Chongqing Plea Leniency System Pilot Implementation Measures

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[Note: This translation sometimes refers to the ‘system of leniency for those who admit guilt and accept punishment’ as the plea leniency system- the Chinese is the same]

Chongqing Municipal High People's Court, Chongqing Municipal People's Procuratorate, Chongqing Municipal Public Security Bureau

Chongqing City State Security Bureau , Chongqing Municipal Bureau of Justice

2017/1/17

Chapter I: General Provisions

Chapter II: Legal Assistance

Chapter III: Investigation

Chapter IV: Review for Prosecution

Chapter V: Trial

Supplementary Provisions

Detailed Implementation Rules for Carrying out Pilot Work on the System of Leniency for those Who Admit Guilt and Accept Punishment

Chapter I: General Provisions

Article 1: These Detailed Implementaiton Rules are formulated on the basis of the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, and the Decision of the Standing Committee of the National People's Congress Authorizing the Supreme People's Court and Supreme People's Procuratorate to Carry out Pilot Projects in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases, in combination with actual judicial work conditions, so as advance the pilot work on the system of leniency for those who admit guilt and accept punishment.

Article 2: 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, it does not impact the determination that they 'admit guilt'

Where criminal suspects or defendants have no objections to the type of punishment, rangeof punishment, and method of punishment in the procuratorates' recommendation, but do not agree to apply the expedited procedures or summary procedures, it does not impact the determination that they 'accept punishment'.

In any of the circumstances provided for in article 2 of the "Measures", the plea leniency system is not applied:

Article 3: The handling of plea leniency cases shall comply with the basic principles of the Criminal Law and Criminal Procedure Law, implement the policy of blending leniency with severity, adhere to the principle of evidence-based judgments, lawfully safeguard criminal suspects or defendants' right to know, to a defense, to select procedures, to make a final statement, and other procedural rights, and shall safeguard the lawful rights and interests of the victims.

Article 4: People's courts, people's procuratorates, and investigating organs shall ensure that criminal suspects or defendants' admission of guilt and acceptance of punishment is voluntary and truthful, and must not compel criminal suspects or defendants to admit guilt or accept punishment.

Article 5: People's courts, people's procuratorates, and investigating organs handling criminal cases shall apply the system of leniency for those who confess and accept punishment evenly, and must not restrict its application on the basis of the lightness or severity of the crime, or on the basis of the crime type.

Article 6: Where people's procuratorates recommend that the people's courts apply the system of leniency for those who confess and accept punishment in hearing a case, and upon review the people's court finds that the conditions for its application are met, they shall conduct the trial in accordance with the system of leniency for those who confess and accept punishment.

Article 7: In joint crime cases where some of the criminal suspects or defendants admit guilt and accept punishment, the system of leniency for those who confess and accept punishment may be applied for those criminal suspects or defendants. Based on the circumstances of the case, the people's courts may decide whether to simplify the procedures for hearing the case.

Article 8: People's courts hearing plea leniency cases shall lawfully hear the opinions of the victims and their representatives, and where the defendant and the victims or their representatives have not reached a mediation or settlement agreement as to matters such as compensation in attached civil litigation, or the victims' forgiveness has not been obtained, the system of leniency for those who confess and accept punishment may be used to conduct the hearing, but the expedited procedures must not be used.

Article 9: The investigating organs may relatively concentrate the transfer of cases to be reviewed for prosecution where the criminal suspects or defendants admit guilt and accept punishment, the procuratorates may relatively concentrate indictment, and the people's court may relatively concentrate hearings.

Chapter II: Legal Assistance

Article 10: The people's courts, people's procuratorates, and investigating organs shall inform criminal suspects and defendants of their right to retain a defender. Where criminal suspects or defendants who have the circumstances provided for in articles 34 and 267 of the Criminal Procedure Law have not retained a lawyer, the people's courts, people's procuratorate, and investigating organs shall notify the legal aid institutions to appoint a lawyer to provide them with a defense.

