SPC, SPP, MPS, MSS, MoJ, and the Legislative Affairs Commission of the NPCSC Regulation on Several Questions Concerning the Implementation of the CPL

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Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, Ministry of Justice, and the Legislative Affairs Commission of the NPC Standing Committee Regulation on Several Questions Concerning the Implementation of the Criminal Procedure Law

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I. Jurisdiction

1. When a case being investigated by public security organs involves a corruption and bribery case over which the people’s procuratorates have jurisdiction, they shall send the corruption and bribery case to the people’s procuratorate; when a case being investigated by the people’s procuratorate involves a criminal matter over which the public security organs have jurisdiction, they shall send the criminal case to the public security organs. If in the situations described above, the principal suspected offense belongs to the public security organ’s jurisdiction, then the public security organs will be the principal investigators, and the people’s procuratorate will cooperate; if the principal suspected offense belongs to the people’s procuratorate’s jurisdiction, the people’s procuratorate will be the principal investigators and the public security organs will cooperate.

2. Article 24 of the Criminal Procedure Law provides: “The jurisdiction of criminal cases will be in the people’s court at the site of the crime.” In the Criminal Procedure Law, “site of the crime” includes the site where the criminal conduct occurred and the site where its outcomes occurred.

3. In any of the following circumstances, the people’s courts, people’s procuratorates and public security organs may, within the scope of their respective professional duties, combine cases for handling:

(1) Multiple crimes by a single offender;

(2) Joint crimes;

(C) Further crimes by the suspect of defendant in a joint crime

(D) Multiple suspects or defendants in connected crimes where combining the cases would be beneficial for clarifying the facts of the case.

 

II. Defense and Representation

4. Currently serving officials from the people’s courts, people’s procuratorates, public security organs, state security organs or prisons; people’s assessors; foreigners; persons without a nationality and persons with an interest in the case cannot serve as defenders. However, if the persons described above are the suspect's or defendant’s guardian or close family member, and the suspect or defendant entrusts them to be their defender, it may be permitted. Incompetent persons or persons with limited competency may not serve as defenders..

A defender may not defend two or more suspects or defendants in the same case, and may not defend two or more suspects in cases that, while heard separately, involve related crimes.

5. Articles 34, 267 and 286 of the Criminal Procedure Law make stipulations regarding legal aid. When peoples courts, people’s procuratorates or public security organs follow these provisions to notify legal aid organizations to appoint a lawyer to provide defense or legal aid, the legal aid organization shall appoint a lawyer within three days of receiving the notice and shall notify the people’s court, people’s procuratorate or public security organ in writing of the lawyer’s full name, work unit and contact information.

6. 1. Article 36 of the Criminal Procedure Law provides: “ In the investigation period, defense attorneys may provide legal assistance to criminal suspects, file complaints and accusations on their behalf, request a modification of compulsory measures, learn the charges against a criminal suspect and other relevant case information from the investigating agency and offer opinions. In accordance with this provision, a lawyer may, during the investigation, learn from the investigating agency of circumstances such as the charges and principle case facts relating to the charges that have already been clarified at that point; the adoption, modification or release of compulsory measures or an extension of the detention period.

7. Paragraph 2 of Criminal Procedure Law Article 37 provides: “When a defense lawyer holding a practicing license, a certificate issued by the law firm, and a representation agreement or an official legal aid document requests a meeting with a criminal suspect or defendant in custody, a jail shall arrange a meeting in a timely manner, no more than 48 hours later.” Under this provision, when a defense lawyer requests to meet with a detained criminal suspect or defendant, the detention center shall arrange a meeting without delay and ensure that the defense attorney can meet with detained suspect or defendant within 48 hours.

8. Paragraph 1 of Criminal Procedure Law Article 41 provides: “A defense lawyer may gather information regarding a case from a witness or any other relevant entity or individual with the consent thereof, and may also apply to the people's procuratorate or people's court for gathering or submission of evidence, or apply to the people's court for notifying a witness to testify before court.” Where a lawyer requests that the people’s procuratorate or people’s court gather or obtain evidence and the people’s procuratorate or people’s court feels there is a need to investigate and gather evidence, the people’s procuratorate or people’s court shall gather and obtain the evidence, and must not issue a signed authorization to investigate to the lawyer and have the lawyer gather and obtain the evidence.

