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Home Living in China Chinese Law Criminal Procedure Law of the People's Republic of China
Criminal Procedure Law of the People's Republic of China
Chinese Law
Criminal Procedure Law of the People's Republic of China
中华人民共和国刑事诉讼法
(Adopted at the Second Session of the Fifth National People's Congress on July 1, 1979, and revised in according with the Decision on Revising the Criminal Procedure Law of the People's Republic of China adopted at the Forth Session of the Eighth National People's Congress on March 17, 1996)


CONTENTS


PART ONE GENERAL PROVISIONS

CHAPTER I AIM AND BASIC PRINCIPLES

CHAPTER II JURISDICTION

CHAPTER III WITHDRAWAL

CHAPTER IV DEFENCE AND REPRESENTATION

CHAPTER V EVIDENCE

CHAPTER VI COMPULSORY MEASURES

CHAPTER VII INCIDENTAL CIVIL ACTIONS

CHAPTER VIII TIME PERIODS AND SERVICE

CHAPTER IX OTHER PROVISIONS

PART TWO FILING A CASE, INVESTIGATION, AND INITIATION OF PUBLIC PROSECUTION

CHAPTER I FILING A CASE

CHAPTER II INVESTIGATION

SECTION 1 GENERAL PROVISIONS

SECTION 2 INTERROGATION OF THE CRIMINAL SUSPECT

SECTION 3 QUESTIONING OF THE WITNESSES

SECTION 4 INQUEST AND EXAMINATION

SECTION 5 SEARCH

SECTION 6 SEIZURE OF MATERIAL EVIDENCE AND DOCUMENTARY EVIDENCE

SECTION 7 EXPERT EVALUATION

SECTION 8 WANTED ORDERS

SECTION 9 CONCLUSION OF INVESTIGATION

SECTION 10 INVESTIGATION OF CASES DIRECTLY ACCEPTED BY THE PEOPLE'S PROCURATORATES

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

SECTION 3 SUMMARY PROCEDURE

CHAPTER III PROCEDURE OF SECOND INSTANCE

CHAPTER IV PROCEDURE FOR REVIEW OF DEATH SENTENCES

CHAPTER V PROCEDURE FOR TRIAL SUPERVISION

PART FOUR EXECUTION

SUPPLEMENTARY PROVISIONS


PART ONE GENERAL PROVISIONS


CHAPTER I AIM AND BASIC PRINCIPLES


Article 1 This Law is enacted in accordance with the Constitution and for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding State and public security and maintaining socialist public order.


Article 2 The aim of the Criminal Procedure Law of the People's Republic of China is: to ensure accurate and timely ascertainment of facts about crimes, correct application of law, punishment of criminals and protection of the innocent against being investigated for criminal responsibility; to enhance the citizens' awareness of the need to abide by law and to fight vigorously against criminal acts in order to safeguard the socialist legal system, to protect the citizens' personal rights; their property rights, democratic rights and other rights; and to guarantee smooth progress of the cause of socialist development.


Article 3 The public security organs shall be responsible for investigation, detention, execution of arrests and preliminary inquiry in criminal cases. The People's Procuratorates shall be responsible for procuratorial work, authorizing approval of arrests, conducting investigation and initiating public prosecution of cases directly accepted by the procuratorial organs. The People's Courts shall be responsible for adjudication. Except as otherwise provided by law, no other organs, organizations or individuals shall have the authority 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 State security organs shall, in accordance with law, handle cases of crimes that endanger State security, performing the same functions and powers as the public security organs.


Article 5 The People's Courts shall exercise judicial power independently in accordance with law and the People's Procuratorates shall exercise procuratorial power independently in accordance with law, and they shall be free from interference by any administrative organ, public organization or individual.


Article 6 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. The law applies equally to all citizens and no privilege whatsoever is permissible before law.


Article 7 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.


Article 8 The People's Procuratorates shall, in accordance with law, exercise legal supervision over criminal proceedings.


Article 9 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 10 In trying cases, the People's Courts shall apply the system whereby the second instance is final.


Article 11 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 12 No person shall be found guilty without being judged as such by a People's Court according to law.


Article 13 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 14 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 criminal suspect and 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 judges, procurators and investigators whose acts infringe on their citizen's procedural rights or subject their persons to indignities.


