Decision of the National People's Congress on the Amendment of the Criminal Procedure Law of the People's Republic of China
Order of the President of the People's Republic of China
I hereby promulgate Decision of the National People's Congress on the Amendment of the Criminal Procedure Law of the People's Republic of China, adopted at the fifth meeting of the 11th National People's Congress on March 14, 2012. The Decision will come into force on January 1, 2013.
President of the People’s Republic of China
March 14, 2012
The fifth meeting of the 11th National People's Congress has decided to amend the Criminal Procedure Law of the People's Republic of China as follows:
1. Article 2 is amended to read: "The tasks of the Criminal Procedure Law of the People's Republic of China are to ensure the accurate and prompt discovery of criminal facts, the correct application of law, the punishment of crimes, and the protection of the innocent from criminal prosecution; to educate citizens to comply with the law and to fight crimes; to maintain the socialist law and order, to ensure respect for and safeguard human rights, and to protect citizens’ rights to person, rights to property, democratic rights and other rights; and to ensure socialist development is uninterrupted.”
2. Article 14 Paragraph 1 is amended to read: "The people's courts, the people’s prosecutor’s offices and public security authorities should safeguard the rights to defence and other procedural rights that criminal suspects, defendants, and other participants in legal action are entitled to according to law."
Paragraph 2 is deleted.
3. Article 20 is amended to read: "The intermediate people’s courts have jurisdiction as courts of first instance over the following criminal cases:
"(1) cases endangering state security or involving terrorist activities;
"(2) cases punishable by life imprisonment or death.”
4. Article 31 is amended to read: "Provisions of this Chapter on recusal apply to court clerks, interpreters, and forensic examiners.
"The defender or agent ad litem may request recusal and apply for reconsideration in accordance with provisions of this chapter.”
5. Article 33 is amended to read: “The criminal suspect has the right to appoint a defender as of the date on which the suspect is first interrogated by the investigating authority or is subject to compulsory measures; during the investigation period, only an attorney-at-law may be appointed as the defender. A defendant has the right to appoint a defender at any time.
“When the investigating authority first interrogate the criminal suspect or subject a criminal suspect to compulsory measures, the criminal suspect should be informed of the right to appoint a defender. The people's prosecutor's office should notify the criminal suspect of the right to appoint a defender within three days of receiving case materials transferred for review and prosecution. The people's court should notify the defendant of the right to appoint a defender within three days of admitting a case. If a criminal suspect or defendant requests the appointment of a defender, the people’s court, the people’s prosecutor’s office, or the public security authority should convey the message promptly.
"Where a criminal suspect or defendant is in detention, a defender may also be appointed by his custodian or close relative on his behalf.
"Upon accepting appointment by the criminal suspect or defendant, the defender should promptly notify the authority handling the case."
6. Article 34 is amended to read: "Where a criminal suspect or defendant has not appointed a defender due to financial difficulties or other reasons, he or his close relatives may apply to a legal aid agency for assistance. The legal aid agency should assign an attorney as his defender if conditions for legal aid are satisfied.
"Where the criminal suspect or defendant is blind, deaf or mute, or is a mentally ill person who has not completely lost his capacity to comprehend or to control his behavior, and such person has not appointed a defender, the people’s court, the people’s prosecutor’s office or the public security authority should notify the legal aid agency to assign an attorney as his defender.
"If a criminal suspect or defendant may be sentenced to life imprisonment or death, and such person has not appointed a defender, the people’s court, the people’s prosecutor’s office, or the public security authority should notify the legal aid agency to assign an attorney as his defender."
7. Article 35 is amended to read:"The responsibility of a defender is to present, according to the facts and law, materials and opinions relevant to the innocence of the criminal suspect or defendant, to the pettiness of his crime, and to the need for mitigated punishment or exemption from criminal liability, and to safeguard the procedural rights and other legitimate rights and interests of the criminal suspect or defendant.”
8. A new article is inserted as Article 36: "During the investigation phase, the defence attorney may provide legal assistance to the criminal suspect; make a complaint or accusations on his behalf; apply for the alteration of compulsory measures; and find out from the investigating authority about the crimes suspected of and relevant information about the case and provide opinions."
9. Article 36 is changed into two articles, Articles 37 and 38, and is amended to read:
"Article 37 A defence attorney may interview and correspond with the criminal suspect or defendant held in detention. Other defenders, with the permission of the people’s court or the people’s prosecutor’s office, may also interview or correspond with the criminal suspect or defendant held in detention.
“Where a defence attorney holds a practicing license, law firm certificate and letter of attorney or an official legal aid letter and requests to meet with a detained criminal suspect or defendant, the detention facility should arrange such a meeting promptly and no later than within 48 hours.
"Where a defence attorney wishes to meet, during the investigation phase, with a suspect of an offence that involves a crime endangering state security, a crime of terrorism or a particularly serious crime of bribery, he should seek permission from the investigating authority. The investigating authority should let the detention facility know the existence of such cases in advance.
"When a defence attorney meets with a detained criminal suspect or defendant, he may inquire about the case and offer legal advice, etc. The defence attorney may, as of the date on which the case is delivered for review and prosecution, verify the evidence with the suspect or the defendant. The meeting between the defence attorney and the suspect or the defendant is not to be monitored.
“Where a defence attorney meets or corresponds with a suspect or a defendant under residential surveillance, the provisions of Paragraphs 1, 3 and 4 apply.
“Article 38 Starting from the date of the review by the people’s prosecutor’s office, a defence attorney may access, excerpt and copy filed materials of the case. Other defenders may also access, excerpt and copy such materials with the permission of the people’s court or the people’s prosecutor’s office.”
10. Two articles are inserted as Articles 39 and 40:
"Article 39 Where a defender is of the opinion that during the investigation or prosecutor review periods evidence has been collected but not submitted by the public security authority or the people’s prosecutor’s office that proves the innocence of the suspect or defendant or the pettiness of a crime, the defender may apply to the people’s prosecutor’s office or the people’s court for such evidence to be subpoenaed.
"Article 40 Evidence collected by a defender in support of the criminal suspect having an alibi, being under the age of criminal liability, or being mentally ill and excluded from criminal liability, should be made known to the public security authority or the people’s prosecutor’s office.”
11. Article 38 is changed to Article 42 and amended to read: “A defender or any other person should not assist a suspect or a defendant in concealing, destroying and falsifying evidence or in giving a colluded statement; nor should a defender or any other person threaten or induce a witness to commit perjury and perform other acts that interfere with the procedures of the judicial authorities.
"Violation of the previous paragraph should be sanctioned in accordance with law; where a defender is suspected of committing a crime, the case should be handled by an investigating authority other than the one that handles the case represented by the defender. Where a defender is an attorney-at-law, the law firm where he works or the lawyers association he belongs to should be notified."
12. Two articles are inserted as Articles 46 and 47:
"Article 46 An attorney has the right to maintain confidentiality about information that he obtains about a client while performing his professional duty. Nevertheless, where an attorney comes to know while performing his professional duty that a client or any other person is preparing for or committing a crime that endangers state security or public security or gravely threatens the personal safety of other persons, he should promptly notify the judicial authorities of such crime.
"Article 47 Where the defender or the agent ad litem considers that the public security authority, the people’s prosecutor’s office, the people’s court, or the staff thereof, are interfering with his exercise of procedural rights, he has the right to make a complaint or accusation with the people’s prosecutor’s office at the same level or the next higher level. The people’s prosecutor’s office should promptly review the complaint or accusation; if the allegations are verified, the people’s prosecutor’s office should notify relevant authorities to make correction.”
13. Article 42 is changed to Article 48 and amended to read: "Any material that may be used to prove the facts of a case is considered evidence.
"(1) physical evidence;
"(2) documentary evidence;
"(3) testimonies by witnesses;
"(4) statements by the victim;
"(5) statements and justifications by the criminal suspect or defendant;
"(6) forensic examiner’s opinions
"(7) documentation of observations, inspections, identifications, investigative experiments, etc.; and
“(8) audiovisual materials and electronic data.
“Evidence must be verified to be used as a basis for deciding a case.”
14. A new article is inserted as Article 49: “The onus of proof that a defendant is guilty is on the public prosecutor in a public prosecution case and on the private prosecutor in a private prosecution case.”
15. Article 43 is changed to Article 50 and amended to read: “Adjudicators, prosecutors and investigators must, pursuant to legal procedures, collect all kinds of evidence, including those proving the guilt or innocence of a suspect or a defendant as well as mitigating and aggravating evidence. The use of torture or extortion to obtain a confession and the use of threats, inducement, and deception and other illegal means to collect evidence is strictly prohibited; no person may be forced to prove his own guilt. It must be ensured that all persons relevant to or with knowledge about a case are given the conditions necessary to provide objective and sufficient evidence; except in special circumstances, such persons may be enlisted to assist in the investigation.”
16. Article 45 is changed to Article 52, and a new paragraph is inserted as Paragraph 2 to read: “Evidence such as physical and documentary evidence, audiovisual materials and electronic data collected by administrative authorities during administrative law enforcement or during investigation of a case may be used as evidence in the criminal procedure.”
