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CONTENTS
PART ONE GENERAL PROVISIONS
CHAPTER I THE GUIDING IDEOLOGY, AIM AND BASIC PRINCIPLES
CHAPTER II JURISDICTION
CHAPTER III WITHDRAWAL
CHAPTER IV DEFENCE
CHAPTER V EVIDENCE
CHAPTER VI COMPULSORY MEASURES
CHAPTER VII INCIDENTAL CIVIL ACTIONS
CHAPTER VIII TIME PERIODS AND SERVICE
CHAPTER IX OTHER PROVISIONS
PART TWO FILIING A CASE, INVESTIGATION AND INITIATION OF PUBLIC PROSECUTION
CHAPTER I FILING A CASE
CHAPTER II INVESTIGATION
SECTION 1 INTERROGATION OF THE DEFENDANT
SECTION 2 QUESTIONING OF THE WITNESSES
SECTION 3 INQUEST AND EXAMINATION
SECTION 4 SEARCH
SECTION 5 SEIZURE OF MATERIAL EVIDENCE AND DOCUMENTARY EVIDENCE
SECTION 6 EXPERT EVALUATION
SECTION 7 WANTED ORDERS
SECTION 8 CONCLUSION OF INVESTIGATION
CHAPTER III INITIATION OF PUBLIC PROSECUTION
PART THREE TRIAL
CHAPTER I TRIAL ORGANIZATIONS
CHAPTER II PROCEDURE OF FIRST INSTANCE
SECTION 1 CASES OF PUBLIC PROSECUTION
SECTION 2 CASES OF PRIVATE PROSECUTION
CHAPTER III PROCEDURE OF SECOND INSTANCE
CHAPTER IV PROCEDURE FOR REVIEW OF DEATH SENTENCES
CHAPTER V PROCEDURE FOR TRIAL SUPERVISION
PART FOUR EXECUTION
PART ONE GENERAL PROVISIONS
CHAPTER I THE GUIDING IDEOLOGY, AIM AND BASIC PRINCIPLES
Article 1. The Criminal Procedure Law of the People’s Republic of China, which takes Marxism-Leninism-Mao Zedong Thought as its guide and the Constitution as its basis, is formulated in the light of the concrete experiences of the people of all China’s nationalities in carrying out the people’s democratic dictatorship, led by the proletariat and based on the worker-peasant alliance, that is, the dictatorship of the proletariat, and in accordance with the actual need to strike the enemy and protect the people.
Article 2. The aim of the Criminal Procedure Law of the People’s Republic of China is to ensure that the facts of crimes shall be accurately and promptly ascertained, that the application of law shall be correct and that criminals shall be punished; to guarantee that innocent people shall not undergo criminal prosecution; to educate citizens to voluntarily observe the law and actively struggle against criminal acts, in order to uphold the socialist legal system; to protect the citizens rights of the person, democratic rights and other rights; and to guarantee the smooth progress of the cause of the socialist revolution and socialist construction.
Article 3. The public security organs shall be responsible for investigation, detention and preliminary examination in criminal cases. The people’s procuratorates shall be responsible for approving arrests, conducting procuratorial work (including investigation) and initiating public prosecution. The people’s courts shall be responsible for adjudication. No other organ, organization or individual shall have the right to exercise such powers.
In conducting criminal proceedings, the people’s courts, the people’s procuratorates and the public security organs must strictly observe this Law and any relevant stipulations of other laws.
Article 4. In conducting criminal proceedings, the people’s courts, the people’s procuratorates and the public security organs must rely on the masses, base themselves on facts and take the law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before the law.
Article 5. In conducting criminal proceedings, the people’s courts, the people’s procuratorates and the public security organs shall divide the responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of the law.
Article 6. Citizens of all nationalities shall have the right to use their native spoken and written languages in court proceedings. The people’s courts, the people’s procuratorates and the public security organs shall provide translations for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality.
Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, court hearings shall be conducted in the spoken language commonly used in the locality, and judgments, notices and other documents shall be issued in the written language commonly used in the locality.
Article 7. In trying cases, the people’s courts shall apply the system whereby the second instance is final.
Article 8. Cases in the people’s courts shall be heard in public, unless otherwise provided by this Law. A defendant shall have the right to defence, and the people’s courts shall have the duty to guarantee his defence.
Article 9. In trying cases, the people’s courts shall apply the system of people’s assessors taking part in trials in accordance with this Law.
Article 10. The people’s courts, the people’s procuratorates and the public security organs shall safeguard the procedural rights to which participants in proceedings are entitled according to law.
In cases where a minor under the age of 18 commits a crime, the legal representative of the defendant may be notified to be present at the time of interrogation and trial.
Participants in proceedings shall have the right to file charges against judicial, procuratorial and investigator personnel whose acts infringe on their citizens’ procedural rights or subject their persons to indignities.
Article 11. In any of the following circumstances, no criminal responsibility shall be investigated; if investigation has already been undertaken, the case shall be dismissed, or prosecution shall not be initiated, or innocence shall be declared:
(1) If an act is obviously of minor importance, causing no serious harm, and is therefore not deemed a crime;
(2) If the limitation period for criminal prosecution has expired;
(3) If an exemption of criminal punishment has been granted in a special amnesty decree;
(4) If the crime is to be handled only upon complaint according to the Criminal Law, but there has been no complaint or the complaint has been withdrawn;
(5) If the defendant is deceased; or
(6) If other laws or decrees provide an exemption from investigation of criminal responsibility.
Article 12. Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.
If foreigners with diplomatic privileges and immunities commit crimes for which criminal responsibility should be investigated, those cases shall be resolved through diplomatic channels.
CHAPTER II JURISDICTION
Article 13. Minor criminal cases that are to be handled only upon complaint or do not require an investigation shall be directly accepted and may be mediated by the people’s courts.