Article 15 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 the handling shall be terminated, or innocence shall be declared:

(1) if an act is obviously minor, 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 criminal suspect or defendant is deceased; or


(6) if other laws provide an exemption from investigation of criminal responsibility.


Article 16 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 crimesfor which criminal responsibility should be investigated, those cases shall be resolved through diplomatic channels.


Article 17 In accordance with the international treaties which the People's Republic of China has concluded or acceded to or on the principle of reciprocity, the judicial organs of China and that of other countries may request judicial assistance from each other in criminal affairs.


CHAPTER II JURISDICTION


Article 18 Investigation in criminal cases shall be conducted by the public security organs, except as otherwise provided by law.
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.
Cases of private prosecution shall be handled directly by the People's Courts.


Article 19 The Primary 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 20 The Intermediate People's Courts shall have jurisdiction as courts of first instance over the following criminal cases:

(1) counterrevolutionary cases and cases endangering State security;


(2) ordinary criminal cases punishable by life imprisonment or the death penalty; and


(3) criminal cases in which the offenders are foreigners.


Article 21 The Higher People's Courts shall have jurisdiction as courts of first instance over major criminal cases that pertain to an entire province (or autonomous region, or municipality directly under the Central Government).


Article 22 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 23 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; 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 24 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 25 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 26 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 27 The jurisdiction over cases in special People's Courts shall be stipulated separately.


CHAPTER III WITHDRAWAL


Article 28 In any of the following situations, a member of the judicial, procuratorial or investigatory 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, defender or agent ad litem in the current case; or


(4) if he has any other relations with a party to the case that could affect the impartial handling of the case.


Article 29 Judges, procurators or investigators shall not accept invitations to dinner or presents from the parties to a case or the persons entrusted by the parties and shall not in violation of regulations meet with the parties to a case or the persons entrusted by the parties.
Any judge, procurator or investigator who violates the provisions in the preceding paragraph shall be investigated for legal responsibility. The parties to the case and their legal representatives shall have the right to request him to withdraw.


Article 30 The withdrawal of a judge, procurator and investigator 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.
An investigator may not suspend investigation of a case before a decision is made on his withdrawal.If a decision has been made to reject his application for withdrawal, the party or his legal representative may apply for reconsideration once.


Article 31 The provisions of Articles 28, 29 and 30 of this Law shall also apply to court clerks, interpreters and expert witnesses.


CHAPTER IV DEFENCE AND REPRESENTATION


Article 32 In addition to exercising the right to defend himself, a criminal suspect or a defendant may entrust one or two persons as his defenders. The following persons may be entrusted as defenders:


(1) lawyers;


(2) persons recommended by a public organization or the unit to which the criminal suspect or the defendant belongs; and


(3) guardians or relatives and friends of the criminal suspect or the defendant.

Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as defenders.

Article 33 A criminal suspect in a case of public prosecution shall have the right to entrust persons as his defenders from the date on which the case is transferred for examination before prosecution. A defendant in a case of private prosecution shall have the right to entrust persons as his defenders at any time.

A People's Procuratorate shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, inform the criminal suspect that he has the right to entrust persons as his defenders. A People's Court shall, within three days from the date of accepting a case of private prosecution, inform the defendant that he has the right to entrust persons as his defenders.

Article 34 If a case is to be brought in court by a public prosecutor and the defendant involved has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People's Court may designate a lawyer that is obligated to provide legal aid to serve as a defender.
If the defendant is blind, deaf or mute, or if he is a minor, and thus has not entrusted anyone to be his defender, the People's Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.
If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People's Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.


Article 35 The responsibility of a defender shall be to present, according to the facts and law, materials and opinions proving the innocence of the criminal suspect or 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 criminal suspect or the defendant.


Article 36 Defence lawyers may, from the date on which the People's Procuratorate begins to examine a case for prosecution, consult, extract and duplicate the judicial documents pertaining to the current case and the technical verification material, and may meet and correspond with the criminal suspect in custody. Other defenders, with permission of the People's Procuratorate, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the criminal suspect in custody.

Defence lawyers may, from the date on which the People's Court accepts a case, consult, extract and duplicate the material of the facts of the crime accused in the current case, and may meet and correspond with the defendant in custody. Other defenders, with permission of the People's Court, may also consult, extract and duplicate the above-mentioned material, and may meet and correspond with the defendant in custody.


