Guiding Opinions on the Use of the Plea Leniency System

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Promulgation Date: 2019-10-24
Title:Guiding Opinions on the Use of the Plea Leniency System
[Document Number]
Expiration date: 
Promulgating Entities:Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security et al.
Source of text: https://www.chinacourt.org/law/detail/2019/10/id/149982.shtml

Implementation of the system of "leniency for those who confess and accept punishment" [plea leniency system] has major significance for the correct and timely punishment of crime, the strengthening judicial protection of human rights, the promoting of a process to distinguish complicated cases from simple ones, the conservation of judicial resources, the resolution of social conflicts, and the promotion of the national governance and its modernization capacity. These Opinions are formulated on the basis of law and and relevant provisions, together with the actual conditions of judicial work, to implement the revised Criminal Procedure Law, and ensure that the system of leniency for those who confess and accept punishment [plea leniency system] is correctly and effectively implemented.

I. Basic Principles

1. Implement the Criminal Policy of Blending Leniency with Severity. Implementation of the plea leniency system shall carry out differentiated treatment based on the specific circumstances of the crimes, distinguish between different case types and circumstances, and their degree of harm to society, Plea cases where the penalty might less than 3 years imprisonment should be handled simply, quickly, and leniently to the extent possible, and explore appropriate case-handling principles and methods; for crimes arising from civil disputes, where criminal suspects or defendants voluntarily admit guilt, honestly repent, obtain forgiveness, reach a settlement, and have not yet seriously impacted the public's sense of security, the plea leniency system should be actively used, especially for first-time offenders, casual offenders, crimes of negligence, or juvenile crimes where the social harm is not great shall embody leniency; and cases of crimes that seriously endangering national security or public safety, serious violent crimes, as well as major and sensitive cases of wide public concern, leniency shall be used prudently, avoiding case dispositions that clearly go against the public's sense of fairness and justice.

2. Adhere to the principle of having the penalty suited to the crime. The handling of plea leniency cases shall have the facts as a basis, with the law as their measure; shall strictly follow the requirement of evidence based judgments; and fully collect, fix, review, and make findings on evidence. Especially in joint crimes where the principle offender pleas but accomplices do not, the people's courts and people's procuratorates shall pay attention to the sentencing balance between the two, avoiding serious departures from ordinary perceptions of justice due to improper sentencing.

3. Adhere to the Principle of Evidence-based Judgments. The handling of plea leniency cases shall have the facts as a basis, with the law as their measure; shall strictly follow the requirement of evidence-based judgments; and fully collect, fix, review, and make findings on evidence. Adhere to the legally-prescribed standard of proof, so that the completion of investigation, indictment, and judgments shall all have clear facts, credible and sufficient and evidence, and prevent reductions of evidence requirements and standard of proof due to criminal suspects or defendants' admission of guilt and acceptance of punishment. Where criminal suspects or defendants plea, but the evidence is insufficient and their crime cannot be confirmed, lawfully make a decision to withdraw the case, not prosecute, or announce a not-guilty verdict.

4. Adhere to the principle of cooperation and restraint between police, prosecutors, and courts. In handling plea cases, the police, prosecutors, and courts shall divide work, cooperate together, and restrain each other, ensuring that criminal suspects or defendants voluntarily plea and promoting leniency in accordance with law. Law enforcement should be strict and justice should be fair, strengthening oversight of one's own law-enforcement and judicial case-handling activities, to prevent issues of judicial corruption such as 'exchanges of authority' or "exchanges of authority for money".

II. Scope and Procedures for Application

5. Phase Applied and Scope of Cases for Applications. The plea leniency system runs through the entire criminal process, and is applied in each phase from investigation, to indictment, to trial.

The plea leniency system does not have limits on the charges or possible sentences that it might be applied to, it may be applied in all criminal cases, and a criminal suspect or defendant's opportunity to voluntarily admit guilt and accept punishment to obtain a lenient disposition must not be deprived because the crime was minor or severe, that the charge was special, or other such reasons. However, while it 'may' be applied it is not always applied, and whether leniency is given after a criminal suspect or defendant pleas if for the judicial organs to decide on the basis of the specific circumstances of the case.

6.Understanding of "Admit Guilt". The "Admit Guilt" in the system of leniency for those who admit guilt and accept punishment refers to criminal suspects or defendants voluntarily and truthfully confessing their own criminal conduct and having no objections to the alleged facts of the crime. Where the primary facts of the crime are admitted, and objections are only raised as to individual facts and circumstances, or where defenses are made regarding the nature of the acts, but they accept the judicial organs' designations and opinions, it does not impact a finding of 'admitting guilt'. Where criminal suspects or defendants commit multiple crimes, and only truthfully confess to one or some of the crimes and facts, the entire case is not to be designated as 'admitted guilt' and the plea leniency system is not to be applied; however, for the portion that was truthfully confessed, the people's procuratorate may submit a recommendation for lenient punishment, and the people's courts may give lighter sentences.

