Author | Criminal Law Center, Attorney Guo Liang
1
Basic Facts of the Case
In a recent organized-crime case that I am handling as counsel, the prosecutor unexpectedly withdrew the plea-bargain sentencing recommendation for my client during the court debate.
The basic facts of the case are as follows: the defendant and the primary defendant in the organized-crime case are villagers from the same village and know each other well. The primary defendant hired the defendant to work as a driver for his wife, who does not have a formal employment contract. The defendant’s main duties included transporting their children to and from school and running errands such as grocery shopping. During this period, the defendant also made phone calls to collect debts and withdrew cash from bank accounts on behalf of the primary defendant on multiple occasions.
After the case was transferred to the procuratorate, a review of the case files revealed that there were a total of 24 suspects involved. The indictment charged the first defendant with more than ten offenses, including organizing and leading a triad‑like organization, and accused my client of participating in a triad‑like organization (as a core member), running a casino, and engaging in illegal business operations, ranking my client fourth among the defendants.
When visiting the detention center to verify the evidence with the client and inquire about his stance on the alleged charges, the client looked utterly bewildered and stated, “I was not involved in a triad. If I had known it was a criminal organization, I certainly would not have participated.” Based on the facts of the case and the evidence, I have submitted a written defense opinion to the procuratorate arguing for the defendant’s innocence.
During the review and prosecution stage, the case was twice returned to the public security organ for further investigation. When the case was about to be transferred to the court for prosecution, the procuratorate notified: “If you plead guilty and accept punishment, you may be given a lighter sentence.” I met with the prosecutor to discuss sentencing and the plea agreement. The prosecutor stated, “We do not accept the defense’s argument of innocence, but we agree to downgrade the status of a key member who actively participated in the organized crime of a triad‑type nature to that of an ordinary participant. Our sentencing recommendation for the three charges is four years and six months; if you enter a guilty plea and accept the plea agreement, we may consider a sentence of three years and six months.”
I immediately met with the client again and informed them of the outcome of my communication with the prosecutor. The client agreed to sign the plea agreement. I again arranged a meeting with the prosecutor to reiterate that the defendant’s status, role, and the social harm caused by their involvement in the organized crime group are all relatively minor, and I recommended that, building on the previous lenient treatment, an even more favorable sentence be imposed.
The prosecutor agreed to further reduce the sentence by three months.
Under the witness of this attorney, the defendant and the prosecutor signed the plea agreement at the detention center, with a recommended sentence of three years and three months. After the case was brought to court, the indictment listed the party’s status as the 20th defendant. During the court investigation, I questioned several defendants with respect to the four defining characteristics of organized crime by a triad‑type organization and expressed the view that the key forensic accounting expert opinion should not be relied upon as the basis for a verdict. In the courtroom debate, I argued that the defendants did not constitute an organized crime group under the law and that they were not guilty of the crime of running a casino.
Perhaps due to these factors, the prosecutor, during the presentation of closing arguments, withdrew the sentencing recommendation based on the defendant’s guilty plea and acceptance of punishment. So, can the prosecutor withdraw the plea agreement sentencing recommendation?
Two
Problem analysis
(I) Can a defense attorney plead not guilty?
This issue concerns whether defense counsel enjoys the right to independent advocacy. Let us examine the relevant legal provisions: Article 37 of the Criminal Procedure Law stipulates that “the duty of the defense counsel is, based on facts and law, to present evidence and opinions demonstrating the suspect’s or defendant’s innocence, a lesser degree of guilt, or grounds for mitigating or exempting criminal liability, and to safeguard the procedural rights and other lawful rights and interests of the suspect or defendant.”
Article 31 of the Lawyers Law stipulates: “When acting as a defense counsel, a lawyer shall, based on the facts and the law, submit materials and opinions demonstrating that the suspect or defendant is innocent, that the crime is minor, or that criminal liability should be mitigated or exempted, and shall safeguard the procedural rights and other legitimate rights and interests of the suspect or defendant.”
