CRIMINAL PROCEDURE LAW OF THE PEOPLES REPUBLIC OF CHINA (2018)
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; amended for the first time in according with the Decision on Amending 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; amended for the second time in accordance with the Decision on Amending the Criminal Procedure Law of the People's Republic of China adopted at the Fifth Session of the Eleventh National People's Congress on March 14, 2012; amended for the third time in accordance with the Decision on Amending the Criminal Procedure Law of the People's Republic of China adopted at the 6th Meeting of the Standing Committee of the Thirteenth National People's Congress on October 26, 2018)
Contents
Part One General Provisions
Chapter I Aim and Basic Principles
Chapter II Jurisdiction
Chapter III Recusal
Chapter IV Defense and Representation
Chapter V Evidence
Chapter VI Compulsory Measures
Chapter VII Incidental Civil Actions
Chapter VIII Time Limits and Service
Chapter IX Other Provisions
Part Two Filing a Case, Investigation, and Public Prosecution
Chapter I Filing a Case
Chapter II Investigation
Section 1 General Provisions
Section 2 Interrogation of Criminal Suspects
Section 3 Questioning of Witnesses
Section 4 Inquest and Examination
Section 5 Search
Section 6 Sealing and Seizure of Physical Evidence and Documentary Evidence
Section 7 Expert Evaluation
Section 8 Technical Investigative Measures
Section 9 Wanted Orders
Section 10 Conclusion of Investigation
Section 11 Investigation of Cases Directly Accepted by 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
Section 4 Expedited Trial Procedure
Chapter III Procedure of Second Instance
Chapter IV Procedure for Death Sentence Review
Chapter V Procedure for Trial Supervision
Part Four Execution
Part Five Special Procedures
Chapter I Procedure for Juvenile Delinquency Cases
Chapter II Procedure for a Publicly Prosecuted Case Where the Parties Reaches a Settlement
Chapter III Procedure for Trial in Absentia
Chapter IV Procedure for Confiscating Illegal Gains Involved in a Case Where the Criminal Suspect or Defendant Escapes, Hides or is Dead
Chapter V Procedure for Compulsory Medical Treatment of a Mental Patient Who does not Bear Criminal responsibility According to Law
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 the facts of crimes, correct application of law, punishment of criminals and protection of the innocent from being held criminally responsible; to enhance the citizens' awareness of the need to abide by the law and to fight vigorously against criminal acts; to safeguard the socialist legal system; to respect and safeguard human rights; to protect the citizens' personal and property rights, their democratic rights and other rights; and to guarantee smooth progress of the cause of socialist development.
Article 3 Public security organs shall be responsible for investigation, making arrest, execution of detention and preliminary inquiry in criminal cases. People's procuratorates shall be responsible for procuratorial work, including authorizing approval of detention, conducting investigation of cases directly accepted by people's procuratoriates, and bringing public prosecutions. 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 any of the aforementioned powers.
People's courts, the people's procuratorates and the public security organs must, in criminal proceedings, strictly observe the relevant provisions of this Law and of other laws.
Article 4 Where state security organs handle cases of crimes that endanger state security in accordance with law, they shall perform the same functions and powers as those of 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 organs, public organizations or individuals.
Article 6 In conducting criminal proceedings, the people's courts, people's procuratorates and public security organs must rely on the masses, base their work on facts and take the law as the criterion. The law applies equally to all citizens, and no privilege whatsoever is permissible before the law.
Article 7 In conducting criminal proceedings, the people's courts, people's procuratorates and public security organs shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of the law.
Article 8 The people's procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings.
Article 9 Citizens of all ethnicities shall have the right to use their native spoken and written languages in court proceedings. The people's courts, people's procuratorates and public security organs shall provide translation for any party to the court proceedings that is not familiar with the spoken or written language commonly used in the locality.
Where people of an ethic minority live in a concentrated community or where people of different ethnicities live together in one area, interrogations and court hearings shall be carried out 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 For trial of cases by the people's courts, the system whereby the second instance is final shall be applied.
Article 11 The people's courts shall try cases in open court, unless otherwise provided by this Law. Defendants shall have the right to defense, and the people's courts shall have the duty to ensure the defendants' access to defense.
Article 12 No one shall be found guilty without being adjudicated as such by a people's court according to law.
Article 13 The people's courts shall apply the system whereby the people's assessors shall participate in the trying of cases in accordance with this Law.
Article 14 The people's courts, people's procuratorates and public security organs shall ensure the right to defense and other procedural rights which the criminal suspects, defendants and other litigation participants are entitled to in accordance with law.
A litigation participant shall have the right to file a charge against a judge, procurator or an investigator who acts to infringe on the citizen's procedural rights or subject the participant to personal indignity.
Article 15 A criminal suspect or defendant who voluntarily and truthfully confesses a crime he has committed, admits the facts of the crime accused of, and is willing to accept corresponding punishment shall be allowed for leniency.
Article 16 No one shall be investigated and held for criminal responsibility in any of the following circumstances; if a person has already been investigated for criminal responsibility, the case shall be dismissed, or prosecution be dropped, or trial terminated, or he be declared innocent:
(1) If the act is obviously minor, which causes no serious harm and is therefore not deemed a crime;
(2) If the time limit for criminal prosecution has expired;
(3) If an exemption of criminal punishment has been granted in a special pardon 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 any other law provides an exemption from investigation of criminal responsibility.
Article 17 Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.
If a foreigner with diplomatic privileges and immunities commits a crime for which criminal responsibility should be investigated, such a case shall be resolved through diplomatic channels.
Article 18 In accordance with 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 those of other countries may request judicial assistance from each other in criminal affairs.
Chapter II
Jurisdiction
Article 19 Investigation in criminal cases shall be conducted by public security organs, except as otherwise provided by law.
People's procuratorates may file cases for investigation when they find in exercising legal supervision over litigation activities that there are judicial officers taking advantage of their functions and powers and committing crimes such as illegally detaining others, extorting confessions by torture or engaging in illegal search, which infringe upon the rights of citizens and undermine justice. Where there is a need for the people's procuratorates to directly handle cases of grave crimes which are committed by state functionaries taking advantage of their functions and powers and which are under the jurisdiction of public security organs, the people's procuratorates may file such cases for investigation 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 20 Primary people's courts shall have jurisdiction as courts of first instance over ordinary criminal cases, except those cases which fall under the jurisdiction of the people's courts at higher levels as stipulated by this Law.
Article 21 Intermediate people's courts shall have jurisdiction as courts of first instance over the following criminal cases:
(1) Crimes endangering state security and crimes of terrorist activity; and
(2) Crimes punishable by life imprisonment or death penalty.
Article 22 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 23 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 24 When necessary, people's courts may try criminal cases over which the people's courts at lower levels have jurisdiction as courts of first instance. Where a people's court considers that the circumstances of a criminal case is grave or complex and thus necessitating the trial of first instance by the 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 25 A criminal case shall be under the jurisdiction of the people's court in the place where the crime was committed. Where 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 26 Where two or more people's courts at the same level have jurisdiction over a case, the case shall be tried by the people's court that first accepts it. When necessary, the case may be transferred for trial by the people's court in the principal place where the crime was committed.
Article 27 A people's court 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 28 The jurisdiction over cases in special people's courts shall be stipulated separately.
Chapter III
Recusal
Article 29 In any of the following situations, a judge, procurator or investigator shall voluntarily recuse himself, and the parties to the case and their legal representatives shall have the right to demand his recusal:
(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, which may affect the impartial handling of the case.
Article 30 A judge, procurator or investigator shall not accept invitation to meals or gifts from a party to the case or from a person entrusted by such a party, and shall not, in violation of regulations, meet with a party to a case or a person entrusted by such a party.
A judge, procurator or investigator who violates the provisions of 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 recuse.
Article 31 The recusal 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 recusal of the president of the court shall be determined by the court's judicial committee; and the recusal 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 recusal.
If a decision has been made to reject the application for recusal, the party to the case and his legal representative may apply for reconsideration once.
Article 32 The provisions on recusal in this Chapter shall also be applicable to court clerks, interpreters and expert witnesses.
Defenders and agents ad litem may demand recusal and apply for reconsideration of the decision thereon in accordance with the provisions of this Chapter.
Chapter IV
Defense and Representation
Article 33 In addition to exercising the right to defend himself, a criminal suspect or defendant may engage through authorization one or two persons as his defender(s). The following persons may be authorized as defenders:
(1) Lawyers;
(2) Persons recommended by a public organization or by the entity for which the criminal suspect or defendant works; and
(3) Guardians or relatives and friends of the criminal suspect or defendant.
A person who is subjected to criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as a defender.
A person who has been expelled from public office or whose lawyer's or notary's practice certificate has been revoked shall not serve as a defender, unless he is the guardian or a near relative of the criminal suspect.
Article 34 A criminal suspect shall have the right to engage defender(s) when he is interrogated for the first time or from the date when he is subjected to a compulsory measure by an investigatory body; however, he can only engage lawyer(s) as his defender(s) during the investigatory period. A defendant is entitled to defender(s) at any time.
An investigatory body shall inform the latter that he has the right to engage defender(s) at the first time when a criminal suspect is interrogated or subjected to a compulsory measure. A people's procuratorate shall, within three days from the date of receiving the file record of a case transferred for prosecution, inform the criminal suspect that he has the right to engage defender(s). A people's court shall, within three days from the date of accepting a case, inform the defendant that he has the right to defender(s). Where a criminal suspect or defendant held in custody requests defender(s), the people's court, people's procuratorate or public security organ shall deliver his request in a timely manner.
Where a criminal suspect or defendant is held in custody, his guardian or near relative may engage defender(s) for him.
A defender shall, once being engaged by a criminal suspect or defendant, inform the authority handling the case of his authorization in a timely manner.
Article 35 Where a criminal suspect or defendant fails to engage a defender due to financial difficulty or other reasons, he or his near relative may apply to a legal aid agency. If he is eligible to legal aid, the legal aid agency shall appoint a lawyer to defend him.
Where a criminal suspect or defendant fails to engage a defender, and he is blind, deaf or dumb, or a mental patient who is not completely aware of or has incomplete ability to control his own conduct, a people's court, people's procuratorate or public security organ shall inform a legal aid agency for appointing a lawyer to defend him.
Where a criminal suspect or defendant fails to engage a defender and he may be sentenced to life imprisonment or death penalty, a people's court, people's procuratorate or public security organ shall inform a legal aid agency for appointing a lawyer to defend him.
Article 36 Legal aid agencies may station duty lawyers in such premises as the people's courts or detention houses. In case that a criminal suspect or defendant fails to engage a defender and no legal aid agency has appointed a lawyer to defend him, a duty lawyer may offer assistance in legal consultation, advice on procedural choice, application for alteration of compulsory measures and providing opinions on the case, etc.
A people's court, people's procuratorate and detention house shall inform a criminal suspect or defendant of his right to meet with a duty lawyer, and shall facilitate the criminal suspect or defendant in meeting with a duty lawyer.
Article 37 The responsibility of a defender is, based on the facts and law, to put forward materials and opinions showing that a criminal suspect or defendant is innocent, that his defense is a light one, or that he should be exempted from criminal responsibility or bear mitigated criminal responsibility, and to protect the procedural rights and other legitimate rights of the criminal suspect or defendant.
Article 38 A defense lawyer may provide a criminal suspect with legal help during the investigatory period, act as the agent ad litem for filing a complaint or charge, apply for altering the applied compulsory measure, inquire of an investigatory body about the suspected crime and relevant information of the case and put forward opinions.
Article 39 A defense lawyer may meet and correspond with a criminal suspect or defendant in custody. Other defenders may do so with permission of the people's court or people's procuratorate.
Where a lawyer requests to meet with the criminal suspect or defendant in custody on the strength of his practice certificate, paper issued by his law firm, and the letter of authorization or official legal aid paper, the detention house shall make arrangements in a timely manner for them to meet, without exceeding 48 hours the latest.
For a case under investigation which involves a crime endangering national security or a crime of terrorist activity, a defense lawyer shall obtain approval from the investigatory body for meeting with the criminal suspect held in custody during the investigatory period. In such a case, the investigatory body shall notify the detention house in advance.
A defense lawyer may inquire about the case involved, provide legal consultation, etc. when meeting with the criminal suspect or defendant in custody; and may verify relevant evidence with the criminal suspect or defendant from the date the case is transferred for prosecution. A defense lawyer's meeting with the criminal suspect or defendant shall not be subject to surveillance.
Provisions of the first, third and fourth paragraphs shall be applicable to a defense lawyer's meeting and correspondence with a criminal suspect or defendant under house arrest.
Article 40 A defense lawyer may consult, excerpt and duplicate the case files pertaining to the case he or she is handling from the date the case is being examined by the people's procuratorate for prosecution. Other defenders may also consult, excerpt and duplicate the aforesaid materials upon permission of the people's court or people's procuratorate.
Article 41 If a defender believes that the public security organ or people's procuratorate fails to submit the evidence collected during the periods of investigation and examination for prosecution which can prove the innocence of the criminal suspect or defendant or prove that the crime committed is lighter than the one charged, the defender shall have the right to apply to the people's procuratorate or people's court for access to such evidence.
Article 42 If a defender finds that a criminal suspect has an alibi, or that there is evidence proving that the criminal suspect has not reached the age for assuming criminal responsibility or is an mental patient who should not assume any criminal responsibility in accordance with law, the defender shall inform the public security organ and people's procuratorate as such without delay.
Article 43 A defense lawyer may, with the consent of witnesses or other entities and individuals concerned, collect from them information pertaining to the current case. The defense lawyer may also apply to the people's procuratorate or people's court for collection and obtaining of evidence, or request the people's court to notify a witness for appearing in court and giving testimony.
With the permission of the people's procuratorate or people's court, and with the consent of a victim or of a witness provided by the victim's near relative or the victim himself, a defence lawyer may collect information pertaining to the current case from the said victim or witness.
Article 44 No defender or any other person may assist a criminal suspect or defendant in concealing, destroying or falsifying evidence, or collide to tally a confession, or threat or entice a witness into giving false testimony, or engage in any other act interfering with the proceedings carried out by judicial organs.
A person violating the provisions of the preceding paragraph shall be investigated for legal responsibility according to law, and a defender suspected of committing a crime shall be dealt with by an investigatory body other than the one handling the case for which the defender is engaged. If the aforesaid defender is a lawyer, the law firm or lawyers' association he belongs to shall be notified of such a matter in time.
Article 45 During a trial, a defendant may refuse to have his defender continue to defend him and may authorize another defender for such a purpose.