Article 37 Defence lawyers may, with the consent of the witnesses or other units and individuals concerned, collect information pertaining to the current case from them and they may also apply to the People's Procuratorate or the People's Court for the collection and obtaining of evidence, or request the People's Court to inform the witnesses to appear in court and give testimony.

With permission of the People's Procuratorate or the People's Court and with the consent of the victim, his near relatives or the witnesses provided by the victim, defence lawyers may collect information pertaining to the current case from them.


Article 38 Defense lawyers and other defenders shall not help the criminal suspects or defendants to conceal, destroy or falsify evidence or to tally their confessions, and shall not intimidate or induce the witnesses to modify their testimony or give false testimony or conduct other acts to interfere with the proceedings of the judicial organs.

Whoever violates the provisions of the preceding paragraph shall be investigated for legal responsibility according to law.


Article 39 During a trial, the defendant may refuse to have his defendant continue to defend him and may entrust his defence to another defender.


Article 40 A victim in a case of public prosecution, his legal representatives or near relatives, and a party in an incidental civil action and his legal representatives shall, from the date on which the case is transferred for examination before prosecution, have the right to entrust agents ad litem. A private prosecutor in a case of private prosecution and his legal representatives, and a party in an incidental civil action and his legal representatives shall have the right to entrust agents ad litem at any time.

The People's Procuratorate shall, within three days from the date of receiving the file record of a case transferred for examination before prosecution, notify the victim and his legal representatives or near relatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem. The People's Court shall, within three days from the date of accepting a case of private prosecution, notify the private prosecutor and his legal representatives and the party in an incidental civil action and his legal representatives that they have the right to entrust agents ad litem.


Article 41 With regard to entrusting of agents ad litem, the provisions of Article 32 of this Law shall be applied mutatis mutandis.


CHAPTER V EVIDENCE


Article 42 All facts that prove the true circumstances of a case shall be evidence.


There shall be the following seven categories of evidence:

(1) material evidence and documentary evidence;


(2) testimony of witnesses;


(3) statements of victims;


(4) statements and exculpations of criminal suspects or defendants;


(5) expert conclusions;


(6) records of inquests and examination; and


(7) audio-visual materials.

Any of the above evidence must be verified before it can be used as the basis for deciding cases.


Article 43 Judges, procurators and investigators must, in accordance with the legally prescribed process, collect various kinds of evidence that can prove the criminal suspect's or 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 44 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 45 The People's Courts, the People's Procuratorates and the public security organs shall have the authority to collect or obtain evidence from the units and individuals concerned. The units and individuals concerned shall provide truthful evidence.

Evidence involving State secrets shall be kept confidential.

Anyone that falsifies, conceals or destroys evidence, regardless ofwhich side of a case he belongs to, must be investigated under law.


Article 46 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 47 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 law.


Article 48 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.


Article 49 The People's Courts, the People's Procuratorates and the public security organs shall insure the safety of witnesses and their near relatives.

Anyone who intimidates, humiliates, beats or retaliates against a witness or his near relatives, if his act constitutes a crime, shall be investigated for criminal responsibility according to law; if the case is not serious enough for criminal punishment, he shall be punished for violation of public security in accordance with law.


CHAPTER VI COMPULSORY MEASURES


Article 50 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 criminal suspect or defendant, order him to obtain a guarantor pending trial or subject him to residential surveillance.


Article 51 The People's Courts, the People's Procuratorates and the public security organs may allow criminal suspects or defendants under any of the following conditions to obtain a guarantor pending trial or subject them to residential surveillance:

(1) They may be sentenced to public surveillance, criminal detention or simply imposed with supplementary punishments; or


(2) They may be imposed with a punishment of fixed-term imprisonment at least and would not endanger society if they are allowed to obtain a guarantor pending trial or are placed under residential surveillance.

The public security organs shall execute the decision on allowing a criminal suspect or defendant to obtain a guarantor pending trial or on subjecting him to residential surveillance.


Article 52 A criminal suspect or defendant in custody and his legal representatives or near relatives shall have the right to apply for obtaining a guarantor pending trial.


Article 53 If the People's Courts, the People's Procuratorates or the public security organs decide to allow a criminal suspect or defendant to obtain a guarantor pending trial, they shall order the criminal suspect or defendant to provide a guarantor or pay guaranty money.