9. Paragraph 2 of Criminal Procedure Law Article 42 provides: “Whoever violates the preceding paragraph shall be subject to legal liability, and a defender suspected of a crime shall be handled by a criminal investigation authority other than the one handling the case in which the defender provides representation.” Under this provision, when public security organs and people’s procuratorates discover that a defender is suspected of a crime, or receive a report, accusation, whistle-blower report, or missive from a relevant organ, and, according to the investigative jurisdictional division of labor, feel it meets the requirements for initiating a case, it shall, in accordance with this provision, be submitted to the investigative agency one level above that which is handling the case in which the defender is involved, to file the case and investigate, or the investigative agency at the level above may file the case and investigate. An investigative agency under that which is handling the case the defender is involved in may not file and investigate the case.

10. Article 47 of the Criminal Procedure Law provides: “A defender or agent ad litem who believes that a public security authority, a people's procuratorate, a people's court or any staff member thereof has impeded his or her exercise of procedural rights, shall have the right to file a complaint or accusation with the people's procuratorate at the same level or at the next higher level. The people's procuratorate shall examine the petition or accusation in a timely manner and, if it is true, notify the authority involved to make correction.” People’s procuratorates, after receiving defenders’ or agent ad litem’s complaints or accusations shall send a written response regarding the handling of the situation to the defender or agent ad litem within 10 days.

 

III. Evidence

11. Paragraph 1 of Article 56 of the Criminal Procedure Law provides: “Where, in a court session, a judge believes that there may be illegal obtainment of evidence as described in Article 54 of this Law, the judge shall conduct an investigation in court regarding the legality of evidence gathering.” If the court, after having reviewed the relevant leads or materials provided by the defendant and his defender or agent ad litem, finds that there is a possibility that there was illegal evidence gathering as described in Criminal Procedure Law Article 54, then it shall conduct an in-court investigation into the legality of the evidence. The procedures for the investigation will be determined by the court according to adjudication conditions.

12. Article 62 of the Criminal Procedure Law provides that witnesses, forensic examiners and victims may adopt protective measures such as “not disclosing his or her personal information such as their name, address and place of business.” When the people’s courts, people’s procuratorates and public security agencies lawfully decide to not reveal personal information such as a witness’s, examiner’s or victim’s true name, address or place of business, they may use pseudonyms and the like to replace the personal information in legal documents such as opinions, rulings, indictments and interrogation records. However, a written explanation of the pseudonyms etc. clearly marked with a classification level shall be an independent file. A defense lawyer, given the court’s permission, who reads the explanation of pseudonyms used for witnesses, examiners or victims must sign a confidentiality agreement.

 

IV. Compulsory Measures

13. Suspects or defendants released on guarantee pending further investigation or under residential surveillance must not without just cause leave the city, county or area of residential surveillance; if they have just cause and need to leave the city, county or area of residential surveillance, they should get the approval of the enforcement agency. If the release on guarantee or residential surveillance was decided on by a people’s procuratorate or people’s court, then the enforcing body should get its consent before approving the suspect’s or defendant’s departure from the city, county or designated area.

14. Whether guarantors for release on guarantee pending further investigation have fulfilled their obligations as guarantors will be determined by the public security organs, and decisions to fine guarantors will also be made by the public security agencies.

15. When calling for residential surveillance, the person under surveillance must not be requested to pay expenses.

16. The Criminal Procedure Law provides that detention [pre-arrest] will be carried out by the public security organs. In cases directly received by the people’s procuratorates, the people’s procuratorates making the detention decision shall deliver the suspect to the public security organs and the public security organs shall immediately enforce detention; the people’s procuratorate may assist in the enforcement.

17. Where the people’s procuratorates have approved an arrest decision, the public security organs shall immediately enforce it and immediately send a record of enforcement to the approving procuratorate. If they cannot carry out the arrest, they shall still send a record to the people’s procuratorate and write an explanation of the reason enforcement wasn’t possible. Where the people’s procuratorate decides not to approve arrest, the public security organ, after receiving the decision to not approve arrest, shall immediately release the detained suspect or modify the compulsory measures and send an enforcement record to the non-approving procuratorate within 3 days of having received the decision to not approve arrest.

