(Adopted at the Second Session of the Fifth National People's
Congress on July 1, 1979, promulgated by Order No.6 of the Chairman
of the Standing Committee of the National People's Congress on July
7, 1979 and effective as of January 1, 1980; amended in according
with the Decision on Revising the Criminal Procedure Law of the
People's Republic of China adopted at the Forth Session of the
Eighth National People's Congress on March 17, 1996)
Contents
Part One???? General
Provisions
Chapter I??? Aim and Basic
Principles
Chapter II?? Jurisdiction
Chapter III?? Withdrawal
Chapter IV?? Defence and
Representation
Chapter V??? Evidence
Chapter VI?? Compulsory Measures
Chapter VII?? Incidental Civil
Actions
Chapter VIII? Time Periods and Service
Chapter IX?? Other Provisions
Part Two???? Filing a Case,
Investigation, and Initiation of Public Prosecution
Chapter I??? Filing a Case
Chapter II?? Investigation
Section 1? General Provisions
Section 2? Interrogation of the Criminal
Suspect
Section 3? Questioning of the
Witnesses
Section 4? Inquest and Examination
Section 5? Search
Section 6? Seizure of Material Evidence and
Documentary Evidence
Section 7? Expert Evaluation
Section 8? Wanted Orders
Section 9? Conclusion of Investigation
Section 10 Investigation of Cases Directly Accepted by
the People's Procuratorates
Chapter III? Initiation of Public
Prosecution
Part Three?? Trial
Chapter I??? Trial
Organizations
Chapter II?? Procedure of First
Instance
? Section 1? Cases of Public
Prosecution
? Section 2? Cases of Private
Prosecution
? Section 3? Summary
Procedure?
Chapter III? Procedure of Second
Instance
Chapter IV?? Procedure for Review of Death
Sentences
Chapter V??? Procedure for Trial
Supervision
Part Four??? Execution
Supplementary Provisions
Part One
General Provisions
Chapter I
Aim and Basic Principles
Article 1? This Law is enacted in accordance with the
Constitution and for the purpose of ensuring correct enforcement of
the Criminal Law, punishing crimes, protecting the people,
safeguarding State and public security and maintaining socialist
public order.
Article 2? The aim of the Criminal Procedure Law of the
People's Republic of China is: to ensure accurate and timely
ascertainment of? facts about crimes, correct application of
law, punishment of criminals and protection of the innocent against
being investigated for criminal responsibility; to enhance the
citizens' awareness of the need to abide by? law and to fight
vigorously against criminal acts in order to? safeguard?
the socialist legal system, to protect the citizens' personal
rights; their property rights, democratic rights and other rights;
and to guarantee smooth progress of the cause of socialist
development.
Article 3? The public security organs shall be responsible
for investigation, detention, execution of arrests and preliminary
inquiry in criminal cases. The People's Procuratorates shall be
responsible for procuratorial work, authorizing approval of
arrests, conducting investigation and initiating public prosecution
of cases directly accepted by the procuratorial organs. The
People's Courts shall be responsible for adjudication. Except as
otherwise provided by law, no other organs, organizations or
individuals shall have the authority? to exercise such
powers.
In conducting criminal proceedings, the People's Courts, the
People's Procuratorates and the public security organs must
strictly observe this Law and any relevant stipulations of other
laws.
Article 4? State security organs shall, in accordance with
law, handle? cases of crimes that endanger State security,
performing the same functions and powers as the public security
organs.
Article 5? The People's Courts shall exercise judicial
power independently in accordance with law and the People's
Procuratorates shall exercise procuratorial power independently in
accordance with law, and they shall be free from interference by
any administrative organ, public organization or individual.
Article 6? In conducting criminal proceedings, the People's
Courts, the People's Procuratorates and the public security organs
must rely on the masses, base themselves on facts and take?
law as the criterion. The law applies equally to all citizens and
no privilege whatsoever is permissible before? law.
Article 7? In conducting criminal proceedings, the People's
Courts, the People's Procuratorates and the public security organs
shall divide responsibilities, coordinate their efforts and
check? each other to ensure the correct and effective
enforcement of? law.
Article 8? The People's Procuratorates shall, in accordance
with law, exercise legal supervision over criminal proceedings.
Article 9? Citizens of all nationalities shall have the
right to use their native? spoken and written languages in
court proceedings.? The People's Courts, the People's
Procuratorates and the public security organs shall provide
translations for any party to the court proceedings who is not
familiar with the? spoken or written language commonly?
used in the locality.??
Where people? of a minority nationality live in a
concentrated community or where a number of nationalities live
together in one area, court hearings shall be conducted in the
spoken language commonly used in the locality, and judgments,
notices and other documents shall be issued in the? written
language commonly used in the locality.?
Article 10? In trying? cases, the People's Courts
shall apply the system whereby the? second instance is
final.
Article 11? Cases in the People's Courts shall be heard in
public, unless otherwise provided by this Law.? A defendant
shall have the right to defence, and the People's Courts?
shall have the duty to guarantee his defence.
Article 12? No person shall be found guilty without being
judged as such by a People's Court according to law.
Article 13? In trying cases, the People's Courts shall
apply the system of people's assessors taking part in trials in
accordance with this Law.
Article 14? The People's Courts, the People's
Procuratorates and the public security organs shall safeguard the
procedural rights to which participants in? proceedings are
entitled? according to law.
In cases where a minor under the age of 18 commits a crime, the
criminal suspect and the legal representative of the defendant may
be notified to be present at the time of interrogation and
trial.
Participants in proceedings shall have the right to file charges
against judges, procurators and investigators whose acts infringe
on their citizen's procedural rights or subject their persons to
indignities.?
Article 15? In any of the following circumstances, no
criminal responsibility shall be investigated; if investigation has
already been undertaken, the case shall be dismissed, or
prosecution shall not be initiated, or the handling shall be
terminated, or innocence shall be declared:
(1)? if an act is? obviously? minor,?
causing no serious harm, and? is therefore not deemed a
crime;
(2)? if the limitation? period for criminal
prosecution has expired;
(3)? if an exemption of criminal punishment has been
granted in a? special amnesty decree;
(4)? if the crime is to be handled only upon complaint
according to the Criminal Law, but there has been no complaint or
the complaint has been withdrawn;
(5)? if the criminal suspect or defendant is deceased;
or
(6)? if other laws? provide an? exemption from
investigation of criminal responsibility.
Article 16? Provisions of this Law shall apply to
foreigners who commit crimes for which criminal responsibility
should be investigated.
If? foreigners with diplomatic privileges and
immunities? commit crimes for which criminal responsibility
should be investigated, those cases shall be resolved through
diplomatic channels.
Article 17? In accordance with the international treaties
which the People's Republic of China has concluded or acceded to or
on the principle of reciprocity,? the judicial organs of China
and that of other countries? may request? judicial
assistance from each other? in criminal affairs.
Chapter II
Jurisdiction
Article 18? Investigation in criminal cases shall be
conducted by the public security organs, except as otherwise
provided by law.
Crimes of embezzlement and bribery, crimes of dereliction of
duty committed by State functionaries, and crimes involving
violations of a citizen's personal rights such as illegal
detention, extortion of confessions by torture, retaliation,
frame-up and illegal search and crimes involving infringement of a
citizen's democratic rights -- committed by State functionaries by
taking advantage of their functions and powers -- shall be placed
on file for investigation by the People's Procuratorates. If cases
involving other grave crimes committed by State functionaries by
taking advantage of their functions and powers need be handled
directly by the People's Procuratorates, they may be placed on file
for investigation by the? People's Procuratorates upon
decision by the People's Procuratorates at or above the provincial
level.
Cases of private prosecution shall be handled directly by the
People's Courts.
Article 19? The Primary People's Courts shall have
jurisdiction as courts of first instance over ordinary criminal
cases; however,? those cases which fall under the jurisdiction
of the People's Courts? at higher levels as stipulated by this
Law shall be exceptions.
Article 20? The Intermediate People's Courts shall have
jurisdiction as courts of first instance over the following
criminal cases:
(1)? counterrevolutionary cases and cases endangering State
security;
(2)? ordinary criminal cases punishable by life
imprisonment or the death penalty; and?
(3)? criminal cases in which the offenders are
foreigners.
Article 21 The Higher People's Courts shall have jurisdiction as
courts of first instance over major criminal cases that pertain to
an entire province (or autonomous region, or municipality directly
under the Central Government).
Article 22 The Supreme People's Court shall have
jurisdiction? as the court of first instance over major
criminal cases that pertain to the whole nation.
Article 23? When necessary, People's Courts at higher
levels may try criminal cases over which People's Courts at lower
levels have jurisdiction as courts of first instance; If a People's
Court at a lower level considers the circumstances of a criminal
case in the first instance to be major or complex and to
necessitate a trial by a People's Court at a higher level, it may
request that the case be transferred to the People's Court at the
next higher level for trial.
Article 24? A criminal case shall be under the jurisdiction
of the People's Court in the place where the crime was
committed.? If it is more appropriate for the case to be tried
by the People's Court in the place where the defendant?
resides, then that court may have jurisdiction over the case.
Article 25? When two or more People's Courts at the same
level have jurisdiction over a case, it shall be tried by the
People's Court that first accepted it.? When necessary the
case may be transferred for trial to the People's Court in the
principal place where the crime was committed.
Article 26? A People's Court at a higher level may instruct
a People's Court at a lower level to try a case over which
jurisdiction is unclear and may also instruct a People's Court at a
lower level to transfer the case to another People's Court for
trial.
Article 27? The jurisdiction over cases in special People's
Courts shall be stipulated separately.
Chapter III
Withdrawal
Article 28? In any of the following situations, a member of
the judicial, procuratorial or investigatory personnel shall
voluntarily withdraw,? and the parties to the case and their
legal representatives shall?? have the right to demand
his withdrawal:???
(1) if he is a party or a near? relative of a party to the
case;
(2) if he? or a? near? relative of his has an
interest in the case;
(3) if he has served as a witness, expert witness,?
defender or agent ad litem in the current case ; or
(4) if he has any other relations with a? party to the case
that could affect the impartial handling of the case.
Article 29? Judges, procurators or investigators shall not
accept invitations to dinner or presents from the parties to a
case? or the persons entrusted by the parties and shall not in
violation of regulations meet with the parties to a case or the
persons entrusted by the parties.
Any judge, procurator or investigator who violates the
provisions in the preceding paragraph shall be investigated for
legal responsibility. The parties to the case and their legal
representatives shall? have the right to request him to
withdraw.
Article 30? The withdrawal of a judge, procurator and
investigator? shall be determined respectively by the
president of the? court, the chief procurator, and the head of
a public security organ; the withdrawal of the president of the
court shall be determined by the court's judicial committee; and
the withdrawal of the chief procurator or the head of a public
security organ shall be determined by the procuratorial committee
of the People's Procuratorate at the corresponding? level.
An investigator may not suspend investigation of a case before a
decision is made on his withdrawal.
If a decision has been made to reject his application for
withdrawal, the party or his legal representative may apply
for? reconsideration once.