Article 54 A guarantor must be a person who meets the following conditions:

(1) to be not involved in the current case;


(2) to be able to perform a guarantor's duties;


(3) to be entitled to political rights and not subjected to restriction of personal freedom; and


(4) to have a fixed domicile and steady income.


Article 55 A guarantor shall perform the following duties:

(1) to see to it that the person under his guarantee observes the provisions of Article 56 of this Law; and


(2) to promptly report to the executing organ when finding that the person under his guarantee may commit or has already committed acts in violation of the provisions of Article 56 of this Law.

If the guarantor fails to report promptly when the person under his guarantee has committed an act in violation of the provisions of Article 56 of this Law, he shall be fined. If the case constitutes a crime, criminal responsibility shall be investigated according to law.


Article 56 A criminal suspect or defendant who has obtained a guarantor pending trial shall observe the following provisions:

(1) not to leave the city or county where he resides without permission of the executing organ;


(2) to be present in time at a court when summoned;


(3) not to interfere in any form with the witness when the latter gives testimony; and


(4) not to destroy or falsify evidence or tally confessions.

If a criminal suspect or defendant who has obtained a guarantor pending trial violates the provisions of the preceding paragraph, the guaranty money paid shall be confiscated. In addition, in light of specific circumstances, the criminal suspect or defendant shall be ordered to write a statement of repentance, pay guaranty money or provide a guarantor again, or shall be subjected to residential surveillance or arrested. If a criminal suspect or defendant is found not to have violated the provisions in the preceding paragraph during the period when he has obtained a guarantor pending trial, the guaranty money shall be returned to him at the end of the period.


Article 57 A criminal suspect or defendant under residential surveillance shall observe the following provisions:

(1) not to leave his domicile without permission of the executing organ or, if he has no fixed domicile, not to leave the designated residence without permission;


(2) not to meet with others without permission of the executing organ;


(3) to be present in time at a court when summoned;


(4) not to interfere in any form with the witness when the latter gives testimony; and


(5) not to destroy or falsify evidence or tally confessions.

If a criminal suspect or defendant under residential surveillance violates the provisions of the preceding paragraph and if the case is serious, he shall be arrested.

Article 58 The period granted by a People's Court, People's Procuratorate or public security organ to a criminal suspect or defendant for awaiting trial after obtaining a guarantor shall not exceed twelve months; the period for residential surveillance shall not exceed six months.
During the period when the criminal suspect or defendant is awaiting trial after obtaining a guarantor or when he is under residential surveillance, investigation, prosecution and handling of the case shall not be suspended. If it is discovered that the criminal suspect or the defendant should not be investigated for criminal responsibility or when the period for awaiting trial after obtaining a guarantor or the period of residential surveillance has expired, such period shall be terminated without delay. The person who has obtained a guarantor pending trial or who is under residential surveillance and the units concerned shall be notified of the termination immediately.


Article 59 Arrests of criminal suspects or defendants shall be subject to approval by a People's Procuratorate or decision by a People's Court and shall be executed by a public security organ.


Article 60 When there is evidence to support the facts of a crime and the criminal suspect or defendant 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 his arrest, the criminal suspect or defendant shall be immediately arrested according to law.

If a criminal suspect or defendant who should be arrested is seriously ill or is a pregnant woman or a woman breast-feeding her own baby, he or she may be allowed to obtain a guarantor pending trial or be placed under residential surveillance.

Article 61 Public security organs may initially detain an active criminal 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 a crime, or he is a fugitive;


(5) if there is likelihood of his destroying or falsifying evidence or tallying confessions;


(6) if he does not tell his true name and address and his identity is unknown; and


(7) if he is strongly suspected of committing crimes from one place to another, repeatedly, or in a gang.


Article 62 When a public security organ is to detain or arrest a person in another place, it shall inform the public security organ in the place where the person to be detained or arrested stays, and the public security organ there shall cooperate in the action.


Article 63 The persons 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 64 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 65 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 66 When a public security organ wishes to arrest a criminal suspect, 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 procurators to participate in the public security organ's discussion of a major case.


Article 67 The chief procurator shall make the decision on a People's Procuratorate's examination and approval of the arrest of a criminal suspect. Major cases shall be submitted to the procuratorial committee for discussion and decision.


