multilingual) lawyer. There are far too many languages for any one Chinese lawyer to learn, however it is truly a significant advantage for a lawyer to understand several international languages besides his own.

 

七、 国别差异

7. Inter-country differences

 

客观上说，在全球二百多个国家和地区里，欧美国家以及前欧美殖民地国家的嫌疑人和家属更容易沟通。第一、这些国家的法律传统使得他们尊重和信任律师。第二、这些国家的法律服务消费观念使得他们自愿支付律师费。律师如此就能把精力聚焦到辩护工作本身上。

 

Objectively speaking, among the around two hundred countries and regions, suspects and family members originating from Europe, America, and the former European/American colonies are easier to communicate with. The reasons are as follows: a. They respect and trust lawyers, due to the legal tradition in their countries; b.They are willing to pay fees to secure legal services. This allows the lawyer to concentrate solely on the defence work itself.

 

有些国家的人士相反。我曾经接受某大国使领馆的委托，为该国一名诈骗犯罪嫌疑人提供辩护，进行了会见等工作。其近亲属的态度恶劣，难缠善变，不好沟通，最终导致我主动解除合同，拒绝辩护。

 

However, a lawyer may have the opposite experience to the above with suspects and family members from some countries. I was once entrusted by a consulate of one major state to defend a fraud suspect. I visited him and did some relevant work. Due to the ill manner of his family member and this family member’s different way of thinking, I refused to continue the work by terminating the legal service agreement.

 

八、 庭外策略

8. Out-of-court strategies

 

执业之初笔者有若干涉外刑案联系了新闻媒体，因题材独特被记者们采访报道直至央视，后来全球媒体也关注了。利用新闻媒介是一把双刃剑。报社或电视台关注的侧重点，跟辩护律师不同，可能产生负面影响。此外，联系案发地的当地外事办、联系嫌疑人的母国驻华使领馆、等等，具体庭外策略应视个案情况决定。

 

In the early stages of my law career, I found myself working on some unique cases which caught the attention of the media and I found myself speaking to a large number of reporters. Some of these cases were reported by China Central Television and picked up by interested foreign media. Working with the media is a double-edged strategy for a defence lawyer, as the point of view adopted by a newspaper or television reporter can be different to that of the defence lawyer. This has the possibility to engender a negative effect.  During those cases, I also made contact with local foreign affairs’ authorities and the suspects’ homeland embassy/consulate to China. It is suggested that the defence lawyer should have an out-of-court strategy where possible on a case-by-case basis carefully.

 

某一个涉外刑案开庭时，经笔者联系沟通，开庭日该国驻华使馆安排几位外交官前来旁听。某地中院很少碰到这种阵势，如临大敌，全程摄像录音。判罚结果理想。

 

During one criminal case, I contacted the suspect’s homeland consulate in a city in the South China region. They eventually sent several diplomats to attend the court hearing, while the local intermediary court rarely accommodated such a situation, preferring to video and audio record the trial. This court provided a highly acceptable judgment for both the suspect and the lawyer.

 

九、 政治外交

9. Politics and diplomacy

 

涉外案件中一国司法主权如何行使会不同程度受到政治外交的影响。如近来某国扣押我国某大型企业高管后，该国一名毒贩在华重审，被判死刑，而他一审是获判15年。某国议员携毒离华被查获，拖延7年才判。涉外刑辩律师应适当拓宽视野，关注外交动态，更能为各国当事人制定对路的辩护方案。

 

The performance of a nation’s judicial sovereignty will be influenced by politics and diplomacy, particularly where there are foreign cases involved. For example, in recent years one state detained a high-ranking official from a large-scale Chinese enterprise. This may have been the trigger for a retrial of a drug-trafficking case in which the suspect from that state was sentenced to fifteen years. In the retrial, the suspect received a death penalty sentence. It is possible that this altered judgment was influenced by the detention of the aforementioned high-ranking official. Another suspect, who was a parliamentary member in his country of origin, was detained on leaving China and was immediately charged with trafficking heroin, but was only sentenced to life imprisonment seven years later. A foreign criminal defence lawyer is suggested to broaden his world-view, pay attention to diplomatic developments and thus find an improved strategy for defending suspects from foreign countries.

 

十、 收费问题

10. Fee payment

 

跨国追讨所拖欠的律师费难度大。律师事务所应主动提醒嫌疑人家属等及时足额支付辩护费用。收费条款须在委托协议里明确写明。

 

It is difficult to collect an unpaid retainer from foreign clients who deliberately delay or refuse to pay. The law firm must remind the suspect’s family, or others, of the requirement for timely payment. They should also state clearly in their retainer agreement what are their firm’s payment terms.

 

家属支付律师费一般都通过国际汇款、贝宝、西联汇款等各种方式，基本无现金支付，且有些案件为嫌疑人支付律师费的是外国政府（如菲律宾政府出资聘请中国律师）或外国民间组织（如美国有色人种协会出资聘请律师）。

 

The retainer is usually paid via methods such as an international wire transfer, PayPal, Western Union, and so on. Cash payments are rarely seen. It is possible for the retainer to be paid by a foreign government, such as the Filipino Government paying a retainer to a Chinese law firm for their defence of a Filipino citizen. A retainer could also be paid by an NGO, such as the NAACP (National Association for the Advancement of Colored People, U.S.) retaining a lawyer in China to defend a US citizen.

 

涉外刑辩收费有迹可循。

Money paid under these circumstances is always traceable.

 

结语：

Conclusion

 

涉外刑事辩护关乎每一个来华犯罪嫌疑人能否得到公正判罚，关乎我国司法体制的好评度，最终影响我国的国际形象。涉外刑事辩护还充分契合我国法律人弘扬正义、维护法治的初心。同时，涉外刑事辩护涉及一整套的涉外刑事法律条文规则，一名律师不真正投入时间精力是无法深入掌握、熟练运用的，更不可能在法律理论上有所创新或对司法、立法及各政府部门等有所建言。涉外法律服务市场需要此类专门化的中国执业律师。探索和建设涉外刑事辩护专业化，实现我国律师资源合理调配，是值得及必要的。

 

International criminal defence is concerned with whether a foreign criminal suspect receives a fair judgment, that China’s justice system is praised, and that China’s international image is enhanced. It is also in complete accord with our original intention to promote justice and uphold the law. Defence lawyers in this specialism of the legal profession are highly sought after. For a criminal defence lawyer to perform highly on these cases takes a substantial investment of time and energy regarding the law around and the practices required for foreign criminal defence work. They may also find themselves creating something new that adds to the science of criminology, or that they are able to make suggestions to the justice, legislature or to a government department. It is vital to recognise that this specialism with the legal profession requires ongoing resources and that we must continue to explore and promote the specialism of foreign criminal defence law in our country.

作者

龚楚律师
北京德恒（深圳）律师事务所合伙人
中国人民大学国际法博士
执业方向：涉外争议解决
联系方式：13590496399 （微信）
电邮：gongchu@dehenglaw.com

The Author

Gong Chu (Oscar)
Partner, DeHeng Law Offices (Shenzhen)
PhD. In Law, Renmin University of China
Practice scope: Dispute resolution
Mobile: 13590496399 (WeChat)
Email: gongchu@dehenglaw.com