Criminal Procedure Law of the People's Republic of China (Amended in 2012)
Criminal Procedure Law of the People's Republic of China (Amended in 2012)
Criminal Procedure Law of the People's Republic of China (Amended in 2012)
Order of the President of the People's Republic of China No. 55
March 14, 2012
(Adopted at the 2nd Session of the 5th National People's Congress on July 1, 1979, amended for the first time by the Decision on the Revision of the Criminal Procedure Law of the People's Republic of China passed at the 4th session of the 8th National People's Congress on March 17, 1996, and amended for the second time by the Decision on the Revision of the Criminal Procedure Law of the People's Republic of China passed at the 5th session of the 11th National People's Congress on March 14, 2012)
Table of Contents
Part One General Provisions
Chapter I Aim and Basic Principles
Chapter II Jurisdiction
Chapter III Withdrawal
Chapter IV Defense and Representation
Chapter V Evidence
Chapter VI Compulsory Measures
Chapter VII Incidental Civil Actions
Chapter VIII Time Periods and Service
Chapter IX Other Provisions
Part Two Filing a Case, Investigation, and Initiation of Public Prosecution
Chapter I Filing a Case
Chapter II Investigation
Section 1 General Provisions
Section 2 Interrogation of the Criminal Suspect
Section 3 Questioning of the Witnesses
Section 4 Inquest and Examination
Section 5 Search
Section 6 Seizure of Material Evidence and Documentary Evidence
Section 7 Expert Evaluation
Section 8 Technical Investigation Measures
Secison 9 Wanted Orders
Section 10 Conclusion of Investigation
Section 11 Investigation of Cases Directly Accepted by the People's Procuratorates
Chapter III Initiation of Public Prosecution
Part Three Trial
Chapter I Trial Organizations
Chapter II Procedure of First Instance
Section 1 Cases of Public Prosecution
Section 2 Cases of Private Prosecution
Section 3 Summary Procedure
Chapter III Procedure of Second Instance
Chapter IV Procedure for Review of Death Sentences
Chapter V Procedure for Trial Supervision
Part Four Execution
Part Five Special Procedures
Chapter I Litigation Procedures for Criminal Cases Involving Minors
Chapter II The Litigation Procedure of Public Prosecution in Which Parties Reach a Settlement
Chapter III The Confiscation Procedure for Illegal Proceeds in a Case in Which the Criminal Suspect or Defendant Goes Into Hiding or Dies
Chapter IV Compulsory Medical Treatment Procedure for a Mental Patient Bearing No Criminal Responsibility in Accordance with Law
Supplementary Provisions
Part One General Provisions
Chapter I Aim and Basic Principles
Article 1 This Law is enacted in accordance with the Constitution and for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding State and public security and maintaining socialist public order.
Article 2 The aim of the Criminal Procedure Law of the People's Republic of China is: to ensure accurate and timely ascertainment of facts about crimes, correct application of law, punishment of criminals and protection of the innocent against being prosecuted for criminal responsibility; to enhance the citizens' awareness of the need to abide by law and to fight vigorously against criminal acts; and to safeguard the socialist legal system, to protect the personal rights, property rights, democratic rights and other rights of citizens; and to guarantee smooth progress of the cause of socialist development.
Article 3 The public security organs shall be responsible for investigation, detention, execution of arrests and preliminary inquiry in criminal cases. The People's Procuratorates shall be responsible for procuratorial work, authorizing approval of arrests, conducting investigation and initiating public prosecution of cases directly accepted by the procuratorial organs. The People's Courts shall be responsible for adjudication. Except as otherwise provided by law, no other organs, organizations or individuals shall have the authority to exercise such powers.
In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs must strictly observe this Law and any relevant stipulations of other laws.
Article 4 State security organs shall, in accordance with law, handle cases of crimes that endanger State security, performing the same functions and powers as the public security organs.
Article 5 The People's Courts shall exercise judicial power independently in accordance with law and the People's Procuratorates shall exercise procuratorial power independently in accordance with law, and they shall be free from interference by any administrative organ, public organization or individual.
Article 6 In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs must rely on the masses, base themselves on facts and take law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before law.
Article 7 In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of law.
Article 8 The People's Procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings.
Article 9 Citizens of all nationalities shall have the right to use their native spoken and written languages in court proceedings. The People's Courts, the People's Procuratorates and the public security organs shall provide translations for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality.
Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, court hearings shall be conducted in the spoken language commonly used in the locality, and judgments, notices and other documents shall be issued in the written language commonly used in the locality.
Article 10 In trying cases, the People's Courts shall apply the system whereby the second instance is final.
Article 11 Cases in the People's Courts shall be heard in public, unless otherwise provided by this Law. A defendant shall have the right to defence, and the People's Courts shall have the duty to guarantee his defence.
(Relevant articles: Articles 1)
Article 12 No person shall be found guilty without being judged as such by a People's Court according to law.
Article 13 In trying cases, the People's Courts shall apply the system of people's assessors taking part in trials in accordance with this Law.
Article 14 People's courts, people's procuratorates and public security organs shall safeguard the right of defense and other litigation rights to which criminal suspects, defendants and other participants in litigation proceedings are entitled.
In cases where a minor under the age of 18 commits a crime, the criminal suspect and the legal representative of the defendant may be notified to be present at the time of interrogation and trial.
Participants in proceedings shall have the right to file charges against judges, procurators and investigators whose acts infringe on their citizen's procedural rights or subject their persons to indignities.
Article 15 In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or the handling shall be terminated, or innocence shall be declared:
1. if an act is obviously minor, causing no serious harm, and is therefore not deemed a crime;
2. if the limitation period for criminal prosecution has expired;
3. if an exemption of criminal punishment has been granted in a special amnesty decree;
4. if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;
5. if the criminal suspect or defendant is deceased; or
6. if other laws provide an exemption from investigation of criminal responsibility.