Article 46 A victim of a publicly prosecuted case, his legal representative or near relative, and a party to an incidental civil action and his legal representative shall have the right to engage an agent ad litem from the date when the case is transferred for prosecution. In a privately prosecuted case, the private prosecuting party and his legal representative, and a party to an incidental civil action and his legal representative shall have the right to engage an agent 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 prosecution, notify the victim and his legal representative or near relative, and the party to an incidental civil action and his legal representative that they have the right to engage their own agent ad litem. The people's court shall, within three days from the date of accepting a case of private prosecution, notify the private prosecuting party and his legal representative, and the party to an incidental civil action and his legal representative that they have the right to engage their own agent ad litem.
Article 47 The provisions of Article 33 of this Law shall be applied mutatis mutandis to the engagement of an agent ad litem.
Article 48 A defense lawyer is entitled to confidentiality as regards the situation and information of his client that he comes to know of in practice. However, if a defense lawyer becomes aware that his client or any other person is going to commit or is committing a crime that undermines national security or public security or that seriously endangers the safety of another person, the defense lawyer shall inform the judicial organs as such without delay.
Article 49 If a defender or an agent ad litem believes that a public security organ, people's procuratorate or people's court, or any of its staff members obstructs the defender or agent ad litem from exercising his procedural rights in accordance with law, the defender or agent ad litem is entitled to lodge a complaint or bring an accusation with the people's procuratorate at the same or next higher level. The people's procuratorate concerned shall make an investigation upon receiving such a complaint or accusation, and if the situation complained or accused of is verified to be true, the people's procuratorate shall notify the relevant organ for rectification.
Chapter V
Evidence
Article 50 All materials that can be used to prove the facts of a case shall be evidence.
Evidence shall comprise of the following:
(1) Physical evidence;
(2) Documentary evidence;
(3) Testimony of a witness;
(4) Statement of a victim:
(5) Statement and exculpation of a criminal suspect or defendant;
(6) Expert conclusion;
(7) Record of inquest, examination, identification and investigatory experiment; and
(8) Audio-visual material and electronic data.
Evidence must be verified before it is used as the basis for deciding a case.
Article 51 In a publicly prosecuted case, the burden of proof that a defendant is guilty lies with the people's procuratorate; whereas in a privately prosecuted case, the burden of proof lies with the prosecuting party.
Article 52 A judge, procurator or investigator must, in accordance with the statutory procedure, collect various kinds of evidence, no matter it proving the criminal suspect's or defendant's guilt or innocence, or the crime to be a minor or grave one. It is strictly forbidden to extort confessions by torture or to collect evidence by threat, enticement, deceit or any other unlawful means. No one may be forced to incriminate himself. Conditions must be provided to guarantee that a citizen involved in a case or possessing information about a case has the opportunity to objectively and fully furnish evidence and, except in special circumstances, the aforesaid citizen may be brought in to help the investigation.
Article 53 A public security organ's request for approval of detention, people's procuratorate's bill of prosecution and people's court's written judgment must faithfully stick to the facts. Anyone who intentionally conceals the facts shall be investigated for responsibility.
Article 54 A people's court, people's procuratorate and public security organ shall have the authority to collect or obtain evidence from the entities and individuals concerned. Such entities and individuals concerned shall provide truthful evidence.
Evidence collected by an administrative organ in the course of administrative law enforcement or handling of a case, such as physical evidence, documentary evidence, audio-visual material or electronic data, may be used as evidence in a criminal litigation.
Evidence involving state secrets, trade secrets or privacy shall be kept confidential.
Anyone who falsifies, conceals or destroys evidence, regardless of the standing he has in a case he, must be investigated for responsibility under the law.
Article 55 In the handling and decision of a case, stress shall be laid on evidence, investigation and study, and credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced if there is only his confession but no other evidence; however, a defendant may be found guilty and sentenced if, in the absence of his confession, there is reliable and sufficient evidence proving his guilt.
The following conditions shall be met for evidence to be reliable and sufficient:
(1) Every fact used for condemning a crime and sentencing shall be proved by evidence;
(2) Every piece of evidence based on which a case is decided shall be examined and verified as true according to the statutory procedure; and
(3) Based on all the evidence in a case, the facts ascertained thereby is beyond reasonable doubt.
Article 56 A confession of a criminal suspect or defendant obtained by means of torture, or a witness's testimony or victim's statement obtained by violence, threat or other unlawful means shall be excluded. Physical evidence or documentary evidence that is obtained in violation of law and may seriously affect justice shall be supplemented, corrected, or reasonably explained; where supplementation, correction or reasonable explanation fails to be made, the aforesaid evidence shall be excluded.
Evidence that should be excluded as is discovered during investigation, examination before prosecution or during trial, shall be excluded in accordance with law, and shall not be used as the basis for prosecutorial opinion or decision, nor as the basis for a court decision.
Article 57 Where a people's procuratorate receives a complaint, an accusation or a report, or discovers that an investigator collects evidence by illegal means, it shall carry out an investigation for verification. If illegal means is resorted in the collection of evidence, it shall put forward an opinion on rectification; if a crime is committed, the said investigator shall be investigated for criminal responsibility accordance to law.
Article 58 If, during a court trial, a judge believes there is a possibility that evidence is collected by illegal means specified in Article 56 of this Law, the judge shall investigate in court as regards the legality of the said evidence.
A party and his defender or an agent ad litem is entitled to applying to a people's court for excluding illegally collected evidence in accordance with law. Whoever applies for exclusion of illegally collected evidence shall provide relevant clues or material.
Article 59 During the court investigation for the legality of evidence collection, the people's procuratorate shall bear the burden of proof.
In the absence of sufficient evidentiary material proving the legality of evidence collection, the people's procuratorate may request the people's court to notify relevant investigators or other persons concerned to give explanation before the court, and the people's court may, upon such a request, notify relevant investigators or other persons concerned to give explanation before the court. Relevant investigators or other persons concerned may also take the initiative to request to offer their explanation before the court. The persons concerned shall appear before the court if so notified by the people's court.
Article 60 Evidence shall be excluded if court investigation confirms or is unable to rule out that there have been circumstances of collecting evidence by illegal means as is specified in Article 56 of this Law.
Article 61 Testimony of a witness shall only be admitted as the basis for determining a case after the witness has been cross-examined in courtroom by the public procurator and the victim as one side and by the defendant and the defender as the other side. If a court finds through investigation that a witness intentionally gives false testimony or conceals criminal evidence, the court shall handle the matter in accordance with law.
Article 62 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 63 The people's court, people's procuratorate and public security organ shall ensure the safety of a witness and his near relatives.
Anyone who intimidates, insults, beats or retaliates against a witness or his near relatives, which constitutes a crime, shall be investigated for criminal responsibility according to law; if the circumstances are not serious enough for criminal punishment, he shall be punished for violation of public security in accordance with law.
Article 64 Where, a witness, expert witness or victim testifies in the proceedings of a crime endangering state security, a crime of terrorist activity, a crime committed by an organization of the nature of a criminal gang, or a drug-related crime, etc., and thus the personal safety of the said person or of his near relative is endangered, the people's court, people's procuratorate and public security organ shall adopt one or more of the following protective measures:
(1) Keeping confidential the real name, address, employer and other personal information of the aforesaid person;
(2) Avoiding exposing the actual appearance or true voice of the person who testifies in court;
(3) Prohibiting certain persons from having contact with the said witness, expert witness, victim and his near relatives;
(4) Adopting special measures to protect the personal safety and residential security of the aforesaid persons; and
(5) Other necessary protective measures.
A witness, expert witness or victim who believes that his personal safety or the personal safety of his near relatives is in danger due to his testimony in the proceedings may apply for protection with the people's court, people's procuratorate or public security organ.
Relevant entities and individuals shall provide cooperation when a people's court, people's procuratorate or public security organ takes protective measures in accordance with law.
Article 65 A witness shall be entitled to allowance in terms of transportation, accommodation and food expenses incurred for performing the obligation of giving testimony. The allowance granted to a witness for giving testimony shall be included in the operational expenses of judicial organs and be guaranteed by the people's government's finance at the same level.
Where the witness is an employee, the entity he works for shall not deduct his salary, bonus or any other benefit or do so in a disguised form.
Chapter VI
Compulsory Measures
Article 66 A people's court, people's procuratorate and public security organ may, according to the circumstances of a case, issue a warrant to compel the appearance of the criminal suspect or defendant, release him awaiting trial on bail or a guarantor, or subject him to residential surveillance.
Article 67 A people's court, people's procuratorate and public security organ may allow a criminal suspect or defendant under any of the following conditions to be released on bail or a guarantor:
(1) Where the criminal suspect or defendant may be sentenced to controlled release, criminal detention, or to a supplementary punishment separately meted out;
(2) Where the criminal suspect or defendant may sentenced to fixed-term imprisonment or a severer punishment, but will not pose a threat to the society if he is released on bail or a guarantor;
(3) Where the criminal suspect or defendant is suffering from a serious illness and cannot take care of oneself, or is pregnant or breastfeeding her baby, and will not pose a threat to the society if the criminal suspect or defendant is released on bail or a guarantor; or
(4) Where the case involved has not been concluded upon expiration of the custodial period, and therefore release of the criminal suspect or defendant on bail or a guarantor is required.
Release on bail or a guarantor shall be executed by public security organs.
Article 68 If a people's court, people's procuratorate or public security organ decides to allow a criminal suspect or defendant to be released on bail or a guarantor, they shall order the criminal suspect or defendant to provide a guarantor or pay the bail bond.
Article 69 A guarantor must be a person who meets the following conditions:
(1) He is not involved in the current case;
(2) He is able to perform a guarantor's obligations;
(3) He is entitled to political rights and not subjected to any restriction of personal freedom; and
(4) He has a fixed domicile and a steady income.
Article 70 A guarantor shall perform the following obligations:
(1) To ensure that the person under his guarantee observes the provisions of Article 71 of this Law; and
(2) To promptly report to the executing organ in case of discovering that the person under his guarantee might commit or has already committed an act prescribed in Article 71 of this Law.
Where the guarantor fails to perform the aforesaid obligations when the person under his guarantee commits an act in violation of the provisions of Article 71 of this Law, the guarantor shall be given a fine; where such failure constitutes a crime, he shall investigated for criminal responsibility in accordance with law.
Article 71 A criminal suspect or defendant who is released on bail or a guarantor shall abide by the following provisions:
(1) Not to leave the city or county where he resides without the permission of the executing organ;
(2) To report any change of address, employer and contact information to the executing organ within 24 hours of the change;
(3) To appear before the court on time when summoned;
(4) Not to interfere, in any form, with any witness giving testimony; and
(5) Not to destroy or falsify evidence or tally confessions.
A people's court, people's procuratorate and public security organ may, depending on the circumstances of a case, order the criminal suspect or defendant who has been released on bail or a guarantor to abide by one or more of the following provisions:
(1) Not to enter certain places;
(2) Not to meet or correspond with certain persons;
(3) Not to engage in certain activities; and
(4) To surrender his passport and other exit or entry documents and driver's license to the executing organ.
Where a criminal suspect or defendant who has been released on bail or a guarantor violates the provisions of the preceding two paragraphs, part or all of the bail bond paid shall be forfeited, and depending on the specific circumstances, the criminal suspect or defendant shall be ordered to write a recognizance of repentance, pay another bail bond or provide another guarantor, or be placed under house arrest or detention.
In case of a criminal suspect or defendant violating the provisions for release on bail or a guarantor, and the detention of him is necessary, the criminal suspect or defendant may be put under arrest first.
Article 72 When determining the amount of the bail bond to be paid, the organ rendering the release on bail shall take into account the requirements for ensuring the normal proceedings of litigation activities, the potential danger posed to the society by the person to be released on bail, the nature and circumstances of the case, the severity of the possible sentencing and the financial conditions of the person to be released on bail.
The person who provides the bail bond shall deposit the money in a special bank account designated by the executing organ.
Article 73 If a criminal suspect or defendant does not violate any of the provisions of Article 71 of this Law during the period when he is released on bail or a guarantor, he shall collect the deposited bond from the relevant bank upon expiration of the bail period by presenting the notice on termination of release on bail or other relevant legal instruments.
Article 74 A people's court, people's procuratorate and public security organ may place under house arrest a criminal suspect or defendant who meets the conditions for detention but is under any of the following circumstances:
(1) Who is seriously ill and cannot take care of himself;
(2) Who is pregnant or breastfeeding her baby;
(3) Who is the sole supporter of someone who is unable to take care of himself;
(4) House arrest is more appropriate considering the special circumstances of the case or the need for case handling; or
(5) Whose case has not been concluded upon expiration of the custodial period, and therefore house arrest is necessary.
A criminal suspect or defendant who meets the conditions for release on bail or a guarantor, but fails to provide a guarantor or pay the bail bond may be placed under house arrest.
House arrest shall be executed by a public security organ.
Article 75 House arrest shall be enforced at the domicile of a criminal suspect or defendant, or at a designated place of residence if he has no regular domicile. Where, for a criminal suspect or defendant suspected of committing a crime endangering state security or a crime of terrorist activity, putting him under house arrest at his domicile may impede the investigation, he may be placed under house arrest at a designated place of residence upon approval by the public security organ at the next higher level. However, house arrest may not be enforced in a detention house or a special venue for case investigation.
Where a criminal suspect or defendant is placed under house arrest at a designated place of residence, a notice related thereto shall be given to his family within 24 hours upon enforcement of house arrest, unless such a notice cannot be processed.
Where a criminal suspect or defendant under house arrest engages a defender, the provisions in Article 34 of this Law shall apply.
People's procuratorates shall exercise supervision over the legality of the decision on and enforcement of house arrest at designated places of residence.
Article 76 The time period of house arrest at designated places of residence shall be deducted from the term of sentenced punishment. For criminals sentenced to controlled release, each day of house arrest shall be counted as one day of the term of sentenced punishment; for criminals sentenced to criminal detention or fixed-term imprisonment, two days of house arrest shall be counted as one day of the term of sentenced punishment.
Article 77 A criminal suspect or defendant under house arrest shall abide by the following provisions:
(1) Without the permission of the executing organ, not to leave the residence where house arrest is applied;
(2) Not to meet or correspond with any one without the permission of the executing organ;
(3) To appear before the court in time when summoned;
(4) Not to interfere, in any form, with a witness giving testimony;
(5) Not to destroy or falsify evidence or tally confessions; and
(6) To surrender passport and other exit or entry documents, identity certificate and driver's license to the executing organ.
Where a criminal suspect or defendant placed under house arrest violates the provisions in the preceding paragraph and the circumstances are serious, he may be detained. Where it is necessary to detain such a criminal suspect or defendant, he may be put under arrest first.
Article 78 An executing organ may monitor a criminal suspect or defendant under house arrest with respect to his compliance with house arrest provisions by means of electronic monitoring, ad hoc inspection, etc. During the investigation period, the correspondence of the criminal suspect under house arrest may be monitored.
