People's Procuratorate Rules for Reviews of Criminal Appeals 2014

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Title: People's Procuratorate Rules for Reviews of Criminal Appeals

Promulgating Entities:Supreme People's Procuratorate

Reference number:

Promulgation Date: 2014-10-27

Expiration date:

Source of text: Procuratorial Daily, November 21, 2014, page 03
[Full text ]:

People's Procuratorate Rules for Reviews of Criminal Appeals

Supreme People's Procuratorate

Notice on the Issuance of the "People's Procuratorate Rules for Reviews of Criminal Appeals"

People's procuratorates of all provinces, autonomous regions and directly governed municipalities; military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:

The "People's Procuratorate Rules for Reviews of Criminal Appeals" was already passed by the 20th meeting of the 12th prosecution committee of the Supreme People's Procuratorate on April 29, 2014. and is hereby released to you for your earnest implementation. Please promptly inform the Supreme People's Procuratorate of any problems encountered in implementation.

Supreme People's Procuratorate

10/27/2014

People's Procuratorate Rules for Reviews of Criminal Appeals

(Passed by the 20th meeting of the twelfth procuratorate committee of the Supreme People's Court on April 29, 2014)

Contents

Chapter I:General Provisions

Chapter II:Jurisdiction

Chapter III:Acceptance

Chapter IV:Case Filing

Chapter V:Review

Section 1:Ordinary Provisions

Section 2:Review of Appeals over dissatisfaction with a procuratorate criminal disposition decision to conclude the lawsuit.

Section 3:Review of appeals arising from dissatisfaction with an already effective court judgment or Ruling

Chapter VI:Other Provisions

Chapter VII:Supplementary Provisions

Chapter I:General Provisions

Article 1: These Rules are formulated on the basis of the "Criminal Procedure Law of the People's Republic of China" , the "People's Procuratorate Organizational Law of the People's Republic of China" and relevant legal provisions, combined with the actual experience of the people's procuratorate in reviewing criminal appeals, so as to strengthen the people's procuratorate's duty to supervise the law and to improve internal control mechanisms.

Article 2: The task of people's procuratorates in reviewing cases of criminal appeals is to use the review of criminal appeals to correct erroneous decisions, judgments and rulings; to maintain correct decisions, judgments and rulings, to protect the lawful rights and interests of the appellant, advance judicial fairness, and ensure the correct and uniform implementation of the nation's laws.

Article 3: People's procuratorates reviewing cases of criminal appeals shall abide by the following principles:

(1) The separation of original case handling authority and collateral appeal review authority;

(2) Review in accordance with the procedures provided by law;

(3) Openness and fairness in the entire case review;

(4) True to the facts, making corrections in accordance with law.

Article 4: People's procuratorates reviewing cases of criminal appeals may, on the bases of case handling needs, carry out public examination using models such as open hearings, open displays of evidence, open argumentation and open responses.

Article 5: Criminal appeals as used in these Rules, refers to appeals submitted to a people's procuratorate over dissatisfaction with a people's procuratorate's decision to terminate a prosecution or with an effective criminal judgment or ruling by a people's court.

Chapter II:Jurisdiction

Article 6: People's procuratorate's department for review of criminal appeals have jurisdiction over the following criminal appeals:

(1) Appeals over dissatisfaction with a people's procuratorate decision to not approve arrest due to there being no criminal facts on the criminal suspect or because there were circumstances meeting the requirements of article 15 of the Criminal Procedure Law of the People's Republic of China;

(2) Appeals over dissatisfaction with a people's procuratorate decision not to prosecute;

(3) Appeals over dissatisfaction with a people's procuratorate decision to withdraw a case;

(4) Appeals over dissatisfaction with other people's procuratorate criminal disposition decisions ending litigation.

(5) Appeals over dissatisfaction with effective judgments or rulings by a people's court, except as otherwise provided by these Rules.