 

V. Case Filing

18. Article 111 of the Criminal Procedure Law provides: “Where a people's procuratorate deems that a public security authority fails to open a case that should be otherwise opened for criminal investigation, or a victim expresses to a people's procuratorate the opinion that a public security authority has failed to open a case that should be opened for criminal investigation, the people's procuratorate shall require the public security authority to state the reasons for not opening a case. If the people's procuratorate deems that the reasons for not opening a case provided by the public security authority are unfounded, it shall notify the public security authority to open a case, and, after receiving the notice, the public security authority shall open a case.” Under this provision, public security organs receiving a request for an explanation of why a case wasn’t opened shall send a written explanation of circumstances to the procuratorate within seven days. If the procuratorate finds the public security organ’s reasons for not opening a case are unfounded, they shall send relevant evidentiary materials showing the need to open a case along with the notification to open a case. After the public security organ receives the notice to open a case, it shall make a decision to open a case within 15 days and deliver the decision documents to the procuratorate.

 

VI. Investigation

19. Article 121 of the Criminal Procedure Law provides: “When interrogating a criminal suspect, the investigators may keep an audio or visual record of the interrogation process; and, in a case regarding a crime punishable by indeterminate imprisonment or death penalty or any other significant crime, the investigators shall keep an audio or visual record of the interrogation process.” When investigators make a video or audio recording of an interrogation, they shall note this in the interrogation record. People’s procuratorates or people’s courts may view the audio or visual recording of a suspect’s interrogation as needed and the relevant organ shall promptly provide it.

20. Article 149 of the Criminal Procedure Law provides: “ The approval decision shall be made based on the needs of the criminal investigation to determine the type of technical investigative measures to be used and their target” When materials acquired through the use of technical investigation measures is to be used as evidence, the authorization of the use of technical investigation measures shall be attached to the case file; the defense lawyer may lawfully review, copy or photocopy it and may present it to the court during the course of trial.

21. When public security organs submit an extension of the period of detention in a case, it should be raised 7 days before the completion of the detention period and report in writing the principle circumstances of the case and the specific reasons for extending the detention period, people’s procuratorate shall put forth a decision before the completion of the detention period.

22. Paragraph 1 of article 158 of the Criminal Procedure Law provides: “Where, during the period of criminal investigation, a criminal suspect is discovered to have committed another major crime, the period of custody during criminal investigation shall be recalculated from the date of discovery according to the provisions of Article 154 of this Law.” When public security organs recalculate the period of detention under the above provision, they do not need to get approval from the people’s procuratorate, but shall notify the people’s procuratorate for reference and the people’s procuratorate may carry out supervision.

 

VII. Initiating Prosecution

23. In cases in which a higher level public security organ orders a lower level public security organ to file a case and investigate, if it is necessary to arrest the suspect, the public security organ handling the case investigation shall submit the request to the procuratorate at the same level for approval; if it is necessary to initiate a prosecution, the investigating public security agency shall transfer the case to the procuratorate at the same level to review for indictment.

When people’s procurate’s reviewing a case for indictment find that, according to the Criminal Procedure Law provisions on jurisdiction, a higher level people’s procuratorate or a different procuratorate at the same level should prosecute, it shall send the case to the procuratorate with jurisdiction. When a people’s procuratorate feels a trial jurisdiction needs to be appointed under the Criminal Procedure Law, it shall consult with other procuratorate’s at the same level to resolve matters relating to the jurisdiction appointment.

24. When a people’s procuratorate raises a prosecution to the people’s court, it shall send the case file and all evidence to the people’s court, including materials concerning the suspect or defendant overturning his confession, witnesses changing their testimony and other evidentiary materials beneficial to the suspect or defendant.

