Title: The Supreme People's Court Notice on the Release of the "People's Court Rules for Conducting Pretrial Conferences in Criminal Cases (Provisional)" , "People's Court Rules for Handling the Exclusion of Illegal Evidence in Criminal Cases (Provisional)" and the "People's Court Rules for Handling Courtroom Investigation of in First-instance Criminal Trials Under the Ordinary Procedures (Provisional)". Promulgating Entities:Supreme People's Court Reference number: 法发〔2017〕31号 Promulgation Date: 2017-11-27 Expiration date: Source of text: http://www.court.gov.cn/fabu-xiangqing-75652.html
These rules are formulated on the basis of provisions of law combined with actual judicial experience, so as to implement the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice 'Opinions on Advancing the Trial-centered Reforms of the Criminal Procedure System", to standardize court investigation procedures, increase the quality and efficiency of hearings, and ensure that proceeding's evidence is presented in court, that facts are clarified at court, and that judgment conclusions are formed at court.
I. General Provisions
Article 1: Courts shall adhere to the principle of evidence-based judgments. Evidence must be the basis for determining the facts of the case. Court investigation shall be centered around investigation of evidence, Illegal evidence that the court identifies and excludes in accordance with law must not be read out or debated. Evidence that has not been presented,read, identified, examined or otherwise verified through courtroom investigation procedures in court must not serve as the basis of a conviction.
Article 2: Courts shall adhere to the principle of procedural justice. The people's procuratorates bear the burden of proving that the defendant is guilty in accordance with law, the defendant does not bear the burden of proving their innocence. Courts shall moderate trial, strictly enforcing legally-prescribed trial procedures and ensuring an equal contest between the prosecution and defense in court investigation, realizing substantive justice in case judgments through procedural justice in court trials.
Article 3: Courts shall adhere to the principle of focused hearings. Standardize pretrial procedures to avoid unnecessary delays and interruptions of hearings. The presiding judge shall read the case file before opening court for trial, determine a plan for the court hearings, and report on the preparations to the collegial panel. In cases convening a pretrial conference, the courts may lawfully handle matters that might interrupt the hearings; and organize the prosecution and defense presentation of evidence, and identify points of contention between the prosecution and defense.
Article 4: Courts shall adhere to the principle of ensuring procedural rights. Ensure the rights of parties and other litigation participants such as to know, make statements, defend and debate, and make applications;lawfully safeguard defenders rights such as to ask questions, debate evidence, and to debate and defend; to improve work mechanisms that facilitate defenders' participation in litigation.
II. Procedures for opening court sessions and questioning
Article 5: After the court opens a session, it shall inform the parties of the procedural rights that they enjoy during the course of hearings at court.
In cases where a pretrial conference is convened, where matters of procedural rights were handled at the pretrial conference, the result of handling those matters may be announced together with the giving of information on procedural rights after court opens the session.
Article 6: In cases that convened a pretrial conference, the court shall announce the primary content of the pretrial conference report after the prosecutor reads the indictment. In cases where there are multiple instances of crimes, the court may separately read the relevant pretrial conference report content before the beginning of court investigation on each instance.
The court may confirm the matters on which consensus was reached at the pretrial conference after verifying with the prosecution and defense; and for matters where consensus was not reached, the court may identify the points of contention, hear the opinions of the prosecution and defense and handle it in accordance with law.
Article 7: After the prosecutors read the indictment, the chief judge shall ask the defendant whether they have any objections to the charges in the indictment, and hear the defendants' statement and defenses. In cases where defendant admits guilt at court, the voluntariness and truthfulness of the defendants confession shall be verified, hearing their statements and defenses.
With the chief judge presiding, the prosecutor may interrogate the defendant regarding the facts of the crimes alleged in the indictment, and to avoid excessively prolonging hearings, question of the defendant on issues of evidence may be conducted during the presentation and debate of evidence phases. Upon approval by the chief judge, the victim, his legally-designated representative and agent ad litem may ask supplemental questions on the criminal facts from the prosecutor's interrogation; the plaintiff of an attached civil suit and his legally-designated representative or agent ad litem may ask the defendant questions regarding the attached civil litigation portions; the defendant's legally-designated representative or defender, and the defendant to an attached civil lawsuit or his legally-designated representative or agent ad litem, may ask questions of the defendant after the prosecution has completed its interrogation on a particular issue. In cases where there is more than one defendant, their defender's question of defendants shall be presided over by the chief judge and conducted by the defendant's own defender first and then by the other defendants' defenders.