(Relevant articles: Legislation 3)
Article 16 Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.
If foreigners with diplomatic privileges and immunities commit crimes for which criminal responsibility should be investigated, those cases shall be resolved through diplomatic channels.
Article 17 In accordance with the international treaties which the People's Republic of China has concluded or acceded to or on the principle of reciprocity, the judicial organs of China and that of other countries may request judicial assistance from each other in criminal affairs.
Chapter II Jurisdiction
Article 18 Investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by law.
Crimes of embezzlement and bribery, crimes of dereliction of duty committed by State functionaries, and crimes involving violations of a citizen's personal rights such as illegal detention, extortion of confessions by torture, retaliation, frame-up and illegal search and crimes involving infringement of a citizen's democratic rights -- committed by State functionaries by taking advantage of their functions and powers -- shall be placed on file for investigation by the People's Procuratorates. If cases involving other grave crimes committed by State functionaries by taking advantage of their functions and powers need be handled directly by the People's Procuratorates, they may be placed on file for investigation by the People's Procuratorates upon decision by the People's Procuratorates at or above the provincial level.
Cases of private prosecution shall be handled directly by the People's Courts.
(Relevant articles: Articles 1)
Article 19 Primary people's courts shall have jurisdiction as courts of first instance over ordinary criminal cases; however, those cases which fall under the jurisdiction of the People's Courts at higher levels as stipulated by this Law shall be exceptions.
(Relevant articles: Articles 1)
Article 20 Intermediate people's courts shall have jurisdiction as courts of first instance over the following criminal cases:
1. Cases endangering State security or involving terrorist activities; and
2. Cases of crimes punishable by life imprisonment or the death penalty.
Article 21 The Higher People's Courts shall have jurisdiction as courts of first instance over major criminal cases that pertain to an entire province (or autonomous region, or municipality directly under the Central Government).
Article 22 The Supreme People's Court shall have jurisdiction as the court of first instance over major criminal cases that pertain to the whole nation.
Article 23 When necessary, People's Courts at higher levels may try criminal cases over which People's Courts at lower levels have jurisdiction as courts of first instance; If a People's Court at a lower level considers the circumstances of a criminal case in the first instance to be major or complex and to necessitate a trial by a People's Court at a higher level, it may request that the case be transferred to the People's Court at the next higher level for trial.
(Relevant articles: Articles 1)
Article 24 A criminal case shall be under the jurisdiction of the People's Court in the place where the crime was committed. If it is more appropriate for the case to be tried by the People's Court in the place where the defendant resides, then that court may have jurisdiction over the case.
(Relevant articles: Legislation 1)
Article 25 When two or more People's Courts at the same level have jurisdiction over a case, it shall be tried by the People's Court that first accepted it. When necessary the case may be transferred for trial to the People's Court in the principal place where the crime was committed.
Article 26 A People's Court at a higher level may instruct a People's Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People's Court at a lower level to transfer the case to another People's Court for trial.
(Relevant articles: Articles 1 Legislation 1)
Article 27 The jurisdiction over cases in special People's Courts shall be stipulated separately.
Chapter III Withdrawal
Article 28 In any of the following situations, a member of the judicial, procuratorial or investigatory personnel shall voluntarily withdraw, and the parties to the case and their legal representatives shall have the right to demand his withdrawal:
1. if he is a party or a near relative of a party to the case;
2. if he or a near relative of his has an interest in the case;
3. if he has served as a witness, expert witness, defender or agent ad litem in the current case ; or
4. if he has any other relations with a party to the case that could affect the impartial handling of the case.
(Relevant articles: Legislation 1)
Article 29 Judges, procurators or investigators shall not accept invitations to dinner or presents from the parties to a case or the persons entrusted by the parties and shall not in violation of regulations meet with the parties to a case or the persons entrusted by the parties.
Any judge, procurator or investigator who violates the provisions in the preceding paragraph shall be investigated for legal responsibility. The parties to the case and their legal representatives shall have the right to request him to withdraw.
(Relevant articles: Legislation 2)
Article 30 The withdrawal of a judge, procurator and investigator shall be determined respectively by the president of the court, the chief procurator, and the head of a public security organ; the withdrawal of the president of the court shall be determined by the court's judicial committee; and the withdrawal of the chief procurator or the head of a public security organ shall be determined by the procuratorial committee of the People's Procuratorate at the corresponding level.
An investigator may not suspend investigation of a case before a decision is made on his withdrawal.
If a decision has been made to reject his application for withdrawal, the party or his legal representative may apply for reconsideration once.
Article 31 Provisions on withdrawal set forth in this Chapter shall also apply to court clerks, interpreters and expert witnesses.
The defender or the agent ad litem of a case may request for withdrawal or apply for reconsideration pursuant to provisions of this Chapter.
Chapter IV Defence and Representation
Article 32 In addition to exercising the right to defend himself, a criminal suspect or a defendant may entrust one or two persons as his defenders. The following persons may be entrusted as defenders:
1. lawyers;
2. persons recommended by a public organization or the unit to which the criminal suspect or the defendant belongs; and
3. guardians or relatives and friends of the criminal suspect or the defendant.
Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as defenders.
(Relevant articles: Legislation 1)
Article 33 A criminal suspect shall be entitled to entrust a defender after he/she is interrogated for the first time by an investigating organ or as of the date on which compulsive measures are taken, provided that during investigation, the criminal suspect may only entrust a lawyer as his defender. Defendants of cases shall be entitled to entrust defenders at any time.