Paragraph 2 is changed to Paragraph 3, and is amended to read: "Evidence involving state secrets, trade secrets and privacy should be kept confidential."
17. Article 46 is changed to Article 53, and is amended to read: “Decisions for any and all cases should be based on evidence and investigations, and confessions should not be overemphasized. Where there is only a confession by the defendant and no other evidence, the defendant may not be found guilty and no punishment may be imposed; where there is no confession by the defendant but the evidence is reliable and sufficient, the defendant may be found guilty and a punishment be imposed.
"Evidence should meet the following requirements to be reliable and sufficient:
“(1) Evidence exists for each fact needed to determine guilt and a sentence;
“(2) All evidence needed to decide a case is verified through legal procedures; and
“(3) Based on overall evaluation of the evidence, all facts are proved beyond reasonable doubt.”
18. Five new articles are inserted as Articles 54, 55, 56, 57 and 58:
"Article 54 Confessions by a suspect or a defendant obtained through torture and extortion and other illegal means and witness testimonies and victim statements obtained through the use of violence, threats and other illegal means should be excluded. Where physical or documentary evidence is collected in ways violating legal procedures and severely affecting judicial justice, corrections should be made or justifications provided. Where no correction or justification is provided, such evidence should be excluded.
"Where evidence that should be excluded is found during the investigation, prosecutor review or trial, such evidence should be excluded in accordance with the law and should not be used as a basis for recommendation on prosecution, prosecutor decisions, and adjudication.
“Article 55 Where the people’s prosecutor’s office receives reporting, accusation or tips or discovers that the investigators collected evidence illegally, it should investigate and verify the accusation. Where the prosecutor’s office confirms that evidence has been collected through illegal means, it should issue a recommendation on the correction of such situation. Where such illegal collection of evidence constitutes a crime, criminal prosecution should be conducted in accordance with the law.
"Article 56 Where, in a court hearing, an adjudicator is of the opinion that illegally obtained evidence under Article 54 may exist, a court enquiry should be conducted into the legality of such evidence.
"A party and his defender or an agent ad litem has the right to apply to the people’s court to exclude evidence obtained illegally. Where exclusion of illegally obtained evidence is applied for, relevant information or materials about the illegal practice should be furnished.
“Article 57 During a court enquiry into the legality of the evidence collection process, the people’s prosecutor’s office should prove the legality of the collection process.”
“Where available evidentiary materials are not able to prove the legality of evidence collection, the people’s prosecutor’s office may request the people’s court to notify relevant investigators or other persons to make an explanation before the court; the people’s court may also, at its own initiative, notify relevant investigators or other persons to make an explanation before the court. The relevant investigators or other persons may themselves request to appear to make an explanation. Relevant persons should appear upon the court’s notification.”
“Article 58 Where by means of a court hearing, evidence is determined to have been obtained illegally or where situations of collecting evidence using illegal means provided under Article 54 cannot be excluded, such evidence should be excluded."
19. Article 47 is changed to Article 59 to read: “A testimony by a witness may serve as a basis for deciding a case only after it has been contested and verified in court by the public prosecutor and the victim, as well as the defendant and the defender. Where the court finds that the witness has wilfully given a false testimony or concealed incriminating evidence, it should handle the situation in accordance with the law.”
20. Two articles are inserted as Articles 62 and 63:
"Article 62 Where, in cases involving crimes endangering state security, crimes of terrorism, organized crimes with characters of the underworld and drug-related crimes, etc., the personal safety of a witness or victim or their close relatives is at risk because of his testimony in a trial, the people’s court, people’s prosecutor’s office and public security authority should take any or several of the following protection measures:
“(1) withholding their real name, address, place of work and other personal particulars;
“(2) withholding the appearance and real voice in testimony before the court or taking other measures of testimony;
“(3) prohibiting certain persons to be in contact with the witness or the victim and his close relatives;
“(4) offering special personal and residential protection; and
“(5) offering any other necessary protection measures.
"Where a witness, forensic examiner, or victim believes that his personal safety or the personal safety of his close relatives is at risk because of his testimony in a proceeding, he may apply to the people’s court, people’s prosecutor’s office, or the public security authority for protection.
"Where the people’s court, the people’s prosecutor’s office, or the public security authority takes protection measures according to law, relevant entities and individuals should provide cooperation.
"Article 63 A witness should be compensated for transportation, accommodation and meal expenses related to his performing a testimonial obligation. The testimonial compensation for a witness is to be included in the operating expenses of the judicial authority and be provided by the financial department of the government at the same level.
“In respect of witnesses working for an employer, the employer must not reduce or covertly reduce the witness’s remuneration, bonuses and other social benefits for the time lost in providing testimony.”
21. Article 51 is changed to Article 65 to read: “The people’s court, people’s prosecutor’s office and public security authority may release on bail a suspect or a defendant falling into one of the following circumstances:
“(1) Persons punishable by surveillance (guanzhi) , criminal detention (juyi) or an independently imposed secondary penalty;
“(2) Persons punishable by imprisonment but in respect of whom release on bail does not pose a risk to the public;
“(3) persons having serious illness and not able to take care of themselves and pregnant women or women breastfeeding their own infants, but in respect of whom a release on bail does not pose a risk to the public;
“(4) Persons whose cases have not been closed at the end of the detention period and for whom release on bail needs to be granted.
“Releases on bail are to be executed by the public security authorities.”
22. Article 55 is changed to Article 68, and is amended to read: “A guarantor should perform the following obligations:
“(1) supervising the person guaranteed to comply with the provisions of Article 69 of this law; and
“(2) promptly reporting to the enforcement authority where it is found that the person guaranteed is likely to or has violated the provisions of Article 69 of this law.
“Where the person guaranteed violates the provisions of Article 69 of this law, and if the guarantor has failed to perform his obligation, the guarantor is to be fined; or, where such non-performance constitutes a crime, the guarantor is to be subject to criminal prosecution.”
23. Article 56 is changed into three Articles as Articles 69, 70 and 71, and is amended to read:
"Article 69 A suspect or defendant released on bail:
“(1) may not leave his residential city or county without prior approval of the enforcement authority;
"(2) should give 24 hours notice to the enforcement authority in the event of a change of address, place of work or contact details;
"(3) should appear before court in good time when subpoenaed;
"(4) may not in any form interfere with a witness; and
"(5) may not destroy or falsify evidence or give a colluded statement.
“The people’s court, people’s prosecutor’s office and public security authority may, based on the circumstances of the case, order a criminal suspect or a defendant released on bail to comply with one or more of the following provisions:
“(1) not to enter designated venues;
“(2) not to meet or correspond with designated persons;
“(3) not to engage in designated activities; and
“(4) to surrender his passport or other border crossing documents, and driver certificates, to the enforcement authority for safekeeping.
“Where the suspect or defendant released on bail violates the provisions in the preceding two paragraphs and the bail has been paid, the bail is to be partially or wholly forfeited and the suspect or the defendant will be, depending on the individual circumstances, ordered to enter into a recognizance, pay a new bail, name a new guarantor, or to be held in residential surveillance or be arrested (daibu).
“Where the suspect or defendant violates the provisions for release on bail and an arrest is necessary, the suspect or the defendant may be held in custody (juliu) first.
"Article 70 An authority deciding on bail should, in order to set the bail amount, balance the need to ensure normal operation of legal proceedings, the risk the person to be released on bail poses to the public, the nature and circumstances of the case, the gravity of the potential punishment and the financial situation of the person to be released on bail.
"The person providing the bail should deposit the bail in the bank account designated by the enforcement authority.
“Article 71 Where the suspect or defendant has not violated the provisions in Article 69 of this law while on bail, the bail may be collected from the bank at the end of the bail period, on presentation of a notice rescinding the bail or relevant legal documents.”
24. Three articles are inserted as Articles 72, 73 and 74:
“Article 72 The people’s court, people’s prosecutor’s office or public security authority may place under residential surveillance suspects or defendants that meet the conditions for arrest and fall into one of the following circumstances:
“(1) seriously ill persons unable to take care of themselves;
“(2) pregnant women or women currently breastfeeding their own infants;
“(3) the only caregiver of a person who cannot take care of himself;
“(4) persons in respect of whom residential surveillance is more appropriate due to the special circumstances of the case or requirements of the investigation; or
“(5) persons whose detention period has ended but whose case has not been concluded, and residential surveillance is necessary.
"Where the suspect or defendant meets the conditions for release on bail but is unable to name a guarantor or pay the bail, residential surveillance may be imposed.
“Residential surveillance is to be enforced by the public security authority.”
"Article 73 Residential surveillance should be enforced at the domicile of the suspect or defendant. Where there is no permanent domicile, surveillance may be enforced at a designated place of residence. Where there is suspicion of crimes of endangering state security, crimes of terrorism and particularly serious crimes of bribery, and residential surveillance at the domicile may impede the investigation, it may, upon approval by the next higher people’s prosecutor’s office or public security authority, be enforced at a designated place of residence. However, residential surveillance may not be enforced at a detention facility or an investigation facility.
