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Promulgation Date: 2020-5-11 Title: 关于印发《人民检察院办理认罪认罚案件监督管理办法》的通知 Document Number: Expiration date: Promulgating Entities:Supreme People's Procuratorate Source of text: http://news.jcrb.com/jsxw/2020/202005/t20200518_2157347.html
Article 1: These measures are drafted on the basis of the "Criminal Procedure Law", "people's procuratorate Rules of Criminal Procedure", and the "Opinions on Strengthening Oversight and Management of the Exercise of Judicial Authority", together with actual conditions of procuratorial work, so as to complete mechanisms for the oversight of the procuratorial power in handling plea leniency cases, to strengthen prevention of control of risks to procuratorial integrity in case-handling, and to ensure the lawful and regular application of the system of leniency for those who confess and accept punishment [Plea Leniency System].
Article 2: The strengthening of oversight and management of procurators handling plea leniency cases shall adhere to the following principles:
(1) persisting in combining the strengthening of oversight and management of case-handling activities and protecting procurators' lawful exercise of authority;
(2) persisting in combining procurators' primary case-handling duties and sorting oversight and management duties by level and type;
(3) persisting in combining case management and oversight and procedural controls with information tracing and transparency;
(4) persist in combining the strengthening of internal procuratorate oversight and management with external oversight and restraints;
Article 3: In handling plea leniency cases, procurators shall lawfully perform each legally-prescribed duty such as hearing the opinions of the criminal suspect or defendant and their defender or duty lawyer, the victims and their agent ad litem, and lawfully ensure the procedural rights of criminal suspects or defendants and the voluntariness, veracity, and lawfulness of the plea.
Hearing of opinions may be conducted in person or by other means such as telephone or video, and the circumstances shall be recorded in the case file; written opinions shall be attached to the case file. The procurators handling the case shall earnestly review relevant comments and write review opinions in the case review report.
Article 4: Where defenders or victims and their agents ad litem request to give their opinions in person, the procurators shall meet with them during work hours and in the workplace. Where it is truly necessary to meet outside of work hours or workplaces for special and legitimate reasons, procurators shall follow relevant provisions to complete approval requirements and obtain approval before they may meet. Where there is contact to hear relevant opinions outside of work hours or workplaces for unclear reasons or other reasons, this shall be reported to the procuratorate that day or the following day.
Where defenders or victims and their agents ad litem submit written opinions or evidence materials in person, the procurators shall learn the purpose of the submitted materials, their source, and their primary content, and record this in the case file, attach the relevant materials to the case file, and issue a receipt.
When hearing opinions in person, procurators must not have less than two persons present, and when necessary may conduct simultaneous audio or video recording.
Article 5: In handling plea leniency cases, procurators shall lawfully submit sentencing recommendations within the scope of their authority. Before determining and submitting the sentencing recommendation, they shall fully hear the opinions of the criminal suspect or defendant, defender, or duty lawyers, to truly carry out negotiation and to ensure that the sentencing recommendation lawfully reflects leniency and appropriateness in accordance with law, and have the criminal suspect or defendant sign a plea affidavit after a consensus has been reached through negotiation.
Article 6: Procurators submitting sentencing recommendations shall maintain basic balance with the trial organs' penalty scale for that type of case with similar circumstances. The grounds and basis for the sentencing recommendation shall be explained in the indictment document, but cases intending to use the expedited procedures at trial may have a summary explanation in the indictment, and cases intending to use the simplified or ordinary procedures at trial shall give a full explanation in the indictment or sentencing recommendation.
Article 7: Where after an indictment is made in the case, new sentencing circumstances appear or the judge finds that the sentencing recommendation is clearly improper upon review and recommends that the procurator adjust it, or where the defendant or defender submits an objection to the sentencing recommendation, the procurator may make adjustments in light of the circumstances. If the original sentencing recommendation was submitted by the procurator, after the procurator adjusts the sentencing recommendation it shall be reported to the person in charge of the department to be filed for the record; if the original sentencing recommendation was made by the chief procurator (deputy chief procurator) the procurator is to report to the chief procurator (deputy chief procurator) for a decision.