According to the aforementioned provisions, defense counsel enjoys the right to independent advocacy. A plea of not guilty by the defense counsel does not prejudice the interests of the client, and where the client has pleaded guilty and accepted punishment, there is no legal provision prohibiting counsel from making such a plea.
(II) If a defense attorney witnesses the defendant's guilty plea and acceptance of punishment, can they still plead not guilty?
This issue concerns the nature of the plea agreement and the status of the defense counsel as a witness. From both the perspective of the signing process and its intrinsic characteristics, the plea agreement clearly exhibits contractual attributes. It is similar to an administrative contract, arising from the voluntary consent of both parties and resulting in a legally binding instrument between the judicial authority and the parties involved.
In judicial proceedings, a written statement of commitment has evidentiary status; it serves to substantiate the act of pleading guilty and accepting punishment, thereby reinforcing the probative force of pre-trial statements. According to Item 5 of Paragraph 1 of Article 39 of the “Guiding Opinions on the Application of the Plea Bargaining System” issued by the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice (issued as Document No. 13 [2019] of the Supreme People’s Procuratorate on October 11, 2019), “whether the on-duty lawyer or defense counsel has communicated with the People’s Procuratorate, provided effective legal assistance or defense, and been present to witness the signing of the written statement of acceptance of guilt and punishment.”
According to this provision, when a defense attorney is present to witness the signing of the plea agreement, the attorney serves only as a witness and does not thereby endorse the sentencing recommendation; accordingly, the defense attorney may lawfully enter a plea of not guilty.
(III) Can the prosecutor withdraw the plea agreement sentencing recommendation?
A written undertaking has a distinct contractual nature, and judicial authorities should uphold the spirit of contract and may not withdraw it at will. According to Article 35 of the “Guiding Opinions of the People’s Procuratorates on Conducting Sentencing Recommendation Work in Cases Involving Pleas of Guilt and Acceptance of Punishment,” “Where the defendant pleads guilty and accepts punishment but the defense counsel pleads not guilty at trial, the People’s Procuratorate shall verify the authenticity and voluntariness of the defendant’s plea of guilt and acceptance of punishment.”
If the defendant continues to plead guilty and accept punishment, the lenient treatment system for guilty pleas may continue to apply; if the defendant retracts their plea and no longer pleads guilty or accepts punishment, it shall be handled in accordance with Article 34 of these Opinions. According to this provision, where a defense attorney pleads not guilty on behalf of the defendant while the defendant nevertheless pleads guilty and accepts punishment, the lenient treatment system applicable to guilty pleas and acceptance of punishment may still be applied, and the sentencing recommendation based on the guilty plea and acceptance of punishment shall not be withdrawn.
Three
Summary
In summary, although the defense counsel is present to witness the signing of the plea agreement, their role is merely that of a witness. Nevertheless, in order to safeguard the client’s interests, the defense counsel may, based on the facts and the law, submit a defense argument asserting the defendant’s innocence.
In this case, when the prosecutor announced the withdrawal of the plea agreement and sentencing recommendation, I promptly raised my hand, obtained the presiding judge’s permission, and articulated that the prosecutor’s withdrawal of the sentencing recommendation was improper. Ultimately, in its judgment, the court not only acknowledged the defendant’s guilty plea and acceptance of punishment but also adopted the defense counsel’s argument that the defendant’s conduct constituted voluntary surrender under the crime of illegal business operations, and accordingly ordered a further reduction in the sentence beyond the original sentencing recommendation based on the guilty plea.
lawyer Introduction
Attorney Guo Liang
Senior Partner at Zhiheng Equity
Deputy Director of the Zhiheng Criminal Law Center and Director of the Cybercrime Defense Department
Areas of Expertise:Criminal, civil and commercial
Classic cases or specialized services:
1. In the case of Cui Moumou’s illegal occupation of agricultural land, after multiple court hearings, the procuratorate withdrew the prosecution due to insufficient evidence.
