Criminal Procedure Law: Comparative Pre/Post Proposed Revisions

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Criminal Procedure Law of the People's Republic of China (Draft Revisions)
NEW [Expedited Procedures/ Plea Leniency System]

I. Add one article to be article 15: "Where criminal suspects or defendants voluntarily and truthfully confess their own criminal conduct, have no objections to the facts of the crime as charged, and are willing to accept punishment, they may be given a lenient disposition in accordance with law. "

Article 18:

……

The peoples procuratorate will file and investigate crimes of bribery and corruption ; crimes of dereliction of duty by state workers; crimes of state workers abusing their power to effect an unlawful arrest, the coercion of confessions through torture, retaliation or illegal searches that violate citizen's personal rights and crimes that violate citizen's democratic rights. When it is necessary for the people's procuratorate to directly accept cases of state workers abusing their authority to carry out other serious crimes, the people's procuratorate may file and investigate the crime following a decision by a people's procuratorate of the provincial level or above.

[Supervision Law]

II. Change article 18 to be article 19, and change paragraph 2 to read: "People's procuratorates may open a case and investigate when people's procuratorates carrying out legal oversight of procedural activities discover crimes by judicial personnel that violate citizens' rights or harm judicial fairness, such as unlawful confinement, extortion of confessions by torture, or unlawful searches. When it is necessary for a people's procuratorate to directly accept a case in which state personnel exploited their office and powers to commit another major crime that is in the jurisdiction of the public security organs, the people's procuratorate may file and investigate the case upon decision of a people's procuratorate at the provincial level or above. "

NEW [2017 Judges Law, Notary Laws Amendments]

III. Change article 32 to be article 33 and add a paragraph as the third paragraph: "Persons who have been removed from public office or had their lawyers or notary practice certificates cancelled, must not serve as defenders, except where they are criminal suspects or defendants' guardians or immediate family members. "

NEW [Expedited Procedures/ Plea Leniency System]

IV. Add one article to be article 36: "Legal aid institutions may station duty lawyers in people's courts, people's procuratorates, and detention centers. Where criminal suspects or defendants have not retained a defender, and the legal aid institutions have not appointed a lawyer to provide them with a defense, the duty lawyer is to provide the criminal suspects or defendants with defense such as legal consultation, suggestions on procedural selection, representation in collateral appeals or complaint appeals, applications for modification of compulsory measures, and submitting opinions on the case handling.

"People's courts, people's procuratorates, and detention centers shall inform criminal suspects or defendants that they have the right to meet with duty lawyers, and facilitate criminal suspects or defendants' meetings with duty lawyers. "

Article 37:

……

Defense lawyers' meetings with criminal suspects during the investigation of cases of crimes that endanger national security, terrorist activities or especially serious bribery cases, shall be upon the permission of the investigating organ. In the cases described above, the investigating organ shall first inform the detention center. In the cases described above, the investigating organ shall first notify the detention center.

 

[Supervision Law]

V. Change article 37 to be article 39 and change paragraph 3 to read: "Defense lawyers' meetings with criminal suspects during the investigation of cases of crimes endangering national security, terrorist activities, shall be upon the permission of the investigating organ. In the cases described above, the investigating organ shall first notify the detention center. "

Article 73:Residential surveillance shall be enforced in the residence of the suspect or defendant; for those without a fixed residence, it may be enforced in a designated location. When crimes of endangering state security, terrorist activities or especially serious bribery cases are suspected, and enforcement in the residence might impede the investigation, it may also be enforced in a designated location upon the approval of the people's procuratorate or public security organ at the level above. However, enforcement must not be in a detention facility, special case-handling facility."