Article 8: Where the following circumstances appear in handling plea leniency cases, procurators shall report internally to the department head:
(1) The outcome of the case handling might be clearly inconsistent with the outcomes of the same type of case or related cases;
(2) There is a major difference of opinions on case handling with the supervision organs, investigating organs, or people's courts;
(3) Where adjustment of the sentencing recommendation is proposed after criminal suspects or defendants sign a plea affidavit;
(4) Where a sentencing recommendation is clearly out of balance in comparison with the same type of cases due to special circumstances in the case;
(5) Where the indictment is changed or supplemented;
(6) Where the criminal suspect or defendant admits guilt and accepts punishment, but the system of leniency for those who confess and accept punishment will not be applied;
(7) Where the court recommends that the sentencing recommendation be adjusted or rules to not accept the sentencing recommendation;
(8) The defendant, defender, or duty lawyers have a major difference of opinion as to the determination of facts, nature of the case, or sentencing recommendation;
(9) The defendant decides to appeal after the first-instance trial judgment;
(10) Other circumstances that shall be reported.
Where the person in charge of the department or deputy chief procurator handling the case encounters the circumstances above, they shall report it to the leadership of the level above.
Article 9: In cases where the criminal suspects' crimes are lighter and they admit guilt and accept punishment, where the procurator proposes making a decision to not approve arrest or to not prosecute, they shall report to the chief procurator for a decision. Before reporting to the chief procurator for a decision, they may request that the person in charge of the department convene a joint meeting of procurators to research and discuss it. The joint meeting of procurators may be composed of all procurators in that department or may also be composed of 3 or more procurators (not including the procurator handling the matter).
Based on the type of case and the key points for discussion, the procurators participating in the joint meeting shall use methods such as reviewing the case file, the case review report, and the overview of by the procurator handling the matter to participate in discussions and express opinions on a foundation of correctly understanding the facts and circumstances of the case, to provide a reference for the procurator handling the matter in making decisions, and sing the record of the discussion in confirmation.
Where the joint meeting of procurators' discussion opinions are in consensus or form a majority opinion, the procurator handling the matter is to make a decision themselves or report for a decision in accordance with provisions on procurators' allocation of authority. Where there is a large discrepancy between the opinions of the procurator handling the matter and the majority opinion, it shall be submitted to the chief procurator (deputy chief procurator) after reviewing by the person in charge of the department.
Article 10: Public hearings or evidence may be conducted in the following plea leniency cases where there a decision to not arrest or not prosecute is proposed:
(1) The victims do not give forgiveness or do not agree to a lenient disposition;
(2) there is a definite social impact and there is a need to explain the law or case circumstances to the public;
(3) the parties repeatedly petition regarding the proceedings, leading to unresolved social conflict;
(4) Where in areas closely related to the people's lives such as food, medicine, education, or the environment, a public hearing is conducive to promoting rule of law or advancing overall social governance;
(5) The case is an example or has significance for rule of law publicity and education.
People's procuratorates handling plea cases shall follow provisions to accept oversight by people's supervisors. Plea cases with open hearings may invite people's supervisors to participate, and hear the people's supervisors' opinions on case facts, evidence, or dispositions.
Article 11: The chief procurator, deputy chief procurator, and department heads should earnestly implement oversight and management duties during procurators' handling of cases, and bear primary responsibility for strictly implementing comprehensive party governance and governance of the procuratorate, and the departments such as for oversight and inspections of procuratorial affairs and for case management are to bear corresponding responsibility for supervision and management, conscientiously accepting the oversight and inspections of the supervision body based in the procuratorate, and promptly transferring suspected violations of law or discipline to the supervision body as provided.