An investigating organ shall, during the first interrogation of a criminal suspect or the imposition of compulsory measures thereon, inform the criminal suspect of his right to entrust a defender. A people's procuratorate shall, within three days upon the receipt of the materials of a case transferred for examination before prosecution, inform the criminal suspect of his right to entrust a defender. A people's court shall, within three days upon the acceptance of a case, inform the defendant of his right to entrust a defender. Where a criminal suspect or defendant requests for the entrustment of a defender during his detention, the people's court, the people's procuratorate and the public security organ concerned shall communicate the request in a timely manner.
A criminal suspect or defendant under detention may have his guardian or close relative to entrust a defender on his behalf.
A defender, after accepting the entrustment by a criminal suspect or defendant, shall inform the case handling organ of the entrustment in a timely manner
Article 34 A criminal suspect or defendant who has not entrusted a defender due to financial difficulties or other reasons, the criminal suspect or defendant himself/herself or his/her close relatives may file an application with a legal aid agency which may designate a lawyer as his/her defender where the application satisfies the conditions for legal aid services.
With respect to a criminal suspect or defendant who is vision, hearing or speech impaired, or who is a mentally challenged person but has not lost entirely the ability of recognition or the ability to control his/her conducts, if such person has not entrusted anyone to be his/her defender, the people's court, the people's procuratorate and the public security organ concerned shall inform a legal aid agency to designate a lawyer as his/her defender.
Where a criminal suspect or defendant committing a crime punishable by life imprisonment or capital punishment has not entrusted a defender, the people's court, the people's procuratorate and the public security organ concerned shall inform a legal aid agency to designate a lawyer as his/her defender.
(Relevant articles: Legislation 3)
Article 35 The responsibilities of a defender shall be to present, in accordance with facts and the law, materials and opinions proving that the criminal suspect or defendant is innocent or the crime involved is a petty offense, or the criminal suspect or defendant is eligible need for a mitigated punishment or exemption from the criminal liability, so as to safeguard the litigation rights and other legitimate rights and interests of the criminal suspect or defendant.
Article 36 During the investigation period, a defense lawyer may provide a criminal suspect with legal aid, file petitions and complaints on the suspect's behalf, apply for alteration of the compulsory measures, find out from the investigating organ the offense of which the criminal suspect is convicted and the information pertaining to the case, and offer his/her opinions.
(Relevant articles: Legislation 1)
Article 37 Defense lawyers may have meeting and correspondence with criminal suspects or defendants who are under detention. Other defenders, subject to the permission of people's courts and people's procuratorates, may also meet and correspond with criminal suspects or defendants who are under detention.
Where a defense lawyer requests for a meeting with a criminal suspect or defendant under detention on the strength of the lawyer's practicing certificate, and the certification documents and letter of authorization issued by his/her law firm, or an official legal aid document, the detention house concerned shall arrange the meeting in a timely manner, no later than 48 hours after receiving the request.
During the investigation period for crimes endangering State security, involving terrorist activities or involving significant amount of bribes, defense lawyers shall obtain the approval of investigating organs before they meet with the criminal suspects. The investigating organs shall inform the detention houses of information relating to the aforesaid cases in advance.
A defense lawyer shall be entitled to inquire about the case and provide legal advice during the meeting with a criminal suspect or defendant under detention and may, from the date on which the case is transferred for examination before prosecution, verify relevant evidence with the criminal suspect or defendant. The meeting between the defense lawyer and the criminal suspect or defendant shall not be monitored.
With respect to circumstances where defense lawyers meet and correspond with criminal suspects or defendants who are under residential surveillance, provisions of Paragraphs 1, 3 and 4 of this Article shall apply.
(Relevant articles: Legislation 1)
Article 38 A defense lawyer may, from the date on which the relevant people's procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials. Other defenders, with permission of the people's procuratorate or people's court, may also consult, excerpt and reproduce the above-mentioned materials.
Article 39 Where a defender is of the opinion that the relevant public security organ or people's procuratorate fails to submit certain evidence gathered during the investigation period or period for examination before prosecution while such evidence can prove that the criminal suspect or defendant is innocent or the crime involved is a petty offense, the defender shall be entitled to apply with the people's procuratorate or the people's court concerned to obtain such evidence.
(Relevant articles: Legislation 2)
Article 40 Where a defender has gathered evidence showing that the criminal suspect concerned was not at the scene of the crime, has not reached the age for assuming the criminal liability, or is a mentally challenged person who is not required by law to assume the criminal liability, the defender shall inform the relevant public organ and people's procuratorate of such evidence in a timely manner.
Article 41 Defence lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the People's Procuratorate or the People's Court for the collection and obtaining of evidence, or request the People's Court to inform the witnesses to appear in court and give testimony.
With permission of the People's Procuratorate or the People's Court and with the consent of the victim, his close relatives or the witnesses provided by the victim, defence lawyers may collect information pertaining to the current case from them.
(Relevant articles: Legislation 2)
Article 42 No defense lawyer or any other person may help a criminal suspect or defendant conceal, destroy or fabricate evidence or collude with a criminal suspect or defendant to make confessions tally, or intimidate or induce witnesses to give false testimony or conduct other acts interfering with the proceedings of judicial organs.
Any violation of the preceding paragraph shall be subject to the legal liability in accordance with the law. Any alleged crime committed by a defender in this regard shall be handled by an investigating organ other than the investigating organ handling the case undertaken by the defender. Where the defender is a lawyer, the law firm for which the defender is working or the lawyer's association of which the defender is a member shall be notified of relevant information in a timely manner.
(Relevant articles: Legislation 1)
Article 43 During a trial, the defendant may refuse to have his defender continue to defend him and may entrust his defence to another defender.
