Title: The Supreme People's Procuratorate's Provisions on Ensuring Lawyer's Practice Rights in Accordance with Law Promulgating Entities:Supreme People's Procuratorate Reference number: Promulgation Date: 2014-12-29 Expiration date: Source of text: http://www.spp.gov.cn/xwfbh/wsfbt/201412/t20141229_86741_1.shtml
People's procuratorates of all provinces, autonomous regions and directly governed municipalities; military procuratorates and the people's procuratorate for the Xinjiang Production and Construction Corps:
So as to ensure lawyers' practice rights in accordance with law, promote a regulated judiciary in the people's procuratorate and maintain judicial fairness, the Supreme People's Procuratorate has drafted these " Provisions on Ensuring Lawyer's Practice Rights in Accordance with Law", passed by the 32 meeting of the procuratorial committee of the Supreme People's Procuratorate on December 16, 2014, and hereby released to you; please comply with them.
Supreme People's Procuratorate
December 23, 2014
The Supreme People's Procuratorate's Provisions on Ensuring Lawyer's Practice Rights in Accordance with Law
Article 1: These Provisions are drafted on the basis of the Criminal Procedure Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China, the Administrative Litigation Law of the People's Republic of China, the People's Republic of China Law on Lawyers, and other relevant laws combined with actual work experience; so as to truly ensure lawyers' exercise of their practice rights in accordance with law, to strictly pursue responsibility for procurators unlawful exercise of professional duties, to promote a standardized judiciary in the people's procuratorates and to maintain judicial fairness.
Article 2: All levels of people's procuratorate and the entire corps of prcurators shall fully recognize the important role of lawyers in establishing the rule of law, earnestly carrying out and implementing every legal provision, respecting and supporting lawyers lawful performance of their professional duties, providing relevant assistance and facilitation of parties' retention of lawyers and lawyers' performance of their duties, truly ensuring lawyers' lawful performance of their practice rights, jointly protecting the uniformity and correct implementation of the nation's laws, and protecting social fairness and justice.
Article 3: The people's procuratorates shall ensure parties' exercise of their right to retain a lawyer in accordance with law. While handling cases, people's procuratorates shall lawfully inform parties that they have the right to retain a lawyer or agent ad litem. Where criminal suspects in custody or under residential surveillance in a designated location request to retain a lawyer, the people's procuratorates shall promptly transfer this request. Where criminal suspects' guardians or close family members retain a defense attorney on their behalf, the criminal suspects shall confirm the representation relationship. People's procuratorates shall promptly inspect whether a lawyer accepting a representation has defense credentials, and where discovering circumstances under which they must not serve as defender, they shall inform the party, lawyer or lawfirm to dissolve the representation relationship.
People's procuratorates shall promptly inspect whether a lawyer accepting a representation has defense credentials, and where discovering circumstances under which they must not serve as defender, they shall inform the party, lawyer or lawfirm to dissolve the representation relationship.
Article 4: People's procuratorate shall lawfully ensure parties' right to receive legal aid. Where the circumstances for legal aid are met but a defender or agent ad litem has not been retained, the people's procuratorate shall promptly inform the party to apply for legal aid, and follow the relevant provisions to transfer the application materials to the legal aid institution. Where people's procuratorates discover that a criminal suspect is one with defense notification circumstances, they shall promptly notify the legal aid institution to appoint a lawyer to provide them a defense, and where the criminal suspect refuses the legal aid, they shall clarify the reasons and handle it in accordance with relevant provisions.
Article 5: People's procuratorates shall lawfully ensure lawyers rights to meet clients during criminal litigation. In cases which the people's procuratorates directly file and investigate, except cases of major bribery crimes, permission to meet with clients is not required in accordance with law. Where during the investigation phase a lawyer requests to meet with criminal suspects in a major bribery case, the people's procuratorate shall strictly follow the law and relevant provisions to promptly review and decide whether or not to permit it, and give a reply within 3 days; after situations obstructing investigation have dissapeared, they shall notify the lawyer that he may meet the criminal suspect without permission. people's procuratorates must not appoint persons to be pressent during meetings with clients, and must not use any methods to monitor the content of lawyers' meetings with clients.
Article 6: People's procuratorates shall lawfully ensure lawyers' rights to read the case file. From the day on which the case is transferred for review for prosecution, the people's procuratorates shall fully allow defense attorneys to consult, copy or reproduce the case file materials for that case; upon the people's procuratorate's permission, agents ad litem may also consult, copy or reproduce the case file materials for that case. people's procuratorates shall promptly accept and arrange for lawyers to read case files, where there is no way to make prompt arrangements, they shall explain this to the lawyer and arrange for him to read the case file within 3 days. people's procuratorates shall follow relevant provisions of transparency in procuratorate affairs to improve online platforms for lawyers services and the like, and allot necessary equipment such as instant cameras, photocopying, and media burning, to provide as much facilitation to lawyers reading the case file as possible. Lawyers' consulting , copying and reproduction of case file materials shall be conducted in special venues established by the people's procuratorate. When necessary, the people's procuratorate may appoint staff to assist at these venues.
Article 7: People's procuratorates shall lawfully ensure lawyers rights to apply for the gathering or collection of evidence. Where a lawyer collects evidence showing that the criminal suspect was not at the scene of the crime, has not reached the age of criminal responsibility, or is a mentally ill person not bearing criminally responsibility in accordance with law, and informs the people's procuratorate, the relevant case-handling department of the people’s procuratorate shall promptly conduct a review of the matter.
