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Zhiheng Explanation | Full Analysis of the Key Points of Defense for the Crime of Underworld Organization (middle)

Longhua Author：QiHuan FANG

Recently, Zhiheng Longhua Law FirmThe legal team led by Attorney Fang Qihuan handled a case involving the crimes of provoking trouble and participating in an organization with triad-like characteristics. During the preparation of the defense opinion at the review‑and‑prosecution stage, they conducted extensive legal and case‑law research. This article, drawing on concrete practice, systematically summarizes the key issues in the application of relevant laws and in judicial practice, with the aim of facilitating mutual learning and collaborative discussion, and providing legal professionals with valuable insights and guidance.

Undertaking“Zhiheng Clarifies Doubts|A Comprehensive Analysis of Key Defense Points in Cases Involving Organized Crime Syndicates (Part 1)…

Zhiheng Clarifies | A Comprehensive Analysis of Key Defense Points in Cases Involving Crimes Committed by Triad‑Like Organizations (Part I)

Table of Contents

1. The underworldLegal Basis for the Crime of Organizing [a Group] with Mafia-like Characteristics

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5. Key points for rebutting behavioral characteristics

(I) Key points for rebutting the claim of disorganized behavior

(II) Key points for rebutting claims that the violence is not obvious

(III) Key points for rebutting the disconnection between behavior and organizational interests

(IV) Key points for rebutting the claim of singularity in illegal and criminal activities

(V) Debates on the alignment with organizational and economic characteristics

6. Key points for rebutting the harmfulness characteristics

(I) Control Scope Rebuttal: Questioning the Specificity and Identifiability of "Region/Industry"

(II) Challenge to the degree of control: The argument fails to establish "illegal control or significant influence."

(III) Defense regarding harmful consequences: denying "serious disruption of economic and social order"

(IV) Rebuttal of relevance: sever the chain of support with other characteristics.

(V) Arguments regarding the burden of proof and the standard of proof

7. Key Points for Reviewing the Legality of Procedures and Evidence

(I) Review of the Legality of Evidence Collection Procedures

(II) Rules for challenging special types of evidence

(III) Standards for the examination and admission of testimonial evidence

(IV) Specific Application of the Exclusionary Rule of Illegal Evidence

(V) Legality review of technical investigation measures

1. Legal basis related to the crime of triad-like organizations

  1. 1. Article 294 of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law");
  2. 2. The "Interpretation of Article 294, Paragraph 1 of the Criminal Law of the People's Republic of China" (hereinafter referred to as the "Legislative Interpretation"), which was promulgated and came into effect on April 28, 2002.
  3. 3. The “Interpretation of the Supreme People’s Court on Several Questions Concerning the Specific Application of Law in the Trial of Cases Involving Crimes Committed by Triad‑Like Organizations,” promulgated on December 4, 2000 (Fa Shi [2000] No. 42, hereinafter referred to as the “Judicial Interpretation”)
  4. 4. The “Opinions of the Guangdong Provincial Public Security Department, the Guangdong Provincial Higher People’s Court, and the Guangdong Provincial People’s Procuratorate on Several Issues Concerning the Handling of Criminal Cases Involving Triad‑Like Organizations (Trial)” (Guangdong Public Notice [2007] No. 97), which was promulgated and came into effect on April 10, 2007 (hereinafter referred to as the “Guangdong Opinions”);
  5. 5. “Minutes of the Symposium on Handling Criminal Cases Involving Triad‑Like Organizations” issued by the Supreme People’s Court, the Supreme People’s Procuratorate, and the Ministry of Public Security (Fa [2009] No. 382, hereinafter referred to as the 2009 Minutes)
  6. 6. “Minutes of the National Symposium on the Trial of Crimes Committed by Triad‑Like Organizations Held by the Supreme People’s Court and Certain Courts Nationwide” (Fa [2015] No. 291, hereinafter referred to as the 2015 Minutes)
  7. 7. “Guiding Opinions of the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Justice on Several Issues Concerning the Handling of Criminal Cases Involving Evil Forces” (Fa Fa [2018] No. 1, hereinafter referred to as the “Guiding Opinions”)

5. Key points for rebutting behavioral characteristics

Image sourced from the internet.

