Beijing Municipal Detailed Implementation Rules for the Pilot Project on the Plea Leniency System for Criminal cases

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the Beijing High People's Court, The Beijing Municipal People's Procuratorate, The Beijing Municipal Public Security Bureau, The Beijing State Security Bureau, and the Beijing Justice Bureau's Detailed Implementation Regulations for the Pilot Project on the Plea Leniency System for Criminal cases

(Beijing High Court Release {2017} No.52)

I. Mission and Basic Principles

II. Scope and procedures for Application

III. Legal Assistance

IV. Compulsory Measures

V. Investigation

VI. Review for Prosecution

VII. Trial

VIII. Enforcement

IX. Special Case Handling

X. Other Provisions

 

I. Mission and Basic Principles

Article 1: The handling of plea cases shall comply with the basic principles of the Criminal Law and Criminal Procedure Law, implement a trial-centered criminal procedure, have the facts as the basis and the laws as their measure, protect criminal suspects or defendants' lawful exercise of the right to a defense and other procedural rights, ensure the lawful rights and interests of victims, preserve the public interest, strengthen oversight and restraint, and ensure that innocent people are not criminally prosecuted and that the guilty receive just punishment, and ensure judicial fairness.

Article 2: The handling of plea cases shall comply with the following principles:

Persist in implementing the criminal policy of tempering severity with leniency, fully considering the social harm of crime and the personal dangerousness of the criminal suspect or defendant, together with the specific circumstances of admission of guilt and acceptance of punishment, to determine whether or not to be lenient and the scope of leniency, making it so that those who should be treated leniently are, but those who should be treated severely are treated severely, blending leniency with severity to ensure to legal and social efficacy of case handling.

Persist in having the penalty suited to the crime, by following legal provisions to accurately sentence on the basis of the facts, nature, circumstances, and consequences of the crime, ensuring that the severity of the sentence is commensurate with the criminal conduct committed by the criminal and the responsibility they should bear.

Persist in evidence-based judgments, following judgment needs and standards to collect, fix, review, and verify evidence.

Article 3: Plea leniency cases shall persist in divisions of work and responsibility, mutual cooperation, mutual restraint, and strengthening connections between investigation, indictment, and trial phases, to increase case-handling efficiency.

  II. Scope and procedures for Application

Article 4: Criminal suspects or defendants who voluntarily and 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, may be given a lenient disposition in accordance with law.

Where criminal suspects or defendants admit the main facts of the alleged crime, and only object to specific details that do not impact conviction or sentencing, or have no objections to the facts and only object to the crime charged, it does not impact the application of the system of leniency for those who confess and accept punishment.

Criminal suspects or defendants' agreement with the sentencing recommendation refers to having no objection to the type of punishment, range or specified sentence length, and method of implementing the criminal punishment, in the procuratorates' recommendation.

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 a criminal suspect or defendant admits guilt, but upon review it is found that it might not comprise a crime or the defender conducts a not-guilty defense;

(4) Where the criminal suspect or defendant expresses that they admit guilt but disrupt witness testimony, or destroys, fabricates, or collude testimony, or have other such conduct that impacts the normal conduct of criminal proceedings;

(5) Where the crime was heinous, the criminal methods were cruel, or the harm to society was serious, and the criminal suspect or defendant admits guilt and accepts punishment but not enough to receive a lighter punishment;

(6) Others situations where application would be inappropriate.

Article 6: Handling of plea cases shall hear the opinions of the victims and their representatives, and make whether the criminal suspect or defendant has reached a settlement agreement with victims or compensated victims' losses and obtained victims' forgiveness, an important factor in sentencing considerations.

Whether or not a a criminal suspect or defendant has actively returned stolen goods or made restitution for assets involved in the case should be an important factor in considering whether they accept punishment.

Article 7: In plea leniency cases, the expedited procedures, simplified procedures, or ordinary procedures should be used based on the specific case circumstances.

Article 8: 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 facts are clear and the evidence is credible and sufficient, where the parties have no disagreement on the applicable law, where the criminal suspect or defendant admits guilt and accepts punishment and agrees to applying the expedited procedures, the expedited procedures may be applied.

Article 9: Expedited procedures are not applied in any of the following situations:

(1) The criminal suspect or 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 criminal suspects or defendants have objections to the alleged facts, charges or sentencing recommendation;

(4) Where after the indictment has been submitted, the defendant and victims, or their legally-designated representatives or close relatives, 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.