Article 8: In cases with several defendants, interrogation of each defendant shall be conducted separately.
Where there are substantive discrepancies between defendants' statements, the court may summon the relevant defendants to court to confront each other. The chief judge may separately interrogate defendants, and conduct an investigation and verification on the substantive discrepancies in their statements. Upon the permission of the chief judge, the prosecution and defense may interrogate and question the defendant. Where the chief judge finds it is necessary, they may permit the defendants to question each other.
As needed to hear the case, the chief judge may arrange for the defendant to confront witnesses or victims in following the methods in the preceding paragraph.
Article 9: Where numerous victims apply to participate in hearings, and case is not within the scope of attached civil litigation, the victims may select several representatives to participate in or observe the hearing, and the people's court may also designate several representatives.
After the interrogation and questioning of the defendant is complete, and before the presentation of other evidence, victims participating in the hearing may make statements on the criminal facts alleged in the indictment with the chief judge presiding. Upon the permission of the chief judge, the prosecution and defense may question the victims after the victims' statements.
Article 10: To resolve questions concerning the defendants' statements and defenses, the adjudicators may interrogate the defendants, and may also question the victims and parties to attached civil litigation.
Article 11: In cases where there are several instances of crimes, the court shall usually separately conduct court investigation of those where the defendant does not admit guilt.
In cases where the defendant does not admit guilt or recants after admitting guilt, the court shall conduct comprehensive investigation of facts and evidence related to the verdict and sentencing.
In cases where the defendant admits guilt, after the court verifies the voluntariness and veracity of the confession and confirms that the defendant is aware of the legal consequences of admitting guilt, it may conduct an investigation focusing and revolving around sentencing facts and other issues in contention.
III. Procedures for appearances in court to testify
Article 12: the prosecution and defense may apply to the court to notify witnesses, expert evaluators, investigators, and persons with specialized knowledge to appear in court.
The victim and his legally-designated representative or agent ad litem, the plaintiff of an attached civil litigation and his agent ad litem may also submit the requests above.
Article 13: Where the prosecution and defense have objections to the witness testimony or victim statements, and apply for the witness or victim to appear in court, and upon review the people's court finds that the witness testimony or victim statement has a major impact on the case verdict or sentencing, it shall notify the witness or victim to appear in court.
Where the prosecution and defense have objections to appraisal opinions and apply to have the expert evaluator or persons with specialized knowledge appear at court, and upon review the people's court finds it is necessary, it shall inform the evaluators or persons with specialized knowledge to appear in court.
Where the prosecution and defense have objections to the investigation process, evidence sources, the veracity of evidence, the legality of evidence gathering, and so forth, and they apply to have investigators or relevant personnel appear in court, and upon review the people's court finds that it is necessary, it shall notify the investigators or other relevant personnel to appear in court.
On the basis of its authority, the people's court may inform the above persons to appear in court to clarify case facts, or verify evidence.
Where the people's court notifies witnesses, victims, expert evaluators, investigators, or persons with specialized knowledge to appear in court, it shall inform the prosecution and defense to assist in the relevant personnel appearing.
Article 14: Where witnesses who shall appear in court to testify are unable to appear in court due to a serious illness or other objective reason, they may testify by video or other such method.
Where witnesses testify by video, questioning and debate are conducted with reference to the procedures for witnesses appearing in court to testify.
The provisions of the preceding paragraph apply to victims, evaluators, and investigators.
Article 15: Where the people's court notifies witnesses to appear in court but the, witnesses do not appear in court to testify without a legitimate reason, the people's court may compel their appearance, with the exception of the defendant's spouse, parents and children.
Where witnesses are compelled to appear, the court president shall sign and send out the order to appear in court to testify, and the court police will enforce it. When necessary, they may request assistance in enforcement from the public security organs.