……

[Supervision Law]

VI. Change article 73 to article 75, changing the first paragraph to read: "Residential surveillance shall be carried out in the criminal suspects or defendants' residence; where there is no fixed residence, it may be carried out in a designated location. Where a crime endangering national security or terrorist activities is suspected, and enforcement in the residence would obstruct the investigation, enforcement may be in a designated location upon approval of the public security organ at the level above. However, enforcement must not be in a detention facility, special case-handling facility." "

NEW [Expedited Procedures/ Plea Leniency System]

VII. Change article 79 to be article 81 and add a paragraph as the second paragraph: "In approval of arrest or arrest decisions, the nature and circumstances of the criminal suspects or defendants' suspected crimes, circumstances of admitting guilt and accepting punishment, and the impact on the community where they reside, shall be factors in considering whether their is a threat to society. Criminal suspects or defendants that are not likely to threaten society may be released on guarantee or placed under residential surveillance. "

 

Article 106: The meaning of the following terms in this law are:

(1) 'Investigation' refers to public security organs and people's procuratorates performance of lawful specialized field investigation and use of relevant compulsory measures in the course of handling a case ;

……

[Supervision Law]

VIII. Change article 106 to be article 108, and change item (1) to read: (1) 'Investigation' refers to public security organs, people's procuratorates and other organs lawfully carrying out efforts in criminal cases to collect evidence and check case facts in accordance with law, as well as related compulsory measures."

Article 118:

……

When investigators interrogate suspects, they shall inform the suspect of legal provisions that truthfully describing his own offense may result in leniency.

 

[Expedited Procedures/ Plea Leniency System]

IX. Change article 118 to be article 120, and change paragraph two to read: When investigators interrogate suspects, they shall inform the suspect of the procedural rights they enjoy, legal provisions that truthfully describing their own offense may result in leniency, and the legal consequences that might result from admitting guilt and accepting punishment. "

Article 148:

……

After filing a case, the people's procuratorate may adopt technical investigative measures to be carried out by the organ designated in regulated, as is necessary for the investigation of major corruption or bribery cases as well as for crimes of abuse of public office to violate citizen's rights, upon completion of strict procedures.

 

[Supervision Law]

X. Change article 148 to be article 150, and change paragraph two to read: After filing a case, upon completion of strict procedures, the people's procuratorates may adopt technical investigative measures to be carried out by the organ designated and as regulated, as necessary for the investigation of crimes of abuse of public office to violate citizen's rights in their person. "

NEW [Expedited Procedures/ Plea Leniency System]

XI. Change article 160 to be article 162 and add a paragraph as the second paragraph: "Where criminal suspects voluntarily admit guilt, it shall be recorded in the cases, transferred with the case, and the opinion in support of prosecution is to indicate the relevant situation. "

NEW [Supervision Law]

XII. Add one article to be article 170: "People's procuratorates are to carry out a review of cases transferred by the supervision organs, in accordance with this law and the Supervision Law. Where after examination, the people's procuratorate finds it is necessary to supplement or verify, it shall return it to the supervision organ for supplementary investigation, and, when necessary, may supplement the investigation on its own.

"In cases where the supervision organs employ the measure of retention in custody, the people's procuratorates shall place the criminal suspect in advance custody and the retention in custody is automatically lifted. People's procuratorates shall make a decision on whether to arrest, release on guarantee, or employ residential surveillance within 10 days of taking someone into custody. In special circumstances, the time for making the decision may be extended 1 to 4 days. "

Article 169 :The people's procuratorates shall issue a decision on cases submitted by the public security organs for prosecution within 1 month; this may be extended by a half-month in major, complicated cases.

……

[Expedited Procedures/ Plea Leniency System]

XIII. Change article 169 to article 172, changing the first paragraph to read: "People's procuratorates shall make a decision within one month on cases transferred by the supervision organs or public security organs for prosecution, in major or complicated cases, this may be extended by a half month; and where the criminal suspects admit guilt and accept punishment, and meet the requirements for applying the expedited procedures, they shall make a decision within 10 days, and where the sentence might exceed 1 year of imprisonment, this may be extended to 15 days. "

Article 170 :People's procuratorates investigating a case shall interrogate the criminal suspect, hear the opinions of the defender, victims and their agents ad litem, and make records in the case file. When defenders, victims or their agents ad litem submit written comments, they shall be attached to the file. [Expedited Procedures/ Plea Leniency System]

XIV. Change article 170 to article 173, changing it to read: "People's procuratorates reviewing cases shall interrogate criminal suspects and inform them of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to, shall hear the comments of the criminal suspect, defender, victims, and their agent ad litem on the following matters, and record them in the case file:

“(1) the facts of the crime, charge, and the legal provisions to be applied;

“(2) Recommendations for lenient punishment, such as mitigation, commutation, or exemption from punishment;

“(3) The procedures applied at trial following the admission of guilt and acceptance of punishment;

“(4) Other circumstances where opinions need to be heard.

