Chinese Criminal Procedure Law stipulated: a lawyer may provide legal advice for the crime suspect since investigation, defense for suspect and defendant in the prosecution and trial stage.  

　　China has joined, for promoting the harmony of society, the international treaty on human rights protection. It is useful for social justice and equity. We will learn benefical experience which embodies democracy and equity from the nomocracy countries, and furthermore, carry out the principle of human rights protection and the doctrine of presumption of innocence, try our best to safeguard the right to defense of defendantant and counsel.  

　　It will be mutual beneficial experience for both Chinese and American criminal defense attorneys to discuss some related legal issues today.

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

　　It is unfortunate for a person to be enjailed in spite of any reason; if the person is innocent but to be imprisoned, he will be the worse. In order to have the fair judgment fo the accused person, the criminal counsel should not only analyze all available materials thoroughly, but also excavate and search for something related.

　　It is really important for a criminal counsel to appear in court. No matter whether the defense is successful or not, it will effect the verdict and determine the defendant’s destiny. The analysis of cases will represent and annotate the role and responsibility of criminal defense.

　　I dealt with a case recenly: the defendant Mr. Endou, a Japanese nationality citizen, invested 10%, while a 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 declare dutiable goods to the Custom with the invoice which the price is 30% lower than the deal. After it was captured, the Chinese Customes found out that Mr. Endou should have submitted 4 millon yuan RMB tax based on the real value of the cargo.

　　The People’s Procuratorates prosecute Mr. Endou with the crime of smuggling the common good and articles. Chinese Criminal Law 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 consequence.

　　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.

　　However, the responsibility of citing for proof may transfer in the litigation: the accused has likewise duty to prove the specific. The fulfiling 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.  

　　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 specifice 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 recommeded 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 a auxiliary role in a joint crime, he should be given a ligher 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.