Cases involving crimes of corruption, violation of the citizens democratic rights and dereliction of duty, as well as other cases which the people’s procuratorates consider necessary to handle directly themselves shall be placed on file by the people’s procuratorates, which shall conduct investigation and decide whether or not to initiate a public prosecution.
All cases other than those provide in the two preceding paragraphs shall be investigated by the public security organs.
Article 14. The basic people’s courts shall have jurisdiction as courts of first instance over ordinary criminal cases; however, those cases which fall under the jurisdiction of the people’s courts at higher levels as stipulated by this Law shall be exceptions.
Article 15. The intermediate people’s courts shall have jurisdiction as courts of first instance over the following criminal cases:
(1) counterrevolutionary cases;
(2) ordinary criminal cases punishable by life imprisonment or the death penalty; and
(3) criminal cases in which the offenders are foreigners or in which Chinese citizens have infringed upon the lawful rights of foreigners.
Article 16. The higher people’s courts shall have jurisdiction as courts of first instance over major criminal cases that pertain to an entire province (or municipality directly under the Central Government, or autonomous region).
Article 17. The Supreme People’s Court shall have jurisdiction as the court of first instance over major criminal cases that pertain to the whole nation.
Article 18. When necessary, people’s courts at higher levels may try criminal cases over which people’s courts at lower levels have jurisdiction as courts of first instance; they may also transfer criminal cases over which they themselves have jurisdiction as courts of first instance to people’s courts at lower levels for trial. If a people’s court at a lower level considers the circumstances of a criminal case in the first instance to be major or complex and to necessitate a trial by a people’s court at a higher level, it may request that the case be transferred to the people’s court at the next higher level for trial.
Article 19. A criminal case shall be under the jurisdiction of the people’s court in the place where the crime was committed. If it is more appropriate for the case to be tried by the people’s court in the place where the defendant resides, then that court may have jurisdiction over the case.
Article 20. When two or more people’s courts at the same level have jurisdiction over a case, it shall be tried by the people’s court that first accepted it. When necessary the case may be transferred for trial to the people’s court in the principal place where the crime was committed.
Article 21. A people’s court at a higher level may instruct a people’s court at a lower level to try a case over which jurisdiction is unclear and may also instruct a people’s court at a lower level to transfer the case to another people’s court for trial.
Article 22. The jurisdiction over cases in special people’s courts shall be stipulated separately.
CHAPTER III WITHDRAWAL
Article 23. In any of the following situations, a member of the judicial, procuratorial or investigator personnel shall voluntarily withdraw, and the parties to the case and their legal representatives shall have the right to demand his withdrawal:
(1) if he is a party or a near relative of a party to the case;
(2) if he or a near relative of his has an interest in the case;
(3) if he has served as a witness, expert witness or defender in the current case or has represented a party in an incidental civil action; or
(4) if he has any other relations with a party to the case that could affect the impartial handling of the case.
Article 24. The withdrawal of judicial, procuratorial and investigator personnel shall be determined respectively by the president of the court, the chief procurator, and the head of a public security organ; the withdrawal of the president of the court shall be determined by the court’s judicial committee; and the withdrawal of the chief procurator or the head of a public security organ shall be determined by the procuratorial committee of the people’s procuratorate at the corresponding level.
A member of the investigatory personnel may not suspend investigation of a case before a decision is made on his withdrawal.
If a decision has been made to reject and application for withdrawal, a party may apply for one reconsideration.
Article 25. The provisions of Articles 23 and 24 of this Law shall also apply to court clerks, interpreters and expert witnesses.
CHAPTER IV DEFENCE
Article 26. In addition to exercising the right to defend himself, the defendant may entrust the following persons to defend him:
(1) lawyers;
(2) citizens recommended by a people’s organization or the unit to which the defendant belongs, or other citizens permitted by the people’s court; and
(3) near relatives or guardians of the defendant.
Article 27. If a public prosecutor appears in court to conduct a public prosecution and the defendant has not entrusted anyone to be his defender, the people’s court may designate a defender for him.
If the defendant is deaf or mute, or he is a minor, and thus has not entrusted anyone to be his defender, the people’s court shall designate a defender for him.
Article 28. The responsibility of a defender shall be to present, according to the facts and the law, materials and opinions proving the innocence of the defendant, the pettiness of his crime and the need for a mitigated punishment or exemption from criminal responsibility, thus safeguarding the lawful rights and interests of the defendant.
Article 29. Defence lawyers may consult the file record of the current case, acquaint themselves with the circumstances of the case, and meet and correspond with the defendant in custody. Other defenders, when permitted by the people’s court, may also acquaint themselves with the circumstances of the case and meet and correspond with the defendant in custody.
Article 30. During a trial, the defendant may refuse to have his defender continue to defend him and may entrust his defence to another defender.
CHAPTER V EVIDENCE
Article 31. All facts that prove the true circumstances of a case shall be evidence.
There shall be the following six categories of evidence:
(1) material evidence and documentary evidence;
(2) testimony of witnesses;
(3) statements of victims;
(4) statements and exculpations of defendants;
(5) expert conclusions; and
(6) records of inquests and examination.
Any of the above evidence must be verified before it can be used as the basis for deciding cases.
Article 32. Judicial, procuratorial and investigatory personnel must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the defendant’s guilt or innocence and the gravity of his crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat, enticement, deceit or other unlawful means. Conditions must be guaranteed for all citizens who are involved in a case or who have information about the circumstances of a case to objectively and fully furnish evidence and, except in special circumstances, they may be brought in to help the investigation.
Article 33. The public security organ’s requests for approval of arrest, the people’s procuratorate’s bills of prosecution and the people’s court’s written judgments must be faithful to the facts. The responsibility of anyone who intentionally conceals the facts shall be investigated.
Article 34. The people’s courts, the people’s procuratorates and the public security organs shall have the authority to collect or obtain evidence from the relevant state organs, enterprises, institutions, people’s communes, people’s organizations and citizens.
Evidence involving state secrets shall be kept confidential.
