China's judicial assistance

    Updated : 2015-07-21

Judicial assistance is a method that allows various countries to assist each other’s justice system on the basis of equality and reciprocity. It plays an important role in today’s international judicial cooperation. A narrow description of judicial assistance would be “investigating and collecting evidence, as well as serving judicial papers or documents”. A broader definition would include civil and commercial matters, criminal justice, extradition, and the transfer of prisoners. As economic integration and globalization grow, the economic, cultural, and environmental interdependence of countries now have more frequent exchanges and closer ties. Global criminal activities are also on the rise, so judicial assistance and international cooperation have come to cover property inherited overseas, marriages, family matters, and the fight against organized crime, terrorism, and corruption.

1. Development of China’s judicial assistance

The country began cooperating in judicial assistance in 1979, just after it began its reform and opening-up policy. It has basically gone through three stages: beginning, expansion, and rapid development.

A. China’s judicial assistance began in 1979 –1993

First, with the implementation of the reforms and opening up in 1979, business and personnel exchanges with foreign countries saw a sharp increase, resulting in an increase in foreign legal disputes, with many requests for judicial assistance in civil and commercial matters from foreign countries. There was a greater need to establish a legal basis for contacts with foreign countries, as well as treaties.

The Civil Procedure Law was issued in 1982, with provisions on foreign litigation and judicial assistance for the first time (Chapter 1, section 4). In 1984, France requested the signing of judicial assistance agreements with China, followed by the United States, Canada, Germany, Poland, and Yugoslavia. China and France then negotiated the Sino-French Civil and Commercial Judicial Assistance Treaty in 1987, the first civil and commercial judicial assistance pact to be signed by China. After that, China signed 14 related agreements with Poland, Belgium, Mongolia, Romania, Italy, Spain, Russia and other countries.

In 1991, China approved the Convention on the Servicing of Judicial and Extrajudicial Documents in Civil or Commercial Matters Abroad (Hague Service Convention), which was China’s first international convention on judicial assistance.

B. China’s judicial assistance expanded in 1993 – 1999

Judicial assistance was mainly about civil and commercial matters in this period. The agreements on criminal matters were quite simple and far from enough to meet the needs for handling foreign-related criminal cases. In 1994, however, China and Canada did sign a Treaty on Mutual Legal Assistance in Criminal Matters, which was China’s first ever criminal judicial assistance treaty to be reached with a foreign country. It also indicated that China’s judicial cooperation with foreign countries had shifted from the civil-criminal mode to more specialized criminal judicial assistance. After that, China went on to sign criminal judicial assistance agreements with 27 other countries including Bulgaria, South Korea, and the United States. Then, in 1997, it joined the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, referred to as the Hague Evidence Convention.

In the meantime, the Ministry of Foreign Affairs, the Supreme People's Court, the Supreme People's Procuratorate, the Public Security Ministry, the Ministry of Justice and other government departments established a judicial assistance work conference mechanism, with the first meeting held in 1998.

C. Rapid development from 2000

By 2000, China had reached several dozen judicial assistance agreements, mainly with developing or socialist or former socialist countries, and only a few of them developed countries. Some countries, such as the US, European Union countries, and Australia, which were the major destination of corrupt officials who fled abroad, did not have extradition treaties with China, and only a few signed criminal judicial assistance treaties with China.

With the rapid development of the Chinese economy, its growing international status and influence, and an improved legal system, especially with the Criminal Procedure Law and the Extradition Law, more western countries began to see that increased judicial cooperation with China was in their own best interests. This provided an opportunity for China to cooperate with western countries in the area of criminal justice. In 2000, after two years of negotiations, the China-US Agreement on Mutual Assistance in Criminal Matters was signed. In 2005, the China-Spain Extradition Treaty was reached. This was the first agreement of its kind to be signed with a western country. China went on to sign extradition treaties with Portugal and Australia, so that judicial assistance with developed countries had entered an entirely new phase.

As terrorist activities began to increase, the international community had a stronger reason to work together to combat and prevent it and China joined the cooperative effort in this. In June 2000, at the summit of the Shanghai Cooperation Organization, the Shanghai Convention against Terrorism, Separatism and Extremism was reached. China signed bilateral cooperation agreements in combating these forces with Kyrgyzstan, Kazakhstan, Tajikistan, Uzbekistan, Pakistan and Turkmenistan, further clarifying the legal cooperation and mutual judicial assistance with these nations.

In addition, there was some progress in reaching agreements with foreign countries on the transfer of prisoners during this period. As China opened further to the outside world, the number of foreigners in Chinese prisons grew, and there was a corresponding increase in the number of Chinese serving sentences in prisons abroad. To reduce the difficulties of the Chinese in serving prison sentences in foreign countries, as well as the pressure on Chinese prisons holding foreign prisoners, China began discussing the possibility of treaties on the transfer of prisoners with foreign countries in the 1990s. In July 2001, China and the Ukraine signed such a treaty, as the first one of its kind between China and a foreign country.

In the 21st century, with the China-US Agreement on Mutual Assistance in Criminal Matters as a starting point, the country advanced by leaps and bounds in signing agreements with other foreign countries. It currently has 115 treaties on judicial assistance with 63 countries and has joined such international conventions as the Hague Service Convention, the Hague Evidence Convention, the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, the UN Convention against Transnational Organized Crime, and the UN Convention against Corruption. The number of judicial assistance cases has also shown strong growth, from 1,000 a year at the end of 2000 to more than 3,000 now.

As of November 2014, China has concluded 39 extradition treaties and 52 criminal judicial assistance treaties with other countries, among which 29 extradition treaties and 46 criminal judicial assistance treaties are already in force.