SPC Provisions on Enforcing Property Punishments in Criminal Cases

ALL TRANSLATIONS ON THIS SITE ARE UNOFFICIAL AND ARE PROVIDED FOR REFERENCE PURPOSES ONLY. THESE TRANSLATIONS ARE CREATED AND CONTINUOUSLY UPDATED BY USERS --THEY ARE FREE TO VIEW, BUT PROPER ATTRIBUTION IS REQUIRED FOR DISTRIBUTION OF THESE OR DERIVATIVE TRANSLATIONS.

Title: The Supreme People's Court Several Provisions on Enforcement of the Property Portion of Criminal Judgments
Promulgating Entities:Supreme People's Court
Reference number: Legal Interpretation (2014) No.13
Promulgation Date: 2014-10-30
Expiration date:

Source of text: People's Court Reporter, November 6, 2014, Page 3http://www.law-lib.com/law/law_view.asp?id=468788

[Full text ]:

The Supreme People's Court Several Provisions on Enforcement of the Property Portion of Criminal Judgments
Supreme People's Court

 

Proclamation of the Supreme People's Court of the People's Republic of China

The Supreme People's Court Several Provisions on Enforcement of the Property Portion of Criminal Judgments was passed by the 1625th meeting of the Adjudication Committee of the Supreme People's Court on September 1, 2014, and is hereby promulgated, to take effect on November 6, 2014.

Supreme People's Court
October 30, 2014

The Supreme People's Court Several Provisions on Enforcement of the Property Portion of Criminal Judgments

(Adopted at the 1625th meeting of the Supreme People's Court's Adjudication Committee on September 1, 2014)
These Provisions are drafter on the basis of the "Criminal Law of the People's Republic of China", the "Criminal Procedure Law of the People's Republic of China" and other relevant laws and regulations combined with the actual people's court work conditions in enforcement, so as to further regulate the enforcement of the property portion of criminal judgments.

Article 1: The 'enforcement of th property portion of criminal judgments' as used in these Provisions refers to the enforcement of the following items determined in the main text of a criminal judgment.
(1) fines, confiscation of property;
(2) restitution orders;
(3) handling ill-gotten money and goods transferred with the case;
(4) confiscation of personal property used in the crime that is transferred with the case;
(5) other related matters that should be enforced by the people's courts.
Judgments in civil litigation attached to criminal cases apply the relevant civil law provisions.

Article 2: The portion of criminal judgments involving property is enforced by the people's court of the first-instance trial. The first-instance trial people's court may entrust a people's court of the same level at the location of the property with enforcement.

Article 3: The time limit for people's courts handling the enforcement of the property portion of criminal judgments is 6 months.Where there are special circumstances requiring an extentsion, upon approval of that court's court president, it may be extended.

Article 4: Where during criminal trial, a people's court might give the defendant a punishment against property or restitution order, the criminal trial department shall conduct an investigation of the defendant's property situation in accordance with law; and where discovering that property might be concealed or transferred, shall promptly seal, seize or freeze the relevant property.

Article 5: During criminal trial or enforcement, for property that was already sealed, seized or frozen by the investigating organ, the people's courts shall promptly continue the sealing, seizure or freezing before the completion of the period.The order of precedence of a people's court's sealing, seizure or freezing is the same as that of an investigating organ's sealing, seizure or freezing.

A people's court may directly rule on the disposition of property sealed, seized or frozen by an investigating organ, and the investigating organ is not required to present release formalities, but the facts of the investigating organ's shall be clearly indicated in the ruling.

Article 6: The content of the property portion of criminal judgments shall be clear and specific.Where the amount of property or number of victims is relatively large, and not suitable for detailed listing in the main text of the judgment, it may stated generally and an inventory separately attached.

Where a sentence is for partial confiscation of property, the specific property or value to be confiscated shall be clarified.

Where a judgment for disgorgement or a restitution order is given, it shall clarify the name, amount and and other relevant circumstances of the money or property to be disgorged or returned.

Article 7: The people's court enforcement institutions are responsible for enforcing the property portion of criminal judgments, and the criminal trial department shall promptly transfer it to the case filing department for filing.

