Preface

In January 2018 , the Central Committee of the Communist Party of China and the State Council issued the "Notice on Launching a Special Struggle against Gangsters". The "Notice" pointed out that in order to thoroughly implement the deployment of the 19th National Congress of the Party and the spirit of General Secretary Xi Jinping’s important instructions, to ensure that the people live and work in peace, social stability and order, and the country’s long-term stability, and further consolidate the party’s ruling foundation, the Party Central Committee and the State Council have decided Launch a special fight against gangsters and evil.

After that, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued the "Guiding Opinions on Several Issues Concerning the Handling of Criminal Cases by Underworld Forces" (Fafa [2018] No. 1) (hereinafter referred to as the 18th "Opinions") , It has made relevant regulations on the identification standards of crimes involving the underworld and the focus on areas of combat. Previously, in 2000, the Supreme People’s Court "Interpretation on Several Issues Concerning the Specific Application of Laws in Trial of Triad-type Organized Crimes" (hereinafter referred to as "the Interpretations") in 2000, the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security in 2009 Minutes of the Symposium on Handling Triad-type Organized Crime Cases (hereinafter referred to as the "Minutes of 2009"), and the 2015 Supreme People's Court "Minutes of the Working Conference on Trial of Triad-type Organized Crime Cases by Some Courts across the Country" (hereinafter referred to as " 15 Years" Minutes"") was used by judicial organs as the main applicable basis for punishing organized crimes of the underworld nature. The promulgation of the "Opinions" makes the content of several regulatory documents show a certain degree of inheritance and show a certain degree of difference. The last article of the 18th "Opinions" stipulates: "After this opinion is promulgated and implemented, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice jointly issued or separately formulated other relevant regulatory documents, if the content is inconsistent with the relevant provisions of this opinion It should be implemented in accordance with this opinion.” Therefore, in judicial practice, how to grasp the relationship between several normative documents, how to grasp the understanding and application of specific provisions, and how to grasp the practical characteristics of evil forces need to be answered. And guidelines.

In view of this, in the context of "sweeping criminals and evil", the Shanghai Bar Association combines laws, judicial interpretations and normative documents to summarize and sort out specific legal application issues involving criminals and evil forces, and form this guidebook with a view to Provide assistance to lawyers in the city to understand and grasp the above-mentioned applicable basis.

    This guidebook was drafted by the Criminal Business Research Committee of the Shanghai Lawyers Association. It is not a mandatory or normative requirement. It is only a reference and reminder for lawyers’ practice activities. It cannot be used as a basis for judging whether lawyers’ practice is due diligence and compliance. Basis for the accountability of lawyers. All understandings are still subject to laws, judicial interpretations and the promulgated contents of various regulatory documents.

Chapter 1 Fully understand the great significance of the special struggle against gangsters 

1. Fully understand that launching a special struggle against gangsters is a major strategic plan for fully implementing the spirit of the 19th National Congress of the Communist Party of China and Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era

The nationwide special campaign for the eradication of gangs is a major decision made by the Party Central Committee with Comrade Xi Jinping at its core. It is related to the overall stability of the society and the long-term stability of the country, the support of the people and the consolidation of grassroots political power, and the great struggle and great construction. Engineering, advance great cause, realize great dream. All regions and departments must further improve their political positions, earnestly strengthen the "four consciousnesses", fully understand the significance of carrying out the special struggle against gangsters and evil, and effectively unify their thoughts and actions to the deployment of the Party Central Committee, scientifically plan, carefully organize, and Carried out carefully and resolutely won the tough battle of the special fight against evil.

2. Fully understand that launching a special struggle against criminals and evil is an important measure to comprehensively promote the rule of law, build a safe China and rule of law, and is an inevitable requirement to protect the fundamental interests of the people

To carry out a nationwide special campaign to combat gangs and evils, we must fully implement the spirit of the 19th National Congress of the Communist Party of China, guided by Xi Jinping’s Thought on Socialism with Chinese Characteristics for a New Era, firmly establish a people-centered development ideology, and address new trends in current issues involving gangs and evil. Integrate special governance with systematic governance, comprehensive governance, governance according to law, and source governance, combine cracking down on gang crimes with anti-corruption, and grassroots "swing flies", combine the eradication of gangs with the strengthening of grassroots organization construction , Not only can effectively combat and deter criminals and evil forces, forming an overwhelming situation, but also effectively eradicate the breeding grounds of evil forces, form a long-term mechanism, continuously enhance people's sense of gain, happiness, and security, maintain social harmony and stability, and consolidate the party’s governance The foundation is to create a safe and stable social environment for the decisive victory in building a well-off society in an all-round way, winning the great victory of socialism with Chinese characteristics in the new era, and realizing the Chinese dream of the great rejuvenation of the Chinese nation.

3. Fully understand that the special struggle against criminals and evil has provided rare development opportunities and challenges for the lawyer industry

    The work of lawyers in handling criminal cases involving the underworld is an important guarantee for ensuring that the parties can experience fairness and justice in every case. The "Notice" not only regards "laws" as the key to the rule of law for "sweeping criminals and evils," it also proposes that "it is necessary to proactively adapt to the reform of the trial-centered criminal procedure system, and effectively control the facts, evidence, procedures and laws of the case. Applicable customs, torture is strictly prohibited to extract confessions, to prevent unjust, false and wrongful cases." These requirements all put forward higher requirements and challenges for lawyers to practice. At the same time, lawyers can also achieve positive effects such as interpreting the law in cases, maintaining social harmony and stability, and establishing a good image of the lawyers in the process of handling crimes involving the underworld.

Chapter II  Application of Law in Criminal Cases of Underworld Forces 

1. Laws and normative documents involving crimes by underworld forces

(1) The Criminal Law provides:

 Article 294 of the Criminal Law: the crime of organizing, leading, or participating in a triad organization; the crime of entering the country to develop a triad organization; the crime of sheltering and condoning a triad organization;

Article 66 of the Criminal Law provides for special recidivism;

Interpretation by the Standing Committee of the National People's Congress on the first paragraph of Article 294 of the Criminal Law;

(2) Judicial interpretation (including regulatory documents):

The Supreme People's Court "Interpretation on Several Issues Concerning the Specific Application of Law in Trial of Triad-type Organized Crimes" ( 2000 )

The Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security "Minutes of the Symposium on Handling Triad Organized Crime Cases" ( 2009 )

The Third Criminal Division of the Supreme People's Court "Effectively Implement the Criminal Policy of Temper Justice with Mercy in Trial Cases of Intentional Homicide, Injury, and Gang Crimes" ( 2010 )

The Supreme People's Court "Minutes of the Working Forum on Trial of Triad Organized Crime Cases by Some Courts across the Country" ( 2015 )

The Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice "Guiding Opinions on Several Issues Concerning the Handling of Criminal Cases by Underworld Forces" ( 2018 )

2. The relationship between laws, interpretations, minutes, and opinions

There were no regulations in the past, now there are regulations, according to the new regulations

There are regulations in the past, which conflict with the current regulations, according to the new regulations

There were regulations in the past, but no regulations now. According to the regulations in the past

 Reprinted source: Oriental Lawyer