 

VII. Trial

25. Article 181 of the Criminal Procedure Law provides: “After examining an initiated public prosecution where the indictment contains charges based on clear factual assertions, the people’s court shall decide to open court for trial.” The court shall accept cases submitted by the people’s procuratorate for prosecution. After reviewing a case submitted for prosecution, if there are clear facts regarding the charges and the case file and evidence are attached, it shall decide to open court for trial and must not refuse to try the case on the basis of the above materials being insufficient. If the materials sent by the people’s procuratorate are lacking the above materials, the people’s court may notify the people’s procuratorate to supplement the materials and the people’s procuratorate shall send additional materials within three days of having received the notice.

Time spent by the people’s court in reviewing the indictment shall be calculated into the court’s time limits for trial.

26. When the people’s court has opened court to try a case, the procurators and defenders appearing in court must present, read or play evidence already sent to the people’s court, and may request the court to present, read or play it.

27. Article 39 of the Criminal Procedure Law provides: “When a defender feels that during the investigation or indictment decision period, evidence gathered by a public security organ or people’s procuratorate proving that the suspect or defendant is innocent or the crime was mild, was not provided, he has the right to request the people’s procuratorate or people’s court to obtain it. “ Paragraph 1 of Criminal Procedure Law Article 1 provides: “If in the course of trial, the trial panel has doubts about the evidence, it may announce a recess and carry out an investigation and verification of the evidence.” Paragraph 1 of Criminal Procedure Law Article 192 provides: In the course of court trial, a party and its defender or agent ad litem have the right to request that new witnesses be notified to appear, to obtain new real evidence, to request for a new forensic evaluation or inquest.” Under the above provisions, from when the case is transferred for consideration of indictment, on the basis of the defender’s request the people’s procuratorate may obtain evidence from the public security organs that was not passed on which shows that the defendant is innocent or that the crime was minor. In the course of trial at court, the people’s court may, on the basis of the defenders application, obtain evidence that was not passed on from the people’s procuratorate that shows the defendant is innocent or that the crime was minor and can also obtain any evidence that it needs to investigate and verify from the procuratorate. Public security organs and people’s procuratorates shall pass on requested information within 3 days of their receipt of the request.

28. When people’s courts lawfully notify witness or examiners to testify in court, they shall send the notice for appearance to the prosecution and defense and both sides shall cooperate.

29. Paragraph 3 of Article 187 of the Criminal Procedure Law provides: “where the procurator, parties or their defenders or agents ad litem object to an examiner’s opinion, and the people’s court feels there is a need for the examiner to appear in court, the examiner shall testify in court. If, having been notified by the people’s court, an examiner refuses to appear in court and testify, the examiners opinions cannot be a basis for deciding the case.” Under the above provision, opinions of examiners who do not appear in court to testify after having been lawfully notified by the people’s court to do so cannot be the basis of a judgment. If examiners cannot appear as a result of force majeure or due to other legitimate reasons, the people’s court may decide to extend the time for trial, based on the circumstances of the case.

30. . If when a case is being tried by a people’s court, new facts are discovered that could impact the verdict, the people’s procuratorate may request to supplement or modify the indictment, and the court may recommend that the procuratorate supplement or modify the indictment. If the people’s court recommends the people’s procuratorate supplement or modify the indictment, the people’s procuratorate shall make a response within 7 days.

31. If in the course of trial the defendant reveals that someone else committed the crime or provides material leads, and the people’s procuratorate feels it is necessary to verify, it may recommend supplemental investigation.

32. Article 203 of the Criminal Procedure Law provides” when the people’s procuratorate discovers that the trial has violated statutory procedures, it has the right to propose the court make corrections” When the people’s procuratorate proposes making corrections, it shall make the proposal after the hearing.

 

IX. Enforcement

33. Paragraph 5 of Criminal Procedure Law Article 254 provides: “Before transferring a convict for enforcement of a sentence, whether the sentence will temporarily be served outside a prison will be decided by the transferring people’s court.” For defendants that might be sentenced to short-term imprisonment, a fixed term or a life term, who meet the requirements for temporarily serving their sentence outside of prison, the defendant and his defender have the right to request temporary enforcement outside of prison from the people’s court, and the detention center may report the relevant circumstances to the court. The people’s court shall conduct a review and make a decision on temporary enforcement outside of prison before the transfer for enforcement of the sentence.