"Where residential surveillance is enforced at a designated place of residence, the family members of the person under surveillance should be informed within 24 hours upon enforcement, save where it is impossible to furnish a notice.
"If a suspect or a defendant held in residential surveillance wishes to appoint a defender, the provisions of Article 33 of this law apply.
"The people’s prosecutor’s office oversees whether or not the decision and enforcement of residential surveillance at a designated place of residence is in keeping with the law.
“Article 74 The period of surveillance at a designated place of residence should be deducted from the sentence term. For offenders sentenced to surveillance (guanzhi), the sentence term should be reduced by one day for each day of residential surveillance; for criminal detention (juyi) and imprisonment sentences, the sentence term should be reduced by one day for two days of residential surveillance.”
25. Article 57 is changed to Article 75, and is amended to read: “A suspect or a defendant under residential surveillance should comply with the following provisions which require him:
“(1) not to leave the place of surveillance without prior approval by the enforcement authority;
“(2) not to meet or correspond with anyone without the prior approval of the enforcement authority;
“(3) to appear before court in good time when subpoenaed;
“(4) not to interfere in any form with a witness;
“(5) not to destroy or falsify evidence or collude in giving a statement; and
“(6) to surrender his passport or other border crossing documents, and identification documents and driver certificates, to the enforcement authority.
“Where a suspect or a defendant under residential surveillance violates provisions in the preceding paragraph, the suspect or the defendant may be arrested where the circumstances are grave; if arrest is necessary, the suspect or the defendant may be held in custody first.”
26. A new article is inserted as Article 76: "The enforcement authority may impose on a suspect or a defendant under residential surveillance electronic monitoring, irregular inspections and other surveillance measures to oversee the compliance of the suspect or defendant with the surveillance provisions. During the investigation, the enforcement authority may monitor the correspondence of the suspect or defendant under residential surveillance.”
27. Article 60 is changed to Article 79, and is amended to read: "Where evidence exists that proves there are facts for a crime, and the suspect or defendant is punishable by imprisonment or by a more severe sentence, and where bail, residential surveillance or other measures are inadequate to prevent any of the following risks to the public, the suspect or defendant should be arrested:
“(1) The person may commit a new crime;
“(2) The person poses an imminent risk to state security, public security or social order;
“(3) The person may destroy, falsify or conceal evidence or interfere with the witness or collude in giving a statement;
“(4) The person may retaliate on the victim, tipster or the person making accusations against him; or
“(5) The person attempts to commit suicide or abscond.
“Where evidence exists that proves there are facts for a crime, and the crime is punishable by imprisonment of more than ten years; or where evidence exists that proves there are facts for a crime, and the crime is punishable by imprisonment or a more serious sentence, but the suspect has intentionally committed a prior crime or his identity is unknown, such person should be arrested.
“Where a suspect or a defendant released on bail or under residential surveillance breaches the provisions for release on bail or residential surveillance and the circumstances are grave, the suspect or the defendant should be arrested.”
28. Article 64 is changed to Article 83, and Paragraph 2 thereof is amended to read: "After being taken into custody, the person in custody should promptly and no later than within 24 hours be delivered into a detention facility for custody. The family members of the person in custody should be informed within 24 hours after the person is taken into custody, save where it is impossible to furnish a notice or where crimes endangering state security or crimes of terrorism are suspected and a notice may impede the investigation. When circumstances impeding investigation disappear, family members of the person in custody should be notified immediately.”
29. Article 65 is changed to Article 84, and is amended to read: "The public security authority should interrogate a person within 24 hours after the person is taken into custody. Where it is found that custody should not be used, the person must be released immediately and given proof of release.”
30. A new article is inserted as Article 86 to read: "When a people’s prosecutor’s office reviews and approves an arrest application, it may question the suspect; questioning the suspect is mandatory in any of the following circumstances:
“(1) Doubts exist about whether or not the conditions for arrest are met;
“(2) The suspect requests to give a statement to the prosecutor face-to-face; or
“(3) The investigation may be in serious violation of the law.
“When reviewing and approving an arrest application, the people’s prosecutor’s office may question witnesses and other participants in the legal proceedings, and consider the opinion of the defence attorney; if the defence attorney requests to express his opinion, the opinion should be heard.”
31. Article 71 is changed to Article 91, and Paragraph 2 thereof is amended to read: "Upon arrest, an arrested person should be promptly delivered into a detention (kanshou) facility for custody. The family members of the arrested person should be informed within 24 hours of the arrest, except where it is impossible to furnish a notice."
32. A new article is inserted as Article 93 to read: "After the arrest of a suspect or a defendant, the people’s prosecutor’s office should continue to check the necessity for detention. Where detention is no longer necessary, the people’s prosecutor’s office should give advice to release of the suspect or defendant or alter the compulsory measures. Relevant authorities should notify, within 10 days, the people’s prosecutor’s office as to how the advice is handled.”
33. Article 52 is changed to article 95, and is amended to read: "The suspect or defendant and his statutory representative, close relatives or defender are entitled to request the people’s court, people’s prosecutor’s office or public security authority to alter the compulsory measures. The people’s court, the people’s prosecutor’s office, and the public security authority should make a decision within three days upon receiving the application. If the application is rejected, the applicant should be notified and the reasons for rejection be explained.”
34. Article 74 is changed to Article 96, and is amended to read: "In a case involving a suspect or a defendant that has been committed to detention, if the case is not closed within the periods prescribed in this law for investigative custody, for prosecutor review, for first instance decisions or for second instance decisions, the suspect or defendant should be released. Where further investigations or hearings are necessary, the suspect or defendant may be released on bail or held in residential surveillance.”
35. Article 75 is changed to Article 97, and is amended to read: “The people’s court, people’s prosecutor’s office or public security authority should, upon expiration of the statutory period for compulsory measures imposed on a suspect or a defendant, release the suspect or the defendant or rescind the bail or residential surveillance, or alter the compulsory measures. The suspect or defendant and his statutory representative, close relatives or defender are entitled to request the people’s court, people’s prosecutor’s office or security authority to rescind the compulsory measures upon expiration of such statutory period.”
36. Article 77 is changed into two articles as Articles 99 and 100, and is amended to read:
"Article 99 Where the victim suffers from property loss as a result of the defendant's crime, he is entitled to an adjoining civil proceeding during the criminal proceeding. Where the victim is dead or loses the capacity to act, the statutory representative and the close relatives are entitled to initiate the adjoining procedure.
"If it is the state or collective that suffers from loss, the people’s prosecutor’s office may initiate an adjoining civil action when initiating the public prosecution.
“Article 100 Where necessary, the people’s court may take preservation measures to seal, seize or freeze the defendant’s property. The plaintiff of the adjoining civil action or the people’s prosecutor’s office may apply to the people’s court for adoption of such measures. Provisions of the civil procedure law apply when the people’s court adopts preservation measures.”
37. A new article is inserted as Article 101: "Where the people’s court hears an adjoining civil case, it may use mediation, or make a judgment or order on the basis of property losses."
38. Article 79 is changed to Article 103, and a new paragraph is inserted as Paragraph 4: "Where the last day of a period is a public holiday, the expiration date is to be the first day after the holiday. However, where a suspect or a defendant is in detention, the expiration date should be the last day of the period and may not be postponed due to a public holiday.”
39. A new article is inserted as Article 115 to read: "A party, defender, agent ad litem or person with an interest has the right to submit a complaint or accusation to a judicial authority if he believes a judicial authority or its personnel to have committed any of the following acts:
“(1) No release, rescission or alteration is effected when the statutory period of the compulsory measure has ended;
“(2) Bail is not returned when it should be returned;
“(3) Assets irrelevant to the case are sealed, seized, or frozen;
“(4) Sealing, seizure or freezing should be rescinded but is not; or
“(5) Assets sealed, seized or frozen are embezzled, diverted for other use, divided up without authorization, swapped, or used in violation of regulations.
“The authority admitting the complaint or accusation should process it promptly. If the disposition is not satisfactory, a complaint may be submitted to a people’s prosecutor’s office at the same level; where a prosecutor’s office directly admits a case for investigation, a complaint may be submitted to a people’s prosecutor’s office at the next higher level. The people’s prosecutor’s office should review the complaint promptly; if the complaint is verified, it should notify relevant authorities to make corrections.”
40. Article 91 is changed to Article 116, and a new paragraph is inserted as Paragraph 2: "Where investigators interrogate a criminal suspect after he has been delivered into a detention facility, they should do so within the detention facility.”
41. Article 92 is changed to Article 117, and is amended to read: “Where a criminal suspect need not be arrested or held in custody, the suspect may be summonsed to a designated place within the city or county where the suspect is located, or to his domicile, for interrogation, subject to the presentation of a certificate issued by people's prosecutor's office or the public security authorities. Where a criminal suspect is identified on the spot, the suspect may be summonsed orally, upon presentation of the investigator’s ID, but this should be noted in the documentation of the interrogation.
