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Provisions on Several Issues on the Application of the "PRC Law on International Judicial Assistance" (Provisional)

Promulgation Date: 2024-4-22
Title: Provisions on Several Issues on the Application of the "PRC Law on International Judicial Assistance" (Provisional)
Document Number:司发通〔2024〕31号
Expiration date: 
Promulgating Entities: State Supervision Commission,Supreme People's Court, Supreme People's Procuratorate, Ministry of Foreign Affairs, Ministry of Public Security, Ministry of State Security, and Ministry of Justice
Source of text: https://www.moj.gov.cn/pub/sfbgw/zwxxgk/fdzdgknr/fdzdgknrtzwj/202405/t20240511_498679.html

Article 1: These provisions are enacted on the basis of the "PRC Law on International Criminal Justice Assistance", the "PRC Criminal Procedure Law", the "PRC Supervision Law", and other laws, in order to maintain national judicial sovereignty, standardize procedures for international criminal justice assistance, and increase work quality and efficiency.

Article 2: After foreign liaison organs receive requests for criminal justice assistance from foreign nations, they shall promptly conduct a review of the request documents and all attached materials. Matters for review include:

(1) Whether the request documents indicate the matters required by the PRC Law on International Judicial Assistance;

(2) Whether the request is submitted in accordance with a criminal justice assistance treat or the principle of reciprocity; and where it is based on the principle of reciprocity, whether a suitable entity of the requesting country has made specific and clear pledges of reciprocity;

(3) Whether the request documents and attached materials have translations as required by the PRC Law on International Judicial Assistance or treaties;

(4) Other matters that need to be reviewed.

The pledges of reciprocity provided for in item (2) of the preceding paragraph shall be made in writing by the requesting country’s foreign affairs representative body or the central-level organ responsible for international judicial cooperation and clearly commit to providing equal assistance to the PRC in the future, and must not add additional clauses or limitations.

After foreign liaison organs receive requests from competent organs for criminal justice assistance from foreign nations, they are to promptly submit it to the foreign nation after conducting a review of the request documents and all attached materials with reference to the first paragraph of this article.

Article 3: Article 22, paragraph 3, of the PRC Law on International Judicial Assistance’s mention of the People's Republic of China not bearing an obligation to assist in the service of process, refers to the competent authorities having the right to decide whether or not to assist in serving summons regarding requests to interrogate Chinese citizens or have them appear in court as defendants.

Article 4: Where foreign liaison organs find that the form and content of foreign requests for judicial assistance documents meet requirements, they shall determine the competent organ, based on relevant legally-prescribed duties and division of labor, by comprehensively considering factors such as the nature of the requested matters and the procedural phase of the case:

(1) Where the foreign request is for assistance in serving documents, investigating and collecting evidence, arranging witnesses, or coordinating investigations, and the case has not yet entered the trial phase, transfer it to be handled by non-criminal or criminal investigation organs or supervision organs; and where the case has entered the trial phase, transfer it to be handled by the adjudication organs;

(2) Where the foreign request is for assistance in sealing, seizing, or freezing assets involved in the case, or for confiscating or recovering unlawful gains and other assets involved in the case, transfer it for handling to the competent organs in accordance with article 16 and 17;

(3) Where the case is more complicated, there are special circumstances in the matters requested, or it involves multiple competent organs, and it is necessary to clarify the competent organ that it should be transferred to, the foreign liaison organs may consult with the relevant competent organs make a determination.

Article 5: Where foreign liaison organs’ review finds that any of the following situations exist in the form and content of foreign request documents or the attached materials, they may return the request and explain the reasons in writing, and concurrently ask the requesting country to resubmit the request:

(1) There are major misstatements in the request document that impact the enforcement of the request;

(2) The request document lacks appropriate signatures or seals;

(3) The entity making the request or the target of the request are not eligible under PRC law or treaties;

(4) There are other situations in the request document that seriously impact the implementation of the request;

Where the foreign liaison organs' review finds that any of the following situations exist in the form and content of request documents or the attached materials, they may require the requesting country to supplement the materials:

(1) The request documents' or attached materials’ description of the case facts or requested matters are not sufficient or unclear, and might impact the implementation of the request;

(2) The request documents or attached materials do not have a translation attached as required by PRC Law or treaties, or the translation is incorrect and it the content of the request cannot be determined;

(3) Other situations where the materials need to be supplemented.

Where, upon review, the competent organs find that assistance shall be refused in full or in part, or that there are other situations of the form or content not meeting requirements, they shall explain the reasons in writing and respond to the requesting nation through the foreign liaison organs.