Article 16: Where a witness, evaluator, or victim faces threats to their physical safety, or that of their close relatives, as a result of appearing in court to testify, the people's court shall employ protective measures such as not making public their real name, address, workunit, and other personal information, or not revealing their appearance or true voice, and so forth.
Where deciding to adopt protective measures for not revealing the personal information of witnesses, evaluators or victims appearing in court to testify, the adjudicators shall verify their identity before trial and must not disclose this in the witnesses pledge to give truthful evidence, pseudonyms and the like may be used to replace personal information in the judgment or ruling documents.
Where during trial, witnesses, evaluators or victims request protection, the people's court shall immediately review and where truly necessary, shall promptly decide to adopt relevant protective measures. When necessary, they may request the public security organs employ special protective measures.
Article 17: Reasonable expenses such as for travel, lodging, and meals incurred by witnesses, expert evaluators, and persons with specialized knowledge's appearance in court to testify, that are not paid by the prosecution and defense, are to be included in the special allowance for appearances in court to testify, and are to be released by the court in accordance with procedures after the appearance and testimony.
Article 18: The court shall verify the identify of witnesses and evaluators appearing in court, and their relationship to the parties and case; review the capacity of the witnesses or evaluators to testify and their expert qualifications, and inform them of their rights, obligations, and legal responsibility in testifying.
Before witnesses and evaluators testify, it shall be ensured that they will provide truthful testimony to the court, explain evaluation opinions and sign a guarantee.
Article 19: After witnesses appear in court, they first state their testimony to the court, and then the side presenting evidence asks questions; after their questioning is complete, the other side may also ask questions. As needed to hear the case, the party that made the application may also first ask questions.
After the prosecution and defense have finished questioning the witness, they may express their opinions on the examination of the witness testimony. If the prosecution and defense have new questions, they may question the witness again with the permission of the chief judge.
When adjudicators find it is necessary, they may question witnesses. Where the court informs witnesses to appear in court on its own responsibility, the adjudicators shall lead the questioning of the witnesses. With the permission of the chief judge, the defendant may ask questions of the witnesses.
Article 20: Questioning of witnesses shall follow the following rules:
(1) The questioning should be relevant to the facts of the case;
(2) Questions must not be asked in a leading manner;
(3) Witnesses must not be threatened or misled;
(4) Witness's dignity must not be harmed;
(5) Witness's personal privacy must not be disclosed.
Article 21: Where either the prosecution or defense asks questions inappropriately or with content irrelevant to the case, violating the rules for questioning, the other side may raise an objection. Where the other side objects, the party asking questions shall explain the reasons for its questions, and the chief judge should clearly rule on whether it is supported or rejected; where the other side has not raised an objection in court, the chief judge may also stop questioning based on the circumstances.
Article 22: Where the chief judge finds that the content of witnesses appearance in court is unrelated to the facts of the case or is clearly redundant, they may make necessary reminders.
Article 23: In cases where several witnesses appear in court to testify, questioning of witnesses shall be conducted separately.
Where several witnesses appear in court to testify, they shall wait in the location designated by the court, and must not discuss the case, and when necessary, measures for them to wait in isolation may be employed. After witnesses appear in court to testify, the chief judge shall notify the judicial police to lead them out of the courtroom. Witnesses may not observe the hearing of the case.
Where victims are not listed as parties participating in the court hearing, and only appear in court to explain the facts of the case, the provisions of the preceding paragraph are applied by reference.
Article 24: Where there are substantive discrepancies between witnesses' testimony, the court may summon the relevant witnesses to court to confront each other.
The chief judge may separately question witnesses, and conduct an investigation and verification on the substantive discrepancies in their testimony. Upon the permission of the chief judge, the prosecution and defense may question the witnesses. Where the chief judge finds it is necessary, they may permit the defendants to question each other.
Article 25: Where witnesses appear in court to testify, their pretrial testimony is usually not presented or read again, except in the following situations:
(1) Where the witness forgets or omits key content from their pretrial testimony when they appear in court to testify, and it is required to give the witness necessary reminders;
(2) Where there is a contradiction between the witness's testimony in court and their pretrial testimony, and the witness needs to make a reasonable explanation.
In order to verify the source of evidence, the veracity of evidence, and other such issues, or to assist witnesses' memories, the prosecution and defense, with the permission of the chief judge, may present physical and documentary evidence to the witnesses when questioning them.