Article 79 The period granted by a people's court, people's procuratorate or public security organ to a criminal suspect or defendant for release on bail or a guarantor shall not exceed twelve months; and the period for house arrest shall not exceed six months.
Investigation, prosecution and handling a case shall not be suspended during the period when the criminal suspect or defendant is released on bail or a guarantor or when he is under house arrest. Where it is discovered that a person should not be investigated for criminal responsibility or when the period for a criminal suspect's or defendant's release on bail or a guarantor or the period of his house arrest has expired, the bail or house arrest measure shall be lifted without delay; and the aforementioned person or criminal suspect or defendant and the entities concerned shall be notified of the lift of such a measure immediately.
Article 80 Detention of a criminal suspect or defendant shall be subject to approval of the people's procuratorate or decision of the people's court and shall be executed by the public security organ.
Article 81 Where there is evidence to support the facts of a crime and the criminal suspect or defendant involved is likely to be sentenced to a fixed-term imprisonment or a severer punishment, and releasing him on bail or a guarantor is insufficient to prevent the following dangers to the society, the said criminal suspect or defendant shall be detained in accordance with law:
(1) The criminal suspect or defendant may commit a new crime;
(2) There is a real risk that the criminal suspect or defendant may endanger state security, public security or public order;
(3) The criminal suspect or defendant may destroy or falsify evidence, interfere with a witness giving testimony, or tally confession;
(4) The criminal suspect or defendant may retaliate against a victim, informant or accuser; or
(5) The criminal suspect or defendant tries to commit suicide or escape.
For approving or deciding on the detention of a criminal suspect or defendant, such factors as the nature and circumstances of the crime, and whether the criminal suspect or defendant has taken a guilty plea shall be taken into account as to whether or not the said criminal suspect or defendant will post a danger to the society if he is released on bail or a guarantor.
Where there is evidence to support the facts of a crime and the criminal suspect or defendant involved is likely to be sentenced to a fixed-term imprisonment of ten years or a severer punishment, or where there is evidence to support the facts of a crime and the criminal suspect or defendant is likely to be sentenced to a fixed-term imprisonment or a severer punishment, and he has intentionally committed a prior crime or his identity is unknown, the said criminal suspect or defendant shall be detained in accordance with law.
A criminal suspect or defendant who is released on bail or a guarantor or placed under house arrest may be detained if he violates the provisions for release on bail or a guarantor or house arrest and the circumstances are serious.
Article 82 A public security organ may first arrest an active criminal or an important suspect under any of the following circumstances:
(1) If he is preparing to commit a crime or 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 him 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 real name or address, or his identity is unknown; and
(7) If he is strongly suspected of committing crimes from place to place, repeatedly, or in a gang.
Article 83 When a public security organ is to arrest or detain a person who is 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 84 A person under any of the following circumstances may be seized outright and delivered to a public security organ, people's procuratorate or people's court by any citizen:
(1) Who is committing a crime or is discovered immediately after committing a crime;
(2) Who is wanted for a suspected crime;
(3) Who has escaped from prison; and
(4) Who is being pursued for a crime committed.
Article 85 When arresting a person, a public security organ must produce an arrest warrant.
After being arrested, the arrestee shall immediately be transferred to a detention house for custody, not exceeding 24 hours the latest. The arrestee's family shall be noticed within 24 hours after the arrest is made, unless a notice cannot be processed or where the arrestee is involved in a crime endangering state security or a crime of terrorist activity and such a notice may impede investigation. The family of the arrestee shall be given relevant information immediately after impediments thereto is removed.
Article 86 A public security organ shall interrogate an arrestee within 24 hours after the arrest is made. If it is discovered that a person should not have been arrested, the public security organ shall immediately release him and issue a release certificate to him.
Article 87 For a public security organ to detain a criminal suspect, it shall prepare a detention request in written form and transfer the request along with the case file and evidence to the people's procuratorate at the same level for approval. Where necessary, the people's procuratorate may send procurators to participate in the discussion of a major case held by the public security organ.
Article 88 When examining a case as regards whether to approve a request to detain a criminal suspect, the people's procuratorate may interrogate the criminal suspect; and it shall interrogate him under any of the following circumstances:
(1) Where there is a doubt over whether the conditions for detention are satisfied;
(2) Where the criminal suspect requests to make a statement in front of a procurator; or
(3) Where there may be a major violation of law in the investigation.
During the course of examination as to whether to approve a detention request, the people's procuratorate may question witnesses and other litigation participants, and listen to the opinions of the defense lawyer(s), and it shall hear the opinions of the defense lawyer(s) if they request to be heard.
Article 89 Whether or not to approve the detention of a criminal suspect shall be subject to the decision of the chief procurator. Major cases shall be submitted to the procuratorial committee for discussion and decision.
Article 90 After a people's procuratorate has examined a case for which the public security organ submitted a detention request, the people's procuratorate shall decide whether or not to approve the detention request according to the circumstances of the case. If it decides to approve the detention, the public security organ shall execute the decision immediately and inform the people's procuratorate of the results of execution in time. If the people's procuratorate decides to disapprove the detention, it shall state the reasons; and if a supplementary investigation is necessary, it shall at the same time notify the public security organ as such.
Article 91 If the public security organ deems it necessary to detain an arrestee, it shall, within three days after the arrest is made, submit a detention request to the people's procuratorate for approval. Under special circumstances, the time limit for submitting a detention request may be extended by one to four days.
As to a request for detaining a major criminal suspect who has committed crimes from place to place, repeatedly, or in a gang, the time limit for submitting the detention request may be extended to 30 days.
The people's procuratorate shall decide whether or not to approve a detention request within seven days from the date of receiving the written request submitted by a public security organ. If the people's procuratorate disapproves the detention, the public security organ shall, upon receiving the notice of disapproval, immediately release the arrestee and inform the people's procuratorate of the results without delay. If further investigation is necessary and the arrestee meets the conditions for release on bail or a guarantor or the conditions for house arrest, he shall be released on bail or a guarantor or be placed under house arrest according to law.
Article 92 If the public security organ believes that the people's procuratorate's decision to disapprove a detention request is erroneous, the public security organ may request a reconsideration but must immediately release the arrestee. If the public security organ's opinion is still not accepted upon reconsideration, it may apply for review by the people's procuratorate at the next higher level. The said people's procuratorate at the next higher level shall immediately review the matter, make a decision on whether or not to revise the decision of the lower-level people's procuratorate, and notify the lower-level people's procuratorate and the public security organ to implement the review decision.
Article 93 For detaining a person, the public security organ must produce the detention paper.
After a person is detained, he shall immediately be transferred to a detention house for custody and his family shall be notice as such within 24 hours unless such a notice cannot be processed.
Article 94 Interrogation of a detainee must be conducted within 24 hours after he is detained upon a decision of the people's court or people's procuratorate, or is detained by the public security organ with the approval of the people's procuratorate. Where it is found that a person should not have been detained, the person must be immediately released and a release certificate be issued to him.
Article 95 After a criminal suspect or defendant is detained, the relevant people's procuratorate shall still examine the necessity for keeping him in custody. If it is not necessary, the people's procuratorate shall make a suggestion on releasing him or altering the compulsory measure. The relevant organ shall notify the people's procuratorate of the results of the handling within 10 days.
Article 96 Where a people's court, people's procuratorate or public security organ finds that the compulsory measure applied to a criminal suspect or defendant is inappropriate, such a measure shall be cancelled or altered without delay. Where a public security organ releases a detainee or alter the measure for arrest, it shall notify the people's procuratorate that approved the detention as such.
Article 97 A criminal suspect or defendant and his legal representative, near relative or defender is entitled to applying for the alteration of compulsory measures. The people's court, people's procuratorate or public security organ concerned shall make a decision within three days upon receipt of the application, and if it rejects such an application, it shall inform the applicant of the reasons.
Article 98 Where a criminal suspect or defendant is kept in custody, if the handling of his case cannot be concluded on the expiration of the prescribed time period for investigation, examination for prosecution or the proceedings of first or second instance as are prescribed by this Law, the criminal suspect or defendant shall be released. Where further investigation, verification or trial is necessary, the criminal suspect or defendant may be released on bail or a guarantor or be placed under house arrest.
Article 99 Upon expiration of the statutory time limit for a compulsory measure applied to a criminal suspect or defendant, a people's court, people's procuratorate or public security organ shall release the criminal suspect or defendant, lift the compulsory measure such as release on bail or a guarantor or house arrest, or alter the compulsory measure in accordance with law. The criminal suspect or defendant, and his legal representative, near relative or defender is entitled to request the people's court, people's procuratorate or public security organ to lift the compulsory measure upon expiration of the statutory time limit thereof.
Article 100 If, in the process of examining a detention request, the people's procuratorate discovers illegalities in the investigatory activities of a public security organ, it shall notify the public security organ for correction, and the said public security organ shall notify the people's procuratorate of the corrections it has made.
Chapter VII
Incidental Civil Actions
Article 101 A victim who has suffered property losses due to the defendant's criminal offense is entitled to bring an incidental civil action during the criminal proceedings. Where the victim has died or lost the capacity for civil conduct, his legal representative or near relative is entitled to bring an incidental civil action.
In the event of any loss incurred to state- or collectively-owned property, a people's procuratorate may bring an incidental civil action when initiating a public prosecution.
Article 102 When necessary, a people's court may take preservation measures to seal up, seize or freeze a defendant's property. The plaintiff or people's procuratorate to an incidental civil action may apply to the people's court for taking preservation measures. The relevant provisions of the Civil Procedure Law shall be applicable where the people's court takes preservation measures.
Article 103 A people's court, in hearing an incidental civil case, may conduct mediation or make a judgment or ruling thereon according to the amount of property losses.
Article 104 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 trial organization, after completing the trial of the criminal case, continue to hear the incidental civil action.
Chapter VIII
Time Periods and Service
Article 105 Time period shall be counted 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 period.
A statutory 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.
If the last day of a statutory time period falls on a public holiday, the day immediately following the public holiday shall be regarded as the expiration date of the time period; however, the time period for holding a criminal suspect, defendant or criminal in custody shall expire on the last day of the period, and shall not be extended due to the public holiday.
Article 106 When a party cannot meet a deadline due to force majeure or other legitimate reasons, he may, within five days after the obstacle is removed, apply for continuing the proceedings that should have been completed before the expiration of the prescribed time period.
A people's court shall decide whether or not to approve such an application as is prescribed in the preceding paragraph.
Article 107 A summons, notice or any other court document shall be delivered to the addressee himself; if the addressee is absent, the document may be received on his behalf by an adult member of his family or a responsible person of the entity he works for.
If the addressee or a person on behalf of the addressee refuses to accept a document delivered or sign or affix a seal to the receipt, the person serving the document may ask the addressee's neighbors or other witnesses to the scene, explain the situation to them, leave the document 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 108 For the purpose of this law, the definitions of the following terms are:
(1) "Investigation" refers to the work a public security organ or people's procuratorate carries out in relation to a criminal case, including the collection of evidence, the efforts in finding out the truth and the related compulsory measures taken according to law.
(2) "A party" refers to a victim, private prosecuting party, criminal suspect or defendant, or a plaintiff or defendant in an incidental civil action.
(3) "A legal representative" refers to a parent, foster parent or guardian of a ward, a representative of a state organ or public organization which is responsible for protecting the ward;
(4) "A participant in the proceedings" refers to a party or a legal representative of the party, an agent ad litem, a defender or witness, or an expert witness or interpreter;
(5) "An agent ad litem" refers to a person who is engaged by a victim in a case of public prosecution or by the legal representative or near relative of the victim or who is engaged by a private prosecuting party in a case of private prosecution or by his legal representative, to participate in legal proceedings on behalf of the said victim or private prosecuting party, and the person engaged by a party in an incidental civil action or his legal representative to participate in legal proceedings on behalf of the said party.
(6) "A near relative" refers to a person's husband or wife, father, mother, son or daughter, or a brother or sister born of the same parent.
Part Two
Filing a Case, Investigation, and Initiation of Public Prosecution
Article 109 Public security organs or people's procuratorates shall, upon discovering facts of crimes or criminal suspects, file the cases for investigation within the scope of their jurisdiction.
Article 110 Any entity or individual, upon discovering the facts of a crime or a criminal suspect, shall have the right and duty to report or provide information to a public security organ, people's procuratorate or people's court.
When his personal or property rights are infringed upon, the victim shall have the right to report the criminal facts or bring a complaint against the criminal suspect to a public security organ, people's procuratorate or people's court.
The public security organ, people's procuratorate or people's court shall accept all reports, complaints and information pertaining to a criminal case. If the case does not fall under its jurisdiction, it shall refer the case to the competent organ in charge and notify the person who reported the case, lodged the complaint or provided the information as such. If the case does not fall under its jurisdiction but calls for emergency measures to be taken, it shall take necessary emergency measures before referring the case to the competent organ in charge.
Where an offender delivers himself up to a public security organ, people's procuratorate or people's court, the provisions of the third paragraph shall apply.
Article 111 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 the reporter, complainant or informant.
The officer receiving the complaint or information shall clearly explain to the complainant or the informant the legal responsibility that he will assume for lodging 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 fact or evidence is involved.
The public security organ, people's procuratorate and people's court shall ensure the safety of a reporter, complainant, informant or his near relatives. If the reporter, complainant or informant prefers not to have his name and details of reporting, complaining or informing disclosed to the public, such information shall be kept confidential.
Article 112 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 himself. If it believes that there are facts of a crime and that 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 any case and shall notify the complainant of the reasons. If the complainant does not agree with the decision, he may ask for reconsideration.
Article 113 Where a people's procuratorate believes that a case should be filed for investigation by a public security organ but the latter has not done so, or where a victim believes 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 concerned shall request the public security organ to give the reasons for not filing the case. If the people's procuratorate believes 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 the public security organ shall do so upon receiving the notification,.
Article 114 As to a case of private prosecution, the victim shall have the right to bring a lawsuit directly to a people's court. If the victim is dead or has lost the capacity for conduct, his legal representative and near relative shall have the right to bring a lawsuit to a people's court. The people's court shall accept it according to law.
Chapter II
Investigation
Section 1
General Provisions
Article 115 With respect to a criminal case which has been filed, the public security organ shall carry out investigation, collect and obtain all evidence, no matter it proving the criminal suspect's guilt or innocence, or the crime to be a minor or grave one. An active criminal or a major suspect may be put under arrest first according to law, and a criminal suspect who meets the conditions for detention shall be detained according to law.
Article 116 After investigation, the public security organ shall start preliminary inquiry into a case for which there is evidence supporting the facts of a crime and verify the evidence which has been collected and obtained.
