MPS Provisions On Reconsideration in Criminal Matters

Title: Public Security Organs' Provisions on Procedures for Handling Cases of Review and Reconsideration in Criminal Matters

Promulgating Entities: Ministry of Public Security

Reference number:

Promulgation Date: 2014-9-13

Expiration date:

Source of text: http://www.mps.gov.cn/n16/n1282/n3493/n3823/n442421/4167831.html

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Public Security Organs' Provisions on Procedures for Handling Cases of Review and Reconsideration in Criminal Matters

Ministry of Public Security

People's Republic of China Ministry of Public Security, Order No. 133th

The "Public Security Organs' Provisions on Procedures for Handling Cases of Review and Reconsideration in Criminal Matters" was passed by the Ministry of Public Security Office of The Minister's Committee, and is hereby released to take effect on November 1, 2014.

September 13, 2014

Public Security Organs' Provisions on Procedures for Handling Cases of Review and Reconsideration in Criminal Matters

Chapter I: General Provisions

Article 1: These Provisions were drafted in accordance with the Criminal Procedure Law of the People's Republic of China and related regulations to standardize the handling procedure of criminal reconsideration and review of a case by public security organs, protect the legitimate rights and interests of citizens, legal persons, and other organizations according to law, and safeguard and supervise public security organs in their performance of their duties.

Article 2: 刑事案件中的相关人员对公安机关作出的驳回申请回避、没收保证金、对保证人罚款、不予立案决定不服，向公安机关提出刑事复议、复核申请，公安机关受理刑事复议、复核申请，作出刑事复议、复核决定，适用本规定。

Article 3: Public security organs shall abide by the principles of lawful justice and righting every wrong when handling the reconsideration or review of criminal cases, to ensure the proper implementation of the nation's laws.

Article 4: An " criminal reconsideration or review organ" as used in these Provisions refers to the legal department of a public security organ.

The relevant departments of a public security organ shall make a division of labor according to their responsibilities and coordinate with the legal department to do criminal reconsideration or review work together.

Article 5: All expenses needed by an organ of criminal reconsideration or review to conduct the reconsideration or review of a criminal case shall be listed as expenditures in the public security operating expenses at their level. All subordinate public security organs shall guarantee any facilities or work conditions required to conduct a criminal reconsideration or review.

Chapter II: Application

Article 6: The following persons may submit an application for criminal reconsideration to a public security bureau according to law during the handling of a criminal case:

1. A litigant or their legally-designated representative, representative in litigation, or defense lawyer may submit an application for reconsideration if they are dissatisfied with a decision to reject an application for withdrawal;

2. A person released on guarantee pending trial or their legally-designated representative may submit an application for reconsideration if they are dissatisfied with the decision to confiscate the bail deposit;

3. The guarantor may submit an application for reconsideration if they are dissatisfied with the decision to impose a forfeit;

4. The accusant may submit an application for reconsideration if they are dissatisfied with the decision to not file a case for investigation;

5. An administrative organ may submit an application for reconsideration if it is dissatisfied with a decision to not file for investigation a case that it had transferred.

Article 7: Where an applicant for criminal reconsideration is dissatisfied with the public security bureau's decision in the case of the criminal reconsideration of decisions under Article 6 Items 2-4 of these Provisions, the applicant may submit an application for criminal review to the public security organ at the next highest level.

Article 8: Where an application cannot be submitted within the statutory time limit due to force majeure or other cogent reasons, relevant proof shall be submitted within five working days of the removal of the obstacle. Where the organ of criminal reconsideration or review has confirmed the proof, the time delay will not be taken into account in the statutory time limit for the application.

"Other cogent reasons" as provided for in the preceding clause include:

1. Being unable to submit an application for criminal reconsideration or review within the statutory time limit due to serious illness;

2. Being unable to determine the legally-designated representative of an incapacitated person or person of limited capacity within the statutory time limit;

3. Being unable to determine within the statutory time limit who shall bear the rights of a legal person or other organization where a legal person or other organization has merged, split, or terminated;

4. Other cogent reasons as recognized by the organ of criminal reconsideration or review.

Article 9: Applications for reconsideration of criminal matters shall be made in writing; however, an oral application may be made in exigent circumstances or where the applicant cannot easily submit a written application.

Applications for criminal review shall be in writing.

Article 10: Applicants shall submit a written application for criminal reconsideration or review to the organ of criminal reconsideration or review with the following information set out clearly:

1. The applicant and its representative's full name, gender, date of birth, work unit, residential address, and contact method; the legal person or other organization's name, address, and the full name, position, residential address, and contact method of its legally-designated representative or principle person in charge;

2. The name of the public security organ which issued the decision or the reconsideration decision;

3. The criminal reconsideration or review request;

4. The reasons and facts of the application for criminal reconsideration or review;

5. The date of application for criminal reconsideration or review.

The applicant shall sign or affix their fingerprint to the written application.