Article 31? The provisions of Articles 28, 29 and 30 of
this Law shall also apply to court? clerks, interpreters and
expert witnesses.
Chapter IV
Defence and Representation
Article 32? In addition to exercising the right to defend
himself, a criminal suspect or a defendant may entrust one or two
persons as his defenders. The following persons may be entrusted as
defenders:
(1) lawyers;
(2) persons recommended by a public organization or the unit to
which the criminal suspect or the defendant belongs; and
(3) guardians or relatives and friends of the criminal suspect
or the defendant.
Persons who are under criminal punishment or whose personal
freedom is deprived of or restricted according to law shall not
serve as defenders.
Article 33? A criminal suspect in a case of public
prosecution shall have the right to entrust persons as his
defenders from the date on which the case is transferred for
examination before prosecution. A defendant in a case of private
prosecution shall have the right to entrust persons as his
defenders at any time.
A People's Procuratorate shall, within three days from the date
of receiving the file record of a case transferred for examination
before prosecution, inform the criminal suspect that he has the
right to entrust persons as his defenders. A People's Court shall,
within three days from the date of? accepting a case of
private prosecution, inform the defendant that he has the right to
entrust persons as his defenders.
Article 34? If a case is to be brought in court by a public
prosecutor and the defendant involved has not entrusted anyone to
be his defender due to financial difficulties or other reasons, the
People's Court may designate a lawyer that is obligated to provide
legal aid to serve as a defender.
If the defendant is blind, deaf or mute, or if he is a minor,
and thus has not entrusted anyone to be his defender, the People's
Court shall designate a? lawyer that is obligated to provide
legal aid to serve as a defender.
If there is the possibility that the defendant may? be
sentenced to death and yet he has not entrusted anyone to be his
defender, the People's Court shall designate a lawyer that is
obligated to provide legal aid to serve as a defender.
Article 35? The responsibility of a defender shall be to
present, according to the facts and? law, materials and
opinions proving the innocence of the criminal suspect or
defendant, the pettiness of? his crime and the need for a
mitigated punishment or? exemption from criminal
responsibility, thus safeguarding the lawful rights and interests
of the criminal suspect or the defendant.
Article 36? Defence lawyers may, from the date on which the
People's Procuratorate begins to examine a case for prosecution,
consult, extract and duplicate the judicial documents pertaining to
the current case and the technical verification material,? and
may meet and correspond with the criminal suspect in custody. Other
defenders, with permission of the People's Procuratorate, may also
consult, extract and duplicate the above-mentioned material, meet
and correspond with the criminal suspect in custody.
Defence lawyers may, from the date on which the People's
Court? accepts? a case, consult, extract and duplicate
the material of the facts of the crime? accused? in the
current case, and may meet and correspond with the defendant in
custody. Other defenders, with permission of the People's Court,
may also consult, extract and duplicate the above-mentioned
material, and may meet and correspond with the defendant in?
custody.
Article 37? Defence lawyers may, with the consent of?
the witnesses or other units and individuals concerned, collect
information pertaining to the current case? from them and they
may also apply to the People's Procuratorate? or??
the People's Court for the collection and obtaining of evidence, or
request the People's Court to inform the witnesses to appear in
court and give testimony.?
With permission of the People's Procuratorate or the People's
Court and with the consent of the victim, his near relatives or the
witnesses provided by the victim, defence? lawyers may collect
information pertaining to the current case? from them.
Article 38? Defense lawyers and other defenders shall not
help the criminal suspects or defendants to conceal, destroy or
falsify evidence or to tally their confessions, and shall not
intimidate or induce the witnesses to modify their testimony or
give false testimony or conduct other acts to interfere with the
proceedings of the judicial organs.
Whoever violates the provisions of the preceding paragraph shall
be investigated for legal responsibility according to law.
Article 39? During a trial, the defendant may refuse to
have his defender continue to defend him and may entrust his
defence to another? defender.
Article 40? A victim in a case of public prosecution, his
legal representatives or near relatives, and a party in an
incidental civil action and his legal representatives shall, from
the date on which the case is transferred for examination before
prosecution, have the right to entrust agents ad litem. A private
prosecutor in a case of private prosecution and his legal
representatives, and a party in an incidental civil action and his
legal representatives shall have the right to entrust agents ad
litem at any time.
The People's Procuratorate shall, within three days from the
date of receiving the file record of a case? transferred for
examination before prosecution, notify the victim and his legal
representatives or near relatives and the party in an incidental
civil action and his legal representatives that they have the right
to entrust agents ad litem. The People's Court shall, within three
days from the date of? accepting a case of private
prosecution, notify the private prosecutor and his legal
representatives and the party in an incidental civil action and his
legal representatives that they have the right to entrust agents ad
litem.
Article 41? With regard to entrusting of agents ad litem,
the provisions of Article 32 of this Law shall be applied mutatis
mutandis.
Chapter V
Evidence
Article 42? All facts that prove the true circumstances of
a case shall be evidence.
There shall be the following seven categories of evidence:
(1) material evidence and documentary evidence;
(2) testimony of witnesses;
(3) statements of victims;
(4) statements and exculpations of criminal suspects or
defendants;
(5) expert conclusions;????
(6) records of inquests and examination; and
(7) audio-visual materials.?
Any of the above evidence must be verified before it can be used
as the basis for deciding cases.
Article 43? Judges, procurators and investigators must, in
accordance with the legally prescribed process, collect various
kinds of evidence that can prove the? criminal suspect's or
defendant's guilt or innocence and the gravity of his crime.?
It shall be strictly forbidden to extort confessions by
torture? and to collect evidence by threat, enticement, deceit
or other unlawful means.? Conditions must be guaranteed for
all citizens who are involved in a case or who have information
about the circumstances of a case to objectively and fully furnish
evidence and, except in special circumstances, they may be brought
in? to help the investigation.
Article 44 The public security organ's requests for approval
of? arrest, the People's Procuratorate's bills of prosecution
and the People's Court's written judgments must be faithful to the
facts.? The responsibility of anyone who intentionally
conceals the facts shall be investigated.
Article 45? The People's Courts, the People's
Procuratorates and the public security organs shall have the
authority to collect or obtain evidence from the? units and
individuals concerned. The units and individuals concerned shall
provide truthful evidence.
Evidence involving State secrets shall be kept confidential.
Anyone that falsifies, conceals or destroys evidence, regardless
of which side of a case? he belongs to, must be investigated
under? law.
Article 46 In the decision of all cases, stress shall be laid on
evidence,? investigation and study;? credence shall not
be readily given to oral statements.? A defendant cannot be
found guilty? and sentenced to a criminal punishment if there
is only his? statement but no evidence; the defendant may be
found guilty and sentenced to a criminal punishment? if
evidence is sufficient and reliable, even without his
statement.
Article 47? The testimony of a witness may be used as a
basis in deciding a case only after the witness has been?
questioned and cross-examined in the courtroom by both sides, that
is, the public prosecutor and? victim as well as the defendant
and? defenders, and after the testimonies of the witnesses on
all sides have been heard and verified. If a court discovers
through investigation that a witness has intentionally given false
testimony or concealed criminal evidence, it? shall handle the
matter in accordance with? law.
Article 48? All those who have information about a case
shall have the duty to testify.
Physically or mentally handicapped persons or minors who cannot
distinguish right from wrong or cannot properly express themselves
shall not be qualified as witnesses.
Article 49? The? People's Courts, the People's
Procuratorates and the public security organs shall insure?
the safety of witnesses and their near relatives.?
Anyone who intimidates, humiliates, beats or retaliates against
a witness? or his near relatives, if his act constitutes a
crime,? shall be investigated for criminal responsibility
according to law; if the? case is not serious enough for
criminal punishment, he shall be punished for violation of public
security in accordance with? law.
Chapter VI
Compulsory Measures
Article 50? The? People's Courts, the People's
Procuratorates and the public security organs may, according to the
circumstances of a case, issue a warrant to compel the appearance
of the criminal suspect or defendant, order him to obtain a
guarantor pending trial or subject him to residential
surveillance.
Article 51? The People's Courts, the People's
Procuratorates and the public security organs may allow criminal
suspects or defendants under any of the following conditions to
obtain a guarantor pending trial or subject them to residential
surveillance:
(1) They may be sentenced to public surveillance, criminal
detention or simply imposed with supplementary punishments; or
(2) They may be imposed with a punishment of fixed-term
imprisonment at least and would not endanger society if they are
allowed to obtain a guarantor pending trial or are placed under
residential surveillance.
The public security organs shall execute the decision on
allowing a criminal suspect or defendant to obtain a guarantor
pending trial or on subjecting him to residential surveillance.
Article 52? A criminal suspect or defendant in custody and
his legal representatives or near relatives? shall have the
right to apply for obtaining a guarantor pending trial.
Article 53? If the People's Courts, the People's
Procuratorates or the public security organs decide to allow a
criminal suspect or defendant to obtain a guarantor pending trial,
they shall order the criminal suspect or defendant to provide a
guarantor or pay guaranty money.
Article 54? A guarantor must be a person who meets the
following conditions:
(1) to be not involved in the current case;
(2) to be able? to perform a guarantor's duties;
(3) to be entitled to political rights and not subjected to
restriction of? personal freedom; and
(4) to have a fixed domicile and steady income.
Article 55? A guarantor shall perform the following
duties:
(1) to see to it that the person under his guarantee observes
the provisions of Article 56 of this Law; and
(2) to promptly report to the executing organ when finding?
that the? person under his guarantee? may? commit or
has already committed acts in violation of? the provisions of
Article 56 of this Law.
If? the guarantor fails to report promptly when the person
under his guarantee has committed an act in violation of the
provisions of Article 56 of this Law, he shall be fined. If the
case constitutes a crime, criminal responsibility shall be
investigated according to law.
Article 56? A criminal suspect or defendant who has
obtained a guarantor pending trial shall observe the following
provisions:
(1) not to leave the city or county where he resides without
permission of the executing organ;
(2) to be present in time at a court when summoned;
(3) not to interfere in any form with the witness when the
latter gives? testimony; and
(4) not to? destroy or falsify evidence or tally
confessions.?
If a criminal suspect or defendant who has obtained a guarantor
pending trial violates the provisions of the preceding paragraph,
the? guaranty money paid shall be confiscated. In addition, in
light of specific circumstances, the criminal suspect or defendant
shall be ordered to write a statement of repentance, pay guaranty
money or provide a guarantor again, or shall be subjected to
residential surveillance or arrested.? If a criminal suspect
or defendant is found not to have violated? the?
provisions in the preceding paragraph during the period when he has
obtained a guarantor pending trial, the guaranty? money shall
be returned to him at the end of? the period.
Article 57? A criminal suspect or defendant under
residential surveillance shall observe the following
provisions:
(1) not to leave his domicile without permission of the
executing organ? or,? if he has no fixed domicile, not to
leave the designated residence without permission;
(2) not to meet with others without permission of the executing
organ;
(3) to be present in time at a court when summoned;
(4) not to interfere in any form with the witness when the
latter gives? testimony; and
(5) not to destroy or falsify evidence or tally confessions.
