The following is general information on Chinese criminal procedure, not legal advice for any specific case. If you or someone you know has been detained in China, contact a qualified PRC criminal lawyer immediately — timing is decisive.
What foreign nationals face under Chinese criminal law
China's Criminal Procedure Law (刑事诉讼法, amended most recently in 2018) applies to foreign nationals on the same footing as Chinese citizens, with a few additional procedural layers such as consular notification. The principle of equality before the law is the baseline: a foreigner accused of a crime in China is tried under Chinese law in a Chinese court, and the substantive outcomes — including sentences — follow the same statutes. The practical difference for a foreign defendant is procedural: language, the involvement of the consulate, and often the distance of family and home-country counsel from the process.
The two kinds of detention — and why the difference matters
The first thing to clarify when someone is "detained" in China is which kind of detention it is:
- Administrative (police) detention under the Public Security Administration Punishments Law (治安管理处罚法) — a non-criminal penalty, generally up to 15 days for a single offense and up to 20 days combined for multiple offenses. It is common for minor matters such as visa violations, minor assault or disorderly conduct, and it does not produce a criminal record in the same way a criminal conviction does.
- Criminal detention (拘留) and arrest (逮捕) under the Criminal Procedure Law — the coercive measures used in a criminal investigation. This is the serious track, and it is where the famous time limits come in.
The golden 37 days
In a criminal case, the single most important number for the family of a detainee is 37. After criminal detention, the police generally have up to 30 days to decide whether to ask the procuratorate (the people's procuratorate) to approve arrest, and the procuratorate then has up to 7 days to decide. Together, the 30 days plus 7 days is the "golden 37 days" (黄金37天) — the window in which the case is most fluid, evidence is still being gathered, and a defense lawyer can most effectively argue for release or for bail pending trial. Once a formal arrest is approved, the case hardens and the person is much harder to get out before trial.
The rights that apply from the first hour
- The right to counsel — since the 2012 amendment to the Criminal Procedure Law, a suspect has the right to appoint a defense lawyer from the first interrogation or the first coercive measure, and the lawyer may meet the client without the case being monitored. (A narrow exception requires approval for meetings in a small category of national-security and terrorist-activity cases.)
- The right to an interpreter — at every stage, a suspect who does not speak Chinese is entitled to an interpreter, and interrogation records are to be provided in a language the suspect understands.
- Consular notification — under the Criminal Procedure Law and China's obligations under the Vienna Convention on Consular Relations, the authorities are to notify the relevant consulate of a foreign national's detention, arrest or other compulsory measures within a set time, unless the case involves state secrets.
- Bail pending trial (取保候审) — release on a guarantor or a guarantee deposit while the case proceeds, available in specified circumstances, including cases where the suspect is unlikely to flee and the offense is not serious.
How a case moves: stage by stage
Chinese criminal procedure runs through three principal stages. The investigation stage is led by the public security organ (or the anti-smuggling, security or other specialized authorities). The prosecution stage is led by the people's procuratorate, which reviews the evidence and decides whether to prosecute. The trial stage is before the people's court. At each stage a defense lawyer has a role: meeting the client, reviewing the file after the case moves to prosecution, submitting opinions, and representing the accused at trial. For an overview of what to do in the first hours and days, see Facing a Legal Matter in China? What to Do First, and for how a trial itself unfolds, The Process and Time Required for Trials in Chinese Courts.
Offenses commonly seen with foreign defendants
Foreign nationals most often appear in Chinese criminal cases for a predictable set of charges: drug offenses, telecom and online fraud, intellectual-property crimes, illegal employment and visa overstays, and, in a smaller number of serious cases, offenses against state security. Sentencing follows the Criminal Law, and a number of serious offenses carry heavy maximum penalties — including, for the most serious crimes, the death penalty, which under Chinese law is subject to mandatory review by the Supreme People's Court.
What a family should do immediately
- Engage a PRC criminal lawyer at once. The lawyer's early access to the detainee and to the case file is the single most valuable step.
- Confirm which detention the person is in — administrative or criminal — because the timelines and remedies are different.
- Contact the consulate so consular notification and access run in parallel with the lawyer's work.
- Preserve the record — any documents, messages, employment and visa records that may be relevant to the case.
For a specific detention, contact our criminal defense team — we act for foreign nationals across China and can move on the case the same day.
A foreign national detained in China?
Our criminal defense lawyers respond to detention cases immediately — free initial consultation.
Get a Free Consultation