Provisions on Several Issues Related to Release on Guarantee

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS –THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS. PAGES WITHOUT IMAGES ARE WORKS IN PROGRESS.

English中文(简体)

Promulgation Date: 2022-9-5
Title: Provisions on Several Issues Related to Release on Guarantee
Document Number:
Expiration date: 
Promulgating Entities:Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al.
Source of text: https://www.spp.gov.cn/spp/xwfbh/wsfbt/202209/t20220921_578242.shtml#2

【comments】

Chapter I: Ordinary Provisions

Article 1: These Provisions are formulated on the basis of the Criminal Procedure Law of the People's Republic of China and related provisions so as to standardize the application of release on guarantee, to thoroughly implement the criminal justice policy of reducing formal arrest and only cautionsly indicting and detaining, and to safeguard citizens' lawful rights and interests.

Article 2: Based on the specific circumstances of cases, the public security organs, state security organs, people's procuratorates, and people's courts are to make decisions on the release of criminal suspects or defendants on guarantee in accordance with law.

The public security organs, state security organs, people's procuratorates, and people's courts are to make decisions on the release of criminal suspects or defendants on guarantee based on the specific case circumstances and in accordance with law. The state security organs are to enforce release on guarantee decisions made by state security organs as well as release on guarantee decisions made in criminal cases transferred by the state security organs for handling to the people's procuratorates and people's courts.

Article 3: Release on guarantee shall be applied where the criminal suspects' danger to society can be prevented in its employment.

Where there is a decision for release on guarantee, the investigation, prosecution, and trial of the case must not be interrupted. The use of release on guarantee to indirectly enable crime is strictly prohibited.

Article 4: Where it is decided to release criminal suspects or defendants on guarantee, they shall be ordered to either provide a guarantor or post a guarantee deposit.

A guarantor and guarantee deposit must not be concurrently used to guarantee the release on guarantee of the same criminal suspect or defendant. Priority shall be given to using guarantors as a guarantee in the release of minors on guarantee.

Article 5: Where a guarantee deposit is used for release on guarantee, the starting amount for the guarantee deposit is to be 1000 RMB, but where the person released on guarantee is a minor, the starting amount for the guarantee deposit is to be 500 RMB.

The amount of the guarantee deposit for release on guarantee shall be set by the decision-making organ through comprehensive consideration of circumstances such as the need to ensure the normal conduct of litigation activities, the threat to society posed by the person released on guarantee, the nature and circumstances of the case, the severity of the possible sentence, and the financial status of the person released on guarantee.

Article 6: Criminal suspects or defendants who meet the requirements for release on guarantee but cannot provide a guarantor or guarantee deposit, may be put under residential surveillance.

Where persons under residential surveillance provided for in the preceding paragraph name a guarantor or post a guarantee deposit, they may be switched to release on guarantee.

Chapter II: Decisions

Article 7: When making a decision on release on guarantee, it may be ordered that the person released on guarantee must not enter the following "specified places" based on the circumstances of the case:

(1) Places that might lead them to commit further crimes;

(2) Places that might lead them to obstruct the normal social order or disrupt the normal activities of others;

(3) Places related to the criminal activity they are suspected of;

(4) Places that might lead them to carry out activities obstructing litigation such as destroying evidence or disrupting witnesses from testifying;

(5) Other specified places that might obstruct the enforcement of release on guarantee.

Article 8: When making a decision on release on guarantee, it may be ordered that the person released on guarantee must not "meet or communicate with" the following "specified persons" based on the circumstances of the case:

(1) Witnesses, evaluators, or victims and their agents ad litem and close relatives;

(2) Other violators, criminal suspects or defendants in the same case, as well as other persons related to the case;

(3) Persons who may be harmed or harassed by the person released on guarantee;

(4) Persons who might obstruct the enforcement of release on guarantee or impact litigation activities.

"Correspond" in the preceding paragraph includes all forms of direct or indirect correspondence such as letters, text messages, e-mail, speaking, and communication through online platforms or online application services.

Article 9: When making a decision on release on guarantee, it may be ordered that the person released on guarantee must not engage in the following "specified activities" based on the circumstances of the case:

(1) Activities that might lead them to commit further crimes;

(2) Activities that might cause a negative impact to national security, public safety, or social order;

(3) Activities related to the crimes they are suspected of;

(4) Activities that might obstruct litigation;

(5) Other specified activities that might obstruct the enforcement of release on guarantee.