Article 117 A party, the defender, the agents ad litem or an interested party is entitled to file a petition or complaint to a judicial organ if the judicial organ or any of its staff members engages in any of the following acts:
(1) Failing to grant a release, or failing to lift or alter a compulsory measure upon expiration of the statutory time limit;
(2) Failing to return the bond for bail that should be returned;
(3) Sealing up, seizing or freezing property irrelevant to a case;
(4) Failing to lift the sealing, seizure and freeze of property as required; or
(5) Embezzling, misappropriating, illegally sharing, replacing, or using in violation of relevant provisions, the property that has been sealed up, seized or frozen.
The organ receiving such a petition or complaint shall handle it in a timely manner. Where the party lodging the petition or compliant has objection to the handling results, he may appeal to the people's procuratorate at the same level. If the case is handled directly by a people's procuratorate, the party concerned may file such a petition or complaint to the people's procuratorate at the next higher level. The receiving people's procuratorate shall examine the petition or complaint in a timely manner and notify the relevant organ to make correction if the complained matter is found to be true.
Section 2
Interrogation of Criminal Suspects
Article 118 Interrogation of a criminal suspect must be conducted by investigators of a people's procuratorate or public security organ. There must be no fewer than two investigators for conducting an interrogation.
After a criminal suspect is transferred to a detention house for custody, investigators shall interrogate the suspect in the detention house.
Article 119 A criminal suspect who does not need to be detained or arrested may be summoned to a designated location of the city or county where he lives for interrogation or may be interrogated at his domicile, provided that the supporting documents issued by the relevant people's procuratorate or public security organ are presented. A criminal suspect found at the scene may be orally summoned by a law enforcement officer by presenting his work certificate, provided that the oral summon is noted in the written record of interrogation.
Investigation upon summon or compelled appearance shall last no longer than 12 hours. For complicated cases of especially serious circumstances where arrest or detention is necessary, investigation upon summon or compelled appearance in court shall last no longer than 24 hours.
A criminal suspect shall not be detained under the disguise of successive summons or compelled appearance. A criminal suspect shall be guaranteed with necessary food, drink and rest when he is summoned or compelled to appear for investigation.
Article 120 When interrogating a criminal suspect, 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 investigators' questions truthfully, but he shall have the right to refuse to answer any question irrelevant to the case.
When interrogating a criminal suspect, investigators shall inform the criminal suspect of his procedural rights and the legal provisions that those who truthfully confess their crimes may be allowed for leniency and that those who take pleas may be allowed for leniency.
Article 121 During the interrogation of a criminal suspect who is deaf or mute, there shall be a person present who has a good command of sign language, and such circumstances shall be noted in the record.
Article 122 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 request that additions or corrections be made. 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 123 Investigators, when interrogating a criminal suspect, may record or videotape the process of interrogation, and shall do so in case that the criminal suspect is involved in a crime punishable by life imprisonment or death penalty or in an otherwise major criminal case.
Recording or videotaping shall run throughout the whole interrogation process for the purpose of completeness.
Section 3
Questioning of Witnesses
Article124 Investigators may question a witness at the scene, the business premise of his employer, the witness's domicile or a location designated by the witness. Where necessary, the witness may be notified to give a deposition at the people's procuratorate or public security organ. Where the witness is questioned at the scene, the investigators shall present their work certificates; and where the witness is questioned at his employer's business premise, his domicile or a location designated by him, the investigators shall present the supporting documents issued by the people's procuratorate or public security organ.
Witnesses shall be questioned individually.
Article 125 When a witness is questioned, he shall be instructed to provide evidence and give testimony truthfully and shall be informed of the legal responsibility for intentionally giving false testimony or concealing criminal evidence.
Article 126 The provisions of Article 122 of this Law shall also apply to the questioning of witnesses.
Article 127 The provisions of all articles in this Section shall apply to the questioning of victims.
Section 4
Inquest and Examination
Article 128 Investigators shall conduct an inquest or examination of the sites, objects, persons and corpses relevant to a crime. When necessary, experts may be assigned or invited to conduct an inquest or examination under the direction of investigators.
Article 129 Each and every entity and individual shall have the duty to preserve the scene of a crime and to immediately notify a public security organ to send officers for an inquest.
Article 130 To conduct an inquest or examination, investigators must have papers issued by a people's procuratorate or public security organ.
Article 131 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 of the deceased to be present.
Article 132 To ascertain certain features, conditions of injuries or physical conditions of a victim or criminal suspect, a physical examination may be conducted, and fingerprints and biological samples such as blood and urine may be collected.
If a criminal suspect refuses to be examined, the investigators may compel him to be examined where they deem necessary.
Examination of a female shall be conducted by female officers or doctors.
Article 133 A record shall be made of the circumstances of an inquest or examination, and be signed or sealed by the participants in the inquest or examination and the eyewitnesses.
Article 134 If, in reviewing a case, a people's procuratorate deems it necessary to carry out a second inquest or examination, the people's procuratorate may request the public security organ that conducted the inquest or examination to do so, and may send procurators to participate in the second inquest or examination.
Article 135 To ascertain the circumstances of a case, when necessary, investigative experiments may be conducted with the approval of the person in charge of the public security organ.
Information about an investigative experiment shall be recorded in writing and be signed or sealed by the participants conducting the experiment.
It is prohibited in investigative experiments to take any action which is hazardous, humiliating to anyone, or offensive to public morals.
Section 5
Search
Article 136 In order to collect criminal evidence and track down an offender, investigators may search the body, the belongings and residence of a criminal suspect or anyone who might be hiding an offender or criminal evidence, and other relevant places.
Article 137 Any entity or individual shall have the obligation to submit, as required by a people's procuratorate or public security organ, the physical and documentary evidence, audio-visual materials and other evidence that may prove a criminal suspect's guilt or innocence.
Article 138 For carrying out a search, a search warrant must be presented to the person to be searched.
Where an urgent situation occurs while detaining or arresting a person, a search may be carried out without a search warrant.
Article 139 During a search, the person being searched or his family member, neighbor or other eyewitness shall be present at the scene.
Search of a female shall be conducted by female officers.
Article 140 A record shall be made of a search, and it shall be signed or sealed by the investigators and by the person searched or his family member, neighbor or other eyewitness. If the person searched or his family member has fled or refuse to sign or affix seal to the record, the situation shall be noted in the record.
Section 6
Sealing and Seizure of Physical Evidence and Documentary Evidence
Article 141 All property and documents found during investigation that may be used to prove a criminal suspect's guilt or innocence shall be sealed up or seized. Property and documents irrelevant to the case shall not be sealed up or seized.
Property and documents sealed up or seized shall be properly preserved or sealed for safekeeping, and may not be used, replaced or damaged.
Article 142 Property or documents sealed up or seized shall be clearly counted with a witness and the holder of such property or documents present. A list of the property and documents shall be made in duplicate at the scene and be signed or stamped with a seal by the investigators, witness and the holder of the property or document, with one copy given to the holder and the other attached to the archives for future reference.
Article 143 If investigators deem it necessary to seize the mail or telegram of a criminal suspect, they may, upon approval of a public security organ or people's procuratorate, notify the post and telecommunications offices to check and hand over the relevant mail and telegram for seizure.
When it becomes unnecessary to continue a seizure, the post and telecommunications offices shall be immediately notified as such.
Article 144 When required by criminal investigation, a people's procuratorate or public security organ may inquire or freeze a criminal suspect's deposits, remittance, bonds, stocks, shares of funds or other property in accordance with relevant provisions, and the relevant entities and individuals shall provide cooperation.
A criminal suspect's deposits, remittance, bonds, stocks, shares of funds or other property that have been frozen may not be repeatedly frozen.
Article 145 The property, documents, mails or telegrams sealed up or seized or the frozen deposits, remittance, bonds, stocks or shares of funds shall be freed and returned within three days after they are found to be irrelevant to the case under investigation.
Section 7
Expert Evaluation
Article 146 When a particular issue relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to conduct an evaluation.
Article 147 After evaluation is conducted, the experts shall give their evaluation opinions in writing with their own signature attached thereto.
An expert intentionally giving a false evaluation opinion shall be held legally liable.
Article 148 The investigatory body shall inform the criminal suspect and the victim of the expert evaluation which will be used as evidence in the case. A supplementary expert verification or a second expert evaluation may be conducted upon application by the criminal suspect or the victim.
Article 149 The time period during which a criminal suspect is evaluated for his mental illness shall not be included in the period of time for handling the case.
Section 8
Technical Investigative Measures
Article 150 After filing a case, a public security organ may, based on the needs for criminal investigation, and after going through stringent approval procedure, employ technical investigative measures if the aforesaid case involves a crime endangering state security, a crime of terrorist activity or committed by an organization of the nature of a criminal gang, a major drug-related crime or any other crime seriously endangering the society.
With respect to a major criminal case of serious infringement of the citizen's personal right due to abuse of power, after filing the case, a people's procuratorate may, based on the needs for criminal investigation and after going through stringent approval procedure, employ technical investigation measures and task relevant bodies with the implementation of such measures according to the relevant provisions.
In pursuit of a fugitive criminal suspect or defendant who is on the wanted list or the detention of whom has been approved or decided, the necessary technical investigative measures for pursuing him may be applied upon approval.
Article 151 An approval of the type of technical investigative measure to be employed and the party to whom such a measure is to be applied shall be decided based on the needs for criminal investigation. Such a decision shall be valid for three months from the date on which the decision is issued. The technical investigative measure shall be promptly terminated where it is no longer necessary. With respect to a difficult and complicated case, if the technical investigative measure is still required upon expiration of the time limit, the term of validity may be extended upon approval, subject to a maximum of three months per extension.
Article 152 Technical investigative measure shall be applied strictly in accordance with the approved type, applicable party and time limit.
An investigator shall keep confidential the state secrets, trade secrets and personal privacy that has come to his knowledge during the investigation through employing technical investigative measure, and shall promptly destroy the information and materials irrelevant to the case that are obtained through technical investigative measure.
Materials obtained by technical investigative measure shall only be used for the investigation, prosecution and trial of the criminal case, and shall not be used for any other purpose.
Relevant entities and individuals shall cooperate with a public security organ in the use of technical investigative measure in accordance with law, and shall keep the relevant information confidential.
Article 153 To ascertain the circumstances of a case, when necessary, and subject to the approval of the person in charge of the public security organ, relevant persons may be assigned to conduct an undercover investigation, provided that the measures adopted shall not be used to induce others to commit a crime and shall not endanger public security or seriously threaten personal safety.
With respect to criminal activities involving the delivery of drugs or other contraband goods or property, a public security organ may, on the basis of the needs for criminal investigation, implement controlled delivery in accordance with relevant provisions.
Article 154 Materials collected by investigative measures in accordance with the provisions of this Section may be used as evidence in criminal proceedings. Where the use of such evidence may threaten the personal safety of certain relevant persons or result in other serious consequences, protective measures shall be adopted to avoid exposure of the identity of such persons and the technical measures applied, and when necessary, judges may verify the evidence outside the courtroom.
Section 9
Wanted Orders
Article 155 If a criminal suspect who should be detained is at large, a public security organ may issue a wanted order and take effective measures to pursue him and bring him to justice.
A public security organ at any level may directly issue a wanted order within the area under its jurisdiction; but it shall request a higher-level organ with the proper authority to issue such an order beyond the said area.
Section 10
Conclusion of Investigation
Article 156 The time limit for holding a criminal suspect in detention for investigation shall not exceed two months. If the case is complex and cannot be concluded within the prescribed time limit, an extension of one month may be allowed with the approval of the people's procuratorate at the next higher level.
Article 157 Where, due to special reasons, it is not appropriate to put a particularly grave and complex case to trial even after 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 an approval to postpone the trial of the case.
Article 158 For the following cases, if investigation cannot be concluded within the time limit specified in Article 156 of this Law, an extension of two months may be allowed upon approval or decision of the people's procuratorate of the 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 persons who commit crimes from place to place; and
(4) Grave and complex cases that involve several sides and for which it is difficult to obtain evidence.
Article 159 Where a criminal suspect may be sentenced to fixed-term imprisonment of ten years or severer punishment, and investigation of the case can still not be concluded upon expiration of the extended time limit as prescribed in Article 158 of this Law, another extension of two months may be allowed upon approval or decision of the people's procuratorate of the province, autonomous region or municipality directly under the Central Government.
Article 160 Where, during the period of investigation, a criminal suspect is found to have committed another major crime, the time limit for holding the criminal suspect in custody for investigation shall be counted anew in accordance with the provisions of Article 156 of this Law, from the date on which such a crime is discovered.
Where a criminal suspect refuses to tell his real name and address, and his identity is unknown, investigation shall be carried out to find his identity, and the time limit for holding him in custody for investigation shall be counted from the date on which his identity is found out. Meanwhile, investigation into his crime and collection of evidence shall not be ceased. Where the facts of the crime are clear, the evidence is reliable and sufficient and the identity of the criminal suspect cannot be found out, the criminal suspect may be prosecuted and tried by the name he himself has given.
Article 161 Before the investigation of a case ends, if the defense lawyer requests his opinions be heard, such opinions shall be heard and be recorded by the investigatory body. If the defense lawyer puts forward written opinions, such opinions shall be attached to the case file.
Article 162 For a public security organ to conclude its investigation of a case, the facts of the 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. Meanwhile, the criminal suspect and his defense lawyer shall be informed of such transfer.
Where a criminal suspect voluntarily confesses his crime, his confession shall be recorded for file and be transferred along with the case, and in the bill of prosecution shall be clearly stated his voluntary confession of the crime.
Article 163 Where it is found during investigation that a criminal suspect should not have been investigated for criminal responsibility, the case shall be dismissed; if the criminal suspect is in detention, he shall be released immediately with a release certificate, and the people's procuratorate which originally approved the detention shall be notified as such.
Section 11
Investigation of Cases Directly
Accepted by People's Procuratorates
Article 164 Investigation of cases directly accepted by people's procuratorates shall be governed by the provisions of this Chapter.
Article 165 Where a case directly accepted by a people's procuratorate meets the conditions prescribed in Article 81 or in subparagraph (4) or (5) of Article 82 of this Law, thus necessitating detention or arrest of the criminal suspect, a decision thereon shall be made by the people's procuratorate and be executed by the public security organ.
Article 166 An arrestee involved in a case which is directly accepted by a people's procuratorate shall be interrogated within 24 hours after his arrest. If it is found that the person should not have been arrested, he must be released immediately with a release certificate.
Article 167 Where a people's procuratorate deems it necessary to detain an arrestee involved in a case directly accepted by it, it shall make a decision thereon within 14 days after the arrest is made. Under special circumstances, the time limit for deciding whether to detain the arrestee may be extended by one to three days. Where an detention is unnecessary, the arrestee shall be released immediately; if the case requires further investigation and the arrestee meets the conditions for release on bail or a guarantor or for house arrest, he shall be released on bail or a guarantor or be placed under house arrest according to law.