Where after a case is transferred to be reviewed for arrest or reviewed for prosecution, a laywer makes an application in accordance with Criminal Procedure Law article 39 for the people's procuratorate to collect evidentiary materials gathered by the investigation department that have not yet been handed over, and which show the criminal suspect's innocence or that the crime was minor, the people's procuratorate shall promptly conduct a review and decide whether to collect it. Where upon review it is found that the lawyer is applying to collect evidence that has not been gathered or that has no connection to the case, and a decision is made to not collect, the people's procuratorate shall explain the reason to the lawyer. After the people's procuratorate makes a decision to collect, and the investigating organ transfers the relevent evidentiary materials, the people's procuratorate shall inform the lawyer within 3 days.
Where after the case is transferred for review for prosecution, a lawyer applies for the people's procuratorate to gather or collect evidence in accordance with article 41 of the Criminal Procedure Law, and the people's procuratorate finds that it must gather or collect the evidence, it shall decide to gather or collect it and draft a note to attach to the case file. Where it is decided not to gather or collect it, the reasons shall be explained in writing. Lawyers may be present when the people's procuratorate gathers and collects evidence in accordance with the lawyers' application.
When a lawyer applies to gather materials relevant to the case from victims, their close relatives, or witnesses provided by the victims, and submits an application to the people's procuratorate, the people's procuratorate shall make a decision within 7 days on whether or not to permit it. Where people's procuratorate do not give permission, they shall explain their reasons in writing.
Article 8: People's procuratorate shall lawfully ensure lawyers' right to submit comments during litigation. People's procuratorates shall actively hear and place great emphasis on lawyers' comments. Where the law does not so provide, but lawyers request their comments be heard, arangements shall also be made to hear them. A record shall be made of hearing the lawyers' comments, and any written opinions submitted by a lawyer shall be attached to the case file. Where lawyers submit a written comment saying that no crime is constituted; that the crime is mitigatable, commutable or excusable; that there is no danger to society; that detention is innapropriate; or that there was illegal investigative conduct; the case handling personnel must conduct a review, describe the lawyer's submitted comment in relevant work documents, and explain whether it was adopted and the reasons.
Article 9: People's procuratorates shall lawfully ensure lawyers' right to know in criminal litigation. Where during the investigation period lawyers learn circumstances from the people's procuratorate such as the crime the criminal suspect is suspected of, the principle facts of the crime that have already been reviewed and clarified, and any compulsory measures adopted, rmodified or removed; the people's procuratorate shall promptly inform them in accordance with law. When reporting to the people's procuratorate at the level above for review for approval of arrest in a case directly filed and investigated by the procuratorate, people's procuratorates shall inform the lawyer of the report. When the case investigation is complete and transferred for review for prosecution, the people's procuratorate shall inform the lawyer of the case transfer.
Article 10: People's procuratorates shall lawfully ensure lawyers rights to represent in Civil and Administrative litigation. In civil and administrative case procurator work, where parties have retained a lawyers representation, the people's procuratorates shall respect lawyers rights, hear their comments in accordance with law, and earnestly review evidentiary materials submitted by the lawyer. Where lawyers request to participate in the people's procuratorate's evidentiary hearing on the basis of being retained by a party, the people's procuratorate shall permit it.
Article 11: People's procuratorates shall truly perform legal supervision of obstructions to lawyers' lawful practice. Where lawyers feel that public security organs, people's procuratorates, people's courts or their staff are obstructing their lawful performance of their rights, and, in accordance with article 17 of the Criminal Procedure Law make an appeal or accusation to the people's procuratorate at the level above, the accusation department of the people's procuratorate that receives the appeal or accusation shall conduct a review within 10 days of receiving the accusation, and where the circumstances are true, notify the relevant organ or relevant departments of that procuratorate or the procuratorate below to make corrections and respond to the lawyer in writing with the circumstances of the handling; and where the circumstances are untrue, also respond to the lawyer in writing with the circumstances of the handling and do a good job of explaining and interpreting. Where during the course of case handling, people's procuratorates discover conduct obstructing lawyers performance of their procedural rights, they shall submit a corrective opinion in accordance with law.
Article 12: Establish and improve systems for recording, reporting and pursuing responsibility for unlawful conduct by procuratorates' case-handling departments or procurators in performing their duties. For appeals or accusations regarding procuratorates' case-handling departments or procurators obstructed lawyers lawful exercise of procedural rights such as the right to meet with clients or the right to read the case file; the accusations department of the people's procuratorate receiving the appeal or accusation shall immediately conduct an investigation and verification; where the circumstances are minor, they shall submit a corrective opinion; where there is a violation in expanding the range of case needing permission before a meeting, or where a response on permission to meet is not given in the provided time, a written notice of correction should be issued. Where there is still no correction after notice or there are repeated unsuccessful corrections, this shall be reported to the disciplinary inspection department and to the chief procurator, and the disciplinary inspection department will investigate and reach a disposition on the basis of relevant provisions, disciplinary sanctions are given to relevant responsible persons where disciplinary violations a constituted and this shall be noted in the enforcement archives and bulletin.
Article 13: People's procuratorates shall actively strengthen contact and communication with judicial-administrative organs, lawyers associations, and broader lawyers profession; using models such as practice symposia, situation reports, consultation meetings, and regularly hearing comments, to analyze problems that exist in lawyers lawful exercise of their practice rights, jointly researching resolution methods and jointly raising the quality of practice.
Article 14: These provisions become effective on the date of publication. The Supreme People's Procuratorate's "Provisions on people's procuratorates ensuring the lawyers' practice in accordance with law during criminal proceedings" promulgated on February 10, 2004 and the "Notice on efforts to further strengthen efforts to ensure lawyer's practice rights" promulgated on February 23, 2006, are abolished at the same time. Where provisions previously promulgated by the Supreme People's Procuratorate are inconsistent with these Provisions, these Provisions are controlling.