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reporter/liang ting

editor/shi aihua

the hotel run by xu zhenming has now been closed

on august 19, 2024, xu zhenming, a man in his seventies from jieyang, guangdong, once again stood in the dock. this retrial of the "organizing prostitution" case was not the result of xu zhenming's appeal, but was initiated by the court.

starting from april 2019, xu zhenming was prosecuted for suspected "organizing prostitution". over the past five years, he continued to appeal and received three completely different verdicts.

in 2021, xu zhenming was convicted of harboring prostitution in the first instance and sentenced to two years and two months in prison; after he appealed, the case was sent back for retrial. in the retrial in march 2023, he was sentenced to five years and six months in prison for organizing prostitution; xu zhenming believed that the verdict violated the principle of "no increase in sentence for appeal" and appealed again. in july of the same year, the jieyang intermediate people's court determined that the "retrial" procedure was illegal and corrected it, sentencing him to the crime of organizing prostitution and maintaining the first-instance sentence of two years and two months.

the case did not end there. in december 2023, the jieyang intermediate people's court, which made the final judgment, filed a retrial on the grounds that "the original judgment was indeed wrong in applying the law."

one month before the retrial, he had already served two years and two months in prison. according to the second-instance verdict, his sentence had expired.xu zhenming was arrested again. his lawyer believes this may be a sign of a retrial or a heavier sentence.

chen weidong, a professor at the law school of renmin university of china, pointed out that the issue of "courts initiating criminal retrials" reflected in this case has always been a focus of discussion in the legal community. the current criminal procedure law stipulates that the court has the right to initiate a retrial. except for the prosecution's protest, the retrial generally cannot increase the sentence of the original defendant. but in practice, there are indeed cases of increased sentences.

regarding this issue, many criminal procedure law experts interviewed mentioned that the court should be objective and neutral, but when the court takes the initiative to initiate a retrial, it actually becomes the "prosecutor". the judge exercises both the adjudicative function and the accusatory function, which is unfair and not conducive to the protection of the rights and interests of the defendant.

the criminal procedure law is about to undergo its fourth revision.as the leader, chen weidong and many experts drafted the "expert draft of the criminal procedure code of the people's republic of china". this draft mentioned that for the retrial of a case, we must first distinguish between retrials that are favorable to the defendant and retrials that are unfavorable to the defendant. on this basis, we can then determine which people or units should initiate a retrial.

xu zhenming, who is nearly 70 years old

appeal against a sentence that was increased

on august 19, 2024, eight months after the jieyang intermediate people's court made the retrial decision, the retrial of xu zhenming's suspected "organizing prostitution case" was opened. the trial lasted more than two hours. xu zhenming's son xu ercheng, who attended the whole trial, said that the court that filed the retrial did not clearly explain what "the original judgment was indeed wrong in applying the law" meant, and he did not understand why the procuratorate would overturn its previous opinion.

ten years ago, a hotel invested by xu zhenming in jieyang, guangdong was investigated for suspected "organizing prostitution", and the manager and cashier in charge of daily management were sentenced. xu zhenming said in an interview with a reporter from deeper news that he was not aware of prostitution before the incident, and the daily operation of the hotel was in charge of the manager. when the case happened, the police did not question him. it was not until april 4, 2019, nearly five years after the incident, that he was suddenly detained by the local police station for "suspected of organizing prostitution."

on january 3, 2020, the procuratorate of rongcheng district, jieyang city, accused xu zhenming of organizing prostitution and filed a public prosecution with the rongcheng district court. during the period, the procuratorate believed that the evidence in the case against xu zhenming for organizing prostitution was insufficient and changed the charge to harboring prostitution. at the first instance, the rongcheng district court adopted the opinion of the procuratorate and sentenced xu zhenming to two years and two months in prison for harboring prostitution. xu zhenming was dissatisfied with the verdict and chose to appeal. after that, the jieyang intermediate court sent the case back to the rongcheng district court for retrial. in june 2021, after being detained for two years and two months, xu zhenming was released on bail pending trial.