Article 68 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 of the case either to approve the arrest or disapprove the arrest. If it decides to approve the arrest, the public security organ shall execute it immediately and inform the People's Procuratorate of the result without delay. If the People's Procuratorate disapproves the arrest, it shall give its reasons therefor; and if it deems a supplementary investigation necessary, it shall at the same time notify the public security organ of the need.


Article 69 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 a request for examination and approval may be extended by one to four days.

As to the arrest of a major suspect involved in crimes committed from one place to another, repeatedly, or in a gang, the time limit for submitting a request for examination and approval may be extended to 30 days.
The People's Procuratorate shall decide either to approve or disapprove the arrest within seven days from the date of receiving the written request for approval of arrest submitted by a public security organ. If the People's Procuratorate disapproves the arrest, the public security organ shall, upon receiving notification, immediately release the detainee and inform the People's Procuratorate of the result without delay. If further investigation is necessary, and if the released person meets the conditions for obtaining a guarantor pending trial or for residential surveillance, he shall be allowed to obtain a guarantor pending trial or subjected to residential surveillance according to law.

Article 70 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 People's Procuratorate at the higher level shall immediately review the matter, decide whether or not to make a change and notify the People's Procuratorate at the lower level and the public security organ to implement its decision.


Article 71 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 custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.


Article 72 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 73 If a People's Court, a People's Procuratorate or a public security organ finds that the compulsory measures adopted against a criminal suspect or defendant are inappropriate, such measures shall be cancelled or modified without delay. If a public security organ releases a person arrested or substitute the measure of arrest with a different measure, it shall notify the People's Procuratorate that approved the arrest.


Article 74 If a case involving a criminal suspect or defendant in custody cannot be closed within the time limit stipulated by this Law for keeping the criminal suspect or defendant under custody for the sake of investigation, for conducting examination before prosecution, or for the procedure of first or second instance and thus further investigation, verification and handling are needed, the criminal suspect or defendant may be allowed to obtain a guarantor pending trial or subjected to residential surveillance.


Article 75 If the compulsory measures adopted by a People's Court, a People's Procuratorate or a public security organ exceed the time limit prescribed by law, the criminal suspect or defendant, his legal representatives, near relatives, or the lawyers or other defenders entrusted by the criminal suspect or defendant shall have the right to demand cancellation of the compulsory measures. The People's Court, the People's Procuratorate, or the public security organ shall release the criminal suspect or defendant when the compulsory measures adopted against him have exceeded the time limit prescribed by law, terminate the period for awaiting trial after obtaining a guarantor or for residential surveillance, or take different compulsory measures according to law.


Article 76 If in the process of examining and approving arrests, a People's Procuratorate discovers illegalities in the investigatory activities of a 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 the corrections it has made.


CHAPTER VII INCIDENTAL CIVIL ACTIONS


Article 77 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 the defendant.


Article 78 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 79 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 80 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 81 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 82 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 the public security organs and People's Procuratorates in the process of handling cases.


(2) "Parties" means victims, private prosecutors, criminal suspects, 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 State organ or public organization responsible for that person's protection;


(4) "Participants in the proceedings" means the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and interpreters;


(5) "agents ad litem" means persons entrusted by victims in cases of public prosecution and their legal representatives or near relatives and by private prosecutors in cases of private prosecution and their legal representatives to participate in legal proceedings on their behalf, and persons entrusted by parties in incidental civil actions and their legal representatives to participate in legal proceedings on their behalf.


(6) "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 83 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.


Article 84 Any unit or individual, upon discovering facts of a crime or a criminal suspect, shall have the right and duty to report the case or provide information to a public security organ, a People's Procuratorate or a People's Court.

When his personal or property rights are infringed upon, the victim shall have the right to report to a public security organ, a People's Procuratorate or a People's Court about the facts of the crime or bring a complaint to it against the criminal suspect.

The public security organ, the People's Procuratorate or the People's Court shall accept all reports, 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.
Where an offender delivers himself up to a public security organ, a People's Procuratorate or a People's Court, the provisions of the third paragraph shall apply.