Transfer for case filing shall provide the effective written judgment, its attachments and other relevant materials, and complete a "transfer for enforcement form".The "transfer for enforcement form" shall specify the following content:
(1) the person subject to enforcement and victims' basic information;
(2) Property status or leads already clarified through investigation;
(3) the circumstances of property transferred with the case and property already disposed of;
(4) circumstances of sealing, seizing or freezing property
(5) the time of the transfer for enforcement;
(6) Other circumstances that need to be explained.
Where upon review, the case filing department of a people's court feels that it is within the scope for transfer and that the transferred materials are complete, it shall file the case within 7 days and transfer to the enforcement institution.

Article 8: A people's court may look into the person subject to enforcement's property status at the criminal punishment enforcement organ, the community corrections establishment or other relevant units, and may on the basis of different case circumstances, may request that relevant units assist in sealing, seizing, freezing, appropriating or other enforcement methods.

Article 9: Where a sentence of confiscation of property is given, it shall be enforced against all property owned by the person subject to enforcement when the judgment takes effect.

Enforcement of confiscation of property or a fine shall refer to the previous years local minimum living standards released by the government at the site of the person being supported's residence, and reserve the necessary expenses of the person subject to enforcement and family he supports.

Article 10: The people's court shall disgorge criminal proceeds and their earnings together.

The people's court should disgorge earnings formed from the person subject to enforcement making investments or purchases with criminal proceeds.

Where the person subject to enforcement makes investments or purchases with criminal proceeds together with other lawful property, the people's court should disgorge the portion of the assets formed by this that corresponds to the criminal proceeds and their earnings.

Victims' losses shall be returned or compensated in accordance with the actual losses as determined by the criminal judgment.

Article 11: Where, in any of the following circumstances, the person subject to enforcement uses property involved in the case that has been determined by judgment to be criminal proceeds to pay off debts, make assignments, or establish other rights and burdens, the people's court should disgorge:
(1) where third parties accept property clearly knowing it is involved in a case;
(2) where third parties receive property involved in the case without compensation or for a price conspicously below the market value;
(3) where third parties acquire property involved in the case through clearing of illegal debts or unlawful or illegal activities;
(4) where third parties obtain property involved in the case through other means in bad faith.

Where third parties acquire property involved in the case in good faith, it is not disgorged during the course of enforcement procedure.

Article 12: Where property subject ot enforcement needs to be revalued, the people's court enforcement bodies shall use auctions, sales or other means of valuating.

Where at the final auction the property involved in the case has still not sold, and it is necessary to send it to the national treasury, the people's court shall notify the relevant financial organ to receive it at the auction's reserve price; where the relevant financial organ requests that the revaluating continue, an auction may be conducted with no reserve.

Article 13: Where during the course of enforcement the person subject to enforcement bears criminal responsibility and civil responsibility at the same time, and has insufficient property to pay, follow the following enforcement succession.
(1) medical costs for personal injury compensation;
(2) restitution of victims' losses;
(3) other civil debts;
(4) fines;
(5) confiscation of property.

Where a creditor enjoys precedential right to compensation in accordance with law regarding a subject of enforcement, and advocates precendential compensation, the people's court shall support it after first having compensation of medical expenses mentioned in (1) or the preceding paragraph.

Article 14: Article 14: During the enforcement process, where parties or stakeholders feel that enforcement conduct violates legal provisions, or where a person not involved in the case puts forth substantive rights in the object of enforcement sufficient to obstruct enforcement, and submit a written objection to the enforcing court, the enforcing court shall handle it in accordance with article 225 of the Civil Procedure Law.

People's courts reviewing the objections and reconsideration of a person not involved in the case shall hold an open hearing.

Article 15: Where during the course of enforcement, a person not involved in the case or a victim feels that there was an error in the criminal judgment's determination of whether property involved in the case was criminal proceeds, or that a determination should have been made but was not, and submits a written objection to the enforcing court, it may pass a ruling to supplement and correct and the enforcement body shall transfer the objection materials to the criminal trial department for dispostition; and where there is no way to pass a ruling to supplement and correct, it shall notify the objecting person to handle it through the trial supervision procedures.

Article 16: Where people's courts handle cases of enforcement of the property portion of criminal judgments, and the Criminal Law, Criminal Procedure Law and related judicial interpretations don't have relevant provisions, apply the relevant provisions on Civil Law enforcement by reference.

Article 17: Where judicial interpretations previously promulgated by the Supreme People's Court differ from these Provisions, these Provisions are controlling.

About China Law Translate 776 Articles
CLT is a crowdsourced, crowdfunded legal translation project that enables English speaking people to better understand Chinese law.

Be the first to comment

Leave a Reply

Your email address will not be published.


*