2. In the case of Yu Moumou for intentional injury resulting in death, a lenient sentence was obtained through effective defense;
3. In the case of Li, involving the illegal trade of wildlife, a suspended sentence was handed down.
4. In the case involving Sun’s telecommunications and cyber fraud syndicate, a lenient sentence was obtained through effective defense;
5. In the case of Zhang’s rape, a lighter sentence was obtained through effective defense;
6. In the case of Li Moumou for the crime of selling goods bearing a counterfeit registered trademark, following effective defense, the procuratorate withdrew the prosecution.
Center Overview
Criminal Center
The Criminal Law Center is one of the specialized practice centers at
, with core areas of expertise including defense in commercial crimes, criminal litigation, defense in financial crimes, defense in common types of crimes, and matters involving the intersection of criminal and civil law. By bringing together talent, platforms, and specialized expertise, and leveraging the ability to swiftly assemble cross‑business‑line and cross‑regional collaborative teams, we are able to provide clients with comprehensive, timely, and accurate legal services.
The Criminal Law Center is deeply committed to professional excellence and continuously strives to achieve its goal of becoming a premier national benchmark for criminal legal services.
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Zhiheng Analysis | A Brief Discussion on the Litigation (Arbitration) Claim for “Continuing to Perform the Contract”
Zhiheng Legal Analysis | A Brief Discussion on a Comparative Study of Typical Corporate Governance Cases in China and the United States
Zhiheng Analysis | Defenses Available to Defendants in Online Copyright Cases
Zhiheng Legal Analysis | Key Defense Points in Cases of the Crime of Assisting Information Network Criminal Activities
Zhiheng Analysis | Conflicts and Coordination of the “Estoppel Principle” in Patent Law
Zhiheng Analysis | How Enterprises Can Protect Computer Software — The Scope of Protection for Computer Software Copyright
Zhiheng Analysis | A Study on Jurisdiction Issues in Trademark Infringement Disputes Involving the Use of Information Networks
Zhiheng Analysis | Practical Issues at the Intersection of Criminal and Civil Law in China’s Trade Secret Protection under the New Legal Framework
Zhiheng Analysis | Current Legislative Status and Trends in the Protection of Trade Secrets
Zhiheng Analysis | A Brief Discussion on the Protection of Property of Criminal Suspects (Defendants) in Criminal Cases
Zhiheng Legal Analysis | On the Application of “Subordination” in Cases Involving the Determination of Employment Relationships
Zhiheng Analysis | On the Impact of Different Forms of Expression on Patent Infringement Determination — Open-Ended Versus Closed-Ended Expressions
Zhiheng Analysis | Judicial Remedies for the Change of a Nominal Legal Representative
Zhiheng Analysis | Series on Practical Copyright Issues, Part 1 — The Composition and Examination of Rights in Works of Fine Art
Zhiheng Clarifies Doubts
Zhiheng Clarifies | Seven Frequently Asked Questions About Parental Leave in Guangdong Province
Zhiheng Clarifies | Can a lawyer take notes in court?
Zhiheng Clarifies | Walking with You, Regardless of East or West — Zhiheng Chengdu’s Civil and Commercial Litigation Team, led by Attorney Zhang Guangyu, Sets Sail Anew
Zhiheng Clarifies | E-Commerce in India: The Legal Effectiveness of Electronic Contracts and Digital Signatures
Zhiheng Clarifies | Five Practical Issues Arising When Both Final and Non-Final Labor Arbitration Awards Coexist
Zhiheng Clarifies | Data Compliance in Indonesia for Foreign App Developers — A Case Study of Shared Power Bank Services
Zhiheng Clarifies | Insights from the Qian Family Precepts on the Succession of Family Wealth
Zhiheng Clarifies | Indonesia's E-Commerce Series (II): A Preliminary Exploration of Clickwrap Agreements
Zhiheng Clarifies | A new maxim from Luo Xiang: “We cannot have a state without individuals; nor can we have a state without the world.”