7.Understanding of "Accept Punishment". The "Accept Punishment" as used in the system of leniency for those who confess and accept punishment, refers to criminal suspects or defendants being honestly repentant and willing to accept punishment. "Accepting Punishment" in the investigation phase is reflected as an expression of willingness to accept punishment; in the review for prosecution phase it is reflected by accepting the people's procuratorate's coming decision on whether or not to prosecute, accepting the people's procuratorate's sentencing recommendation, and signing a plea affidavit; in the trial phase it is reflected by confirming that the affidavit was voluntarily signed and agreeing to accept criminal punishment.

Evaluation of "accepting punishment" is to focus on the criminal suspect or defendant's repentant attitude and demonstrations of repentance, and shall combine and weigh factors such restitution, compensation of losses, and formal apologies. Where criminal suspects or defendants demonstrate that they 'accept punishment' but also quietly collude, interfere with witnesses' testifying, destroy or falsify evidence, conceal or transfer assets, or have the ability to make compensation but don't do so; the plea leniency system cannot be applied. Criminal suspects or defendants enjoy the right of selecting procedures, and where they do not agree to apply the expedited procedures or simplified procedures, it does not impact the determination that they 'accept punishment'.

III. Understanding “Leniency" Following Pleas

8. Understanding of "Leniency". Lenient dispositions include substantive lenient punishments, and also include procedural simplified dispositions. "May be lenient" means that the legal provisions and spirit of the policy shall usually be reflected in giving a lenient disposition. However, 'may be lenient' does not mean 'always lenient', and where criminal suspects or defendants' crimes had an especially serious nature or harmful consequences, the methods of the crime were especially cruel, or the social impact was especially vile, and a plea is insufficient for light punishment, a lenient disposition is not to be given in accordance with law.

The basis principles of the Criminal Law and Criminal Procedure Law shall be followed in handling plea cases; comprehensively consider the specific circumstances of the plea, based on the facts, nature and circumstances of the crime, and the extent of its harm to society, together with statutory and discretionary sentencing circumstances, to make a decision in accordance with law on whether to be lenient, and how to be lenient. Commutation and waiver of punishments shall have a legally-recognized basis; where there are not circumstances for commutation, a sentencing recommendation and sentence of a lighter punishment within the legally-prescribed scope shall be submitted; and where the circumstances of the crime are minor and do not require a criminal punishment, a decision to not prosecute or to waive criminal punishment may be lawfully made.

9. Understanding the Scope of Leniency. The handling of plea cases shall differ based on the different procedural phases in which pleas are made, the different values and meaning for ascertaining case facts, whether there are demonstrations of remorse, as well the seriousness of the crimes, and so forth; and shall comprehensively consider and determine the extent and scope of leniency. In assessing the criminal punishment, active admission of guilt is better than passive, earlier admission is better than later, thorough admission is better than unthorough, and consistent admissions are better than shifting admissions.

The scope of leniency for pleas is usually greater than that for just coming clean or admitting guilt but not accepting punishment. A greater scope of leniency within the legally-prescribed range shall be given to criminal suspects or defendants that have circumstances of voluntary surrender or coming clean, as well as admitting guilt and accepting punishment. But pleas are not cumulatively assessed with voluntary surrender, and confession of crimes.

Where criminal acts are lighter and personal dangerousness is not large, especially for first offenders or casual offenders, the scope of leniency may be somewhat greater; where the criminal acts are heavier, and the personal dangerousness is larger, as well as for recidivists and repeat offenders, the scope of leniency shall be understood more strictly.

IV. Safeguards for Criminal Suspects and Defendants Right to A Defense

10. Right to Obtain Assistance of Counsel. People's courts, people's procuratorates, and public security organs handling 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.

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 (detention centers) shall notify the duty lawyer to provide legal assistance such as legal consultation, recommendations on procedure selection, and applications for modification of compulsory measures. Where the requirements for notification of legal aid are met, they shall lawfully notify the legal aid institution to appoint a lawyer to provide them a defense.

People's courts, people's procuratorates, and public security organs (detention centers) shall inform the criminal suspects or defendants of their right to meet with duty lawyers and to obtain legal assistance, and shall facilitate meetings with duty lawyers. Where criminal suspects and defendants, or their close relatives, request legal assistance, the people courts, people's procuratorates and public security organs shall notify duty lawyers to provide them with legal assistance.

11. Resident Duty Lawyers. Legal aid institutions may station duty lawyers in people's courts, people's procuratorates, and detention centers. People's courts, people's procuratorates, and detention centers shall provide stationed duty lawyers with necessary work spaces and facilities.