Article 44 A victim in a case of public prosecution, his legal representatives or near relatives, and a party in an incidental civil action and his legal representatives shall, from the date on which the case is transferred for examination before prosecution, have the right to entrust agents ad litem. A private prosecutor in a case of private prosecution and his legal representatives, and a party in an incidental civil action and his legal representatives shall have the right to entrust agents ad litem at any time.
The People's Procuratorate shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, notify the victim and his legal representatives or near relatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem. The People's Court shall, within three days from the date of accepting a case of private prosecution, notify the private prosecutor and his legal representatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem.
Article 45 With regard to entrusting of agents ad litem, the provisions of Article 32 of this Law shall be applied mutatis mutandis.
Article 46 Defense lawyers shall be entitled to keep confidential the information about their clients that comes into their knowledge during their practices, provided that they shall promptly inform judicial organs of the information that comes to their knowledge during their practices, indicating that their clients or other persons are to commit or are committing crimes endangering State security or public security or crimes seriously threatening others' personal safety.
Article 47 A defender or agent ad litem shall be entitled to file a petition or bring a complaint to the people's procuratorate at the same or the next higher level if he/she is of the opinion that the relevant public security organ, people's procuratorate, people's court or its staff members have hindered his/her lawful exercise of the litigation rights. The said people's procuratorate shall review the petition or complaint in a timely manner, and notify relevant organs to make correction if the authenticity of petition or complaint is confirmed.
(Relevant articles: Legislation 2)
Chapter V Evidence
Article 48 All materials that prove the facts of a case shall be evidence.
Evidence shall include:
1. Physical evidence;
2. Documentary evidence;
3.Testimony of witnesses;
4. Statements of victims;
5. Statements and exculpations of criminal suspects or defendants;
6. Expert opinions;
7. Records of crime scene investigation, examination, identification and investigative experiments; and
8. Audio-visual materials, and electronic data.
The authenticity of evidence shall be confirmed before it can be admitted as the basis for making a decision on a verdict.
(Relevant articles: Legislation 1)
Article 49 For cases of public prosecution, people's procuratorates shall bear the burden of proof to prove that the defendants are guilty, while for cases of private prosecution, private prosecutors shall bear the burden of proof to prove that the defendants are guilty.
Article 50 Judges, procurators and investigators must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the criminal suspect's or defendant's guilt or innocence and the gravity of his crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means. Conditions must be guaranteed for all citizens who are involved in a case or who have information about the circumstances of a case to objectively and fully furnish evidence and, except in special circumstances, they may be brought in to help the investigation.
Article 51 The public security organ's requests for approval of arrest, the People's Procuratorate's bills of prosecution and the People's Court's written judgments must be faithful to the facts. The responsibility of anyone who intentionally conceals the facts shall be investigated.
Article 52 The People's Courts, the People's Procuratorates and the public security organs shall have the authority to collect or obtain evidence from the units and individuals concerned. The units and individuals concerned shall provide truthful evidence.
The physical evidence, documentary evidence, audio-visual materials, electronic data and other evidence gathered by administrative organs during administrative law enforcement and case investigation and handling may be used as evidence in criminal cases.
Evidence involving State secretes, trade secretes or personal privacy shall be kept confidential.
Anyone that falsifies, conceals or destroys evidence, regardless of which side of a case he belongs to, must be investigated under law.
Article 53 All cases shall be judged according to the principles that emphasis shall be laid on evidence, investigation and research, while credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to criminal punishments if there is no evidence other than his/her own statement. On the other hand, a defendant may be found guilty and sentenced to criminal punishments even without his/her own statements, as long as there is sufficient and concrete evidence.
Evidence shall be deemed to be sufficient and concrete if the following conditions are satisfied:
1.There is evidence for each fact that serves as the basis for conviction and sentencing;
2.The authenticity of evidence used for deciding the case has all been confirmed in accordance with statutory procedures; and
3. Based on the comprehensive assessment of all evidence for the case, the ascertained facts have been proved beyond reasonable doubt.
(Relevant articles: Legislation 1)
Article 54 Confessions extorted from a criminal suspect or defendant by illegal means such as torture, testimony of witnesses and statements of victims collected by violent means, threat or other unlawful means shall be excluded. Physical evidence or documentary evidence that is not collected according to statutory procedures and is therefore likely to materially damage judicial justice shall be subject to correction or reasonable explanations, and shall be excluded if correction or reasonable explanations are not made.
Evidence that shall be excluded as found during investigation, examination before prosecution and trial shall be excluded in accordance with the law, and shall not serve as the basis for making prosecution opinions, prosecution decisions and judgments.
(Relevant articles: Legislation 3)
Article 55 Where a people's procuratorate receives any reports, accusations or tip-offs on any circumstances involving unlawful gathering of evidence by investigators, or discovers that any investigator involves such conduct, the people's Procuratorate shall carry out investigation and verification thereof. If said conduct constitutes a crime, the persons concerned shall be subject to the criminal liability in accordance with the law.
Article 56 During a court hearing, where a judge is of the opinion that evidence may have been gathered by unlawful means as stipulated in Article 54 herein, a court investigation shall be launched as to the legality of the evidence gathering means.
The party concerned, his/her defender and the agent ad litem shall be entitled to apply with the relevant people's court for exclusion of the evidence gathered by unlawful means in accordance with the law. Those who apply for exclusion of the evidence gathered by unlawful means shall provide relevant clues or materials.
(Relevant articles: Legislation 1)
Article 57 A people's procuratorate shall bear the burden of proof as to the legality of the evidence gathering means during the court investigation thereof.
Where there exists no evidentiary support for the legality of the evidence gathering means, the people's procuratorate may request the people's court concerned to notify relevant investigators or other personnel to appear before the courtroom to make explanations.