If a criminal suspect or defendant under residential
surveillance violates the? provisions of the preceding
paragraph and if the case is serious, he shall be arrested.
Article 58? The period granted by a People's Court,
People's Procuratorate or public security organ to a criminal
suspect or defendant for awaiting trial after obtaining a guarantor
shall not exceed twelve months; the period for residential
surveillance shall not exceed six months.
During the period when the criminal suspect or defendant is
awaiting trial after obtaining a guarantor or when he is under
residential surveillance, investigation, prosecution and handling
of the case shall not be suspended. If it is discovered that the
criminal suspect or the defendant should not be investigated for
criminal responsibility or when the period for awaiting trial after
obtaining a guarantor or the period of residential surveillance has
expired, such period shall be terminated without delay. The person
who has obtained a guarantor pending trial or who is under
residential surveillance and the units concerned shall be notified
of the termination immediately.
Article 59? Arrests? of criminal suspects or
defendants shall be subject to approval? by a People's
Procuratorate or decision by a People's Court and shall be executed
by a public security organ.
Article 60? When? there is evidence to support the
facts of? a crime? and the criminal suspect or defendant
could be sentenced to a punishment of not less than imprisonment,
and if such measures as allowing him to obtain a guarantor pending
trial or placing him under residential surveillance would be
insufficient to prevent the occurrence of danger to society,
thus??? necessitating? his arrest,? the
criminal suspect or defendant? shall be immediately arrested
according to law.
If a criminal suspect or defendant? who should? be
arrested is seriously ill or is a pregnant woman or a? woman
breast-feeding her own baby,? he or she may be allowed to
obtain a guarantor pending trial or be placed under residential
surveillance.?
Article 61? Public security organs may initially detain an
active criminal or a major suspect under any of the following
conditions:
(1) if he is preparing to commit a crime, is in the process of
committing a crime or is discovered immediately after committing a
crime;
(2) if he is identified as having committed a crime by a victim
or an eyewitness;
(3) if criminal evidence is found on his body or at his
residence;
(4) if he attempts to commit suicide or escape after committing
a crime, or he is a fugitive;
(5) if there is likelihood of his destroying or falsifying
evidence or tallying confessions;
(6) if he does not tell his true name and address and his
identity is unknown; and?
(7) if he is strongly suspected of committing crimes? from
one place to another, repeatedly, or in a gang.
Article 62? When a public security organ is to detain or
arrest a person in another place, it shall inform the public
security organ in the place where the person to be detained or
arrested stays, and the public security organ there shall cooperate
in the action.
Article 63? The persons listed below may be seized outright
by any citizen and delivered to a public security organ, a People's
Procuratorate or? a People's Court for handling:
(1) any person who is committing a crime or is discovered
immediately after committing a crime;
(2) any person who is? wanted for arrest;
(3) any person who has escaped from prison; and
(4) any person who is being pursued for arrest.
Article 64? When detaining a person, a public security
organ must produce a detention warrant.
Within 24 hours after a person has been detained, his family or
the unit to which he belongs shall be notified of the reasons for
detention and the place of custody, except in circumstances where
such notification would hinder the investigation or? there is
no way of notifying them.
Article 65? A public security organ shall interrogate a
detainee?? within 24 hours after detention.
If?? it is found that the person should not have been
detained, he must be immediately released and issued a release
certificate. If the public security organ finds it necessary to
arrest a detainee when sufficient evidence is still lacking, it
may? allow the detainee to obtain a guarantor pending trial or
place him under residential surveillance.
Article 66? When a public security organ wishes to arrest a
criminal suspect,? it shall submit a written request for
approval of arrest together with the case file and evidence to the
People's Procuratorate at the same level for examination and
approval.? When necessary, the People's Procuratorate may send
procurators? to participate in the public security organ's
discussion of a major case.
Article 67? The chief procurator shall make the decision on
a People's Procuratorate's examination and approval of the?
arrest of a criminal suspect.? Major cases shall be submitted
to the procuratorial committee for discussion and decision.
Article 68? After a People's Procuratorate has examined a
case with respect to which a public security organ has submitted a
request for approval of arrest, it shall decide according to the
circumstances of the case either to approve the arrest or
disapprove the arrest. If it decides to approve the arrest, the
public security organ shall execute it immediately and inform the
People's Procuratorate of the result without delay. If? the
People's Procuratorate disapproves the arrest, it shall give its
reasons therefor; and if it deems a supplementary
investigation? necessary, it shall at the same time notify the
public security organ of the need.
Article 69 If the public security organ deems it necessary to
arrest a detainee, it shall, within three days after the detention,
submit a request to the People's Procuratorate for examination and
approval. Under special circumstances, the time limit for
submitting a request for examination and approval may be extended
by one to four days.
As to the arrest of a major suspect involved in? crimes
committed from one place to another, repeatedly, or in a gang, the
time limit for submitting a request for examination and approval
may be extended to 30 days.
The People's Procuratorate shall decide either to approve or
disapprove the arrest within seven days from the date of receiving
the written request for approval of arrest submitted by a public
security organ. If the People's Procuratorate disapproves the
arrest, the public security organ shall, upon receiving
notification, immediately release the detainee and inform? the
People's Procuratorate of the result without delay. If further
investigation is necessary, and if? the released person meets
the conditions for obtaining a guarantor pending trial or for
residential surveillance, he shall be allowed to obtain a guarantor
pending trial or subjected to residential surveillance according to
law.
Article 70? If the public security organ considers the
People's Procuratorate's decision to disapprove an arrest to
be? incorrect, it may request a reconsideration but? must
immediately release the detainee. If the public security organ's
opinion is not accepted, it may request a review by the People's
Procuratorate at the next higher level.? The? People's
Procuratorate at the higher level shall immediately review the
matter, decide whether or not to make a change and notify the?
People's Procuratorate? at the lower level and the public
security organ to implement its decision.
Article 71? When making an arrest,? a public security
organ must produce an arrest warrant.
Within 24 hours after an arrest, the family of the arrested
person or the unit to which he belongs shall be notified of the
reasons for? arrest and the place of custody, except in
circumstances where such notification would hinder the
investigation or there is no way of notifying them.
Article 72? Interrogation must be conducted within 24 hours
after the arrest, by a? People's Court or? People's
Procuratorate with? respect to a person it has decided to
arrest, and? by a public security organ? with respect to
a person it has arrested with the approval of the People's
Procuratorate.? If it is found that the person should not have
been arrested, he must be immediately released and issued a release
certificate.
Article 73? If a People's Court, a People's Procuratorate
or a public security organ finds that the compulsory measures
adopted against a criminal suspect or defendant are inappropriate,
such measures shall be cancelled or modified without delay. If a
public security organ? releases a person arrested or?
substitute the measure of arrest with a different measure , it
shall notify the People's Procuratorate that approved the
arrest.
Article 74? If a case involving a criminal suspect or
defendant in custody cannot be closed within the time limit
stipulated by this Law for keeping the criminal suspect or
defendant under custody for the sake of investigation, for
conducting examination before prosecution, or for the procedure of
first or second instance and thus further investigation,
verification and handling are needed, the criminal suspect or
defendant? may be allowed to obtain a guarantor pending trial
or subjected to residential surveillance.
Article 75? If the compulsory measures adopted by a
People's Court, a People's Procuratorate or a public security organ
exceed the time limit prescribed by law, the criminal suspect or
defendant, his legal representatives, near relatives,? or the
lawyers or other defenders entrusted by the criminal suspect or
defendant shall have the right to demand? cancellation of the
compulsory measures. The People's Court, the People's
Procuratorate, or the public security organ shall release the
criminal suspect or defendant when the compulsory measures adopted
against him have exceeded the time limit prescribed by law,
terminate the period for awaiting trial after obtaining? a
guarantor or for residential surveillance,? or take?
different compulsory measures according to law.
Article 76? If in the process of examining and
approving? arrests, a People's Procuratorate discovers
illegalities in the investigatory activities of a public security
organ, it shall notify the public security organ to make
corrections, and the public security organ shall notify the
People's Procuratorate of the? corrections it has?
made.
Chapter VII
Incidental Civil Actions
Article 77? If a? victim has suffered material losses
as a result of the? defendant's criminal act, he shall have
the right to file an incidental civil action during the course of
the criminal proceeding.
If losses have been caused to State property or collective
property, the People's Procuratorate may file an incidental civil
action while initiating a public prosecution.
When necessary, the People's Court may seal up or distrain upon
the property of the defendant.
Article 78? An incidental civil action shall be heard
together? with the criminal case.? Only for the purpose
of preventing excessive delay in a trial of the criminal case may
the same judicial organization, after completing the trial of the
criminal case, continue to hear the incidental civil action.
Chapter VIII
Time Periods and Service
Article 79? Time periods shall be calculated by the hour,
the day and the month.
The hour and day from which a time period begins shall not be
counted as within the time period.
A legally prescribed time period shall not include travelling
time.? Appeals or other documents that have been mailed before
the expiration of the time period shall not be regarded as
overdue.
Article 80? When a party cannot meet a deadline due to
irresistible causes or for other legitimate reasons, he may, within
five days after the obstacle is removed, apply to continue
the? proceedings that should have been completed before the
expiration of the time period.
A People's Court shall decide whether or not to approve the
application described in the preceding paragraph.
Article 81? Summons, notices and other court documents
shall be delivered to the addressee himself; if the addressee is
absent, the documents may be received on his behalf by an adult
member of his family or a responsible person of his unit.
If the addressee? or a recipient on his behalf refuses to
accept the documents or refuses to sign and affix his seal to the
receipt, the person serving the documents may ask the addressee's
neighbours or other witnesses to the scene, explain the situation
to them, leave the documents at the addressee's residence, record
on the service certificate the particulars of the refusal and the
date of service and sign his name to it; the service? shall
thus be deemed to have been completed.
Chapter IX
Other Provisions
Article 82? For the purpose of this law, the definitions of
the following terms? are:?
(1) "Investigation" means the specialized investigatory work and
related compulsory measures carried out according to law by the
public security organs and People's Procuratorates in the process
of handling cases.
(2) "Parties" means victims, private prosecutors, criminal
suspects, defendants and the? plaintiffs and? defendants
in incidental civil actions.
(3) "Legal representatives" means the parents, foster parents or
guardians of a person being represented and representatives of the
State organ or public organization? responsible for that
person's protection;
(4) "Participants in the? proceedings" means the parties,
legal representatives, agents ad litem, defenders, witnesses,
expert witnesses? and interpreters;
(5) "agents ad litem" means persons entrusted by victims in
cases of public prosecution and their legal representatives or near
relatives and? by private prosecutors in cases of private
prosecution and their legal representatives? to participate in
legal proceedings on their behalf,? and persons entrusted by
parties in incidental civil actions and? their legal
representatives to participate in legal proceedings on their
behalf.
(6) "Near relatives" means a person's husband or wife, father,
mother, sons, daughters, and brothers and sisters born of the same
parents.