Article 7: Appeals over dissatisfaction with people's procuratorate decisions listed below that are not within the jurisdiction of the criminal appeals prosecution department shall be handled separately by the relevant function department of the people's procuratorate on the basis of the "People's Procuratorate Rules of Criminal Procedure (Provisional) and other relevant provisions.

(1) Appeals over disatisfaction of a people's procuratorate decision not to approve arrest because the facts are unclear and evidence insufficient, where supplementary investigation is necessary;

(2) Appeals over dissatisfaction with a people's procuratorate decision not to arrest where although there was sufficient evidence to show the criminal facts, the criminal suspect could not be given a punishment of 1 year or more imprisonment, or where a punishment of 1 year or more imprisonment could be given but not arresting would not endanger society.

(3) Appeals over dissatisfaction with a people's procuratorate decision not to arrest because the criminal suspect to be arrested suffers from a serious illness, cannot care for themself or is pregnant or is currently nursing their own infant, or is the only care giver for a person unable to care for themself.

(4) Appeals over dissatisfaction with a people's procuratorate decision to not file a case;

(5) Appeals over dissatisfaction with a people's procuratorate conditional non-prosecution decision;

(6) Appeals over dissatisfaction with a people's procuratorate decision to seal, seize or freeze assets involved in a case;

(7) Appeals over dissatisfaction with a people's procuratorate reconsideration, review or re-examination of the decisions described above.

Article 8: Appeals over disatisfaction with a a final judgment or ruling for the death penalty made by the People’s Court shall be handled by the detention facility’s inspection department

Article 9: Basic level people's procuratorate have jurisdiction over the following criminal appeals:

(1) Appeals over dissatisfaction with a decision by that procuratorate which concludes criminal handling; except as otherwise provided for by in these Provisions.

(2) Appeals over dissatisfaction with effective judgments or rulings by a people's court at the same level.

Article 10: People's procuratorates at the branch, prefecture or municipality level or above have jurisdiction over the following appeals:

(1) Appeals over dissatisfaction with a decision by that procuratorate which concludes criminal handling; except as otherwise provided for by in these Provisions.

(2) Appeals over dissatisfaction with effective judgments or rulings by a people's court at the same level;

(3) Appeals where the victim is dissatisfied with a lower level procuratorate's decision to not prosecute and submits an appeal within 7 days of receiving the decision to not prosecute;

(4) Appeals over dissatisfaction with the original handling decision, judgment or ruling, that have gone through review or examination by the people's procuratorate at the level below.

Article 11: Article 11: When necessary, the people's procuratorate at the level above may give criminal appeals cases within its jurisdiction to lower level people's procuratorates for handling, and may also directly handle criminal appeals cases within the jurisdiction of lower level people's procuratorates.

Chapter III: Acceptance

Article 12: People's procuratorates shall accept criminal appeals meeting the following requirements except as provided elsewhere by these rules:

(1) is a criminal appeal provided for in article 5 of these rules;

(2) meets the requirements of jurisdiction provisions in Chapter II of these rules.

(3) The appellant is a party to the original case, his legally-designated representative or close relative;

(4) The appeal materials are complete.

Where the appellant has retained a lawyer's representation in an appeal, and it meets the above requirements, it shall be accepted.

Article 13: When the appellant submits an appeal to the people's procuratorate, they shall hand over the written appeal, proof of identity, relevant legal documents and evidentiary materials or evidentiary leads.

"Proof of identity" means the resident identity card, military officer's ID, solider ID, passport or other valid certificates that can sufficiently demonstrate the identify of a natural person; and effective documents such as a copy of the business license or organization code certificate for legal persons and other organizations and proof of identity for the directly responsible persons. Upon verifying that proofs of identity are accurate, people's procuratorates retain a copy.

"Relevant legal documents" refers to legal documents such as people's procuratorate's written decisions, written decisions on re-examination of criminal appeals, notifications of re-examinations of criminal appeals, notifications of the outcome of review of criminal appeals, or a written judgment or ruling from a people's court.

