The Supreme People’s Court’s new regulations on the intersection of civil and criminal law have taken effect, but how to implement these rules remains one of the most challenging issues in judicial practice. On October 25, the Center for Research on the Intersection of Criminal and Civil Law at China University of Political Science and Law, the Center for Civil and Commercial Litigation Research at King&Capital Law Firm, and the Center for Research on Defense and Prevention of Enterprise-Related Crimes jointly hosted a forum in Beijing titled “Opportunities and Challenges for Enterprise Cases Involving Criminal Offenses Under the New Regulations on the Intersection of Civil and Criminal Law.” The forum focused on the protection of corporate assets in criminal cases from the dual perspectives of civil remedies and criminal defense and prevention, analyzing the logical framework and application challenges of the new regulations.
Tian Wenchang, Honorary Director of King&Capital Law Firm and Advisor to the Criminal Law Committee of the All-China Lawyers Association; Wang Zhiyuan, Dean of the School of Criminal Justice at China University of Political Science and Law; Shi Fang, Professor at the School of Criminal Justice and Director of the Institute of Criminal Law at China University of Political Science and Law; Li Xuehui, Vice President of the Lawyers’ Law Research Association of the China Law Society and Deputy Secretary of the Party Committee at Beijing Anli Law Firm; Zhu Yonghui, Director of King&Capital Law Firm; Chu Changzhi, Managing Partner and CEO of King&Capital Law Firm; Men Jinling, Senior Partner at King&Capital Law Firm and Advisor to the King&Capital Research Center for Corporate Crime Defense and Prevention; Gong Piguo, Senior Partner at King&Capital Law Firm and Director of the King&Capital Civil and Commercial Litigation Research Center; Xu Ying, Senior Partner at King&Capital Law Firm and Director of the King&Capital Research Center for Corporate Crime Defense and Prevention; Weng Xiaoping, Senior Partner at King&Capital Law Firm and Executive Director of the King&Capital Research Center for Defense and Prevention of Corporate-Related Crimes, as well as nearly 100 corporate legal counsel and distinguished attorneys attended the event. The conference was chaired by Guo Xinpeng, Deputy Director of the King&Capital Civil and Commercial Litigation Research Center, and Zhu Yalin, Senior Partner at King&Capital Law Firm.
Guest Speeches
In his opening remarks at the forum, Wang Zhiyuan, Dean of the School of Criminal Justice at China University of Political Science and Law, reviewed the continuously deepening cooperation between the university and King&Capital Law Firm—in May of this year, the two parties jointly established a teaching and research base for the defense of official misconduct cases, and this forum marks another step forward in their collaboration. In addition, both parties are actively exploring new pilot teaching models, where faculty members teach theory and lawyers guide practical training, aiming to address the long-standing disconnect between legal education and judicial practice. Dean Wang Zhiyuan expressed his hope that this event would serve as a starting point to promote collaborative training between the university and the firm, providing mutual support for cultivating talent in the rule of law.
Attorney Zhu Yonghui, Director of King&Capital Law Firm, centered his remarks on three key points. First, the timing of the forum was highly significant: the Supreme People’s Court’s new regulations on the intersection of civil and criminal law took effect on September 22, marking exactly one month prior to the forum; the full implementation of these regulations still requires legal professionals to collectively analyze and interpret their underlying principles; Second, King&Capital Law Firm has long focused on the intersection of civil and criminal law; its founder, Tian Wenchang, called for in-depth research on this topic early in his career. The joint presentation by the Center for Civil and Commercial Litigation Research and the Center for Defense Against Business-Related Crimes aims to achieve “two sides of the same coin” in research by addressing both civil remedies and criminal defense and prevention; Third, we hope the forum will seek consensus through lively debate, identify practical solutions for implementing the new regulations, and shift the focus of rights remedies for enterprises facing criminal charges from the “periphery” to the “center.”