“Summonsing or compelled appearance (juchuan) may last no longer than 12 hours; where a case is particularly serious and complicated and custody or arrest is required, summonsing or compelled appearance may last no longer than 24 hours.
“No criminal suspect should be subjected to de facto detention in the form of successive summonsing or compelled appearance. Where a criminal suspect is summonsed or compelled to appear before the investigator, he should be guaranteed food and drink and necessary time to rest.”
42. Article 93 is changed to Article 118, and a new paragraph is inserted as Paragraph 2 to read: "When interrogating a criminal suspect, an investigator should inform the suspect of the legal provisions on leniency for honest confessions of a crime.”
43. A new article is inserted as Article 121: "When the criminal suspect is being interrogated, the investigator may record the interrogation process in audio or visual forms; for crimes punishable by life imprisonment or death and other serious crimes, audio or video recording of the interrogation process is mandatory.
“The audio or video recording should cover the entire process of interrogation and should be complete.”
44. Article 96 is deleted.
45. Article 97 is changed to Article 122, and Paragraph 1 thereof is amended to read: "An investigator may question a witness on the spot, or at the workplace or domicile of the witness, or at a place suggested by the witness; where necessary, the investigator may notify a witness to provide testimony at the people’s prosecutor’s office or the public security authority. Where a witness is questioned on the spot, identification certificates should be presented; where a witness is questioned at the workplace, domicile or place suggested by the witness, a certificate of proof issued by the people’s prosecutor’s office or the public security authority should be presented.”
46. Article 98 Paragraph 2 is deleted.
47. Article 105 is changed to Article 130, and Paragraph 1 thereof is amended to read: “In order to determine certain characteristics, or the state of injury or physical condition, of a victim or a criminal suspect, physical examinations may be conducted, fingerprints taken, and blood, urine or other biological samples collected.”
48. Article 108 is changed to Article 133, and Paragraph 1 thereof is amended to read: "In order to find out the facts, investigative experiments may be conducted when necessary, subject to approval by the responsible person of the public security authority."
A new paragraph is inserted as Paragraph 2 to read: "The investigative experiments should be documented, and participants in the experiments should sign their names or attach their seals on the documentation."
49. Article 110 is changed to Article 135, and is amended to read: "Any entity or individual, at the request of the people’s prosecutor’s office or public security authority, has the obligation to surrender physical evidence, documentary evidence, and audiovisual materials, etc., that prove the guilt or innocence of a criminal suspect.”
50. The word "seizure” in Part 2 Chapter 2 Section 6, and in Article 158, is amended to read "sealing and seizure".
51. Article 114 is changed to Article 139, and is amended to read: "Assets or documents discovered during an investigation that may be used to prove the guilt or innocence of a criminal suspect should be sealed or seized; assets or documents irrelevant to a case may not be sealed or seized.
“Sealed or seized assets or documents should be preserved or closed up appropriately and may not be used, swapped or destroyed.”
52. Article 115 is changed to Article 140, and is amended to read: "Where assets or documents are to be sealed or seized, such assets or documents should be checked together with witnesses on the spot and holders of such assets or documents; a list of the assets or documents should be made in duplicate on the spot, and should be signed or sealed by the investigators, the witnesses and the holders. One copy of the list should be given to the holder, and the other copy should be kept on file for reference.”
53. Article 117 is changed to Article 142, and is amended to read: "The people’s prosecutor’s office or the public security authority, based on the needs of the investigation and in compliance with regulations, may access or freeze assets of the criminal suspect, such as deposits, remittances, bonds, stocks and shares of funds. Relevant entities and individuals should give cooperation.
“If the deposits, remittances, bonds, stocks or shares of funds of the criminal suspect have been frozen, they should not be frozen for a second time.”
54. Article 118 is changed to Article 143, and is amended to read: "If any assets, documents, mails, or telegraphs sealed or seized, or any frozen property, such as deposits, remittances, bounds, stocks and shares of funds, are proved through investigation to be irrelevant to the case, they should be freed from the seal, seizure and freeze within three days and returned.”
55. Article 120 is changed to Article 145 and amended to read: “A forensic examiner should, after giving an evaluation, write and sign a forensic examiner’s opinion.
“A forensic examiner intentionally making a false evaluation should assume legal liability.”
56. The phrase "forensic examiner’s conclusion” in Articles 121 and 157 is amended to read "forensic examiner’s opinion.”
57. A new section is inserted after Part 2 Chapter 2 Section 7 as Section 8 to read:
“第八节 技术侦查措施 "
“Section 8 Technical Investigation Measures”
"Article 148 After the public security authority has registered a case, it may, insofar as required for investigating a crime and after passing strict approval requirements, take measures of technical investigation for cases involving crimes endangering state security, crimes of terrorism, organized crimes with characters of the underworld, major drug-related crimes or other crimes that pose a serious threat to society.
“After a people’s prosecutor’s office has registered a case, where the case is a serious case involving crimes of corruption and bribery or serious crimes where the use of power seriously violates the personal rights of a citizen, the people’s prosecutor’s office may, as far as required for investigating a crime and after passing strict approval requirements, adopt technical investigation measures and have such measures carried out by relevant authorities.
“In the pursuit of a fugitive suspect or defendant that is wanted or whose arrest has been approved or decided, technical investigation measures necessary for the pursuit may be taken upon approval.
"Article 149 An approval or decision should determine, based on the need for the criminal investigation, the types of technical investigation measures to be applied and intended targets. The approval or decision is effective for three months from the date of its issue. Where technical investigation measures are no longer necessary, they should be rescinded promptly. Where the effective period in a complicated or difficult case expires but further technical investigation measures are necessary, the effective period may be extended upon approval, but each extension may not be longer than three months.
“Article 150 Where a technical investigation measure is taken, it must be executed strictly in keeping with the types of measures, intended targets and duration approved.
"Where an investigator becomes aware of a state or trade secret and the privacy of a person during the technical investigation, he should maintain confidentiality. Any information obtained through a technical investigation measure that is unrelated to the case must be destroyed promptly.
“Materials obtained through technical investigation measures may be used only for the investigation, prosecution and trial of a crime, and may not be used for other purposes.
“A relevant entity or individual should be cooperative where a public security authority undertakes technical investigation measures in accordance with the law and should maintain confidentiality about any relevant circumstances.
“Article 151 In order to find out the facts of a case, where necessary and subject to decision of the responsible officer of the public security authority, relevant personnel may implement a secret investigation. The secret investigator, however, may not entice other persons to commit a crime, or use methods that may endanger public security or pose a serious risk to personal safety.
“In the event of a criminal activity involving delivery of drugs and other contraband items or assets, the public security authority may, insofar as necessary for the criminal investigation, implement controlled delivery of such items and assets in accordance with regulations.
“Article 152 Materials obtained through investigative measures pursuant to this section may be used as evidence in criminal proceedings. Where the use of evidence obtained through secret investigations may pose a risk to the personal safety of relevant personnel or may lead to other serious consequences, measures should be taken to withhold the real identity of the relevant personnel, and, where necessary, such evidence may be verified by the adjudicators outside the court.”
58. Article 128 is changed to Article 158 and is amended to read: “Where it is found during an investigation that the criminal suspect has committed another serious crime, the investigative detention period will start anew pursuant to Article 154 of this law.
“If a criminal suspect has not disclosed his real name or address, and his identity is not clear, the identity should be investigated. The period of investigative detention will start on the date on which his identity is ascertained; but the investigation of his criminal acts may not be suspended. Where the criminal facts are clear, the evidence is verified and sufficient, and the identity cannot be ascertained after genuine efforts, the suspect may be prosecuted and tried in the name stated by the suspect himself.”
59. A new article is inserted as Article 159 to read: “Prior to closure of an investigation, where the defence attorney requests, the investigating authority should hear and document the opinion of the defence attorney. Where the defence attorney submits a written opinion, such opinion should be kept on file.”
60. Article 129 is changed to Article 160, and is amended to read: "When a public security authority has concluded its investigation of a case, the facts of a crime should be made clear and the evidence should be reliable and sufficient. The public security authority should make a recommendation on prosecution, which should be transferred, together with the filed materials and evidence, to the people’s prosecutor’s office at the same level for review and decision; meanwhile, the criminal suspect and the defence attorney should be notified of the transfer."
61. Article 133 is changed to Article 164 and is amended to read: “Where the people’s prosecutor’s office directly admits a case for investigation, it should interrogate the person within 24 hours after the person is taken into custody. Where it finds that custody should not be used, the person must be released immediately and given proof of such release.”
62. Article 134 is changed to Article 165 and amended to read: “Where the people’s prosecutor’s office is of the opinion that a person in custody in a case directly admitted by itself needs to be arrested, it should make a decision on such arrest within 14 days. The period to make a decision on arrest may, in special circumstances, be extended by one to three days. Where arrest is not necessary, release is to be granted promptly. Where further investigation is required and the conditions for bail or residential surveillance are met, the person in custody is to be granted such bail or held in such surveillance in accordance with the law.”