Article 26: The prosecution and defense may apply to the court to notify persons with specialized knowledge to appear in court, to assist their side in debating appraisal opinions. Persons with specialized knowledge may appear in court at the same time as evaluators, may ask questions of the evaluators after the evaluators testify, and may submit opinions on specialized issues in the case.
Applications for persons with specialized knowledge to appear shall provide a name list and must not exceed two persons. Where there are several types of evaluation opinion, the number of persons may be increased.
Article 27: The relevant provisions on witnesses are applied by reference to the questioning of victims, evaluators, investigators, and persons with specialized knowledge.
Where the same appraisal opinion was made by several evaluators, the relevant evaluators, and the persons with specialized knowledge who will conduct debate of that appraisal opinion, may appear in court at the same time, and are not restricted by the rule on separate questioning.
IV. Procedures for presentation and debate of evidence
Article 28: After the opening interrogation and questioning concludes, the prosecutor presents evidence first. After the prosecutor finishes presenting evidence, the defendant and their defender are to present evidence.
After the prosecutor presents evidence, with the permission of the chief judge, the defendant and their defender may make focused presentation of evidence to refute it.
After either the prosecution or defense presents evidence, the other side may express opinions to debate the evidence. When necessary, the prosecution and defense may conduct multiple rounds of debate on contested evidence.
Where the defendant and their defender find that evidence presented by the prosecution is beneficial to their own claims, they may approve of it when they express their debate and examination opinions, or directly invoke the relevant evidence when expressing defense opinions.
Article 29: The chief judge may make necessary prompts regarding evidence that was transferred with the case by the prosecution and defense, or that was submitted before trial, but that was not presented at trial; and the chief judge shall prompt the prosecution and defense to present any of this that is key evidence that might impact the verdict or sentencing.
Where there is doubt as to facts or evidence that might impact the case verdict or sentencing, and the prosecution and defense do not mention it, the chief judge shall lead the prosecution and defense to express debate opinions and investigate and verify it in accordance with law.
Article 30: The court shall emphasize review of the legality of evidence gathering, and where there are doubts as to the legality of evidence gathering shall investigate and verify the evidence materials showing the legality of evidence gathering.
Where the defendant and his defender apply for the exclusion of illegal evidence, providing relevant leads or materials in accordance with law, and the court has doubts about the legality of the evidence gathering and decides to conduct an investigation, the court shall usually first conduct an investigation in court.
Article 31: Key evidence that might impact the case verdict or sentencing that is disputed by the prosecution and defense, shall usually be independently produced and debated, to fully hear debate opinions.
As for non-critical evidence to which the prosecution and defense have no objections,the producing party may make an explanation of just the name of the evidence and the matters it proves, and the opposing party may express debate opinions.
In cases convening a pretrial conference, the production and debate of evidence may be conducted in accordance with the methods determined at the pretrial conference. As needed for trial, the court may make necessary reminders to the prosecution and defense about the methods for producing and debating evidence.
Article 32: The original item or version shall be presented for physical and documentary evidence, audiovisual materials, electronic data, or other such evidence. Where there is truly difficulty in acquiring the original item or version, a photo, recording, copy, reproduction, or other materials which reflect the shape and true content of the original item or version may be presented, and the reasons explained.
The original of appraisal opinions and records such as from inquests, inspections, identifications and investigative tests shall be presented.
Article 33: Presentation of evidence by the prosecution and defense shall be conducted focusing on and rotating around content related to the facts of the case or on which the prosecution and defense disagree.
When presenting evidence, methods such as mutlimedia equipment may be employed to play or demonstrate the content of the evidence.
Article 34: Where the prosecution and defense have no objections witness testimony, victim statements,or appraisal opinions, the relevant persons do not need to appear in court, or where the relevant persons cannot appear in court for objective reasons and further cannot use methods such as video to testify, written evidence materials or audiovisual recordings of testimony created before trial may be presented or read.
Whre there are substantive content of the defendant's statements at court and pretrial statements are consistent, their pretrial evidence may be not presented; and where there are substantive inconsistencies in the defendants' statements at court and pretrial statements, the content of the pretrial statements with substantive differences may be presented or read at the hearing.