Article 85 Reports, complaints and information may be filed in writing or orally. The officer receiving an oral report, complaint or information shall make a written record of it, which, after being read to the reporter, complainant or informant and found free of error, shall be signed or sealed by him or her.
The officer receiving the complaint or information shall clearly explain to the complainant or the informant the legal responsibility that shall be incurred for making a false accusation. However, a complaint or information 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.
The public security organs, the People's Procuratorates and the People's Courts shall insure the  safety of reporters, complainants and informants as well as their near relatives. If the reporters, complainants or informants wish not to make their names and acts of reporting, complaining or informing known to the public, these shall be kept confidential for them.


Article 86 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 reporter, complainant or informant 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.


Article 87 Where a People's Procuratorate considers that a case should be filed for investigation by a public security organ but the latter has not done so, or where a victim considers that a case should be filed for investigation by a public security organ but the latter has not done so and the victim has brought the matter to a People's Procuratorate, the People's Procuratorate shall request the public security organ to state the reasons for not filing the case. If the People's Procuratorate considers that the reasons for not filing the case given by the public security organ are untenable, it shall notify the public security organ to file the case, and upon receiving the notification, the public security organ shall file the case.


Article 88 As to a case of private prosecution, the victim shall have the right to bring a suit directly to a People's Court. If the victim is dead or has lost his ability of conduct, his legal representatives and near relatives shall have the right to bring a suit to a People's Court. The People's Court shall accept it according to law.


CHAPTER II INVESTIGATION


SECTION 1 GENERAL PROVISIONS


Article 89 With respect to a criminal case which has been filed, the public security organ shall carry out investigation, collecting and obtaining evidence to prove the criminal suspect guilty or innocent or to prove the crime to be minor or grave. Active criminals or major suspects may be detained first according to law, and criminal suspects who meet the conditions for arrest shall be arrested according to law.


Article 90 After investigation, the public security organ shall start preliminary inquiry into a case for which there is evidence that supports the facts of the crime, in order to verify the evidence which has been collected and obtained.


SECTION 2 INTERROGATION OF THE CRIMINAL SUSPECT


Article 91 Interrogation of a criminal suspect must be conducted by the investigators of a People's Procuratorate or public security organ. During an interrogation, there must be no fewer than two investigators participating.


Article 92 A criminal suspect who need not be arrested or detained may be summoned to a designated place in the city or county where the criminal suspect stays for interrogation, or he may be interrogated at his residence. However, the interrogators shall produce their papers issued by a People's Procuratorate or a public security organ.
The time for interrogation through summons or forced appearance shall not exceed 12 hours. A criminal suspect shall not be detained under the disguise of successive summons or forced appearance.


Article 93 When interrogating a criminal suspect, the investigators shall first ask the criminal suspect 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 questions. The criminal suspect shall answer the investigators' questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.


Article 94 During the interrogation of a criminal suspect who is deaf or mute, an officer who has a good command of sign language shall participate, and such circumstances shall be noted in the record.


Article 95 The record of an interrogation shall be shown to the criminal suspect for checking; if the criminal suspect cannot read, the record shall be read to him. If there are omissions or errors in the record, the criminal suspect may make additions or corrections. When the criminal suspect acknowledges that the record is free from error, he shall sign or affix his seal to it. The investigators shall also sign the record. If the criminal suspect requests to write a personal statement, he shall be permitted to do so. When necessary, the investigators may also ask the criminal suspect to write a personal statement.


Article 96 After the criminal suspect is interrogated by an investigation organ for the first time or from the day on which compulsory measures are adopted against him, he may appoint a lawyer to provide him with legal advice and to file petitions and complaints on his behalf. If the criminal suspect is arrested, the appointed lawyer may apply on his behalf for obtaining a guarantor pending trial. If a case involves State secrets, the criminal suspect shall have to obtain the approval of the investigation organ for appointing a lawyer.

The appointed lawyer shall have the right to find out from the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody to enquire about the case. When the lawyer meets with the criminal suspect in custody, the investigation organ may, in light of the seriousness of the crime and where it deems it necessary, send its people to be present at the meeting. If a case involves State secrets, before the lawyer meets with the criminal suspect, he shall have to obtain the approval of the investigation organ.


SECTION 3 QUESTIONING OF THE WITNESSES


Article 97 Investigators 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 98 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.


When a witness under the age of 18 is questioned, his legal representative may be notified to be present.


Article 99 The provisions of Article 95 of this Law shall also apply to the questioning of witnesses.