......
Order of the President of the People's Republic of China No. 55
March 14, 2012
(Adopted at the 2nd Session of the 5th National People's Congress on July 1, 1979, amended for the first time by the Decision on the Revision of the Criminal Procedure Law of the People's Republic of China passed at the 4th session of the 8th National People's Congress on March 17, 1996, and amended for the second time by the Decision on the Revision of the Criminal Procedure Law of the People's Republic of China passed at the 5th session of the 11th National People's Congress on March 14, 2012)
Table of Contents
Part One General Provisions
Chapter I Aim and Basic Principles
Chapter II Jurisdiction
Chapter III Withdrawal
Chapter IV Defense and Representation
Chapter V Evidence
Chapter VI Compulsory Measures
Chapter VII Incidental Civil Actions
Chapter VIII Time Periods and Service
Chapter IX Other Provisions
Part Two Filing a Case, Investigation, and Initiation of Public Prosecution
Chapter I Filing a Case
Chapter II Investigation
Section 1 General Provisions
Section 2 Interrogation of the Criminal Suspect
Section 3 Questioning of the Witnesses
Section 4 Inquest and Examination
Section 5 Search
Section 6 Seizure of Material Evidence and Documentary Evidence
Section 7 Expert Evaluation
Section 8 Technical Investigation Measures
Secison 9 Wanted Orders
Section 10 Conclusion of Investigation
Section 11 Investigation of Cases Directly Accepted by the People's Procuratorates
Chapter III Initiation of Public Prosecution
Part Three Trial
Chapter I Trial Organizations
Chapter II Procedure of First Instance
Section 1 Cases of Public Prosecution
Section 2 Cases of Private Prosecution
Section 3 Summary Procedure
Chapter III Procedure of Second Instance
Chapter IV Procedure for Review of Death Sentences
Chapter V Procedure for Trial Supervision
Part Four Execution
Part Five Special Procedures
Chapter I Litigation Procedures for Criminal Cases Involving Minors
Chapter II The Litigation Procedure of Public Prosecution in Which Parties Reach a Settlement
Chapter III The Confiscation Procedure for Illegal Proceeds in a Case in Which the Criminal Suspect or Defendant Goes Into Hiding or Dies
Chapter IV Compulsory Medical Treatment Procedure for a Mental Patient Bearing No Criminal Responsibility in Accordance with Law
Supplementary Provisions
Part One General Provisions
Chapter I Aim and Basic Principles
Article 1 This Law is enacted in accordance with the Constitution and for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding State and public security and maintaining socialist public order.
Article 2 The aim of the Criminal Procedure Law of the People's Republic of China is: to ensure accurate and timely ascertainment of facts about crimes, correct application of law, punishment of criminals and protection of the innocent against being prosecuted for criminal responsibility; to enhance the citizens' awareness of the need to abide by law and to fight vigorously against criminal acts; and to safeguard the socialist legal system, to protect the personal rights, property rights, democratic rights and other rights of citizens; and to guarantee smooth progress of the cause of socialist development.
Article 3 The public security organs shall be responsible for investigation, detention, execution of arrests and preliminary inquiry in criminal cases. The People's Procuratorates shall be responsible for procuratorial work, authorizing approval of arrests, conducting investigation and initiating public prosecution of cases directly accepted by the procuratorial organs. The People's Courts shall be responsible for adjudication. Except as otherwise provided by law, no other organs, organizations or individuals shall have the authority to exercise such powers.
In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs must strictly observe this Law and any relevant stipulations of other laws.
Article 4 State security organs shall, in accordance with law, handle cases of crimes that endanger State security, performing the same functions and powers as the public security organs.
Article 5 The People's Courts shall exercise judicial power independently in accordance with law and the People's Procuratorates shall exercise procuratorial power independently in accordance with law, and they shall be free from interference by any administrative organ, public organization or individual.
Article 6 In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs must rely on the masses, base themselves on facts and take law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before law.
Article 7 In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of law.
Article 8 The People's Procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings.
Article 9 Citizens of all nationalities shall have the right to use their native spoken and written languages in court proceedings. The People's Courts, the People's Procuratorates and the public security organs shall provide translations for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality.
Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, court hearings shall be conducted in the spoken language commonly used in the locality, and judgments, notices and other documents shall be issued in the written language commonly used in the locality.
Article 10 In trying cases, the People's Courts shall apply the system whereby the second instance is final.
Article 11 Cases in the People's Courts shall be heard in public, unless otherwise provided by this Law. A defendant shall have the right to defence, and the People's Courts shall have the duty to guarantee his defence.
(Relevant articles: Articles 1)
Article 12 No person shall be found guilty without being judged as such by a People's Court according to law.
Article 13 In trying cases, the People's Courts shall apply the system of people's assessors taking part in trials in accordance with this Law.
Article 14 People's courts, people's procuratorates and public security organs shall safeguard the right of defense and other litigation rights to which criminal suspects, defendants and other participants in litigation proceedings are entitled.
In cases where a minor under the age of 18 commits a crime, the criminal suspect and the legal representative of the defendant may be notified to be present at the time of interrogation and trial.
Participants in proceedings shall have the right to file charges against judges, procurators and investigators whose acts infringe on their citizen's procedural rights or subject their persons to indignities.
Article 15 In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or the handling shall be terminated, or innocence shall be declared:
1. if an act is obviously minor, causing no serious harm, and is therefore not deemed a crime;
2. if the limitation period for criminal prosecution has expired;
3. if an exemption of criminal punishment has been granted in a special amnesty decree;
4. if the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;
5. if the criminal suspect or defendant is deceased; or
6. if other laws provide an exemption from investigation of criminal responsibility.