Legal aid institutions shall reasonably arrange for duty lawyers based on people's courts, people's procuratorates, and detention centers' need for legal assistance and local legal service resources. Duty lawyers may be on-duty for set periods or in rotations; and regions with a shortage of legal professionals may explore methods such as combining on-site, telephone, and online service; establishing joint work stations near people's courts and people's procuratorates; doing overall planning and coordination of lawyer resources within the province or city, as well as establishing mechanisms for government procurement of duty lawyers services, to ensure the normal order of legal aid duty lawyers work.

12. Duties of Duty lawyers. Duty lawyers shall preserve the lawful rights and interests of criminal suspects or defendants, ensuring that they voluntarily admit guilt and accept punishment in a situation where they fully understand the nature and legal consequences of the plea. Duty lawyers shall provide the following legal assistance to criminal suspects or defendants:

(1) Provide legal consultation, including informing them of the crime they are suspected or accused of, the relevant legal provisions, and the nature of legal consequences of admitting guilt and accepting punishment;

(2) Propose suggestions on the procedures to apply;

(3) Assist in applications to modify compulsory measures;

(4) Submit comments on the charges and sentencing recommendation of the people's procuratorates.

(5) Submit comments to the people's courts, people's procuratorates, and public security organs on the handling of the case;

(6) Guide and assist criminal suspects, defendants, and their close relatives in applying for legal aid;

(7) Other matters as provided by laws and regulations.

Duty lawyers may meet with criminal suspects or defendants, and the detention centers shall facilitate duty lawyers' meetings. Where duty lawyers meet with detained criminal suspects during the investigation of cases of crimes endangering national security, terrorist activities, it shall be upon the permission of the investigating organs. From the day the people's procuratorate begins reviewing for prosecution, duty lawyers may read case file materials to understand the circumstances of the case. The people's courts and people's procuratorates shall facilitate duty lawyers' review of case file materials.

Circumstances of duty lawyers' legal assistance activities, such as providing legal consultation, reviewing case file materials, meeting with criminal suspects or defendants, and submitting written opinions, shall be recorded in the case file and transferred with the case.

13. Continuity in Legal Assistance. For detained criminal suspects or defendants, legal assistance in different phases of litigation may be provided by the same duty lawyer stationed in the detention center. For criminal suspects or defendants that have not been detained, the duty lawyers from earlier phases of litigation may continue to provide the criminal suspect or defendant with legal assistance in later procedural phases.

14. Handling Refusals of Legal Assistance. Where criminal suspects or defendants who voluntarily admit guilt and accept punishment have not retained a defender and refuse the duty lawyers' legal assistance, the people's courts, people's procuratorates and public security organs shall allow it, and record this in the case file to be transferred with the case. However, when a plea affidavit is signed in the review for prosecution phase, the people's procuratorates shall notify the duty lawyer to be present.

15. Duties of Defenders. Where the criminal suspect or defendant in plea leniency cases retains a defender or a legal aid institution assigns a lawyer for their defense, then during the investigation, review for prosecution, and trial phase, the defense lawyers shall communicate with the criminal suspect or defendant about whether or not to plea, shall provide legal consultation and assistance, and shall submit comments to the case-handling organs on conviction and sentencing and application of litigation procedures.

V. Safeguards of Victims' Rights and Interests

16. Hearing Opinions. Handling of plea cases shall hear the opinions of the victims and their agent ad litem, and make whether the criminal suspect or defendant has reached a settlement or mediation agreement with victims or compensated victims' losses and obtained victims' forgiveness, an important consideration in giving a lenient punishment. The circumstances of people's procuratorate, and public security organs hearing the opinions shall be recorded in the case file to be transferred with the case.

17. Promote Settlement and Forgiveness. In public prosecution cases that meet the requirements for party settlement, where the criminal suspects or defendants admit guilt and accept punishment, the people's courts, people's procuratorates, and public security organs shall actively promote the parties' voluntarily reaching a settlement. In other plea cases, the people's courts, people's procuratorates, and public security organs may urge the criminal suspects or defendants to obtain the victims' forgiveness through means such as compensating losses and formal apologies, and forgiveness opinions given by the victims shall be transferred with the case.

The people's courts, people's procuratorates, and public security organs shall clearly explain specific legal provisions to the victims, such as on plea leniency and party settlement in public prosecutions, and fully hear the victims' comments; where they meet the requirements for judicial aid, they shall actively coordinate it.

18. Handling Victim Objections. Where victims and their agents ad litem do not consent to lenient disposition of criminal suspects or defendants that have admitted guilt and accepted punishment, it does not impact the application of the plea leniency system. Where criminal suspects or defendants admit guilt and accept punishment but do not return stolen property, make restitution, or compensate losses, and cannot reach a mediation or settlement agreement with the victims, a discretionary reduction shall be made when applying leniency. Where the criminal suspects or defendants voluntarily admit guilt and are willing to actively compensate losses, but cannot reach a mediation or settlement agreement because the victims' demands for compensation are clearly unreasonable, it ordinarily will not impact the lenient disposition of the criminal suspects or defendants.