Article 100 The provisions of all articles in this Section shall apply to the questioning of victims.


SECTION 4 INQUEST AND EXAMINATION


Article 101 Investigators 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 investigators.


Article 102 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 officers to hold an inquest.


Article 103 To conduct an inquest or examination, the investigators must have papers issued by a People's Procuratorate or a public security organ.


Article 104 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 105 An examination may be conducted of the person of the victim or criminal suspect in order to ascertain some of his characteristics or physiological condition, or the circumstances of the injury.

If a criminal suspect refuses to be examined, the investigators, when they deem it necessary, may conduct a compulsory examination.Examination of the persons of women shall be conducted by female officers or doctors.


Article 106 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 107 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 procurators to participate in it.


Article 108 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 5 SEARCH


Article 109 In order to collect criminal evidence and track down an offender, investigators may search the person, belongings and residence of the criminal suspect and anyone who might be hiding a criminal or criminal evidence, as well as other relevant places.


Article 110 Any unit or individual shall have the duty, as required by the People's Procuratorate or the public security organ, to hand over material evidence, documentary evidence or audio-visual material which may prove the criminal suspect guilty or innocent.


Article 111 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 112 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 officers.


Article 113 A record shall be made of the circumstances of a search, and it shall be signed or sealed by the investigators 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 6 SEIZURE OF MATERIAL EVIDENCE AND DOCUMENTARY EVIDENCE


Article 114 Any articles and documents discovered during an inquest or search that may be used to prove a criminal suspect's guilt or innocence shall be seized. Articles 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 115 All seized articles and documents shall be carefully checked by the investigators 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 investigators, 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 116 If the investigators deem it necessary to seize the mail or telegrams of a criminal suspect, they may, upon approval of a public security organ or a People's Procuratorate, notify the post and telecommunications offices to check and 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 117 The People's Procuratorates and the public security organs may, as required by investigation of crimes, inquire into or freeze criminal suspects' deposits or remittances according to regulations.
If the deposits or remittances of the criminal suspects have been frozen, they shall not be frozen for a second time.


Article 118 If any seized articles, documents, mail, telegrams or frozen deposits and remittances are proved through investigation to be truly irrelevant to a case, the seizure and freeze shall be cancelled within three days, and the things shall be returned to their original owners or the original post and telecommunications offices.


SECTION 7 EXPERT EVALUATION


Article 119 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 120 After evaluating a matter, the experts shall write a conclusion of expert evaluation and affix his signature to it.


Reverification necessitated by disputes over medical verification of personal injuries and medical verification of mental illness shall be conducted by a hospital designated by a people's government at the provincial level. After verification, the expert shall make a conclusion in writing, to which his signature and the hospital's seal shall be affixed.
If an expert intentionally makes a false verification, he shall assume legal responsibility.


Article 121 The investigation organ shall notify the criminal suspect and the victim of the conclusion of the expert verification which will be used as evidence in his case. A supplementary expert verification or another expert verification may be conducted upon application submitted by the criminal suspect or the victim.


Article 122 The period during which the mental illness of a criminal suspect is under verification shall not be included in the period of time for handling the case.


SECTION 8 WANTED ORDERS


Article 123 If a criminal suspect 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 orderswithin the areas under their jurisdiction; they shall request a higher-level organ with the proper authority to issue such orders for areas beyond their jurisdiction.


SECTION 9 CONCLUSION OF INVESTIGATION


Article 124 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.


Article 125 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.


Article 126 With respect to the following cases, if investigation cannot be concluded within the time limit specified in Article 124 of this Law, an extension of two months may be allowed upon approval or decision by the People's Procuratorate of a province, autonomous region or municipality directly under the Central Government:

(1) grave and complex cases in outlying areas where traffic is most inconvenient;


(2) grave cases that involve criminal gangs;


(3) grave and complex cases that involve people who commit crimes from one place to another; and


(4) grave and complex cases that involve various quarters and for which it is difficult to obtain evidence.


Article 127 If in the case of a criminal suspect who may be sentenced to fixed-term imprisonment of ten years at least, investigation of the case can still not be concluded upon expiration of the extended time limit as provided in Article 126 of this Law, another extension of two months may be allowed upon approval or decision by the People's Procuratorate of a province, autonomous region or municipality directly under the Central Government.