Article 10: Public security organs shall set up a special account for guarantee deposits in a designated bank and entrust the bank to collect and keep guarantee deposits on its behalf; and notify the people's procuratorate and people's procuratorate at the same level of the related information.

The deposit shall be paid in RMB.

Article 11: Where public security organs decide to use guarantee deposits as guarantee, they shall promptly send a guarantee deposit collection notice to the person released on guarantee and order them to post the guarantee deposit to the designated bank as a single installment within three days.

Article 12: Where people's courts or people's procuratorates decide to use guarantee deposits as guarantees, they shall order the person released on guarantee to post the guarantee deposit to the bank designated by the public security organs as a single installment within three days.

Article 13: The person released on guarantee or the person providing the guarantee deposit on their behalf shall deposit the guarantee deposit in the designated account for release on guarantee guarantee deposits, and the bank is to issue related receipts.

Chapter III: Enforcement

Article 14: Where public security organs make a release on guarantee decision, after verifying that the person released on guarantee has posted the guarantee deposit, they shall transfer the decision document, the notification for enforcement of release on guarantee, and other relevant materials for enforcement together.

Article 15: Where public security organs make a decision for release on guarantee, they shall promptly notify the local police substation for the residence of the person released. Where the residence of the person released on guarantee is in another area, they shall promptly notify the public security organs for their place of residence, which are to designate the police substation at the residence of the person released on guarantee to enforce it. When necessary, the case-handling departments may assist in enforcement.

Where the residence of the person released on guarantee changes, the police substation enforcing the release on guarantee shall promptly notify the public security organs that made the decision, which are to newly designate the police substation at the new residence of the person released on guarantee for enforcement. Where the changed residence of the person released on guarantee is in another area, the public security organs that made the decision shall notify the public security organs for that area, which are to designate the police substation at the residence of the person released on guarantee to enforce it. The original enforcement organs shall hand over the work to the enforcement organ following the change.

Article 16: Residences include places of household registration and habitual residences. A habitual residence refers to the last place a person released on guarantee lived for a continuous year after leaving their place of household registration.

Release on guarantee shall normally be enforced at the place of household registration, but where a habitual residence has already been established, it may be enforced at the place of habitual residence.

Where persons released on guarantee have any of the following situations, release on guarantee may also be enforced a place of temporary residence:

(1) The person released on guarantee has left their place of household registration for a year or more without having a habitual residence, but has a stable living place in a temporary residence;

(2) The person released on guarantee is a foreigner, stateless person, or resident of the Hong Kong Special Administrative Region, Macao Special Administrative Region, or Taiwan region;

(3) There is no way to ascertain the person released on guarantee's place of household registration and they have no habitual residence.

Article 17: Where release on guarantee is enforced locally, the public security organs that made the release on guarantee decision shall send the legal documents and relevant materials to the police substation responsible for enforcement.

Where release on guarantee is enforced in another area, the public security organs that made the release on guarantee decision shall send the legal documents and relevant materials indicating information such as the reporting time and contact information for the person released on guarantee to the enforcement organs through methods such as direct service, entrusting service, or service by mail; and the enforcement organs shall promptly issue receipts. The person released on guarantee shall report to the enforcement organ within five days of receiving the release on guarantee decision documents. The enforcement organ shall give feedback to the decision-making organ within three days of the person released on guarantee reporting to them.

Where the person released on guarantee fails to report to the police substation responsible for enforcement in the time provided, and does not have a legitimate reason, the enforcement organ shall notify the decision-making organ and the decision-making organ shall summon the person released on guarantee for interrogation in accordance with law; and where the person released on guarantee does not come in, it is to be addressed in accordance with Chapter V of these provisions.

Article 18: During enforcement organs' enforcement of release on guarantee, they shall notify the person released on guarantee that they must comply with the provisions of Criminal Procedure Law article 71, and other the legal consequences of violating those provisions or committing a new crime during the period of release on guarantee.

Where a guarantor is used as guarantee, the guarantor shall be notified of the obligations they must perform as well as the legal consequences of not performing the obligations, and a certificate of guarantee is to be issued.

The enforcement organs shall lawfully oversee and observe the person released on guarantee's compliance with provisions and the related circumstances, and promptly learn of changed circumstances in their address, work unit, or contact information, to prevent and stop their carrying out conduct that violates provisions.

The persons released on guarantee shall comply with provisions related to release on guarantee, accept oversight and management by the enforcement organs, and cooperate with the enforcement organ periodically learning of situations.

Article 19: Persons released on guarantee must not leave the city or county of their residence without approval.