Article 14: The written appeal submitted by the appellant shall clearly note the following matters:

(1) The appellant's name, sex, birth date, ethnicity, profession, work unit, and valid contact information; the name and location of a legal person or other organization, and its legally-designated representative or principle responsible party's name, title, and valid contact information;

(2) The demand of the appeal and the facts and reasoning for its basis;

(3) The time of the appeal with the appellants signature, affixed seal or fingerprint.

Where the appellant is unable to write and submits an appeal orally, a record shall be made and signed by the appellant or have his fingerprint affixed.

Article 15: Where parties in a private prosecution case, their legally-designated representatives or close relatives are dissatisfied with an effective judgment or ruling of a people's court and raise an appeal; or where parties to attached civil litigation in a criminal case, their legally-designated representatives or close relatives are dissatisfied with an effective judgment or ruling of a people's court and raise an appeal; the people's procuratorate shall accept it, except where the appellant is appealing to the people's procuratorate over dissatisfaction with a judgment or ruling made because an original case party or their legally-designated representative voluntarily waived procedural rights or did not perform relevant procedural obligations.

Article 16: The people's procuratorate accusation review department uniformly receives all criminal appeals. Accusation review departments receiving criminal appeals shall handle them within 7 days in accordance with the following distinct situations:

(1) where it is within the jurisdiction of that procuratorate and meets the requirements for acceptance, it shall be transferred to the relevant department of that procuratorate for handling;

(2) Where it is within the jurisdiction of the people's procuratorates but not within the jurisdiction of that procuratorate, the appellant shall be notified to submit to a people's procuratorate with jurisdiction or transfer the appeal materials to a people's procuratorate with jurisdiction ; where transferring appeal materials, the appellant shall be informed;

(3) Where it is not within the jurisdiction of the people's procuratorates, the appellant shall be informed to give feedback to the relevant organ.

Chapter IV: Case Filing

Article 17: Criminal appeals that meet the requirements for acceptance shall be reviewed by the designated persons and handled in according to the following distinct situations:

(1) Where upon review it is found to meet the requirements for re-examination for case filing, a report requesting case filing re-examination for the criminal appeal shall be drafted and a re-examination opinion submitted;

(2) Where upon review it is found to not meet requirements for re-examination for case filing, a review opinion concluding the case may be submitted. Where there is a review of the file, a criminal appeals review report shall be drafted.

Article 18: For criminal appeals meeting any of the following requirements, the case shall be filed and review after the department's responsible person or chief prosecutor approves:

(1) where the original decision, judgment or ruling might have error;

(2) where the victim or person being non-prosecuted is disatisfied with a decision to not prosecute and submits an appeal within 7 days of receiving the non-prosecution decision;

(3) Where the people's procuratorate at the level above or the chief procurator of that procuratorate assigns it.

Article 19: Whether the original decision, judgment or ruling might have error shall be reviewed from the following perspectives:

(1) whether the facts affirmed in the original decision, judgment or ruling are wrong;

(2) Whether the appellant has handed over new facts or evidence that might change the original handling conclusions;

(3) Where the evidence on which the case was based is credible and sufficient;

(4) Whether the evidence on which the case was based has contradictions or may be illegally acquired evidence;

(5) Whether the law was correctly applied;

(6) Whether the disposition was appropriate;

(7) Whether there were circumstances of serious violations of litigation procedure;

(8) Where the case handling personnel had conduct such as graft, dereliction of duty or twisting the law and judgment in the course of case-handling;

(9) Whether there is other error in the original decision, judgment or ruling;

Article 20: For appeals over dissatisfaction with people's procuratorate decisions to terminate criminal proceedings, where upon case filing for re-examination by two levels of people's procuratorate and conclusion on re-examination by open review, the appellant has not raised new and sufficient reasoning, the case is not filed again for re-examination.