Article 6: Where any of the following situations exist in foreign requests for criminal justice assistance, the foreign liaisons organs, competent organs, and case handling organs may prioritize the handling on the basis of the case situation and as necessary for work:

(1) It is necessary to urgently seal, seize or freeze assets involved in the case or to confiscate unlawful gains and other assets involved in the case;

(2) It is truly necessary to handle it immediately based on time limits for investigations, initiating litigation, or trial;

(3) The case involved has a major impact or other special situations.

Article 7: The foreign liaison organs shall complete handling within 45 days of receiving a foreign request for criminal justice assistance or the competent organs’ enforcement results; where it was given priority handling in accordance with article 6 of these Provisions, the handling shall normally be completed within 30 days of receiving the request or enforcement results; and where it is necessary to employ measures such as emergency freezing of assets, the handling shall be completed within 15 days of receiving the request or enforcement results.

The competent organs shall complete handling within 45 days of receiving a foreign request for criminal justice assistance from the foreign liaison organs or the case handling organs’ enforcement results; where it was given priority handling in accordance with article 6 of these Provisions, the handling shall normally be completed within 30 days of receiving the request or enforcement results; and where it is necessary to employ measures such as emergency freezing of assets, the handling shall be completed within 15 days of receiving the request or enforcement results.

The case handling organs shall submit handling recommendations or complete handling within 90 days of receiving a foreign request for criminal justice assistance from the competent organs; where it was given priority handling in accordance with article 6 of these Provisions, they shall normally submit handling recommendations or complete handling within 30 days of receiving the request; and where it is necessary to employ measures such as emergency freezing of assets, then within 15 days of receiving the request, handling recommendations are to be submitted or the handling completed.

Where case-handling organs are handling criminal cases with transnational elements and need foreign countries to provide judicial assistance, they shall promptly draft a document requesting criminal justice assistance, attach the relevant materials, and send them for review to a competent organ that they are subordinate to. The competent organs and foreign liaison organs shall promptly review and address the case-handling organs’ requests for criminal justice assistance from foreign countries.

Where the case is major or complicated and requires coordinated handling, it is permissible to not apply the time limits provided for in this article, a corresponding explanation shall be made when the foreign liaison organs, competent organs, and case-handling organs communicate with each other.

Article 8: The foreign liaison organs shall strengthen communication and contact with relevant foreign organs, to promote increasing the frequency and quality of foreign countries’ enforcement of PRC requests for criminal justice assistance.

The foreign liaison organs and competent organs are to support and guide the case-handling organs’ submission of requests for foreign criminal justice assistance.

The foreign liaison organs shall periodically prepare statistics on the handling of international criminal justice assistance cases and promptly report to the competent organs.

Article 9: The competent organs shall strictly review and control the evidence or other information collected by the case handling organs in response to a foreign request for criminal justice assistance, to ensure that the evidence or other information transferred to the foreign liaison organs to be provided abroad complies with relevant laws in terms of content and format.

Article 10: The foreign liaison organs, competent organs, and so forth shall jointly advance the information technology establishment in international criminal justice assistance, to increase the level of informatization in international criminal justice assistance.

Article 11: Where foreign organs, organizations, and individuals carry out the following conduct in the mainland PRC territory, it is a “criminal procedure activity” as provided for in the third paragraph of Article 4 of the PRC Law on International Judicial Assistance:

(1) Serving a summons, notice, indictment [complaint], judgment, or other criminal law document on a PRC mainland institution, organization, or individual;

(2) Gathering or collecting criminal evidence materials from PRC mainland institutions, organizations, or individuals;

(3) Contacting, making arrangements for, or requesting that PRC mainland institutions, organizations, or individuals testify, assist in investigations, or participate in trial by going abroad or remotely by video or audio means from the mainland;

(4) Requesting that Mainland PRC institutions, organizations, or individuals assist in employing measures such as sealing, seizing, or freezing assets involved in a case;

(5) Requesting the Mainland PRC institutions, organizations, or individuals assist in enforcing criminal justice rulings and judgments made by foreign countries;

(6) Other criminal procedure activities as provided for by law.

Article 12: Establish a working mechanism composed of foreign liaison organs, compente organs, and so forth, for the review of criminal evidence being exported abroad (hereinafter “working mechanism”) to plan and take responsibility for efforts related to the security review of criminal evidence being exported. The working mechanism office is to be established in the State Council Judicial Administration Department.

Article 13: Where Mainland PRC institutions, organizations, or individuals receive direct foreign notices, other than through the channels for international criminal justice law enforcement cooperation, requesting that they assist in conducting criminal procedure activities provided for in article 11 of these Provisions or that they provide other assistance as provided for in the PRC Law on International Judicial Assistance, they shall report the situation to the working mechanism within 30 days of receipt.

When reporting, they shall submit a specific explanation of the relevant circumstances and attach copies of relevant legal documents or other evidence materials. Where the reporter requests confidentiality, the member units of the working mechanism shall maintain their confidentiality in accordance with law.