Behavioral characteristics are a key element in the identification of triad‑type organizations, with the statutory standard being “repeatedly engaging in illegal and criminal activities in an organized manner through violence, threats, or other means, committing unlawful acts, and oppressing and harming the public.” The core of the defense lies in demonstrating that the conduct in question lacks organizational structure, is not sufficiently violent, or constitutes an individual crime rather than an organized act.

(I) Key points for rebutting the claim of disorganized behavior

  1. Key argument: The illegal and criminal activities involved constitute either individual acts or ad hoc joint crimes, and thus do not meet the requirement of being “organized” in nature.
  2. Detailed Analysis: (1) Lack of organizational will: In accordance with the 2015 “Minutes” and the guiding principles set forth in Case No. 1158, Liu Han, and Case No. 624, Qu Ruishi, a strict distinction must be drawn between organized crime and the individual criminal acts of its members. The following circumstances shall be deemed to constitute a personal crime:

    ①Has absolutely no connection with maintaining and expanding the organization’s influence, strength, power, or economic base.②It was not carried out in accordance with organizational discipline, established practices, or event regulations.③ The organizer or leader was unaware beforehand and did not subsequently approve or tacitly consent.

    (2) Clearly characterized by temporariness: If the criminal act is committed on impulse, targets a specific individual, and the participants disperse immediately afterward, lacking unified planning and command, it does not meet the “organized” standard. As in Case No. 1157 involving Fu Qingyou, the conduct was determined to be driven by personal gain rather than organizational action.

  3. Legal Basis:

    (1) Article 294, paragraph 5, item 3 of the Criminal Law;

    (2) Point 12 of the 2015 “Minutes”: “Organizers and leaders shall bear criminal responsibility only for the specific crimes they have organized, planned, or directed.”

    (3)The 2009 “Minutes” explicitly lists five categories of circumstances that should be recognized as organized crime.

(II) Key points for rebutting claims that the violence is not obvious

  1. Core argument: The conduct in question exhibits only a minimal degree of violence, relying primarily on “soft coercion” and lacking any realistic prospect of physical violence, thus failing to meet the basic requirements for the characteristics of such conduct.
  2. Detailed Analysis:

    (1) Lack of a violent foundation：According to Point 11 of the 2015 “Minutes” and Case No. 1157 involving Fu Qingyou, in the illegal and criminal activities of triad‑type organizations, “a certain portion should generally be clearly characterized by violence.” If the primary methods employed are “soft violence” tactics such as negotiation, harassment, or blocking entrances, and these tactics are not backed by readily enforceable physical force, with the other party yielding out of “annoyance” rather than “fear,” then such conduct does not meet the criteria for the relevant behavioral characteristics.

    (2) Insufficient psychological coercion: Document No. 186, the case involving Gong Pin, emphasizes that “soft violence” must be sufficient to instill fear and exert psychological coercion. If the conduct only results in a “nuisance” effect and does not reach the level of deterring the public from resisting or reporting, it cannot be deemed to meet the criteria for the relevant behavioral characteristics.

  3. Legal Basis:

    (1) Item 3 of the “Legislative Interpretation”;

    (2) Point 11 of the 2015 “Minutes”: “If the violence is extremely minor and primarily relies on means such as ‘negotiation’ and ‘harassment,’ particular caution should be exercised in determining its legal characterization”;

  4. Reference case: Summary of the judgment in Case No. 1157, Fu Qingyou.

(III) Key points for rebutting the disconnection between behavior and organizational interests

  1. Key argument: The illegal and criminal activities in question bear no substantial connection to the organization’s will or interests; they are driven by personal gain.
  2. Detailed Analysis:

    (1) The privatization of purposes：If a criminal act is committed for personal grievances, debt disputes, or other private gains and does not reflect an intent to expand the organization’s influence, seek economic benefits, or establish illegal authority, it should not be attributed to the organization. As clarified in Case No. 624, the Rui Shi case, crimes unrelated to the interests of the organization should be treated as individual offenses.

    (2) Individualized profit distribution：The illegal proceeds were personally possessed and controlled by the perpetrator and were not used for organizational activities or distributed among members, further demonstrating that the conduct was unrelated to the organization’s interests. This creates a disconnect with the requirement in the economic characteristics that resources must be “used to support organizational activities.”