For appeals over dissatisfaction with an effective judgment or ruling from a people's court, if upon re-examination by the people's procuratorate handling the case and that at the provincial level, there are no new facts, evidence or reasoning, the case is not filed again for re-examination, except where the defendant in the orginal case might be pronounced not guilty or where there is a possibility of other major error in a judgment or ruling.

Article 21: Criminal appeals not meeting the requirements for case filing and re-examination may be closed on review upon the approval of the head of the department or chief procurator.

Article 22: In cases concluding on review, the appellant shall be informed of the result of the review. For review of the investigation file; a written notice of criminal appeals review conclusions may be drafted and sent to the applicant within 10 days.

Article 23: In accusation cases transferred by the prosecution department, the written review conclusions shall be returned to the prosecution department for accusations.

Article 24: In review of criminal appeals, a decision shall be made within 2 months of its receipt either to conclude on review or to file and re-examine the case.

For reviews of the case file, the period for review is calculated from the day on which the file is completely acquired.

In major, difficult or complicated cases, the period for review may be appropriately extended upon approval by the department head or chief procurator.

Chapter V: Re-examination

Section 1: Ordinary Provisions

Article 25: Reviewing of cases of criminal appeals shall be conducted by two or more procurators and the personnel who handled the original case or the orignal re-examination of an appeals case do not participate in case handling again.

Article 26: Reviewing cases of criminal appeals shall fully review the appeal materials and entire case file, and draft a record of case file review.

Article 27: Upon review, where there are any of the following circumstance and investigation and verification is deemed necessary, an investigation roadmap shall be made for conducting supplementary investigation.

(1) the original case facts are unclear or the evidence insufficient;

(2) where the appellant has provided new facts, evidence, or evidentiary leads;

(3) there are other issues that need to be investigated and confirmed.

Article 28: Where it is found necessary to review records such as of inquisitions, reviews, identifications and investigative tests or evaluation opinions related to the case; a review may be conducted and an evaluation or supplementary evaluation may also be conducted on specialized issues.

Article 29: The parties, witnesses and other relevant personnel may be questioned in reviewing cases of criminal appeals.

In criminal appeals cases where the original judgment or ruling is truly in error and it is found necessary to submit a procuratorial counter-appeal and a procuratorial counter-appeal is submitted, the original defendant shall be questioned or interrogated.

Article 30: The appellant's opinions shall be heard in reviewing cases of criminal appeals to check relevant issues.

Article 31: An investigation record shall be drafted when conducting questioning, interrogation or other investigation activities in the course of handling a criminal appeals case.

Article 32: An investigation record shall be drafted when conducting questioning, interrogation or other investigation activities in the course of handling a criminal appeals case. Investigators shall also sign the record.

Article 33: Criminal appeals cases concluded on re-examination shall have already clearly reviewed the case facts, evidence, applicable law, litigation procedures and also other circumstances that might influence case handling, so that a clear re-examination conclusion can be reached.

Article 34: The persons undertaking criminal appeals cases concluded on re-examination shall draft a criminal appeals re-examination conclusions report, raise opinions for disposition, and after group deliberation report the circumstances to the chief procurator for a decision; in major, difficult or complicated cases, report to the chief procurator or the procuratorial committee for a decision.

In cases where the procuratorial committee decides, the procuratorial committee's written decision and deliberation records shall be attached to the case file.

Article 35: Lower level people's procuratorates shall handle cases assigned by higher level people's procuratorates in accordance with law, and report conclusions to the higher level people's procuratorate.

Lower level people's procuratorates shall file and re-examine criminal appeals cases assigned by higher level people's procuratorates that are within their jurisdiction, and must not again assign them to a level below.

Article 36: Review of cases of criminal appeals shall be completed within 3 months of case filing. For assigned cases of criminal appeals, the lower level people's procuratorate with jurisdiction shall file the case and examine it within 10 days after receiving the assignment document and the period for handling will follow the preceding paragraph's provisions.

