Criminal Procedure Law of People’s Republic of China is the basic law regulating Chinese criminal procedure, which forms an important part of socialist legal system with Chinese characteristics in China.The Chinese criminal system has undergone significant changes in the past 30 years. It was first adopted on July 1, 1979, and has been revised twice respectively in 1996 and 2012.
In the latest revision of Criminal Procedure Law of People’s Republic of China, there are some progressive innovations and breakthroughs, and new institutions were added to the law to emphasize the respect and protection of human rights and the dominance of criminal procedure by state organs. Effective control of crime is still the fundamental of Chinese criminal procedure law.
The object of criminal trial is to determine criminal liability and its scope with joint participation of the prosecutor, the defendant and the trial in order to punish the crime and protect the human rights. So the criminal litigation system somehow presents the relationship between the public power and individual power and is significantly constrained by the purpose of criminal judicial procedure.
1. Basic Principles of Criminal Procedure
Principle of Statutory Proceedings
It aims to control and limit public power and there are four main aspects about this principle: government shall ensure the criminal procedure under the rule of law; State organs and staffs of them who participate in criminal procedure shall act strictly in accordance with Constitution and law; Establish and administrate legal sanction which involves both in entity and in procedure; Exercise litigation supervision.
Principle of Judiciary Independence
Principle of judiciary independence is based on constitutional principle and it is a fundamental principle to resolve the situation when there are interest conflicts between government and individuals. It has two meanings: Only the courts established according to the constitution and law and judges with legal qualifications can exercise judicial power; Judge exercises judicial power only according to the constitution and law but the intervention of legislation or execution or other judges from higher court or the same court.
Principle of Presumption of Innocence
The principle of presumption of innocence is a commonly accepted principle in international society.It means the accused is held innocent until be proved guilty. The presumption of the innocence of a criminal defendant is best described as an assumption of innocence in the absence of contrary evidence. It does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.
Principle of Defense
The suspects or defendants shall have the right to defend themselves or to be defended by pleaders and have the help from pleaders in the entire proceedings. Moreover, the public security and judicial organs shall have the duty to guarantee his defense.
Principle of Equal Protection
The law applies equally to all citizens and no privilege whatsoever is permissible before law.
Principle of Duly Act
The specialized state organ shall conduct criminal litigation procedure as soon as possible under the law, avoiding all unnecessary delay.
Special Principle Implemented in China
√ Judge on Fact and Take the Law as the Criterion
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 law as the criterion.
√ Division of Responsibilities among Different Parties, Working in Coordination and Restraining One Another
In conducting criminal proceedings, the People's Courts, the People's Procuratorates and the public security organs shall divide responsibilities, coordinate their efforts and check each other to ensure the correct and effective enforcement of law.
√ The Supervision by the People’s Procuratorate
The People's Procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings.
2. Five Phases in Procedures
The criminal procedure can be generally divided into fivephases: filing a case, investigation, initiation of Public Prosecution, trail and execution.
（1）Filing a case
Filing a case is the beginning of criminal procedure. In China, the public security organs, the People's Procuratorates and the People’s Court shall have the power of filing a case.
Specifically, the public security organs or the People's Procuratorates shall, upon discovering facts of crimes or criminal suspects, file the cases for investigation within the scope of their jurisdiction.
Also, any unit or individual or the victim shall have the right to report the case or provide information to a public security organ, a People’s Procuratorate or a People’s Court. The public security organ, the People’s Procuratorate or the People’s Court shall accept all report, complaints and information. If a case does not fall under its jurisdiction, it shall refer the case to the competent organ and notify the person who made the report, lodged the complaint or provided the information. If the case does not fall under its jurisdiction but calls for emergency measures, it shall take emergency measures before referring the case to the competent organ.(It also applies where an offender delivers himself up to a public security organ, a People's Procuratorate or a People's Court.
Functional Jurisdiction( division of work when deciding who shall directly handle the particular criminal case)
The Public Security Organs
Investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by law.
The People’s Procuratorates
Crimes of embezzlement and bribery, crimes of dereliction of duty committed by State functionaries, and crimes involving violations of a citizen's personal rights such as illegal detention, extortion of confessions by torture, retaliation, frame-up and illegal search and crimes involving infringement of a citizen's democratic rights -- committed by State functionaries by taking advantage of their functions and powers -- shall be placed on file for investigation by the People's Procuratorates. If cases involving other grave crimes committed by State functionaries by taking advantage of their functions and powers need be handled directly by the People's Procuratorates, they may be placed on file for investigation by the People's Procuratorates upon decision by the People's Procuratorates at or above the provincial level.