Anyone that falsifies, conceals or destroys evidence, regardless of which side of a case he belongs to, must be investigated under the law.
Article 35. In the decision of all cases, stress shall be laid on evidence, investigation and study; credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to a criminal punishment if there is only his statement but no evidence; the defendant may be found guilty and sentenced to a criminal punishment if evidence is sufficient and reliable, even without his statement.
Article 36. The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides, that is, the public prosecutor and victim as well as the defendant and defenders, and after the testimonies of the witnesses on all sides have been heard and verified. If a court discovers through investigation that a witness has intentionally given false testimony or concealed criminal evidence, it shall handle the matter in accordance with the law.
Article 37. All those who have information about a case shall have the duty to testify.
Physically or mentally handicapped persons or minors who cannot distinguish right from wrong or cannot properly express themselves shall not be qualified as witnesses.
CHAPTER VI COMPULSORY MEASURES
Article 38. The people’s courts, the people’s procuratorates and the public security organs may, according to the circumstances of a case, issue a warrant to compel the appearance of the defendant, order him to obtain a guarantor pending trial or subject him to residential surveillance.
A defendant under residential surveillance may not leave a designated area. Residential surveillance shall be carried out by the local public security station or by the people’s commune or defendant’s unit entrusted with the task.
If a new development occurs in a case where a defendant has obtained a guarantor pending trial or is placed under residential surveillance, these measures shall be revoked or altered.
Article 39. Arrests must be approved by a people’s procuratorate or decided by a people’s court and must be carried out by a public security organ.
Article 40. When the main facts of a crime have been already ascertained and the offender could be sentenced to a punishment of not less than imprisonment, and if such measures as allowing him to obtain a guarantor pending trial or placing him under residential surveillance would be insufficient to prevent the occurrence of danger to society, thus necessitating arrest, the offender shall be immediately arrested according to law.
If an offender who should be arrested is seriously ill or is a pregnant woman or a woman breast-feeding her own baby, the offender may be allowed to obtain a guarantor pending trial or be placed under residential surveillance.
Article 41. Public security organs may initially detain an active criminal deserving arrest or a major suspect under any of the following conditions:
(1) if he is preparing to commit a crime, is in the process of committing a crime or is discovered immediately after committing a crime;
(2) if he is identified as having committed a crime by a victim or an eyewitness;
(3) if criminal evidence is found on his body or at his residence;
(4) if he attempts to commit suicide or escape after committing the crime, or he is a fugitive;
(5) if there is likelihood of his destroying or falsifying evidence or colluding with others to give false statements;
(6) if his identity is unknown and he is strongly suspected of committing crimes going from one place to another; and
(7) if he is engaged in “beating, smashing and looting”and is seriously undermining work, production and public order.
Article 42. The offenders listed below may be seized outright by any citizen and delivered to a public security organ, a people’s procuratorate or a people’s court for handling:
(1) any person who is committing a crime or is discovered immediately after committing a crime;
(2) any person who is wanted for arrest;
(3) any person who has escaped from prison; and
(4) any person who is being pursued for arrest.
Article 43. When detaining a person, a public security organ must produce a detention warrant.
Within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.
Article 44. A public security organ shall interrogate a detainee within 24 hours after detention. If it is found that the person should not have been detained, he must be immediately released and issued a release certificate. If the public security organ finds it necessary to arrest a detainee when sufficient evidence is still lacking, it may allow the detainee to obtain a guarantor pending trial or place him under residential surveillance.
Article 45. When a public security organ wishes to arrest an offender, it shall submit a written request for approval of arrest together with the case file and evidence to the people’s procuratorate at the same level for examination and approval. When necessary, the people’s procuratorate may send its personnel to participate in the public security organ’s discussion of a major case.
Article 46. The chief procurator shall make the decision in a people’s procuratorate’s examination and approval of a arrest. Major cases shall be submitted to the procuratorial committee for discussion and decision.
Article 47. After a people’s procuratorate has examined a case with respect to which a public security organ has submitted a request for approval of arrest, it shall decide according to the circumstances either to approve the arrest, disapprove the arrest, or request a supplementary investigation.
Article 48. If the public security organ deems it necessary to arrest a detainee, it shall, within three days after the detention, submit a request to the people’s procuratorate for examination and approval. Under special circumstances, the time limit for submitting the request may be extended by one to four days. The people’s procuratorate shall decide either to approve or disapprove the arrest within three days after receiving the request for approval of arrest from a public security organ. If the people’s procuratorate disapproves the arrest, the public security organ shall, upon receiving notification of the decision, immediately release the detainee and issue him a release certificate.
If the public security organ or the people’s procuratorate fails to act in accordance with the provisions of the preceding paragraph, the detainee and his family shall have the right to demand his release, and the public security organ or the people’s procuratorate shall immediately release him.
Article 49. If the public security organ considers the people’s procuratorate’s decision to disapprove an arrest to be incorrect, it may request a reconsideration but must immediately release the detainee. If the public security organ’s opinion is not accepted, it may request a review by the people’s procuratorate at the next higher level. The higher people’s procuratorate shall immediately review the matter, decide whether or not to make a change and notify the lower people’s procuratorate and the public security organ to implement its decision.
Article 50. When making an arrest, a public security organ must produce an arrest warrant.
Within 24 hours after an arrest, the family of the arrested person or the unit to which he belongs shall be notified of the reasons for arrest and the place of detention, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.
Article 51. Interrogation must be conducted within 24 hours after the arrest, by a people’s court or people’s procuratorate with respect to a person it has decided to arrest, and by a public security organ with respect to a person it has arrested with the approval of the people’s procuratorate. If it is found that the person should not have been arrested, he must be immediately released and issued a release certificate.
Article 52. If in the process of examining and approving arrests, a people’s procuratorate discovers illegalities in the investigatory activities of the public security organ, it shall notify the public security organ to make corrections, and the public security organ shall notify the people’s procuratorate of what corrections have been made.
