Dalian Municipal Implementation Regulations for the Pilot Project on the Plea Leniency System for Criminal cases

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Chapter I: General Provisions

Chapter II: Application Requirements

Chapter III: Key work points

Section 1: Understanding Standards of Evidence

Section 2: Ensuring procedural rights

Section 3: Application of sentencing recommendations

Section 4: Other Issues

Chapter IV: Applicable Procedures.

Chapter V: Supplementary Provisions

 

Chapter I: General Provisions

Article 1: These detailed implementation measures are drafted on the basis of the Criminal Procedure Law and the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice's "Measures on Carrying out Pilot Projects in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases" (hereinafter, 'the Measures'), together with actual practice of handling criminal cases in out city, so as to further implement the criminal policy of blending leniency and severity, reasonably allocating judicial resources, increasing the quality and efficiency of criminal cases, and strengthening protections of human rights.

Article 2: The handling of plea cases shall implement the criminal policy of blending leniency and severity so that those that who should be handled with leniency are given leniency, and those that should be handled severely are handled severely; shall comply with the basic principles of the Criminal Law and Criminal Procedure Law to truly ensure case quality and prevent the occurrence of unjust, false and wrongfully decided cases; shall protect criminal suspects or defendants' lawful enjoyment of procedural rights, ensure the lawful rights and interests of victims, strengthen oversight and restraints and ensure judicial fairness.

Chapter II: Application Requirements

Article 3: Where criminal suspects or defendants truthfully confess their own criminal conduct, have no objections to the facts of the crime as charged, agree to the sentencing recommendation, and sign an affidavit, they may be given a lenient disposition in accordance with law.

Article 4: Admitting guilt refers to criminal suspects or defendants voluntarily and truthfully confessing their own criminal conduct, having no objections to the main facts of the crime and charges as alleged by the public prosecutor, and sign an affidavit.

Accepting punishment refers to criminal suspects or defendants having no objections to the the punishment type, range, and enforcement methods recommended by the procuratorate. Whether they have actively returned stolen goods, made restitution, paid over fines, and compensated victims' losses, are also major indicators for assessing whether criminal suspects or defendants have accepted punishment.

Where criminal suspects or defendants do not agree to apply the expedited procedures or summary procedures, it does not impact the determination that they 'accept punishment'.

Leniency refers to giving mitigated or commuted punishment to criminal suspects or defendants who have admitted guilt and accepted punishment.Leniency refers to giving mitigated or commuted punishment to criminal suspects or defendants who have admitted guilt and accepted punishment. Where criminal suspects or defendants who have legally-prescribed commuting factors admit guilt and accept punishment, the sentence shall be commuted on the basis of the type of crime, it's circumstances, and the degree of harm to society.

Article 5: In any of the following circumstances, the plea leniency system is not to be applied:

(1) Where a criminal suspect or defendant is a mentally ill person who has not completely lost the ability to recognize or control his or her behavior;

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

(3) Where the criminal suspect or defendant's conduct does not constitute a crime;

(4) Others situations where application would be inappropriate.

Article 6: In the following cases, the plea leniency system shall be cautiously applied:

(1)Cases of endangering national security or involving terrorist activity, organized crime, or cults;

(2) Cases that have a vile social impact;

(3) Cases where the criminal suspect or defendant is a repeat offender or professional criminal;

(4) Cases where the criminal suspect or defendant has deep subjective malice and is very personally dangerous;

(5) other cases, where the plea leniency system shall be cautiously applied:

Article 7: In joint crimes where some of the criminal suspects or defendants admit guilt and accept punishment, the plea leniency system may be applied for those criminal suspects or defendants who admit guilt and accept punishment.

Chapter III: Key work points

Section 1: Understanding Standards of Evidence

Article 8: People's courts trying cases where the defendant admits guilt and accepts punishment shall uphold the principle of evidence-based judgments, so that the main criminal facts are clear and the main evidence is credible and sufficient, with facts of the elements constituting the crime and the main sentencing circumstances clear, and the main criminal facts have evidence confirming them and there are no contradictions between evidence forming connections, or the contradictions can be reasonably eliminated.

Where there is no way to clarify the specific time, place, or details of the crime, it may be expressed generally without impacting the establishment of the facts of the crime.

Article 9: Handling of plea cases shall strictly grasp whether the facts are clear and the primary evidence is complete, where the evidence has any serious flaws, there are any major contradictions that cannot be excluded or there might be any situations that violate legally-prescribed procedures in collecting evidence, the plea leniency system must not be applied.

Section 2: Ensuring procedural rights

Article 10: The plea system shall ensure that criminal suspects and defendants receive legal assistance by means of setting up duty lawyer windows.

Article 11: People's courts and people's procuratorates handling plea leniency cases shall follow the provisions of the "Measures" to inform criminal suspects or defendants that they have the rights to retain a defender and apply for legal aid, where they have not defender, duty lawyers shall be informed to provide them with legal assistance.

