609 total views, 2 views today
[Translators’ Note: While we prefer the phrase “system of leniency for those who admit guilt and accept punishment” for 认罪认罚从宽制度, it is undeniably clunky, and we have introduced the phrase “plea leniency system” as an alternate, shorter translation. Following this logic, we have used ‘plea cases’ for ‘认罪认罚案件’.
认罪认罚 is different than a plea for many reasons, but we believe this is a helpful, and not terribly misleading. Do keep in mind, however, that ‘plea’ here does not mean only the formal entering of a position at court, but is an admission of guilt and show of contrition at any pre-sentencing phase of the criminal justice process.]
Notice of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice on the release of "Measures for Pilot Project Work in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases."
Law  No. 386
High People's Courts, people's procuratorates, public security departments (bureaus), state security departments (bureaus), and departments of justice (bureaus) of Beijing, Tianjin, Liaoning, Shanghai, Jiangsu, Zhejiang, Fujian, Shandong, Henan, Hebei, Hunan, Guangdong, Chongqing, Shaanxi provinces (municipalities):
In accordance with 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 sytem of leniency for those who admit guilt and accept punishment in criminal cases" (hereinafter "Authorization Decision"), the Supreme People's Court and Supreme People's Procuratorate, together with the Ministry of Public Security, Ministry of State Security, and Ministry of Justice, have formulated these "Measures for Pilot Project Work in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases." (hereinafter "Pilot Measures"") which are hereby released and notice on the following requirements for the work is given:
The major significance of carrying out the pilot work should be fully recognized.The pilots on a system of leniency for those who admit guilt and accept punishments [hereinafter "plea leniency system"] is an important part of implementing the 18th Party Central Committee's fourth plenary session reforms on improving systems of leniency for those who admit guilt and accept punishment, and is an important exploration of how to make the criminal law policy of 'blending leniency with severity' more concrete and systematic. This reform is conducive to promptly and effectively punishing crimes and preserving social stability; is conducive to further implementing the criminal law policy of blending leniency with severity and strengthening judicial safeguards for human rights; is conducive to optimizing the allocation of judicial resources, and bringing about the unification of justice and efficiency at a higher level; and is conducive to exploring the establishment of a scientific criminal justice system and promoting the trial-centered criminal procedure system reform. All levels of people's courts, people's procuratorates, public security organs, state security organs and judicial-administrative organs, should fully recognize the major significance of the pilot efforts, and actively, prudently, and orderly carry out pilot project work.
Implementation plans should be promptly formulated.The cities where the pilot projects are carried out are Beijing, Tianjin, Shanghai, Chongqing, Shenyang, Dalian, Nanjing, Hangzhou, Fuzhou, Xiamen, Jinan, Qingdao, Zhengzhou, Wuhan, Changsha, Guangzhou, Shenzhen, and Xi'an. All areas shall incorporate actual local work conditions and formulate implementation plans or detailed implementation measures on the basis of the "Pilot Measures" and separately report up them up to the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice for recording.
Coordination and cooperation should be strengthened.The people's courts, people's procuratorates, public security organs, state security organs, and judicial-administrative organs of all regions should strengthen communication and coordination on the basis of their division of labor and responsibility and with each taking charge of its own duties, and clarify understanding of policies and the principles for the application of laws for handling pilot cases, and jointly research to resolve new situations and new issues that emerge, combining forces to carry out the pilot project work.
Oversight and guidance should be strengthened.People's courts, people's procuratorates, public security organs, state security organs and judicial-administrative organs for all areas, should earnestly study and gain deep understanding of the "Authorization Decision and "Pilot Measures", to correctly grasp the requirements of the reform pilots. Supervision and guidance of lower levels should be strengthened, paying close attention to the situation of pilots within a jurisdiction region, promptly discovering problems, clearing up situations, summarizing experience, strengthening guidance, and ensuring that pilot project work is regulated and carried out in accordance with law. Pilot work conditions are to be separately reported each quarter up to the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice.