Zhiheng Clarifies | Trends in Criminal Defense — Team Collaboration
Zhiheng Clarifies | Indonesia's E-Transactions Series (I): Legal Effect of Electronic Contracts and Digital Signatures
Zhiheng Clarifies | Sharing of an “Unconventional” Bar Exam Strategy by a Veteran in the Workplace
Zhiheng Clarifies | Why do lawyers defend “bad people”?
Zhiheng Clarifies | Strategies for Addressing Shareholders’ Malicious Cancellation of a Company to Evade Debts
Zhiheng Clarifies | Does the principle of majority rule apply to the adjustment of shareholders’ capital contribution deadlines?
Zhiheng Clarifies | Criminal Defense: Helping Others, Helping Yourself, and Navigating Life
Zhiheng Clarifies | Notarization and Authentication Requirements for Foreign Public Documents Used in Mainland China (IV)
Zhiheng Clarifies | Notarization and Authentication Requirements for Foreign Public Documents Used in Mainland China (III)
Zhiheng Clarifies | Notarization and Authentication Requirements for Foreign Public Documents Used in Mainland China (II)
Zhiheng Clarifies | Notarization and Authentication Requirements for Foreign Public Documents Used in Mainland China (I)
Zhiheng Clarifies | Determining the Court of Jurisdiction in Contract Dispute Cases: The Place of Contract Performance
Zhiheng Clarifies | How Lawyers Witness Shareholders’ Meetings of NEEQ-Listed Companies
Zhiheng Clarifies | Will the court adopt the sentencing recommendation issued by the procuratorate?
Zhiheng Clarifies | A Study on the Nature of EMC Contracts and Related Issues under the “Self-Generated, Self-Consumed; Excess Power Sold to the Grid” Model for Rooftop Distributed Photovoltaic Power Station Projects
Zhiheng Clarifies | The crucial sixty-day window for accepting a bequest—what matters most?
Zhiheng Clarifies | Growth Experiences After Six Months of Practice
Zhiheng Clarifies | In cases involving the discounting of commercial acceptance bills, how do courts determine the relevant issues during litigation?
Zhiheng Clarifies | Does the New Company Law’s Provisions on Joint and Several Liability for One-Person Companies Apply to State-Owned Enterprises?
Zhiheng Clarifies | Is the prenuptial agreement you signed valid?
Zhiheng Clarifies | Reflections After Three Months as a Group
Zhiheng Clarifies | An Examination of Common Points of Contention in Marriage-Related Fraud Cases
Zhiheng Clarifies | The Disruptor—A Cross-Industry Lawyer: The Path from Novice to Expert
Zhiheng Clarifies | The Metamorphosis from Novice to Expert
Zhiheng Clarifies | Research on Mortgage Claims — What Should a Second-Priority Mortgagee Do When the Property Is Insolvent?
Zhiheng Clarifies | Right of Residence—A Haven for Debtors Seeking to Evade Mortgage-Related Claims?
Zhiheng Clarifies | The Big Reveal on Filing Fees! How are court filing fees calculated in cases seeking confirmation of the validity of a contract, specific performance, or rescission of the contract?
Zhiheng Clarifies | Strategies for Expanding Case Sources and the Essence of Communication
Zhiheng Clarifies | How is the validity of a wager agreement with shareholders or the actual controller determined?
Zhiheng Clarifies | What should you do if you haven’t paid the required years of pension insurance contributions and therefore cannot receive retirement benefits?
Zhiheng Clarifies | When a guardian infringes upon the interests of the ward, how can the guardian’s liability be pursued?
Zhiheng Clarifies | May a defendant in an intellectual property infringement lawsuit file a counterclaim on the grounds of malicious litigation?
Zhiheng Clarifies | Several Issues Regarding Lawyers’ Individual Income Tax Annual Settlement
Zhiheng Clarifies | A Practical Analysis of Whether the “Big–Small Week” Work System Requires Payment of Overtime Wages for Public Holidays
Featured Case Study
Notable Case | Acquittal Defense for the Crime of Embezzlement in Related-Party Transactions
Notable Case | Attorney Zhang Chun Secures a Decision Not to Prosecute (Acquittal) in the Fraud Case Involving C.