63. Article 139 is changed to Article 170 and amended to read: “When a people’s prosecutor’s office reviews a case, it should question the suspect of the crime and hear the opinion of the defender, the victim and his agent ad litem, and document such communications. Where the defender, or the victim or his agent ad litem submit a written opinion, such opinion should be kept on file.”
64. Article 140 is changed to Article 171, and Paragraph 1 thereof is amended to read: "In reviewing a case, the people’s prosecutor’s office may request the public security authority to provide evidentiary materials necessary for a trial; where the people’s prosecutor’s office suspects there might be circumstances under Article 54 in which evidence is collected using illegal means, it may request the public security authority to provide explanations on the legality of the evidence collection process.”
Paragraph 4 is amended to read: "Where the people’s prosecutor’s office believes the evidence is still insufficient after the case is remanded for further investigation a second time, and conditions for prosecution are not met, it should decide not to prosecute a case."
65. Article 141 is changed to Article 172 and amended to read: “Where the people’s prosecutor’s office is of the opinion that the facts for a crime have been made clear, the evidence is reliable and sufficient, and criminal prosecution should be conducted in according with the law, it should decide to proceed with a prosecution and initiate, pursuant to the provisions on courts’ jurisdiction, public prosecution before the people’s court and furnish to it the filed materials and evidence.”
66. Article 142 is changed to Article 173, and Paragraph 1 thereof is amended to read: "Where the criminal suspect is found to have committed no crime, or to be under one of the circumstances provided in Article 15 of this law, the people’s prosecutor’s office should decide not to prosecute."
Paragraph 3 is amended to read: "Where a people’s prosecutor’s office decides not to prosecute a case, it should, at the same time, rescind the sealing, seizure or freezing of the assets sealed, seized, and frozen during investigation. If the person not to be prosecuted needs to be given an administrative penalty or administrative sanction or his illegal gains need to be confiscated, the people’s prosecutor’s office should make suggestions to such an effect and transfer the case to the competent authority for disposition. The competent authority should promptly notify the people’s prosecutor’s office of the result of disposition."
67. “Article 150 is changed to Article 181 and amended to read: “After the people’s court has reviewed a case for which public prosecution has been initiated, where the indictment shows clear facts for a charged crime, it should decide to hold a trial.”
68. Article 151 is changed to Article 182 and amended to read: “After the people’s court has decided to hold a trial, it should determine the members of the judicial panel and deliver a copy of the indictment by the people’s prosecutor’s office to the defendant no later than ten days prior to the hearing.
“Prior to the hearing, the adjudicators may convene the public prosecutor, the parties and the defender, and the agent ad litem, to find out about issues related to the trial, such as recusal, witness lists and exclusion of illegally obtained evidence, and to hear their opinions.
“After the people’s court has set the court date, it should notify the people’s prosecutor’s office of the date and venue of hearing, summons the party, notify the defender, the agents ad litem, the witnesses, the forensic examiners, and the interpreters. The summons and notification should be served at least three days prior to the court date. In respect to open trial cases, the people’s court should announce a summary of the case, the name of the defendant, the court time and the venue three days prior to the hearing.
“The above activities should be documented, and the documentation signed by the adjudicators and court clerk.”
69. Article 152 is changed to Article 183 and amended to read: "Cases of first instance in a people’s court should be heard in public. However, cases involving state secrets or privacy are not to be heard in public. Where the party applies for closed hearing in a case involving trade secrets, a closed hearing may be conducted.
“The reason for not hearing a case in public should be announced in court."
70. Article 153 is changed to Article 184 and amended to read: “When a people’s court tries a public prosecution case, a people’s prosecutor’s office should send a member to be present before the court to support the prosecution.”
71. Two new articles are inserted as Articles 187 and 188:
“Article 187 Where a written testimony by a witness has material influence on the determination of conviction or a sentence and where the public prosecutor, the party or the defender, or the agent ad litem objects to such testimony, and the people’s court believes it to be necessary for a witness to appear before court to testify, the witness should do so.
“Where a member of the people’s police appears before court to give a testimony about a crime that he was an eye-witness to while on duty, the provisions of the above paragraph are to be applied.
“Where the public prosecutor, the party or the defender, or the agent ad litem objects to the opinion of a forensic examiner, and the people’s court believes it to be necessary for a forensic examiner to appear before court, the forensic examiner should appear to give testimony. Where a forensic examiner has been notified by the people’s court but has not appeared for the testimony, the opinion of such forensic examiner may not be used as a basis for a decision.
“Article 188 Where a people’s court notifies a witness to appear before court for testimony, and the witness has not appeared before court for no good reason, the people’s court may compel the witness to appear, unless the witness is a spouse, parent or child of the defendant.
“Where the witness refuses to appear before court without good reason or refuses to testify during his appearance, the witness is to be admonished; if the circumstances are grave, the witness is be committed to detention of not more than ten days upon approval by the president of the court. Where a witness committed to detention is not satisfied with the detention decision, he may appeal to the next higher people’s court for reconsideration. During the review, the detention is not to be suspended.”
72. Article 159 is changed to Article 192 and a new paragraph is inserted as Paragraph 2 to read: “The prosecutor, the defendant and the defender, and the agent ad litem may apply to the court for persons with specific expertise to appear before court to present their opinion on the opinion provided by a forensic examiner.”
A new paragraph is inserted as Paragraph 4: "Where persons with specific expertise appear before court as provided under Paragraph 2, the provisions on forensic examiners apply."
73. Article 160 is changed to Article 193 and amended to read: "During the court hearing, all facts relevant to conviction and sentencing should be examined and debated.
“Upon the presiding judge’s permission, the public prosecutor, the defendant and the defender, and the agent ad litem may state and argue about their opinions on the evidence and the circumstances of the case.
“After the presiding judge has declared the debates to be over, the defendant has the right to present a final statement.”
74. Article 163 is changed to Article 196 and Paragraph 2 is amended to read: "If the judgment on a case is pronounced in court immediately following the trial, the written judgment should be served on the party and the people’s prosecutor’s office initiating the public prosecution within five days. If the judgment is to be pronounced later on a designated date, the written judgment should be served on the party and the people’s prosecutor’s office initiating the case immediately after the pronouncement. The written judgment should be simultaneously served on the defender and the agent ad litem.”
75. Article 164 is changed to Article 197 and amended to read: "The written judgment should be signed by members of the judicial panel and by the court clerk, and clearly indicate the deadline for appeal and the name of the appellate court.”
76. Article 165 is changed to Article 198, and Paragraph 3 thereof is amended to read: "If the trial cannot proceed because recusal is applied for.”
77. A new Article is inserted as Article 200: "During a trial, a hearing may be suspended if a case cannot be heard further for a relatively long period of time due to any of the following circumstances:
“(1) The defendant falls seriously ill and are unable to attend court;
“(2) The defendant escapes;
“(3) The private prosecutor falls seriously ill and is unable to attend court, and an agent ad litem is not appointed; or
“(4) A force majeure event occurs.
“The hearing should be resumed after the reason for the suspension has lapsed. The duration of suspension is not to be included in the trial period.”
78. Article 168 is changed to Article 202 and Paragraph 1 thereof is amended to read: “When a people’s court hears a public prosecution case, it should pronounce its judgment within two months, and no later than three months, after admission of such case. In cases punishable by death and cases with adjoining civil action, and in cases falling under one of the circumstances provided in Article 156 of this law, subject to approval by the people’s court of the next higher level, the trial period may be extended by three months. Where the trial period needs to be extended further due to exceptional circumstances, application should be made to the Supreme People’s Court for approval.”
79. Article 172 is changed to Article 206, and amended to read: “The people's court may conduct mediation in a case of private prosecution; the private prosecutor may settle the case with the defendant or withdraw the case anytime before judgment is pronounced. Mediation does not apply to cases provided for under Article 204.
“Where the people’s court hears a private prosecution case, the trial period is subject to Article 202 Paragraphs 1 and 2 of this law if the defendant is in detention; and six months if the defendant is not in detention.”
80. Article 174 is changed to Article 208 and amended to read: “For cases that fall within the jurisdiction of a basic-level people’s court, a summary procedure may be applied if the following conditions are met:
“(1) The facts of a case are clear and sufficient evidence exists;
“(2) The defendant confesses to the crimes he committed and does not object to the criminal facts charged; and
“(3) The defendant agrees to the use of a summary procedure.
“When a people’s prosecutor’s office initiates public prosecution, it may suggest to the people’s court to apply a summary procedure.”
81. A new article is inserted as Article 209 to read: “No summary procedure is to be used under any of the following circumstances:
“(1) The defendant is blind, mute or deaf; or is a mentally ill person who has not completely lost his capacity to comprehend or control his behavior;
“(2) The case has a big impact on the public;
“(3) Some defendants in a jointly committed crime have not pleaded guilty or object to the use of summary procedure; or
“(4) Other reasons exist against the use of summary procedure.”