VI. Use of Compulsory Measures.

19. Assessment of Social Dangerousness. 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. For criminal suspects or defendants whose criminal acts are more minor, and for whom non-custodial compulsory measures are sufficient to prevent the occurrence of the danger to society provided for in article 81 of the Criminal Procedure Law, it may be lawfully decided not to apply custodial compulsory measures based on the nature of the crime and the sentence that might be given.

20. Use of Arrest. Where criminal suspects admit guilt and accept punishment, and the public security organs find that the criminal acts are more minor and that there is no danger to society, they shall no longer apply to the people's procuratorate for approval of arrest. Where people's procuratorates find that there is no danger to society in a request for arrest, and that it is unnecessary to arrest, they shall make a decision to not approve arrest.

21. Modification of Arrest. Where criminal suspects or defendants that have already been arrested admit guilt and accept punishment, the people's courts and people's procuratorates shall immediately review the necessity of detention, and where upon review it is found that it is not necessary to continue detention, they shall modify to release on guarantee or residential surveillance.

VII. Duties of the Investigating Organs

22. Informing of Rights and Listening to Opinions. During the course of investigation, public security organs shall inform the criminal suspect of the procedural rights they enjoy, that leniency may be given for truthfully recounting their crimes, and the legal provisions on plea leniency; shall hear the opinions of the criminal suspect and their defenders or the duty lawyer, and record in the case file to be transferred with the case.

When, at a time that they are not being interrogated and there are not case-handling personnel present, 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.

23. Education on Admitting Guilt. During the investigation phase, the public security organs shall simultaneously carry out educational efforts on admitting guilt, but must not compel criminal suspects to admit guilt, and must not make specific promises of leniency. Where criminal suspects voluntarily admit guilt and are willing to accept punishment from judicial organs, this shall be recorded and attached to the case file.

24. Opinions in Support of Prosecution. In cases transferred to be reviewed for prosecution, the public security organs shall indicate circumstances of the criminal suspects' voluntary admission of guilt and acceptance of punishment in their indictment opinion. Where a case is found to meet the conditions for using expedited procedures, it may be recommended in the indictment opinion that the people's procuratorate apply the expedited procedures to handle the case, with the reasons briefly explained.

In cases that might apply the expedited procedures, the public security organs shall handle them quickly and where the criminal suspects are not in custody may concentrate transfers for review for prosecution, but must not delay case handling in order to concentrate transfers.

Public security organs shall earnestly listen to opinions and recommendations from the people's procuratorate on carrying out plea leniency work that are made in the period for the review for approval of arrest or while hearing comments on major cases, and actively carry out relevant work.

25. Establishment of Law Enforcement Case-Handling Management Centers. Accelerate the establishment of public security organs law enforcement case-handling management centers, explore establishing expedited courts in the law enforcement and case handling management centers to conduct rapid handling of cases applying the expedited procedures.

VIII. The People's Procuratorate's Duties During the Review for Prosecution Phase

26. Notification of Rights. After a case is transferred for review for prosecution, the people's procuratorates shall inform criminal suspects of the procedural rights they enjoy and of the legal provisions of admitting guilt and accepting punishment, to safeguard criminal suspects' right to selection of procedures. The information shall be given in written form, and with clear and full explanations given when necessary.

27. Hearing opinions. Where criminal suspects admit guilt and accept punishment, the people's procuratorates shall hear the comments of the criminal suspects and their defenders or the duty lawyers on the following matters, and record and attach this to the case file:

(1) the facts of the crime, the charge, and the legal provisions to be applied;

(2) Recommendations for lenient punishment, such as mitigation, commutation, or exemption from punishment;

(3) The procedures applied at trial following the admission of guilt and acceptance of punishment;

(4) Other circumstances where opinions need to be heard.

Where the people's procuratorates do not accept the opinions of the defenders or duty lawyers, they shall explain the reasons.

28. Review of Voluntariness and Legality. During the investigation phase of plea leniency cases, the people's procuratorate shall emphasize review the following content:

(1) Whether the criminal suspect voluntarily admitted guilt and accepted punishment, and whether they encountered any violence, threats, or enticements that led them to go against their will in admitting guilt and accepting punishment;

(2) Whether the criminal suspects had normal cognitive ability and mental state when admitting guilt and accepting punishment;

(3) Whether the criminal suspect understood the nature of admitting guilt and accepting punishment, and the legal consequences that it might lead to;

(4) Whether investigating organs informed criminal suspects of the procedural rights they enjoy and of legal provisions stating that truthfully describing their own offense may result in leniency and also on admitting guilt and accepting punishment; and heard their opinions;

(5) Whether the opinion in support of prosecution indicated the circumstances of the criminal suspects' admission of guilt and acceptance of punishment;

(6) Whether the criminal suspects honestly repent, and whether they have made a formal apology to victim.