Article 12: In addition to taking on cases as a procurator and performing procurator duties, department heads shall also perform the following oversight duties:
(1) Hear or request that procurators report about case-handling;
(2) In conducting oversight of plea cases handled by procurators, when necessary review the case file and materials related to the case, request that the procurators handling the matter explain the circumstances of the case, or request that procurators re-examine, supplement, or improve evidence;
(3) convene joint meetings of procurators, or convene and moderate a joint meeting in response to a procurator's request;
(4) After review and making comments on the handling, report matters that the chief procurator (deputy chief procurator) must decide to the chief procurator (deputy chief procurator) for the decision.
(5) Periodically organize analysis or summary reports on the department's case handling, guide procurators in understanding laws and policies on understanding the balance in issues such aw whether to arrest and whether to prosecute and on sentencing recommendations and request that the procuratorial committee deliberate and make a decision;
(6) Other duties that shall be performed, or duties that the chief procurator (deputy chief procurator) authorized performance of.
Article 13: Where the following circumstances appear in procurators handling of cases, the department head or deputy chief procurator shall report to the chief procurator for a decision:
(1) There is a difference of opinion between the opinion on handling and the majority opinion of the joint meeting of procurators;
(2) There is a major difference of opinion between the case handling and the supervision organs, investigating organs, or people's court that needs to be sent to the chief procurator (deputy chief procurator) for a decision);
(3) It is discovered the handling opinions submitted by the procurator are in error, the sentencing recommendation is clearly improper, or clearly imbalanced, and the procurator shall be promptly alerted, but after being alerted the procurator handling the matter still persists in their opinion on handling or sentencing recommendation;
(4) The indictment is amended or supplemented;
(5) Other circumstances that shall be reported.
Article 14: In addition to taking on cases as a procurator and performing procurator duties, chief procurators (deputy chief procurators) shall also perform the following duties:
(1) Hear or request that procurators report about case-handling;
(2) Conduct oversight and management of procurators' case-handling activities;
(3) Shall correct procurators found to be incorrectly performing their duties;
(4) Make decisions within the scope of their authority in plea cases handled by procurators, based on their list of authority;
(5) Hear the department heads' reports on the handling of plea cases;
(6) Request that department heads periodically make analytic or summary reports on the procuratorates handling of plea cases, including understanding of laws and policies, summarizing applicable case handling experience, clarifying rules, and so forth, and submitting this for deliberation by the procuratorial committee, and when necessary reporting to the procuratorate at the level above;
(7) Other duties that shall be performed in accordance with law.
Article 15: Where chief procurators (deputy chief procurators) discover improper handling of plea cases by procurators, they may request that the procurator review it and may also directly make a decision or request that the procuratorial committee deliberate and make a decision. Where chief procurators (deputy chief procurators) discover improper handling of plea cases by procurators, they may request that the procurator review it and may also directly make a decision or request that the procuratorial committee deliberate and make a decision.
Article 16: Case management departments shall perform the following oversight and management duties for plea cases:
(1) Conduct case flow control by overseeing case-handling periods, procedural rights safeguards, standardization of document drafting, and so forth;
(2) Organize case evaluation reviews, and promptly report important situations discovered in the reviews to the chief procurator;
(3) Where conduct in violation of procurators' duties is discovered, or leads on violations of discipline and law, promptly transfer them to the relevant department;
(4) Other duties that shall be performed in accordance with law.
Article 17: Cases with the following situations shall be the focus for evaluation reviews, with review conducted after approval by the chief procurator (deputy chief procurator) and organized by the case management or case-handling departments:
(1) Procurators make handling decisions exceeding the scope of their authorization or authority;
(2) The original decision was changed after reconsideration, review, or re-examination;
(3) The sentencing recommendation is clearly improper;
(4) The criminal suspect or defendant recants their confession after the plea;
(5) Parties are dissatisfied with the people's procuratorate's handling decision and submit an appeal;
(6) The ruling of the people's court is a not-guilty verdict or modifies the charged offense, or new important circumstances are discovered that impact the verdict or sentencing;
(7) Other circumstances that need to be the focus of review.