Part Two
Filing a Case, Investigation, and Initiation of Public
Prosecution
Chapter I
Filing a Case
Article 83? The public security organs or the People's
Procuratorates shall, upon discovering facts of crimes or criminal
suspects,? file the cases? for investigation within the
scope of their jurisdiction.
Article 84? Any unit or individual, upon discovering facts
of a crime or a criminal suspect, shall have the right and duty to
report the case or? provide information to a public security
organ, a People's Procuratorate or a People's Court.
When his personal or property rights are infringed upon, the
victim shall have the right to report to a public security organ, a
People's Procuratorate or a People's Court about the facts of the
crime or bring a complaint to it against the criminal suspect.
The public security organ, the People's Procuratorate or the
People's Court shall accept all reports, complaints and
information. If a case does not fall under? its jurisdiction,
it shall refer the case to the competent organ and notify the
person who made the report, lodged the complaint or provided the
information.? If the case does not fall under? its
jurisdiction but calls for emergency measures, it shall take
emergency measures before referring the case to the competent
organ.
Where an offender delivers himself up to a public security
organ, a People's Procuratorate or a People's Court,? the
provisions of the third? paragraph shall apply.
Article 85? Reports, complaints and information may be
filed in writing or orally.? The officer receiving an oral
report, complaint or information shall make a written record of it,
which, after being read to the reporter, complainant or??
informant and found free of error, shall? be signed or sealed
by him or her.
The officer receiving the complaint or? information shall
clearly explain to? the complainant or the informant the legal
responsibility that shall be incurred for making? a false
accusation. However, a complaint or information that does not
accord with the facts, or? even a mistaken complaint
shall? be strictly distinguished from a false
accusation,? as long as no fabrication of facts or
falsification of evidence is involved.
The public security organs, the People's Procuratorates and the
People's Courts shall insure the safety of reporters, complainants
and informants as well as their near relatives. If the reporters,
complainants or informants wish not to make their names and acts of
reporting, complaining or informing known to the public, these
shall be kept confidential for them.
Article 86 A People's Court,? People's Procuratorate
or? public security organ shall, within the scope of its
jurisdiction, promptly examine the materials provided by a
reporter, complainant or informant and the confession of an
offender who has voluntarily surrendered. If it believes that there
are facts of a crime and criminal responsibility should be
investigated, it shall file a case. If it believes that there are
no facts of a crime or that the? facts are obviously
incidental and do not require investigation of criminal
responsibility, it shall not file a case and shall notify the
complainant of the reason.? If the complainant does not agree
with the decision, he may ask for reconsideration.
Article 87? Where? a People's Procuratorate considers
that a case should be filed for investigation by a public security
organ but the latter has? not done so, or? where? a
victim considers that a case should be filed for investigation by a
public security organ but the? latter has not done so and
the? victim has brought the matter to a People's
Procuratorate, the People's Procuratorate shall request the public
security organ to state the reasons for not filing the case. If the
People's Procuratorate considers that the reasons for not filing
the case given by the public security organ are untenable, it shall
notify the public security organ to file the case, and upon
receiving the notification, the public security organ shall file
the case.
Article 88? As to a case of private prosecution, the victim
shall have the right to bring a suit directly to a People's Court.
If the victim is dead or has lost his ability of conduct, his legal
representatives and? near relatives shall have the right to
bring a suit to a People's Court. The People's Court shall accept
it according to law.
Chapter? II
Investigation
Section 1
General Provisions
Article 89? With respect to a criminal case which has been
filed, the public security organ shall carry out investigation,
collecting and? obtaining? evidence? to prove the
criminal suspect guilty or innocent or to prove the crime to
be? minor or grave.? Active criminals or major suspects
may be detained first according to law, and criminal suspects who
meet the conditions for arrest shall be arrested according to
law.
Article 90? After investigation, the public security organ
shall start preliminary inquiry into a case for which there is
evidence that supports the facts of the crime, in order to verify
the evidence which has been collected and obtained.
Section 2
Interrogation of the Criminal Suspect
Article 91? Interrogation of a criminal suspect must be
conducted by the investigators? of a People's Procuratorate
or? public security organ.? During? an
interrogation, there must be no fewer than two?
investigators? participating.
Article 92? A criminal suspect who need not be arrested or
detained may be summoned to a designated place in the city or
county where the criminal suspect stays for interrogation, or he
may be interrogated at his residence. However, the interrogators
shall produce their papers issued by a People's Procuratorate or a
public security organ.
The time for interrogation through summons or forced appearance
shall not exceed 12 hours. A criminal suspect shall not be?
detained? under the disguise of successive summons or forced
appearance.
Article 93? When interrogating? a criminal
suspect,? the investigators? shall first ask the criminal
suspect whether or not he has committed any criminal act, and
let? him? state the circumstances of his guilt or explain
his innocence; then they may ask him? questions.? The
criminal suspect shall answer the investigators' questions
truthfully, but he shall have the right to refuse to answer any
questions that are irrelevant to the case.
Article 94? During the interrogation of a criminal suspect
who is deaf or mute, an officer? who has a good command of
sign language shall participate, and such circumstances shall be
noted in the record.
Article 95? The record of an interrogation shall be
shown? to the criminal suspect for checking; if the criminal
suspect cannot read, the record shall be read to him.? If
there are omissions or errors in the record, the criminal suspect
may make additions or corrections. When the criminal suspect
acknowledges that the record is free from error, he shall sign or
affix his seal to it.?
The investigators shall also sign the record. If the criminal
suspect requests to write a personal statement, he shall be
permitted to do so. When necessary, the investigators may also ask
the criminal suspect to write a personal statement.
Article 96 After the criminal suspect is interrogated by an
investigation organ for the first time or from the day on which
compulsory measures are adopted against him, he may appoint a
lawyer to provide him with legal advice and to file petitions and
complaints on his behalf. If the criminal suspect is arrested, the
appointed lawyer may apply on his behalf for obtaining a guarantor
pending trial. If a case involves State secrets, the criminal
suspect shall have to obtain the approval of the investigation
organ for appointing a lawyer.
The appointed lawyer shall have the right to find out from the
investigation organ about the crime suspected of, and may meet with
the criminal suspect in custody to enquire about the case. When the
lawyer meets with the criminal suspect in custody, the
investigation organ may, in light of the seriousness of the crime
and where it deems it necessary, send its people to be present at
the meeting. If a case involves State secrets, before the lawyer
meets with the criminal suspect, he shall have to obtain the
approval of the investigation organ.
SECTION 3 QUESTIONING OF THE WITNESSES
Article 97 Investigators may question a witness at his unit or
residence, but they must produce a certificate issued by a People's
Procuratorate or public security organ. When necessary, they may
also notify the witness to give testimony at the People's
Procuratorate or public security organ.
Witnesses shall be questioned individually.
Article 98 When a witness is questioned, he shall be instructed
to provide evidence and give testimony truthfully and shall be
informed of the legal responsibility that shall be incurred for
intentionally giving false testimony or concealing criminal
evidence.
When a witness under the age of 18 is questioned, his legal
representative may be notified to be present.
Article 99 The provisions of Article 95 of this Law shall also
apply to the questioning of witnesses.
Article 100 The provisions of all articles in this Section shall
apply to the questioning of victims.
SECTION 4 INQUEST AND EXAMINATION
Article 101 Investigators shall conduct an inquest or
examination of the sites, objects, people and corpses relevant to a
crime. When necessary, experts may be assigned or invited to
conduct an inquest or examination under the direction of the
investigators.
Article 102 Each and every unit and individual shall have the duty
to preserve the scene of a crime and to immediately notify a public
security organ to send officers to hold an inquest.
Article 103 To conduct an inquest or examination, the
investigators must have papers issued by a People's Procuratorate
or a public security organ.
Article 104 If the cause of a death is unclear, a public
security organ shall have the power to order an autopsy and shall
notify the family members of the deceased to be present.
Article 105 An examination may be conducted of the person of the
victim or criminal suspect in order to ascertain some of his
characteristics or physiological condition, or the circumstances of
the injury.
If a criminal suspect refuses to be examined, the investigators,
when they deem it necessary, may conduct a compulsory
examination.
Examination of the persons of women shall be conducted by female
officers or doctors.
Article 106 A record shall be made of the circumstances of an
inquest or examination, and it shall be signed or sealed by the
participants in the inquest or examination and the
eyewitnesses.
Article 107 If, in reviewing a case, a People's Procuratorate
deems it necessary to repeat an inquest or examination that has
been done by a public security organ, it may ask the latter to
conduct another inquest or examination and may send procurators to
participate in it.
Article 108 When necessary and with the approval of the director
of a public security bureau, investigative experiments may be
conducted in order to clarify the circumstances of a case.
In conducting investigative experiments, it shall be forbidden
to take any action which is hazardous, humiliating to anyone, or
offensive to public morals.
Article 109 In order to collect criminal evidence and track down
an offender, investigators may search the person, belongings and
residence of the criminal suspect and anyone who might be hiding a
criminal or criminal evidence, as well as other relevant
places.
Article 110 Any unit or individual shall have the duty, as
required by the People's Procuratorate or the public security
organ, to hand over material evidence, documentary evidence or
audio-visual material which may prove the criminal suspect guilty
or innocent.
Article 111 When a search is to be conducted, a search warrant
must be shown to the person to be searched.
If an emergency occurs when an arrest or detention is being
made, a search may be conducted without a search warrant.
Article 112 During a search, the person to be searched or his
family members, neighbours or other eyewitnesses shall be present
at the scene.
Searches of the persons of women shall be conducted by female
officers.
Article 113 A record shall be made of the circumstances of a
search, and it shall be signed or sealed by the investigators and
the person searched or his family members, neighbors or other
eyewitnesses. If the person searched or his family members have
become fugitives or refuse to sign or affix their seals to the
record, this shall be noted in the record.
SECTION 6 SEIZURE OF MATERIAL EVIDENCE AND DOCUMENTARY
EVIDENCE
Article 114 Any articles and documents discovered during an
inquest or search that may be used to prove a criminal suspect's
guilt or innocence shall be seized. Articles and documents which
are irrelevant to the case may not be seized.
Seized articles and documents shall be properly kept or sealed
for safekeeping and may not be utilized or damaged.
Article 115 All seized articles and documents shall be carefully
checked by the investigators jointly with the eyewitnesses and the
holder of the articles; a detailed list shall be made in duplicate
on the spot and shall be signed or sealed by the investigators, the
eyewitnesses and the holder. One copy of the list shall be given to
the holder, and the other copy shall be kept on file for
reference.
Article 116 If the investigators deem it necessary to seize the
mail or telegrams of a criminal suspect, they may, upon approval of
a public security organ or a People's Procuratorate, notify the
post and telecommunications offices to check and hand over the
relevant mail and telegrams for seizure.
When it becomes unnecessary to continue a seizure, the post and
telecommunications offices shall be immediately notified.
Article 117 The People's Procuratorates and the public security
organs may, as required by investigation of crimes, inquire into or
freeze criminal suspects' deposits or remittances according to
regulations.
If the deposits or remittances of the criminal suspects have
been frozen, they shall not be frozen for a second time.