For assigned cases of criminal appeals, the lower level people's procuratorate with jurisdiction shall file the case and examine it within 10 days after receiving the assignment document and the period for handling will follow the preceding paragraph's provisions. Where cases cannot be handled within the time, the circumstances shall be explained in writing to the people's procuratorate at the level above that assigned it.

Section 2: Review of appeals due to disatisfaction with a people's procuratorate decision ending a criminal case.

Article 37: If the victim appeals a decision to not prosecute within seven days of receiving the decision, the prosecutorial department of criminal appeals from the people’s procuratorate at the level above shall file the case for review.

Where the victim files a petition with the People’s Procuratorate that decided against prosecution, that People’s Procuratorate shall submit petition materials and case files to the next higher-level People’s Procuratorate.

Article 38: Where the victim is not satisfied with a decision to not prosecute and files an appeal within seven days of receiving the decision to not prosecute, the prosecutorial department of criminal appeals from the People’s Procuratorate that made the non-prosecution decision shall determine whether to file the case for re-examination.

Article 39: Where the person not being prosecuted is not satisfied with a decision to not prosecute and files an appeal within seven days of receiving the decision to not prosecute,A the prosecutorial department of criminal appeals from the People’s Procuratorate that made the non-prosecution decision shall determine whether to file the case for review, and conduct an examination; where an appeal is submitted after seven days of their receiving the non-prosecution decision, the prosecutorial department of criminal appeals from the people's procuratorate that made the decision to not prosecute reviews and decides whether to file the case for re-examination.

Article 40: After the review of a appeal arising from disatisfaction with a people's procuratorate non-prosecution decision, it shall be handled discretely as follows:

(1) Where the non-prosecution decision is correct, sustain it.

(2) Where there is error in the facts found or the application of the law in the non-prosecution decision that needs to be modified, the non-prosecution decision shall be modified;

(3) Where there is error in the facts found or the application of the law in the non-prosecution decision and the person who was not prosecuted shall be prosecuted, the non-prosecution decision shall be withdrawn and the case transferred to a people's procuratorate with jurisdiction or the relevant department of that procuratorate will raise a prosecution in the people's court.

Article 41: After reconsideration of an appeal over dissatisfaction with a people's procuratorate decision not to approve arrest, it shall be handled discretely as follows:

(1) Where the decision no to approve arrest is correct, sustain it.

(2) Where the decision not to approve arrest is correct, but it is necessary to pursue criminal responsibility in accordance with law, the decision to not approve arrest shall be sustained and the case transferred to a people's procuratorate with jurisdiction, or handled by the relevant departments of that procuratorate in accordance with law.

(3) Where the decision not to approve arrest is in error, and it is necessary approve arrest in accordance with law, the decision to not approve arrest shall be revoked and the case transferred to a people's procuratorate with jurisdiction, or handled by the relevant departments of that procuratorate in accordance with law.

Article 42: After reconsideration of an appeal over dissatisfaction with a people's procuratorate decision not withdraw a case, it shall be handled discretely as follows:

(1) Where the decision to withdraw the case was correct, sustain it ;

(2) Where the decision to withdraw the case is correct, but a portion of the facts verified or application of law is in error, the incorrect portion of the written decision to withdraw the case shall be corrected and the original decision to withdraw the case sustained;

(3) Where the decision to withdraw the case is in error and it is necessary to pursue criminal responsibility in accordance with law; the original decision to withdraw the case shall be revoked and the case transferred to a people's procuratorate with jurisdiction, or the relevant department in that procuratorate my file and investigate the case anew.