Article 35: Evidence gathered by employing technical investigation measures shall be presented in court. Where presentation, identification, or debate of evidence gathered by employing technical investigation measures might endanger relevant persons' physical safety or cause other serious consequences, protective measures such as not disclosing the relevant persons' identities or not disclosing the technical investigation measures and methods, shall be employed.
Where courts decide to conduct a review of technical investigation evidence outside of court, they may call the prosecutor and defense lawyer to attend. Persons in attendance shall perform confidentiality obligations.
Article 36: Where the court has doubts about evidence, it may inform the prosecution and defense to supplement evidence or make explanations; and when necessary, may announce an adjournment after other investigation of evidence is completed, to conduct an investigation and verify the evidence. The may notify the prosecution and defense to appear for the court investigation and verification of evidence, and the verification process is to be recorded in the case file.
Evidence that the prosecution and defense have supplemented or that the court has investigated, confirmed and obtained outside of court, shall be subject to debate and verification at trial before it can be used as evidence on which the case is based. With an exception, however, for non-critical evidence that does not impact the verdict or sentencing and sentencing evidence that is beneficial to the defendant, where upon solicitation of comments outside of court the prosecution and defense have no objections.
Article 37: Where the prosecution and defense apply to present evidence that was not transferred or submitted to the court before trial, and the other party submits objections, the side applying shall explain the reasons and where upon review the court finds that grounds are sustained and that there is a need to present the evidence, it shall permit it.
If the other side submits that it needs to make defense preparations for new evidence, the court may announce an adjournment and determine the period for preparing.
Article 38: Where in the course of trial at court, the prosecution and defense apply to notify new witnesses to appear in court, have new evidence collected, or apply for a new appraisal or inspection, shall provide the witnesses' basic information, the location where the evidence is stored, explain the case facts that will be proven and the reason for requesting a new appraisal or evaluation. Where the court finds it necessary it should consent and announce an extension of trial; where it does not agree, it shall explain the reason and continue trial.
Article 39:When openly hearing a case, where the prosecution and defense submit evidence that touches on state secrets, commercial secrets or private personal information, the court shall stop it. Where the evidence in question is truly relevant to the case, it may be decided to change the case into one not openly tried, on the basis of the specific case situation, or to close the courtroom review of the review of the evidence in question.
Article 40: During trial, where the public prosecutor discovers that the case needs supplementary investigation and suggests extending trial, the court may agree but there must not be more than two extension suggestions.
Where the people's procuratorate transfers supplementary evidence it collects to the people's court, the people's court shall notify the defenders and agents ad litem to read, copy, and reproduce it. Where the defense submits that it needs to make preparations for defending against supplementary evidence, the court may announce an adjournment and determine the period for preparing.
After the period for supplementary investigation is complete, where upon notice of the people's court the people's procuratorate has not suggested that trial be resumed, and has not explained the reasons, the people's court may decide to handle it as a withdrawal of the case by the people's procuratorate.
Article 41: When the people's court collects evidentiary materials from the people's procuratorate that must be investigated and verified, or upon the application of the defendant and the defender, seekes to collect evidentiary materials gathered during the investigation and review for prosecution period showing that the defendant is innocent or that the crime is minor, the people's court shall notify the people's procuratorate to provide the materials within 3 days of receiving the decision to collect evidentiary materials.
Article 42: In addition to checking whether the defendant has statutory sentencing circumstances, the courts shall also, based on the circumstances of the case, review the following situations have an influence on sentencing:
(1) The reason for the case;
(2) Whether the victim has any fault and the degree of fault, whether they bear responsibility for escalating the conflict and the degree of responsibility;
(3) Whether the defendants' families cooperated in catching the defendant;
(4) The defendant's usual conduct and attitude or remorse;
(5) circumstances of returning unlawful gains, and paying restitution;
(6) Whether the defendant has received the victims' or the victims' family's forgiveness;
(7) Other circumstances that impact sentencing.