Article 11: Where criminal suspects or defendants who voluntarily admit guilt and accept punishment have not retained a defender, the people's courts, people's procuratorates and investigating organs shall notify the legal aid institutions to appoint a duty lawyer to provide them with legal assistance.

Where criminal suspects or defendants refuse the legal assistance provided by the duty lawyer, the people's court, people's procuratorate, investigating organ, and the legal aid institution shall not permit it, except where the defendant himself appoints a defender.

Where criminal suspects or defendants request to change their duty lawyer and have a legitimate reason, the people's court, people's procuratorate, investigating organ, and the legal aid institution shall permit it.

Article 12: Legal aid institutions shall set up legal aid work stations in people's courts, people's procuratorates, investigative organs and detention centers, and periodically have duty lawyers stationed there, or timely arrange for duty lawyers to provide legal assistance to criminal suspects or defendants who admit guilt and accept punishment.

The judicial administrative organs and legal aid institutions shall determine duty lawyer candidates on the basis of actual work needs and the supply of lawyers, and send a catalog of duty lawyers and a chart of the duty shifts, to the people's courts, people's procuratorates, investigating organs and detention centers.

People's courts, people's procuratorates, investigating organs, and detention centers shall provide necessary workspaces and facilities for legal aid work stations, and strengthen links and cooperation to ensure duty lawyers' lawful performance of their duties.

Article 13: Duty lawyers providing legal assistance to criminal suspects or defendants shall have their Lawyers' practice certificates, identify their posts, and tell parties of their identity as duty lawyers; they shall comply with relevant laws and regulations, professional ethics, and practice norms; and shall accept the supervision and management of the judicial-administrative organs and the operational guidance of legal aid institutions.

Article 14: Duty lawyers shall inform criminal suspects or defendants who admit guilt and accept punishment of their procedural rights and of the nature and legal consequences of their admissions; shall provide legal assistance in areas such as legal consultation, procedure selection, and applying for modification of compulsory measures; shall submit opinions on the procuratorates conviction and sentencing recommendations, shall be present when written acknowledgements are signed, and shall guide parties with a true need in applying for legal aid.

Where duty lawyers need to read the case file and meet with criminal suspects or defendants, it is to be handled with reference to provisions relvant to defense lawyers reading the case file and having meetings.

Article 15: Duty lawyers providing legal assistance to criminal suspects or defendants who admit guilt and accept punishment shall submit opinions to the people's court, people's procuratorate, and investigating organs regarding the facts of the case, the charged crimes, the recommendation for leniency, the procedures applied, and other such issues. People's courts, people's procuratorates or investigation organs that find that the duty lawyer's opinions are reasonable shall adopt them.

Article 16: Where after the duty lawyer provides the legal assistance, the criminal suspect or defendant appoints a defender for themselves, the people's court, the people's procuratorate and the investigation organ shall hear the opinions of the defender. Where the defender and the duty lawyer's opinions are not the same, the defender's opinion is controlling.

Article 17: Where defenders or duty lawyers feel that people's courts, people's procuratorate, or investigating organs and their employees are obstructing the lawful exercise of their procedural rights, they have the right to appeal or make an accusation to the people's procuratorate at that level or the level above. People's procuratorates shall promptly investigate appeals or accusations, and where they are true, notify the relevant organ to make corrections.

Article 18: The judicial-administrative organs, and legal aid institutions shall integrate factors such as the legal assistance workload and legal services labor fees to determine standard allowances for duty lawyers handling cases. Districts and counties with the capacity, may explore government procurement of services to provide a defense for criminal suspects or defendants who admit guilt and accept punishment.

Chapter III: Investigation

Article 19: Investigating organs shall inform the criminal suspect of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to. Where criminal suspects voluntarily admit guilt and accept punishment, this shall be recorded and attach this to the case file.

Article 20: Where criminal suspects who voluntarily admit guilt and accept punishment have not retained a defender, the investigating organs shall notify the duty lawyer to provide them with legal assistance.