Supreme People's Court; The Supreme People's Procuratorate
The Ministry of Public Security; Ministry of State Security; Ministry of Justice
November 11, 2016
Measures of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on Carrying out Pilot Projects in Some Cities on the System of Leniency for Those Who Admit Guilt and Accept Punishment in Criminal Cases
(Released on November 16, 2016; Fa  No. 386)
These Measures are formulated on the basis of the Criminal Law, the Criminal Procedure Law, 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 to ensure that the pilot projects on the system of leniency for those who admit guilt and accept punishment in criminal cases are carried out orderly and according to law.
Article 1: 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.
Article 2: In any of the following circumstances, the plea leniency system is not to be applied:
(1) Where a criminal suspect or defendant is a mentally ill person who has not completely lost the ability to recognize or control his or her behavior;
(2) Where a juvenile criminal suspect or defendant's legally-designated representative or defender objects to the juvenile's admitting guilt and accepting punishment;
(3) Where the criminal suspect or defendant's conduct does not constitute a crime.
(4) Others situations where application would be inappropriate.
Article 3: The handling of plea cases shall comply with the basic principles of the Criminal Law and Criminal Procedure Law, have the facts as the basis and the laws as their measure, protect criminal suspects or defendants' lawful exercise of the right to a defense and other procedural rights, ensure the lawful rights and interests of victims, preserve the public interest, strengthen oversight and restraint, and ensure that innocent people are not criminally prosecuted and that the guilty receive just punishment, and ensure judicial fairness.
Article 4: The handling of plea cases shall adhere to the following principles:
Implement the criminal policy of tempering severity with leniency, fully considering the social harm of crime and the personal dangerousness of the criminal suspect or defendant, together with the specific circumstances of admission of guilt and acceptance of punishment, to determine whether or not to be lenient and the scope of leniency, making it so that those who should be treated leniently are, but those who should be treated severely are treated severely, blending leniency with severity to ensure to legal and social efficacy of case handling.
Persist in having the penalty suited to the crime, by following legal provisions to submit a sentencing recommendation made on the basis of the facts, nature, circumstances, and consequences of the crime, accurately sentencing, ensuring that the severity of the sentence is commensurate with the criminal conduct committed by the criminal and the responsibility they should bear.
Persist in evidence based judgments, following legal provisions to collect, fix, review, and verify evidence.
Article 5: Handling of plea cases shall ensure that criminal suspects or defendants obtain effective legal assistance, ensuring that they understand the nature and legal consequences of the plea, and make the plea voluntarily.
On the basis of the actual needs of people's courts and detention centers, legal aid institutions may provide legal assistance in forms such as establishing legal aid stations, with duty lawyers or promptly arranging for duty lawyers. People's courts and detention centers shall provide convenient work spaces and necessary office facilities for duty lawyers to carry out their work, and shall simplify meeting procedures, ensuring duty lawyers' lawful performance of their duties.
Where criminal suspects and defendants who voluntarily admit guilt and accept punishment have not retained a defender, the people courts, people's procuratorates and public security organs shall notify the duty lawyer to provide legal assistance such as legal consultation, procedure selection, and applications for modification of compulsory measures.
The people courts, people's procuratorates and public security organ shall notify criminal suspects or defendants of the right to apply for legal aid. Where the requirements requiring notification of legal aid are met, lawfully notify the legal aid institution to appoint a lawyer to provide them a defense.
Article 6: People's courts, people's procuratorates, and public security organs, shall make a criminal suspect or defendant's admission of guilt and acceptance of punishment an important factor in considering their dangerousness to society, and for criminal suspects or defendants where there is no dangerousness to society, the criminal suspect or defendant shall be released on guarantee or given residential surveillance.
Article 7: Handling of plea cases shall hear the opinions of the victims and their representatives, and make whether the criminal suspect or defendant has reached a settlement agreement with victims, or compensated victims' losses, and obtained victims' forgiveness, an important factor in sentencing considerations.