Article 118 If any seized articles, documents, mail, telegrams
or frozen deposits and remittances are proved through investigation
to be truly irrelevant to a case, the seizure and freeze shall be
cancelled within three days, and the things shall be returned to
their original owners or the original post and telecommunications
offices.
Article 119 When certain special problems relating to a case
need to be solved in order to clarify the circumstances of the
case, experts shall be assigned or invited to give their
evaluations.
Article 120 After evaluating a matter, the experts shall write a
conclusion of expert evaluation and affix his signature to it.
Reverification necessitated by disputes over medical
verification of personal injuries and medical verification of
mental illness shall be conducted by a hospital designated by a
people's government at the provincial level. After verification,
the expert shall make a conclusion in writing, to which his
signature and the hospital's seal shall be affixed.
If an expert intentionally makes a false verification, he shall
assume legal responsibility.
Article 121 The investigation organ shall notify the criminal
suspect and the victim of the conclusion of the expert verification
which will be used as evidence in his case. A supplementary expert
verification or another expert verification may be conducted upon
application submitted by the criminal suspect or the victim.
Article 122 The period during which the mental illness of a
criminal suspect is under verification shall not be included in the
period of time for handling the case.
Article 123 If a criminal suspect who should be arrested is a
fugitive, a public security organ may issue a wanted order and take
effective measures to pursue him for arrest and bring him to
justice.
Public security organs at any level may directly issue wanted
orders within the areas under their jurisdiction; they shall
request a higher- level organ with the proper authority to issue
such orders for areas beyond their jurisdiction.
SECTION 9 CONCLUSION OF INVESTIGATION
Article 124 The time limit for holding a criminal suspect in
custody during investigation after arrest shall not exceed two
months. If the case is complex and cannot be concluded within the
time limit, an extension of one month may be allowed with the
approval of the People's Procuratorate at the next higher
level.
Article 125 If due to special reasons, it is not appropriate to
hand over a particularly grave and complex case for trial even
within a relatively long period of time, the Supreme People's
Procuratorate shall submit a report to the Standing Committee of
the National People's Congress for approval of postponing the
hearing of the case.
Article 126 With respect to the following cases, if
investigation cannot be concluded within the time limit specified
in Article 124 of this Law, an extension of two months may be
allowed upon approval or decision by the People's Procuratorate of
a province, autonomous region or municipality directly under the
Central Government:
(1) grave and complex cases in outlying areas where traffic is
most inconvenient;
(2) grave cases that involve criminal gangs;
(3) grave and complex cases that involve people who commit
crimes from one place to another; and
(4) grave and complex cases that involve various quarters and
for which it is difficult to obtain evidence.
Article 127 If in the case of a criminal suspect who may be
sentenced to fixed-term imprisonment of ten years at least,
investigation of the case can still not be concluded upon
expiration of the extended time limit as provided in Article 126 of
this Law, another extension of two months may be allowed upon
approval or decision by the People's Procuratorate of a province,
autonomous region or municipality directly under the Central
Government.
Article 128 If during the period of investigation a criminal
suspect is found to have committed other major crimes, the time
limit for holding the criminal suspect in custody during
investigation shall be recalculated, in accordance with the
provisions of Article 124 of this Law, from the date on which such
crimes are found.
If a criminal suspect does not tell his true name and address
and his identity is unknown, the time limit for holding him in
custody during investigation shall be calculated from the date on
which his identity is found out. However, before then, the
investigation into his crime and obtaining of evidence shall not be
ceased. If the facts of a crime are clear and the evidence is
reliable and sufficient, the case may, by the name given by the
criminal suspect himself, be transferred to a People's
Procuratorate for examination and prosecution.
Article 129 After a public security organ has concluded its
investigation of a case, the facts should be clear and the evidence
reliable and sufficient and, in addition, it shall make a written
recommendation for prosecution, which shall be transferred,
together with the case file and evidence, to the People's
Procuratorate at the same level for examination and decision.
Article 130 If it is discovered during investigation that a
criminal suspect's criminal responsibility should not have been
investigated, the case shall be dismissed; if the criminal suspect
is under arrest, he shall be released immediately and issued a
release certificate, and the People's Procuratorate which
originally approved the arrest shall be notified.
SECTION 10 INVESTIGATION OF CASES DIRECTLY ACCEPTED BY
THE PEOPLE'S
Article 131 Investigation of cases directly accepted by the
People's Procuratorates shall be governed by the provisions of this
Chapter.
Article 132 If a case directly accepted by a People's
Procuratorate conforms with the conditions provided in Article 60
and in sub-paragraph (4) or sub-paragraph (5) of Article 61 of this
Law, thus arrest or detention of the criminal suspect is
necessitated, the decision thereon shall be made by the People's
Procuratorate and executed by a public security organ.
Article 133 A detainee in a case directly accepted by a People's
Procuratorate shall be interrogated within 24 hours after the
detention. If it is found that the person should not have been
detained, he must be released immediately and issued a release
certificate. If an arrest is necessitated but the evidence is
insufficient, the detainee may be allowed to obtain a guarantor
pending trial or be subjected to residential surveillance.
Article 134 If a People's Procuratorate deems it necessary to
arrest a detainee in a case directly accepted by it, it shall make
a decision thereon within 10 days after the detention. Under
special circumstances, the time limit for deciding on an arrest may
be extended by one to four days. If arrest is unnecessary, the
detainee shall be released immediately; if the case requires
further investigation and the detainee meets the conditions for
obtaining a guarantor pending trial or for residential
surveillance, he shall be allowed to obtain a guarantor pending
trial or be subjected to residential surveillance according to
law.
Article 135 After a People's Procuratorate has concluded its
investigation of a case, it shall make a decision to initiate
public prosecution, not to initiate a prosecution or to dismiss the
case.
CHAPTER III INITIATION OF PUBLIC
PROSECUTION
Article 136 All cases requiring initiation of a public
prosecution shall be examined for decision by the People's
Procuratorates.
Article 137 In examining a case, a People's Procuratorate shall
ascertain:
(1) whether the facts and circumstances of the crime are clear,
whether the evidence is reliable and sufficient and whether the
charge and the nature of the crime has been correctly
determined;
(2) whether there are any crimes that have been omitted or other
persons whose criminal responsibility should be investigated;
(3) whether it is a case in which criminal responsibility should
not be investigated;
(4) whether the case has an incidental civil action; and
(5) whether the investigation of the case is being lawfully
conducted.
Article 138 A People's Procuratorate shall make a decision
within one month on a case that a public security organ has
transferred to it with a recommendation to initiate a prosecution;
an extension of a half month may be allowed for major or complex
cases.
If jurisdiction over a case to be examined and prosecuted by a
People's Procuratorate is altered, the time limit for examination
and prosecution shall be calculated from the date on which another
People's Procuratorate receives the case after the alteration.
Article 139 When examining a case, the People's Procuratorate
shall interrogate the criminal suspect and heed the opinions of the
victim and of the persons entrusted by the criminal suspect and the
victim.
Article 140 In examining a case, the People's Procuratorate may
request a public security organ to provide the evidence that is
essential to the trial in court.
In examining a case that requires supplementary investigation,
the People's Procuratorate may remand the case to a public security
organ for supplementary investigation or conduct the investigation
itself.
In cases where supplementary investigation is to be conducted,
it shall be completed within one month. Supplementary investigation
may be conducted twice at most. When supplementary investigation is
completed and the case is transferred to the People's
Procuratorate, the time limit for examination and prosecution shall
be recalculated by the People's Procuratorate.
With respect to a case for which supplementary investigation has
been conducted, if the People's Procuratorate still believes that
the evidence is insufficient and the case does not meet the
conditions for initiation of a prosecution, the People's
Procuratorate may decide not to initiate a prosecution.
Article 141 When a People's Procuratorate considers that the
facts of a criminal suspect's crime have been ascertained, that the
evidence is reliable and sufficient and that criminal
responsibility should be investigated according to law, it shall
make a decision to initiate a prosecution and shall, in accordance
with the provisions for trial jurisdiction, initiate a public
prosecution in a People's Court.
Article 142 If a criminal suspect is found to be under one of
the circumstances provided in Article 15 of this Law, the People's
Procuratorate shall make a decision not to initiate a
prosecution.
With respect to a case that is minor and the offender need not
be given criminal punishment or need be exempted from it according
to the Criminal Law, the People's Procuratorate may decide not to
initiate a prosecution.
With respect to a case for which the People's Procuratorate has
decided not to initiate a prosecution, the People's Procuratorate
shall, at the same time, cancel the seizure or freeze of the
property or things of value seized or frozen during the period of
investigation. If the person against whom prosecution is not to be
initiated need be given administrative penalty or administrative
sanction or his illegal gains need be confiscated, the People's
Procuratorate shall make suggestions to such an effect and transfer
the case to the competent organ for handling. The competent organ
shall, without delay, inform the People's Procuratorate of how it
has handled the case.
Article 143 A decision not to initiate a prosecution shall be
announced publicly, and the decision shall, in written form, be
delivered to the person who is not to be prosecuted and his unit.
If the said person is in custody, he shall be released
immediately.
Article 144 With respect to a case transferred by a public
security organ for prosecution, if the People's Procuratorate
decides not to initiate a prosecution, it shall deliver the
decision in writing to the public security organ. If the public
security organ considers that the decision not to initiate a
prosecution is wrong, it may demand reconsideration, and if the
demand is rejected, it may submit the matter to the People's
Procuratorate at the next higher level for review.
Article 145 If the People's Procuratorate decides not to
initiate a prosecution with respect to a case that involves a
victim, it shall send the decision in writing to the victim. If the
victim refuses to accept the decision, he may, within seven days
after receiving the written decision, present a petition to the
People's Procuratorate at the next higher level and request the
latter to initiate a public prosecution. The People's Procuratorate
shall notify the victim of its decision made after reexamination.
If the People's Procuratorate upholds the decision not to initiate
a prosecution, the victim may bring a lawsuit to a People's Court.
The victim may also bring a lawsuit directly to a People's Court
without presenting a petition first. After the People's Court has
accepted the case, the People's Procuratorate shall transfer the
relevant case file to the People's Court.
Article 146 If the person against whom a People's Procuratorate
decides, in accordance with the provisions of the second paragraph
of Article 142 of this Law, not to initiate a prosecution still
refuses to accept the decision, he may present a petition to the
People's Procuratorate within seven days after receiving the
written decision. The People's Procuratorate shall make a decision
to conduct a reexamination, notify the person against whom no
prosecution is to be initiated and at the same time send a copy of
the decision to the public security organ.
Article 147 Trials of cases of first instance in the Primary and
Intermediate People's Courts shall be conducted by a collegial
panel composed of three judges or of judges and people's assessors
totalling three. However, cases in which summary procedure is
applied in the Primary People's Courts may be tried by a single
judge alone.
Trials of cases of first instance in the Higher People's Courts
or the Supreme People's Court shall be conducted by a collegial
panel composed of three to seven judges or of judges and people's
assessors totalling three to seven.
