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CRIMINAL PROCEDURE LAW
OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted at the Second Session of the Fifth National
People's Congress on July 1, 1979, and revised 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
defendant 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.
SECTION 5 SEARCH
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, neighbours 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.
SECTION 7 EXPERT EVALUATION
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.
SECTION 8 WANTED ORDERS
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
PROCURATORATES
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.
PART THREE TRIAL
CHAPTER I TRIAL ORGANIZATIONS
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.
SECTION 3 SUMMARY PROCEDURE
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
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