Where criminal suspects or defendants refuse to have the duty lawyers provide them with legal assistance, this shall be recorded in writing, but when signing the affidavit, the people's procuratorate shall inform the duty lawyer to be present.

Article 12: People's courts and people's procuratorates handling plea cases shall inform criminal suspects or defendants of the plea leniency system and the legal consequences it might products, and ensure that the criminal suspects or defendants admission of guilt and acceptance of punishment is done only in situations where they receive effective legal assistance.

Article 13: People's courts and people's procuratorates handling plea cases shall verify the voluntariness and lawfulness of criminal suspects or defendants' admissions of guilt and acceptance of punishment.

Article 14: Where the criminal suspect or defendant voluntarily admits guilt, agrees to the sentencing recommendation, and to the applicable procedures, a "Notice of Plea Leniency System" and "Affidavit Admitting Guilt and Accepting Punishment" shall be signed with the defender or duty lawyer present.

Article 15: In cases where the people's procuratorate suggests that the people's court applies the plea leniency system, the following materials shall be transferred with the case:

(1) Materials from hearing the defender or duty lawyer's opinions;

(2) The affidavit signed by the criminal suspect and materials proving that the defender or duty lawyer was present when the affidavit was signed;

(3) The written sentencing recommendation and recommendation of legal procedures to be applied;

(4) Evidence relating to restitution, returning stolen goods, compensation, and so forth;

(5) The name, work unit, and contact information of the the defender or duty lawyer.

Article 16: Where during the review for prosecution phase the duty lawyer has already provided legal assistance to the criminal suspect, the people's court will usually not separately provide another duty lawyer, but where upon review it is found that the duty lawyer has not provided effective legal assistance, or the where the defendant actively requests that the court provide legal assistance, it may be separately provided.

Section 3: Application of sentencing recommendations

Article 17: In cases applying the plea leniency system, where it is lawfully decided to initiate a public prosecution, the case handling personnel shall draft a 'written sentencing recommendation", and the sentencing recommendation shall usually include primary penalties, supplementary penalties, and methods for enforcing the punishment.

Where a sentence of a prison term, controlled release, or short-term detention is recommended, a relatively clear sentencing range should be provided on the basis of the circumstances of the case. In principle, in cases where the legally prescribed penalty is under three years, the sentencing range should not exceed 6 months; where the legally prescribed penalty is 3-10 years, the sentencing range should not exceed 1 year; and where 10 years or higher, it is not to exceed 2 years.

Where a sentence of up to three years imprisonment is recommended, the methods for enforcing the punishment shall be made clear.

Sentencing recommendations for supplementary punishments shall usually propose a specific amount.

Article 18: When people's procuratorates apply the plea leniency system to make sentencing recommendation, they shall strictly distinguish between defendants' admissions of guilt and acceptance of punishment at different procedural phases:

(1) defendants who admit guilt and accept punishment during the review for prosecution phase, in principle may have the base sentence reduced by up to 30%;

(2) defendants who admit guilt and accept punishment during the trial phase, in principle may have the base sentence reduced by up to 20%; Upon the people's court and people's procuratorate negotiating a consensus, the base penalty may be reduced by up to 30%.

Article 19: When the people's court lawfully makes a judgment in a plea case, the charges and sentencing recommendation are usually adopted. Where it is found that the people's procuratorate's sentencing recommendation is clearly improper, the people's courts may recommend that the people's procuratorate adjust their sentencing recommendation, and where the people's procuratorate does not agree to make adjustments, or where after adjustments the defendant or their defender express objections or where the people's court still feels that the sentencing recommendation is clearly improper, the case is not to again apply the plea leniency system, and should make a judgment in accordance with law.

Section 4: Other Issues

Article 20: People's procuratorates handling plea leniency cases shall hear the opinions of the victims and their representatives, and make whether the criminal suspect has reached a settlement agreement with victims or compensated victims' losses and obtained victims' forgiveness, an important factor in proposing a sentencing recommendation, and where a settlement has been reached or the victims' forgiveness has been acquired, they shall transfer relevant materials with the case.

Article 21: Where the people's procuratorates recommend applying non-custodial penalties, they shall promptly entrust the judicial-administrative organs for the criminal suspects' residences to conduct an investigation and appraisal. Where criminal suspects have household registrations outside the province, the people's procuratorates should coordinate with the public security organs, establish mechanisms for earlier involvement, and where upon review it is found necessary to commission an investigation and assessment, have the public security organs assist in handling it. Where the people's procuratorates have already commissioned an investigation and assessment, but the written outcomes have not been returned, the people's procuratorate may inform the judicial-administrative organs to have the written assessment report directly sent to the people's court before the first-instance trial.