Notable Case | Attorney Zhang Chun Wins the Municipal Bar Association’s 2023 Professional Achievement Award—A Few Thoughts on Criminal Defense from the Heart
Notable Case | Defense Strategies in a Virtual Currency Investment Trading Platform Case Accused of Fraud (Complete)
Notable Case | Respect for One’s Wishes in Life, Fiduciary Guardianship That Lives Up to Expectations — On the Final Judgment in the “Fruit Stall” Case
Featured Case | Practical Skills for Reviewing Accident Investigation Reports in Cases of the Crime of Major Responsibility Accidents
Notable Case | Illegal Transportation and Storage of Over 140 Kilograms of Explosives and 416 Detonators—Court Grants Probation (with Legal Opinion)
Featured Case | Company Sues Employee for 4 Million in Damages?
Notable Case | The ability to identify the specific contextual factors underlying a party’s conduct is crucial in determining whether an adverse statement has been distorted—illustrated by the case of A, concerning whether a referral fee (from a co-defendant) was received in a money-laundering offense.
Featured Case | How Can a Minority Shareholder Exit the Company by Exercising the Buyback Right?
Notable Case | Does the act of “issuing invoices on behalf of others” constitute a “nominee arrangement” under the law?
Featured Case | Breakup Dispute in the Name of Love
Featured Case | Practice Notes on a Labor Dispute Case
Featured Case | Examining the Conflict Between Corporate Copyright and a Streamer’s Right of Publicity Through a Case Study — An Analysis of Compliance Cases in the Live‑Commerce Industry
Notable Case | If a debt is signed by only one spouse, is the other spouse obligated to repay it after divorce?
Featured Case | The Validity and Enforceability of a Shareholder Lock‑Up Agreement: The Case of Shandong [Company Name] Paper Industry as an Example—Enforcement of the Lock‑Up Agreement
Notable Case | The Law Does Not Protect Those Who Sleep on Their Rights—On the Statute of Limitations Through a Case Study
Featured Case | Insights into Judicial Standards for “Inability to Perform the Job” Through the Xiaomi Dismissal Lawsuit
Featured Case | Judicial Standards for the Assessment of Data-Scraping Activities: Insights from a Weibo Unfair Competition Case
Notable Case | Strategic Approach for Filing a Criminal Complaint in a Financial-Product TR Platform Fraud Case
Featured Case | On the Determination of “Joint Infringement” in Trade Secret Infringement Cases: Insights from the “Melamine” Case
Zhiheng Perspective
Zhiheng Perspective | Chinese Lawyers Applying for Hong Kong Identity Cards — The Talent Admission Scheme for Mainland Professionals
Zhiheng Perspective | Chinese Notarization on Entrustment — Procedures for Hong Kong Companies to Establish Foreign-Invested Enterprises in Mainland China Through Chinese Notarization on Entrustment
Zhiheng Perspective | How Chinese Lawyers Can Assist in Opening Bank Accounts in Hong Kong
Zhiheng Perspective | Chinese Lawyers Applying for Hong Kong Identity Cards — The Elite Talent Category
Zhiheng Perspective | Understanding Chinese Notarized Power of Attorney
Zhiheng Perspective | Chinese Lawyers Applying for Hong Kong Identity Cards — The Elite Talent Scheme
Judicial Interpretation
Judicial Interpretation | The Supreme People’s Court has issued the “Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Liability for Ecological and Environmental Torts.”
Typical Case
Typical Cases | The Supreme People’s Court Releases Typical Cases of Crimes Endangering Pharmaceutical Safety
Laws and Regulations
Laws and Regulations | The Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security have jointly issued the “Guiding Opinions on Lawfully Punishing Illegal and Criminal Acts of Cyber Violence.”
Laws and Regulations | Administrative Reconsideration Law of the People's Republic of China
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Zhiheng · Chongqing
