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Lawyer from Legal Sheng Bang (Sanya) said | Xing Rixuan: Subsequent developments in the Wu Yifan incident - criminal legal issues related to being arrested

On August 16, 2021, the Chaoyang District People's Procuratorate of Beijing approved the arrest of suspect Wu Moufan on suspicion of rape after reviewing according to law. It has only been 17 days since the Chaoyang police reported the news of Wu Yifan's criminal detention.


On August 16, 2021, the Chaoyang District People's Procuratorate of Beijing approved the arrest of suspect Wu Moufan on suspicion of rape after reviewing according to law. It has only been 17 days since the Chaoyang police reported the news of Wu Yifan's criminal detention.

1、 What are the conditions for arrest? Does it mean that Wu Yifan must be guilty?

[Links to legal articles] According to Article 81 of the Criminal Procedure Law of the People's Republic of China, suspect and defendants who have evidence to prove the facts of a crime and may be sentenced to a punishment of more than imprisonment shall be arrested if obtaining a guarantor pending trial is not enough to prevent the following social dangers: (1) New crimes may be committed; (2) There is a real danger of endangering national security, public safety, or social order; (3) Possible destruction or falsification of evidence, interference with witness testimony or collusion; (4) Possible retaliation against victims, whistleblowers, and accusers; (5) Attempting to commit suicide or escape.

 

When approving or deciding to arrest, the nature and circumstances of the suspect or defendant's suspected crime, as well as the circumstances such as pleading guilty and pleading guilty to punishment, shall be taken into consideration whether social danger may occur.

 

Lawyer Interpretation: Arrest is the strictest criminal coercive measure stipulated in China's Criminal Procedure Law. Wu Yifan has been officially arrested, which means that the procuratorate believes that the criminal facts in the case are clear and there is evidence to prove the existence of the criminal facts. Of course, the approval of arrest does not mean the final sentence. At present, Wu Yifan is still a suspect, and whether it will eventually constitute a crime still needs to be decided by the people's court.

2、 How many days does it usually take from criminal detention to arrest?

According to Article 91 of the Criminal Procedure Law of China, if a public security organ deems it necessary to arrest a detained person, it shall submit it to the People's Procuratorate for review and approval within three days after the detention. In special circumstances, the time for requesting review and approval can be extended by one to four days. For major suspects who commit crimes from place to place, commit crimes multiple times, or collaborate, the time for requesting review and approval can be extended to 30 days.

 

[Lawyer's interpretation] According to the above provisions, we can see that for ordinary suspect who are held in criminal detention, they are generally requested to be arrested within 3 days after detention, and can be extended for 1 to 4 days under special circumstances. Those suspected of committing multiple crimes, fleeing from place to place, or collaborating in criminal activities may be detained for an extended period of 30 days. Therefore, it takes up to 37 days from criminal detention to arrest, as the maximum duration of criminal detention is 37 days. In addition, the People's Procuratorate shall make a decision on whether to approve or not to arrest within 7 days after receiving a request from the public security organ for approval.

 

The case of Wu Yifan took 16 days from being detained to being officially arrested. After deducting the maximum approval time of 7 days from the procuratorate, there are still 9 days left for detention, which does not comply with the general 3 days and special extension of 1-4 days as stipulated in the above legal provisions. This indicates that Wu Yifan may be suspected of committing crimes from place to place, collaborating with others, or committing multiple crimes.

3、 Is there any special requirement for the arrest procedure for Wu Yifan, who is Canadian?

[Legal link] Article 367 of the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases stipulates that after a suspect of foreign nationality has made a decision to obtain a guarantor pending trial, to be placed under residential surveillance, or to execute detention or arrest according to law, he shall report to the provincial public security organ within 48 hours, and notify the Foreign Affairs Office of the people's government at the same level at the same time.

 

Article 368 of the Provisions on the Procedure of Public Security Organs in Handling Criminal Cases stipulates that after a suspect of foreign nationality has made a decision to obtain a guarantor pending trial or to be placed under residential surveillance, or has executed detention or arrest, the provincial public security organ shall, in accordance with the relevant provisions, determine his name, gender, time of entry, passport or certificate number, time and place of the case, the main facts of the suspected crime, the coercive measures that have been taken and their legal basis, etc, Notify the embassy and consulate of the foreigner's country in China, and report to the Ministry of Public Security at the same time.

 

Article 2 of the Provisions of the Supreme People's Procuratorate on Examining and Approving the Arrest of Foreign suspect stipulates that if a foreigner is suspected of committing a crime other than that specified in Article 1 of these Provisions, and the investigation organ at the prefecture or provincial level submits a request for approval of the arrest of a foreign suspect, the people's procuratorate at the prefecture or provincial level shall review the case and make a decision to approve or disapprove the arrest according to law. If the decision to approve the arrest is made, it shall be reported to the People's Procuratorate at the next higher level for record within 48 hours after the decision to approve the arrest is made, and at the same time, it shall be reported to the foreign affairs department of the people's government at the same level.

 

Lawyer's Interpretation: Although Wu Yifan is a foreign national in this case, he is not a foreigner who enjoys diplomatic privileges and immunities and does not need to be resolved through diplomatic channels. The arrest of foreigners is distinguished based on the alleged charges. Wu Yifan is suspected of rape, rather than a case of endangering national security or involving political and diplomatic relations between countries, as well as cases where there are indeed difficulties in the application of law. Therefore, public security organs and procuratorates should follow the above regulations to carry out arrest procedures.

4、 What legal procedures will there be after the prosecutor's office approves the arrest?

[Links to laws] Article 156 of the Criminal Procedure Law stipulates that the period of investigation and detention after the arrest of a suspect shall not exceed two months. A case with complex circumstances and a deadline that cannot be terminated may be extended for one month with the approval of the higher-level People's Procuratorate.

 

Article 158 of the Criminal Procedure Law stipulates that if the investigation cannot be concluded upon the expiration of the time limit specified in Article 156 of this Law, the following cases may be extended for two months with the approval or decision of the people's procuratorates of provinces, autonomous regions, or municipalities directly under the Central Government: (1) major and complex cases in remote areas with very inconvenient transportation; (2) Major criminal group cases; (3) Major and complex cases involving crimes committed from place to place; (4) Major and complex cases involving a wide range of crimes and difficult to obtain evidence.

 

Article 159 of the Criminal Procedure Law stipulates that if the suspect may be sentenced to fixed-term imprisonment of not less than 10 years and the investigation cannot be concluded after the expiration of the extended period according to the provisions of Article 158 of this Law, it may be extended for another two months upon the approval or decision of the People's Procuratorate of the province, autonomous region, or municipality directly under the Central Government.

 

Article 162 of the Criminal Procedure Law stipulates that in cases where the investigation of the public security organs has been concluded, the criminal facts shall be clear, the evidence shall be accurate and sufficient, and a written opinion on prosecution shall be written, and together with the case file materials and evidence, the case shall be transferred to the same level People's Procuratorate for examination and decision; At the same time, the suspect and his defense lawyer shall be informed of the transfer of the case.

 

According to the above regulations, after Wu Yifan is arrested, the case will continue to be investigated by the public security organs. If the public security organs believe that the facts of the case are clear and the evidence is indeed sufficient, they will transfer the prosecution opinion, along with the case file materials and evidence, to the procuratorate for examination and prosecution.

 

Once the law is violated, the 'top stream' will be instantly dissipated. Follow up on the progress, everyone continue to pay attention together.