Article 168 After a people's procuratorate has concluded the investigation of a case, it shall make a decision whether or not to bring public prosecution or to dismiss the case.
Chapter III
Initiation of Public Prosecution
Article 169 All cases requiring public prosecution shall be examined for decision by the people's procuratorates.
Article 170 A people's procuratorate shall, according to the provisions of this Law and the Supervision Law, examine a case transferred by a supervisory organ for public prosecution. Where, after examination, the people's procuratorate finds that supplementary investigation or verification is necessary, the people's procuratorate shall return the case to the supervisory organ for supplementary investigation; where it is necessary, the people's procuratorate may carry out supplementary investigation on its own.
Where a supervisory organ has applied supervisory detention measure at the time when it transfers a case to a people's procuratorate, the people's procuratorate shall first detain the criminal suspect, as a result the detention measure taken by the supervisory organ shall be automatically lifted. The people's procuratorate shall, within 10 days after it detains the criminal suspect, make a decision on whether or not to arrest him, release him on bail or a guarantor, or place him under house arrest. Under special circumstances, an extension of one to four days may be allowed for making such a decision. The time period during which the people's procuratorate have applied a compulsory measure shall not be counted as within the time period of examination a case for prosecution.
Article 171 In examining a case, a people's procuratorate shall ascertain the following:
(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 have been appropriately determined;
(2) Whether there is any omitted crime or any other person who should be investigated criminal responsibility;
(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 lawfully conducted.
Article 172 A people's procuratorate shall make a decision within one month after a supervisory organ or public security organ transfers a case with a recommendation for prosecution; and an extension of 15 days may be allowed for a major or complex case. Where a criminal suspect takes a plea, and the requirements for applying expedited trial procedure are met, a decision shall be made with 10 days; in case that the sentence may be a fixed-term imprisonment of one year or more, the time period for decision may be extended to 15 days.
Article 173 When examining a case, the people's procuratorate shall interrogate the criminal suspect, hear the opinions of the defender or duty lawyer and of the victim and his agent ad litem, and record such opinions. If the defender or duty lawyer, the victim and his agent ad litem put forward written opinions, such opinions shall be attached to the case file.
Where a criminal suspect takes a plea, the people's procuratorate shall inform him of his procedural rights and the provisions for taking a plea, hear and record the opinions of the defender or duty lawyer, and of the victim and his agent ad litem on the following matters:
(1) facts of the suspected crime, name of the suspected crime, and applicable provisions of law;
(2) advice on leniency, including lighter or mitigated punishment or exemption of punishment;
(3) applicable trial procedure after the criminal suspect takes a plea; and
(4) other matters on which opinions need be heard.
Where a duty lawyer's opinion need be heard according to the provisions of the preceding two paragraphs, the people's procuratorate shall provide the duty lawyer with necessary access to the related information of the case.
Article 174 Where a criminal suspect voluntarily confesses his crime and agrees on the advised sentence and trial procedure, he shall, with the presence of the defender or duty lawyer, sign the statement of plea.
A criminal suspect taking a plea need not sign the statement of plea under any of the following circumstances:
(1) Where the criminal suspect is blind, deaf or mute, or is a mental patient who is not completely aware of, or has incomplete ability to control his own conduct;
(2) Where the agent ad litem or defender of a criminal suspect who is a minor has objection to the plea and punishment taken by the said minor; or
(3) Where any other circumstance does not require signing of the statement of plea.
Article 175 In examining a case, the people's procuratorate may request the public security organ to provide the evidence that is essential to a court trial. If the people's procuratorate believes that there may be collection of evidence by illegal means as are specified in Article 54 of this Law, it may request the public security organ to give an explanation to the legality of evidence collected.
In examining a case that requires supplementary investigation, the people's procuratorate may return the case to a public security organ for such a purpose or conduct a supplementary investigation on its own.
With respect to a case for which supplementary investigation is necessary, such an investigation shall be completed within one month. Supplementary investigation may be conducted twice at the most. When supplementary investigation is concluded and the case is transferred to the people's procuratorate, the time limit for examination for prosecution shall be counted anew by the people's procuratorate.
With respect to a case for which supplementary investigation have been conducted twice, if the people's procuratorate still believes that the evidence is insufficient for prosecution, the people's procuratorate shall make a decision not to prosecute the case.
Article 176 When a people's procuratorate believes that the facts of a crime have been ascertained, that the evidence is reliable and sufficient, and that criminal responsibility should be investigated according to the law, it shall make a decision to prosecute and shall bring a public prosecution in a people's court in accordance with the provisions for trial jurisdiction and transfer the case file and evidence to the people's court.
Where a criminal suspect takes a plea, the people's procuratorate shall put forward sentencing advice including the principal punishment, supplementary punishments and whether or not a probation should be granted, and shall transfer the materials such as the statement of plea along with the case.
Article 177 If there is no criminal facts found relating to a criminal suspect, or he is found to be under any of the circumstances provided in Article 16 of this Law, the people's procuratorate shall make a decision not to bring a prosecution.
With respect to a case where the offense is minor and the offender need not be given a criminal punishment or he should be exempted from criminal punishment according to the Criminal Law, the people's procuratorate may decide not to bring a prosecution.
Where a people's procuratorate decides not to prosecute a case, it shall, at the same time, free the property sealed up, distrained or frozen during the period of investigation. If the person who is not prosecuted need be given administrative penalty, or sanction, or his illegal gains need be confiscated, the people's procuratorate shall put forward its opinions and transfer the case to the competent authority for handling. The competent authority shall inform the people's procuratorate of the results of its handling of the case in time.
Article 178 A decision on not bringing a prosecution shall be publicly announced, and the decision shall be delivered in written form to the person who is not to be prosecuted and to his employer. If the said person is in custody, he shall be released immediately.
Article 179 Where a people's procuratorate decides not to prosecute a case transferred by a public security organ, the people's procuratorate shall deliver the decision in writing to the public security organ. If the public security organ believes that the said decision is erroneous, it may request reconsideration, and if such a request is rejected, it may submit the matter to the people's procuratorate at the next higher level for review.
Article 180 If the people's procuratorate decides not to prosecute a case that involves a victim, it shall send the decision in writing to the victim involved. If the victim has objection to 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 bring a public prosecution. The people's procuratorate shall notify the victim of its decision upon reexamining the case. If the people's procuratorate upholds its decision not to bring 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. Where the people's court has accepted the case, the people's procuratorate shall transfer the relevant case file to the people's court.
Article 181 Where a people's procuratorate decides not to bring a prosecution in accordance with the provisions of the second paragraph of Article 177 of this Law, but the person who is not to be prosecuted based on the decision has objection, 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 upon reexamination, notify the said person of its decision, and at the same time send a copy of the decision to the public security organ.
Article 182 Where a criminal suspect voluntarily confesses the facts of a crime he is suspected to have committed and thus makes a major meritorious contribution, or the case involves major state interests, upon review and approval by the Supreme People's Procuratorate, the public security organ may dismiss the case, and the people's procuratorate may decide not to prosecute him at all or, if the case involves several charges, not to prosecute him on one or more of the charges.
Where, according to the preceding paragraph, a criminal suspect is not to be prosecuted or the case is dismissed, the people's procuratorate or public security organ shall, in a timely manner, deal with the property sealed up, distrained or frozen, and the fruits accrued therefrom.
Part Three
Trial
Chapter I
Trial Organizations
Article 183 Trial of first instance in the primary or intermediate people's courts shall be conducted by a collegial panel composed of three judges or of judges and people's assessors totaling three or seven. However, for cases tried in the primary people's courts and to which summary procedure or expedited procedure is applied, they may be tried by a single judge.
Trial of first instance in the higher people's courts shall be conducted by a collegial panel composed of three to seven judges or of judges and people's assessors totaling three or seven.
Trial of first instance in the Supreme People's Court shall be conducted by a collegial panel composed of three to seven judges.
Trial of appealed and protested cases in the people's courts shall be conducted by a collegial panel composed of three or five judges.
The number of members of a collegial panel shall be in odd number.
Article 184 If opinions differ when a collegial panel conducts deliberation, a decision shall be made based on the majority opinion, but the opinions of the minority shall be entered in the records. The records of the deliberation shall be signed by the members of the collegial panel.
Article 185 After hearing and deliberation, 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 people's court for deciding 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 186 After a people's court has examined a case of public prosecution, it shall decide to try the case in court if the bill of prosecution contains clear facts of the accused crime.
Article 187 After a people's court has decided to try a case in court, it shall determine the members of the collegial panel, and shall deliver to the defendant and his defender a copy of the bill of prosecution of the people's procuratorate no later than 10 days before the opening of the court session.
Before the opening of the court session, the judges may call the public procurator, the parties, the defenders or agents ad litem together to find out information and hear their opinions on recusals, namelist of witnesses who will appear in court, exclusion of illegal evidence and other issues related to the trial of the case.
After the people's court has decided on the date of the court session, it shall notify the people's procuratorate of the time and place of the court session, summon the parties, and notify the defenders, agents ad litem, witnesses, expert witnesses and interpreters of the same. The summons and notices shall be delivered no later than three days before the opening of the court session. If the case will be tried publicly, the people' court shall announce the subject of the case, the names of the defendants and the time and place of the court session three days before the opening of the court session.
The circumstances of the aforesaid proceedings shall be entered in the written records, which shall be signed by the judges and the court clerk.
Article 188 Cases of first instance shall be tried in public in the people's courts. However, cases involving state secrets or personal privacy shall not be tried in public. Cases involving trade secrets may be tried privately if the parties so apply.
The reasons for not trying a case in public shall be announced in court.
Article 189 When a case of public prosecution is tried in a people's court, the people's procuratorate shall have procurators present before the court to support the public prosecution.
Article 190 When a court session opens, the presiding judge shall ascertain whether all the parties have appeared in court and announce the subject matter of the case; announce the roll, naming the members of the collegial panel, court clerk, public procurators, defenders, agents ad litem, expert witnesses and interpreters; inform the parties of their right to ask any member of the collegial panel, the court clerk, the public procurator, any expert witnesses or interpreter to recuse himself; and inform the defendant of his right to defense.
Where a defendant has taken a plea, the presiding judge shall inform the defendant of his procedural rights and the provisions for taking a plea, verify whether the defendant has done so voluntarily, and review the authenticity and legality of the content of the statement of plea.
Article 191 After the public procurator 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 procurator may interrogate the defendant.
The victims, the plaintiff in an incidental civil action and the defenders or the agents ad litem may, with the permission of the presiding judge, put questions to the defendant.
The judges may interrogate the defendant.
Article 192 Where a public procurator, a party and his defender or agent ad litem disagrees on the testimony of a witness, and the testimony of that witness has a major effect on the judgment and sentencing of the case, if the people's court deems it necessary, that witness shall testify in court.
An officer of the people's police testifying in court as a witness about the crime he had witnessed when he was performing his duty, the preceding paragraph shall be applicable.
Where a public procurator, a party or his defender or agent ad litem disagrees with the evaluation opinion, if the people's court deems it necessary, the expert giving the evaluation opinion shall testify in court. If the expert refuses to testify in court after the people's court has notified him to do so, his evaluation opinion shall not be used as the basis for deciding the case.
Article 193 Where a witness fails to appear and testify in court without justifiable reasons after the people's court has notified him to do so, the people's court may compel the witness to appear in court, however, except that the said witness is the defendant's spouse, parent or child.
Where a witness refuses to appear and testify in court without justifiable reasons or refuses to testify after he appears in court, he shall be reprimanded, if the circumstances are serious, he shall be punished with a detention of not more than 10 days upon approval of the president of the people's court. Where the punished witness has objection to the detention decision, he may apply to the people's court at a next higher level for reconsideration. The executing of the decision shall not be suspended during the time of reconsideration.
Article 194 Before a witness gives testimony, the judges shall instruct him to give testimony truthfully and shall explain to him the legal liability for intentionally giving false testimony or concealing criminal evidence. The public procurator, a party and the defender, and an agent ad litem may question a witness or an expert witness with the permission of the presiding judge. The presiding judge shall put a stop to such questioning as he believes is irrelevant to the case.
The judges may question the witnesses and expert witnesses.
Article 195 The public procurator and the defender shall display the physical evidence in court for the parties to identify. The records of testimony of the witnesses who are not present in court, the evaluation opinions of the experts 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 hear the opinions of the public procurator, the parties, the defender and agents ad litem.
Article 196 During a court hearing, if the collegial panel has doubts about the evidence, an adjournment may be announced for further investigation and verification of the said evidence.
When carrying out investigation to verify evidence, the people's court may conduct inquest, examination, sealing, seizure, expert evaluation, as well as inquiry and freeze.
Article 197 During a court hearing, the parties, the defender and agents ad litem shall have the right to request new witnesses to be summoned, new physical evidence to be obtained, new expert evaluations to be made, and inquests to be held.
A procurator, a party, a defender or an agent ad litem may apply to the people's court for notifying a person with expertise to appear in court and give his opinion on the evaluation opinion.
The court shall make the decision on whether to approve applications mentioned above.
The relevant provisions on evaluation experts shall be applicable to the persons with expertise appearing in court prescribed in the second paragraph.
Article 198 During the trial, facts and evidence that are related to the judgment and sentencing of the case shall be examined and debated.
With the permission of the presiding judge, the public procurator, the party, the defender or agent ad litem may state their views on the evidence and the case, and they may debate with each other.
After the presiding judge declares that the debate is concluded, the defendant shall have the right to present a final statement.
Article 199 If a participant in the proceedings of a trial or a person on the auditorium violates courtroom order, the presiding judge shall warn him to desist. Any person fails to obey such an order may forcibly be taken out of the courtroom. If the violation is serious, the said person shall be fined not more than RMB 1,000 yuan or be detained for not more than 15 days. The fine or detention shall be subject to the approval of the president of the court. If the person under punishment has objection to the fine or detention decision, he may apply to the people's court at the next higher level for reconsideration. However, the execution of the fine or detention decision 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 200 After a defendant makes his final statement, the presiding judge shall announce an adjournment. The collegial panel shall deliberate on the case and, on the basis of the established facts and evidence and in accordance with the provisions of relevant laws, render a judgment as follows:
(1) If the facts of the 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; or
(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 201 For a case where the defendant has taken an advised plea, the people's court shall, when rendering the judgment according to law, generally follow the advice of the people's procuratorate on the crime and sentence, except under one of the following circumstances:
(1) Where the act of the defendant does not constitute a crime or the defendant should not have been prosecuted for criminal responsibility;
(2) Where the defendant has taken a plea against his free will;
(3) Where the defendant denies the facts of the accused crime;
(4) Where the crime charged by prosecution is inconsistent with the one decided in trial; or
(5) Any other circumstances where a fair and just trial may be affected.
