Opinions on Several Issues Regarding the Standardization of Sentencing Procedures

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Promulgation Date: 2020-11-5
Title: Opinions on Several Issues Regarding the Standardization of Sentencing Procedures
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.spp.gov.cn/spp/xwfbh/wsfbt/202011/t20201105_484007.shtml#1

These Opinions are formulated on the basis of the Criminal Procedure Law and relevant judicial interpretations together with the actual working conditions, in order to further advance the reform of trial-centered criminal procedure, to implement the system of leniency system for those who admit guilt and accept punishment, to further standardize sentencing procedures, and to ensure that sentencing is open and just.

Article 1: People's courts hearing criminal cases shall ensure the relative independence of sentencing procedures in court proceedings.

People's procuratorates shall standardize sentencing recommendations in review for prosecution.

Article 2: Investigating organs and people's procuratorates shall follow the legally-prescribed procedures to fully collect, review, and transfer evidence that proves the facts of the crimes by criminal suspects or defendants and sentencing factors.

In cases where the law provides for punishments against property to be given concurrently with other penalties or independently, the investigating organs shall, based on the circumstances of the case, conduct an investigation of the state of the defendants' assets and transfer the relevant evidence to the people's procuratorate. The people's procuratorates shall review them and transfer the relevant evidence to the people's courts.

Where during the review for prosecution, people's procuratorates discover that the investigating organ should have collected sentencing evidence, but failed to do so, they may send it to back to the investigating organ for supplemental investigation and may also conduct their own investigation. Where people's procuratorates make a return for supplemental investigation, the investigating organs shall promptly collect the relevant evidence as required by the people's procuratorate's supplemental investigation outline.

Article 3: In cases where a sentence of controlled release or a suspended sentence might be given, the investigating organs, people's procuratorates, and people's courts may entrust community corrections establishments or related social organizations to conduct an investigation and assessment and raise opinions, to serve as a reference when giving controlled release or a suspended sentence.

After the community corrections establishments or social organizations have been entrusted by the investigating organs, people's procuratorates, or people's courts, they shall conduct an investigation in accordance with law based on the requirements of the entrusting organ, put together an assessment opinion, and promptly submit it to the entrusting organ.

In cases where there was no entrustment to conduct an investigation and assessment, or where the 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 in accordance with law.

Article 4: When transferring for review for prosecution, the investigating organs may submit opinions to the people's procuratorate on injunctions or professional prohibitions based on the crimes that the suspects' alleged crimes.

When people's procuratorates raise a public prosecution, they may submit recommendations on announcing injunctions and professional prohibitions. Defendants or their defenders, or victims or their agents ad litem, may submit comments on whether to impose injunctions or professional restrictions on the defendants, and explain the basis.

people's courts pronouncing injunctions and professional prohibitions shall, based on the factors such as the defendant's criminal motives, the nature of the crime, the methods, expressions of repentence, and conduct throughout, comprehensively consider the relevance to the crimes the defendant committed, and make focused decisions on prohibiting them from engaging in certain professions or activities, from entering certain areas and locations, from having contact with certain persons, and so forth.

Article 5: In cases meeting the following requirements, the people's procuratorate may submit sentencing recommendations when raising a public prosecution; and where the defendant has admitted guilt and accepted punishment, the people's procuratorate shall submit a sentencing recommendation:

(1) The facts of the crime are clear and the evidence is credible and sufficient;

(2) The legally prescribed sentencing circumstances calling for heavier, lighter, mitigated, or waived punishment on which the sentencing recommendations are based have been investigated;

(3) The discretionary sentencing circumstances calling for heavier or lighter punishment on which the sentencing recommendations are based have been investigated.

Article 6: Sentencing recommendations are to include primary sentences, supplemental sentences, and whether a suspended sentence is to be applied. The primary sentence may have a set range and a sentencing recommendation for a set period may also be submitted on the basis of the specific circumstances of the case. 建议判处财产刑的,可以提出确定的数额。

Article 7: In cases of commonly seen crimes, the people's procuratorate shall submit a sentencing recommendation in accordance with the Guiding Opinions on sentencing. In new types of cases and cases of rarely seen crimes, a sentencing recommendation may be submitted with reference to related sentencing specifications. The reasons and basis shall be explained when submitting sentencing recommendations.