After the working mechanism’s office receives reports, it shall meet with the member units of the working mechanism, and where it is necessary for the foreign country to submit a criminal judicial assistance request, the relevant foreign liaison organ shall submit a request to the foreign country.

Article 14: Where Mainland PRC institutions, organizations and individuals need to proactively provide evidence abroad in order to preserve their own rights and interests, they shall comply with relevant laws such as on the protection of state secrets, data security, and personal information protection, and submit a written application to the office of the working mechanism. Applications are to include, but are not limited to, the following content:

(1) Information on the applicant themself, the basic circumstances of the case, the scope, content, and basis for the evidence they are applying to provide, etc.;

(2) If there is an administrative or industry regulatory department for the applicant, the comments of that department;

(3) An explanation of the evidence’s compliance with with laws such as on the protection of state secrets, data security, and personal information protection, as well as contractual obligations for confidentiality, and so forth;

(4) An explanation of matters such as the purpose and use of the evidence, as well as confidentiality and security measures;

(5) Other materials required for applications.

Article 15: The office of the working mechanism shall promptly accept applications that meet the requirements of article 14 of these Provisions, and collaborate with the competent organs among the member units off the working mechanism to conduct a review of the evidence that export is being applied for.

The office of the working mechanism shall notify the applicant of the results of the review within 60 days of receiving the application. Where the case situation is complicated or it is necessary to solicit the comments of other relevant departments, the time limit may be extended in light of the circumstances.

Article 16: Where foreign request assistance in sealing, seizing, or freezing assets involved in the case, then based on the case circumstances and the stage of the proceedings, it is to be transferred for handling to the relevant competent organs. Where the competent organs find through review that the conditions are met, they may arrange for the case-handling organs to implement it in accordance with law, and the case-handling organs shall promptly inform the foreign liaison organs of the sealing, seizure, or freezing through the competent organs.

Article 17: Where foreign countries request assistance in confiscating or recovering unlawful gains and other assets involved in the case, and have already provided a copy of a valid confiscation order or other legal document issued by a foreign judicial organ, it is to be transferred to the Supreme People's Procuratorate and Supreme People's Court for handling. Where, upon review, the conditions for enforcement are met, the Supreme People's Procuratorate and Supreme People's Court may transfer it to the relevant subordinate case-handling organs to assist in enforcement.

Where foreign countries request that criminal justice assistance be provided for the purpose of confiscating unlawful gains and other assets involved in the case that are in their country, and the competent organs and case-handling organs find that the assets are the lawful property of the PRC state, citizens, legal persons, or other organizations; they shall request that the foreign country return them when providing assistance.

Article 18: The People's Republic of China is to carry out sharing and cooperation with foreign countries regarding confiscated assets in accordance with the principle of reciprocity. Foreign liaison organs, in collaboration with competent organs, may sign sharing agreements for individual cases with foreign countries.

Where foreign countries provide assistance regarding confiscation rulings made by the PRC and submit requests for sharing in accordance with law, the foreign liaison organs, in collaboration with the competent organs, may decide to share with the foreign country. In sharing of assets with foreign countries, priority consideration shall be given to the unlawful gains and case assets remaining after returning assets to their lawful owner or compensating victims, and seizing reasonable costs of the PRC case-handling organs, The proportion of confiscated assets to be shared with foreign countries is to be determined by considering the degree of contribution made by the foreign country to the PRC confiscation ruling or judgment.

In requests for foreign countries to confiscate or recover unlawful gains or other assets involved in a case where a foreign nation submits a request for sharing, the amounts and proportions for sharing are to be decided upon through consultation with the foreign country by the foreign contact organs together with the responsible organs.

Article 19: Where foreign countries have already provided criminal justice assistance to the PRC, the competent organs and case-handling organs shall strictly comply with pledges made in areas such as sentencing, pursuit, rights protection, confidentiality, use of evidence, case application, and the scope of personnel.

Article 20: After the competent departments receive a request submitted by a foreign country to transfer a convict as transferred by the foreign liaison departments, they shall conduct a review based on the relevant provisions of laws and treaties, and solicit the comments of the relevant departments in charge.

Article 21: On the foundation of the comments from the relevant departments in charge, the competent organs shall make a decision to agree to or refuse the convict transfer; and where agreeing to transfer a convict to a foreign country, the foreign liaison organs is to notify the requesting country and the convict in writing.

Article 22: The foreign liaison organs may require the requesting country to provide information on the circumstances of a convict’s sentence and conduct after being transferred back to a county, and promptly report this to the competent organs and relevant departments in charge.

Article 23: “Days” as used in these Provisions relating to time periods refers to natural days.

Article 24: “Foreign liaison organs” as used in these Provisions includes the organs that laws provide shall contacted during contact through diplomatic channels.

Article 25: These Provisions come into force on the date of promulgation.

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