Article 8: During the course of investigation, investigating organs shall inform the criminal suspect of the procedural rights they enjoy and the legal consequences consequences that a plea might lead to, hear the comments of the criminal suspect and their defender or the duty lawyers, and where the criminal suspect voluntarily admits their guilt and accepts punishment, record and attach this to the case file.
Where criminal suspects express willingness to admit guilt and accept punishment to detention center personnel, their defender or the duty lawyer, the relevant personnel shall promptly inform the case handling organ in writing.
In cases that will be transferred to be reviewed for prosecution, the investigating organs shall indicate circumstances of the criminal suspects' voluntary admission of guilt and acceptance of punishment in their indictment opinion.
Article 9: Where criminal suspects voluntarily and truthfully confess the facts of the crime they are suspected of, have major meritorious contributions or the case involves major national interests, and the case must be withdrawn, the public security organs handling the case shall report this up to the Ministry of Public Security, and the Ministry of Public Security is to request approval from the Supreme People's Praocuratorate.
Article 10: During the course of review for prosecution, people's procuratorates shall inform the criminal suspect of the procedural rights they enjoy and the legal consequences consequences that a plea might lead to, and hear the comments of the criminal suspect 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 in review following the admission of guilt and acceptance of punishment;
(4) Other circumstances where opinions need to be heard.
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 11: Where people's procuratorates submit an indictment to the people's court, they shall clearly indicate circumstances of defendant's admitting guilt and accepting punishment in the indictment, submit a sentencing recommendation, and and simultaneously transfer the defendant's written affidavit and other materials.
Sentencing recommendations shall ordinarily include principle punishments and supplementary punishments, and indicate the means of enforcing the penalty. A relatively explicit sentencing range may be submitted, or a fixed sentencing recommendation may be submitted on the basis of the specific case circumstances. Where financial penalties are recommended, a set amount shall generally be submitted.
Article 12: In cases using the expedited procedures, people's procuratorates shall usually make a decision on indictment within 10 days of accepting the case; an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.
Article 13: Where criminal suspects voluntarily and truthfully confess facts of the crime they are suspected of, have major meritorious service or the case involves major national interests, then upon approval from the Supreme People's Procuratorate, people's procuratorates may make a non-prosecution decision, and may also submit a prosecution on one or more of the alleged crimes.
Where there are legally prescribed circumstances for non-prosecution, handle it in accordance with the legal provisions.
Article 14: Where the Supreme People's Procuratorate approves non-prosecution, or in cases where the Ministry of Public Security requests to withdraw the case, people's procuratorates and public security organs shall investigate whether property that has been sealed, seized or frozen, and its yields, for the circumstances of its ownership, clarify whether it is unlawful gains, or whether there is other property involved in the case that shall be disgorged in accordance with law. Where persons not involved in the case raise objections to the ownership (title) of property that has been sealed, seized, or frozen, and its yields, they shall be reviewed.
Assets which have been sealed, seized or frozen, or their yields, that are confirmed to be unlawful gains, contraband,or personal property used in the commission of the crime, shall be uniformly handed over and placed in the national treasury within 30 days of the case being withdrawn or a non-prosecution decision being made, except for those that are lawfully returned to the victims. Sealed, seized, or frozen property, and its yields, that cannot be confirmed are unlawful gains or other property involved in the case that should be disgorged, must not be collected.
Article 15: People's courts hearing plea cases shall inform the defendant of the procedural rights they enjoy and the legal consequences that admitting guilt and accepting punishment might lead to; and review the voluntariness of the admission of guilt and acceptance of punishment and the truthfulness and lawfulness of the written plea affidavit.
Article 16: In cases within the jurisdiction of basic level people's courts that might have a sentence of up to 3 years fixed-term imprisonment, where the facts are clear and the evidence is credible and sufficient, where the parties have no disagreement on the applicable law, where the defendant admits guilt and accepts punishment and agrees to applying the expedited procedures, the expedited procedures may be applied, with a single-judge hearing the trial, service not being subject to the time limits in the Criminal Procedure Law, not carrying out court investigation or courtroom debate, and announcing the verdict at court; but before the verdict is announced the final statement of the defendant shall be heard.
