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Supreme People's Court Supreme People's Procuratorate Ministry of Public Security
Opinion on Several Issues Regarding the Application of Criminal Procedure in Handling Cases of Internet Crime
Public Announcement [2014] No. 10
High People's Courts, People's Procuratorates and Public Security Departments and Bureaus of all Provinces, Autonomous Regions, Directly Controlled Municipalities, and the High People's Court Production Corps Branch for the XinJiang Uighur Autonomous Region, and the Xinjiang Production Corps Procuratorate and Public Security Bureau:
The following opinions are hereby put forward on the basis of the "Criminal Law of the PRC", The Criminal Procedure Law of the PRC" , related judicial interpretations and regulations along with the experience aggregated in investigation, prosecution and adjudication, so as to resolve new problems and new circumstances encountered in recent years by the public security organs, procurators and courts in handling cases of internet crime and to strictly punish internet criminal activity in accordance with law:
I. Regarding the scope of internet crimes
1. Cases of internet crimes as used in this Opinion include:
(1) Criminal cases endangering the security of computer information systems;
(2) criminal cases of theft, fraud, extortion or other such crimes perpetrated through harm to the security of computer information systems;
(3) Criminal cases of publishing information on networks, or setting up a website or communications group, used primarily to perpetrate criminal activities, that target, organize, abet, or aid an unspecified mass of people to act.
(4) Other criminal cases where the principle criminal conduct occurred online.
II. Regarding Jurisdiction of Internet Crimes
2. Internet crimes are filed and investigated by the public security organ at the site of the crime. When necessary, the public security organ at the site of the suspects domicile may file and investigate.
The site of the crime in an internet case includes such locations as the site of the website server used in the commission of criminal acts, the place the network was entered, the location of the website establisher or manager, the location of the violated computer information system or its managers, the location of the computer information system used by the suspect or victim, the location of the victim at the time of injury, as well as the location of the property that was harmed.
Where cyber crime cases involve multiple sectors, the public security organ at the location or residence of a cybercrime suspect who assisted in the cybercrime can refile the case for investigation and prosecution.
3, In cases of internet crimes where there are multiple sites of the crime, the first public security organ to accept the case or the public security organ at the principle site of the crimes, files the case and investigates. Where there is controversy, the shared public security organ at a level above will designate a public security organ to file the case and investigating, according to the principles of benefiting clarification of the case facts and benefiting litigation.
4, In any of the following circumstances, the relevant public security organ may jointly investigate cases within the scope of their professional duties, and where it is necessary to request approval or arrest, transfer the case to be reviewed for prosecution or indictment, that people's procuratorate and people's court for the region in which that public security organ sits accepts it:
(1) one person commits several crimes;
(2) joint crimes;
(3) a suspect or defendant in a joint also commits other crimes;
(4) There is a connection between crimes committed by multiple suspects or defendants, and joint disposition of the cases is useful for clarifying the case facts.
5, Where online transactions, technical support, financial payments or settlements and other such relationships give form to a multi-level linked and/or cross-regional internet crimes cases, the shared public security organ at the level above may, on the basis of the principles of benefiting clarification of criminal facts and litigation, designate a related public security organ to file and investigate the cases together. When application for approval of arrest, transfer to be reviewed for prosecution and indictment are necessary, the people's procuratorate and people's court for the region where the public security is situated accept it.
6, Where there are special circumstances and case filing and investigation by the public security organ of another location would be more conducive to clarifying case facts and to ensuring fair handling of a cross-provincial (autonomous region or directly controlled municipality major internet crimes case, jurisdiction may be specified by the Ministry of public security in consultation with the Supreme People's Procuratorate and the Supreme People's Court.
7, Where people's procurators reviewing discover that the criminal suspect in an internet crime case transferred by the public security organs to be reviewed for prosecution has committed other crimes that are filed and investigated by another public security organ, they shall notify the public security organ that transferred the case to be reviewed for prosecution.
Where after accepting a case, people's courts discover that a defendant has other crimes that are filed and investigated by another public security organ, they may suggest that the people's procuratorate supplement the investigation. Where upon review the people's procuratorate feels it is necessary to supplement the investigation, it shall notify the public security organ which transferred the case to be review for prosecution.
Upon notification by the people's procuratorate, the relevant public security organs may, based on the specific circumstances of the case, investigate all other crimes committed by the suspect together.
8, So as to ensure the prompt resolution of trial, and avoid extended detention, people's procuratorates discovering they have no jurisdiction over internet crimes cases submitted by the public security organs for approval of arrest or transferred to be reviewed for prosecution, and first-instance people's courts discovering they have no jurisdiction over internet crimes case they have already accepted, may report the situation to the shared procuratorate or court at the level above in accordance with law, for a designation of jurisdiction.
9, In joint internet crimes where some suspects are at large but it does not influence ascertaining the facts of the case as to suspects or defendants already brought into the case, they suspects or defendants already brought into the case may lawfully be tried first. After the joints suspects or defendants on the run are brought into the case, the original public security organ, people's procuratorate and people's court may have jurisdiction of all related cases.
III. Regarding the initial investigation of internet crimes
10、Where during the review of an accepted case or discovered leads, it is found that the facts of the case or leads are unclear and that investigation is necessary before it can be confirmed whether or not it reaches the standard for prosecution, the upon permission of the responsible party at the case handling department, a preliminary investigation may be conducted.