in march 2023, based on the original evidence, xu zhenming was sentenced to five years and six months in prison for organizing prostitution. under the principle of "no additional sentence on appeal" in the "re-trial", xu zhenming was sentenced to an additional sentence. he was dissatisfied and appealed again. at the same time, the procuratorate also filed an appeal, arguing that during the retrial, the court made a decision to increase the defendant's sentence without any new criminal facts and the procuratorate did not make additional prosecutions, which was a procedural violation.

in july of the same year, the jieyang intermediate court ruled in its second instance that the "re-trial" judgment procedure was illegal and corrected it, changing xu zhenming's sentence to two years and two months, but still maintaining the charge of organizing prostitution. xu ercheng said that after his father came out of the detention center in 2021, he was diagnosed with stage ii diabetes and often went to the hospital. after the second instance judgment, his father planned to continue to appeal after he was in better health.

jieyang intermediate people's court filed a retrial

the court of final appeal filed a retrial

while xu zhenming was recuperating, the court took action first and "overturned" the previous judgment. in december 2023, the jieyang intermediate people's court held that "the original judgment was indeed wrong in the application of the law" and made a retrial decision.

xu ercheng not only had doubts about the court's initiative to file for a retrial, but also was surprised by the change in the attitude of the procuratorate. he said that in the previous three trials, the procuratorate had charged his father with "harboring prostitution," but changed its opinion in the retrial.

xu zhenming's attorney, song fuxin of guangzhou song law firm, said that in previous trials, the procuratorate believed that xu zhenming did not commit the crime of organizing prostitution. however, in the retrial, in the absence of new facts, new evidence, and no appeal for retrial, the procuratorate changed its prosecution opinion and accused xu zhenming of organizing prostitution.

during the trial, the jieyang city procuratorate responded to the lawyer's questions by saying, "this trial is a retrial of the already effective verdict that xu zhenming was sentenced to two years and two months for organizing prostitution. the procuratorate can adjust its opinion in court based on new evidence and with the consent of the leadership."

according to xu ercheng, the new evidence submitted by the procuratorate in this trial includes: xu zhenming's fugitive information form registered on january 19, 2024; a video recording of a police officer at the police station calling xu zhenming but showing that his phone was turned off; a video recording of xu zhenming's surrender; and the latest interrogation records of xu zhenming and xu ercheng. xu ercheng believes that these so-called new evidence and new materials cannot prove that his father is guilty of organizing prostitution.

during the trial, the jieyang city procuratorate believed that the original judgment had clear facts and sufficient evidence, but the sentence was inappropriate. according to the criminal law, the minimum sentence for organizing prostitution is five years, but the original judgment sentenced xu zhenming to two years and two months in prison for organizing prostitution. the sentence was obviously unbalanced and should be revised according to law.

chen weidong, executive vice president of the china criminal procedure law society and professor at the law school of renmin university of china, pointed out that the current criminal procedure law stipulates that if the court believes that the effective judgment has indeed made mistakes in determining facts or applying laws, it has the right to initiate a retrial. however, the legal community has always been arguing about whether the court should take the initiative to initiate a criminal retrial. since the 1990s, many scholars, including chen weidong, have suggested that the court's right to initiate a retrial should be abolished, but this has not yet been adopted.

"the fact that the court can initiate a retrial on its own initiative deviates from the legal basis of criminal proceedings." chen yongsheng, a professor of criminal procedure law at peking university, told deeper news that a particularly important principle of the judicial system is "no prosecution without complaint." this means that the court trial procedure must be initiated by someone or an agency. if not, it cannot be initiated. he said that china's criminal first and second instance procedures generally follow this rule, but the retrial does not strictly follow it.

a judge of the manzhouli city court also mentioned the flaws of the court's retrial in an article in 2016. in the article, he pointed out that according to the basic legal principles of modern litigation, whether the court conducts a preliminary trial, an appeal, or a retrial, it must be based on the existence and filing of a "lawsuit", that is, "separation of prosecution and trial". the court becoming an institution that directly initiates a retrial actually violates the principle of passivity of judicial adjudication and the basic requirements of procedural fairness.

chen weidong, executive vice president of the china criminal procedure law society and professor of the law school of renmin university of china

beware of the trend of heavier sentences

the issue of the court's initiative to initiate a retrial is not only discussed in the legal academic community. in the past few years, many people within the judicial system have also conducted relevant research and reflection.