"Where people's procuratorates hear duty lawyers' opinions in accordance with the provisions of the preceding paragraph, facilitation shall be provided in advance for the duty lawyers learning about the circumstances related to the case.

"When criminal suspects, defenders, victims or their agents ad litem submit written comments, they shall be attached to the file. "

NEW [Expedited Procedures/ Plea Leniency System]

XIV. Add one article to be article 174: "Where criminal suspect voluntarily admit guilt, agree to the sentencing recommendation, and to the applicable procedures, a written plea affidavit shall be signed with the defender present.

"In any of the following circumstances the criminal suspect is not required to sign a plea affidavit:

"(1) where the criminal suspect is blind, deaf or mute, or is a mentally ill person who has not yet entirely lost their ability to recognize and control their action;

"(2) Where a juvenile criminal suspect's legally-designated representative or defender objects to the juvenile's admitting guilt and accepting punishment;

"(3) Others situations where application would be inappropriate. "

NEW [Expedited Procedures/ Plea Leniency System]

XVI. Change article 172 to be article 176 and add a paragraph as the second paragraph: "In the indictment, the people's procuratorates may submit sentencing recommendations on the primary punishment, supplementary punishments, the method of enforcement, and so forth. Where criminal suspects admit guilt and accept punishment, this shall be indicated in the indictment, and materials such as the plea affidavit are to be transferred with the case. "

NEW [Expedited Procedures/ Plea Leniency System]

XVII: Add one article in Chapter III of Part 2, to be article 182: Where criminal suspects voluntarily and truthfully confess the facts of the crime they are suspected of, have major meritorious contribution or the case involves major national interests, then upon approval from the Supreme People's Procuratorate, people's procuratorates may make a non-prosecution decision, and may also submit a prosecution on one or more of the alleged crimes, and the public security organs may withdraw the case.

“Where there is decision to not prosecute or a case is withdrawn in accordance with the preceding paragraph, the people's procuratorates and public security organs shall address sealed, seized and frozen assets and their fruits. "

Article 178:Basic and intermediate level people's courts hearing first-instance trial of cases, shall have 3 trial adjudicators, or a combination of adjudicators and people's assessors totaling 3 people, form a collegial panel for trial, but cases in which the basic level courts apply summary procedures may be heard by a single adjudicator.

In cases where the high people's courts or the supreme people's court hear the first-instance trial, 3-7 adjudicators, or a combination of adjudicators and people's assessors totalling 3-7 people shall for a collegial panel for trial.

People's assessors performing their duties in the people's courts have the same level of rights as adjudicators.

Courts hearing appeals and prosecutorial counter-appeals, will be heard by 3-5 adjudicators forming a collegial panel for trial.

The collegial panel should have an odd number of members.

The chief judge shall appoint an adjudicator from the collegial panel to serve as the presiding judge. When the court president or chief judge participates in the trial of a case, he shall serve as the presiding judge himself.

 

[People's Assessor Law]

XVIII. Change article 178 to be article 183, reading: "Basic and intermediate level people's courts hearing first-instance trial of cases, shall have 3 trial adjudicators, or a combination of adjudicators and people's assessors totaling 3 or 7 people, form a collegial panel for trial, but cases in which the basic level courts apply summary procedures or expedited procedures may be heard by a single adjudicator.

“In cases where the high people's courts hear the first-instance trial, 3-7 adjudicators, or a combination of adjudicators and people's assessors totaling 3 or 7 people shall for a collegiate panel for trial.