When performing their functions in the People's Courts, the
people's assessors shall enjoy equal rights with the judges.
Trials of appealed and protested cases in the People's Courts
shall be conducted by a collegial panel composed of three to five
judges.
The members of a collegial panel shall be odd in number.
The president of the People's Court or the chief judge of a
division shall designate one judge to be the presiding judge of the
collegial panel. If the president of the court or the chief judge
of a division participates in a trial, he himself shall serve as
the presiding judge.
Article 148 If opinions differ when a collegial panel conducts
its deliberations, a decision shall be made in accordance with the
opinions of the majority, but the opinions of the minority shall be
entered in the records. The records of the deliberations shall be
signed by the members of the collegial panel.
Article 149 After the hearings and deliberations, the collegial
panel shall render a judgment. With respect to a difficult, complex
or major case, on which the collegial panel considers it difficult
to make a decision, the collegial panel shall refer the case to the
president of the court for him to decide whether to submit the case
to the judicial committee for discussion and decision. The
collegial panel shall execute the decision of the judicial
committee.
CHAPTER II PROCEDURE OF FIRST INSTANCE
SECTION 1 CASES OF PUBLIC PROSECUTION
Article 150 After a People's Court has examined a case in which
public prosecution was initiated, it shall decide to open the court
session and try the case, if the bill of prosecution contains clear
facts of the crime accused and, in addition, there are a list of
evidence and a list of witnesses as well as duplicates or photos of
major evidence attached to it.
Article 151 After a People's Court has decided to open a court
session, it shall proceed with the following work:
(1) to determine the members of the collegial panel;
(2) to deliver to the defendant a copy of the bill of
prosecution of the People's Procuratorate no later than ten days
before the opening of the court session. If the defendant has not
appointed a defender, he shall be informed that he may appoint a
defender or, when necessary, designate a lawyer that is obligated
to provide legal aid to serve as a defender for him;
(3) to notify the People's Procuratorate of the time and place
of the court session three days before the opening of the
session;
(4) to summon the parties and notify the defenders, agents ad
litem, witnesses, expert witnesses and interpreters, and deliver
the summons and notices no later than three days before the opening
of the court session; and
(5) to announce, three days before the opening of the session,
the subject matter of the case to be heard in public, the name of
the defendant and the time and place of the court session.
The circumstances of the above-mentioned proceedings shall be
entered in the written record, which shall be signed by the judges
and the court clerk.
Article 152 Cases of first instance in a People's Court shall be
heard in public. However, cases involving State secrets or private
affairs of individuals shall not be heard in public.
No cases involving crimes committed by minors who have reached
the age of 14 but not the age of 16 shall be heard in public.
Generally, cases involving crimes committed by minors who have
reached the age of 16 but not the age of 18 shall also not be heard
in public.
The reason for not hearing a case in public shall be announced
in court.
Article 153 When a case of public prosecution is being tried in
a People's Court, the People's Procuratorate shall send its
procurators to the court to support the public prosecution.
However, when a case is to be tried through summary procedure, the
People's Procuratorate may send no procurators to the court, as
provided by the provisions of Article 175 of this Law.
Article 154 When a court session opens, the presiding judge
shall ascertain if all the parties have appeared in court and
announce the subject matter of the case. He shall announce the
roll, naming the members of the collegial panel, the court clerk,
the public prosecutor, the defender, agent ad litem, the expert
witnesses and the interpreter; he shall inform the parties of their
right to apply for withdrawal of any member of the collegial panel,
the court clerk, the public prosecutor, any expert witnesses or the
interpreter; and he shall inform the defendant of his right to
defence.
Article 155 After the public prosecutor has read out the bill of
prosecution in court, the defendant and the victim may present
statements regarding the crime accused in the bill of prosecution,
and the public prosecutor may interrogate the defendant.
The victim, the plaintiff and defender in an incidental civil
action and the agents ad litem may, with the permission of the
presiding judge, put questions to the defendant.
The judges may interrogate the defendant.
Article 156 Before a witness gives testimony, the judges shall
instruct him to give testimony truthfully and explain to him the
legal responsibility that shall be incurred for intentionally
giving false testimony or concealing criminal evidence. The public
prosecutor, the parties, the defenders and agents ad litem, with
the permission of the presiding judge, may question the witnesses
and expert witnesses. If the presiding judge considers any
questioning irrelevant to the case, he shall put a stop to
it.
The judges may question the witnesses and expert witnesses.
Article 157 The public prosecutor and the defenders shall show
the material evidence to the court for the parties to identify; the
records of testimony of witnesses who are not present in court, the
conclusions of expert witnesses who are not present in court, the
records of inquests and other documents serving as evidence shall
be read out in court. The judges shall heed the opinions of the
public prosecutor, the parties, the defenders and the agents ad
litem.
Article 158 During a court hearing, if the collegial panel has
doubts about the evidence, it may announce an adjournment, in order
to carry out investigation to verify the evidence.
When carrying out investigation to verify evidence, the People's
Court may conduct inquest, examination, seizure, expert evaluation,
as well as inquiry and freeze.
Article 159 During a court hearing, the parties, the defenders
and agents ad litem shall have the right to request new witnesses
to be summoned, new material evidence to be obtained, a new expert
evaluation to be made, and another inquest to be held.
The court shall make a decision whether to grant the
above-mentioned requests.
Article 160 With the permission of the presiding judge, the
public prosecutor, the parties, the defenders and the agents ad
litem may state their views on the evidence and the case, and they
may debate with each other. After the presiding judge has declared
conclusion of the debate, the defendant shall have the right to
present a final statement.
Article 161 If any participant in the proceedings of a trial or
bystander violates the order of the courtroom, the presiding judge
shall warn him to desist. If any person fails to obey, he may
forcibly be taken out of the courtroom. If the violation is
serious, the person shall be fined not more than 1,000 yuan or
detained not more than 15 days. The fine or detention shall be
subject to approval of the president of the court. If the person
under punishment is not satisfied with the decision on the fine or
detention, he may apply to the People's Court at the next higher
level for reconsideration. However, the execution of the fine or
detention shall not be suspended during the period of
reconsideration.
Whoever assembles a crowd to make an uproar or charges into the
courtroom, or humiliates, slanders, intimidates or beats up
judicial officers or participants in the proceedings, thereby
seriously disturbing the order of the courtroom, which constitutes
a crime, shall be investigated for criminal responsibility
according to law.
Article 162 After a defendant makes his final statement, the
presiding judge shall announce an adjournment and the collegial
panel shall conduct its deliberations and, on the basis of the
established facts and evidence and in accordance with the
provisions of relevant laws, render one of the following
judgments:
(1) If the facts of a case are clear, the evidence is reliable
and sufficient, and the defendant is found guilty in accordance
with law, he shall be pronounced guilty accordingly;
(2) If the defendant is found innocent in accordance with law,
he shall be pronounced innocent accordingly;
(3) If the evidence is insufficient and thus the defendant
cannot be found guilty, he shall be pronounced innocent accordingly
on account of the fact that the evidence is insufficient and the
accusation unfounded.
Article 163 In all cases, judgments shall be pronounced
publicly.
If the judgment on a case is pronounced in court, a written form
of the judgment shall be delivered within five days to the parties
and the People's Procuratorate that initiated the public
prosecution. In cases where the judgment is pronounced later on a
fixed date, a written form of the judgment shall be delivered
immediately after the pronouncement to the parties and the People's
Procuratorate that indicated the public prosecution.
Article 164 The written judgment shall be signed by the members
of the collegial panel and by the court clerk, and the time limit
for appeal and the name of the appellate court shall be clearly
indicated therein.
Article 165 A hearing may be postponed if during a trial one of
the following situations affecting the conduct of the trial
occurs:
(1) if it is necessary to summon new witnesses, obtain new
material evidence, make a new expert evaluation or hold another
inquest;
(2) if the procurators find that a case for which public
prosecution has been initiated requires supplementary
investigation, and they make a proposal to that effect; or
(3) if the trial cannot proceed because a party applies for the
withdrawal of a judicial officer.
Article 166 If the hearings of a case is postponed in accordance
with the provisions of sub-paragraph (2) in Article 165 of this
Law, the People's Procuratorate shall complete the supplementary
investigation within one month.
Article 167 The court clerk shall make a written record of the
entire court proceedings, which shall be examined by the presiding
judge and then signed by him and the court clerk.
That portion of the courtroom record comprising the testimony of
witnesses shall be read out in court or given to the witnesses to
read. After the witnesses acknowledge that the record is free of
error, they shall sign or affix their seals to it.
The courtroom record shall be given to the parties to read or
shall be read out to them. If a party considers that there are
omissions or errors in the record, he may request additions or
corrections to be made. After the parties acknowledge that the
record is free of error, they shall sign or affix their seals to
it.
Article 168 A People's Court shall pronounce judgment on a case
of public prosecution within one month or, one and a half months at
the latest, after accepting it. Under one of the situations
provided in Article 126 of this Law, the period may be extended by
one more month upon approval or decision by the Higher People's
Court of a province, autonomous region or municipality directly
under the Central Government.
If jurisdiction of a People's Court over a case is altered, the
time limit for handling the case shall be calculated from the date
on which another People's Court receives the case after the
alteration.
As to a case for which a People's Procuratorate has to conduct
supplementary investigation, the People's Court shall start to
calculate anew the time lime for handling the case after the
supplementary investigation has been completed and the case has
been transferred to it.
Article 169 If a People's Procuratorate discovers that in
handling a case a People's Court has violated the litigation
procedure prescribed by law, it shall have the power to suggest to
the People's Court that it should set it right.
SECTION 2 CASES OF PRIVATE PROSECUTION
Article 170 Cases of private prosecution include the
following:
(1) cases to be handled only upon complaint;
(2) cases for which the victims have evidence to prove that
those are minor criminal cases; and
(3) cases for which the victims have evidence to prove that the
defendants should be investigated for criminal responsibility
according to law because their acts have infringed upon the
victims' personal or property rights, whereas, the public security
organs or the People's Procuratorates do not investigate the
criminal responsibility of the accused.
Article 171 After examining a case of private prosecution, the
People's Court shall handle it in one of the following manners in
light of the different situations:
(1) If the facts of the crime are clear and the evidence is
sufficient, the case shall be tried at a court session; or
(2) In a case of private prosecution for which criminal evidence
is lacking, if the private prosecutor cannot present supplementary
evidence, the court shall persuade him to withdraw his prosecution
or order its rejection.
If a private prosecutor, having been served twice with a summons
according to law, refuses to appear in court without justifiable
reasons, or if he withdraws from a court session without permission
of the court, the case may be considered withdrawn by him.
If during the trial of a case the judges have doubts about the
evidence and consider it necessary to conduct investigation to
verify the evidence, the provisions of Article 158 of this Law
shall apply.
Article 172 A People's Court may conduct mediation in a case of
private prosecution; the private prosecutor may arrange a
settlement with the defendant or withdraw his prosecution before a
judgment is pronounced. Mediation shall not be conducted for cases
stipulated in sub-paragraph (3) of Article 170 of this Law.