34. Paragraph 3 of Article 257 of the Criminal Procedure Law provides: “For convicted persons who do not meet the conditions for temporary enforcement outside a prison but use illegal methods such as bribery to receive temporary enforcement outside of prison, the time spent outside of prison is not calculated against their sentence term. For convicts who escape while under temporary enforcement outside of prison, the period of escape will not be calculated against their sentence term” For convicts whom the court has decided to allow temporary enforcement outside of prison who have one of the above circumstances, the court shall confirm the period not being counted toward the sentence at the same time as it determines that they are in custody. If prison management or a public security organ decided to grant the temporary enforcement outside prison and one of the above circumstances occurs, the prison or detention center, after taking custody, will notify the court in a written recommendation to not calculate the time against the sentence period, and the court will review this and make a judgment.

35. If a person undergoing community corrections is at large, the community corrections organization shall immediately notify the public security organs and the public security organs are responsible for pursuing them.

 

X. Handling of Assets Associated with the Case

36. For illegally acquired assets related to a case that should be disgorged according to the provisions of the Criminal Law, with the exception of assets returned to the victims in accordance with law and contraband destroyed in accordance with law, all assets must be turned over to the national treasury. Case-related assets that are sealed or seized shall not be transferred in accordance with law until after the people’s court has put forward an effective judgment, at which point the court will notify the sealing or seizing agency to turn them over to the national treasury, the sealing or seizing agency shall send an enforcement receipt to the court.

For seized or frozen assets such as bonds, stocks , or fund shares, if an authorized person applies to sell them during the period which they are frozen or seized, the seizing or freezing agency should conduct a review, and where it will not harm national interests or the victims’ interests and will not influence the normal progression of the trial, or where a seized or frozen money order, check or promissory note is about to expire, it may be sold or cashed before a judgment takes effect, and all earned monies will be protected by the agency seizing or freezing assets and the agency will notify the party and close relatives without delay.

37. Paragraph 1 of Criminal Procedure Law article 142 provides: “The people procuratorates and public security organs may on the basis of investigative needs inquire into or freeze savings, remittances, bonds, stocks, fund shares and other property of criminal suspects according to relevant legal provisions.” According to the above provision, the people’s procuratorates and public security agencies cannot deduct savings, remittances, bonds, stocks fund shares or other assets. When the criminal suspect or defendant is deceased, his illegal acquired assets should be disgorged , using the procedures listed in Criminal Procedure Law Part 5 Chapter 3, with the people’s procuratorate applying to the court for confiscation of goods to the people’s court.

38. If the suspect or defendant is deceased and the evidence presently available proves there are illegally gains and other assets that should be confiscated associated with the case, the public security organs and people’s procuratorate may carry out an in investigation. Public security organs and the people’s procuratorates carrying out an investigation may legally seal, seize, inquire into and freeze (assets).

If during the court’s handling of a case the defendant dies, the case shall be terminated; if the defendant flees, the case will be suspended. The people’s procuratorates may make a separate proposal to the court to confiscate illegally acquired assets in accordance with law.

39. In regards to judgments lawfully made by the courts regarding confiscation of illegal gains, the families of suspects or defendants, other interested parties or the people’s procuratorate can appeal within 5 days.

XI. Other

40. Article 147 of the Criminal Procedure Law provides: “The time spent performing a mental health examination of a criminal suspect is not calculated in the time for handling a case.” Under the above provision, in cases where the criminal suspect and defendant is detained, other than the time for mental health evaluations being excluded from the calculations of case-handling time, other evaluations should all be included in the case handling time. If the time for the evaluation is long and even after the time for handling the case has run, the case still cannot be ultimately resolved, , a detained suspect or defendant should have their compulsory measure modified release on bail pending further investigation or residential surveillance, beginning at the date of completion of the time limit.

State security organs handling criminal cases of endangering state security in accordance with law use the portions of this regulation relating to public security organs.

This regulation takes effect on January 1, 2013. The January 19, 1998 SPC, SPP, MPS, MSS, MOJ and NPC LWC Regulation on Several Questions on Implementing the Criminal Procedure Law is abolished at the same time.

 

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