“In cases where the Supreme People's Court hears the first-instance trial, 3-7 adjudicators shall form a collegiate panel for trial.

“Courts hearing appeals and prosecutorial counter-appeals, will be heard by 3-5 adjudicators forming a collegial panel for trial.

"The collegial panel should have an odd number of members.

"The chief judge shall appoint an adjudicator from the collegial panel to serve as the presiding judge. When the court president or chief judge participates in the trial of a case, he shall serve as the presiding judge himself. "

NEW [Expedited Procedures/ Plea Leniency System]

XIX. Change article 185 to be article 190 and add a paragraph as the second paragraph: Where defendants admit guilt and accept punishment, the chief judge shall inform the defendant of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to; and review the voluntariness of the admission of guilt and acceptance of punishment and the truthfulness and lawfulness of the written plea affidavit. "

NEW [Expedited Procedures/ Plea Leniency System]

XX. Add one article to be article 201: When the people's court lawfully makes a judgment in a plea case, the charges and sentencing recommendation of the people's procuratorate are usually adopted, except in the following circumstances:

“(1) The defendant has not constituted a crime or should not be pursued for criminal responsibility;

“(2) The defendant admitted guilt and accepted punishment against his wishes;

“(3) the defendant denies the alleged criminal facts;

"(4) the charge in the indictment and the charge verified at trial are not the same;

“(5) The sentencing recommendation is clearly improper;

“(6) Other situations that might impact the fairness of trial.

“In the course of trial, the people's procuratorate may adjust the sentencing recommendation. Where upon trial the people's courts find that a sentencing recommendation is clearly improper, or the defendant or defender submits objections to the sentencing recommendation, a judgment shall be made in accordance with law. "

NEW [Expedited Procedures/ Plea Leniency System]

XXI. Add a new Section in Part 3, Chapter II, to be Section 4:

“Section 4: Expedited procedures

Article 222:In cases within the jurisdiction of basic level people's courts that might have a sentence of up to 3 years fixed-term imprisonment, where the case facts are clear and the evidence is credible and sufficient, and the defendant admits guilt and accepts punishment and agrees to use the expedited procedures, the expedited procedures may be applied, and trial will be by a single adjudicator.

When the people's procuratorate initiates a prosecution, it may suggest that the people's court apply the expedited procedures.

Article 223:The expedited procedures are not to be applied in any of the following circumstances:

“(1) The defendant is a blind, deaf or mute person or a mentally ill person who has not completely lost his ability to recognize and control his conduct;

“(2) There is major social impact;

“(3) Where in a joint crime some of the defendants have objections to the alleged facts, charges or sentencing recommendation;

“(4) Where the defendant and victims, or their legally-designated representatives, have not reached a mediation or settlement agreement on compensation for attached civil litigation;

“(5) Where trial applying the expedited procedures is otherwise inappropriate.

Article 224:Cases applying the expedited procedures are not subject to the time limits for service in Section 1 of this Chapter, court investigation or courtroom debate are not carried out; but before the verdict is announced, the defendants' final statement and opinions shall be heard.

“Cases applying the expedited procedures at trial, shall have the verdict announced at court.

Article 225:In cases applying expedited procedures at trial, people's courts shall complete trial within 10 days of accepting them; an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.

Article 226:Where people's courts discover in the course of trial that defendants having admitted guilt and accepted punishment against their will, that the defendant denies the alleged facts of the crime, or that there are other circumstances making application of the expedited procedures inappropriate, they shall hold a new trial in accordance with Section 1 of this Chapter. "

Article 250:
……
If convicts sentenced to death with a two year suspended sentence do not commit another intentional crime within the two year suspension and the period for the suspended death sentence is complete, the sentence shall be commuted, and the enforcement organ will submit a written opinion reporting to the High People's Court for a ruling. If they committed an intentional crime and it is verified and reviewed, they shall be executed and the high people's court will report to the Supreme People's Court for review and approval.
[Criminal Law Amendment (9)]