  3. Legal Basis:

    (1)The five scenarios for defining organizational conduct as outlined in the 2009 “Minutes”;

    (2)Point 12 of the 2015 “Minutes” concerning the criteria for distinguishing between individual crimes and organized crimes.

  4. Reference case: Case No. 1158, Liu Han case: “Organizers and leaders shall not be held liable for ‘purely personal crimes.’”

(IV) Key points for refuting the claim of singularity in illegal and criminal activities

  1. Key argument: The organization involved in the case has only been charged with a limited number of offenses, and its modus operandi is consistent, thus failing to meet the characteristic of behavioral diversity typically associated with triad‑type organizations.
  2. Detailed Analysis:

    (1) Singularity of the list of offenses：According to Point 10 of the 2015 “Minutes” and Case No. 1156 involving Jiao Haitao, if the organization in question is only involved in a limited number of specific offenses (e.g., engaging solely in crimes related to “loan‑sharking schemes”), whether it should be classified as an organized crime group of a triad‑like nature must be determined with strict adherence to other relevant characteristics. The uniformity of the modus operandi may indicate that it is merely a professional criminal group, rather than an organized crime syndicate seeking to establish illegal control.

    (2) Object Specificity：If unlawful or criminal activities are directed at specific targets or projects (e.g., violent demolition carried out solely for a particular construction project) and do not exhibit oppression or harm toward an indeterminate group of people, then they do not meet the statutory requirement of “committing wrongdoing and oppressing or harming the public.”

  3. Legal Basis: Point 10 of the 2015 “Minutes”: “If the criminal conduct in question follows a single pattern… a prudent assessment should be made in conjunction with whether it exhibits characteristics of illegal control.”
  4. Reference case: Summary of the Judgment in Case No. 1156, Jiao Haitao

(V) Rebuttal regarding the alignment with organizational and economic characteristics

  1. Key argument:Behavioral characteristics must be predicated on organizational and economic characteristics; if the latter two do not exist, the “organized” commission of crimes loses its foundation.
  2. Detailed Analysis:

    (1)Organizational dependence：If the organizational structure is loose and its members are not fixed (as argued in Chapter 2), then the commission of crimes “in an organized manner” would lack any organizational foundation. The actions carried out by a temporarily formed group more closely align with the characteristics of ordinary joint crime.

    (2) Economic Interconnection：If the economic benefits obtained are not used to support specific illegal or criminal activities (as argued in Chapter 3), then the “means–ends” link between the behavioral and economic characteristics is severed, further demonstrating that the conduct in question lacks organizational structure.

  3. Legal Basis: The requirement of an “organic whole” comprising the four characteristics under Article 294 of the Criminal Law
  4. Reference case: Case No. 625, the Wang Ping case, emphasizes “taking the characteristic of illegal control as the core and dialectically linking it with other characteristics.”

Defense Strategy Tips: Particular attention should be paid to examining the connection between each alleged unlawful or criminal act and the organization’s will and interests, and evidence should be presented for each case to demonstrate whether the act constitutes an individual action or a common joint crime. At the same time, by fully leveraging favorable provisions in guiding cases—such as the criteria for identifying “soft violence” and the distinction between individual criminal acts—we can dismantle the prosecution’s evidentiary chain that seeks to “package” disparate unlawful acts as organized conduct.

6. Key points for refuting the harmfulness characteristics

Image sourced from the internet.

Core Positioning of the Defense：The characteristic of illegal control (harmfulness) is that of triad-like organizations.Essential characteristic and Ultimate Criterion for Judgment, it is also a defense.Primary Breakthrough Point. As long as it can be proven that this characteristic does not hold, even if the other three characteristics appear to be satisfied on the surface, the charge of organized crime cannot be established.