Attorney Li Xuehui, Vice President of the China Law Society’s Research Association on Lawyers’ Law and Deputy Secretary of the Party Committee at Beijing Anli Law Firm, shared his insights on “fulfilling three roles”: First, embrace the role of a student—as laws and regulations are frequently enacted, amended, or repealed, lawyers should thoroughly study both theory and practice and commit to lifelong learning; second, embrace the role of an alumnus—express gratitude for the education received from one’s alma mater, support one another’s success, and give back to society and the alma mater; third, fulfill the role of a lawyer; while professional risks remain for dispute resolution lawyers—particularly criminal defense attorneys—they must strictly adhere to professional ethics.
Morning Session | Keynote Speeches and Thematic Presentations
Tian Wenchang, Honorary Director of King&Capital Law Firm and Advisor to the Criminal Law Committee of the All-China Lawyers Association, delivered a keynote speech titled “Judicial Philosophy and the Unification of Legal Order in Cases Involving the Intersection of Civil and Criminal Law.” Attorney Tian Wenchang highlighted two key significance of the new judicial interpretation: it corrects the phenomenon of “prioritizing criminal over civil proceedings” and enhances the philosophy and methodology of judicial interpretation; it represents a formal correction of the mindset that has persisted for over thirty years—the “criminal first, civil later” approach. Attorney Tian Wenchang commended the new regulations for establishing rules on the parallel processing of civil and criminal cases, the “proviso” regarding the res judicata effect of criminal judgments, and the determination of corporate liability. At the same time, he pointed out that issues such as insufficient emphasis on situations where civil proceedings precede criminal proceedings and the overly narrow scope of civil claims in criminal proceedings still require further study.
Professor Shi Fang, a professor at the School of Criminal Justice at China University of Political Science and Law and director of the Institute of Criminal Law, interpreted the new regulations from a legal theory perspective and delivered a keynote presentation titled “Legal Interpretation and Practical Application Challenges of the New Regulations on the Intersection of Civil and Criminal Law.” Professor Shi Fang summarized the legal rationale of the new regulations in three points: First, the dual separation of criminal and civil legal assessments—Article 17 establishes that the validity of contracts involving criminal offenses shall be determined in accordance with the Civil Code, affirming that contract validity does not conflict with combating crime; a blanket denial would instead undermine security interests; Second, there is a functional differentiation of procedures: the parallel handling of civil and criminal matters has become the principle, while the “criminal proceedings first, civil proceedings later” approach has been relegated to the exception. Article 3 lists six categories of related circumstances that should be accepted for adjudication, echoing his 2015 advocacy for the parallel handling of criminal and civil matters in cases involving fundraising crimes; Third, regarding agency rules, the doctrine of “abuse of agency authority with subsequent ratification” replaces the doctrine of “invalidity due to malicious collusion,” thereby balancing the transactional security of the counterparty with the principal’s freedom of contract. He also raised issues regarding the protection of bona fide third parties and the suspension of enforcement proceedings pending resolution.
Attorney Gong Piguo, Director of the King&Capital Civil and Commercial Law Research Center, presented on the topic “Protection of Corporate Assets Involved in Criminal Cases Under the New Regulations.” Beginning with the requirement set forth in Article 1 of the new regulations—namely, “to foster a business environment governed by the rule of law”—Attorney Gong Piguo pointed out that private enterprises are the greatest victims in judicial practices involving the intersection of civil and criminal law. His presentation centered on three practical dimensions: First, the validity of contracts involving criminal offenses—Article 17 establishes that contracts related to crimes are not necessarily invalid, and criminal law does not directly assess the validity of civil acts; Second, procedural defenses—Article 5 explicitly states that civil proceedings may not be terminated based on a criminal case filing receipt; furthermore, the initiation of a criminal case during the adjudication of a civil case requires notification from the procuratorate or approval from the head of a public security organ at the provincial level or above; third, the separation of individual crimes from corporate assets—by filing applications such as objections to enforcement to lift asset freezes, with a focus on reviewing the duration of authorization, management of official seals, and the appearance of transactions, arguing that individual crimes do not extend to the enterprise and protecting third-party assets unrelated to the crime.