The People’s Court
Cases of private prosecution shall be handled directly by the People's Courts.
According to the law, the conditions of placing a case on file in criminal proceedings include criminal facts and need of investigating the criminal responsibility.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.
Investigation is a criminal proceeding in which investigation organs carry out specific investigation works and adopt compulsory measures under the law to confirm crimes and arrest criminals. The subjects of this proceeding are limited to the public security organs, the People’s Procuratorates, the state security organs, prison and the security departments of the Army.
The investigation acts include interrogation of the criminal suspect, questioning of the witnesses, inquest and examination, search, seizure of material evidence and documentary evidence, expert evaluation, electronic monitoring and wanted orders.
The time limit for holding a criminal suspect in custody during investigation after arrest shall not exceed two months. If the case is complex and cannot be concluded within the time limit, an extension of one month may be allowed with the approval of the People's Procuratorate at the next higher level. Additionally, an extension of two months can be allowed upon approval or decision by the People's Procuratorate of a province, autonomous region or municipality directly under the Central Government according to Article 156.
If due to special reasons, it is not appropriate to hand over a particularly grave and complex case for trial even within a relatively long period of time, the Supreme People's Procuratorate shall submit a report to the Standing Committee of the National People's Congress for approval of postponing the hearing of the case.
After a public security organ has concluded its investigation of a case, it shall make a written recommendation for prosecution, which shall be transferred, together with the case file and evidence, to the People's Procuratorate at the same level for examination and decision.
The compulsory measures include a warrant to compel the appearance of the criminal suspect or defendant, order him to obtain a guarantor pending trial or subject him to residential surveillance, obtaining a guarantor pending trial, residential surveillance, detention and arrest.
（3）Initiation of Public Prosecution
However, for the compulsory measures are under the risk of invasion of human rights, there are lots of restrictions and procedures adopting compulsory measures.
All cases requiring initiation of a public prosecution shall be examined for decision by the People's Procuratorates. 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 prosecution; an extension of a half month may be allowed for major or complex cases.
When a People's Procuratorate considers that the facts of a criminal suspect'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 a prosecution and shall, in accordance with the provisions for trial jurisdiction, initiate a public prosecution in a People's Court.
Otherwise, there are three situations that a People’s Procuratorate shall make a decision not to initiate: legal no prosecution, discretional non-prosecution and conditional non-prosecution. A decision not to initiate a prosecution shall be announced publicly, an objection can be raised by a public security organ or the victim.
Cases of private prosecution include the following:
(1) cases to be handled only upon complaint;(2) cases for which the victims have evidence to prove that those are minor criminal cases; and(3) cases for which the victims have evidence to prove that the defendants should be investigated for criminal responsibility according to law because their acts have infringed upon the victims' personal or property rights, whereas, the public security organs or the People's Procuratorates do not investigate the criminal responsibility of the accused.
After examining a case of private prosecution, the People's Court shall decide whether to accept, and also, mediation can be conducted; the private prosecutor may arrange a settlement with the defendant or withdraw his prosecution before a judgment is pronounced.
Trials of cases of first instance in the Primary, Intermediate People's Courts, the Higher People's Courts and the Supreme People's Court shall be conducted by a collegial panel. However, cases in which summary procedure is applied in the Primary People's Courts may be tried by a single judge alone.
√ Pretrial Procedure
In Pretrial Procedure, a People’s Court shall examine if cases have achieved the conditions of Hearing Procedure, if so, it shall get prepared for the next procedure by proceeding with the following work: to determine the members of collegial panel, to inform the accused to prepare his defence, to communicate before trail, to send the notice of court session.
In the opening of the court session, the presiding judge would check the parties and announce the roll, name the relevant member and inform the parties of their right to apply for withdrawal and also inform the accused of his right to defence.
There are three processes which shall go through in certain sequence in this session: the public prosecutor may read out the bill of prosecution; and then the defendant and the victim present statements regarding the crime accused in the bill of prosecution, the public prosecutor interrogates the defendant; finally, evidence related to the case may be presented and verified.