(I) Control Scope Rebuttal: Questioning the Specificity and Identifiability of "Region/Industry"

Argument Point 1: The “area” alleged in the charges lacks the social-functional foundation necessary to establish illegal control.
  • 1. Legal Standards: The 2009 “Minutes” clearly stipulates that a “certain area” must possessA certain spatial scope and social function(such as towns, streets, large markets, and stations), rather than isolated, single-function venues.
  • 2. The Path of Refutation：
    • (1) Refutation of an overly narrow scope: If the alleged area is onlySingle construction site, specific entertainment venue, or independent residential community, lacking a social function open to the general public, does not meet the statutory definition of “area.”
    • (2) Refutation of the claim that it has a single function: If the location in question is merely a temporary construction site or an internal business premises and does not have a widespread impact on the surrounding economic and social life, it cannot be deemed a “region” capable of establishing illegal control.
  • 3. Case Support：
    • (1) Case No. 1160, Niu Zixian: The criminal activities occurred only within a specific project department and did not establish control over the construction industry, thereby negating the characteristic of illegal control.
    • (2) Case No. 1156, Jiao Haitao: The violent acts were directed at a single demolition project and did not result in sustained disruption of regional order.

Argument Point 2: The “industry” alleged lacks widespread similar production and business activities.

    1. 1. Legal Standards: “A specific industry” refers toSimilar production and business activities, and the organization’s influence must extend to the key segments of the industry or to the majority of its practitioners.

      2. The Path of Refutation：

      • (1) Industry definition is vague.: If the alleged “industry” is defined too broadly (e.g., “the construction industry”) or too narrowly (e.g., “a specific sand and gravel supplier”), it fails to demonstrate substantial control over the industry’s ecosystem.
      • (2) Insufficient market share: Through audit reports, industrial and commercial registration data, and other evidence, it has been proven that the organization in question, within the so‑called “industry,” Extremely low market share, has not formed a monopoly or a dominant position.
    3. Legal Basis: The 2015 “Minutes” emphasize that it is necessary to examine whether the conduct “has created a monopoly or exerts a significant influence over production and operations within the industry”; allegations lacking evidence of market share cannot stand.

    (II) Control Degree Rebuttal: The argument does not establish "illegal control or significant influence."

    Argument Point 3: The statutory threshold of “causing the public to experience psychological coercion” has not been met.
    • 1. Legal Standards: The 2009 “Minutes” lists “exerting psychological coercion on the public, thereby causing them to be unable to report or file complaints after their legitimate interests have been harmed” as a core circumstance, which must be present.Widespread, persistent The psychological deterrent effect of .

      2. The Path of Refutation：

    • (1) Proof that reporting channels are functioning smoothly: Retrieve from the public security organIncident report records,Letters and visits data, this demonstrates that during the period in question, the number of public complaints did not decline significantly; moreover, there were multiple valid reports specifically targeting the individuals involved, directly refuting the allegation that people “dared not report.”

      (2) Specificity of the object of infringement: Arguing that the illegal and criminal acts in question are directed solely atIndividual business partners or specific dispute parties, has not served as a general deterrent to the general public. AsCase No. 1159, Wang Yuna As shown in , crimes that are targeted at specific individuals and occur infrequently do not constitute widespread oppression of the general public.

      (3) Use of Evidence: Application to the court to subpoena from the public security organs within its jurisdiction.Public Security Statistics, use objective evidence to demonstrate that social order has not been severely disrupted.

    Argument 4: There is a lack of objective facts demonstrating “the establishment of a monopoly or significant influence over the industry.”

    1. Legal Standard: Illegal control must reach the level of excluding competitors, manipulating prices, and erecting barriers to entry.

      and the degree of substantive control.

    2. Path of Refutation：

      (1) Intense market competition: Present the business licenses and operational data of peer companies to demonstrate the existence of this industry.A large number of competitors, Market price fluctuations are in line with normal patterns, and the organization involved does not possess pricing authority or decision-making power over market access.

      (2)The autonomy of business operations continues to exist.: Provide evidence demonstrating that other operators within the relevant market can still independently procure, sell, and set prices, without being subject to coercive interference by the organization in question.

    3. Case Support：

      (1) Case No. 1160, Niu Zixian: The court explicitly stated that there is no evidence to prove that its actions “had a significant impact on the local construction industry.”

      (2) Case No. 1157, Fu Qingyou: Engaging in non-violent tactics such as negotiation and blocking entrances to forcibly secure construction projects, without establishing industry monopoly, does not constitute illegal control.

    Argument Point 5: The determination of “significant impact” violates the requirement of continuity.
    1. Legal Standard: Illegal control or significant influence must beA conscious, sustained state, rather than isolated, sporadic incidents.
    2. Path of Refutation：

      (1) Intermittent behavior analysis: Through chronological analysis, it is demonstrated that there is a connection among the acts in question.Long-term interruption period, lacking a sustained control intention. AsCase No. 1155, Wang Zhen caseAfter a five-year hiatus in organizational activities, changes among the core members led to the determination that the original control structure had disintegrated.