CHAPTER VII INCIDENTAL CIVIL ACTIONS
Article 53. If a victim has suffered material losses as a result of the defendant’s criminal act, he shall have the right to file an incidental civil action during the course of the criminal proceeding.
If losses have been caused to state property or collective property, the people’s procuratorate may file an incidental civil action while initiating a public prosecution.
When necessary, the people’s court may seal up or distrain upon the property of defendant.
Article 54. An incidental civil action shall be heard together with the criminal case. Only for the purpose of preventing excessive delay in a trial of the criminal case may the same judicial organization, after completing the trial of the criminal case, continue to hear the incidental civil action.
CHAPTER VIII TIME PERIODS AND SERVICE
Article 55. Time periods shall be calculated by the hour, the day and the month.
The hour and day from which a time period begins shall not be counted as within the time period.
A legally prescribed time period shall not include travelling time. Appeals or other documents that have been mailed before the expiration of the time period shall not be regarded as overdue.
Article 56. When a party cannot meet a deadline due to irresistible causes or for other legitimate reasons, he may, within five days after the obstacle is removed, apply to continue the proceedings that should have been completed before the expiration of the time period.
A people’s court shall decide whether or not to approve the application described in the preceding paragraph.
Article 57. Summons, notices and other court documents shall be delivered to the addressee himself; if the addressee is absent, the documents may be received on his behalf by an adult member of his family or a responsible person of his unit.
If the addressee or a recipient on his behalf refuses to accept the documents or refuses to sign and affix his seal to the receipt, the person serving the documents may ask the addressee’s neighbours or other witnesses to the scene, explain the situation to them, leave the documents at the addressee’s residence, record on the service certificate the particulars of the refusal and the date of service and sign his name to it; the service shall thus be deemed to have been completed.
CHAPTER IX OTHER PROVISIONS
Article 58. For the purpose of this Law, the definitions of the following terms are:
(1) “Investigation” means the specialized investigatory work and related compulsory measures carried out according to law by public security organs and people’s procuratorates in the process of handling cases.
(2) “Parties” means private prosecutors, defendants and the plaintiffs and defendants in incidental civil actions.
(3) “Legal representatives” means the parents, foster parents or guardians of a person being represented and representatives of the government organ or people’s organization responsible for that person’s protection.
(4) “Participants in the proceedings”means the parties, victims, legal representatives, defenders, witnesses, expert witnesses and interpreters.
(5) “Near relatives”means a person’s husband or wife, father, mother, sons, daughters, and brothers and sisters born of the same parents.
PART TWO FILING A CASE, INVESTIGATION AND INITIATION OF PUBLIC PROSECUTION
CHAPTER I FILING A CASE
Article 59. State organs, people’s organizations, enterprises, institutions and citizens upon discovering facts of a crime or a criminal suspect shall have the right and duty to bring a complaint or accusation to a public security organ, people’s procuratorate or people’s court, as proper to the scopes of jurisdiction provided for in Article 13 of this Law.
Public security organs, people’s procuratorates and people’s courts shall accept all complaints, accusations and the voluntary surrender of offenders. If a matter does not fall under the receiving organ’s jurisdiction, it shall refer the matter to the competent organ and notify the complainant or the accuser. If the matter does not fall under the receiving organ’s jurisdiction but calls for emergency measures, it shall take emergency measures first and then refer the matter to the competent organ.
Article 60. Complaints and accusations may be filed in writing or orally. The person receiving an oral complaint or accusation shall make a written record of it, which, after being read to the complainant or accuser and found free of error, shall be signed or sealed by the complainant or accuser.
The person receiving a complaint or an accusation shall clearly explain to the complainant or accuser the legal responsibility that shall be incurred for making a false accusation. However, a complaint or accusation that does not accord with the facts, or even a mistaken complaint shall be strictly distinguished from a false accusation, as long as no fabrication of facts or falsification of evidence is involved.
If the complainant or accuser wishes to remain anonymous, his name shall be kept confidential during the period of investigation.
Article 61. A people’s court, people’s procuratorate or public security organ shall, within the scope of its jurisdiction, promptly examine the materials provided by a complainant or accuser and the confession of an offender who has voluntarily surrendered. If it believes that there are facts of a crime and criminal responsibility should be investigated, it shall file a case. If it believes that there are no facts of a crime or that the facts are obviously incidental and do not require investigation of criminal responsibility, it shall not file a case and shall notify the complainant of the reason. If the complainant does not agree with the decision, he may ask for reconsideration.
CHAPTER II INVESTIGATION
SECTION 1 INTERROGATION OF THE DEFENDANT
Article 62. Interrogation of a defendant must be conducted by the investigatory personnel of a people’s procuratorate or public security organ. During an interrogation, there must be no fewer than members of the investigatory personnel participating.
Article 63. A defendant who does not need to be arrested or detained may be summoned to a designated place for interrogation, or he may be interrogated at his residence or his unit, but in all cases the investigatory personnel shall produce a certificate issued by a people’s procuratorate or public security organ.
Article 64. When interrogating a defendant, the investigatory personnel shall first ask the defendant whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then they may ask him other questions. The defendant shall answer the investigatory personnel’s questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.
Article 65. During the interrogation of a defendant who is deaf or must, a person who has a good command of sign language shall participate, and such circumstances shall be noted in the record.
Article 66. The record of an interrogation shall be shown to the defendant for checking; if the defendant cannot read, the record shall be read to him. If there are omissions or errors in the record, the defendant may make additions or corrections. When the defendant acknowledges that the record is free from error, he shall sign or affix his seal to it. The investigatory personnel shall also sign the record. If the defendant requests to write a personal statement, he shall be permitted to do so. When necessary, the investigatory personnel may also ask the defendant to write a personal statement.
SECTION 2 QUESTIONING OF THE WITNESSES
Article 67. Investigatory personnel may question a witness at his unit or residence, but they must produce a certificate issued by a people’s procuratorate or public security organ. When necessary, they may also notify the witness to give testimony at the people’s procuratorate or public security organ.