  III. Legal Assistance

Article 10: Handling of plea cases shall ensure that criminal suspects or defendants obtain effective legal assistance, ensuring that they understand the nature and legal consequences of the plea, and make the plea voluntarily.

Article 11: Legal aid institutions shall set up legal aid stations in people's courts, detention centers, public security organs law enforcement and case handling management centers, and, on the basis of actual work needs, arrange for duty lawyers to provide legal assistance to criminal suspects or defendants. People's courts, detention centers, and public security organs' law enforcement and case handling centers shall provide convenient work spaces and necessary office facilities for legal aid work stations and their duty lawyers to carry out their work, and shall simplify meeting procedures, ensuring duty lawyers' lawful performance of their duties.

Duty lawyers may read, copy, and reproduce that case's case file materials with reference to provisions in the Criminal Procedure Law, and the case-handling departments should cooperate and waive fees.

Article 12: Where criminal suspects and defendants who voluntarily admit guilt and accept punishment have not retained a defender, the people courts, people's procuratorates and public security organ shall notify the legal aid work stations and arrange for duty lawyers to provide legal assistance such as legal consultation, procedure selection, and applications for modification of compulsory measures.

Article 13: The people courts, people's procuratorates and public security organ shall notify criminal suspects or defendants that they have the right to apply for legal aid. Where the requirements requiring notification of legal aid are met, lawfully notify the legal aid institution to appoint a lawyer to provide them a defense.

  IV. Compulsory Measures

Article 14: People's courts, people's procuratorates, and public security organs, shall make a criminal suspect or defendant's admission of guilt and acceptance of punishment an important factor in considering their dangerousness to society.

Article 15: Criminal suspects or defendants who meet the requirements for release on guarantee or residential surveillance shall be released on guarantee or put under residential surveillance; criminal suspects or defendants that truly need to be placed under arrest shall be lawfully arrested; criminal suspects or defendants already under arrest that are found to no longer be dangerous to society through a comprehensive review, and who meet the requirements for no longer requiring incarceration shall have compulsory measures modified in accordance with law.

  V. Investigation

Article 16: Investigative organs shall carry out investigations of plea leniency cases and comprehensively gather or collect evidence showing whether the suspect is guilty or not-guilty, and whether the crime was serious or minor.

Article 17: public security organs shall give full play to the role of the law enforcement and case handling management center, promptly screening plea cases and lawfully accepting legal supervision from the resident procurator office dispatched by the people's procuratorate; and the resident procurator office shall perform supervision duties in accordance with law.

Article 18: When investigating organs have the first interrogation of criminal suspects or employ compulsory measures against them, they shall inform the criminal suspect of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment will lead to.

During the course of investigation, investigating organs shall hear the comments of the criminal suspect and his defender or the duty lawyers, and where the criminal suspect voluntarily admits his guilt and accept punishment, record and attach this to the case file.

In cases that might meet the requirements for expedited procedures, the investigating organs shall hear the defender or duty lawyer's comments, and after obtaining the consent of the criminal suspect, handle it as an expedited case.

Article 19: Where criminal suspects express willingness to admit guilt and accept punishment to detention center or law-enforcement and case handling center personnel, their defender or the duty lawyer, the relevant personnel shall promptly make a record and transfer it to the case handling organ.

Article 20: In plea leniency cases transferred for review for prosecution,the investigating organ shall note this in the recommendation for indictment and explain circumstances relevant to the defender or duty lawyer.

Article 21: In cases applying the expedited procedures, the investigating organs shall conclude investigation within 30 days of employing compulsory measures and transfer the case to be reviewed for prosecution Of these, where criminal suspects have been brought into custody and it is thought that formal arrest is necessary, an application for arrest shall be sent to the procuratorate within 7 days of their being taken into custody.

In cases of dangerous driving by suspected operation of a motor vehicle while intoxicated,and other minor criminal cases, the investigating organs shall conclude investigation within 10 days of taking someone into criminal custody, and transfer the case for review for prosecution.

Article 22: When investigating organs request arrest and transfer for review for prosecution in plea cases applying the expedited procedures, a seal reading 'plea leniency, recommend expediting' is to be affixed to the cover of the case file; and for plea cases not suitable for applying the expedited procedures, a seal reading 'plea leniency' is to be attached to the case file cover.

  VI. Review for Prosecution

Article 23: During the course of review for prosecution, people's procuratorates shall actively carry out education on transforming cases into plea leniency cases, inform the criminal suspect of the procedural rights they enjoy and the legal consequences consequences that a plea might lead to, and hear the comments of the criminal suspect on the following matters, and exchange opinions on them with the defense lawyer or duty lawyer, and record the ideas heard or exchanged in the case, have the suspect and his defender or duty lawyer sign the record, and attach it to the case file:

(1) The charged crime and the legal provisions 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 or exchanged.