82. Article 175 is changed to Article 210 and amended to read: “In cases where a summary procedure is applied and where imprisonment of less than three years may be imposed, the trial may be conducted by a judicial panel or a single adjudicator; where imprisonment of more than three years may be imposed, a judicial panel should be formed to hear the case.
“The people’s prosecutor’s office should assign members to attend court in public prosecution cases where summary trial procedure is applied.”
83. A new article is inserted as Article 211 to read: “Where summary procedure is applied, the adjudicators should ask the defendant about his opinion on the criminal facts charged, advise the defendant of the legal provisions on the summary procedure and find out whether the defendant agrees to the use of summary procedure.”
84. Article 176 is changed to Article 212 and amended to read: “In cases where a summary procedure is applied, upon the adjudicator’s permission, the defendant and his defender may engage in arguments with the public or private prosecutor and his agent ad litem.”
85. Article 177 is changed to Article 213 and amended to read: “Cases where a summary procedure is applied are not subject to the procedural provisions in Section 1 of this chapter on service periods, interrogation of defendants, questioning of witnesses and forensic examiners, presentation of evidence and court arguments. The above notwithstanding, the final statement of the defendant should be heard prior to the pronouncement of the judgment.”
86. Article 178 is changed to Article 214 and amended to read: “In cases where a summary procedure is applied, the people’s court should conclude the case within 20 days after admitting the case; where imprisonment of more than three years may be imposed, the period may be extended up to one and a half months.”
87. Article 187 is changed to Article 223 and Paragraph 1 thereof is amended to read: “The people’s court of second instance should form a judicial panel to hold a court hearing for any of the following cases:
“(1) Appeal cases where the defendant or private prosecutor and his statutory representative object to the facts found or evidence admitted in the first instance and where the conviction or sentence might be changed by such facts and evidence;
“(2) Appeal cases where the defendant has been sentenced to death;
“(3) Cases appealed by a people’s prosecutor’s office; and
“(4) Other cases for which a court hearing should be held.
“When the people’s court of second instance decides not to hold a hearing, it should hear the opinion of the defendant and other parties, the defender and the agent ad litem.”
88. Article 188 is changed to Article 224 and amended to read: “In cases appealed by a people’s prosecutor’s office and in public prosecution cases where the people’s court of second instance holds a hearing, the people’s prosecutor’s office at the same level should assign members to attend the hearing. The people’s court of second instance should, after it has decided to hold a court hearing, promptly notify the people’s prosecutor’s office to review the case file and the people’s prosecutor’s office should finish such review within one month. The duration of review is not to be included in the trial period.”
89. Article 189 is changed to Article 225 and a new paragraph is inserted as Paragraph 2 to read: “Where the original people’s court has made a decision on a case remanded to it for a new trial (chongshen) pursuant to Subparagraph 3 of the preceding paragraph and the defendant or the people’s prosecutor’s office files an appeal, the people’s court of second instance should make a judgment or order in accordance with the law and may not remand the case to the original people’s court for further trial.”
90. Article 190 is changed to Article 226, and Paragraph 1 thereof is amended to read: "Where a people’s court of second instance hears a case appealed by the defendant or his statutory representative, defender, or close relative, the punishment of the defendant may not be increased. Where a people’s court of second instance remands a case to the original people’s court for a new trial, the original people’s court also may not increase the punishment of the defendant, except where new criminal facts are found and the people’s prosecutor’s office initiates supplementary prosecution.”
91. Article 196 is changed to Article 232 and amended to read: “Where a people’s court of second instance admits an appeal by the defendant or prosecutor, it should conclude the case within two months. In cases punishable by death and cases with adjoining civil action, and in cases falling under one of the circumstances provided in Article 156 of this law, subject to approval or decision by the high people’s court of a province, autonomous region or municipality, the period may be extended by two months. Where the period needs to be further extended due to exceptional circumstances, application should be made to the Supreme People’s Court for approval.
“Where the Supreme People’s Court admits cases appealed by the defendant or the prosecutor, the time period to conclude the case is to be decided by the Supreme People’s Court.”
92. Article 198 is changed to Article 234 and amended to read: “The public security authority, the people’s prosecutor’s office and the people’s court should appropriately keep the criminal suspect’s and the defendant’s assets sealed, seized and frozen and the fruits accruing from them for inspection, and should make a list of the assets to be transferred with the case file. No entity or individual may misappropriate the assets or dispose of them without authorization. The lawful property of the victims should be returned to them promptly. Contraband items and articles not suitable for long-term storage should be disposed of according to relevant regulations of the state.
“Physical items to be used as evidence should be transferred with the case; for items unsuitable for transfer, their inventory and photos and other documents of certification should be transferred together with the case.
“The judgment of the people's court should include parts that deal with the assets sealed, seized and frozen and fruits accruing from them.
“After a judgment rendered by the people’s court becomes effective, relevant authorities should handle the assets sealed, seized, and frozen as well as fruits arising from them in accordance with the judgment. The illicit assets sealed, seized or frozen as well as the fruits accruing from them should be turned over to the state treasury, with the exception of those to be returned to the victim.
“Any judicial officer who embezzles, misappropriates or without authorization disposes of the seized, sealed or frozen assets and the fruits accruing from them is to be prosecuted for criminal liability; if the offence does not constitute a crime, administrative sanctions are to be imposed.”
93. Two new articles are inserted as Articles 239 and 240:
“Article 239 When the Supreme People’s Court reviews a death penalty case, it should decide whether or not it approves the death sentence. Where it disapproves, it may remand the case for a new trial or change the sentence.
“Article 240 When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defence attorney requests, it should hear the opinion of the defence attorney.
“During the review of death cases, the Supreme People’s Prosecutor’s Office may advise the Supreme People’s Court of its opinion. The Supreme People’s Court should report the result of the review to the Supreme People’s Prosecutor’s Office.”
94. Article 204 is changed to Article 242 and amended to read: "If the complaint presented by a party and his statutory representative or close relatives falls into to any of the following circumstances, the people’s court should retry the case:
“(1) There is new evidence to prove that the facts found in the original judgment or order are wrong, to the extent that the conviction and sentencing might be affected;
“(2) The evidence used to convict and sentence the defendant was not reliable or sufficient and should be have been excluded according to law; or the major pieces of evidence supporting the facts of the case contradict each other;
“(3) The application of law in making the original judgment or order was incorrect;
“(4) There was a violation of legal procedure that might have affected the fairness of the trial;
“(5) The adjudicators in trying the case committed acts of embezzlement, bribery, malpractices for personal gain, or bent the law in making judgment.”
95. A new article is inserted as Article 244 to read: "Where a higher people’s court directs a lower people’s court to retry (zaishen) a case, the higher people’s court should direct a court other than the original people’s court; where it is more appropriate for the original people’s court to retry the case, the higher people’s court may also direct this court to do so.”
96. Article 206 is changed to Article 245 and amended to read: “Where a court tries a case de novo in accordance with the trial supervision procedure, if the original court holds the trial, a new judicial panel should be formed for this purpose. If the case was originally one of first instance, the trial should be held in accordance with the procedure for first instance cases, and the judgment or order may be appealed by both the defendant and the prosecutor; if the case was originally one of second instance, or a case brought up for trial (tishen) by a people’s court at a higher level, the procedure for second instance cases should be followed, and the judgment or order rendered are final.
“Where the people’s court retries a case, the people’s prosecutor’s office at the same level should assign a prosecutor to attend the court.”
97. A new article is inserted as Article 246: “Where the people’s court decides to retry a case, the people’s court is to decide, according to law, whether the defendant is to be subject to compulsory measures; where the people’s prosecutor’s office initiates the retrial through appeal, the people’s prosecutor’s office is to decide, according to law, whether the defendant is to be subject to compulsory measures.
“Where the people’s court hears a case under the trial supervision procedure, it may decide to suspend the execution of the original judgment or order.”
98. Article 213 is changed to Article 253 and Paragraph 1 is amended to read: “When an offender is committed for enforcement of his punishment, the people’s court that commits the offender for enforcement should serve all relevant legal documents on the public security authority, prison or other enforcement authorities within 10 days upon the effectiveness of the judgment.”
Paragraph 2 is amended to read: “Offenders sentenced to death with a two-year reprieve, life imprisonment or fixed-term imprisonment should be committed to prison by the public security authority to enforce the punishment. For offenders sentenced to fixed-term imprisonment in respect of which the remaining term prior to commitment is less than three months, the sentence should be enforced by a detention facility instead. For offenders sentenced to criminal detention (juyi) , the sentence should be enforced by a public security authority.”
99. Article 214 is changed to Article 254 and amended to read: “A sentence may be temporarily enforced outside prison for any offender sentenced to fixed-term imprisonment or criminal detention who is:
“(1) seriously ill and needs to be released on bail for medical treatment;
“(2) a pregnant woman or a woman currently breastfeeding her own infant; or
“(3) unable to take care of himself and where temporary enforcement outside prison does not pose a risk to the public.