(Relevant articles: Legislation 3)
Article 16 Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.
If foreigners with diplomatic privileges and immunities commit crimes for which criminal responsibility should be investigated, those cases shall be resolved through diplomatic channels.
Article 17 In accordance with the international treaties which the People's Republic of China has concluded or acceded to or on the principle of reciprocity, the judicial organs of China and that of other countries may request judicial assistance from each other in criminal affairs.
Chapter II Jurisdiction
Article 18 Investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by law.
Crimes of embezzlement and bribery, crimes of dereliction of duty committed by State functionaries, and crimes involving violations of a citizen's personal rights such as illegal detention, extortion of confessions by torture, retaliation, frame-up and illegal search and crimes involving infringement of a citizen's democratic rights -- committed by State functionaries by taking advantage of their functions and powers -- shall be placed on file for investigation by the People's Procuratorates. If cases involving other grave crimes committed by State functionaries by taking advantage of their functions and powers need be handled directly by the People's Procuratorates, they may be placed on file for investigation by the People's Procuratorates upon decision by the People's Procuratorates at or above the provincial level.
Cases of private prosecution shall be handled directly by the People's Courts.
(Relevant articles: Articles 1)
Article 19 Primary people's courts shall have jurisdiction as courts of first instance over ordinary criminal cases; however, those cases which fall under the jurisdiction of the People's Courts at higher levels as stipulated by this Law shall be exceptions.
(Relevant articles: Articles 1)
Article 20 Intermediate people's courts shall have jurisdiction as courts of first instance over the following criminal cases:
1. Cases endangering State security or involving terrorist activities; and
2. Cases of crimes punishable by life imprisonment or the death penalty.
Article 21 The Higher People's Courts shall have jurisdiction as courts of first instance over major criminal cases that pertain to an entire province (or autonomous region, or municipality directly under the Central Government).
Article 22 The Supreme People's Court shall have jurisdiction as the court of first instance over major criminal cases that pertain to the whole nation.
Article 23 When necessary, People's Courts at higher levels may try criminal cases over which People's Courts at lower levels have jurisdiction as courts of first instance; If a People's Court at a lower level considers the circumstances of a criminal case in the first instance to be major or complex and to necessitate a trial by a People's Court at a higher level, it may request that the case be transferred to the People's Court at the next higher level for trial.
(Relevant articles: Articles 1)
Article 24 A criminal case shall be under the jurisdiction of the People's Court in the place where the crime was committed. If it is more appropriate for the case to be tried by the People's Court in the place where the defendant resides, then that court may have jurisdiction over the case.
(Relevant articles: Legislation 1)
Article 25 When two or more People's Courts at the same level have jurisdiction over a case, it shall be tried by the People's Court that first accepted it. When necessary the case may be transferred for trial to the People's Court in the principal place where the crime was committed.
Article 26 A People's Court at a higher level may instruct a People's Court at a lower level to try a case over which jurisdiction is unclear and may also instruct a People's Court at a lower level to transfer the case to another People's Court for trial.
(Relevant articles: Articles 1 Legislation 1)
Article 27 The jurisdiction over cases in special People's Courts shall be stipulated separately.
Chapter III Withdrawal
Article 28 In any of the following situations, a member of the judicial, procuratorial or investigatory personnel shall voluntarily withdraw, and the parties to the case and their legal representatives shall have the right to demand his withdrawal:
1. if he is a party or a near relative of a party to the case;
2. if he or a near relative of his has an interest in the case;
3. if he has served as a witness, expert witness, defender or agent ad litem in the current case ; or
4. if he has any other relations with a party to the case that could affect the impartial handling of the case.
(Relevant articles: Legislation 1)
Article 29 Judges, procurators or investigators shall not accept invitations to dinner or presents from the parties to a case or the persons entrusted by the parties and shall not in violation of regulations meet with the parties to a case or the persons entrusted by the parties.
Any judge, procurator or investigator who violates the provisions in the preceding paragraph shall be investigated for legal responsibility. The parties to the case and their legal representatives shall have the right to request him to withdraw.
(Relevant articles: Legislation 2)
Article 30 The withdrawal of a judge, procurator and investigator shall be determined respectively by the president of the court, the chief procurator, and the head of a public security organ; the withdrawal of the president of the court shall be determined by the court's judicial committee; and the withdrawal of the chief procurator or the head of a public security organ shall be determined by the procuratorial committee of the People's Procuratorate at the corresponding level.
An investigator may not suspend investigation of a case before a decision is made on his withdrawal.
If a decision has been made to reject his application for withdrawal, the party or his legal representative may apply for reconsideration once.
Article 31 Provisions on withdrawal set forth in this Chapter shall also apply to court clerks, interpreters and expert witnesses.
The defender or the agent ad litem of a case may request for withdrawal or apply for reconsideration pursuant to provisions of this Chapter.
Chapter IV Defence and Representation
Article 32 In addition to exercising the right to defend himself, a criminal suspect or a defendant may entrust one or two persons as his defenders. The following persons may be entrusted as defenders:
1. lawyers;
2. persons recommended by a public organization or the unit to which the criminal suspect or the defendant belongs; and
3. guardians or relatives and friends of the criminal suspect or the defendant.
Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as defenders.
(Relevant articles: Legislation 1)
Article 33 A criminal suspect shall be entitled to entrust a defender after he/she is interrogated for the first time by an investigating organ or as of the date on which compulsive measures are taken, provided that during investigation, the criminal suspect may only entrust a lawyer as his defender. Defendants of cases shall be entitled to entrust defenders at any time.