Where, after hearing the case, the people's court finds that the advised sentence is obviously inappropriate, or the defendant and defender has objection to the advised sentence, the people's procuratorate may revise its advice on the sentence. Where the people's procuratorate refuses to do so or the revised advice is still obviously inappropriate, the people's court shall render a judgment according to law.
Article 202 In all cases, judgments shall be publicly pronounced.
If the judgment on a case is pronounced in court, a written hard copy of the judgment shall be delivered within five days to the parties and the people's procuratorate that brought the public prosecution. In case that the judgment is pronounced later on a specified date, written hard copies of the judgment shall, after the pronouncement is made, be delivered immediately to the parties and the people's procuratorate that brought the public prosecution. Hard copies of the judgment shall be delivered to the defender and agents ad litem at the same time.
Article 203 The written judgment shall be signed by the judges and the court clerk, and in which the time limit for appeal and the name of the appellate court shall be clearly indicated.
Article 204 Court hearing may be postponed if during a trial there is one of the following situations affecting the trial:
(1) If it is necessary to summon a new witness, obtain new physical evidence, make another expert evaluation or hold another inquest;
(2) If the procurator finds that a prosecuted case requires supplementary investigation and therefore make a proposal to that effect; or
(3) If the trial cannot proceed because a recusal has been applied.
Article 205 If the hearing of a case is postponed in accordance with the provisions of subparagraph (2) of Article 204 of this Law, the people's procuratorate shall complete supplementary investigation within one month.
Article 206 During the trial, if there is one of the following circumstances which causes trial of the case to be discontinued for a considerably long period of time, the hearing may be suspended:
(1) The defendant has such a serious illness that he cannot appear in court;
(2) The defendant flees;
(3) The private prosecuting party has such a serious illness that he cannot appear in court and he has not entrusted an agent ad litem to appear in court on his behalf; or
(4) Because of force majeure.
After the causes for suspension of trial disappear, the proceedings shall resume. The period of suspension shall be excluded from the time limit for trial.
Article 207 The court clerk shall make a written record of the entire court proceedings, which shall be examined by the presiding judge and signed by the presiding judge and the court clerk.
The 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 208 A people's court shall pronounce the judgment on a publicly prosecuted case within two months or, three months at the latest, after accepting the case for trial. As to a case in which the defendant may be sentenced to death, a case with an incidental civil case, or a case which falls under one of the situations provided for in Article 158, the trial time limit may be extended by three months upon the approval of the people's court at the next higher level; if a second extension is still needed due to a special situation, the second extension shall be subject to approval by the Supreme People's Court.
If the jurisdiction over a case is altered, the time limit for handling the case shall be counted from the date on which another people's court receives the case after the alteration.
For a case in which the people's procuratorate need to conduct supplementary investigation, the trial time limit of the case shall be counted anew by the people's court from the time the case is transferred to it upon the completion of supplementary investigation.
Article 209 Where a people's procuratorate discovers that in handling a case the people's court has violated the litigation procedure prescribed by law, the people's procuratorate shall have the power to make a suggestion to the people's court for correction.
Section 2
Cases of Private Prosecution
Article 210 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 they 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 211 After examining a case of private prosecution, the people's court shall handle it in one of the following manners in light of different situations:
(1) Where the facts of the crime are clear and the evidence is sufficient, the case shall be tried at a court session; or
(2) Where a case of private prosecution which lacks criminal evidence, if the private prosecuting party cannot present supplementary evidence, the court shall either persuade the private prosecuting party to withdraw the case or make an order to reject the case.
Where a private prosecuting party has been summoned twice according to law but still refuses to appear in court without justifiable reasons, or where he withdraws himself from a court session without permission of the court, the case may be considered withdrawn by himself.
Where, 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 196 of this Law shall apply.
Article 212 A people's court may conduct mediation for a case of private prosecution; the private prosecuting party may reach a settlement with the defendant or withdraw the prosecution before a judgment is pronounced. Mediation shall not be used for cases prescribed in subparagraph (3) of Article 210 of this Law.
The first and second paragraphs of Article 208 of this Law shall be applicable to the time limit for trying a case of private prosecution by a people's court if the defendant is in custody; if the defendant is not in custody, the people's court shall pronounce a judgment within six months after accepting the case for trial.
Article 213 The defendant in a case of private prosecution may bring a counterclaim against the private prosecuting party in the process of the proceedings. The provisions governing private prosecution shall be applicable to a counterclaim.
Section 3
Summary Procedure
Article 214 Where a case under the jurisdiction of a primary people's court meets the following requirements, the case may be tried by applying summary procedure:
(1) The facts of the case are clear and the evidence is sufficient;
(2) The defendant admits the crime he has committed and has no disagreement on the facts of the crime charged;
(3) The defendant has no disagreement on applying the summary procedure.
When the people's procuratorate brings a public prosecution, it may suggest the people's court to apply the summary procedure.
Article 215 Summary procedure shall not be applicable under one of the following circumstances:
(1) Where the defendant is blind, deaf or mute, or a patient who is mentally ill but has not completely lost the capability to recognize or control his behavior;
(2) Where the case bears a great impact on the society; and
(3) Where a part of the defendants in a joint crime refuse to plead guilty or object to the application of summary procedure; or
(4) Other circumstances under which application of summary procedure is inappropriate.
Article 216 For a case to be tried by applying summary procedure, if the defendant may be sentenced to a punishment of fixed-term imprisonment of three years or lighter, the case may be tried by a collegial panel or by a single judge; if the defendant may be sentenced to a fixed-term imprisonment of more than three years, the case shall be tried by a collegial panel.
When a publicly prosecuted case is tried by applying summary procedure, the people's procuratorate shall have procurators present before the court.
Article 217 When trying a case by applying summary procedure, the judges shall inquire the defendant about his opinion on the facts of the crime charged, inform him of the provisions on the application of summary procedure, and confirm whether he agrees to the application of summary procedure to his case.
Article 218 Where a case is tried by applying summary procedure, the defendant and his defender may, with the permission of the judges, debate with the public procurator or the private prosecuting party and his agent ad litem.
Article 219 Trial of a case by applying summary procedure shall not be bound by the provisions of Section 1 of this Chapter governing the time limit for service and the procedures for interrogating defendant, questioning witnesses and expert witnesses, displaying evidence, and debating in court. However, the final statement of the defendant shall be heard prior to the pronouncement of a judgment.
Article 220 Where a case is tried by applying summary procedure, the people's court shall conclude the trial within 20 days after accepting it; if the defendant may be sentenced to a fixed-term imprisonment of more than three years, the time limit may be extended to one and a half months.
Article 221 If the people's court finds during the trial that summary procedure is not appropriate for the case, it shall try the case anew in accordance with the provisions in Section 1 or 2 of this Chapter.
Section 4
Expedited Trial Procedure
Article 222 For a case under the jurisdiction of a primary people's court, in which the defendant may be sentenced to a punishment lighter than fixed-term imprisonment of three years, if the facts of the case are clear, the evidence is reliable and sufficient, and the defendant has taken a plea and agrees to an expedited trial, expedited trial procedure may be applied whereby the case shall be tried by one judge.
The people's procuratorate may, when bringing a public prosecution, advise the people's court to apply expedited trial procedure to such a case.
Article 223 Expedited trial procedure shall not be applied under any of the following circumstances:
(1) Where the defendant is blind, deaf or mute, or is a patient who is mental ill but has not completely lost the capability to recognize or control his behavior;
(2) Where the defendant is a minor;
(3) Where the case bears a great impact on the society;
(4) Where a part of the defendants in a joint crime have objection to the criminal facts, the crime charged, the advised sentence, or the application of expedited trial procedure;
(5) Where the defendant fails to reach a mediation or settlement agreement with the victim or his legal representative on the damage in incidental civil action; or
(6) Other circumstances under which application of expedited trial procedure is inappropriate.
Article 224 Trial of a case by applying expedited procedure shall not be bound by the provisions of Section 1 of this Chapter governing the service time limit; and in general shall not have court investigation and debating. However, the opinion of the defender and the final statement of the defendant shall be heard prior to the pronouncement of a judgment.
A judgment shall be pronounced in court on a case to which expedited trial procedure is applied.
Article 225 Where a case is tried by applying expedited trial procedure, the people's court shall conclude the trial within 10 days after accepting it; if the defendant may be sentenced to a fixed-term imprisonment of more than three years, the time limit may be extended to 15 days.
Article 226 Where, in the course of trying a case, the people's court finds that the act of the defendant does not constitute a crime or the defendant should not have been prosecuted for criminal responsibility, or that the defendant has taken a plea against his free will or denies the facts of the crime charged, or that there is any other situation which renders expedited trial procedure inappropriate for the case, the people's court shall try the case anew in accordance with the provisions in Section 1 or 3 of this Chapter.
Chapter III
Procedure of Second Instance
Article 227 A defendant, private prosecuting party or his legal representative refusing to accept a judgment or ruling of first instance made by a local people's court shall have the right to appeal in writing or orally to the people's court at the next higher level. A defender or near relative of the defendant may, with the consent of the defendant, file an appeal.
A party to an incidental civil action and his legal representative may file an appeal against the part of the judgment or ruling of first instance on the incidental civil action made by the local people's court.
A defendant shall not, on any pretext, be deprived of his right to appeal.
Article 228 Where a local people's procuratorate believes that there is a definite error in a judgment or ruling 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 229 A victim and his legal representative refusing to accept a judgment of first instance made by a local people's court 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 of the victim and his legal representative, decide whether or not to present the protest and give a reply to the victim and his legal representative.
Article 230 The time limit for filing an appeal or presenting a protest against a judgment shall be 10 days and the time limit for filing an appeal or presenting a protest against a ruling shall be five days; the time limit shall be counted from the date the written judgment or ruling is received.
Article 231 If a defendant, private prosecuting party, or a plaintiff or defendant in an incidental civil action files an appeal through the original trial court, the people's court shall, within three days, transfer the paper of appeal together with the case file and the evidence to the people's court at the next higher level, and at the same time deliver duplicates of the paper of appeal to the people's procuratorate at the same level and to the other party.
If a defendant, private prosecuting party, or a plaintiff or defendant in an incidental civil action directly files an appeal to the people's court of second instance, the people's court shall, within three days, transfer the paper of appeal to the original trial court, and the latter shall deliver it to the people's procuratorate at the same level and to the other party.
Article 232 If a local people's procuratorate protests against a judgment or ruling of first instance made by the people's court at the same level, it shall present a written protest through the original trial court, and at the same time send a copy of the written protest to the people's procuratorate at the next higher level. The original trial court 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 233 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 a part of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.
Article 234 A people's court of second instance shall form a collegial panel and hold a court session to hear the following cases:
(1) A case of appeal in which the defendant or the private prosecuting party and his agent ad litem disagrees on the facts or evidence confirmed in the first instance and such disagreements may have an effect on conviction or meting out the punishment;
(2) A case of appeal in which the defendant is sentenced to death penalty;
(3) A case protested by a people's procuratorate; and
(4) Other cases which should be heard by the people's court in a court session.
If the people's court of second instance decides not to hold a court session to hear a case, it shall question the defendant and hear opinions of other parties, the defender and the agents ad litem.
When a people's court of second instance hold 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 original trial court is located.
Article 235 For the trial of a case protested by a people's procuratorate or a publicly prosecuted case of second instance in a court session, the people's procuratorate at the same level shall send procurators to the court. The people's court of second instance shall, after it decides to hear the case by holding a court session, notify, in a timely manner, the people's procuratorate to examine the case file. The people's procuratorate shall finish examining the case file in one month. The time for examining case file by the people's procuratorate shall not be calculated in the time limit for trial.
Article 236 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 the following manners in light of 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 appeal or protest shall be rejected and the original judgment affirmed.
(2) If the original judgment contains no error in the determination of facts, but there is error in the application of law or the punishment was inappropriately meted out, revision shall be made to the original judgment.
(3) If the facts in the original judgment were unclear or the evidence insufficient, the judgment may be revised after the facts is ascertained, or the original judgment may be rescinded and the case remanded to the original trial court for retrial.
After the original trial court makes a second judgment on the case which is remanded for re trial in accordance with Subparagraph (3) of the preceding paragraph, if the defendant files an appeal or the procuratorate presents a protest, the people's court of second instance shall make a judgment or ruling in accordance with law and shall not remand it to the original trial court for another retrial.
Article 237 In the trial of a case appealed by a defendant and his legal representative, defender or near relative, the people's court of second instance may not impose a severer criminal punishment on the defendant. In a case remanded for retrial to the original trial court by the people's court of second instance, the original trial court may not impose a severer criminal punishment on the defendant, unless there are newly-found criminal facts or the people's procuratorate brings a supplementary prosecution.
The restriction laid down in the preceding paragraph shall not apply to cases protested by a people's procuratorate or appealed by private prosecuting parties.
Article 238 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 original trial court for retrial:
(1) Violating the provisions of this Law regarding trial in public;
(2) Violating the recusal system;
(3) Depriving the parties of their litigation rights prescribed by law or restricting such rights, which may affect a fair trial;
(4) Unlawful formation of a judicial organization; or
(5) Other violations against the litigation procedures prescribed by law which may affect a fair trial.
Article 239 The people's court which originally tried a case shall form a new collegial panel for the remanded case and retry it in accordance with the procedure of first instance. With respect to the judgment rendered upon retrial, an appeal or protest may be lodged in accordance with the provisions of Article 227, 228 or 229 of this Law.
Article 240 After a people's court of second instance has reviewed an appeal or protest against a ruling of first instance, it shall either rule to reject the appeal or protest or rescind or revise the original ruling accordingly with reference to the provisions of Article 236, 238 or 239 of this Law.
Article 241 For the retrial of a case remanded to the original trial court by the people's court of second instance, the said original trial court shall calculate the trial time limit anew from the date it has received the remanded case.
Article 242 A people's court of second instance shall try a case of appeal or protest with reference to the procedure of first instance, in addition to applying the provisions in this Chapter.
Article 243 After accepting a case of appeal or protest, a people's court of second instance shall conclude the trial within two month. As to a case where the defendant may be sentenced to death penalty or there is an incidental civil action, or under one of the situations provided in Article 158 of this Law, the time limit may be extended by two months upon the approval or decision of the higher people's court of the province, autonomous region or municipality directly under the Central Government; if a second extension is still needed under special situation, the second extension shall be subject to approval of the Supreme People's Court.
The time limit for trying a case of appeal or protest by the Supreme People's Court shall be decided by the Supreme People's Court itself.
Article 244 All judgments and rulings of second instance and all judgments and rulings of the Supreme People's Court are final.