Article 8: Where people's procuratorates charge defendants with multiple crimes, they shall submit distinct sentencing recommendations for each crime charged, and submit a sentencing recommendation on the punishment to be enforced after combining punishment for multiple crimes.

In cases of joint crimes, the people's procuratorate shall separately submit sentencing recommendations for each defendant based on their status and role in the joint crime, and the criminal responsibility they should bear.

Article 9: People's procuratorates submitting sentencing recommendations may draft a written sentencing recommendation and transfer it to the people's court together with the indictment; and in cases where the facts and sentencing circumstances are simpler and the expedited procedures are being applied, they may also indicate the sentencing recommendation in the indictment.

The primary and supplementary sentences that the people's procuratorate recommends for the defendant, whether a suspended sentence is to apply, as well as the reasoning and basis shall be clearly indicated in the sentencing recommendation.

Where the people's procuratorate submits a sentencing recommendation as a sentencing recommendation document, the people's court shall serve a copy of sentencing recommendation document to the defendant when serving a copy of the indictment.

Article 10: In criminal proceedings, private prosecutors, defendants and their defenders, or victims and their agents ad litem, may submit comments on sentencing and explain the reasoning, and the people's procuratorates and people's courts shall record this in the case materials and attach it to the case file.

Article 11: The people courts, people's procuratorates, and investigating organs shall notify the criminal suspects or defendants of their right to apply for legal aid, and where they meet the conditions for legal aid, are to lawfully notify the legal aid institution to appoint a lawyer to provide a defense or legal assistance.

Article 12: In cases applying the expedited procedures, after determining confirming the voluntariness of the defendant's admission of guilt and acceptance of punishment and the veracity and legality of the plea affidavit, court investigation and courtroom debate is generally not conducted again, but the opinions of the defender and the final statement and opinions of the defendant shall be heard before the judgment is pronounced.

In cases heard applying the expedited procedures the judgment shall be announced at court.

Article 13: In cases applying the simplified procedures, after confirming that the defendant has no objections to facts and charges alleged and that they have voluntarily admitted guilt and are aware of the legal consequences, in-court proceedings may be conducted directly around sentencing without further division into court investigation and courtroom debate, but the defendant's final statement and opinions shall be heard before the judgment is pronounced.

Cases heard applying simplified procedures shall generally announce the verdict at court.

Article 14: In cases applying the ordinary procedures, where the defendant concedes guilt, after confirming that the defendant understands the facts and charges in the indictment, is voluntarily admitting guilt and understands the legal consequences, the courtroom trial may primarily be conducted around sentencing and other issues in controversy, and court investigation and courtroom debate procedures may be appropriately simplified.

Article 15: In cases where the defendant does not admit guilt or the defender will conduct a not-guilty defense, court investigation and courtroom debate are to be conducted separately.

During the court investigation phase, facts related to sentencing shall be ascertained on a foundation of the facts of the crime that have been ascertained, and the defendant and their defender may present evidence showing that they are not guilty or that the crime was slight, and may exprss opinions to challenge evidence at court.

During the courtroom debate phase, adjudicators are to guide the prosecution and defense to first debate issues of guilt. After the debate on guilt is concluded, adjudicators are to notify the prosecution and defense that they may conduct debate around sentencing issues, put forward sentencing recommendations and opinions, and explain their basis and reasoning. Defendants and their defenders' participation in the investigation of sentencing issues do not impact explanations or defenses of innocence.

Article 16: During court investigation, the prosecutor may reasonably arrange and adjust the procedures based on the different types of cases, their characteristics, and trial conditions. Where evidence on guilt and sentencing are to be presented separately, the evidence on guilt shall be presented first, and then the evidence on sentencing.

Sentencing evidence in cases where there are mutliple crimes may be presented separately when presenting evidence on the facts of each crime and may also be presented together for crimes of the same type; evidence on sentencing circumstances that involve the entire case shall ordinarily be presented at the conclusion of the phase for the presentation of evidence.

Article 17: During court investigation, the people's courts shall ascertain facts on applying a specific legally-prescribed sentencing range for the defendant, as well as legally-prescribed or discretionary sentencing circumstances.