Where the persons released on guarantee need to leave the city or county of their residence, they shall submit a written application to the police substation responsible for enforcement and note their reasons, purpose, route, method of transportation, return date, contact methods, and so forth. Where the person released on guarantee has urgent matters and cannot submit a written application in time, they may first submit an application by phone or text message and then supplement with the written application in a timely fashion.

Where after review, legitimate reasons such as work, study, or medical care are found, the responsible person for the police substation is to approve it.

After the police substation responsible for enforcement give approval, they shall inform the decision-making organ and notify the person released on guarantee to comply with the following requirements:

(1) Maintain clear methods of communication and report promptly when summoned for interrogation;

(2) Travel in strict accordance with the approved locations, routes, and return date;

(3) they must not engage in activities that obstruct litigation;

(4) Promptly report to the enforcement organs after returning to their place of residence.

Approval procedures may be simplified based on the situation for those whose normal work and life require them to regularly go between cities or counties.

Article 20: Where people's courts or people's procuratorates make the decision for release on guarantee, they shall send the decision document, written enforcement notification, and other materials to the local public security organ at the same level, which is to transfer it for enforcement in accordance with articles 15, 16, and 17 of these Provisions.

People's courts and people's procuratorates may employ electronic means to send legal documents and related materials to the public security organs.

The county-level public security organ responsible for the enforcement shall, within 24 hours of receiving the legal papers and relevant materials, designate the local police substation for the residence of the person released on guarantee for enforcement, and notify the people's court or people's procuratorate that made the decision for release on guarantee of the police substation that is enforcing the release on guarantee.

Where the residence of the person released on guarantee changes, the public security organs responsible for enforcement are to notify the public security organs for the new place of residence to enforce it, and notify the people's court or people's procuratorate that made the decision for release on guarantee.

Where a people’s court or people’s procuratorate makes the decision to release on guarantee, then before approving the person released on guarantee's departure from the city or county in which they reside, the enforcing organs shall obtain the consent of the decision-making organ.

Article 21: Where public security organs or people's procuratorates that made the decision for release on guarantee summon te person released on guarantee for interrogation, they shall draft a legal document and serve it on the person released on guarantee. Where the summoned person who is released on guarantee is not present, they may also be given to adult relatives who live with the person to receive it on their behalf, and the person released on guarantee is to be contacted for confirmation and to inform them. Where service is not possible or the person released on guarantee fails accept the summons for interrogation in accordance with provisions, this shall be noted on the legal documents, and notice is to be given to the enforcement organ.

Where the situation is urgent, the public security organs or people's procuratorates that made the decision for release on guarantee may summon the person released on guarantee for interrogation through means such as telephone, but shall note this on the legal documents and inform the enforcement organs.

Where making a summons for interrogation to a different location, the public security organs or people's procuratorates that made the decision for release on guarantee may entrust the enforcement organs to make service on their behalf, and after the enforcement organ make service, they shall give feedback to the decision-making organ. Where service is impossible, it shall be noted on the legal documents and notice is to be given to the decision-making organ.

The enforcement of people's courts' summons for interrogation of criminal suspects released on guarantee is to be in accordance with other relevant provisions.

Article 22: Guarantors shall conduct oversight of the person released on guarantee's compliance with the management provisions for release on guarantee, and where they discover that the person under their guarantee has already violated or might violate article 71 of the Criminal Procedure Law, they shall promptly report it to the enforcement organs.

Where guarantors are unwilling to continue guaranteeing or no longer meet the conditions for doing so, the guarantor or person released on guarantee shall promptly report to the enforcement organ. The enforcement organs shall notify the decision-making organ within three days of discovering or being informed of this situation. The decision-making organs shall order the person released on guarantee to newly submit a guarantor or post a guarantee deposit, or shall change the compulsory measures, and notify the enforcement organ.

Article 23: Where the enforcement organs discover that a person released on guarantee has violated provisions that they are required to follow, and that the guarantor has failed to fulfil their obligation to guarantee, they shall promptly stop it and employ corresponding measures, and concurrently notify the decision-making organ.

Chapter IV: Modification and Release

Article 24: At the completion of the period for release on guarantee, the decision-making organ shall make a decision to lift the release on guarantee or to modify the compulsory measures, and submit this to the enforcement organ. Where there is a decision to lift the release on guarantee or where other criminal compulsory measures are not employed against the person released on guarantee, then the person released on guarantee, their agent ad litem, and close relatives or defenders have the right to request that the decision-making organ lift the release on guarantee. e

Where it is discovered that the person released on guarantee shall not be pursued for criminal responsibility and a decision is made to withdraw the case or terminate the investigation, the decision-making organs shall promptly make a decision to lift the release on guarantee and send it to the enforcement organs.