Article 43: 对不服人民检察院诉讼终结的刑事处理决定的申诉复查后,认为应当维持原决定的,报请检察长决定;认为应当改变原决定的,报请检察长或者检察委员会决定。

Article 44: 对不服人民检察院诉讼终结的刑事处理决定的申诉复查后,应当制作刑事申诉复查决定书,并在十日以内送达申诉人、原案当事人,同时抄送有关部门。

上级人民检察院作出的复查决定,可以委托下级人民检察院送达。

刑事申诉复查决定书应当公开宣布,并制作宣布笔录。

Article 45: 下级人民检察院对上级人民检察院的复查决定应当执行,并将执行情况书面报告上级人民检察院。

上级人民检察院必要时可以制作纠正案件错误通知书,指令下级人民检察院执行。

下级人民检察院对上级人民检察院的复查决定有异议的,应当在执行的同时向上级人民检察院报告。

第三节 不服人民法院已经发生法律效力刑事判决、裁定申诉案件的复查

Article 46: 最高人民检察院对不服各级人民法院已经发生法律效力的刑事判决、裁定的申诉,上级人民检察院对不服下级人民法院已经发生法律效力的刑事判决、裁定的申诉,经复查决定提出抗诉的,应当按照审判监督程序向同级人民法院提出抗诉,或者指令作出生效判决、裁定的人民法院的上一级人民检察院向同级人民法院提出抗诉。

Article 47: Where upon re-examination it is found that an effective judgment or ruling of a people's court is truly in error, in any of the following circumstances a procuratorial counter-appeal shall be raised in the people's court in accordance with trial supervision procedures:

(1) Where there is new evidence showing that the facts verified in the original judgment or ruling were truly in error, and might influence conviction or sentencing determinations;

(2) The evidence for conviction and the sentencing is unreliable and insufficient;

(3) The evidence for conviction and sentencing should be excluded;

(4) The main evidence supporting case facts contradict each other;

(5)The principle factual basis for the original judgment or ruling has been lawfully modified or revoked;

(6)The criminal offence convicted is wrong so as to obviously affect the sentencing;

(7)A violation of provisions concerning the period of limitation for prosecution under the law;

(8)The sentence is obviously inappropriate;

(9) the litigation procedures provided by law are violated and might influence trial fairness;

(10) During the course of trial adjudicators had graft, dereliction of duty or twisting the law.

Article 48: Where after re-examination it is found necessary to make a procuratorial counter-appeal to the same level people's court regarding an appeal over dissatisfaction with a people's court's criminal judgment or ruling that has already taken effect, the procuratorate department for criminal appeals submits an opinion and reports the circumstances to the chief procuratorate or procuratorial committee for a decision.

Article 49: After people's procuratorates decide to make a procuratorial counter-appeal, the procuratorate department for criminal appeals shall draft a written procuratorial counter-appeal and raise the procuratorial counter-appeal in the people's procuratorate for the same level.

Where a procuratorial counter-appeal is raised because there is new evidence showing that the facts verified in original judgment or ruling are truly in error, the relevant evidentiary materials shall be sent when raising the procuratorial counter-appeal.

Article 50: After the criminal appeals prosecution department of the People’s Procuratorate at each local level re-examines an appeal over disatisfaction with an effective criminal judgment or ruling made by a People’s Court at the same level, and finds it necessary to raise a a procuratorial counter-appeal, it shall submit an opinion and after a decision by the chief prosecutor or prosecutorial committee request that a higher level People’s Procuratorate raise a procuratorial counter-appeal. In cases requresting the people's procuratorate at the level above raise a procuratorial counter-appeal, a written request for the procuratorial counter-appeal shall be reported in writing and sent together along with the case file to the people's procuratorate athe the level above.

After the procuratorate department for criminal appeals at the level above receives the written request report, it shall assign procuratorate personnel to conduct a review, and draft a request for procuratorial counter-appeal case report; and upon group discussion in the department report the circumstances to the chief procurator for approval.

After the people's procuratorate at the level above makes a decision on the people's procuratorate at the level below's request for procuratorial counter-appeal in a criminal appeals case, it shall draft a written notice of review of in a request for procuratorial counter-appeal, and inform the people's procuratorate making the procuratorial counter-appeal.

Article 51: In cases where the people's procuratorate at the level above reviews a request for procuratorial counter-appeal in a criminal appeals case from the people's procuratorate at the level below, it shall make a decision within 3 months from the date it received the case.