“In respect of offenders sentenced to life imprisonment, the sentence may be temporarily enforced outside prison where circumstances under Subparagraph 2 of the preceding paragraph exist.
“Where an offender to be released on bail for medical treatment may pose a risk to the public or harm or mutilate himself, the offender should not be granted bail for medical treatment.
“Where an offender is seriously ill and must be released on bail for medical treatment, a hospital designated by the provincial people’s government should provide a diagnosis and issue documents of proof.
“Any temporary enforcement of a sentence outside prison prior to commitment of the offender is to be decided by the people’s court committing the offender for the enforcement of punishment. Any temporary enforcement of a sentence outside prison after the offender is committed to prison requires, upon suggestion by the prison or detention facility, approval of the authority for prison administration at the provincial level or above, or the public security authority of a municipality divided into precincts or above.”
100. A new article is inserted as Article 255: “Where a prison or detention facility provides a written suggestion on temporary enforcement of a sentence outside prison, it should serve a copy of such suggestion on the people’s prosecutor’s office. The people’s prosecutor’s office may furnish a written suggestion to the deciding or approving authority.”
101. Article 215 is changed to Article 256 and amended to read: “The authority deciding or approving temporary enforcement of a sentence outside prison should send a copy of such decision to the people’s prosecutor’s office. Where the people’s prosecutor’s office considers the decision inappropriate, it should, within one month upon receiving the notice, submit its opinions in writing to the authority that has decided or approved temporary enforcement of sentence outside prison. The deciding or approving authority, upon receiving the written opinions, should immediately reconsider such decision.”
102. Article 216 is changed to Article 257 and amended to read: “Offenders whose sentence is temporarily enforced outside prison should promptly be taken back to prison in any of the following circumstances:
“(1) It is discovered that the conditions for temporary enforcement of punishment outside prison are not met;
“(2) The provisions on the supervision and administration of temporary enforcement of punishment outside prison are violated materially; or
“(3) The reason for temporary enforcement of punishment outside prison has lapsed and the term of punishment has not expired.
“Where offenders that are granted by a people’s court temporary enforcement of punishment outside prison should be taken back to prison, the decision on such committal should be made by the people’s court. The court should serve any relevant legal documents on the public security authority, prison or other enforcement authorities.
“Where offenders do not meet the conditions of temporary enforcement outside prison and are granted such enforcement by means of bribery and other illegal means, the duration of enforcement outside prison will not be included in the term of punishment. Where an offender escapes during temporary enforcement outside prison, the duration of escape will not be included in the term of punishment.
“Where an offender dies during temporary enforcement outside prison, the enforcement authority should notify the prison or detention facility promptly.”
103. Article 217 is changed to Article 258 and amended to read: “Where an offender in respect of whom surveillance is imposed, or suspended sentence, parole or temporary enforcement outside prison has been pronounced, the offender is to be subject to community correction; a community correction authority is to be responsible for enforcing such sentence.”
104. Article 218 is changed to Article 259 and amended to read: “Where an offender has been sentenced to be deprived of his political rights, the sentence will be enforced by a public security authority. Upon expiration of the sentence, the enforcing authority should notify the convict in person, as well as his workplace and the basic-level organizations of his place of residence.”
105. Article 221 is changed to Article 262 and Paragraph 2 thereof is amended to read: “Where an offender sentenced to surveillance, criminal detention, fixed-term imprisonment or life imprisonment shows genuine remorse or exhibits good behavior during the enforcement period, and where the sentence should be commuted or parole awarded according to law, the enforcing authority should submit a written suggestion to the people’s court for decision and serve a copy of the suggestion on the people’s prosecutor’s office. The people’s prosecutor’s office may furnish a written opinion to the people’s court.”
106. A new part is inserted as Part 5 to read: “Special Procedures”.
107.A new chapter is inserted as Chapter 1 of Part 5:
“Chapter 1 Procedures for Cases of Juvenile Crime
“Article 266 Juveniles committing a crime are to be educated, reformed and rehabilitated on the basis of ‘applying primarily educational measures and regarding punitive sanctions as ancillary means’.
“In handling juvenile crime cases, the people’s courts, the people’s prosecutor’s offices and the public security authorities should ensure that the juvenile exercises his procedural rights and receives legal support, and that such cases are handled by adjudicators, prosecutors and investigators that understand the physical and psychological characteristics of juveniles.
“Article 267 Where a juvenile suspect or defendant has not appointed a defender, the people’s court, the people’s prosecutor’s office and the public security authority should notify a legal aid organization to assign an attorney to defend the suspect or defendant.
“Article 268 When the public security authority, the people’s prosecutor’s office and the people's court handle juvenile criminal cases, they may, as appropriate, investigate the juvenile suspect or defendant with respect to, inter alia, their life experience, the reasons for criminal offences, and their guardianship and educational background.
“Article 269 Measures of arrest imposed on a juvenile suspect or defendant should be taken in a strictly restrictive manner. When a people’s prosecutor’s office reviews and approves the arrest application and a people’s court decides on an arrest, they should question the juvenile suspect or defendant and hear the defence attorney’s opinion.
“Juveniles that have been held in custody, arrested or are serving their punishment should be detained, administered and educated separately from adults.
“Article 270 In cases of juvenile crime, the statutory representative of the suspect or defendant should be notified to be present during the interrogation and trial. Where a notice cannot be served, the statutory representative is unable to attend or the statutory representative is a co-offender, other close adult relatives of the suspect or the defendant, the representative of his school, of his place of work, or of the basic-level organizations at his place of residence, or of a juvenile protection organization, may be notified to be present, and such circumstances should be documented. The statutory representative present may exercise the procedural rights on behalf of the suspect or defendant.
“Where the statutory representative or another person present believes that the legitimate rights and interests of the juvenile have been infringed during the interrogation or trial, he may express his opinion thereon. The interrogation or court records should be given on the spot to the statutory representative or other persons present to read or should be read out to them.
“Where female juvenile suspects of a crime are interrogated, a female officer should be present.
“In the trial of a juvenile crime, after the juvenile defendant makes the final statement, the statutory representative may add a statement.
“Where a juvenile victim or witness is questioned, the provisions in Paragraphs 1, 2 and 2 apply.
“Article 271 The people’s prosecutor’s office may grant conditional non-prosecution to juveniles if they are suspected of any of the crimes set forth in Chapters 4, 5 and 6 of the Special Provisions of the Criminal Law, punishable by imprisonment of less than one year and eligible for prosecution, but show remorse. The people’s prosecutor’s office should, prior to granting conditional non-prosecution, hear the opinion of the public security authority and the victim.
“Where a decision is made to grant conditional non-prosecution, if the public security authority requests reconsideration or applies for review of such decision; or if the victim complains about the decision, the provisions of Articles 175 and 176 of this law apply.
“Where the juvenile suspect and his statutory representative object to the decision by a people’s prosecutor’s office to grant conditional non-prosecution, the people’s prosecutor’s office should decide to prosecute.
“Article 272 During the probation period for conditional non-prosecution, a people’s prosecutor’s office should oversee and observe the suspect conditionally exempt from prosecution. The guardian of the suspect should strictly discipline the suspect and assist the people’s prosecutor’s office in it’s oversight and observation.
“The probation period for conditional non-prosecution is six to twelve months and commences on the day of the decision by a people’s prosecutor’s office to grant conditional non-prosecution.
“Juvenile criminal suspects that are conditionally exempt from prosecution should:
“(1) comply with the law and regulations, and obey the supervision;
“(2) report their activities in accordance with the regulations of the probation authority;
“(3) apply for approval of the probation authority when they wish to leave their residential city or county or move; and
“(4) receive correction or education as required by the probation authority.
“Article 273 A people’s prosecutor’s office should rescind its decision to conditionally exempt a criminal suspect from prosecution and initiate public prosecution if the suspect is, during the probation period, found to:
“(1) have committed a new crime or have committed another prosecutable crime prior to being granted conditional non-prosecution; or
“(2) have broken administrative provisions on public order or the provisions by the observing authority on the supervision and management of suspects conditionally exempt from prosecution, and the circumstances are grave.
“Where none of the circumstances above applies to the suspect conditionally exempt from prosecution during the probation period, the people’s prosecutor’s office should, upon expiration of the probation period, decide not to prosecute.
“Article 274 No public hearing is to be held in cases where the defendant is under the age of 18 at the time of the trial. If, however, the juvenile defendant and his statutory representative agree, the defendant’s school or a child protection organization may send a representative to attend the trial.
“Article 275 Where an offender was under the age of 18 at the time of a crime and is sentenced to imprisonment of less than five years, relevant records of the crime should be sealed.
“Where the records of a crime are sealed, they may not be disclosed to any organization or individual, save where they are required by a judicial authority for handling a case or by a relevant organization that is conducting an inquiry in accordance with the regulations of the state. Organizations conducting a lawful inquiry should maintain confidentiality of the information in the records sealed.