Article 11: Where an oral application is made, a worker with the organ of criminal reconsideration or review shall record in writing the application for reconsideration or review on the spot in accordance with Article 10 of these Provisions, and the application will be signed by the applicant or affixed with their fingerprint after having been checked by the applicant or read out to and verified as correct by the applicant.

Article 12: The applicant shall submit the following information when applying for criminal reconsideration or review:

1. A photocopy of the original decision or notice;

2. Applications for criminal review shall also submit a photocopy of the reconsideration decision;

3. A photocopy of the applicant's identification document;

4. Where a representative in litigation is submitting the application, they must also submit the litigant's power of attorney;

5. Where a defense lawyer is submitting the application, they must also submit data including a photocopy of their lawyer's credentials along with proof of their law firm and their power of attorney or official letter for legal aid;

6. Relevant documents of facts and proof that the applicant has collected on their own.

Article 13: The number of staff may not be less than two persons when the organ of criminal reconsideration or review is performing the following tasks:

1. Accepting an oral application for criminal reconsideration;

2. Conducting an investigating into the situation of relevant organizations or persons;

3. Hearing the objections of the applicant or relevant persons.

The organ of reconsideration or review staff who participated in the examination of the original decision may not serve as investigators in the criminal reconsideration case.

Chapter III: Acceptance and Review

Article 14: After organs for criminal reconsideration and review receives an application for reconsideration or review, they shall make an initial review of whether it complies with following requirements:

1. Is accepted by this organ;

2. The applicant has statutory qualifications;

3. There are clear claims for criminal reconsideration or review;

4. It is within the scope of criminal reconsiderations and reviews;

5. It has been submitted within the stipulated period;

6. All accompanying data are complete.

Article 15: Organs for criminal review and reconsideration shall, within 5 business days of receiving the application for reconsideration or review, make one of the following distinct dispositions:

1. Where the requirements of article 14 of these Provisions are met, it is accepted

2. Where the requirements of article 14 of these Provisions are not met, it is not accepted. Those that are not for this organ to accept shall notify the applicant to submit it to the public security organ with authority to accept it.

3. Where the application materials are not complete, the applicant shall be notified in writing a single time to supplement the materials within 5 working days; and the period for reconsideration or review will be calculated from the date on which applicant's supplemented materials are received.

Where after a public security organ makes a criminal reconsideration or review decision, relevant personnel again apply for a criminal reconsideration or review, it will not be accepted.

Article 16: After receiving a accuser's application for criminal reconsideration or review of a decision to not file a case, the public security organs shall conduct a review of whether the accused has also made an accusation or appeal to the procuratorate relating to the same matter. Where the procuratorate organs have already accepted an accusation or appeal from the same matter, the public security organs shall make a decision not to accept it; Where after the public security organs accept it, the accuser raises an accusation or appeal to the procuratorate regarding the same matter, and the procuratorate has already accepted it, the public security organs shall terminate the criminal reconsideration or review procedures.

Article 17: Where an applicant applies for state compensation along with an application for criminal reconsideration or review, the criminal reconsideration or review organ shall notify the applicant to separately apply for state compensation.

Article 18: Where public security organs do not accept a criminal reconsideration or review application, or where the reconsideration or review procedures are terminated, the applicant shall be informed within three business days of making the decision.

Article 19: In cases of reconsideration of a decision rejecting a request for recusal, the criminal reconsideration organ shall emphasize review of the following matters:

1. Whether there is a matter mandating recusal.

2. Whether the basis for application is accurate;

3. Whether legal procedures were complied with.

Article 20: In cases accepting an application for criminal reconsideration or review a decision on forfeiture of a guarantee deposit , the reconsideration or review organ shall principally review the following matters:

1. Whether the person was released on guarantee violated relevant regulations they should obey during the release period;

2. Whether the basis for application is accurate;

3. Whether there are any obvious improprieties;

4. Whether legal procedures were complied with;

5. Whether authority was exceeded or abused.

Article 21: In cases accepting an application for criminal reconsideration or review of a decision not to fine a guarantor, the reconsideration or review organ shall principally review the following items:

1. Whether the person was released on guarantee violated relevant regulations they should obey during the release period;

2. Whether the guarantor failed to fulfill their duties;

3. Whether the basis for application was correct;

4. Whether there are clear improprieties;

5. Whether legal procedures were complied with;

6. Whether authority was exceeded or abused.

Article 22: In cases accepting an application for criminal reconsideration or review of a decision not to file a case, the criminal reconsideration or review organ shall principally review the following items:

1. Whether the conditions for filing are met;

2. Whether there is evidence that the alleged conduct involves a crime;

3. Whether the basis for application was correct;

4. Whether legal procedures were complied with;

5. Whether it is within the scope of non-performance of duties.

"Involves a crime" as used in item 2 of the previous paragraph is not limited to accusations of a specific crime.

Where in the course of procedures, facts outside the alleged conduct are discovered that might involve a crime, it shall be recommended that the cases handling department conduct an investigation, but the investigation conclusions do not serve as the basis for a criminal reconsideration or review decision.