In criminal appeals cases that might be unjust, wrongfully decided or where facts and evidence have major changes, the time limits described above may be avoided.

对不服人民法院已经发生法律效力的死刑缓期二年执行判决、裁定的申诉案件,需要加重原审被告人刑罚的,应当在死刑缓期执行期限届满前作出决定。

Article 52: In cases where local people's procuratorates of any level, upon re-examination, request the people's procuratorate at the level above raise a procuratorial counter-appeal, the people's procuratorate at the level above's time limits for review of the case are not calculated within the time limit the requesting people's procuratorate to re-examine the case.

Article 53: 经复查认为人民法院已经发生法律效力的刑事判决、裁定确有错误,符合本规定第四十七条规定的情形,需要人民法院通过再审方式纠正的,刑事申诉检察部门可以提出意见,经本院检察委员会决定后,向同级人民法院提出再审检察建议。

对不适宜由同级人民法院再审纠正,或者再审检察建议未被人民法院采纳的,可以按照审判监督程序向人民法院提出抗诉。

Article 54: 人民检察院刑事申诉检察部门办理按照审判监督程序抗诉的案件,认为需要对原审被告人采取逮捕措施的,应当提出意见,移送侦查监督部门审查决定;认为需要对原审被告人采取取保候审、监视居住措施的,应当提出意见,报请检察长决定。

Article 55: 对不服人民法院已经发生法律效力的刑事判决、裁定的申诉复查后,不论是否决定提出抗诉或者提出再审检察建议,立案复查的人民检察院均应制作刑事申诉复查通知书,并在十日以内送达申诉人。

经复查向上一级人民检察院提请抗诉的,应当在上一级人民检察院作出是否抗诉的决定后制作刑事申诉复查通知书。

Article 56: 对按照审判监督程序提出抗诉的刑事申诉案件,或者人民法院依据人民检察院再审检察建议决定再审的刑事申诉案件,人民法院开庭审理时,由同级人民检察院刑事申诉检察部门派员出席法庭,并对人民法院再审活动实施法律监督。

Article 57: 对按照审判监督程序提出抗诉的刑事申诉案件,人民法院经重新审理作出的判决、裁定,由派员出席再审法庭的人民检察院刑事申诉检察部门审查并提出意见。

刑事申诉检察部门经审查认为人民法院作出的判决、裁定仍然确有错误,需要提出抗诉的,报请检察长或者检察委员会决定。如果案件是依照第一审程序审判的,同级人民检察院应当向上一级人民法院提出抗诉;如果案件是依照第二审程序审判的,上一级人民检察院应当按照审判监督程序向同级人民法院提出抗诉。

Chapter VI: Other Provisions

第五十八 地方各级人民检察院刑事申诉检察部门应当在刑事申诉案件复查结案后十日以内,将刑事申诉复查终结报告、刑事申诉复查决定书或者刑事申诉复查通知书、讨论案件记录等材料的复印件或者电子文档报上一级人民检察院刑事申诉检察部门备案。

对提请抗诉、提出抗诉或者提出再审检察建议的刑事申诉案件,地方各级人民检察院刑事申诉检察部门应当在复查结案后十日以内,将刑事申诉复查终结报告、刑事申诉复查通知书、讨论案件记录、提请抗诉报告书、审查提请抗诉案件报告、审查提请抗诉通知书、刑事抗诉书或者再审检察建议书等材料的复印件或者电子文档层报最高人民检察院刑事申诉检察厅备案。

Article 59: 上级人民检察院刑事申诉检察部门应当指定人员审查下级人民检察院报送的备案材料,认为存在错误时可以调卷审查或者听取下级人民检察院刑事申诉检察部门汇报案件的相关情况,并分别情况予以处理:

(一)案件存在错误但是不影响处理结论的,上级人民检察院应当指令下级人民检察院纠正;