Article 24: The people's procuratorates are to draft a unified form acknowledgment for admitting guilt and accepting punishment.

Where the criminal suspect voluntarily admits guilt, agrees to the sentencing recommendation, and the applicable procedures, a written affidavit shall be signed with the defender or duty lawyer present, and the defender or duty lawyer shall sign that acknowledgment.

Article 25: Where people's procuratorates submit an indictment to the people's court, they shall clearly indicate circumstances of defendant's voluntarily admitting guilt and accepting punishment in the indictment, submit a sentencing recommendation, and simultaneously transfer the defendant's written affidavit and other materials.

Sentencing recommendations shall ordinarily include principle punishments and supplementary punishments, and indicate the means of enforcing the penalty. People's procuratorates shall ordinarily submit a relatively explicit sentencing range, or a fixed sentencing recommendation may be submitted on the basis of the specific case circumstances. Where financial penalties are recommended, a set amount shall generally be submitted.

Where the people's procuratorates recommend applying controlled release or suspended sentences, they shall promptly entrust the judicial-administrative organs for the criminal suspects' residences to conduct a domicile verification and social investigation appraisal. The judicial-administrative organs shall promptly conduct their work and report back to the procuratorates in writing.

Article 26: In cases using the expedited procedures, people's procuratorates shall usually make a decision on indictment within 10 days of accepting the case; an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.

Article 27: In handling plea leniency cases, the people's procuratorates may invite people's supervisors to conduct oversight.

  VII. Trial

Article 28: People's courts hearing plea cases 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.

Article 29: In cases applying the expedited procedures a single-judge is to hear the trial, service is not subject to the time limits in the Criminal Procedure Law, court investigation or courtroom debate are not carried out, and the verdict is announced at court; but before the verdict is announced the final statement of the defendant shall be heard.

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

Article 30: In cases within the jurisdiction of basic level people's courts that might have a sentence more than 3 years fixed-term imprisonment, where the defendant admits guilt and accepts punishment, the summary procedures may be lawfully applied at trial. The defendants' final statement shall be heard before announcing the verdict and the verdict will usually be announced at court.

Article 31: Where people's courts are applying the expedited procedures or summary procedures in hearing plea leniency cases, they shall be transferred for trial under ordinary procedures in any of the following circumstances:

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

(2) the defendant denies the alleged criminal facts;

(3) other circumstances where the expedited procedures or summary procedures should not be applied at trial.

Where people's courts are applying the expedited procedures or summary procedures in hearing plea leniency cases, and the public prosecutor discovers any of the circumstances described above, it shall be transferred for trial under ordinary procedures

Article 32: Determination that the defendant in a plea case is guilty shall meet the following requirements:

(1) The defendant truly voluntarily admitted guilt and accepted punishment;

(2) The defendant has already received the assistance of a duty lawyer or defender;

(3) The evidence showing the elements and facts that constitute the crime is lawful, objective, and relevant, and all evidence of the case taken together excludes reasonable doubt.

Where there is only a defendant's confession and no other evidence in a plea case, it cannot be found that the defendant is guilty or can a penalty be given.

Article 33: 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) Other situations that might impact the fairness of trial.

Article 34: Where through trial, people's courts find that the people's procuratorate's sentencing recommendation is clearly improper, or where the defendant or defender raises objections to the sentencing recommendation, the people's court may recommend the people's procuratorate adjust its sentencing recommendation, and if the people's procuratorate does not agree to adjust the sentencing recommendation, or if after adjustment of the sentencing recommendation the defendant and defender still have objections, the people's court shall make a judgment in accordance with law.

In cases applying expedited procedures, where the defendant still has objections after adjusting the sentencing recommendation, it shall be changed to trial by summary procedures or ordinary procedures.

Article 35: When deciding the sentence of a defendant who admits guilt and accepts punishment, the timeliness and stability or their admitting guilt and accepting punishment shall be considered, as well as specific circumstances such as the value of breaking the case.

Where the criminal suspect expressed that they admitted guilt and accepted punishment on being brought in, and their confession is useful to timely breaking the case, this shall be fully reflected in sentencing.

Article 36: In plea cases where there are no legally prescribed commutation factors, a light sentence shall be given within the legal prescribed scope of penalties, and where the offense is slight and does not need to be punished, criminal punishment may be waived.