Where upon review it is found that the criminal suspects admitted guilt and accepted punishment against their will, the people's procuratorate may start plea work anew. Where extortion of confessions by torture or other illegal evidence gathering conduct occurred, it is to be handled in accordance with law.

29. Discovery. People's procuratorates may explore evidence discovery systems aimed at specific case circumstances, ensuring criminal suspects' right to know, and the truth and voluntariness of their admissions of guilt and acceptance of punishment.

30. Use of Non-Prosecution. Improve discretion in prosecution, giving full play to the role of non-prosecution in pretrial diversions and screening, gradually expanding the use of non-prosecution in plea leniency cases. In cases of slight crimes where after a plea there is no contention, and it is not necessary to give a criminal punishment, the people's procuratorate may lawfully make a decision to not prosecute. The people's procuratorate shall strengthen pre-assesment of case sentencing, and may lawfully make a decision to not prosecute cases of slight crimes where criminal penalties might be waived.

In cases where after a plea the facts are not clear or the evidence is insufficient, a decision to not prosecute shall be made in accordance with law.

31. Signing a plea affidavit. Where criminal suspects voluntarily admit guilt, agree to the sentencing recommendation, and to the applicable procedures, a written plea affidavit shall be signed with the defender or duty lawyer present. Where criminal suspects are in custody, the detention center shall provide a venue for signing the plea affidavit. The plea affidavit shall include content such as the criminal suspects' truthful recounting of their criminal acts, their agreement with the sentencing recommendation and procedures applied, and so forth; and is to be signed by the criminal suspects, defenders, or duty lawyers.

In any of the following circumstances, criminal suspects who admit guilt and accept punishment do not need to sign a plea affidavit:

(1) where the criminal suspect is blind, deaf or mute, or is a mentally ill person who has not yet entirely lost their ability to recognize and control their action;

(2) Where a juvenile criminal suspect's legally-designated representative or defender objects to the juvenile's admitting guilt and accepting punishment;

(3) Other situations where it is not necessary to sign a plea affidavit.

Where criminal suspects with the circumstances above do not sign a plea affidavit, it does not impact the application of the plea leniency system.

32. Initiating Public Prosecutions. 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 transfer the defendant's plea affidavit and other materials. Written sentencing recommendations may be drafted separately, or it may also be indicated in the indictment.

33. Submitting a Sentencing Recommendation. Where criminal suspect admit guilt and accept punishment, the people's procuratorates shall submit sentencing recommendations on the primary punishment, supplementary punishments, whether to give a suspended sentence, and so forth. Before the people's procuratorates submit a sentencing recommendation, they shall fully hear the comments of the criminal suspects and their defenders or the duty lawyers, and reach a consensus to the extent possible.

The people's procuratorates handling plea cases shall usually submit a definite sentencing recommendation. In new types of cases, cases of rarely seen crimes, or cases of major crimes where the sentencing circumstances are complex, they may also submit a sentencing recommendations with a range of penalties. The reasons and basis shall be explained when submitting sentencing recommendations.

Where criminal suspects plea and have no other legally-prescribed sentencing circumstances, the people's procuratorate may submit a definite sentencing recommendation appropriately reduced from the base sentence on the basis of the facts and nature of the crime, and so forth. Where there are other sentencing circumstances, the people's procuratorates shall combine the plea and the other sentencing circumstances, and submit a definite sentencing recommendation with reference to the relevant sentencing norms.

Where criminal suspects admit guilt and accept punishment during the investigation phase, the scope of leniency in the primary punishment may be appropriately expanded from the foundation of the preceding paragraph; and where defendants admit guilt and accept punishment in the trial phase, it may be appropriately reduced from the foundation of the preceding paragraph. Where a financial penalty is recommended, submit a specific amount in accordance with the scope of leniency for primary punishments.

34. Time Periods for Handling Expedited Procedures Cases. Where criminal suspects plea, and upon investigation the people's procuratorate finds that the requirements for applying expedited procedures are met, they shall make a decision on whether or not to indict within 10 days; where a sentence of more than one year imprisonment might be given, the decision to prosecute may be made within 15 days.

IX. Social Investigation and Assessment

35. Social Investigation in the Investigation Phase. Where criminal suspects plea and might be sentenced to controlled release or a suspended sentence, the public security organs may entrust the community corrections establishment for the criminal suspects' residences to conduct an investigation and assessment.

Where public security organs entrust community corrections establishments to conduct an investigation and assessment in the investigation phase and the community corrections establishments complete the investigation and assessment after the public security organs transfer the case for review for prosecution, the assessment opinion shall be promptly submitted to the people's procuratorate or people's court that accepted the case, and send a copy to the public security organs.