(二)案件存在错误并且可能影响处理结论的,上级人民检察院可以自行办理,也可以指令下级人民检察院重新办理。对指令重新办理的案件,下级人民检察院应当重新立案复查。

Article 60: 人民检察院对具有下列情形之一的刑事申诉案件,经部门负责人或者检察长批准,可以中止办理:

(一)人民法院对原判决、裁定调卷审查的;

(二)无法与申诉人及其代理人取得联系的;

(三)申诉的自然人死亡,需要等待其他申诉权利人表明是否继续申诉的;

(四)申诉的法人或者其他组织终止,尚未确定权利义务承受人的;

(五)由于其他原因,致使案件在较长时间内无法继续办理的。

决定中止办理的案件,应当制作刑事申诉中止审查通知书,通知申诉人;确实无法通知的,应当记录在案。

中止办理的事由消除后,经部门负责人或者检察长批准,应当恢复办理。中止办理的期间不计入办理期限。

Article 61: 人民检察院对具有下列情形之一的刑事申诉案件,经检察长批准,应当终止办理:

(一)人民检察院因同一案件事实对撤销案件的犯罪嫌疑人重新立案侦查的,对不批准逮捕的犯罪嫌疑人重新作出批准逮捕决定的,或者对不起诉案件的被不起诉人重新起诉的;

(二)人民检察院接到人民法院受理被害人对被不起诉人起诉的通知的;

(3) the people's court decides to retry the original judgment or ruling;

(四)申诉人自愿撤回申诉,且不损害国家利益、社会公共利益或者他人合法权益的;

(五)申诉的自然人死亡,没有其他申诉权利人或者申诉权利人明确表示放弃申诉的,但是有证据证明原案被告人是无罪的除外;

(六)申诉的法人或者其他组织终止,没有权利义务承受人或者权利义务承受人明确表示放弃申诉的,但是有证据证明原案被告人是无罪的除外;

(7) still cannot resume case handling after more than six months after the suspension of case handling ;

(8) Other circumstances where handling should be terminated.

决定终止办理的案件,应当制作刑事申诉终止审查通知书,通知申诉人;确实无法通知的,应当记录在案。

终止办理的事由消除后,申诉人再次提出申诉,符合刑事申诉受理条件的,应当予以受理。

Article 62: Where blemishes in the procedures for handling of the original case or other issues are discovered while handling a criminal appeals case, a procuratore recommendation or rectification opinion may be submitted to the original case handling department.

Article 63: Where graft, dereliction of duty or other conduct in violation of laws and discipline are discrovered while handling a criminal appeals case, it shall be transferred to the relevant departments for handling.

Article 64: Where omitted criminal conduct or omitted criminal suspects in the same case are discovered in handling a criminal appeals case, it shall be transferred to the relevant departments for handling.

Article 65: After the handling of a criminal appeals case is concluded, the procuratorate department for criminal appeals shall make assisting the relevant departments in addressing the aftermath and quieting the suit part of the procuratorate duties in criminal appeals.

Article 66: Where there is serious irresponsibility in handling criminal appeals cases and major fault in the execution of procedures for handling the original case is not discovered or there is a refusal to correct error in the original case in accordance with law, causing serious consequences, the responsibility of relevent persons shall be pursued in accordance with provisions.

Article 67: People's procuratorates handling of criminal appeals cases shall carry out the relevant provisions on procuratorate case management.

Article 68: Drafting of legal documents for criminal appeals cases shall comply with the format provided.

The format of legal documents for criminal appeals cases will be provided for separately.

Chapter VII: Supplementary Provisions

Article 69: The Supreme People's Procuratorate is responsible for interpreting these Provisions.

Article 70: These provisions become effective on the date of publication. The June 16, 1998 "people's procuratorate Rules on Reviewing Cases of Criminal Appeals" is at the same time abolished; where other provisions previously released by this Procuratorate are not in accord with these Rules, these Rules control.

 

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