XXII. Change article 250 to be article 261, and change paragraph 2 to read: "Where convicts sentenced to death with a two year suspended sentence do not commit another intentional crime within the suspension period, the sentence shall be commuted; and the enforcement organ will submit a written opinion reporting to the High People's Court for a ruling; if an intentional crime is committed, and the circumstances are heinous, and it is verified, the death sentence shall be enforced, and the High People's Court shall report to the Supreme People's Court for final review; and where there is an intentional crime but the execution is not carried out, the period of suspending the death sentence is to be newly calculated, and this is to be reported to the Supreme People's Court for recording. "

Article 260:Where convicts given a fine have not paid it over at the completion of the time period, the people's court shall compel payment; if there is truly difficulty in making payment due to a disaster or other force majeure, a ruling may be made for a reduction or waiver. [Criminal Law Amendment (9)]

XXIII. Change article 260 to be article 271, reading; "Where convicts are given a fine have not paid it over at the completion of the time period, the people's court shall compel payment; if there is truly difficulty in making payment for reasons such as a disaster or other force majeure, then an extension for payment, a reduction or waiver or payment, may be given by ruling of a people's court. "

NEW [Trials in Absentia]

XXIV: Add a Chapter to Part V, to be Chapter III.

“Chapter III: Procedures for Trials in Absentia

Article 291:"In corruption, bribery, and other criminal cases, where the criminal suspect or defendant has escaped abroad and the Supervision Organ has transferred the case for prosecution, the people’s procuratorate may initiate a public prosecution in the people’s court if it finds that the facts of the crime are already clear, that the evidence is credible and sufficient, and that criminal responsibility shall be pursued in accordance with law. After conducting a review, the people’s court shall decide to try the case in open court if the indictment includes clear accusations of the facts of a crime.

"The intermediate people’s court for the site of the crime or for the defendant's residence shall form a collegial panel and hear the cases in the previous paragraph.

Article 292:"The people’s court shall deliver the summons and a copy of the people’s procuratorate’s indictment to the defendant through judicial assistance means as prescribed in the relevant international treaties or other means permitted by the law of the addressee’s location. Where the defendant does not surrender as required after receiving the subpoena and the copy of the indictment, the people’s court shall hear the case in open court, render a verdict in accordance with law, and dispose of unlawful gains and other property involved in the case.

Article 293:In trials in absentia conducted by the people’s court, defendants have the right to retain a defender, and defendants’ close relatives may retain a defender on their behalf. Where defendants and their close relatives have not retained a defender, the people’s court shall notify a legal aid organization to appoint a lawyer to provide them with a defense.

Article 294:The people’s courts shall send written verdicts to the defendants and their close relatives and defenders. Where the defendants or their close relatives are not satisfied with the verdict, they have the right to appeal the people’s court at the next higher level. Defenders may raise appeals with the defendants’ or their close relatives’ consent.

Article 295:Where during the course of a trial, the defendant voluntarily surrenders or is captured, the people’s court shall retry the case.

“Where a convict is brought in after the judgment or ruling has taken legal effect, the people’s court shall transfer the convict for enforcement of the penalty. Before the transfer for enforcement of penalties, the people’s court shall inform the convict that he has the right to raise objections to the judgment or ruling. Where a convict raises objections to the verdict or judgment, the people’s court shall retry the case.

“Where the disposition of a convict’s property in accordance with an effective judgment or ruling is truly in error, it shall be returned or compensation made.

Article 296:Where because the defendant has a serious illness and is unable to appear in court, the proceedings are suspended for over six months, and the defendant is still unable to appear in court, and where the defendant and his agent ad litem apply for or consent to continuation of the trial, the people’s court may conduct a trial in absentia where the defendant does not appear in court and render a verdict in accordance with law.

Article 297:Where the defendant has died, the people’s court shall render a judgment terminating the trial; but where there is evidence proving that the defendant is innocent, and the people’s court confirms his innocence after conducting a trial in absentia, a verdict is to be rendered in accordance with law.

In a case where the people’s court holds a new trial in accordance with trial supervision procedures and the defendant has died, the people’s court may conduct a trial in absentia and renders a verdict in accordance with law. "

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