Witnesses shall be questioned individually.
Article 68. When a witness is questioned, he shall be instructed to provide evidence and give testimony truthfully and shall be informed of the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence.
Article 69. The provisions of Article 66 of this Law shall also apply to the questioning of witnesses.
Article 70. The provisions of all articles in this Section shall apply to the questioning of victims.
SECTION 3 INQUEST AND EXAMINATION
Article 71. Investigatory personnel shall conduct an inquest or examination of the sites, objects, people and corpses relevant to a crime. When necessary, experts may be assigned or invited to conduct an inquest or examination under the direction of the investigatory personnel.
Article 72. Each and every unit and individual shall have the duty to preserve the scene of a crime and to immediately notify a public security organ to send personnel to hold an inquest.
Article 73. Investigatory personnel must carry a certificate issued by a public security organ while conducting an inquest or examination.
Article 74. If the cause of a death is unclear, a public security organ shall have the power to order an autopsy and shall notify the family members of the deceased to be present.
Article 75. An examination may be conducted of the person of the victim or defendant in order to ascertain some of his characteristics or physiological condition, or the circumstances of the injury.
If a defendant refuses to be examined, the investigatory personnel, when they deem it necessary, may conduct a compulsory examination.
Examination of the persons of women shall be conducted by female personnel or doctors.
Article 76. A record shall be made of the circumstances of an inquest or examination, and it shall be signed or sealed by the participants in the inquest or examination and the eyewitnesses.
Article 77. If, in reviewing a case, a people’s procuratorate deems it necessary to repeat an inquest or examination that has been done by a public security organ, it may ask the latter to conduct another inquest or examination and may send procuratorial personnel to participate in it.
Article 78. When necessary and with the approval of the director of a public security bureau, investigative experiments may be conducted in order to clarify the circumstances of a case.
In conducting investigative experiments, it shall be forbidden to take any action which is hazardous, humiliating to anyone, or offensive to public morals.
SECTION 4 SEARCH
Article 79. In order to collect criminal evidence and track down an offender, investigatory personnel may search the person, belongings and residence of the defendant and anyone who might be hiding a criminal or criminal evidence, as well as other relevant places.
Article 80. Every unit and individual shall have the duty to surrender, at the request of a people’s procuratorate or public security organ, any material or documentary evidence that may prove a defendant’s guilt or innocence.
Article 81. When a search is to be conducted, a search warrant must be shown to the person to be searched.
If an emergency occurs when an arrest or detention is being made, a search may be conducted without a search warrant.
Article 82. During a search, the person to be searched or his family members, neighbours or other eyewitnesses shall be present at the scene.
Searches of the persons of women shall be conducted by female personnel.
Article 83. A record shall be made of the circumstances of a search, and it shall be signed or sealed by the investigatory personnel and the person searched or his family members, neighbours or other eyewitnesses. If the person searched or his family members have become fugitives or refuse to sign or affix their seals to the record, this shall be noted in the record.
SECTION 5 SEIZURE OF MATERIAL EVIDENCE AND DOCUMENTARY EVIDENCE
Article 84. Any articles and documents discovered during an inquest or search that may be used to prove a defendant’s guilt or innocence shall be seized. Objects and documents which are irrelevant to the case may not be seized.
Seized articles and documents shall be properly kept or sealed for safekeeping and may not be utilized or damaged.
Article 85. All seized articles and documents shall be carefully checked by the investigatory personnel jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made in duplicate on the spot and shall be signed or sealed by the investigatory personnel, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference.
Article 86. If the investigatory personnel deem it necessary to seize the mail or telegrams of a defendant, they may, upon approval of a public security organ or a people’s procuratorate, notify the post and telecommunications offices to hand over the relevant mail and telegrams for seizure.
When it becomes unnecessary to continue a seizure, the post and telecommunications offices shall be immediately notified.
Article 87. If any seized articles, documents, mail or telegrams are proved through investigation to be irrelevant to a case, they shall be promptly returned to their original owners or the original post and telecommunications offices.
SECTION 6 EXPERT EVALUATION
Article 88. When certain special problems relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to give their evaluations.
Article 89. After evaluating a matter, the expert shall write a conclusion of expert evaluation and affix his signature to it.
Article 90. A defendant shall be notified of any expert conclusion which will be used as evidence in his case. A supplementary expert evaluation or a new expert evaluation may be conducted at the defendant’s request.
SECTION 7 WANTED ORDERS
Article 91. If a defendant who should be arrested is a fugitive, a public security organ may issue a wanted order and take effective measures to pursue him for arrest and bring him to justice.
Public security organs at any level may directly issue wanted orders within the areas under their jurisdiction; they shall request a higher-level organ with the proper authority to issue orders for areas beyond their jurisdiction.
SECTION 8 CONCLUSION OF INVESTIGATION
Article 92. The time limit for holding a defendant in custody during investigation shall not exceed two months. If the circumstances of a case are complex and the case cannot be concluded within that time limit, an extension of one month may be allowed with the approval of the people’s procuratorate at the next higher level.
In the event of a particularly grave and complex case which still cannot be concluded within the extension period as provided in the preceding paragraph, the Supreme People’s Procuratorate shall request the Standing Committee of the National People’s Congress to approve a postponement of the hearing of the case.
Article 93. After a people’s procuratorate has concluded its investigation of a case, it shall make a decision whether to initiate a public prosecution, exempt from prosecution or dismiss the case.
After a public security organ has concluded its investigation of a case, it shall make a written recommendation to initiate prosecution or exempt from prosecution, and the written recommendation shall be transferred together with the case file and evidence to the people’s procuratorate at the same level for examination and decision.
Article 94. If it is discovered during an investigation that a defendant’s criminal responsibility should not have been investigated, the case shall be dismissed; if the defendant is under arrest, he shall be released immediately and issued a release certificate, and the people’s procuratorate which originally approved the arrest shall be notified.