Article 18: Where people's courts, people's procuratorates, and investigating organs or defenders entrust relevant parties to create a social background report involving minors, the investigation report shall be read out at court, with debate conducted.

Article 19: During trial at court, where adjudicators have doubts about sentencing evidence, they may announce an adjournment, to conduct an investigation to verify the evidence, and when necessary, may also request that the people's procuratorate supplement the investigation for verification. When necessary, people's procuratorates supplementing investigation to verify relevant evidence may request that investigating organs provide assistance.

Evidence that the prosecution and defense have supplemented 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 sentencing evidence that is advantageous to the defendant, for which upon the solicitation of opinions outside of court, neither the prosecution or defense has an objection.

Article 20: Where defendants and their defenders, or victims and their agents ad litem, apply to the people's courts to obtain sentencing evidence that was obtained during the investigation or review for prosecution phases, and the people's courts find that it is truly necessary, they shall obtain it in accordance with law; and where they find it is not necessary to obtain it, they shall explain the reasons:

Article 21: During courtroom debate, debate on sentencing is to follow the sequence below:

(1) The public prosecutor states the sentencing recommendation or the private prosecutor and their agent ad litem state their sentencing opinions;

(2) The victims and their agents ad litem state their sentencing opinions;

(3) The defendant and their defender state their sentencing opinions.

Article 22: Where new facts on sentencing emerge during courtroom debate, and further investigation is required, there shall be a return to court investigation, with courtroom debate continuing after the facts are ascertained.

Article 23: The people's courts shall lawfully review the sentencing recommendations submitted by the people's procuratorate. The people's court shall adopt it where the facts are clear, the evidence is credible and sufficient, the charges are correct, and the sentencing recommendations appropriate.

Where through trial, people's courts find that the people's procuratorate's sentencing recommendation is improper, they may notify the people's procuratorate. Where the people's procuratorate adjusts the sentencing recommendation, it shall be submitted before the close of trial at court. Where the people's court finds that the sentencing recommendation as adjusted by the people's procuratorate is appropriate, it shall accept it; where the people's procuratorate does not adjust the sentencing recommendation, or the sentencing recommendation is still improper after adjustment, the people's court shall make a judgment in accordance with law.

Article 24: in any of the following circumstances, where defendants 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:

(1) The defendant admits guilt and accepts punishment in the investigation and review for prosecution phases, but the people's procuratorate didn't submit a sentencing recommendation;

(2) The defendant doesn't admit guilt and accept punishment in the investigation and review for prosecution phases;

(3) The defendant doesn't admit guilt and accept punishment in the first instance trial procedures, but does so in the second-instance trial procedures;

(4) The defendants do not consent to the sentencing recommendation in the course of the trial.

Article 25: The people's courts shall explain the reasons for sentencing in criminal judgment opinions. The sentencing explanation is to primarily include:

(1) Facts for sentencing that have already been ascertained, and their impact on the sentence;

(2) Whether the public prosecutor's sentencing recommendation or the opinions submitted by private prosecutors, defendants and their defenders, or victims and their agents ad litem, as well as their reasoning, are being adopted;

(3) The reasoning and legal basis for the sentence imposed by the people's court.

Cases heard applying the expedited procedures may simplify the explanation of sentencing.

Article 26: The sentencing procedures for second-instance trials and retrial cases with in-court proceedings are to be conducted in accordance with the relevant legal provisions. Where the law has no provisions, conduct them with reference to these Opinions.

For second-instance trial and retrial cases that do not have in-court proceedings, adjudicators shall pay attention to reviewing sentencing facts and evidence when reading the case file, interrogating defendants, or hearing the opinions of the private prosecutor, defender, and victims and their agents ad litem.

Article 27: For the submission, adoption, and adjustment of sentencing recommendations, apply the relevant provisions of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, Ministry of Justice, "Guiding Opinions on Applying the System of Leniency for those who Admit Guilt and Accept Punishment".

Article 28: These Opinions are to take effect on November 6, 2020. The Notification on the Issuance of the Opinions on Several Issues on Standardizing Sentencing Procedures (Provisional) (Fafa(2010)No.32) issued by the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, Ministry of State Security, and Ministry of Justice on September 13, 2010, are simultaneously abolished.

 

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