An investigating organ shall, during the first interrogation of a criminal suspect or the imposition of compulsory measures thereon, inform the criminal suspect of his right to entrust a defender. A people's procuratorate shall, within three days upon the receipt of the materials of a case transferred for examination before prosecution, inform the criminal suspect of his right to entrust a defender. A people's court shall, within three days upon the acceptance of a case, inform the defendant of his right to entrust a defender. Where a criminal suspect or defendant requests for the entrustment of a defender during his detention, the people's court, the people's procuratorate and the public security organ concerned shall communicate the request in a timely manner.
A criminal suspect or defendant under detention may have his guardian or close relative to entrust a defender on his behalf.
A defender, after accepting the entrustment by a criminal suspect or defendant, shall inform the case handling organ of the entrustment in a timely manner
Article 34 A criminal suspect or defendant who has not entrusted a defender due to financial difficulties or other reasons, the criminal suspect or defendant himself/herself or his/her close relatives may file an application with a legal aid agency which may designate a lawyer as his/her defender where the application satisfies the conditions for legal aid services.
With respect to a criminal suspect or defendant who is vision, hearing or speech impaired, or who is a mentally challenged person but has not lost entirely the ability of recognition or the ability to control his/her conducts, if such person has not entrusted anyone to be his/her defender, the people's court, the people's procuratorate and the public security organ concerned shall inform a legal aid agency to designate a lawyer as his/her defender.
Where a criminal suspect or defendant committing a crime punishable by life imprisonment or capital punishment has not entrusted a defender, the people's court, the people's procuratorate and the public security organ concerned shall inform a legal aid agency to designate a lawyer as his/her defender.
(Relevant articles: Legislation 3)
Article 35 The responsibilities of a defender shall be to present, in accordance with facts and the law, materials and opinions proving that the criminal suspect or defendant is innocent or the crime involved is a petty offense, or the criminal suspect or defendant is eligible need for a mitigated punishment or exemption from the criminal liability, so as to safeguard the litigation rights and other legitimate rights and interests of the criminal suspect or defendant.
Article 36 During the investigation period, a defense lawyer may provide a criminal suspect with legal aid, file petitions and complaints on the suspect's behalf, apply for alteration of the compulsory measures, find out from the investigating organ the offense of which the criminal suspect is convicted and the information pertaining to the case, and offer his/her opinions.
(Relevant articles: Legislation 1)
Article 37 Defense lawyers may have meeting and correspondence with criminal suspects or defendants who are under detention. Other defenders, subject to the permission of people's courts and people's procuratorates, may also meet and correspond with criminal suspects or defendants who are under detention.
Where a defense lawyer requests for a meeting with a criminal suspect or defendant under detention on the strength of the lawyer's practicing certificate, and the certification documents and letter of authorization issued by his/her law firm, or an official legal aid document, the detention house concerned shall arrange the meeting in a timely manner, no later than 48 hours after receiving the request.
During the investigation period for crimes endangering State security, involving terrorist activities or involving significant amount of bribes, defense lawyers shall obtain the approval of investigating organs before they meet with the criminal suspects. The investigating organs shall inform the detention houses of information relating to the aforesaid cases in advance.
A defense lawyer shall be entitled to inquire about the case and provide legal advice during the meeting with a criminal suspect or defendant under detention and may, from the date on which the case is transferred for examination before prosecution, verify relevant evidence with the criminal suspect or defendant. The meeting between the defense lawyer and the criminal suspect or defendant shall not be monitored.
With respect to circumstances where defense lawyers meet and correspond with criminal suspects or defendants who are under residential surveillance, provisions of Paragraphs 1, 3 and 4 of this Article shall apply.
(Relevant articles: Legislation 1)
Article 38 A defense lawyer may, from the date on which the relevant people's procuratorate begins to examine the case for prosecution, consult, excerpt and reproduce the case file materials. Other defenders, with permission of the people's procuratorate or people's court, may also consult, excerpt and reproduce the above-mentioned materials.
Article 39 Where a defender is of the opinion that the relevant public security organ or people's procuratorate fails to submit certain evidence gathered during the investigation period or period for examination before prosecution while such evidence can prove that the criminal suspect or defendant is innocent or the crime involved is a petty offense, the defender shall be entitled to apply with the people's procuratorate or the people's court concerned to obtain such evidence.
(Relevant articles: Legislation 2)
Article 40 Where a defender has gathered evidence showing that the criminal suspect concerned was not at the scene of the crime, has not reached the age for assuming the criminal liability, or is a mentally challenged person who is not required by law to assume the criminal liability, the defender shall inform the relevant public organ and people's procuratorate of such evidence in a timely manner.
Article 41 Defence lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the People's Procuratorate or the People's Court for the collection and obtaining of evidence, or request the People's Court to inform the witnesses to appear in court and give testimony.
With permission of the People's Procuratorate or the People's Court and with the consent of the victim, his close relatives or the witnesses provided by the victim, defence lawyers may collect information pertaining to the current case from them.
(Relevant articles: Legislation 2)
Article 42 No defense lawyer or any other person may help a criminal suspect or defendant conceal, destroy or fabricate evidence or collude with a criminal suspect or defendant to make confessions tally, or intimidate or induce witnesses to give false testimony or conduct other acts interfering with the proceedings of judicial organs.
Any violation of the preceding paragraph shall be subject to the legal liability in accordance with the law. Any alleged crime committed by a defender in this regard shall be handled by an investigating organ other than the investigating organ handling the case undertaken by the defender. Where the defender is a lawyer, the law firm for which the defender is working or the lawyer's association of which the defender is a member shall be notified of relevant information in a timely manner.
(Relevant articles: Legislation 1)
Article 43 During a trial, the defendant may refuse to have his defender continue to defend him and may entrust his defence to another defender.