      (2) Argument for the locality of consequences:Proof that the so-called "influence" is limited only toOne-time dispute or short-term project,has not extended to the overall order of the region or industry.

    (III) Rebuttal on Harmful Consequences: Denying "serious disruption of economic and social order"

    Defense Point 6: Objective Indicators Refuting the Claim That the Economic Order Has Been Severely Disrupted

    1. Legal standards“Serious disruption of economic order” must result inWidespread, long-term, irreversiblethe consequences, such as industry contraction and a deteriorating investment climate.

    2. The Path of Refutation：

    • (1) Economic data contradict this.:Retrieve the statistics department'sRegional GDP growth data, industry tax payment records, and the number of newly registered enterprises., demonstrating that no abnormal decline in economic indicators occurred during the period in question.
    • (2) Rebuttal at the micro level: Evidence demonstrates that the dispute in question has only harmed the interests of a few individual enterprises and has not triggered systemic risks such as disruptions to the industrial chain or large-scale unemployment.

    Defense Point 7: The degree of disruption to social order is insufficient.

    1. Legal standards: Must reachFailure of grassroots governance and disruption of public orderto such an extent that grassroots organizations are unable to perform their duties normally, and public activities are frequently disrupted.

    2. The Path of Refutation：

    • (1) Grassroots governance is functioning normally.:Apply to the village committee or residents’ committee for a certificate confirming that the administrative order within its jurisdiction is normal and that civil mediation and public services have not been significantly disrupted.

      (2) Public activities have not been affected.: Evidence demonstrates that cultural and commercial activities within the area continued as usual, without being canceled or restricted due to the existence of the organization in question.

    (IV) Rebuttal of relevance: sever the chain of support with other characteristics.

    Argument 8: The causal chain between the economic characteristics and the harmful consequences is broken.

    1. Legal standards：Economic strength must be used forSupports illegal control activities(Such as cultivating loyal members or eliminating competitors); if the funds are used solely for personal consumption, the economic characteristics and the harmfulness characteristics become disconnected.

    2. The Path of Refutation：

    • (1) Clarification of Funds Usage：Through bank statements and witness testimonies, it has been proven that the funds in question were used by the members.Personal extravagance or household consumption, not used for illegal control purposes such as “contending for spheres of influence or seeking protection.” AsCase No. 1157, Fu Qingyou,The equal division of profits for personal use has become a key factor in negating its economic characteristics.

      (2) Chapter Three: Cohesion：If the economic characteristics have been undermined (see the arguments in Chapter 3), then the harmfulness characteristic lacks an economic foundation, and the prosecution’s reasoning is internally inconsistent.

    Defense Point 9: The violent chain linking behavioral characteristics to harmful consequences is broken.

    1. Legal standards：Illegal control requires thatBacked by violence or the threat of violenceIf the conduct primarily consists of “soft violence” and there is no realistic possibility of it escalating into physical violence, then it cannot exert a deterrent effect.

    2. The Path of Refutation：

    • (1) The violent elements are minimal.：The evidence demonstrates that the conduct in question primarily consisted of negotiation and harassment, without any accompanying substantial acts of violence or imminent threats of violence. AsCase No. 1157, Fu QingyouThe developer’s compromise was due to project delays rather than fear of violence.

      (2) Chapter Four: CohesionIf the behavioral characteristics have been established as “individual and sporadic, lacking organizational structure” (see the arguments in Chapter 4), then the harmfulness characteristic loses its behavioral basis.

    (V) Rebuttal on the burden of proof and the standard of proof

    Defense Argument 10: The prosecution has failed to meet its statutory burden of proof regarding “illegal control.”

    1. Legal standards：The prosecution must provide evidence of the characteristic of illegal control.A complete and continuous chain of evidence, thereby demonstrating that it has met the standard of proof requiring “the facts to be clear and the evidence to be true and sufficient.”