Where people's procuratorates have not recommended applying an non-custodial penalty, but the people's court finds that it might give a non-custodial sentence, the people's court is to retain the judicial-administrative organs to conduct an investigation and assessment.

Where the people's courts find that the defendant meets the requirements for non-custodial punishments and that there is no need for to commission an assessment investigation, they may directly apply the non-custodial punishment.

Chapter IV: Applicable Procedures.

Article 22: Cases applying the plea leniency system include all plea cases in the jurisdiction of the basic level people's courts, and also all first-instance trial and second-instance trials in the intermediate people's courts:

(1) Those within the jurisdiction of basic level people's courts that might have a sentence of up to 3 years fixed-term imprisonment, where the facts are clear and the evidence is sufficient, and where the criminal suspect admits guilt, accepts punishment and agrees to applying the expedited procedures, may apply the expedited procedures.

(2) Cases within the jurisdiction of basic level people's courts that might have a sentence of more than 3 years fixed-term imprisonment, where the criminal suspect admits guilt and accepts punishment, the may lawfully apply the summary procedures at trial.

(3) first-instance trial cases in the jurisdiction of the intermediate people's courts where the criminal suspect admits guilt and accepts punishment, are to apply the ordinary procedures, but the periods for service and delivery are not restricted by provisions of the Criminal Procedure Law. The indictment is not read out during the court investigation phase, interrogation is not conducted, evidence is directly presented, and courtroom debate is conducted, but the defendant's final statement should be ensured. Evidence over which the prosecution and defense have no objections may just have an explanation made as to the name of the evidence and the facts that it proves.

(4) People's courts hearing cases where the defendant admits guilt and accepts punishment during the second-instance trial phase may choose to not conduct court investigation, and directly have the prosecution and defense conduct courtroom debate on sentencing, and have the defendant make a final statement.

Article 23: In any of the following circumstances, do not apply the expedited procedures:

(1) Where the defendant is blind, deaf, or mute

(2) Where the case is difficult, complicated or has 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 suits;

(5) Where the application of expedited procedures procedures is otherwise inappropriate.

Article 24: Where defendants refute criminal facts during the review for prosecution phase but express that they admit guilt and accept punishment when the copy of the indictment is served, the people's courts shall inform the people's procuratorate in writing, and the people's procuratorate is to verify it and make a decision on whether to initiate the plea leniency system, and inform the people's court in writing of the verification situation within 7 days. Upon the people's procuratorate's decision to apply the plea leniency system, the people's procuratorate is to separately transfer relevant evidence materials to the people's court.

Article 25: In plea cases applying the summary procedures or ordinary procedures, where people's procuratorates submit an indictment to the people's court, they shall clearly indicate circumstances of defendant's admitting guilt and accepting punishment in the indictment, concurrently draft a sentencing recommendation, and read it aloud when announcing the public prosecution opinions.

The sentencing recommendation for expedited cases should be read aloud with the indictment in expedited cases.

Article 26: In any of the following circumstances, the case is to stop applying the plea leniency system and it should change to the ordinary procedures for trial:

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

(2) the defendant denies the alleged criminal facts;

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

(4) Other circumstance that might impact the fairness of trial.

Article 27: The people's procuratorates shall actively coordinate with the people's courts, and establish centralized trial mechanisms for cases applying the plea leniency system.

Article 28: Where during the first-instance trial phase there was no admission of guilt and acceptance of punishment, but the appellant (former defendant) proposes admitting guilt and accepting punishment before the period for appeals is complete, they must submit a written application, where they have not proposed admitting guilt and accepting punishment within the period for appeals, the plea leniency system is not initiated during the second-instance trial phase. Where a defender is not retained during the first-instance trial period, but is retained during the second-instance trial period, or where after changing defenders in the second-instance trial period they decide to admit guilt and accept punishment, the defender shall promptly propose it, and where the people's court and people's procuratorate find that the requirements are met, are to handle it with reference to the first-instance trial procedures for admitting guilt and accepting punishment.

Article 29: In cases originally tried in accordance with the plea leniency procedures, where the defendant is not satisfied with the judgment and submits an appeal and the conditions for admitting guilt and accepting punishment are no longer met, the original prosecuting organ may raise a procuratorial counter-appeal.

Chapter V: Supplementary Provisions

Article 30: Relevant provisions from the previous expedited procedures may be consulted in implementation, except where these provisions provide otherwise.

Article 31: Where these Provisions have provisions for handling of cases where criminal suspects or defendants admit guilt and accept punishment, follow those provisions; where these provisions are silent, apply the relevant provisions of the Criminal Law, Criminal Procedure Law, and so forth.

Article 32: These provisions take effect from their date of issuance, where laws, administrative regulations, judicial interpretations, or new provisions of higher level judicial organs have new provisions, implementation is in accordance with those provisions.

 

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