Article 21: Where, before the investigation ends, a duty lawyer so requests, the investigating organs shall hear the defender or duty lawyer's opinions, conduct a verification and make a record in the case in light of the circumstances.

Article 22: Where employing non-custodial compulsory measures against criminal suspects who admit guilt and accept punishment is sufficient to prevent harm to society, the investigating organs shall employ non-custodial measures.

Article 23: The investigating organs shall indicate the criminal suspects' admission of guilt and acceptance of punishment in their opinion for prosecution, and concurrently mark the case file's cover with 'admits guilt and accepts punishment'.

Chapter IV: Review for Prosecution

Article 24: People's procuratorates reviewing a case shall inform the criminal suspect of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to; the may informat them either at interrogation or separately.

Article 25: Where the investigating organs have decided to give a criminal suspect release on guarantee or residential surveillance, after the case is transferred to the people's procuratorate to be reviewed for prosecution, the people's procuratorate may skip making a new decision on release on guarantee or residential surveillance, but except where the review cannot be completed during the period of release on guarantee or residential surveillance.

Article 26: In plea leniency cases transferred by the investigating organs, the people's procuratorate shall emphasize review of the veracity and voluntariness of the criminal suspects' admission of guilt and acceptance of punishment.

Article 27: The people's procuratorates shall hear the comments of the criminal suspect and his defender or the duty lawyer on the following matters, and record and attach this 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.

Article 28: 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, a major factor in lenient sentencing.

Article 29: The people's procuratorate shall inform the criminal suspects, defenders, and duty lawyers of their proposed sentencing recommendations and propose the factual basis and legal basis for their sentencing recommendations. Where the criminal suspect, defender, or duty lawyer raises an objection, the people's procuratorate may make a decision as to whether to make adjustments according to the circumstances of the case.

Article 30: Where the criminal suspect voluntarily admits guilt, agrees to the sentencing recommendation, and to the applicable procedures, a written affidavit shall be signed with the defender or duty lawyer present.

Article 31: Sentencing recommendations shall ordinarily include principle punishments and supplementary punishments, and indicate the means of enforcing the penalty. People's procuratorates shall ordinarily put forward specific and definite sentencing recommendation, and in special circumstances, they can also put forward a relatively clear sentencing range. Where financial penalties are recommended, a set amount shall generally be submitted.

Article 32: In plea leniency cases where the people's procuratorates submit an indictment, they shall clearly indicate circumstances of defendant's admitting guilt and accepting punishment and supporting affidavit in the indictment, and simultaneously transfer the defendant's written affidavit admitting guilt and accepting punishment with the indictment to the people's court.

Article 33: In cases where the criminal suspect pleads guilty and accept punishment where the crime is minor, the relevant laws and regulations allow that a non-prosecution decision may be made, after the criminal suspect signs an affidavit with the defender or duty lawyer present, the people's procuratorate may lawfully make a decision to not prosecute the slight crime. Handling of the criminal suspect's unlawful gains and other property involved in the case is to be done in accordance with the "People's Procuratorate Rules of Criminal Procedures (provisional)" and other relevant provisions.

Article 34: In cases where using the expedited procedures is recommended 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.

In cases where using the summary procedures is recommended, people's procuratorates shall usually make a decision on indictment within 20 days of accepting the case; an extension to 30 days may be given in special circumstances.

Where as a result of special circumstances it is not possible to complete case-handling in the time set, the case-handling period may be appropriately extended.

 

Chapter V: Trial

Article 35: People's courts 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 36: Where defendants who have not admitted guilt and accepted punishment before the indictment do so after the indictment is submitted but before court proceedings begin, the people's court shall promptly inform the people's procuratorate and the people's procuratorate shall promptly inform the people's court whether they agree to using the plea leniency system. Where the people's procuratorate agrees to their application, the people's procuratorate may handle it in accordance with provisions of Chapter IV relating to review for prosecution.