Where it is truly necessary to give a punishment below the legally prescribed punishment, it shall be reported up to the Supreme People's Court for review and approval.

Article 37: Second-instance trial courts may choose not to hold in-court proceedings for appeals submitted by defendants unsatisfied with the judgment of a first-instance trial that applied the expedited procedures. Where through trial it is found that the facts verified and law applied in the original judgment are correct and the sentence is proper, the appeal shall be rejected and the original judgment maintained; where the facts verified in the original judgment are not in error, but the law was applied incorrectly or the sentence is improper, the judgment shall be changed; where the facts in the original judgment are unclear or the evidence insufficient, a ruling shall be made to revoke the original judgment and remand to the original people's court for new trial using the ordinary procedures.

  VIII. Enforcement

Article 38: In cases applying the system of leniency for those who admit guilt and accept punishment, the people's courts should clearly express this in the judgment, ruling, or notice of enforcement, and send a copy of the acknowledgment to the penal enforcement body when transferring the convict for enforcement.

Article 39: The penal enforcement body shall conduct a categorization assessment of convicts handled through plea leniency, carrying out targeted education and reform, causing them to actively transform themselves.

Article 40: When the prisoner is released upon completion of their sentence, the criminal penalty enforcement body should submit materials to the placement and mentoring department on the plea leniency convicts reform situation during the period of serving their penalty.

  IX. Special Case Handling

Article 41: Where criminal suspects voluntarily and truthfully confess the facts of the crime they are suspected of, have major meritorious contributions or the case involves major national interests, and the case must be withdrawn, the public security organs handling the case shall report this up to the Ministry of Public Security, and the Ministry of Public Security is to request approval from the Supreme People's Praocuratorate.

Article 42: Where criminal suspects voluntarily and truthfully confess facts of the crime they are suspected of, have major meritorious contribution or the case involves major national interests, then upon the people's procuratorate reporting up for approval from the Supreme People's Procuratorate, they may make a non-prosecution decision, and may also submit a prosecution on one or more of the alleged crimes.

Where there are legally prescribed circumstances for non-prosecution, handle it in accordance with the legal provisions.

Article 43: Where the Supreme People's Procuratorate approves non-prosecution, or in cases where the Ministry of Public Security requests to withdraw the case, people's procuratorates and public security organs shall investigate whether property that has been sealed, seized or frozen, and its yields, for the circumstances of its ownership, clarify whether it is unlawful gains, or whether there is other property involved in the case that shall be disgorged in accordance with law. Where persons not involved in the case raise objections to the ownership (title) of property that has been sealed, seized, or frozen, and its yields, they shall be reviewed.

Assets which have been sealed, seized or frozen, or their yields, that are confirmed to be unlawful gains, contraband,or personal property used in the commission of the crime, shall be uniformly handed over and placed in the national treasury within 30 days of the case being withdrawn or a non-prosecution decision being made, except for those that are lawfully returned to the victims. Sealed, seized, or frozen property, and its yields, that cannot be confirmed are unlawful gains or other property involved in the case that should be disgorged, must not be collected.

  X. Other Provisions

Article 44: In handling plea leniency cases, relevant documents shall be lawfully drafted on the basis of the sample form requirements,

Prior to the issuance of the sample forms, refer to currently used form legal document and draft simplified versions.

Article 45: Where in the course of handling plea cases, personnel of people's courts,people's procuratorate, public security organs have siutations of extortion of confessions by torture, gathering evidence through violence, or selling power for money, going easy on criminals, or other situations of abusing power or twisting the law for personal gain; where a crime is constituted, criminal responsibility is pursued in accordance with law, where no crime is constituted, lawfully give an administrative sanction or disciplinary sanction.

Article 46: After the national supervisor system reform pilots, cases of crimes abusing public office are to be handled in accordance with pilot work requirements.

Article 47: Apply these Measures' provisions related to public security organs where the state security organs handle plea cases in accordance with law.

Article 48: In handling cases where criminal suspects or defendants admit guilt and accept punishment, where the "Measures" or these Implementation Provisions have relevant provisions, follow them; where they do not have relevant provisions, apply relevant provisions from the criminal law, Criminal Procedure Law, and so forth.

Article 49: Relevant provisions from the previous expedited procedures pilot projects may be consulted in implementation, except where the "Measures" or these implementation provisions provide otherwise.

Article 50: These detailed implementation procedures are to be provisionally implemented during the system of leniency for those who confess and accept punishment pilot project period.

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