In any of the following circumstances, release on guarantee is automatically lifted and further formalities for its release are not to be completed, and the decision-making organ shall promptly notify the enforcement organ.

(1) The release on guarantee is changed to residential surveillance, detention, or arrest in accordance with law, and the new compulsory measures have already begun enforcement;

(2) The people's procuratorates make a decision not to prosecute;

(3) A people's court judgment or ruling of not-guilty, waiver of criminal penalties, or not bearing criminal responsibility has already taken legal effect;

(4) A sentence of controlled release or a suspended sentence is given and enforcement of community corrections has already begun;

(5) Where a judgment or ruling independently applying a supplemental punishment has already taken legal effect;

(6) A sentence of imprisonment is given and the enforcement has already begun.

After the enforcement organ receives the decision documents or notifications above from the decision-making organ, they shall immediately enforce them and promptly notify the decision-making organ of the enforcement situation.

Article 25: Where persons released on guarantee using the guarantee deposit method of guarantee do not violate the provisions of article 71 of the Criminal Procedure Law during the period of release on guarantee, and also do not commit any intentional crimes, the public security organs shall notify the bank to return the guarantee deposit at the same time that they life the release on guarantee, modify compulsory measures, or enforce criminal penalties.

A person released on guarantee pending further investigation or his legally-designated representative may rely on the relevant legal documents to reclaim their guarantee deposit from the bank. Where a person released on guarantee cannot retrieve their guarantee deposit from the bank themselves, then after they personally issue a written application and the public security organs consent, the public security organs are to notify the bank to transfer the returned guarantee deposit to the bank account provided by the person released on guarantee or that of a person they entrust.

Article 26: Where release on guarantee is already employed during the investigation or review for prosecution phases, and it is necessary to continue the release on guarantee, modify the means of guarantee, or change the compulsory measures when transferring the case to be reviewed for prosecution or for trial, the organ accepting the case shall make a decision within seven days and notify the organ that is transferring the case and the enforcement organ.

After the organ accepting the case makes a decision on release on guarantee and enforcement, the original release on guarantee decision is automatically lifted and no further procedures for lifting it are to be completed. Where a guarantee deposit will continue to be used as guarantee, the amount of the guarantee deposit, in principle, is not to be changed, and the guarantee deposit is not to be newly collected again. After the compulsory measures as changed by the organ accepting the case have begun enforcement, the organ that transferred the case and the enforcement organ shall be promptly notified, the original release on guarantee decision is to be lifted, and no further lifting procedures are to be completed; the enforcement organ shall return the guarantee deposit in accordance with law.

Where the time period for release on guarantee is about to be completed and the organ accepting the case has still not made a decision to continue release on guarantee or to change compulsory measures, the organ transferring the case shall notify the organ accepting the case in writing within 15 days prior to the completion of the time period. The organ accepting the case shall make a decision before the period of release on guarantee is complete and notify the organ transferring the case and the enforcement organ.

Chapter V: Responsibility

Article 27: Where a person released on guarantee using a guarantee deposit violates article 71 of the Criminal Procedure Law and the guarantee deposit shall be confiscated in accordance with law, the public security organs are to make a decision to confiscate some or all of the guarantee deposit and notify the decision-making organ. Where the people's procuratorate or people's courts discover that a person released on guarantee using a guarantee deposit has violated the provisions of article Criminal Procedure Law article 71, they shall inform the public security organs in writing, and the public security organs are to handle it in accordance with law.

Where the guarantee deposit of a person released on guarantee is confiscated, in light of the different situations the decision-making organs shall order the person released on guarantee to express remorse, newly post a guarantee deposit, submit a guarantor, or modify the compulsory measures, and inform the enforcement organ. f

The provisions of articles 11, 12 and 13 of these Provisions are to be applied to the posting of a new guarantee deposit.

Article 28: Where a person released on guarantee comprises conduct provided for in item (4) of article 60 of the Public Security Administration Punishment Law of the PRC, they are to be given public security administration punishments in accordance with law.

Article 29: Where a person released on guarantee has not violated the provisions of article 71 of the Criminal Procedure Law, but is suspected of intentionally committing a new crime during the period of release on guarantee that has had a case opened for investigation, the public security organs shall temporarily seize the guarantee deposit and wait until after the judgment of the people's court has taken effect to decide whether to confiscate the guarantee deposit. Where a new crime was intentionally committed, the guarantee deposit shall be confiscated; where a new crime was committed by negligence or a crime was not constituted, the guarantee deposit shall be returned.