Where defendants who have not admitted guilt and accepted punishment before the indictment do so during trial, the people's court shall hear the opinions of the people's procuratorate on whether the plea leniency system is to be applied. Where the people's procuratorate agrees to their application, the people's court shall announce an adjournment, and the prosecutor, defendant, and duty lawyer are to conduct negotiations related to the leniency for admitting guilt and accepting punishment. The people's court is to make a decision on the trial procedures based on the outcome of these discussions.

Article 37: Where the defendant admits guilt and accepts punishment before indictment, but does not admit guilt during the course of trial, the people's court is not to further apply the plea leniency system for trial.

Article 38: In cases within the jurisdiction of basic level people's courts that might have a sentence of up to 3 years fixed-term imprisonment (including 3 years), where the facts are clear and the evidence is credible and sufficient, where the parties have no disagreement on the applicable law, where the defendant admits guilt and accepts punishment and agrees to applying the expedited procedures, the expedited procedures may be applied at trial.

Article 39: 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 criminal suspects 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 40: In plea leniency cases where the people's courts decide to apply 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.

Article 41: 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,and agrees to the application of the summary procedures, the summary procedures may be applied at trial.

Article 42: In plea leniency cases where the people's courts decide to apply the summary procedures at trial, a collegial panel shall be formed for trial, the restrictions on periods for service in the Criminal Procedure Law are not applied, courtroom investigation and debate may be simplified, and the verdict is usually to be announced at court, but the defendants final statement shall be heard before the judgment is announced.

Article 43: 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.

In cases applying the summary procedures at trial, people's courts shall complete trial within 20 days; in special circumstances, this may be extended to a month and a half.

Article 44: In plea leniency cases where people's courts decide to apply the ordinary procedures, follow the provisions on simplified ordinary procedures at trial.

Article 45: In cases where people's courts apply the system of leniency for those who admit guilt and accept punishment, at sentencing they shall comprehensively consider the proactiveness, timeliness, consistency, and comprehensiveness of the defendants' admission of guilt and acceptance of punishment, and decide on the specific range for leniency.

Article 46: Where the defendant admits guilt, follow the guiding opinions on sentencing for voluntary surrender, coming clean, and admitting guilt at court, to determine the range for punishing leniently.

Where defendants' accept punishment, handle it in accordance with the following situations:

(1) Where during the review for prosecution they agree to the procuratorates' sentencing recommendation and sign an affidavit, and the legally-prescribed sentence is up to 3 years (including 3 years),the base sentence may be reduced by 20%-40%; where the legally-prescribed sentence is above three years, the base sentence may be reduced by up to 20%.

(2) Where during the trial phase they agree to the procuratorates sentencing recommendation and sign an affidavit, the base sentence may be reduced by up to 10%.

Where the defendant is willing to admit guilt and accept punishment during the investigation phase, the degree of leniency should be greater than that for those who admit guilt and accept punishment during the review for prosecution and trial phases.

Article 47: In cases applying the system of leniency for those who admit guilt and accept punishment, where the sentencing recommendation submitted by the people's procuratorate is not clearly improper, and moreover the defendant and defender have not put forward objections to the sentencing recommendation, the people's court shall adopt it in accordance with law.

Article 48: Where before 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 the people's procuratorate shall inform the people's court before trial of whether they will adjust the sentencing recommendation.

Where before 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 the people's procuratorate finds that it truly needs to be adjusted, they may adjust it at court or apply for an adjournment to adjust it, and do not sign an affidavit again; where the people's procuratorate does not agree to adjust the sentencing reccomendation or where the defendant and defender still have objections after the sentencing reccomendation is adjusted, the people's court shall make a judgment in accordance with law.

Article 49: 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 or summary procedures.

Supplementary Provisions

Article 50: These Detailed Implementation Regulations are to take effect on the date of their issue, and where these provisions are silent, handle matters in accordance with laws and normative documents from the organ at the level above.

Article 51: These Detailed Implementation Regulations are to take effect on the date of their issue, and where these provisions are silent, handle mattters in accordance with laws and normative documents from the organ at the level above. Relevant provisions from the previous expedited procedures pilot projects may be consulted in implementation, except where these Implementation Measures have other provisions.

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