Article 43: Where during the trial period the defendant and their defender submit that there are legally-prescribed sentencing factors such as voluntary surrender, coming clean, or meritorious contribution, or where the people's court discovers that the defendant might have the legally-prescribed sentencing factors described above, and that the case file transferred by the people's procuratorate did not contain relevant evidence materials, they shall notify the people's procuratorate to transfer them.
Where during the trial period the defendant and their defenders submit that there are new circumstances of meritorious contribution and provide relevant leads or materials, the people's court may suggest that the people's procuratorate supplement the investigation.
Article 44: Where defendants do not admit guilt at court or their defender makes a not-guilty defense, then after the court conducts an investigation of the facts establishing the verdict, it may conduct an investigation into the facts and evidence for sentencing. The defendant and their defender may express opinions debating the evidence at court, and may present evidence showing the defendants crime was minor or that they were not guilty. Defendants and their defenders' participation in investigation of sentencing facts and evidence does not impact their explanations or defenses of innocence.
V. Authentication rules
Article 45:For evidence that has gone through debate by the prosecution and defense, the court shall take the debate opinions of the prosecution and defense together, and make an overall judgment on whether the evidence can serve as the basis of a verdict in light of factors such as the degree of relevancy of the evidence to the facts, the corroborative relationship of the evidence, and the evidence's own degree of veracity.
Where the evidence is unrelated to the facts to be proven or where there are explainable concerns about the evidence itself, or there are contradictions that cannot be excluded between the evidence and the facts to be proven as well as other evidence, it must not be the basis of a verdict.
Article 46: Where physical or documentary evidence collected through means such as inspections, examinations or searches, has not been determined to be relevant to the case facts through identifications, evaluations or other such means, it must not serve as the basis of a verdict.
Where court have doubts concerning appraisal opinions opinions they may have a new appraisal.
Article 47:Where the procedures or methods of gathering evidence did not comply with provisions of law, seriously impacting the authenticity of the evidence, the people's court shall recommend that the people's procuratorate supplement and correct it or make a reasonable explanation; and where they cannot supplement or correct it or make a reasonable explanation, the relevant evidence must not be the basis of the verdict.
Article 48:Where witnesses do not appear in court to testify and there is no way to confirm the veracity of their pretrial testimony, it must not be the basis of a verdict.
Where a witness's testimony in court contradicts his prior testimony, and the witness is sufficiently able to give a reasonable explanation and corroborates with relevant evidence, his courtroom testimony shall be adopted; if he cannot make a reasonable explanation or corroborate his prior testimony, the prior testimony may be adopted.
Article 49: Where after notice from the people's court an evaluator refuses to appear in court to testify, the evaluation opinion must not serve as the basis for the verdict.
Where a person with specialized knowledge raises doubt as to an appraisal opinion at court, but the evaluator can make a reasonable explanation and corroborate it with relevant, evidence,the appraisal opinion shall be accepted; where they cannot make a reasonable explanation or are unable to verify the reliability of the appraisal opinion, the relevant appraisal opinion cannot be the basis of the case verdict.
Article 50: Where the defendants statement at court contradicts their pretrial statement or written confessions, but the defendant can make a reasonable explanation, collaborated by relevant evidence, then the at court statements shall be accepted; where they cannot make a reasonable explanation, and their pretrial statements or written confession is collaborated by relevant evidence, the pretrial statements or written confession may be accepted.
The court shall conduct a comprehensive review of interrogation records as compared to interrogation a/v recordings. Where there are substantive differences in the content of interrogation records and audio/visual recordings of interrogations, the audio/visual recordings are controlling.
Article 51:The court shall conduct a review in court of evidence over which the prosecution and defense have factual disputes, and make a disposition decision and shall explain the reasons at court and indicate them in the judgment documents; where it is necessary to deliberate after trial to make a resolution, and shall explain the grounds in the judgment document.
Article 52: For courts' determinations that defendants are guilty the facts of the crime must be clear, and the evidence credible and sufficient; and the facts for conviction taken as a whole shall exclude reasonable doubt. A ruling of not-guilty because the alleged crime could not be established due to insufficient evidence shall be issued where the evidence is insufficient to verify that the defendant is guilty. Where the evidence for conviction is credible and sufficient but sentencing evidence is in question, it shall be affirmed in a way beneficial to the defendant.
Article 53: 本规程自2018年1月1日起试行。