as early as 2014, a prosecutor in guangdong province analyzed the issue of courts initiating retrials on their own initiative. she mentioned that at present, there are three types of entities that initiate retrials as stipulated in my country's criminal procedure law: parties, their legal representatives, and close relatives; courts; and procuratorates. however, there are also courts that initiate retrials based on reasons raised by the police, prisons, and third parties. she found that in practice, there are problems such as a high proportion of courts initiating retrials on their own initiative and the abuse of criminal prosecution rights.

she used 30 criminal retrial cases from 2009 to 2013 in an intermediate court and three grassroots courts in d city, g province as samples, and found that 11 cases were initiated by the court itself, accounting for 36.67%. 13 cases were initiated by the public security bureau, detention center, prison, and outsiders, accounting for 43.33%. if the latter are added to the cases initiated by the court itself, the proportion of retrial initiated by the court is 80%, while only 4 cases were initiated by the parties and their close relatives.

in 2021, a paper published by an assistant prosecutor of the fengtai procuratorate of beijing, entitled "research on the system for initiating criminal retrial procedures," also reflected similar issues.

the author studied 260 criminal retrial verdicts in beijing, tianjin and hebei from 2013 to 2018 as samples and found that in practice, 50% of the retrials were initiated by the prosecution's protest, and 23.5% of the cases were initiated by the court. as for the most important form of materials that trigger the initiation of retrial procedures in my country, the appeal category, the proportion is relatively small, accounting for only 26.5% of the total 260 cases, including 9 cases of appeals by victims.

rights relief is the core value of retrial. chen weidong told deeper that, in principle, the person held criminally responsible and his family should be the main subjects of appeal. in addition, the procuratorate, as the national legal supervision agency, can protest and initiate a retrial if it believes that the judgment has problems in determining facts or applying laws. "but in any case, this right should not be given to the court. if you initiate and review the case yourself, it means that you are both the plaintiff and the judge, which does not conform to the law of judicial operation."

the court's retrial is not only controversial in terms of legal theory, but the guangdong provincial prosecutor mentioned above also mentioned that an obvious problem with the court's retrial is that the retrial tends to increase the sentence, which makes the "principle of no increase in sentence on appeal" which aims to relieve the defendant's concerns and protect his right to appeal in accordance with the law become void. in her research, after the retrial, 53.33% of the cases were increased in sentence, 20% were maintained in the original sentence, and only 23.33% were reduced in sentence.

in an interview with deeper, chen weidong mentioned that the judicial interpretation of the criminal procedure law stipulates that, except for the appeal by the procuratorate, the retrial generally cannot increase the sentence of the defendant in the original trial. this judicial interpretation reflects the protection of the rights of the defendant, but the expression "generally" means that there are exceptions and the sentence can be increased. at present, "the law does not clearly define what the exceptions are and what the basis is", which leaves a lot of room for interpretation on whether to increase the sentence or not.

xu ercheng also expressed concern that his father xu zhenming might be sentenced to a heavier sentence. he said that his father was arrested a month before the retrial. xu zhenming's attorney lai jiandong explained that xu zhenming had previously served two years and two months in prison before being released on bail. according to the second-instance verdict, he had already served his sentence.

the aforementioned assistant prosecutor of the beijing fengtai procuratorate also mentioned in the article that in reality, after the retrial is initiated, in order to avoid the legal risks that may be caused by excessive detention, for cases where the original sentence has been executed before the end of the retrial procedure, even if the facts and evidence have not changed, the judges will often choose to increase the sentence.

lai jiandong told deepin that two employees of the hotel were sentenced to five and two years in prison for organizing prostitution and assisting in organizing prostitution. they analyzed that this might be one of the reasons why xu zhenming has been held accountable. "the employee was convicted of organizing prostitution, so the boss cannot be convicted of harboring prostitution." therefore, they have been applying to the court to merge xu zhenming's case with the two employees' cases for a retrial, but they have not received a response. after the retrial, they once again proposed that the entire case should be retried and the previous convictions of the two employees should be fully reviewed.