Article 173 In the process of the proceedings, the defendant in
a case of private prosecution may raise a counterclaim against the
private prosecutor. The provisions governing private prosecutions
shall apply to counterclaims.
Article 174 The People's Court may apply summary procedure to
the following cases, which shall be tried by a single judge
alone:
(1) cases of public prosecution where the defendants may be
lawfully sentenced to fixed-term imprisonment of not more than
three years, criminal detention, public surveillance or punished
with fines exclusively, where the facts are clear and the evidence
is sufficient, and for which the People's Procuratorate suggests or
agrees to the application of summary procedure;
(2) cases to be handled only upon complaint; and
(3) cases prosecuted by the victims, for which there is evidence
to prove that they are minor criminal cases.
Article 175 For a case of public prosecution that is tried
through summary procedure, the People's Procuratorate may send no
procurators to the court. The defendant may present a statement and
defend himself regarding the crimes accused in the bill of
prosecution. In cases where the People's Procuratorate sends
procurators to the court, the defendant and his defenders may, with
permission of the judges, debate with the public prosecutor.
Article 176 In a case of private prosecution that is tried
through summary procedure, after the bill of prosecution is read
out, the defendant and his defenders may, with the permission of
the judges, debate with the private prosecutor and his agents ad
litem.
Article 177 Trial of cases through summary procedure shall not
be subject to the provisions of Section 1 of this Chapter governing
the procedures of interrogating the defendant, questioning the
witnesses and expert witnesses, showing the evidence, and debating
in court. However, before the judgment is pronounced, the final
statement of the defendant shall be heard.
Article 178 For a case to be tried through summary procedure,
the People's Court shall conclude it within 20 days after accepting
it.
Article 179 If in the course of trying a case the People's Court
discovers that the summary procedure is not appropriate for the
case, it shall try it anew in accordance with the provisions in
Section 1 or Section 2 of this Chapter.
CHAPTER III PROCEDURE OF SECOND INSTANCE
Article 180 If the defendant, private prosecutor or their legal
representatives refuse to accept a judgment or order of first
instance made by a local People's Court at any level, they shall
have the right to appeal in writing or orally to the People's Court
at the next higher level. Defenders or near relatives of the
defendant may, with the consent of the defendant, file appeals.
A party to an incidental civil action or his legal
representative may file an appeal against that part of a judgment
or order of first instance made by a local People's Court at any
level that deals with the incidental civil action.
A defendant shall not be deprived on any pretext of his right to
appeal.
Article 181 If a local People's Procuratorate at any level
considers that there is some definite error in a judgment or order
of first instance made by a People's Court at the same level, it
shall present a protest to the People's Court at the next higher
level.
Article 182 If the victim or his legal representative refuses to
accept a judgment of first instance made by a local People's Court
at any level, he shall, within five days from the date of receiving
the written judgment, have the right to request the People's
Procuratorate to present a protest. The People's Procuratorate
shall, within five days from the date of receiving the request made
by the victim or his legal representative, decide whether to
present the protest or not and give him a reply.
Article 183 The time limit for an appeal or a protest against a
judgment shall be 10 days and the time limit for an appeal or a
protest against an order shall be five days; the time limit shall
be counted from the day after the written judgment or order is
received.
Article 184 If a defendant, private prosecutor, or a plaintiff
or defendant in an incidental civil action files an appeal through
the People's Court which originally tried the case, the People's
Court shall within three days transfer the petition of appeal
together with the case file and the evidence to the People's Court
at the next higher level; at the same time it shall deliver
duplicates of the petition of appeal to the People's Procuratorate
at the same level and to the other party.
If a defendant, private prosecutor, or a plaintiff or defendant
in an incidental civil action files an appeal directly to the
People's Court of second instance, the People's Court shall within
three days transfer the petition of appeal to the People's Court
which originally tried the case for delivery to the People's
Procuratorate at the same level and to the other party.
Article 185 If a local People's Procuratorate protests against a
judgment or order of first instance made by the People's Court at
the same level, it shall present a written protest through the
People's Court which originally tried the case and send a copy of
the written protest to the People's Procuratorate at the next
higher level. The People's Court which originally tried the case
shall transfer the written protest together with the case file and
evidence to the People's Court at the next higher level and shall
deliver duplicates of the written protest to the parties.
If the People's Procuratorate at the next higher level considers
the protest inappropriate, it may withdraw the protest from the
People's Court at the same level and notify the People's
Procuratorate at the next lower level.
Article 186 A People's Court of second instance shall conduct a
complete review of the facts determined and the application of law
in the judgment of first instance and shall not be limited by the
scope of appeal or protest.
If an appeal is filed by only some of the defendants in a case
of joint crime, the case shall still be reviewed and handled as a
whole.
Article 187 A People's Court of second instance shall form a
collegial panel and open a court session to hear a case of appeal.
However, if after consulting the case file, interrogating the
defendant and heeding the opinions of the other parties, defenders
and agents ad litem, the collegial panel thinks the criminal facts
are clear, it may open no court session. A People's Court of second
instance shall open a court session to hear a case protested by a
People's Procuratorate.
When a People's Court of second instance opens a court session
to hear a case of appeal or protest, it may do so in the place
where the case occurred or in the place where the People's Court
which originally tried the case is located.
Article 188 With respect to both cases protested by a People's
Procuratorate and cases of public prosecution tried by a People's
Court of second instance in a court session, the People's
Procuratorate at the same level shall send its procurators to the
court. The People's Court of second instance must, 10 days before
opening of the court session, notify the People's Procuratorate to
examine the case files.
Article 189 After hearing a case of appeal or protest against a
judgment of first instance, the People's Court of second instance
shall handle it in one of the following manners in light of the
different situations:
(1) if the original judgment was correct in the determination of
facts and the application of law and appropriate in the meting out
of punishment, the People's Court shall order rejection of the
appeal or protest and affirm the original judgment.
(2) if the original judgment contained no error in the
determination of facts but the application of law was incorrect or
the punishment was inappropriately meted out, the People's Court
shall revise the judgment.
(3) if the facts in the original judgment were unclear or the
evidence insufficient, the People's Court may revise the judgment
after ascertaining the facts, or it may rescind the original
judgment and remand the case to the People's Court which originally
tried it for retrial.
Article 190 In the trial of a case appealed by a defendant, or
his legal representative, defender or near relative, the People's
Court of second instance may not increase the criminal punishment
on the defendant.
The restriction laid down in the preceding paragraph shall not
apply to cases protested by a People's Procuratorate or cases
appealed by private prosecutors.
Article 191 If a People's Court of second instance discovers
that when hearing a case, a People's Court of first instance
violates the litigation procedures prescribed by law in one of the
following ways, it shall rule to rescind the original judgment and
remand the case to the People's Court which originally tried it for
retrial:
(1) violating the provisions of this Law regarding trial in
public;
(2) violating the withdrawal system;
(3) depriving the parties of their litigation rights prescribed
by law or restricting, such rights, which may hamper impartiality
of a trial;
(4) unlawful formation of a judicial organization; or
(5) other violations against the litigation procedures
prescribed by law which may hamper impartiality of a trial.
Article 192 The People's Court which originally tried a case
shall form a new collegial panel for the case remanded to it for
retrial, in accordance with the procedure of first instance. With
respect to the judgment rendered after the retrial, an appeal or
protest may be lodged in accordance with the provisions of Article
180, 181 or 182 of this Law.
Article 193 After a People's Court of second instance has
reviewed an appeal or protest against an order of first instance,
it shall order rejection of the appeal or protest or rescind or
revise the original order respectively with reference to the
provisions of Article 189, 190 or 192 of this Law.
Article 194 The People's Court which originally tried a case
shall calculate the time limit anew for the trial of the case
remanded to it by the People's Court of second instance from the
date of receiving the case remanded.
Article 195 A People's Court of second instance shall try cases
of appeal or protest with reference to the procedure of first
instance, in addition to applying the provisions in this
Chapter.
Article 196 After accepting a case of appeal or protest, a
People's Court of second instance shall conclude the trial of the
case within one month, or one and a half months at the latest.
Under one of the situations provided in Article 126 of this Law,
the period may be extended by one month upon the approval or
decision by the Higher People's Court of a province, autonomous
region or municipality directly under the Central Government.
However, with respect to cases of appeal or protest accepted by the
Supreme People's Court, the matter shall be decided by the Supreme
People's Court itself.
Article 197 All judgments and orders of second instance and all
judgments and orders of the Supreme People's Court are final.
Article 198 The public security organs, People's Procuratorates
and People's Courts shall have the property, things of value of the
criminal suspects and defendants, as well as the fruits accruing
therefrom, that they have seized or frozen well kept for
examination. No units or individuals shall misappropriate them or
dispose of them without authorization. The lawful property of the
victims shall be returned to them without delay. Prohibited
articles and perishable things shall be disposed of in accordance
with the relevant regulations of the State.
Things that serve as tangible evidence shall be transferred
together with the case, but for things that are unsuitable to be
transferred, their inventory and photos and other documents of
certification shall be transferred together with the case.
After a judgment rendered by the People's Court becomes
effective, all the seized or frozen illicit money and goods as well
as the fruits accruing therefrom, except those that are returned to
the victim according to law, shall be confiscated and turned over
to the State Treasury.
Any judicial officer who embezzles or misappropriates or
disposes of the seized or frozen illicit money and goods as well as
the fruits accruing therefrom without authorization shall be
investigated for criminal responsibility according to law; if the
offence does not constitute a crime, he shall be given
administrative sanction.
CHAPTER IV PROCEDURE FOR REVIEW OF DEATH
SENTENCES
Article 199 Death sentences shall be subject to approval by the
Supreme People's Court.
Article 200 A case of first instance where an Intermediate
People's Court has imposed a death sentence and the defendant does
not appeal shall be reviewed by a Higher People's Court and
submitted to the Supreme People's Court for approval. If the Higher
People's Court does not agree with the death sentence, it may bring
the case up for trial or remand the case for retrial.
Cases of first instance where a Higher People's Court has
imposed a death sentence and the defendant does not appeal, and
cases of second instance where a death sentence has been imposed
shall all be submitted to the Supreme People's Court for
approval.
Article 201 A case where an Intermediate People's Court has
imposed a death sentence with a two-year suspension of execution,
shall be subject to approval by a Higher People's Court.
Article 202 Reviews by the Supreme People's Court of cases
involving death sentences and reviews by a Higher People's Court of
cases involving death sentences with a suspension of execution
shall be conducted by collegial panels each composed of three
judges.
CHAPTER V PROCEDURE FOR TRIAL SUPERVISION
Article 203 A party or his legal representative or his near
relative may present a petition to a People's Court or a People's
Procuratorate regarding a legally effective judgment or order,
however, execution of the judgment or order shall not be
suspended.
Article 204 If a petition presented by a party or his legal
representative or his near relative conforms to any of the
following conditions, the People's Court shall retry the case:
(1) There is new evidence to prove that the confirmation of the
facts in the original judgment or order is definitely wrong;
(2) The evidence upon which the condemnation was made and
punishment meted out is unreliable and insufficient, or the major
pieces of evidence for supporting the facts of the case contradict
each other;
(3) The application of law in making the original judgment or
order is definitely incorrect; or
(4) The judges in trying the case committed acts of
embezzlement, bribery, or malpractices for personal gain, or bended
the law in making judgment.