CHAPTER III INITIATION OF PUBLIC PROSECUTION
Article 95. All cases requiring initiation of a public prosecution or exemption from prosecution shall be examined and decided by the people’s procuratorates.
Article 96. In examining a case, a people’s procuratorate shall ascertain:
(1) whether the facts and circumstances of the crime are clear, whether the evidence is reliable and sufficient and whether the charge and the nature of the crime has been correctly determined;
(2) whether there are any crimes that have omitted or other persons whose criminal responsibility should be investigated;
(3) whether it is a case in which criminal responsibility should not be investigated;
(4) whether the case has an incidental action;and
(5) whether the investigation of the case is being lawfully conducted.
Article 97. A people’s procuratorate shall make a decision within one month on a case that a public security organ has transferred to it with a recommendation to initiate a public prosecution or exempt from prosecution; an extension of a half month may be allowed for major or complex cases.
Article 98. When examining a case,a people’s procuratorate shall interrogate the defendant.
Article 99. In examining a case requiring supplementary investigation, a people’s procuratorate may conduct the investigation itself or remand the case to a public security organ for supplementary investigation.
In cases where supplementary investigation is to be conducted, it shall be completed within a month.
Article 100. When a people’s procuratorate considers that the facts of a defendant’s crime have been ascertained,that the evidence is reliable and sufficient and that criminal responsibility should be investigated according to law. it shall make a decision to initiate prosecution and shall, in accordance with the provisions for trial jurisdiction, initiate a public prosecution in a people’s court.
Article 101. The people’s procuratorate may exempt from prosecution any case that, according to the provisions of the Criminal Law, does not require criminal punishment or for which exemption from criminal punishment may be granted.
Article 102. A decision to exempt from prosecution shall be announced publicly, and a written decision to exempt from prosecution shall to be delivered to the defendant and to his unit. If the defendant is in custody, he shall be released immediately.
When a people’s procuratorate decides to exempt from prosecution a case transferred by a public security organ with a recommendation to initiate a prosecution, it shall deliver a written decision to exempt from prosecution to the public security organ. If the public security organ considers the decision to be mistaken, it may demand reconsideration, and if the demand is rejected, it may request the people’s procuratorate at the next higher level to review the case.
If the people’s procuratorate decides to exempt from prosecution a case that involves a victim, it shall send a written decision to exempt from prosecution to the victim. If the victim does not accept the decision, he may present a petition to the people’s procuratorate within seven days after receiving the written decision. The people’s procuratorate shall notify the victim of the result of its re-examination.
Article 103. If a defendant does not accept a decision to exempt from prosecution, he may present a petition to the people’s procuratorate within seven days. The people’s procuratorate shall make a decision to conduct a re-examination, notify the defendant of the decision and at the same time send a copy of it to the public security organ.
Article 104. If a defendant is under any one of the circumstances provided in Article 11 of this Law, the people’s procuratorate shall make a decision not to prosecute.
The provisions of Article 102 of this Law shall apply to a decision not to prosecute.
PART THREE TRIAL
CHAPTER I TRIAL ORGANIZATIONS
Article 105. Trials of cases of first instance in the basic and intermediate people’s courts shall be conducted by a collegial panel composed of one judge and two people’s assessors, except for cases of private prosecution and other minor criminal cases which may be tried by a single judge alone.
Trials of cases of first instance in the higher people’s courts or the Supreme People’s Court shall be conducted by a collegial panel composed of one to three judges and two to four people’s assessors.
When performing their functions in the people’s courts, the people’s assessors shall enjoy equal rights with the judges.
Trials of appealed and protested cases in the people’s courts shall be conducted by a collegial panel composed of three to five judges.
The president of the people’s court or the chief judge of a division shall designate one judge to be the presiding judge of the collegial panel. If the president of the court or the chief judge of a division participates in a trial, he himself shall serve as the presiding judge.
Article 106. If opinions differ when a collegial panel conducts its deliberations, the minority should yield to the majority, but the opinion of the minority shall be entered in the records. The records of the deliberations shall be signed by the members of the collegial panel.
Article 107. All major or difficult cases that the president of the court believes should be referred to the judicial committee shall be submitted by him to the judicial committee for discussion and decision. The collegial panel shall execute the decisions of the judicial committee.
CHAPTER II PROCEDURE OF FIRST INSTANCE
SECTION 1 CASES OF PUBLIC PROSECUTION
Article 108. After a people’s court has examined a case in which public prosecution was initiated, it shall decide to open the court session and try the case, if the facts of the crime are clear and the evidence sufficient; it may remand the case to the people’s procuratorate for supplementary investigation, if the main facts are not clear and the evidence insufficient; it may ask the people’s procuratorate to withdraw its prosecution, if no criminal punishment is necessary.
Article 109. When necessary, a people’s court may conduct inquests, examination, searches, seizures and expert evaluations.
Article 110. After a people’s court has decided to open a court session, it shall proceed with the following work:
(1) to determine the members of the collegial panel;
(2) to deliver to the defendant a copy of the bill of prosecution of the people’s procuratorate no later than seven days before the opening of the court session and inform the defendant that he may appoint a defender or, when necessary, designate a defender for him;
(3) to notify the people’s procuratorate of the time and place of the court session three days before the opening of the session;
(4) to summon the parties and notify the defenders, witnesses, expert witnesses and interpreters, and deliver the summons and notices no later than three days before the opening of the court session; and
(5) to announce in advance the subject matter of any case to be heard in public, the name of the defendant and the time and place of the court session.
The circumstances of the abovementioned proceedings shall be entered in the written record, which shall be signed by the judicial personnel and the court clerk.
Article 111. Cases of first instance in a people’s court shall be heard in public. However, cases involving state secrets or the private affairs of individuals shall not be heard in public.