36. Social Investigation in the Review for Prosecution Phase. Where criminal suspects plea, and the people's procuratorate could submit a sentencing recommendation for controlled release or suspended sentence, they may promptly entrust the community corrections establishment for the criminal suspects' residences to conduct an investigation and assessment, or may investigate and assessment on their own. Where the people's procuratorate has already received investigation materials when it initiates a prosecution, it shall transfer the materials with the indictment; where they have not received the investigation materials, they shall send the documents entrusting the investigation along with the case; and where the people's procuratorate receives the materials after it initiates a prosecution, it shall promptly transfer them to the people's courts.

37. Social Investigation in the Trial Phase. Where defendants plea, and the people's court could give a sentence of controlled release or a suspended sentence, they may promptly entrust the community corrections establishments for the defendants' residences to conduct an investigation and assessment, and may also conduct the investigation and assessment themselves.

The investigation and assessment opinions issued by the community corrections establishments are an important consideration in the people's courts giving a sentence of controlled release or a suspended sentence. In plea cases where a community corrections establishment was not entrusted to conduct an investigation and assessment, or where the community corrections establishments' investigation and assessment report was not received before the judgment; where the people's court finds the defendants meet the requirements for controlled release or suspended sentences, they may give a sentence of controlled release or a suspended sentence.

38. Duties of judicial-administrative organs. Based on the requests of the entrusting organ, community corrections establishments that have been entrusted shall conduct an investigation to learn about the criminal suspect or defendant's residence, home and social relationships, normal behavior, the consequences and impact of their criminal conduct, the opinions of the local village (resident) committees and victims, possible prohibitions, and so forth; put together an assessment opinion, and promptly submit it to the entrusting organ.

X. Trial Procedures and the Duties of the People's Courts

39. Review of Plea Voluntariness and Legality in the Trial Phase. In handling plea cases, the people's courts shall inform the defendant of the procedural rights they enjoy and of the legal provisions on admitting guilt and accepting punishment, and shall hear the opinions of the defendants, and their defenders or duty lawyers. During trial, a review shall be conducted of the voluntariness of the admission of guilt and acceptance of punishment and of the truthfulness and legality of the plea affidavit; emphasizing verification of the following content:

(1) Whether the defendants voluntarily admitted guilt and accepted punishment, and whether they encountered any violence, threats, or enticements that led them to go against their will in admitting guilt and accepting punishment;

(2) Whether the defendants had normal cognitive ability and mental state when admitting guilt and accepting punishment;

(3) Whether the defendants understood the nature of admitting guilt and accepting punishment, and the legal consequences that it might lead to;

(4) Whether the people's procuratorates and public security organs performed their obligations to give information, and heard opinions;

(5) Whether duty lawyers or defenders communicated with the people's procuratorates, provided effective legal assistance or defense, and were present to witness the signing of the plea affidavit.

Based on the specific circumstances of the case, during trial adjudicators may conduct questioning on the voluntariness and truthfulness of the defendants' pleas, rotating around key facts for conviction and sentencing, to confirm whether the defendants perpetrated crimes and whether they are truly repentant.

Where the defendant admitted guilt and accepted punishment against their will, or later recanted, and it is necessary to change procedures in accordance with law, the case shall be retried according to the ordinary procedures. Where it is discovered that extortion of confessions by torture or other illegal evidence gathering conduct occurred, it is to be handled in accordance with law.

40. Acceptance of Sentencing Recommendations. The people's courts shall conduct a review of the sentencing recommendations submitted by people's procuratorates in accordance with law. The people's court shall accept the where the facts are clear, the evidence is credible and sufficient, the charges are correct, and the sentencing recommendations appropriate. In any of the following circumstances, they are not to be accepted:

(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.

Where the facts alleged in the people's procuratorate's indictment are clear, and the sentencing recommendation is appropriate, but the charged crimes differ from those verified through trial, the people's court may hear the opinions of the people's procuratorate, defendants, and their defenders on the crime verified through trial, and make a judgment in accordance with law.

Where people's courts do not adopt the people's procuratorate's sentencing recommendation, they shall explain the reasons and basis.

41. Adjustment of Sentencing Recommendations. Where through trial people's courts find that the sentencing recommendation is clearly improper, or where the defendant or defender raises objections to the sentencing recommendation that are reasoned and founded, people's procuratorates may adjust the sentencing recommendation. Where the people's court finds that the adjusted sentencing recommendation is appropriate, it shall accept it; where the people's procuratorate does not adjust the sentencing recommendation, or it is still clearly improper after adjustment, the people's court shall make a judgment in accordance with law.

Where applying the expedited procedures at trial, the people's procuratorates' adjustment of sentencing recommendations shall be done before or at trial. Where after the sentencing recommendation is adjusted, the defendants consent to continue applying the expedited procedures, it is not necessary to change procedures.