In cases applying expedited procedures at trial, people's courts shall usually complete trial within 10 days； an extension to 15 days may be given where a sentence of more than 1 year imprisonment might be given.
Article 17: 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 defendants 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 18: In cases within the jurisdiction of basic level people's courts that might have a sentence more than 3 years fixed-term imprisonment, where the defendant admits guilt and accepts punishment, the summary procedures may be lawfully applied at trial, and before the verdict is announced, the final statement of the defendant shall be heard; and the verdict is usually announced at court.
Article 19: Where people's courts are applying the expedited procedures or summary procedures in reviewing plea cases, it shall be transferred for trial under ordinary procedures in any of the following circumstances:
(1) The defendant admitted guilt and accepted punishment against his wishes;
(2) the defendant denies the alleged criminal facts;
(3) other circumstances where the expedited procedures or summary procedures should not be applied at trial.
Article 20: When the people's court lawfully makes a judgment in a plea case, the charges and sentencing recommendation of the people's procuratorate are usually adopted, except in the following circumstances:
(1) The defendant has not constituted a crime or should not be pursued for criminal responsibility;
(2) The defendant admitted guilt and accepted punishment against his wishes;
(3) The defendant denies the alleged criminal facts;
(4) The charge in the indictment and the charge verified at trial are not the same;
(5) Other situations that might impact the fairness of trial.
Article 21: Where through trial, people's courts find that the people's procuratorate's sentencing recommendation is clearly improper, or where the defendant or defender raises objections to the sentencing recommendation, the people's court may recommend the people's procuratorate adjust its sentencing recommendation, and if the people's procuratorate does not agree to adjust the sentencing recommendation, or if after adjustment of the sentencing recommendation the defendant and defender still have objections, the people's court shall make a judgment in accordance with law.
Article 22: In plea cases where there are no legally prescribed commutation factors, a light sentence shall be given within the legally prescribed scope of penalties, and where the offense is slight and does not need to be punished, criminal punishment may be waived; where it is truly necessary to give a punishment below the legally prescribed penalty, it shall be reported up to the Supreme People's Court for review and approval.
Article 23: Second-instance trial courts may choose not to hold in-court proceedings for appeals submitted by defendants unsatisfied with the judgment of a first-instance trial that applied the expedited procedures. Where through trial it is found that the facts verified and law applied in the original judgment are correct and the sentence is proper, the appeal shall be rejected and the original judgment maintained; where the facts verified in the original judgment are not in error, but the law was applied incorrectly or the sentence is improper, the judgment shall be changed; where the facts in the original judgment are unclear or the evidence insufficient, a ruling shall be made to revoke the original judgment and remand to the original people's court for new trial using the ordinary procedures.
Article 24: Where in the course of handling plea cases, personnel of people's courts,people's procuratorate, public security organs have siutations of extortion of confessions by torture, gathering evidence through violence, or selling power for money, going easy on criminals, or other situations of abusing power or twisting the law for personal gain; where a crime is constituted, criminal responsibility is pursued in accordance with law, where no crime is constituted, lawfully give an administrative sanction or disciplinary sanction.
Article 25: Apply these Measures' provisions related to public security organs where the state security organs handle plea cases in accordance with law.
Article 26: In the handling plea cases, where these Measures have relevant provisions, enforcement is in accordance with those provisions; where these Measures have no provisions, apply the relevant provisions of the Criminal Law and Criminal Procedure Law.
Article 27: Relevant provisions from the previous expedited procedures pilot projects may be consulted in implementation, except where these Measures have other provisions.
Article 28: These Measures are effective in Beijing, Tianjin, Shanghai, Chongqing, Shenyang, Dalian, Nanjing, Hangzhou, Fuzhou, Xiamen, Jinan, Qingdao, Zhengzhou, Wuhan, Changsha, Guangzhou, Shenzhen, and Xi'an.
Article 29: These Measures take effect upon issuance to be implemented for 2 years.