Article 205 If the president of a People's Court at any level
finds some definite error in a legally effective judgment or order
of his court as to the determination of facts or application of
law, he shall refer the matter to the judicial committee for
handling.
If the Supreme People's Court finds some definite error in a
legally effective judgment or order of a People's Court at any
lower level, or if a People's Court at a higher level finds some
definite error in a legally effective judgment or order of a
People's Court at a lower level, it shall have the power to bring
the case up for trial itself or may direct a People's Court at a
lower level to conduct a retrial.
If the Supreme People's Procuratorate finds some definite error
in a legally effective judgment or order of a People's Court at any
level, or if a People's Procuratorate at a higher level finds some
definite error in a legally effective judgment or order of a
People's Court at a lower level, it shall have the power to present
a protest to the People's Court at the same level against the
judgment or order in accordance with the procedure for trial
supervision.
With respect to a case protested by a People's Procuratorate,
the People's Court that has accepted the protest shall form a
collegial panel for retrial; if the facts, on the basis of which
the original judgment was made, are not clear or the evidence is
not sufficient, it may direct the People's Court at the lower level
to try the case again.
Article 206 A new collegial panel shall be formed for the
retrial of a case by a People's Court in accordance with the
procedure for trial supervision. If the case was originally one of
first instance, it shall be tried in accordance with the procedure
of first instance and the new judgment or order may be appealed or
protested. If the case was originally one of second instance or was
brought up for trial by a People's Court at a higher level, it
shall be tried in accordance with the procedure of second instance
and the judgment or order rendered shall be final.
Article 207 With respect to a case retried by a People's Court
in accordance with the procedure for trial supervision, it shall
conclude the trial within three months from the day on which it
makes the decision to bring the case up for trial itself or on
which the decision is made for it to retry the case. If it is
necessary to extend the time limit, the period shall not exceed six
months.
The provisions of the preceding paragraph shall apply to the
time limit for the trial of a protested case that is accepted by a
People's Court and is to be tried by it in accordance with the
procedure for trial supervision. Where it is necessary to direct a
People's Court at a lower level to try a protested case again, a
decision to such an effect shall be made within one month from the
day on which the protested case is accepted; the provisions of the
preceding paragraph shall apply to the time limit for the trial of
the case by the People's Court at the lower level.
Article 208 Judgments and orders shall be executed after they
become legally effective.
The following judgments and orders are legally effective:
(1) judgments and orders against which no appeal or protest has
been filed within the legally prescribed time limit;
(2) judgments and orders of final instance; and
(3) judgments of the death penalty approved by the Supreme
People's Court and judgments of the death penalty with a two-year
suspension of execution approved by a Higher People's Court.
Article 209 If a defendant in custody is given the verdict of
not guilty or exempted from criminal punishment by a People's Court
of first instance, he shall be released immediately after the
judgment is pronounced.
Article 210 When a judgment of the death penalty with immediate
execution is pronounced or approved by the Supreme People's Court,
the President of the Supreme People's Court shall sign and issue an
order to execute the death sentence.
If a criminal sentenced to death with a two-year suspension of
execution commits no intentional offense during the period of
suspension of the sentence and his punishment should therefore be
commuted according to law on expiration of such period, the
executing organ shall submit a written recommendation to a Higher
People's Court for an order; if there is verified evidence that the
criminal has committed intentional offense and his death sentence
should therefore be executed, the Higher People's Court shall
submit the matter to the Supreme People's Court for examination and
approval.
Article 211 After receiving an order from the Supreme People's
Court to execute a death sentence, the People's Court at a lower
level shall cause the sentence to be executed within seven days.
However, under one of the following conditions the People's Court
at a lower level shall suspend execution and immediately submit a
report to the Supreme People's Court for an order:
(1) If it is discovered before the execution of the sentence
that the judgment may contain an error;
(2) If, before the execution of the sentence, the criminal
exposes major criminal facts or renders other significantly
meritorious service, thus the sentence may need to be revised;
or
(3) If the criminal is pregnant.
If the reason given in sub-paragraph (1) or (2) of the preceding
paragraph which caused the suspension of the sentence has
disappeared, the sentence may be executed only after a report is
submitted to the President of the Supreme People's Court for him to
sign and issue another order for execution of the death sentence.
If execution is suspended for the reason given in sub-paragraph (3)
of the preceding paragraph, a request shall be submitted to the
Supreme People's Court for it to alter the sentence according to
law.
Article 212 Before a People's Court causes a death sentence to
be executed, it shall notify the People's Procuratorate at the same
level to send an officer to supervise the execution.
A death sentence shall be executed by such means as shooting or
injection.
A death sentence may be executed on the execution ground or in a
designated place of custody.
The judicial officer directing the execution shall verify the
identity of the criminal, ask him if he has any last words or
letters and then deliver him to the executioner for execution of
the death sentence. If it is discovered before the execution that
there may be an error, the execution shall be suspended and a
report submitted to the Supreme People's Court for an order.
Executions of death sentences shall be announced but shall not
be held in public.
After a death sentence is executed, the court clerk on the scene
shall prepare a written record of it. The People's Court that
caused the death sentence to be executed shall submit a report on
the execution to the Supreme People's Court.
After a death sentence is executed, the People's Court that
caused the death sentence to be executed shall notify the family
members of the criminal.
Article 213 When a criminal is handed over for execution of his
criminal punishment, the People's Court that caused the sentence to
be executed shall deliver the relevant legal documents to a prison
or other executing organ.
A criminal sentenced to death with a two-year suspension of
execution, or life imprisonment, or fixed-term imprisonment shall,
according to law, be handed over by a public security organ to a
prison for execution of his criminal punishment. As to a criminal
sentenced to fixed-term imprisonment, if the remaining term of
sentence is not more than one year before he is handed over for
execution of his criminal punishment, the sentence shall be
executed by a detention house instead. As to a criminal sentenced
to criminal detention, the sentence shall be executed by a public
security organ.
As to a juvenile delinquent, his criminal punishment shall be
executed in a reformatory for juvenile delinquents.
An executing organ shall take a criminal into custody without
delay and notify the family members of the criminal.
A criminal sentenced to fixed-term imprisonment or criminal
detention, upon completion of execution of the sentence, shall be
issued a certificate of release by the executing organ.
Article 214 A criminal sentenced to fixed-term imprisonment or
criminal detention, under either of the following conditions, may
be permitted to temporarily serve his sentence outside prison:
(1) If the criminal is seriously ill and needs to be released on
parole for medical treatment; or
(2) If the criminal is pregnant or is breast-feeding her own
baby.
If a criminal to be released on parole for medical treatment may
endanger the community or if a criminal injures himself or makes
himself disabled, he may not be released on parole for medical
treatment.
If a criminal is truly ill seriously and must be released on
parole for medical treatment, a supporting document prepared by the
hospital designated by a people's government at the provincial
level shall be needed, and the matter shall be subject to
examination and approval according to the procedure prescribed by
law.
If it is found that a criminal released on parole for medical
treatment does not meet the conditions for release on parole for
medical treatment or the criminal has gravely violated the
regulations regarding such release, he shall be taken back to
prison without delay.
As to a criminal sentenced to fixed-term imprisonment or
criminal detention who is unable to look after himself in everyday
life, if his service of sentence outside prison would not endanger
the community, he may be permitted to serve his sentence outside
prison temporarily.
If a criminal is permitted to serve his sentence outside prison
temporarily, the sentence shall be executed by the public security
organ in the place where the criminal resides, the executing organ
shall exercise strict control and supervision over him and the
grass-roots organizations or the unit where the criminal originally
belonged shall assist in supervision.
Article 215 The organ that approved the temporary service of
sentence outside prison shall send a copy of its decision on the
approval to a People's Procuratorate. If the People's Procuratorate
considers the temporary service of sentence outside prison
improper, it shall within one month from the date of receiving the
notification, submit its recommendation in writing to the organ
that approved the temporary service of sentence outside prison,
which shall, upon receiving the written recommendation of the
People's Procuratorate, reexamine its decision without delay.
Article 216 As soon as the conditions under which a criminal is
permitted to serve his sentence outside prison temporarily cease to
exist, if the criminal's term of sentence has not expired, he shall
be taken back to prison without delay.
If a criminal dies during the period in which he is serving his
sentence outside prison temporarily, the prison shall be informed
thereof without delay.
Article 217 A criminal who has been sentenced to imprisonment
with a suspension of execution shall be placed by the public
security organ under the observation of his unit or a grass-roots
organization.
A criminal released on parole shall be supervised by a public
security organ during the test period of parole.
Article 218 Sentence of public surveillance or deprivation of
political rights that has been imposed on a criminal shall be
executed by a public security organ. After the sentence is served,
the executing organ shall notify the criminal himself and publicly
announce to the people concerned that public surveillance is ended
or that his political rights are restored.
Article 219 If a criminal sentenced to a fine fails to pay the
fine within the time limit, the People's Court shall compel him to
pay. If he has true difficulty in paying because he has suffered an
irresistible disaster, an order may be made to reduce the fine or
exempt him from payment.
Article 220 All judgments on confiscation of property, whether
imposed as a supplementary punishment or independently, shall be
executed by the People's Courts; when necessary, the People's
Courts may execute such judgments jointly with the public security
organs.
Article 221 If a criminal commits a crime again while serving
his sentence, or if a criminal act that is discovered was not known
at the time of judgment, he shall be transferred by the executing
organ to a People's Procuratorate for handling.
If a criminal sentenced to public surveillance, criminal
detention, fixed-term imprisonment or life imprisonment shows true
repentance or renders meritorious service while serving his
sentence and should be granted a commutation of sentence or be
released on parole according to law, the executing organ shall
submit a written recommendation to a People's Court for examination
and an order.
Article 222 If a People's Procuratorate considers that the order
on commutation of sentence or on parole made by a People's Court is
improper, it shall, within 20 days from the date of receiving a
copy of the written order, submit a written recommendation to the
People's Court for correction. The People's Court shall, within one
month from the date of receiving the recommendation, form a new
collegial panel to handle the case and render a final order.
Article 223 If, during execution of a criminal punishment, the
prison or any other executing organ believes that there is an error
in the judgment or the criminal lodges a petition, it shall refer
the matter to the People's Procuratorate or the People's Court that
pronounced the original judgment for handling.
Article 224 The People's Procuratorates shall supervise the
execution of criminal punishments by executing organs to see if the
execution conforms to law. If they discover any illegalities, they
shall notify the executing organs to correct them.
Article 225 The security departments of the Army shall exercise
the power of investigation with respect to criminal offences that
have occurred in the Army.
Crimes committed by criminals in prison shall be investigated by
the prison.
The handling of criminal cases by the security departments of
the Army and by prisions shall be governed by the relevant
provisions of this law.
Source: China.org.cn