Article 23: After accepting an application for criminal reconsideration or review, the reconsideration or review organ shall promptly notify the case handling department, or the department that made a criminal reconsideration decision, to provide the evidence and other materials on which the decision was based within the time period provided.

The case handling department or organ that made a criminal reconsideration decision shall provide the relevant materials within the period provided by the reconsideration or review organ.

Article 24: When handling criminal review cases, the criminal review organ may solicit the opinions of the public security organs relevant operations department, and the relevant operations department shall promptly provide comments.

Article 25: Where it is not possible to confirm the facts of the case based on the materials provided by the applicant, and it is necessary to conduct a separate investigation to collect materials, the criminal reconsideration or review organ shall, upon reporting to the reconsideration or review organ's responsible party reporting the responsible party at the public security organ for permission, notify the case handling department or the organ that made a reconsideration decision to investigate and collect evidence. The case handling department or department which made a reconsideration decision shall send the results of the investigation to the criminal reconsideration or review organ within the time period on the notice.

Article 26: Where before a decision on criminal reconsideration or review is made, the applicant requests to withdraw the application, the reason shall be explained in writing. Where criminal reconsideration and review organizations permit the withdrawal of an application, reconsideration and review procedures shall be terminated. However, in any of the following situations, do not allow the applicant to withdraw the application and inform the applicant:

1. Where withdrawal of the application might harm national interests or the public interest or the lawful rights of interests of interest;

2. Where withdrawal of the application was not voluntary on the part of the applicant;

3. Other circumstances where withdrawal of an application is not permitted.

Where after a public security organ permits an applicant to withdraw an application, the applicant newly raises an application arising from the same facts and reasons, it is not accepted.

Chapter IV: Decisions

Article 27: Where parties and their legally-designated representatives, agents at litem or defenders request a criminal reconsideration of the rejection of request for a recusal, the public security organs shall make a decision within 5 working days of receiving the application and notify the applicant in writing.

Article 28: Where administrative law enforcement organs transferring a case apply for a criminal reconsideration of a decision not to file a case, the public security organ shall make a decision within three working days of receiving the application and inform the transferring administrative law enforcement organ in writing.

Article 29: 对没收保证金决定和对保证人罚款决定申请刑事复议、复核的，公安机关应当在收到申请后七个工作日以内作出决定并书面告知申请人。

Article 30: Where an accuser applies for a criminal reconsideration or review of a decision to not file a case, the public security organs shall make a decision within 30 days of receiving the application and inform the applicant in writing.

Where the case is major or complicated, and the responsible party at a criminal reconsideration or review organizations permits, it may be extended, but the extension period must not exceed 30 days, and inform the applicant in writing.

Article 31: In any of the following situations during the period for criminal reconsideration or review, upon permission of the responsible party at the criminal reconsideration or review organization, the reconsideration or review may be suspended and the applicant notified in writing:

1. The case touches upon specialized problems that need relevant organs or specialized organization to make an interpretation or verification;

2. There is no way to locate relevant parties;

3. It is necessary to await an appraisal opinion；

4. Other situations where reconsideration or review shall be suspended.

After the reason for suspension has dissipated, the criminal reconsideration or review organ shall promptly resume the criminal reconsideration or review, and notice the applicant in writing.

Article 32: Where, for an original decision or for a criminal reconsideration decision, the facts ascertained are clear, the evidence sufficient, the basis correct and the procedures lawful; the public security organs shall make a reconsideration or review decision to maintain that original decision or criminal reconsideration decision.

Article 33: The public security organ shall rescind or alter the reconsideration or review decision of the original decision or criminal review decision where the original decision or criminal reconsideration decision is determined to have unclear principal facts, lack sufficient evidence, be based on errors, violate statutory procedure, or be an excess or abuse of authority.

经刑事复议，公安机关撤销原驳回申请回避决定、不予立案决定的，应当重新作出决定；撤销原没收保证金决定、对保证人罚款决定的，应当退还保证金或者罚款；认为没收保证金数额、罚款数额明显不当的，应当作出变更原决定的复议决定，但不得提高没收保证金、罚款的数额。

After undergoing a criminal review, if a superior public security organ rescinds a criminal reconsideration decision, the public security organ that made the reconsideration decision shall execute that rescindment. Where a new decision is required, the superior organ shall order the public security organ that made the reconsideration decision to issue a new decision according to law. The new decision must not be identical to the original decision, nor can it raise the amount of bail confiscated or fine imposed.

Chapter V: Supplementary Provisions

Article 34: These Provisions are applicable to criminal reconsideration and review cases handled by public security organs for railways, transportation, civil aviation and forestry or by criminal investigation organs for customs and smuggling.

Article 35: These Provisions shall come into force on November 1, 2014. Where Provisions formulated by the Ministry of Public Security prior to the promulgation of these Provisions are inconsistent with these Provisions, these Provisions shall prevail.