Article 245 Public security organs, people's procuratorates and people's courts shall keep safe the property and things of the criminal suspects and defendants that are sealed up, distrained or frozen, as well as the fruits accrued therefrom. They shall make an inventory of the property and things as well as the accrued fruits and transfer the inventory with the case files. No entities or individuals shall misappropriate or dispose of such property, things and accrued fruits without authorization. The lawful property of the victims shall be returned to them without delay. The things that are prohibited or perishable shall be disposed of in accordance with the relevant State regulations.
Things that serve as evidence shall be transferred together with the case; however, for those unsuitable to be transferred, their inventory and photos or other documents of certification shall be transferred together with the case.
The disposition of the property or things that are sealed up, distrained or frozen as well as the fruits accruing therefrom shall be included in the judgment rendered by the people's court.
After a judgment is rendered by the people's court becomes effective, all the money and things that are sealed up, distrained or frozen and the fruits accruing therefrom shall be disposed of by the relevant department pursuant to the judgment. All the illicit money and things that are sealed up, distrained, or frozen and 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 property or things that are sealed up, distrained or frozen and the fruits accruing therefrom shall be investigated for criminal responsibility according to law; if the offence does not constitute a crime, he shall be given administrative sanctions.
Chapter IV
Procedure for Death Sentence Review
Article 246 Death sentences shall be subject to approval by the Supreme People's Court.
Article 247 Cases of first instance wherein death sentence have been meted out by intermediate people's courts and the defendants do not appeal shall be reviewed by a higher people's court and be submitted to the Supreme People's Court for approval. If the higher people's court does not agree on death sentence, it may try the case on a certiorari or remand the case for retrial.
Cases of first instance wherein death sentence has been meted out by higher people's courts and the defendants does not appeal and cases of second instance wherein death sentence has been meted out shall all be submitted to the Supreme People's Court for approval.
Article 248 Cases wherein death sentence with a two-year suspension of execution has been meted out by intermediate people's courts shall be subject to approval by higher people's courts.
Article 249 Review of death sentence cases by the Supreme People's Court and review of cases of death sentence with a suspension of execution by higher people's courts shall be conducted by collegial panels which shall be composed of three judges.
Article 250 After the Supreme People's Court has reviewed a case of death sentence, it shall issue a ruling on approving or disapproving the death sentence. If the Supreme People's Court disapproves the death sentence, it may remand the case for retrial or directly revise the judgment thereof.
Article 251 When the Supreme People's Court reviews a death sentence case, it shall question the defendant and shall hear the opinion of the defense lawyer if the defense lawyer so requests.
During the process of reviewing a death sentence case, the Supreme People's Procuratorate may put forward its opinion to the Supreme People's Court. The Supreme People's Court shall notify the Supreme People's Procuratorate of the results of review.
Chapter V
Procedure for Trial Supervision
Article 252 A party and his legal representative or near relative may present a petition to a people's court or people's procuratorate regarding a legally effective judgment or ruling, however, execution of the judgment or ruling shall not be suspended.
Article 253 If a petition presented by a party and his legal representative or near relative falls in any of the following circumstances, the people's court shall retry the case:
(1) Where there is new evidence proving that a fact confirmed in the original judgment or ruling is erroneous, which may affect the conviction or sentencing;
(2) Where the evidence based on which the conviction was made and punishment meted out is unreliable or insufficient, or should be excluded according to law, or there are contradictions among the physical evidence supporting the facts of the case;
(3) Where there is error in the application of law in making the original judgment or ruling;
(4) Where there is violation of the litigation procedure stipulated by law and such violation may affect a fair trial; or
(5) Where any of the judges trying the case engaged in embezzlement, bribery or malpractices for personal gain or bended the law in making the judgment.
Article 254 If the president of a people's court finds a definite error in a legally effective judgment or ruling of his court in 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 a definite error in a legally effective judgment or ruling of a people's court at any lower level, or if a people's court finds a definite error in a legally effective judgment or ruling of a people's court at a lower level, it shall have the power to try the case on a certiorari or instruct a people's court at a lower level to retry the case.
If the Supreme People's Procuratorate finds a definite error in a legally effective judgment or ruling of a people's court at any level, or if a people's procuratorate finds a definite error in a legally effective judgment or ruling 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 ruling in accordance with the procedure for trial supervision.
The people's court that has accepted a case protested by the people's procuratorate shall form a collegial panel to retry the case. If the facts on the basis of which the original judgment was made are unclear or the evidence is insufficient, it may instruct a people's court at the lower level to retry the case.
Article 255 Where a people's court remands a case for retrial to a people's court at the lower level, it shall designate a people's court other than the original trial court to retry the case; however, it may designate the original trial court to retry the case if it is more suitable for the original trial court to retry it.
Article 256 When the original trial court retries a case in accordance with the procedure for trial supervision, a new collegial panel shall be formed. If the remanded case was a case of first instance, it shall be retried in accordance with the procedure of first instance and the new judgment or ruling may be appealed or protested. If the remanded case was a case of second instance or was tried on certiorari by a people's court at a higher level, it shall be retried in accordance with the procedure of second instance and the new judgment or ruling rendered shall be final.
If a case is retried by the people's court by holding a court session, the people's procuratorate at the same level shall have procurators present before the court.
Article 257 Where a people's court decides that a case need be retried and that a compulsory measure need be applied to the defendant, the people's court shall make a decision thereupon. Where a case is protested by the people's procuratorate for retrial, if a compulsory measure need be applied to the defendant, such a decision shall be made by the people's procuratorate.
When a people's court tries a case in accordance with the procedure for trial supervision, it may decide to suspend the execution of the original judgment or ruling.
Article 258 Where a case is retried by a people's court in accordance with the procedure for trial supervision, the retrial shall be concluded within three months from the date when the decision is made to retry the case on a certiorari or to remand the case for retrial. If it is necessary to extend the time limit, the extension shall not exceed six months.
The provisions of the preceding paragraph on the trial time limit shall apply to the trial of a protested case accepted by a people's court in accordance with the procedure for trial supervision. Where it is necessary to instruct a people's court at a lower level to retry a protested case, a decision shall be made within one month from the date when the protested case is accepted for retrial, and the provisions of the preceding paragraph on the trial time limit shall apply to the retrial of the case by the people's court at the lower level.
Part Four
Execution
Article 259 Judgments and rulings shall be executed after they become legally effective.
The following judgments and rulings are legally effective:
(1) Judgments and rulings against which no appeal or protest has been filed within the statutory time limit;
(2) Judgments and rulings of final instance; and
(3) Judgments of death penalty approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court.
Article 260 Where a people's court of first instance decides that a defendant in custody is not guilty or is exempted from criminal punishment, the defendant shall be released immediately after the judgment is pronounced.
Article 261 When a judgment of 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.
Where a criminal sentenced to death with a two-year suspension of execution commits no intentional crime during the period of suspension of the sentence and his punishment should therefore be commuted on the expiration of such a period, the executing organ shall submit a written recommendation to a higher people's court for decision. If there is verified evidence proving that the criminal has committed an intentional crime during the suspension period and the circumstances are serious, and therefore his death sentence should be executed, the higher people's court shall submit the matter to the Supreme People's Court for approval. Where the criminal has committed an intentional crime during the suspension period but the death sentence is not executed, the period of suspension of death sentence shall be recounted and the matter shall be submitted to the Supreme People's Court for the record.
Article 262 After receiving an order of death sentence execution from the Supreme People's Court, the people's court at a lower level shall cause the sentence to be executed within seven days. However, the people's court at a lower level shall suspend the execution of death sentence under one of the following circumstance and immediately submit a report to the Supreme People's Court for decision:
(1) Where it is discovered before the execution of the sentence that the judgment may contain an error;
(2) Where, before the execution of the sentence, the criminal exposes major criminal facts or renders other significantly meritorious service, therefore the sentence may need to be revised; or
(3) Where the criminal is pregnant.
If the reason given in subparagraph (1) or (2) of the preceding paragraph which caused the suspension of the execution 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 subparagraph (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 263 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.
Death sentence shall be executed by means such as shooting or injection.
Death sentence may be executed on the execution ground or in a designated place of custody.
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. 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 decision.
Execution of death sentence 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 the execution. 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 executed shall notify the criminal's family members of the matter.
Article 264 When a criminal is handed over for serving his sentence, the people's court that hands him over for such a purpose shall, within 10 days after the judgment takes effect, deliver the relevant legal documents to the public security organ, the prison or other executing organ.
A criminal sentenced to death with a two-year suspension of execution or to life imprisonment or fixed-term imprisonment shall, according to law, be handed over by a public security organ to a prison to serve his sentence. As to a criminal sentenced to fixed-term imprisonment, if the remaining term of service is not more than three months before he is handed over for serving his sentence, he shall serve the residual sentence in a detention house instead. As to a criminal sentenced to criminal detention, the sentence shall be executed by a public security organ.
A juvenile delinquent shall serve his sentence in a juvenile delinquent reformatory.
The executing organ shall take a criminal in custody without delay and notify the criminal's family members of the matter.
Upon completion of his service of sentence, a criminal sentenced to fixed-term imprisonment or criminal detention shall be given a certificate of release by the executing organ.
Article 265 A criminal sentenced to fixed-term imprisonment or criminal detention may be permitted to temporarily serve his sentence outside prison under one of the following circumstances:
(1) If the criminal is seriously ill and needs to be released on parole for medical treatment;
(2) If the female criminal is found pregnant or is breast-feeding her own baby; or
(3) If the criminal is unable to take care of himself in everyday life and his service of sentence outside prison will not endanger the community.
A criminal sentenced to life imprisonment falling under the circumstances prescribed in the second subparagraph may be permitted to temporarily serve her sentence outside prison.
If the release of a criminal on parole for medical treatment may endanger the community or he may injure himself or cause himself disabled, he may not be released on parole for medical treatment.
If a criminal is truly seriously ill and must be released on parole for medical treatment, the illness shall be diagnosed in the hospital designated by the people's government at the provincial level and relevant supporting documents shall be issued by the said hospital.
Before the criminal is handed over for serving his sentence, temporary service of sentence outside prison shall be subject to the decision of the people's court that is to hand him over for service of sentence; whereas after the criminal is handed over for serving his sentence, a written opinion on temporary service of sentence outside prison shall be proposed by the prison or detention house, which shall be subject to the approval of the prison administration organ at or above the provincial level or the public security organ at or above the level of the city divided into districts.
Article 266 Where a prison or detention house proposed a written opinion on temporary service of sentence outside prison, it shall send a duplicate of the opinion to the people's procuratorate. The people's procuratorate may put forward its recommendation in writing to the deciding or approving organ.
Article 267 The organ that decides to grant or approve temporary service of sentence outside prison shall send a copy of the decision to the people's procuratorate. If the people's procuratorate considers the decision on temporary service of sentence outside prison is improper, it shall, within one month from the date of receiving the notification, put forward its recommendation in writing to the deciding or approving organ. The deciding or approving organ shall, upon receiving the written recommendation of the people's procuratorate, reexamine the decision without delay.
Article 268 Under any of the following circumstances, a criminal who is permitted to temporarily serve his sentence outside prison shall be taken back in prison without delay:
(1) If it is discovered that the criminal has failed to meet the conditions for being permitted to temporarily serve sentence outside prison;
(2) If the criminal seriously violates the relevant supervisory and administrative regulations on temporary service of sentence outside prison; or
(3) If the criminal's term of sentence has not expired when the conditions for temporary service of sentence outside prison cease to exist.
Where a criminal permitted to temporarily serve his sentence outside prison upon a decision by the people's court should thereafter be taken back in prison, the people's court shall make a decision for such a purpose and send the relevant legal documents to the public security organ, the prison or other executing organ.
Where a criminal not eligible for temporarily serving his sentence outside prison has obtained such a permission through bribery or by any other illegal means, the period of time he has temporarily served his sentence outside prison shall not be counted in his serving time. Where a criminal flees while he is temporarily serving his sentence outside prison, the period of time when he has fled away shall not be counted in his service time.
Where a criminal dies while he is temporarily serving his sentence outside prison, the executing organ shall notify the prison or detention house of his death without delay.
Article 269 A criminal who is sentenced to controlled release, imprisonment with probation, or release on parole, or is permitted to temporarily serve his sentence outside prison shall go through community correction according to law, and the authority in charge of community correction shall be responsible for the execution of the sentence.
Article 270 Sentence of deprivation of a criminal's political rights shall be executed by the public security organ. After the criminal has completed serving his sentence, the executing organ shall notify in writing the criminal, the criminal's employer and the community organization in the place where the criminal resides as such.
Article 271 Where a criminal sentenced to a fine fails to pay the fine within the prescribed time limit, the people's court shall compel him to pay. If the criminal truly has difficulty in paying the fine because he has suffered an irresistible disaster, upon a ruling of the people's court, he may be allowed to pay an amount smaller than the fine, or postpone or be exempted from the payment of the fine accordingly.
Article 272 Sentence of confiscation of property contained in all judgments, whether it is imposed independently or as a supplementary punishment, shall be executed by the people's court; where it is necessary, it may be executed by the people's court jointly with the public security organ.
Article 273 Where, during the service of sentence, a criminal commits a new crime, or another of his criminal acts is discovered which has not been known at the time of judgment, the criminal shall be transferred by the executing organ to a people's procuratorate for handling.
Where, during the service of sentence, a criminal sentenced to controlled release, criminal detention, fixed-term imprisonment or life imprisonment shows true repentance or renders meritorious service and should therefore be granted a commutation of sentence or be released on parole according to law, the executing organ shall submit a written recommendation to the people's court for ruling and shall also send a copy of the recommendation to the people's procuratorate. The people's procuratorate may put forward its opinions in writing to the people's court.
Article 274 If a people's procuratorate considers that the ruling a people's court granting commutation of sentence or release on parole is improper, it shall, within 20 days from the date of receiving a copy of the written ruling, put forward 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 ruling.
Article 275 Where, during the execution of a sentence, the prison or another executing organ believes that there is an error in the judgment or the criminal lodges a petition, the prison or executing organ shall refer the matter to the people's procuratorate or the people's court that pronounced the judgment for handling.
Article 276 The people's procuratorates shall supervise the execution of sentence by executing organs to see if the execution is in compliance of the law. If the people's procuratorates discover any illegalities, they shall notify the executing organs to make correction.
Part Five
Special Procedures
Chapter I
Procedure for Juvenile Delinquency Cases
Article 277 With respect to juveniles who committed crimes, the policy of education, persuasion and redemption shall be implemented, and the principle of taking education as the main method and punishment as a subsidiary one shall be upheld.
When people's courts, people's procuratorates or public security organs deal with juvenile delinquency cases, they shall ensure that the juveniles are entitled to their procedural rights, that they have access to legal help and that their cases are handled by judges, procurators or investigators who are familiar with the physical and mental characteristics of juveniles.