“Article 276 Cases involving juvenile crimes should, unless provided for in this chapter, be handled in accordance with the other provisions set forth in this law.”
108. A new chapter is inserted as Chapter 2 of Part 5 to read:
“Chapter 2 Procedures for Reconciliation between Parties in Public Prosecution Cases
“Article 277 Where the suspect or defendant sincerely expresses his remorse and obtains the forgiveness of the victim by means of compensation or apology to the victim, and the victim voluntarily agrees to reconcile, the two parties may reconcile in any of the following public prosecution cases:
“(1) cases of a crime caused by a civil dispute and falling under Chapters 4 and 5 of the Special Provisions of the Criminal Law, and for which imprisonment of less than three years may be passed; and
“(2) cases of a crime of negligence for which imprisonment of less than seven years may be passed, except for crimes of breach of official duty.
“Where the suspect or defendant has committed an intentional crime within the past five years, the procedures provided in this chapter do not apply.
“Article 278 Where both parties agree to reconcile, the public security authority, the people’s prosecutor’s office and the people’s court should hear the opinions of the parties and other relevant persons, review the voluntariness and legality of reconciliation, and direct the formulation of a reconciliation agreement.
“Article 279 In cases for which a reconciliation agreement is reached, the public security authority may suggest to the people’s prosecutor’s office to treat the defendant with leniency. The people’s prosecutor’s office may suggest to the people’s court to pass a lenient punishment; for minor offences that do not require a punishment, the people’s prosecutor’s office may decide not to prosecute. The people’s court may treat the defendant with leniency in accordance with the law.”
109. A new chapter is inserted as Part 5 of Chapter 3 to read:
“Chapter 3 Procedures for the Confiscation of Illegal Earnings in Cases Where the Suspect or Defendant Has Absconded or Died
“Article 280 In cases of crimes of corruption and bribery, terrorism and other serious crimes, where the suspect or defendant has absconded and fails to appear before court one year after an arrest warrant has been issued, or where the suspect or defendant is dead, and the illegal earnings or other assets of the suspect or the defendant related to the case should be recovered pursuant to the provisions of the criminal law, the people’s prosecutor’s office may apply to a people’s court for confiscation of such illegal earnings.
“Where the public security authority believes the circumstances provided for in the previous paragraph exist, it should make a written suggestion for confiscation and submit that to the people’s prosecutor’s office.
“The suggestion for confiscation of illegal earnings should provide evidentiary materials related to the criminal facts and illegal earnings, and show the type, quantity, and location of the assets and their state of seizure, sealing or freezing.
“When necessary, the people’s court may seize, seal or freeze the assets for which confiscation has been applied for.
“Article 281 An application for confiscation of illegal earnings should be heard by a judicial panel formed by the intermediate people’s court of the place where the crime was committed or where the residence of the suspect or defendant is located.
“The people’s court should, after admitting an application for confiscation of illegal earnings, issue a public notice. The duration of the public notice is six months. The close relatives of the suspect or defendant and other interested parties may apply to participate in the proceedings or appoint an agent ad litem to participate in the proceedings.
“The people’s court should, after expiration of the public notice, conduct a hearing on the application for confiscation of illegal earnings. If the interested parties participate in the proceedings, the people’s court should hold a hearing.
“Article 282 A people’s court should, after a hearing, order the confiscation of assets found to be illegal earnings or to be other assets associated with the case, save the portion that should be returned to the victim in accordance with the law; if assets are found not to be illegal earnings, the application should be rejected and measures of seizure, sealing or freezing rescinded.
“The close relatives of the criminal suspect or the defendant, other interested parties, and the people’s prosecutor’s office may submit an appeal against orders made by the people’s court pursuant to the preceding paragraph.
“Article 283 During a court hearing, where an absconded suspect or defendant surrenders voluntarily or is captured, the people’s court should terminate the hearing.
“Where assets of the suspect or defendant are wrongly confiscated, the assets should be returned and compensations made.”
110. A new chapter is inserted as Chapter 4 of Part 5:
“Chapter 4 Compulsory Medical Procedures for Mentally Ill Persons Excluded from Criminal Liability according to Law
“Article 284 Where a mentally ill person carries out violent acts that endanger public security or seriously endanger the personal safety of citizens, and such person has been determined through legal procedures to be excluded from criminal liability under the law, if he may pose a further risk to the public, he may be subject to compulsory medical treatment.
“Article 285 Where a mentally ill person is to be subject to compulsory medical treatment according to this chapter, such decision should be made by the people’s court.
“If the Public Security authority discovers that a mentally ill person meets conditions for compulsory medical treatment, it should make a suggestion for such treatment and submit it to the people’s prosecutor’s office. Where the people’s prosecutor’s office considers that the mentally ill person suggested by the public security authority or identified during its own review process meets conditions for compulsory medical treatment, it should apply to the people’s court for an order for such treatment. Where the people’s court finds during the hearing of a case that the defendant meets the conditions for compulsory medical treatment, it may decide to impose such treatment.
“Where a mentally ill person has committed an act of violence, prior to a decision on compulsory medical treatment by a people’s court, the public security authority may impose temporary restrictive measures for protection.
“Article 286 When the people’s court admits an application for compulsory medical treatment, it should form a judicial panel for the hearing.
“When a people’s court hears a case on compulsory medical treatment, it should notify the statutory representative of the person subject to the application or the defendant to appear before court. If the person subject to the application or the defendant has not appointed an agent ad litem, the people’s court should notify the legal aid agency to assign an attorney for legal assistance.
“Article 287 Where the people’s court finds after hearing that the person subject to application or the defendant meets conditions for compulsory medical treatment, it should make a decision for such treatment within one month.
“Where the person subject to compulsory medical treatment, the victim or his statutory representative, or his close relatives are not satisfied with the decision for compulsory medical treatment, they may apply for reconsideration to the people’s court at the next higher level.
“Article 288 A facility for compulsory medical treatment should regularly diagnose and evaluate the condition of a person under such treatment. Where risks to personal safety no longer exist and compulsory medical treatment no longer needs to be imposed, the facility should promptly recommend the person’s discharge and report to the people’s court imposing compulsory medical treatment to approve the discharge.
“A person receiving compulsory medical treatment and his close relatives have the right to apply for rescission of such treatment.
“Article 289 The people’s prosecutor’s office is to oversee the decision on and the enforcement of compulsory medical treatment.”
111. The numbering of articles cited in Articles 99, 126, 127, 132, 146, 166, 171, 192 and 193 are to be adjusted based on this decision.
The numbering of the chapters, sections and articles in the Criminal Procedure Law are to be adjusted accordingly based on this decision.
This decision is to take effect on January 1, 2013
The Criminal Procedure Law of the People's Republic Of China is to be amended in accordance with this decision and re-promulgated.
I have not used the word “shall” due to its abuse in English. I have translated the weaker form of obligation yingdang (should/ought to), into “should” and the stronger form of obligation bixu into “must”. In particular, I have not, as far as possible, added either should or must when the source text uses a simple statement (i.e., without using yingdang or bixu) to impose an obligation.
The concept of “arrest” (daibu) should be understood in the Chinese legal context. A person may be arrested many days after he was taken into custody.
Under Chinese law, appeal by the prosecution is called “protest” (kangsu). In China, the prosecutor has the right to oversee if other departments (including the police and the court) have complied with the law. “Appeal” (shangsu) implies pleading a higher authority to do something. Since the prosecutor’s office is legally higher than the court, it should not appeal to the court; but protest against the court’s decision. Nevertheless, I have translated both shangsu and kangsu into appeal for easy understanding.
Under Chinese criminal procedure law, the questioning of a suspect/defendant is called xunwen (讯问interrogation), and the questioning of other people (including the witness) is called xunwen (询问, questioning) (same pronunciation, different characters and tones). I have tried to follow the Chinese usage as closely as possible. But when the court or prosecutors office seeks more information from the accused to help them, using interrogation is obviously inappropriate. In such places, I have used questioning or other forms of expression.
I have not used the conventional procuratorate and procurator to translate jianchayuan and jianchaguan; instead I have used the more accessible terms prosecutor’s office and prosecutors.
I have used the term adjoining civil action to translate fudai minshi susong, which is often translated into incidental civil action.
Compulsory measures means measures restricting a person’s liberty.
The word trial is used for all instances of court hearing as they all involve determination of facts, and the Chinese term is the same shenli.
A retrial (new trial, trial de novo) may happen either before or after the judgment becomes “final”. In the former case, it is called chongshen (“repeat trial”), where by a superior remands a case to a lower court for a new hearing. In the latter case, it is called zaishen (“once-more trial”), and is initiated through the “trial supervision procedure”; very few cases are accepted for zaishen.
Tishen is similar to an action of certiorari.
The word ‘parties’ (used in new section 182) is defined in article 106(2) of the Criminal Procedure Law, as follows: "Parties" means victims, private prosecutors, criminal suspects, defendants and the plaintiffs and defendants in adjoining civil actions.
Translated by Li Changshuan, March 21, 2012.