experts discussed the draft revisions at the china criminal procedure law seminar held in july 2024

the fourth amendment to the criminal procedure law: possible changes

chen weidong told reporters that the more common international rule for retrials is to distinguish between retrials that are unfavorable to the defendant and retrials that are favorable to the defendant. the retrial in modern criminal proceedings is based on the principle of being favorable to the defendant. some countries have clearly stipulated that only retrials that are favorable to the defendant can be initiated, while retrials that are unfavorable to the defendant cannot be initiated. even if the first instance sentence is really too light, it will generally not be corrected.

a president of a district court in xinyang city, henan province, once mentioned in an article that the purpose of setting up a criminal retrial procedure is to ensure the realization of criminal justice fairness. to discover and correct wrong cases as timely and effectively as possible to safeguard the legitimate rights and interests of the parties. he mentioned that my country's criminal retrial procedure has always adhered to the guiding principles of "seeking truth from facts, correcting mistakes, and not being unjust or lenient". this litigation concept is generally correct and has played a positive role in correcting unjust, false and wrong cases in many years of practice.

however, he also pointed out that the concept of "seeking truth from facts and correcting mistakes" should be combined with the concepts of procedural justice and the principle of non-repetition, and establish guiding principles for criminal retrials that are beneficial to the defendant, that is, "in the correction of wrong cases that are beneficial to the defendant, objective standards should be adopted and 'correction of mistakes must be made' should be adhered to, while the correction of wrong cases that are not beneficial to the defendant should be strictly restricted according to the principle of non-repetition and the theory of res judicata, and in principle no correction should be made."

shouldn't people who commit crimes be held accountable?

"if someone is suspected of committing a crime, the judicial organs must of course investigate his criminal responsibility, but this right should be limited." chen yongsheng explained that the limitation that the public is familiar with is the statute of limitations stipulated in the criminal law. if the statute of limitations has expired and no investigation has been carried out, it cannot be investigated again. modern criminal procedure law also has the same concept, such as the "principle of non-double jeopardy". this means that for a judgment that has already taken effect, unless otherwise provided by law, no prosecution or acceptance shall be made for the same facts. otherwise, once a person is suspected of committing a crime, he will never have peace in his life, because he can be retried at any time.

chen yongsheng said that this principle is not only to protect the rights of the accused, but also to maintain the authority of the judiciary. "if a judgment can be one way today and another way tomorrow, then the judiciary has voluntarily given up its authority, which is an abuse of state power."

in september 2023, the 14th national people's congress standing committee announced its five-year legislative plan, and the revision of the criminal procedure law was included in the "legislative drafts that are relatively mature and to be submitted for review during the term of office." this will be the fourth revision of the criminal procedure law since its enactment in 1979. as the leader, chen weidong and many experts drafted the "expert draft of the criminal procedure code of the people's republic of china."

chen weidong told deep dive that in this draft proposal, they hope that the future revision of the criminal procedure law can learn from the common practices of the international community. first, they need to distinguish between retrials that are favorable to the defendant and those that are unfavorable. on this basis, they can then determine which people or units can initiate a retrial. among them, the most important is to recommend the abolition of the court's right to initiate a retrial.

in chen yongsheng's opinion, it may not be realistic to cancel the court's initiation of retrial. according to his understanding, the national people's congress legal affairs committee is more inclined to write the "principle of non-double jeopardy" into the basic principles of the criminal procedure law. he believes that if this principle can be determined, there will be theoretical support for the restriction on the subsequent initiation of a retrial that is unfavorable to the defendant.

wei xiaona, a professor at the law school of renmin university of china, said that if the retrial against the defendant is still to be retained in the future, strict restrictions should be imposed in two aspects. first, in terms of procedure, the court cannot initiate a retrial against the defendant on its own, and it is best for the procuratorate to propose it and then the court to initiate it; the specific reasons for initiating an unfavorable retrial should also be strictly limited. "the court cannot be allowed to overturn an effective judgment through a general clause, such as an error in the application of the law."

wei xiaona explained, "the rule of law is the rule of rules, which is to provide people with a kind of predictability and certainty. once there is an effective judgment, the defendant, that is, an ordinary citizen, can plan his future life based on this judgment. if this effective judgment can be overturned at will, then this certainty and stability will no longer exist."