In the course of the preliminary investigation, measures which do not limit the target of investigation's personal or property rights, such as questioning, queries, inspections, appraisals and collection of evidence, may be employed, but compulsory measures must not be taken against the target of the preliminary investigation, nor should their assets be sealed, seized or frozen.
IV. Regarding cross-region evidence gathering in internet crime cases
11, Where public security organs cross jurisdictions to investigate and collect evidence, they may send a case-handling cooperation letter, relevant legal documents and corroboration to the local public security organ by fax or transmit them through the public security organs' information systems. Upon review and confirmation, the cooperating local public security organ may investigate and collect evidence on their behalf after affixing the local seal to the received legal documents.
12, Questioning (interrogation) of witnesses, victims or criminal suspects related to the case, who are in other places, may be done remotely by the case- handling public security organ using online video or other such methods to conduct the questioning (interrogation) and make a record.
Where questioning (interrogation) is remote, the cooperating local police department shall first confirm the identity of the person to be questioned (interrogated). The case-handling public security organ shall transfer the record of the questioning to the cooperating local public security organ. After the person who was questioned (interrogated) has verified the record of the questioning (interrogation), signed each page and affixed a fingerprint, the cooperating public security organ's personnel will sign or affix a seal, and provide the original document to the case-handling public security organ. After the questioners (interrogators) receive the record, they shall clearly write 'received on (day,month,year)" in the upper right hand side and sign or affix their seal.
Where questioning (interrogation) is done remotely, audio or visual recordings shall be made of the entire questioning (interrogation) process, and transfer it with the case.
Where witnesses, victims or suspects related to the case personally write their testimony or confession, proceed with reference to the second clause of this article.
V. Regarding the Collection and Review of Digital Data
13, Collection or gathering of electronic data shall be conducted by two or more investigators possessing specialized knowledge. The equipment and processes for gathering evidence shall meet the relevant technological standards and ensure that the integrity and objectivity of the electronic data gathered or collected.
14, Where in gathering or collecting electronic data, the original storage media can be obtained, it shall be sealed and a record made, and the record of sealing the original storage medium will be signed or have a seal attached by the investigating personnel and the person in possession of the original storage medium. Where the person in possession is unable or refuses to sign, theis shall be noted in the record and a witness will sign or affix their seal. Where there is capacity, investigators shall make audio or video recordings of the related activities.
15, In any of the following situations where it is not possible to obtain the original storage media, electronic data may be collected, but the reason for not collecting the original storage medium, its location and other circumstances shall be noted in the record . The investigating personnel, the person in possession of the electronic data or the person who provided it will sign their names or affix their seals; where the person in possession or providing the electronic data is unable or refuses to sign, this shall be noted in the record and a witness will sign or affix their seal. Where there is capacity, investigators shall make audio or video recordings of the relevant activities.
(1) it is inconvenient to archive the original storage medium;
(2) Data Extracted from computer memory storage, network transmission data, or other such electronic data that is not stored in a storage medium;
(3) the original storage media is located outside the country;
(4) other situations where there is no way to obtain the original storage medium.
16, A record shall be made of the gathering or collection of electronic data, recording the cause of action, the object of the case, its content, and the time, place, means, and process by which the electronic data was collected, and a list of the electronic data, its character, category, document format, integrity check value, and other such information, as well as a list of the persons gathering the evidence or their seals. Where collection of electronic data was done remotely, the reason shall be explained, and where there is capacity, related activities should be recorded as audio or video. An explanation of the process and means shall be made where electronic data which has been deleted, concealed or encrypted is acquired through restoration, unlocking or other such methods.
17, Original storage media or electronic data gathered or collected shall be transferred sealed along with the case, and a reproduction of the electronic data made and sent along as well.
For documents, images, webpages and other electronic data that can be directly displayed, a printout need not be transferred along with the case, but an explanation of the display methods and tools shall be attached. Where people's courts and people's procuratorates are unable to directly display electronic electronic data, because of equipment limitations or other such reasons, the public security organ shall transferred print-outs together with the case.
For electronic data that cannot be directly displayed such as programs, tools or computer viruses used for intruding on or unlawfully controlling computer information systems, an explanation of the nature, function and other circumstances of the electronic data shall be attached.
The public security organs shall issue an explanation of issues such as the volume of data statistics and the equivalence of data.
18, Where the specialization of electronic data makes it difficult to identify, forensic evaluation establishments will issue an appraisal opinion, or an establishment designated by the public security organ will issue an inspection report.
VI. Regarding other problems in internet crimes cases
19, Where materials gathered through use of technical measures are used as evidence, the legal documents authorizing the use of technical measures and all evidentiary materials gatherd shall be sent along with the case. Where use of relevant evidence might endanger relevant persons physical safety or cause other serious consequences, protective measures such as not disclosing persons' identities or using technological methods shall be employed, when necessary, adjudicaotrs may review and affirm evidence outside of court.
20, In cases of targeting, organizing, inciting or aiding an mass of unspecified people in the commission of an internet crime, where due to actual objective limitations, it is not possible to collect all relevant testimony, the relevant facts of the crime may be verified on a consideration of all the evidence in the case, based on electronic data, documents or other evidence recording the number of victims, the number of computer information systems infringed upon, the monetary amounts involved in the case and other such facts, and on the foundation of careful review of explanations and defense opinions submitted by the defendant and his defender.
The Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security
May 4, 2014
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