Attorney Liu Hongbei, Deputy Director of the King&Capital Civil and Commercial Litigation Research Center and Director of the Civil-Criminal Intersection Research Association at the Civil and Commercial Center, delivered a speech on “The Scope of Compensation and Selection of Remedial Pathways in Civil-Criminal Intersection Cases.” Attorney Liu Hongbei believes that the highlight of the new regulations lies in restructuring the pathways for relief by distinguishing between “identical facts” and “related facts”: for identical facts, the matter is generally handled through confiscation and restitution or through civil proceedings attached to criminal proceedings; for related facts, civil and criminal proceedings are conducted in parallel, and separate lawsuits may be filed against liable parties such as guarantors or entities. Regarding the scope of compensation, he noted that in personal injury cases, civil actions brought in conjunction with criminal proceedings generally do not support claims for “two types of fines” or compensation for emotional distress; however, subsequently incurred rehabilitation and medical expenses may be claimed separately. In property-related cases, the focus is primarily on recovering the principal amount and ill-gotten gains, and any funds already recovered must be deducted in the civil judgment to avoid double compensation. Attorney Liu Hongbei emphasized that there is no absolute superiority or inferiority among these approaches; they should be weighed comprehensively in light of the type of loss, financial circumstances, and liable parties.
Morning Session | Roundtable Discussion
The morning roundtable discussion focused on the theme “Procedural Boundaries and Legal Remedies for Corporate Cases Involving Criminal Offenses from a Civil Litigation Perspective.” Attorney Li Qi, Director of the Listed Companies Research Group at the King&Capital Center for Civil and Commercial Law, presented on “The Application and Boundaries of Rules Governing Concurrent Civil and Criminal Proceedings”; Attorney Zhu Yuanxiao, Deputy Director of the King&Capital Center for Civil and Commercial Law and Deputy Director of the Center’s Corporate Practice Research Group, spoke on “The Boundaries Between Contract Validity for Corporate Personnel and Corporate Liability”; Attorney Jiang Yongqian, Partner at the Shanghai Branch of King&Capital Law Firm and Deputy Director of the Financial Litigation Research Group at the Civil and Commercial Law Research Center, presented “The Application of Guarantor Rules in Criminal Guarantee Disputes”; Attorney Yu Wen Hongyan, Senior Partner at King&Capital Law Firm, presented “The Legal Application of ‘Distinguishing Between Family and Corporate Ownership’ from a Civil-Criminal Intersection Perspective”; Attorney Li Wei, Deputy Secretary-General of the King&Capital Research Center for Defense and Prevention of Enterprise-Related Crimes, presented on “Diverse Pathways for Redressing Losses Suffered by Criminal Victims in Crimes Involving Enterprise Personnel,” and Attorney Wang Xiaoguang, Deputy Director of the King&Capital Civil and Commercial Law Research Center and Director of the Center’s Corporate Practice Research Group, presented on “Handling Objections by Third Parties to Property Subject to Criminal Disposition.” Together, they engaged in professional discussions centered on these topics.
Afternoon Session | Keynote Speeches and Thematic Presentations
Attorney Men Jinling, Senior Partner at King&Capital Law Firm and Advisor to the Kyoto Research Center for Defense and Prevention of Business-Related Crimes, delivered a presentation titled “Identical Facts, Basic Facts, and Essential Facts,” pointing out that the implementation of the new regulations hinges on the core criterion of “identical facts.” Attorney Men Jinling noted that the new regulations are defined by “the same parties and the same basic facts,” with the dispute centered on “basic facts.” She therefore advocated replacing this term with “elemental facts”—that is, the facts necessary to trigger the legal consequences of the elements of a crime—as this approach carries greater normative weight. Elemental facts are determined by the scope covered by the elements of the crime, and their number varies depending on the specific charge and individual case. Attorney Men Jinling recommended that in criminal cases, a civil law perspective should be consistently applied when assessing the validity of contracts and determining standards of proof. She suggested that, prior to the filing of a criminal case, parties should be guided to initiate civil litigation first, thereby maximizing the protection of their legitimate rights and interests.