No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public. Generally, cases involving crimes committed by minors who have reached the age of 16 but not the age of 18 shall also not be heard in public.
The reason for not hearing a case in public shall be announced in court.
Article 112. When a case of public prosecution is being tried in a people’s court, the people’s procuratorate shall send its personnel to the court to support the public prosecution, unless the criminal act is relatively minor and the people’s court has agreed to forgo such personnel.
If a member of the procuratorial personnel attending a court session discovers any illegalities during the proceedings, he shall have the right to suggest corrections to the court.
Article 113. When a court session opens, the presiding judge shall ascertain if all the parties have appeared in court and announce the subject matter of the case. He shall announce the roll, naming the members of the collegial panel, the court clerk, the public prosecutor, the defender, the expert witnesses and the interpreter; he shall inform the parties of their right to ask any member of the collegial panel, the court clerk, the public prosecutor, any expert witnesses or the interpreter to withdraw; and he shall inform the defendant of his right to defence.
Article 114. After the public prosecutor has read out the bill of prosecution in court, the judicial personnel shall begin to question the defendant.
With the permission of the presiding judge, the public prosecutor may interrogate the defendant.
After the judicial personnel have questioned the defendant and with the permission of the presiding judge, the victim as well as the plaintiff and defender in an incidental civil action may put questions to the defendant.
Article 115. When questioning a witness, the judicial personnel and the public prosecutor shall instruct the witness to give testimony truthfully and explain to him the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence. The parties and the defenders may request the presiding judge to question the witnesses or expert witnesses, or ask the presiding judge’s permission to put their own questions directly. If the presiding judge considers any questioning irrelevant to the case, he shall put a stop to it.
Article 116. The judicial personnel shall show the material evidence to the defendant for him to identify. The records of testimony of witnesses who are not present in court,the conclusions of the expert witnesses, the records of inquests and other documents serving as evidence shall be read out in court,and the opinions of the parties and the defenders shall be heard.
Article 117. During a court hearing, the parties and the defenders shall have the right to request new witnesses to be summoned, new material evidence to be collected, a new expert evaluation to be made, and another inquest to be held.
The court shall make a decision whether to grant the abovementioned requests.
Article 118. After an inquiry has been held in the courtroom, the public prosecutor and the victim shall speak; then the defendant shall make a statement and defend himself, and the defender shall conduct the defence; in addition, the participants may debate with each other. After the presiding judge has declared the conclusion of the debate, the defendant shall have the right to present a final statement.
Article 119. If any participant in the proceedings of a trial violates the order of the courtroom, the presiding judge shall warn him to desist; if the circumstances are serious, the presiding judge may order him to leave the courtroom or investigate their criminal responsibility according to law.
Article 120. After a defendant makes his final statement, the presiding judge shall announce an adjournment; the collegial panel shall conduct its deliberations and, on the basis of the established facts and evidence and in accordance with the relevant provisions of the law, render a judgment on the defendant’s guilt or innocence, specifying the crime committed and the criminal punishment to be applied or exemption from criminal punishment as appropriate.
Article 121. In all cases, judgments shall be pronounced publicly.
If the judgment on a case is pronounced in court, a written judgment shall be delivered within five days to the parties and the people’s procuratorate that initiated the public prosecution. In cases where the judgment is pronounced later on a fixed date, the written judgment shall be delivered immediately after the pronouncement to the parties and the people’s procuratorate that initiated the public prosecution.
Article 122. The written judgment shall be signed by the members of the collegial panel and by the court clerk, and the time limit for appeal and the name of the appellate court shall be clearly indicated therein.
Article 123. A hearing may be postponed if during a trial one of the following circumstances affecting the conduct of a trial occurs:
(1) if it is necessary to summon new witnesses,collect new material evidence, make a new expert evaluation or hold another inquest;
(2) if members of the procuratorial personnel find that a case for which public prosecution has been initiated requires supplementary investigation, and they make a proposal to that effect;
(3) if the collegial panel considers the evidence of a case insufficient or discovers new facts, requiring it to either remand the case to the people’s procuratorate for supplementary investigation or conduct its own inquiry; or
(4) if the trial cannot proceed because a party applies for the withdrawal of a judicial functionary.
Article 124. The court clerk shall make a written record of the entire court proceedings, which shall be examined by the presiding judge and then signed by him and the court clerk.
That portion of the courtroom record comprising the testimony of witnesses shall be read out in court or given to the witnesses to read. After the witnesses acknowledge that the record is free of error, they shall sign or affix their seals to it.
The courtroom record shall be given to the parties to read or shall be read out to them. If a party considers that there are omissions or errors in the record, he may request additions or corrections to be made. After the parties acknowledge that the record is free of error, they shall sign or affix their seals to it.
Article 125. A people’s court shall pronounce judgment on a case of public prosecution within one mother or, one and a half months at the latest, after accepting it for trial.
SECTION 2 CASES OF PRIVATE PROSECUTION
Article 126. After examining a case of private prosecution, the people’s court may handle it according to the conditions set forth below.
(1) If the facts of the crime are clear and the evidence sufficient, the case shall be tried at a court session.
(2) If the case requires public prosecution by a people’s procuratorate, it shall be transferred to a people’s procuratorate.
(3) In a case of private prosecution where criminal evidence is lacking, if the private prosecutor fails to present supplementary evidence and the people’s court is unable to obtain the necessary evidence through investigation, the court shall persuade the private prosecutor to withdraw his prosecution or order its rejection.
(4) If the defendant’s act does not constitute a crime,the people’s court shall persuade the private prosecutor to withdraw his prosecution or order its rejection.
Article 127. A people’s court may conduct mediation in a case of private prosecution; the private prosecutor may arrange a settlement with the defendant or withdraw his prosecution before a judgment is pronounced.
Article 128. In the process of the proceedings, the defendant in a case of private prosecution may raise a counterclaim against the private prosecutor. The provisions governing private prosecutions shall apply to counterclaims.