42. Requirements for Using the Expedited Procedures. 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 case facts are clear and the evidence is credible and sufficient, and the defendant admits guilt and accepts punishment and agrees to use the expedited procedures, the expedited procedures may be applied, and trial will be by a single adjudicator. When the people's procuratorate initiates a prosecution, it may suggest that the people's court apply the expedited procedures.

The expedited procedures are not to be applied in any of the following circumstances:

(1) The defendant is a blind, deaf or mute person or a mentally ill person who has not completely lost his ability to recognize and control his conduct;

(2) the defendant is a juvenile;

(3) The case has a major social impact;

(4) Where in a joint crime some of the defendants have objections to the alleged facts of the crime, charges, sentencing recommendation, or use of the expedited procedures;

(5) Where the defendant and victims, or their legally-designated representatives, have not reached a mediation or settlement agreement on compensation for attached civil litigation;

(6) other cases where the expedited procedures should not be applied to handle the case.

43. Time Limits for Trial in Expedited Procedures Cases. In cases applying expedited procedures at trial, people's courts shall complete trial within 10 days of accepting them;where a sentence of more than 1 year imprisonment might be given, trial shall be completed within 15 days.

44. Trial Procedures for Expedited Cases. Cases applying the expedited procedures are not subject to the time limits for service in the Criminal Procedure Law, court investigation or courtroom debate are usually not carried out; but before the verdict is announced, the defenders' opinions and the defendants' final statement and opinions shall be heard.

People's courts applying the expedited procedures to try cases may simultaneously send the written notice of rights and summons for appearance when serving the indictment on the defendant, and also verify the defendant's natural information and other circumstances. As needed, service may be consolidated.

In cases where the people's court apply the expedited procedures, in-court proceedings may be consolidated, with cases heard one-by-one. People's procuratorates may appoint a public prosecutor to appear in court for consolidated support of the prosecutions. After the public prosecutor briefly reads the indictment, adjudicators shall question the defendants at court regarding their opinions on the alleged facts, evidence, sentencing recommendation, and the use of the expedited procedures; shall verify the voluntariness, accuracy, and legality of the plea affidavit; and shall verify circumstances such as compensation in attached civil litigation.

Cases applying the expedited procedures at trial, shall have the verdict announced at court. Where trials are consolidated, announcement of verdicts at court may be consolidated. Based on the needs of the case, when announcing the verdict adjudicators may carry out court education. The written judgment may be simplified.

45. Second-Instance Trial Procedures for Expedited Cases. It may be decided 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. After review by the second-instance trial court, proceed according to the following discrete circumstances:

(1) Where it is found that the defendant appealed on the grounds that the facts were unclear and the evidence was insufficient, a ruling shall be be made to revoke the original judgment, and remand to the original people's court for new trial using the ordinary procedures, and lenient punishment is not to be given as for a plea case.

(2) Where it is found that the defendant appealed on the grounds that the sentence was improper, but the original sentence is proper a ruling shall be made to reject the appeal and sustain the original judgment; where the original sentence is improper, change the judgment in accordance with law following trial.

46. The Application of Simplified Procedures. In cases in the jurisdiction of basic level people's courts where the defendant pleas, the facts are clear, the evidence is sufficient, and the defendant has no objections to applying the simplified procedures, the simplified procedures may be applied at trial.

In plea cases applying the simplified procedures, the public prosecutor may read out the indictment in simplified form, adjudicators are to question the defendant at court on their opinions on the alleged facts of the crime, the evidence, the sentencing recommendation, and the use of simplified procedures; and verify the voluntariness, veracity, and lawfulness of the plea affidavit. Court investigation may be simplified, but investigation and debate of evidence shall be conducted on facts and evidence that are contested, and courtroom debate may be carried out revolving around the contested issues. The written judgment may be simplified.

47. The Application of Ordinary Procedures. In plea cases applying the ordinary procedures, the court investigation and debate may be appropriately simplified. After the public prosecutor reads the indictment, the collegial panel is to question the defendant at court on their opinions on the alleged facts of the crime, the evidence, and the sentencing recommendation; and verify the voluntariness, veracity, and lawfulness of the plea affidavit. The prosecutor, defender and adjudicators' questioning of the defendant may be simplified. If neither the prosecution nor defense objects to evidence, they may simply make an explanation of the the name of the evidence and what it proves; where the parties have objections or the court feels it is necessary to investigate and verify evidence, it shall be presented and debated. Courtroom debate is to be conducted rotating primarily around the contested issues, and the judgment documents may be appropriately simplified.

48. Changing Procedures. Where in the course of trial applying expedited procedures the people's courts discover cirumstances such as that defendants' conduct does not constitute a crime or should not be pursued for criminal responsibility, that they admitted guilt and accepted punishment against their will, or that the defendant denies the alleged facts of the crime, they shall change to the ordinary procedures. Where that it is not suitable to apply the expedited procedures, but the requirements for applying the simplified procedures are me, it shall be changed to the simplified procedures for new trial.