Attorney Weng Xiaoping, Senior Partner at King&Capital Law Firm and Executive Director of the Kyoto Research Center for Corporate Crime Defense and Prevention, delivered a presentation titled “Shifts in Judicial Philosophy and Practical Responses as Seen Through the New Regulations.” Attorney Weng Xiaoping argued that the overlap does not imply an either-or choice in substance; rather, the focus lies on procedural coordination and the separation of facts: when to proceed in parallel, when to separate, and who should yield to whom. The new regulations reflect four key shifts: a transition from “criminal proceedings first, civil proceedings later” to the parallel conduct of civil and criminal proceedings; parallel procedures with relatively independent legal effects; the res judicata effect of criminal judgments is no longer absolute; and an acquittal in criminal proceedings does not equate to exemption from civil liability. Attorney Weng Xiaoping recommended that, under the new regulations, attorneys should proactively learn how to assess identical facts and make effective use of the written notification and correction mechanism, while criminal defense attorneys must possess the ability to handle both civil and criminal matters simultaneously.
Attorney Nie Sufang, Director of the Third Criminal Practice Department at King&Capital Law Firm and Deputy Director of the King&Capital Research Center for Corporate Crime Defense and Prevention, delivered a presentation titled “The Double-Edged Sword Effect of Rules on Mutual Recognition of Evidence in Criminal-Civil Intersection Cases and Defense Strategies.” Attorney Nie Sufang pointed out that in practice, criminal proceedings exert a strong influence on civil proceedings, whereas civil proceedings rarely affect criminal proceedings; differences in standards of proof and procedures are easily exploited in one direction. The mutual recognition rules encompass three key aspects: limited mutual recognition—that is, one-way acceptance—where facts are acknowledged rather than evidence, and such acknowledgment is subject to rebuttal; independent review, whereby testimonial evidence not used as the basis for a criminal conviction may be admitted in civil proceedings following cross-examination, and facts not established in criminal proceedings due to failure to meet evidentiary standards may be independently established in civil proceedings; and conflict resolution, specifically through the notification and referral procedure. Attorney Nie Sufang advocates adhering strictly to criminal standards of proof, distinguishing between facts and evidence, leveraging the testimony of civil witnesses to support criminal defense, and managing civil risks while mounting a not-guilty defense.
Attorney Zhang Xiaofeng, Deputy Director of the King&Capital Research Center for Corporate Crime Defense and Prevention and Criminal Defense Skills Training Instructor at Northwest University of Political Science and Law, discussed “The Boundaries of ‘Piercing the Corporate Veil’ Analysis.” Attorney Zhang Xiaofeng pointed out that the concept of “piercing the corporate veil” is widely applied in both civil and criminal contexts—such as in cases involving bribery through loans, loan fraud, financing-based trade, fraudulent litigation, and the lifting of the corporate veil—but that there are no clear standards defining its boundaries. Attorney Zhang Xiaofeng proposed four criteria for assessment: First, it must comply with the principle of legality in criminal law and must not be arbitrarily expanded; for example, professional claims for compensation in anti-counterfeiting cases do not constitute extortion. Second, it must not deviate from the original intent of the legislation; for instance, when the government begins construction before completing bidding procedures, it should not be deemed a crime of bid-rigging since it does not infringe upon the interests of other bidders. Third, where actions comply with civil or administrative laws or are supported by existing, effective civil judgments or mediation agreements, they must not be arbitrarily treated as criminal acts through “piercing the corporate veil”; fourth, the determination to “pierce the corporate veil” must be supported by sufficient and credible evidence; where evidence is insufficient, the determination should be made in favor of the defendant. Attorney Zhang Xiaofeng emphasized that criminal law generally takes a cautious approach to “piercing the corporate veil.”