Article 278 Where a juvenile criminal suspect or defendant fails to engage a defender, the people's court, people's procuratorate or public security organ shall notify a legal aid agency to designate a lawyer to defend him.
Article 279 When a public security organ, people's procuratorate or people's court deals with a juvenile delinquency case, it may, in light of the specific circumstances, conduct investigation in respect of the growth experience, reasons for committing the crime, guardianship, education and other situations of the juvenile criminal suspect or defendant.
Article 280 The measure of detention shall be rigorously restricted when being applied to a juvenile criminal suspect or defendant. For a people's procuratorate to approve the detention of a juvenile or a people's court to decide to detain a juvenile, it shall interrogate the juvenile criminal suspect or defendant and hear the opinions of his defense lawyer.
Juveniles who are under arrest or detention or who serve their sentences shall be jailed, managed and educated separately from the adults.
Article 281 In a juvenile delinquency case, when the juvenile criminal suspect or defendant is interrogated or tried, his legal representative shall be notified and be present. If there is no way of notifying his legal representative, or his legal representative cannot be present or is an accomplice in the case, his other adult relative or the representative of his school, employer, the community organization where he resides or the organization for the protection of juveniles may be notified and be present, and the relevant situations shall be recorded for file. The legal representative present may exercise the procedural rights on behalf of the juvenile criminal suspect or defendant.
If the legal representative or other persons present believes that the lawful rights and interests of the said juvenile are infringed during the interrogation or trial, he may raise his opinions. The record of the interrogation or the courtroom record shall be given to the legal representative or any of the aforementioned persons to read or be read out to them.
When a female juvenile criminal suspect is interrogated, there shall be female staff members present.
In trying a juvenile delinquency case, after the juvenile defendant makes the final statement, his legal representative may make a supplementary statement.
When questioning a juvenile victim or juvenile witness, the provisions in the first, second and third paragraphs shall be applicable.
Article 282 Where a juvenile is suspected of committing a crime prescribed in Chapter IV, V or VI of Part Two of the Criminal Law, and may be given a sentence not heavier than fixed-term imprisonment of one year, if he shows repentance, the people's procuratorate may decide to conditionally waive prosecution despite the fact that the case meets the requirements for prosecution. Before the people's procuratorate makes a decision on conditionally waiving the prosecution, it shall hear the opinions of the public security organ and the victim.
If a public security organ requests a reconsideration of the decision on conditionally waiving prosecution or submits such a decision for review, or the victim files a petition regarding such a decision, the provisions in Articles 179 and 180 of this Law shall be applicable.
If a juvenile criminal suspect and his legal representative have objection to the people's procuratorate's decision on conditionally waiving prosecution, the people's procuratorate shall make a decision to prosecute the case.
Article 283 During the observation period for conditionally waiving prosecution, the people's procuratorate shall supervise and observe the juvenile criminal suspect against whom the prosecution is conditionally waived. The guardians of the juvenile criminal suspect shall strengthen education and provide assistance to the people's procuratorate in its supervision and observation work.
The observation period for conditionally waiving prosecution shall be not less than six months but not more than one year. Such period shall be counted from the date when the people's procuratorate makes the decision on conditionally waiving prosecution.
The juvenile criminal suspect against whom the prosecution is conditionally waived shall obey the following provisions:
(1) Abiding by laws and regulations and submitting himself to supervision;
(2) Reporting on his own activities as required by the supervision organ;
(3) Reporting and obtaining approval from the supervisory organ for any departure from the city or county where he lives or for any change in residence; and
(4) Subjecting himself to correction and education as required by the supervisory organ.
Article 284 If the juvenile criminal suspect against whom the prosecution is conditionally waived falls in one of the following circumstances during the observation period, the people's procuratorate shall rescind the decision on conditionally waiving prosecution and bring a public prosecution:
(1) If the juvenile criminal suspect commits a new crime, or if he is found having committed another crime before the decision on conditionally waiving prosecution was made which should also be prosecuted; or
(2) The juvenile criminal suspect violates the provisions on public security administration, or the relevant supervisory or administrative provisions on conditionally waiving prosecution as stipulated by the observing organ, and the circumstances are serious.
Where the juvenile criminal suspect against whom the prosecution is conditionally waived does not fall in any of the aforesaid circumstances during the observation period, the people's procuratorate shall make a decision on waiving prosecution when the observation period expires.
Article 285 If a defendant is under the age of 18 when his case is tried, such a case shall not be heard in public. However, upon the consent of the juvenile defendant and his legal representative, the school where the juvenile defendant studies and the organization for the protection of juveniles may send their representatives to be present.
Article 286 If a criminal is under the age of 18 when he committed the accused crime and is given a sentence not heavier than fix-term imprisonment of five years, his criminal record shall be sealed.
Sealed criminal records are not accessible by any entity or individual, except where a judicial organ needs to handle relevant cases or a relevant entity makes inquiry according to the provisions of the state. Any entity accessing such records according to law shall keep confidential the information contained in the sealed criminal records.
Article 287 Juvenile delinquency cases shall be handled according to, apart from the provisions of this Chapter, other applicable provisions of this Law.
Chapter II
Procedure for a Publicly Prosecuted Case
Where the Parties Reaches a Settlement
Article 288 In a case of public prosecution prescribed as the follows, if the criminal suspect or defendant sincerely shows repentance and has obtained forgiveness from the victim by compensating or making apology to the victim or by other means, and the victim is willing to settle, the parties may reach a settlement:
(1) If the case arises out of a civil dispute that involves a crime prescribed in Chapters IV and V of the Criminal Law and may be given a sentence not heavier than fixed-term imprisonment of three years; or
(2) If the case is of a crime of negligence, with the exception of the crime of dereliction of duty, and a sentence not heavier than fixed-term imprisonment of seven years may be given.
The procedure stipulated in this Chapter shall not be applicable to any criminal suspect or defendant who has intentionally committed a crime over the past five years.
Article 289 Where the parties in a case reach a settlement, the public security organ, people's procuratorate or people's court shall hear the opinions of the parties and other relevant persons, examine whether the settlement is voluntary and legitimate, and organize the making of a written settlement agreement.
Article 290 Where the parties in a case has reached a settlement agreement, the public security organ may propose leniency to the people's procuratorate, and the people's procuratorate may make a recommendation to the people's court for lenient punishment. If the circumstances of the crime are minor and no criminal punishment needs to be imposed, the people's procuratorate may decide not to prosecute the case. The people's court may impose a lenient punishment on the defendant in accordance with law.
Chapter III
Trial in Absentia
Article 291 Where a supervisory organ or public security organ transfers a case for prosecution which involves a crime of embezzlement or bribery, or a crime endangering state security or crime of terrorist activity which has been examined by the Supreme People's Procuratorate and need be tried without delay, but the criminal suspect or defendant is outside the territory of China, if the people's procuratorate deems that the facts of the case are clear, the evidence solid and sufficient and criminal responsibility should be pursued according to law, the people's procuratorate may bring a prosecution according to law. If, after review, the people's court finds that the charged criminal facts in the bill of prosecution are clear-cut and the conditions for a trial in absentia are satisfied, a decision shall be made to try the case in court.
A case prescribed in the preceding paragraph shall be tried by a collegial panel of the intermediate people's court in the place of residence of the criminal suspect or defendant before he departed from China or by an intermediate people's court designated by the Supreme People's Court.
Article 292 The people's court shall deliver the summon and a copy of the bill of prosecution to the defendant by means of judicial assistance as stipulated in the relevant international treaties or worked out diplomatically, or by any other means which is allowed by the law of the place where the defendant currently stays. Where the summon and the copy of the bill of prosecution has been delivered to the defendant but the defendant fails to appear before the court as is required, the people's court shall hold a court session to try the case, render a judgment according to law, and dispose of the illegal gains and other property involved in the case.
Article 293 Where a case is to be tried in absentia by the people's court, the defendant shall have the right to engage a defender, or his near relative may engage a defender for the defendant. If both the defender and his near relative fail to engage a defender, the people's court shall inform a legal aid agency to appoint a lawyer to defend him.
Article 294 The people's court shall have the written judgment delivered to the defendant or his near relative and his defender. Where the defendant or his near relative has objection to the judgment, he or his near relative shall have the right to appeal to the people's court at the next higher level. The defender may file an appeal upon consent of the defendant or his near relative.
Where the people's procuratorate believes that there is a definite error in the judgment made by the people's court, it shall present a protest to the people's court at the next higher level.
Article 295 Where, during the course of a trial in absentia, the defendant voluntarily surrenders himself or is captured, the people's court shall retry the case.
Where a criminal surrenders himself or is brought back to China after the judgment or ruling of his case has become effective, the people's court shall hand him over for serving his sentence. Before handing him over, the people's court shall inform him of his right to raising any objection to the judgment or ruling of his case. Where the criminal does raise an objection, the people's court shall retry the case.
Where there is a definite error in the judgment or ruling as to the disposal of the criminal's property, his property shall be returned or he shall be compensated properly.
Article 296 Where the trial of a case is discontinued because the defendant is unable to appear in court due to serious illness, and he remains so after the trial has been discontinued for six months or more, the people's court may, upon application or consent of the defendant and his legal representative or of his near relative for resuming the trial, try the case in absentia without the defendant appearing in court and render a judgment according to law.
Article 297 Where the defendant is deceased, the people's court shall rule to terminate the trial; however, if there is evidence proving the defendant's innocence, the people's court shall, after trying the case in absentia and affirming that the defendant is innocent, render a judgment according to law.
Where the people's court retries a case according to the procedure for trial supervision and the defendant is deceased, the people's court may try the case in absentia and render a judgment according to law.
Chapter VI
Procedure for Confiscating Illegal Gains Involved in a Case
Where the Criminal Suspect or Defendant Flees, Hides or is Dead
Article 298 For a grave crime of embezzlement or bribery or terrorist activity, if the criminal suspect or defendant flees or hides and cannot be brought to justice one year after he is wanted for arrest, or if the criminal suspect or defendant is dead, and the illegal gains and other property involved in the said case should be recovered in accordance with the provisions of the Criminal Law, the people's procuratorate may apply to the people's court for confiscation of the illegal gains.
Where a public security organ believes that there is any of the circumstances specified in the preceding paragraph, it shall prepare a written opinion on confiscation of the illegal gains and transfer the case to the people's procuratorate.
The application for confiscation of illegal gains shall contains relevant evidence materials relating to the facts of the crime and the illegal gains, a statement of the categories, amounts and locations of the involved property and whether or not the property has been sealed, distrained or frozen.
When necessary, the people's court may seal, distrain or freeze the property for which an application for confiscation has been made.
Article 299 Application for confiscation of illegal gains shall be heard by a collegial panel formed in the intermediate people's court in the place where the crime was committed or the criminal suspect or defendant resides.
After the people's court accepts an application for confiscation of illegal gains, it shall issue a public notice. The period of public notice shall last six months. The near relative of the criminal suspect or defendant and other interested parties shall have the right to apply for participating in the lawsuit, and they may also engage agents ad litem to participate in the lawsuit.
The people's court shall hear the application for confiscation of illegal gains on the expiration of the period of public notice. If there are interested parties participating in the lawsuit, the people's court shall hold a court session to hear the case.
Article 300 The people's court shall, upon investigation and after hearing the case, rule to confiscate the property that is found to be illegal gains or other property involved in the case, except for the property that should be returned to the victim in accordance with law. As to the property that should not be confiscated, the people's court shall rule to reject the application and lift the measures for sealing, distraining or freezing such property.
The near relative of the criminal suspect or defendant, other interested parties or the people's procuratorate may appeal or protest against such a ruling made by the people's court in accordance with the provisions in preceding paragraph.
Article 301 If the criminal suspect or defendant voluntarily surrenders himself to justice or is captured during course of hearing, the people's court shall terminate the hearing of such an application.
If it is definitely erroneous to confiscate the property of the criminal suspect or defendant, such property shall be returned or compensation shall be made accordingly.
Chapter IV
Procedure for Compulsory Medical Treatment for Mental Patients
Who Bear no Criminal Responsibility According to Law
Article 302 Where a mental patient who has engaged in violence and thereby jeopardized public security or seriously endangered citizens' personal safety is not held criminally responsible after being examined according to statutory procedure but may continue to do harm to the society, the said mental patient may be subjected to compulsory medical treatment.
Article 303 The people's court shall decide on whether to apply compulsory medical treatment to a mental patient according to the provisions of this Chapter.
Where a public security organ finds that a mental patient meets the conditions for compulsory medical treatment, it shall produce a written opinion on compulsory medical treatment and transfer the case to the people's procuratorate for handling. Where the people's procuratorate finds that a mental patient meets the conditions for compulsory medical treatment in a case which is transferred by the people's security organ or which is under examination for prosecution, it shall submit an application to the people's court for the mental patient to receive compulsory medical treatment. Where the people's court finds during the trial that the defendant meets the conditions for compulsory medical treatment, it may make a decision on compulsory medical treatment.
Before the people's court makes a ruling on compulsory medical treatment, the public security organ may apply temporary and protective restraining measures to a violent mental patient.
Article 304 A people's court shall, after accepting an application for compulsory medical treatment, form a collegial penal to hear the case.
When a people's court hears a case applying for compulsory medical treatment, it shall inform the legal representative of the respondent or defendant to be present. If the respondent or defendant fails to engage an agent ad litem, the people's court shall inform a legal aid agency to designate a lawyer to provide legal assistance for him.
Article 305 If the people's court considers the respondent or defendant meets the conditions for compulsory medical treatment after hearing the case, it shall, within one month, make a decision on compulsory medical treatment.
Where a victim and his legal representative or near relative has objection to the decision on applying compulsory medical treatment to the respondent or defendant, the victim and his legal representative or near relative may apply to the people's court at the next higher level for reconsideration.
Article 306 An institution providing compulsory medical treatment shall conduct regular diagnosis and assessment of the person who is under such treatment. If the person no longer poses threats to the personal safety of others and does not need further compulsory medical treatment, the said institution shall put forward its opinion on terminating the compulsory medical treatment in a timely manner and submit its opinion to the people's court that had ruled for applying compulsory medical treatment for approval.
The person who is under compulsory medical treatment and his near relative shall have right to apply for termination of the compulsory medical treatment.
Article 307 People's procuratorates shall supervise the making and implementation of compulsory medical treatment rulings.
Supplementary Provisions
Article 308 The security departments of the Army shall exercise the power of investigation with respect to crimes in the Army.
China Coast Guard shall exercise the power of investigation with respect to the crimes at sea.
Crimes committed by criminals in prison shall be investigated by the prison.
The handling of criminal cases by the security departments of the Army, China Coast Guard and prisons shall be governed by the relevant provisions of this Law.