CHAPTER III PROCEDURE OF SECOND INSTANCE
Article 129. If a party or his legal representative refuses to accept a judgment or order of first instance of a local people’s court at any level, he shall have the right to appeal in writing or orally to the people’s court at the next higher level. Defenders or a defendant’s near relatives may file appeals with the consent of the defendant.
A party to an incidental civil action or his legal representative may file an appeal against the portion of a judgment or order of first instance of the local people’s courts that deals with the incidents civil action.
A defendant shall not be deprived on any pretext of his right to appeal.
Article 130. If a local people’s procuratorate considers that there is some definite error in a judgment or order of first instance of a people’s court at the same level, it shall present a protest to the people’s court at the next higher level.
Article 131. The time limit for an appeal or a protest against a judgment shall be ten days and the time limit for an appeal or a protest against an order shall be five days; the time limit shall be counted from the day after the written judgment or order is received.
Article 132. If a party files an appeal through the people’s court which originally tried a case, the people’s court shall within three days transfer the petition of appeal together with the case file and the evidence to the people’s court at the next higher level; at the same time it shall deliver duplicates of the petition of appeal to the people’s procuratorate at the same level and to the other parties.
If a party files an appeal directly to the people’s court of second instance, that people’s court shall within three days transfer the petition of appeal to the people’s court which originally tried the case, for delivery to the people’s procuratorate at the same level and to the other parties.
Article 133. If a local people’s procuratorate protests against a judgment or order of first instance of the people’s court at the same level, it shall present a written protest through the people’s court which originally tried the case and send a copy of the written protest to the people’s procuratorate at the next higher level. The people’s court which originally tried the case shall transfer the written protest together with the case file and evidence to the people’s court at the next higher level and shall deliver duplicates of the written protest to the parties.
If the people’s procuratorate at the next higher level considers the protest inappropriate, it may withdraw the protest from the people’s court at the same level and notify the people’s procuratorate at the next lower level.
Article 134. A people’s court of second instance shall conduct a complete review of the facts determined and the application of law in the judgment of first instance and shall not be limited by the scope of appeal or protest.
If an appeal is filed by only some of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.
Article 135. In cases where a people’s procuratorate files a protest or a people’s court of second instance requests personnel from a people’s procuratorate to be in court, the people’s procuratorate at the same level shall send personnel to the court. The people’s court of second instance must notify the people’s procuratorate ten days before the opening of a court session to examine the case files.
Article 136. After hearing a case of appeal or protest against a judgment of first instance, the people’s court of second instance shall handle it according to the conditions set forth below.
(1) If the original judgment was correct in the determination of facts and the application of law and appropriate in the meting out of punishment, the people’s court shall order rejection of the appeal or protest and affirm the original judgment.
(2) If the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriately decided, the people’s court shall revise the judgment.
(3) If the facts in the original judgment are unclear or the evidence insufficient, the people’s court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the people’s court which originally tried the case for retrial.
Article 137. In the trial of a case appealed by a defendant, or his legal representative, defender or near relative, the people’s court of second instance may not increase the criminal punishment on the defendant.
The restriction laid down in the preceding paragraph shall not apply to cases protested by a people’s procuratorate or cases appealed by private prosecutors.
Article 138. If a people’s court of second instance discovers that a people’s court of first instance has violated the litigation procedures stipulated by law, and the correct rendering of judgment may have thus been affected, it shall rescind the original judgment and remand the case to the people’s court which originally tried the case for retrial.
Article 139. The people’s court which originally tried a case shall conduct a retrial of the case remanded to it in accordance with the procedure of first instance. The parties may appeal and the people’s procuratorate at the same level may protest against the judgment rendered after the retrial.
Article 140. After a people’s court of second instance has reviewed an appeal or protest against an order of first instance, it shall order rejection of the appeal or protest or quash or revise the original order respectively with reference to the provisions of Articles 136, 138 and 139 of this Law.
Article 141. A people’s court of second instance shall try cases of appeal or protest with reference to the procedure of first instance unless otherwise stipulated in this Chapter.
Article 142. A people’s court of second instance shall conclude the trial of a case of appeal or protest within one month or , one and a half months at the latest, after accepting it for trial.
Article 143. All judgments and orders of second instance and all judgments and orders of the Supreme People’s Court shall be final.
CHAPTER IV PROCEDURE FOR REVIEW OF DEATH SENTENCES
Article 144. Death sentences shall be approved by the Supreme People’s Court.
Article 145. A case of first instance where an intermediate people’s court has imposed a death sentence and the defendant does not appeal shall be reviewed by a higher people’s court and reported to the Supreme People’s Court for approval. If the higher people’s court does not agree with the death sentence, it may bring the case up for trial or remand the case for retrial.
Cases of first instance where a higher people’s court has imposed a death sentence and the defendant does not appeal, and cases of second instance where a death sentence has been imposed shall all be submitted to the Supreme People’s Court for approval.
Article 146. A case where an intermediate people’s court has imposed a death sentence with a two-year suspension of execution, shall be approved by a higher people’s court.
Article 147. Reviews by the Supreme People’s Court of cases involving death sentences and reviews by a higher people’s court of cases involving death sentences with a suspension of execution shall be conducted by collegial panels composed of three judges.
CHAPTER V PROCEDURE FOR TRIAL SUPERVISION
Article 148. A party or a victim and his family or other citizens may present a petition to a people’s court or people’s procuratorate regarding a legally effective judgment or order, but the execution of the judgment or order cannot be suspended.
Article 149. If the president of a people’s court at any level finds some definite error in a legally effective judgment or order of his court as to the determination of facts or application of law, he shall refer the matter to the judicial committee for handling.
If the Supreme People’s Court finds some definite error in a legally effective judgment or order of a people’s court at any lower level, or if a people’s court at a higher level finds some definite error in a legally effective judgment or order of a people’s court at a lower level, it shall have the power to bring the case up for trial itself or may direct a people