Article 30: Where public security organs decide to confiscate the guarantee deposit, they shall draft a written decision on the confiscation of guarantee deposit, and pronounce it to the person released on guarantee within 3 days, informing them that, if unsatisfied with the confiscation decision, the person released on guarantee pending further investigation or his legally-designated representative may, within 5 days, apply to the public security organ that made the confiscation decision for a reconsideration.

Where the person released on guarantee or their legally-designated representative are unsatisfied with the reconsideration decision, they may, within 5 days of receiving the written reconsideration decision, apply to the public security organ at the level above for a single re-examination.

Article 31: Where guarantors fail to fulfill their oversight obligations or the person released on guarantee violates article 71 of the Criminal Procedure Law and the guarantor fails to promptly report it or conceals it, after investigation and verification the public security organs are to fine the guarantors and promptly notify the decision-making organ of the relevant circumstances.

Where guarantors assist the person released on guarantee to carry out conduct obstructing litigation or other such conduct constituting a crime, criminal responsibility is to be pursued in accordance with law.

Article 32: Where public security organs decide to fine a guarantor, they shall draft a written decision to fine them and pronounce it to the guarantor within three days, and inform them that if they are not satisfied with the decision to fine, they may apply to the deciding public security organ for a reconsideration within five days.

Where the guarantors are unsatisfied with the reconsideration decision, they may, within 5 days of receiving the written reconsideration decision, apply to the public security organ at the level above for a single re-examination.

Article 33: Where decisions to confiscate guarantee deposits or fine guarantors have already passed the period for reconsideration, or where the original decision has been sustained after reconsideration and reexamination, or the amount of a fine was changed, the public security organ that made the decision to confiscate the guarantee deposit or fine the guarantor shall promptly notify the designated bank to place the confiscated guarantee deposit or guarantor fine in the national treasury in accordance with relevant state provisions, and shall notify the decision-making organ within three days.

If the guarantee deposit is the personal property of the person released on guarantee and needs to be used for victim restitution, to perform obligations of compensation in attached civil litigation, or for the enforcement of punishments against property, the people's court shall notify the public security organs in writing to transfer the entire guarantee deposit, and the people's court will make a disposition and return the remaining portion to the defendant.

Article 34: Where people's procuratorates or people's courts made a decision for release on guarantee and the person released on guarantee violates provisions for the release on guarantee, and it is necessary to arrest them, the person released on guarantee may be first taken into custody, and the people's procuratorate or people's court are to be requested to make a decision for arrest in accordance with law. Where the people's procuratorate or people's court make a decision to arrest, the local public security organs at the same level are to enforce it.

Article 35: The collection, management, and confiscation of guarantee deposits shall be enforced in strict accordance with these Provisions and the state finance management system; Units and individuals must not collect, confiscate, or return guarantee deposits on their own volition, or withhold, appropriate, privately divide, misappropriate, or otherwise improperly take guarantee deposits. Where provisions are violated, administrative sanctions shall be given in accordance with relevant laws and provisions; and where a crime is constituted, criminal responsibility is pursued in accordance with law.

Chapter VI: Supplemental Provisions

Article 36: "Serious illness" and "inability to care for oneself" as provided for in item (3) of the first paragraph of Criminal Procedure Law article 67 should be implemented with reference, respectively, to the Scope of Serious Illnesses for Medical Parole attachment to the Provisions on Temporary Service of Sentence Outside of Prison issued by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of Justice, and Health and Family Planning Commission, and the Standards for Identifying Criminals' Inability to Care for Themselves attached to the Supreme People's Court Notice on the Issuance of Standards for Identifying Criminals' Inability to Care for Themselves

Article 37: Where state security organs make the decision on or enforce release on guarantee, the provisions of these Provisions related to the duties of public security organs are applied.

Article 38: Where the people's court or people's procuratorates make a decision for release on guarantee but the area where they are located does not have a public security organ at their level, the provincial-level public security organs are to collaborate with the people's court and people's procuratorate at that level to designate a public security organ for enforcement in accordance with these Provisions and transfer the case for enforcement, clarifying mechanisms for linking efforts.

Article 39:"Enforcement organs" as used in these Provisions refers to public security organs and state security organs responsible for enforcing release on guarantee.

Article 40: These Provisions take effect on the date of printing and issue.

 

About China Law Translate 1254 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

Be the first to comment

Leave a Reply

Your email address will not be published.


*