For promoting our harmonious society and realization of justice and equity, it is useful for us to learn beneficial experience which embodies democracy and equity from the nomocracy countries; and furthermore, according to the doctrine of presumption of innocence, Chinese law prescribes the criterion of posing penalty and condition of revision the sentence to safeguard the right of defendant and appellant.

　　Firstly, Article 3 of Criminal Law of the People’s Republic of China prescribes: no crime without law making it so; no punishment except in accordance with a statutory rule. Secondly, three principles of crime: the occurrence of harm to society, the criminal irregularity and criminal responsibility should be investigated. Thirdly, considering the harmful result and other factors, for example: (1) the age of criminal responsibility; (2) crimes committed by a unit or natural person; (3) intention or negligence; (4) if the circumstance are obviously minor and the harm done is not serious, the act shall not be considered a crime; (5) justifiable-defence, act to rescue; (6) the circumstance of voluntary surrender, meritorious performance; (7) deaf-mute or blind person; (8) preparation for a crime, criminal attempt and discontinuation of a crime; (9) the principal criminal or accessory act in a joint crime; (10) cumulative circumstance, such as recidivist and corpus delicti.

　　As a criminal counsel for many years, I realize that the principle of presumption of innocence is a recognized rule of law. It will be really a blasphemy and infringing upon the right of the person no matter a light verdict for felony, a heavy punishment for misdemeanor, or injustice to an innocent person.

　　It is pivotal for a criminal counsel to appear in court. Whether the defense is successful or not, it will affect the verdict and determine the defendant’s destiny. The analyses of cases represent and annotate the role and responsibility of criminal defense.

　　I dealt with a case recently: the defendant Mr. Endou, a Japanese nationality citizen, invested 10%, while a Japanese stationery company invested 90% (dormant partner) to set up a corporation in Shanghai, for the aim to capture the Chinese market.

　　In the process of import, the company in Shanghai declared dutiable goods to the Customs with the invoice which the price is 30% lower than the deal. After it was captured, the Customs found out that Mr. Endou should have submitted 4 million yuan RMB tax based on the real value of the cargo.

　　The People’s Procuratorate prosecute Mr. Endou with the crime of smuggling the common good and articles. Criminal Law of the PRC stipulates: If smuggles goods or articles and evades or dodges payable duties to the amount of more than 500,000 yuan, he shall be sentenced to fixed-term imprisonment of not less than 10 years or life imprisonment. Then Mr. Endou accused of avoiding tax money 4 million, he would face the serious punishment.

　　Mr. Endou was sued, then his wife entrusted me as defense attorney. After consulting all the rolls, I interviewed Endou and listened to his argument. In the criminal prosecution, I think, the prosecutor shall have the duty to present the evidence to prove the guilt of the defendant, but the defendant has no obligation to do so.

　　In the criminal procedure, the prosecutor proved that the defendant was accused of the crime and beyond reasonable doubt, within the criterion of proof. The standard is applicable in some area: whether the defendant innocent or not, composing factors of the crime and etc. .

　　In order to present the role and independence of criminal defense, I didn’t object the imputation, but the main body is the Japanese corporation not Mr. Endou. Firstly, the dormant partner of Shanghai Corporation is the Japanese Corporation-90% investment; most of all, the Japanese Corporation determine the decision-making of crime and achieved the illegally earnings.

　　Can a foreign corporation, according to Chinese Criminal Law, be the main body of crime committed by a unit? It’s the key problem of the case. Based on the reply by the Research Office of the Supreme People’s Court on the application of law for foreign corporation, enterprise and institution while committing a crime in China: if the company, enterprise, institution is tally with the Chinese qualification of artificial person and conducts an act harmful to the society in China, wherever such an act is stipulated by law as a crime, shall bear criminal responsibility.

　　In this specific case, the Japanese corporation was legal, but they used the registered corporation in Shanghai as a crime tool to evade the tax. The Japanese company must bear the criminal responsibility. Mr. Endou played an auxiliary role in the crime, voluntarily surrendered after committing the crime and showed repentance, I recommended that he might be given a mitigated punishment.

　　A collegial panel composed of three judges heard the case and accepted the opinion by defense counsel, the prosecutor also agreed it. Whereas the defendant Mr. Endou played an auxiliary role in a joint crime, he should be given a lighter or mitigated punishment; meanwhile, he voluntarily surrendered and repented his performance. Mr. Endou was sentenced to fixed-term imprisonment of three years with three years probation and was released.

　　If the defendant, private prosecutor refuse to accept a judgment of first instance, they shall have the right to appeal in writing or orally to the court at the next higher level. If the local People’s Procuratorate at any level considers that there is some definite error in a judgment of first instance, it shall present a protest. The Article 189 of the Criminal Procedure Law of PRC prescribes: (1) if the original judgment was correct in the determination of facts and the application of law and appropriate in the meting out of punishment, the court shall order rejection of the appeal or protest and affirm the original judgment; (2) if the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriately meted out, the court shall revise the judgment; (3) if the facts in the original judgment were unclear or the evidence insufficient, the court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the court which originally tried it for retrial. In China, there also exists procedure for trial supervision, a kind of special relief procedure to conduct a retrial.

　　The judgment bases on the evidence. However, the responsibility of citing for proof may transfer in the litigation: the accused has likewise duty to prove the specific. The fulfilling of responsibility shall accord with the requirements in legal procedure, or the party will be exposed to the adverse verdict. That is what we call criterion of proof.