Article 44 A victim in a case of public prosecution, his legal representatives or near relatives, and a party in an incidental civil action and his legal representatives shall, from the date on which the case is transferred for examination before prosecution, have the right to entrust agents ad litem. A private prosecutor in a case of private prosecution and his legal representatives, and a party in an incidental civil action and his legal representatives shall have the right to entrust agents ad litem at any time.
The People's Procuratorate shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, notify the victim and his legal representatives or near relatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem. The People's Court shall, within three days from the date of accepting a case of private prosecution, notify the private prosecutor and his legal representatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem.
Article 45 With regard to entrusting of agents ad litem, the provisions of Article 32 of this Law shall be applied mutatis mutandis.
Article 46 Defense lawyers shall be entitled to keep confidential the information about their clients that comes into their knowledge during their practices, provided that they shall promptly inform judicial organs of the information that comes to their knowledge during their practices, indicating that their clients or other persons are to commit or are committing crimes endangering State security or public security or crimes seriously threatening others' personal safety.
Article 47 A defender or agent ad litem shall be entitled to file a petition or bring a complaint to the people's procuratorate at the same or the next higher level if he/she is of the opinion that the relevant public security organ, people's procuratorate, people's court or its staff members have hindered his/her lawful exercise of the litigation rights. The said people's procuratorate shall review the petition or complaint in a timely manner, and notify relevant organs to make correction if the authenticity of petition or complaint is confirmed.
(Relevant articles: Legislation 2)
Chapter V Evidence
Article 48 All materials that prove the facts of a case shall be evidence.
Evidence shall include:
1. Physical evidence;
2. Documentary evidence;
3.Testimony of witnesses;
4. Statements of victims;
5. Statements and exculpations of criminal suspects or defendants;
6. Expert opinions;
7. Records of crime scene investigation, examination, identification and investigative experiments; and
8. Audio-visual materials, and electronic data.
The authenticity of evidence shall be confirmed before it can be admitted as the basis for making a decision on a verdict.
(Relevant articles: Legislation 1)
Article 49 For cases of public prosecution, people's procuratorates shall bear the burden of proof to prove that the defendants are guilty, while for cases of private prosecution, private prosecutors shall bear the burden of proof to prove that the defendants are guilty.
Article 50 Judges, procurators and investigators must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the criminal suspect's or defendant's guilt or innocence and the gravity of his crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means. Conditions must be guaranteed for all citizens who are involved in a case or who have information about the circumstances of a case to objectively and fully furnish evidence and, except in special circumstances, they may be brought in to help the investigation.
Article 51 The public security organ's requests for approval of arrest, the People's Procuratorate's bills of prosecution and the People's Court's written judgments must be faithful to the facts. The responsibility of anyone who intentionally conceals the facts shall be investigated.
Article 52 The People's Courts, the People's Procuratorates and the public security organs shall have the authority to collect or obtain evidence from the units and individuals concerned. The units and individuals concerned shall provide truthful evidence.
The physical evidence, documentary evidence, audio-visual materials, electronic data and other evidence gathered by administrative organs during administrative law enforcement and case investigation and handling may be used as evidence in criminal cases.
Evidence involving State secretes, trade secretes or personal privacy shall be kept confidential.
Anyone that falsifies, conceals or destroys evidence, regardless of which side of a case he belongs to, must be investigated under law.
Article 53 All cases shall be judged according to the principles that emphasis shall be laid on evidence, investigation and research, while credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to criminal punishments if there is no evidence other than his/her own statement. On the other hand, a defendant may be found guilty and sentenced to criminal punishments even without his/her own statements, as long as there is sufficient and concrete evidence.
Evidence shall be deemed to be sufficient and concrete if the following conditions are satisfied:
1.There is evidence for each fact that serves as the basis for conviction and sentencing;
2.The authenticity of evidence used for deciding the case has all been confirmed in accordance with statutory procedures; and
3. Based on the comprehensive assessment of all evidence for the case, the ascertained facts have been proved beyond reasonable doubt.
(Relevant articles: Legislation 1)
Article 54 Confessions extorted from a criminal suspect or defendant by illegal means such as torture, testimony of witnesses and statements of victims collected by violent means, threat or other unlawful means shall be excluded. Physical evidence or documentary evidence that is not collected according to statutory procedures and is therefore likely to materially damage judicial justice shall be subject to correction or reasonable explanations, and shall be excluded if correction or reasonable explanations are not made.
Evidence that shall be excluded as found during investigation, examination before prosecution and trial shall be excluded in accordance with the law, and shall not serve as the basis for making prosecution opinions, prosecution decisions and judgments.
(Relevant articles: Legislation 3)
Article 55 Where a people's procuratorate receives any reports, accusations or tip-offs on any circumstances involving unlawful gathering of evidence by investigators, or discovers that any investigator involves such conduct, the people's Procuratorate shall carry out investigation and verification thereof. If said conduct constitutes a crime, the persons concerned shall be subject to the criminal liability in accordance with the law.
Article 56 During a court hearing, where a judge is of the opinion that evidence may have been gathered by unlawful means as stipulated in Article 54 herein, a court investigation shall be launched as to the legality of the evidence gathering means.
The party concerned, his/her defender and the agent ad litem shall be entitled to apply with the relevant people's court for exclusion of the evidence gathered by unlawful means in accordance with the law. Those who apply for exclusion of the evidence gathered by unlawful means shall provide relevant clues or materials.
(Relevant articles: Legislation 1)
Article 57 A people's procuratorate shall bear the burden of proof as to the legality of the evidence gathering means during the court investigation thereof.
Where there exists no evidentiary support for the legality of the evidence gathering means, the people's procuratorate may request the people's court concerned to notify relevant investigators or other personnel to appear before the courtroom to make explanations.
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