Article 18: The department for oversight and inspection of procuratorial affairs shall guide the case-handling department in completing efforts to prevent and control integrity risks in plea cases and oversight of procurators performance of their duties and efforts to punish them for not performing their duties, focusing on performing the following oversight duties:
(1) Conducting oversight of law enforcement situations such as procurators enforcement of laws, normative documents, and provisions or decisions of the Supreme People's Procuratorate in the handling of plea cases;
(2) Where violations of procurators duties by procurators are discovered during law enforcement oversight and inspections, inspection patrols, pursuit of accountability and punishment, or internal audits, as well those reported or complained of by relevant units and individuals, and conduct investigations and issue opinions in accordance with their authority;
(3) In cases of procurators violating procurator duties and prying into cases against rules, improperly contacting parties as well as their lawyers and people with special interests, intermediate organizations and other stakeholders, conduct investigations based on their authority and present opinions on handling;
(4) Strengthen work guidance and the establishment of systems for controlling integrity risks aimed at integrity risks in handling plea cases, and carry out education on integrity in judicial case handling;
(5) Other circumstances that shall be overseen.
Article 19: Higher level people's procuratorates should perform guidance, oversight, and management duties for lower level people's procuratorates handling plea cases, periodically reporting analysis and summaries of the overall case-handling situation in that jurisdiction, using methods such as case guidance, filing for review, special inspections and backchecks into wrongfully decided cases, and reviewing decisions to conduct oversight of lower level people's procuratorates' handling of plea cases. Submit oversight corrective opinions where there are serious flaws or irregular judicial conduct. Where case-handling decisions are truly in error, it is to be lawfully corrected by instructing the people's procuratorate at the lower level to approve arrest, initiate a prosecution, submit a protest appeal or to revoke the arrest or withdraw the prosecution.
Article 20: People's procuratorates handling plea cases shall disclose the cases' procedural information, important case information, and legal documents in accordance with provisions, and accept public oversight.
Article 21: Strictly implement provisions on the recording and stern accountability of leading cadres interfering with judicial activities or tampering with the handling of specific cases, internal judicial personnel or others prying into cases, and judicial personnel's improper contacts and interactions.
Procurators shall truthfully record activities interfering or meddling with cases, and improper contacts with parties, lawyers, persons with special relationships, or intermediary organizations, and promptly report them to the department heads.
Where chief procurators, deputy chief procurators, and department heads give guiding opinions to procurators orally or through methods such as text, wechat, or telephone, after the procurators record it in the case, they shall handle it in accordance with procedures.
Article 22: Where parties, lawyers, and so forth make reports or accusations about procurators violating laws in handling plea cases, or having negligent conduct, and provide relevant leads or evidence; the chief procurator (deputy chief procurator) may request that the procurator report on the case-handling situation. Where chief procurators (deputy chief procurators) find it necessary, they may change the procurator handling the matter and transfer the leads on procurators suspected violations of procurator duties, discipline, or law to the relevant departments and record the relevant circumstances in the case.
Article 23: Conduct performance evaluations of the quality and efficacy of procurators' handling of plea cases and their case handling activities and include the evaluation outcomes in their judicial performance files to be an important basis for rewards and punishments, promotions, adjustment of positions, rank, and salary, and for off-post training, removals, demotions, and dismissals.
Article 24: Where procurators intentional violations of laws and regulations or gross negligence leads to errors in case-handling that cause serious consequences, they shall bear judicial responsibility.
Where procurators do not comply with laws and relevant provisions in the dertermination of facts, acceptance of evidence, case handling procedures, document drafting, as well as in judicial work styles or other such areas, and there are judicial flaws but they do not impact the correctness or validity of the conclusions, handle it in accordance with provisions on discipline.
Article 25: Where procurators with oversight and management duties cause serious consequences through lax or improper performance of their duties, they shall bear judicial responsibility.