    2. The Path of Refutation：

      • (1) Questioning the singularity of evidence：It was pointed out that the prosecution relied solely onIndividual victim statements or hearsay evidence, lacking indicators that reflect the disruption of the overall order in a region/industryObjective evidence such as documentary evidence and statistical reports。
      • （2) Inference of unlawful allegations：It was emphasized that the prosecution substituted empirical evidence with speculative inferences such as “may exert an influence” and “cannot rule out the possibility of causing damage,” thereby violating the principle of adjudication based on evidence.
    3. Legal basis system:
      • (1) Core ProvisionsArticle 294, paragraph 5, item 4 of the Criminal Law; Item 4 of Article 1 of the 2009 “Guiding Opinions” (listing eight types of illegal control).
      • (2) Standard of proofArticle 55 of the Criminal Procedure Law (Standard for Evidence Being True and Sufficient).
      • (3) Reference CasesCase No. 1159, Wang Yuna (the harmfulness must be long-term and widespread); Case No. 1160, Niu Zixian (no industry control was established); Case No. 1157, Fu Qingyou (the soft violence was insufficient to establish control).

    7. Key Points for Reviewing the Legality of Procedures and Evidence

    Image sourced from the internet.

    (I) Review of the Legality of Evidence Collection Procedures

    1. Key points of defense:The mandatory provisions of the interrogation audio and video recording system serve as a core safeguard against the collection of illegally obtained evidence.

    (1) Requirements for comprehensiveness and synchronicity：For suspects in major cases involving organizers and leaders of triad‑type organized crime, the investigative authorities must investigate…Each interrogation processConduct full-process, uninterrupted audio and video recording. Defense counsel shall focus on verifying the integrity of the video recording (whether the recording begins after the interrogation starts and whether it stops before the interrogation ends) and the consistency of its content (whether the transcript is substantially consistent with the video).

    (2) Legal Basis：Article 124 of the Criminal Procedure Law (cases that may result in life imprisonment or the death penalty shall be audio- and video-recorded); the 2009 Minutes of the Symposium (requiring full audio- and video-recording of interrogations of key criminal suspects).

    2. Key defense point: Illegality in the search and seizure procedures will result in the exclusion of physical and documentary evidence.

    (1) Review of procedural legality：Was a search warrant presented during the search? Were a seizure decision and a detailed seizure inventory provided for the confiscation? Was a witness present during the search? Did the search involve a “house‑search”‑style approach, resulting in the confiscation of lawful property unrelated to the case?

    (2) Distinction based on the nature of property：The prosecuting authority must prove the connection between the seized property and unlawful or criminal activities; it may not attribute such connections to individual members of the organization or their families.Legal property is mixed with the property involved in the case.same;

    (3) Legal Basis：Articles 138 to 145 of the Criminal Procedure Law; Articles 26 and 27 of the 2018 Guiding Opinions (which require a comprehensive investigation into property status and clearly define the scope of confiscation).

    (II)SpecialRules for challenging different types of evidence

    1. Key points of defense:The expert opinion must be reviewed to verify the source of the evidence and the qualifications of the expert.

    （1）General Review Criteria：Whether the forensic institution and the forensic expert possess the requisite statutory qualifications; whether the forensic procedure is lawful (including the commissioning formalities and the procedures for the collection and custody of evidence); whether the source of the evidence is lawful and consistent with the records of seizure and extraction.

    (2) Special Review of Asset Audit Reports：Are the accounting books and vouchers relied upon by the audit authentic and complete? Have lawful business revenues been conflated with illegal proceeds? Has the scope of the audit been unreasonably expanded?

    (3) Legal Basis：The “General Rules on Forensic Examination Procedures”; Articles 26–31 of the 2018 “Guiding Opinions” (confiscation is permitted only with respect to the portion “actually used to support organizational activities”).

    2. Key defense point: The integrity of electronic data must be ensured during the evidence-gathering process.

    (1) Review of the extraction process：Was a dedicated tool used to extract electronic data, and was an “Electronic Evidence Examination Record” prepared? Was the “hash value” verification method employed to ensure that the data has not been tampered with?

    (2) Legal Basis：Rules of the Public Security Organs on the Collection of Electronic Data in Criminal Cases.

    (III) Verbal statementsStandards for the Examination and Admissibility of Evidence

    1. Key defense argument: Adhere to the principle of “physical evidence first” and oppose basing a verdict solely on testimonial evidence.