Where circumstances making it inappropriate to apply the simplified procedures for trial are discovered, it shall be changed to ordinary procedures.

Where during the course of applying the expedited procedures to try a case in the people's courts, the people's procuratorates discover that there are circumstances making it inappropriate to apply the expedited procedures, they shall recommend that the people's court change to the ordinary procedures or the simplified procedures for new trial; where circumstances making it inappropriate to apply the simplified procedures are discovered, they shall recommend that the people's courts change to the ordinary procedures for new trial.

49. Handling Cases Where the Defendant Pleas at Court. Where the defendants did not plea during the investigation and review for prosecution phases, but admit their crime and are willing to accept punishment at court, the people's courts shall, based on the facts ascertained at trial, hear the prosecution and defense opinions on conviction and sentencing, and make a judgment in accordance with law.。

50. Handling Cases Where the Defendant Pleas During the Second-Instance Trial Procedures. Where the defendants did not plea during the first-instance trial procedures, and plea during the second-instance trial procedures, trial procedures are to be carried out in accordance the second-instance trial procedures as provided for in the Criminal Procedure Law. The people's court for the second-instance trial shall decide whether or not to give leniency based on the value and use of the plea, and make a judgment in accordance with law. When determining the scope of leniency, there shall be some difference from that in the first-instance trial procedures.

XI. Recanting and Revoking Pleas

51. Handling Recanting After Non-Prosecution. Where after the people's procuratorate makes a decision to not prosecute in accordance with paragraph 2 of Criminal Procedure Law article 177, because the criminal suspect has pleaded, the criminal suspect denies the alleged facts of the crime or does not actively perform obligations such as to make formal apologies, make restitution, or compensate losses, the people's procuratorate shall conduct a review and lawfully address it in accordance with the follow discrete situations:

(1) Where it is discovered that there is no crime by the criminal suspect, or that they have any of the circumstances provided for in Criminal Procedure Law article 16, they shall revoke the original non-prosecution decision and make a new decision to not prosecute;

(2) Where it is found that the criminal suspect is still one where the circumstances of the crime are slight and, in accordance with the Criminal Law, it is not necessary to give a criminal penalty or that criminal penalty may be waived, the people's procuratorate may sustain the original non-prosecution decision;

(3) Where after excluding the factor of the plea, the requirements for indictment are met, then based on the specific circumstances of the case, the original non-prosecution decision shall be revoked and a prosecution initiated in accordance with law.

52. Handling Recanting Prior to Indictment. Where criminal suspects plea and sign a plea affidavit, but recant before the people's procuratorate initiates a public prosecution, the plea affidavit is invalid and that people's procuratorate shall lawfully indict based on a full review of the facts and evidence.

53. Handling Recanting During the Trial Phase. Where during the course of trial, defendants recant their plea, the people's courts shall make a judgment in accordance with law, based on the facts ascertained at trial. Where it is necessary to change procedures, handle it with reference to the relevant provisions of these Opinions.

54. Legal Oversight by the People's Procuratorate. Improve mechanisms for oversight of investigatory activities and criminal trial activities by the people's procuratorate, strengthen oversight of the entire process of handling plea cases, regulate procuratorial counter-appeal work in plea cases, ensuring that the innocent are not criminally prosecuted, and that the guilty receive just punishments.

XII. Handling Cases of Pleas by Juveniles

55. Hearing Opinions. People's courts and people's procuratorates handling juvenile plea cases shall hear the opinions of the juvenile criminal suspects or defendants and their legal representative; where the legal representative is unable to appear, they shall hear the opinions of an appropriate adult, except where the criminal suspect is already of age at the time the case is accepted.

56. Signing the Plea Affidavit. When juvenile criminal suspects sign a plea affidavit, their legal representative shall be present and sign in confirmation. Where the legal representatives cannot be present, an appropriate adult shall be present and sign in confirmation. Where a juvenile criminal suspect's legally-designated representative or defender objects to the juvenile's admitting guilt and accepting punishment; they do not need to sign the plea affidavit.

57. Procedures Applied. In juvenile plea cases, the expedited procedures are not applied, but the polices of education, reform, and rescue shall be implemented, adhering to the principle of speed and leniency, to ensure that cases are handled quickly and leniently, and protecting juvenile's lawful rights and interests to the greatest extent possible.

58.Legal Education. In handling juvenile plea cases, a good job shall be done on efforts towards the juvenile criminal suspect or defendant's admission of guilt and obeying the law, repentance and education, to bring about the goal of combining punishment and education.

XIII. Supplementary Provisions

59. Relevant provisions of these Opinions apply when the security departments of the military, the coast guard, and prisons handle criminal cases.

60. These Guiding Opinions are to be interpreted through consultation by the signatories, and are to take effect upon publication.

 

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