Afternoon Session | Roundtable Discussion
The afternoon session featured a roundtable discussion among guests on the theme “Rules for Determining Corporate Criminal Cases and Practical Considerations Under New Regulations on the Intersection of Civil and Criminal Law.” Attorney Lu Xianghui, Partner at the Shanghai Office of King&Capital Law Firm and Director of the Shanghai Branch of the King&Capital Research Center for Corporate Crime Defense and Prevention, presented on “A Dual Perspective on the Standard of Proof in Corporate Cases Involving the Intersection of Civil and Criminal Law,” Attorney Liu Yang, Senior Partner at King&Capital Law Firm and Deputy Director of the King&Capital Research Center for Corporate Crime Defense and Prevention, presented “The Conversion and Application of Criminal Evidence in Civil Litigation”; Attorney Zhou Wenda, Partner at King&Capital Law Firm and Deputy Secretary-General of the King&Capital Research Center for Corporate Crime Defense and Prevention, presented “Effective Defense Arguments for Illegal Fund-Raising Crimes Under the New Regulations on the Intersection of Civil and Criminal Law”; Attorney Li Mingzhen, Deputy Secretary-General of the King&Capital Research Center for the Defense and Prevention of Corporate Crimes, presented “Reflections on the Enforcement of Criminal Referrals and Res Judicata in Civil Proceedings Under New Regulations on the Intersection of Civil and Criminal Law”; and Attorney Liu Jihui, Partner at King&Capital Law Firm and Deputy Secretary-General of the King&Capital Research Center for the Defense and Prevention of Corporate Crimes, presented “Judicial Determination of Identical and Related Facts,” as they engaged in professional discussions centered on the theme.
Attorney Xu Ying, Director of the King&Capital Research Center for Corporate Crime Defense and Prevention and Practical Guidance Mentor at Northwest University of Political Science and Law, provided a summary and commentary titled “One Main Thread, Four Levels, and Three Outlooks.” The central thread is that the new regulations reshape the adjudication rules for cases involving the intersection of civil and criminal law through 24 articles—few in number but of great significance. The afternoon presenters explored the topic in a progressive manner across four levels: conceptually, shifting from “criminal proceedings first, civil proceedings later” to “concurrent civil and criminal proceedings,” with parallel procedures and independent legal effects; in terms of rules, the focus is on the dual requirements of “person plus basic facts” regarding “the same set of facts,” though the new regulations do not provide clear standards, which may become a major point of contention in future cases; in terms of methodology, the “penetrative review” approach is affirmed, while a warning is issued that the evidentiary standard for verbal evidence is set too low; in terms of practice, defense strategies in illegal fundraising cases and enforcement proceedings emphasize that special provisions take precedence and that the res judicata effect in civil cases should not be easily overturned. Attorney Xu Ying further pointed out that the risk allocation under the new regulations is one-sidedly skewed, providing insufficient protection for bona fide third parties and defrauded gratuitous guarantors. She also proposed three outlooks: ensuring that case analysis precedes the formulation of rules, prioritizing risk prevention and control over defense strategies, and making dialogue between theory and practice the norm.
Closing Remarks
At the conclusion of the event, Chu Changzhi, Managing Partner and CEO of King&Capital Law Firm, delivered the closing remarks. Chu Changzhi emphasized that the core of the new regulations is “predictability,” which will bring about three major changes: in terms of competency structure, familiarity with both criminal and civil law will become a fundamental skill for attorneys; the focus of services will shift toward transaction structuring and preemptive asset segregation; in terms of service delivery, providing comprehensive solutions. Mr. Chu expressed three expectations: transforming discussions into research, research into capabilities, and capabilities into standards. He concluded by stating, “It is not about making cases more complex, but about making the rules clearer.”
The new regulations usher in a new chapter, integrating civil and criminal law. In the future, King&Capital Law Firm looks forward to joining hands with all sectors to embark on a new journey toward a business environment governed by the rule of law.