    (1) Rule of corroboration：Verbal evidence, such as the defendant’s statements and witness testimonies, must be corroborated by objective evidence, including documentary and physical evidence, particularly in substantiating key elements such as organizational characteristics and economic characteristics.

    (2) Legal Basis：Article 55 of the Criminal Procedure Law (prohibits placing undue reliance on confessions); the 2015 “Minutes of the Symposium” requires that “all evidence in the case be considered comprehensively, and reasonable doubt must be eliminated.”

    2. Key defense argument: The testimonies of co-defendants and tainted witnesses carry weak evidentiary weight and their motivations must be rigorously examined.

    (1) Stakeholder review：Co-conspirators, in order to “earn merit” and “report others” in exchange for lenient treatment, have a strong incentive to disguise their individual crimes as organized criminal activities, exaggerate their own roles, and shift blame onto others.

    (2) Requirement for corroboration：The testimonies of co-defendants cannot corroborate each other in a self-contained manner; they must be supported by neutral evidence originating from outside the case.

    (3) Reference Cases：Case No. 1158 in the “Criminal Trial Reference,” the Liu Han case (preventing the elevation of individual crimes to organized crime).

    (IV) Specific Application of the Exclusionary Rule for Illegally Obtained Evidence

    1. Key defense argument: If the act of illegally obtaining evidence meets the threshold of “causing the defendant to suffer unbearable pain,” such evidence shall be excluded.

    (1) Determination of torture during interrogation：This includes physical torture such as beatings, the unlawful use of restraints, and methods like freezing, starvation, and exposure to extreme heat or sunlight, as well as psychological torture involving threats, enticement, and deception; it is not necessary for such practices to leave visible injuries.

    (2) Limits of Fatigue Interrogation:Continuous interrogation exceeding 24 hours, or cumulative interrogation lasting an extended period without ensuring adequate rest (e.g., less than one hour of rest every eight hours), may be deemed to constitute disguised torture.

    (3) Legal Basis：Article 56 of the Criminal Procedure Law; Article 95 of the Interpretations of the Criminal Procedure Law (the “standard of unbearable suffering”).

    2. Key defense point: To request the exclusion of illegally obtained evidence, specific leads must be provided; the burden of proof rests with the prosecution.

    (1) Startup conditions：The defense counsel shall specify the identities of the individuals involved in the illegal collection of evidence, as well as the time, place, and manner thereof. The court shall investigate any instances where there is a reasonable possibility of illegal evidence gathering.

    (2) Burden of proof：The prosecution must demonstrate the legality of evidence collection through interrogation transcripts, audio and video recordings, and statements from investigators; if such proof is lacking, it shall be presumed that the evidence was obtained unlawfully.

    (3) Legal Basis：Articles 58 to 60 of the Criminal Procedure Law (provision of leads and allocation of the burden of proof).

    (V) Legality review of technical investigation measures

    1. Key defense point: Evidence obtained through technical surveillance must be subject to strict review of the approval procedures and the scope of evidence collection.

    (1) Legality of the procedure：Approval must be obtained from the head of a public security organ at or above the prefectural-level city; such measures may only be applied in cases involving serious crimes. Evidence obtained without proper authorization or beyond the scope of authorized investigation shall be excluded.

    (2) Guarantee of the right to challenge evidence：The court shall conduct cross-examination; where necessary, the trial may be held in camera, but the defense counsel’s right to cross-examine shall not be deprived.

    (3) Legal BasisArticles 150 to 154 of the Criminal Procedure Law (approval procedures for technical surveillance and rules on the use of evidence).

    Summary:The review of the legality of procedures and evidence is the cornerstone of defense in organized crime cases. Defense counsel should systematically review whether the evidence‑gathering procedures comply with statutory requirements, focus on challenging the reliability of testimonial evidence, and actively invoke the exclusionary rule for illegally obtained evidence, thereby ensuring that the trial is based on a lawful and sufficient evidentiary foundation.

    Please stay tuned for “Zhiheng Clarifies | A Comprehensive Analysis of Key Defense Points in Cases Involving Crimes Committed by Triad‑Like Organizations (Part II)”

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    Zhiheng Clarifies | A Comprehensive Analysis of Key Defense Strategies in Cases Involving Crimes Committed by Triad‑Like Organizations (Part I)

    Zhiheng · Introduction