With the permission of the presiding judge, the public prosecutor, the parties, the defenders and the agents ad litem may state their views on the evidence and the case, and they may debate with each other.
④Final Statement of the Accused
⑤Deliberation and Sentence by the collegial panel ( in secret; majority rule)
A People's Court shall pronounce judgment on a case of public prosecution within two months or, three months at the latest, after accepting it. Extensions are allowed in particular situations with approval.
①The procedure of cases with respect to private prosecution is simple and rather clear. The time limit of trials is relatively shorter.
The People's Court may apply summary procedure to some small cases, which shall be tried by a single judge alone.
The 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.
Ways to appeal
1.If the defendant, private prosecutor or their legal representatives refuse to accept a judgment or order of first instance made by a local People's Court at any level, they have the right to appeal to the People's Court at the next higher level. Defenders or near relatives of the defendant may, with the consent of the defendant, file appeals.
Time limit for an appeal or protest
2.If a local People's Procuratorate at any level considers that there is some definite error in a judgment or order of first instance made by a People's Court at the same level, it shall present a protest to the People's Court at the next higher level.
If the victim or his legal representative refuses to accept a judgment of first instance made by a local People's Court at any level, he shall, within five days from the date of receiving the written judgment, have the right to request the People's Procuratorate to present a protest. The People's Procuratorate shall, within five days from the date of receiving the request made by the victim or his legal representative, decide whether to present the protest or not and give him a reply.
The time limit for an appeal or a protest against a judgment shall be 10 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.
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.
if the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriately meted out
the People's Court shall revise the judgment.
if the facts in the original judgment were unclear or the evidence insufficient
the People's Court may revise the judgment after ascertaining the facts
it may rescind the original judgment and remand the case to the People's Court which originally tried it for retrial(restriction: only once)
(1) violating the provisions of this Law regarding trial in public;
(2) violating the withdrawal system;
(3) depriving the parties of their litigation rights prescribed by law or restricting, such rights, which may hamper impartiality of a trial;
(4) unlawful formation of a judicial organization; or
(5) other violations against the litigation procedures prescribed by law which may hamper impartiality of a trial.
If a People's Court of second instance discovers that when hearing a case, a People's Court of first instance violates the litigation procedures prescribed by law in one of the following ways, it shall rule to rescind the original judgment and remand the case to the People's Court which originally tried it for retrial
Judgments and orders shall be executed after they become legally effective.
- The People’s Courts are responsible for the implementation of sentence of non-guilty, abatement and exemption of penalty, fine penalty, confiscation of property and death.
- The prison and the correctional centers for juvenile delinquents are responsible for the implementation of sentence of fixed-term imprisonment, life imprisonment and death with a two-year suspension of execution.
- The public security organs are responsible for the implementation of sentence of criminal detention and deprivation of political rights.
- Community correction organizations are responsible for the implementation of sentence of public surveillance, imprisonment with a suspension of execution.
3. Death Penalty Review
Death sentences shall be subject to approval by the Supreme People's Court. The Supreme People’s Court can approve or resentence the case, or remand the case for retrial.
A case where an Intermediate People's Court has imposed a death sentence with a two-year suspension of execution, shall be subject to approval by a Higher People's Court. A higher People’s Court can approve or resentence the case, or remand the case for retrial.
4. Supervision Proceeding
A party or his legal representative or his near relative may present a petition to a People's Court or a People's Procuratorate regarding a legally effective judgment or order, however, execution of the judgment or order shall not be suspended.
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's Court at a lower level to conduct a retrial.
If the Supreme People's Procuratorate finds some definite error in a legally effective judgment or order of a People's Court at any level, or if a People's Procuratorate 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 present a protest to the People's Court at the same level against the judgment or order in accordance with the procedure for trial supervision.
5. Special Proceedings
Beside the proceedings mentioned above, there are several special proceedings existing in particular cases for special purpose, such as, the Juvenile Criminal Procedure, Foreign criminal procedure and judicial assistance, criminal compensation procedure, Criminal compulsory medical procedures, Special confiscation of illegal income etc.
NOTICE: The material contained herein is in the nature of general comment and information ONLY and neither purports, nor is intended, to be advising on any particular matter. Readers should not act or rely upon any matter or information contained in or implied by the publication without taking appropriate professional advice.