Article 128 If during the period of investigation a criminal suspect is found to have committed other major crimes, the time limit for holding the criminal suspect in custody during investigation shall be recalculated, in accordance with the provisions of Article 124 of this Law, from the date on which such crimes are found.If a criminal suspect does not tell his true name and address and his identity is unknown, the time limit for holding him in custody during investigation shall be calculated from the date on which his identity is found out. However, before then, the investigation into his crime and obtaining of evidence shall not be ceased. If the facts of a crime are clear and the evidence is reliable and sufficient, the case may, by the name given by the criminal suspect himself, be transferred to a People's Procuratorate for examination and prosecution.


Article 129 After a public security organ has concluded its investigation of a case, the facts should be clear and the evidence reliable and sufficient and, in addition, 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.


Article 130 If it is discovered during investigation that a criminal suspect's criminal responsibility should not have been investigated, the case shall be dismissed; if the criminal suspect 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.


SECTION 10 INVESTIGATION OF CASES DIRECTLY ACCEPTED BY THE PEOPLE'S PROCURATORATES

Article 131 Investigation of cases directly accepted by the People's Procuratorates shall be governed by the provisions of this Chapter.


Article 132 If a case directly accepted by a People's Procuratorate conforms with the conditions provided in Article 60 and in sub-paragraph (4) or sub-paragraph (5) of Article 61 of this Law, thus arrest or detention of the criminal suspect is necessitated, the decision thereon shall be made by the People's Procuratorate and executed by a public security organ.


Article 133 A detainee in a case directly accepted by a People's Procuratorate shall be interrogated within 24 hours after the detention. If it is found that the person should not have been detained, he must be released immediately and issued a release certificate. If an arrest is necessitated but the evidence is insufficient, the detainee may be allowed to obtain a guarantor pending trial or be subjected to residential surveillance.


Article 134 If a People's Procuratorate deems it necessary to arrest a detainee in a case directly accepted by it, it shall make a decision thereon within 10 days after the detention. Under special circumstances, the time limit for deciding on an arrest may be extended by one to four days. If arrest is unnecessary, the detainee shall be released immediately; if the case requires further investigation and the detainee meets the conditions for obtaining a guarantor pending trial or for residential surveillance, he shall be allowed to obtain a guarantor pending trial or be subjected to residential surveillance according to law.


Article 135 After a People's Procuratorate has concluded its investigation of a case, it shall make a decision to initiate public prosecution, not to initiate a prosecution or to dismiss the case.


CHAPTER III INITIATION OF PUBLIC PROSECUTION


Article 136 All cases requiring initiation of a public prosecution shall be examined for decision by the People's Procuratorates.


Article 137 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 been 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 civil action; and


(5) whether the investigation of the case is being lawfully conducted.


Article 138 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.

If jurisdiction over a case to be examined and prosecuted by a People's Procuratorate is altered, the time limit for examination and prosecution shall be calculated from the date on which another People's Procuratorate receives the case after the alteration.


Article 139 When examining a case, the People's Procuratorate shall interrogate the criminal suspect and heed the opinions of the victim and of the persons entrusted by the criminal suspect and the victim.


Article 140 In examining a case, the People's Procuratorate may request a public security organ to provide the evidence that is essential to the trial in court.

In examining a case that requires supplementary investigation, the People's Procuratorate may remand the case to a public security organ for supplementary investigation or conduct the investigation itself.


In cases where supplementary investigation is to be conducted, it shall be completed within one month. Supplementary investigation may be conducted twice at most. When supplementary investigation is completed and the case is transferred to the People's Procuratorate, the time limit for examination and prosecution shall be recalculated by the
People's Procuratorate.

With respect to a case for which supplementary investigation has been conducted, if the People's Procuratorate still believes that the evidence is insufficient and the case does not meet the conditions for initiation of a prosecution, the People's Procuratorate may decide not to initiate a prosecution.


Article 141 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.


Article 142 If a criminal suspect is found to be under one of the circumstances provided in Article 15 of this Law, the People's Procuratorate shall make a decision not to initiate a prosecution.


With respect to a case that is minor and the offender need not be given criminal punishment or need be exempted from it according to the Criminal Law, the People's Procuratorate may decide not to initiate a prosecution.


With respect to a case for which the People's Procuratorate has decided not to initiate a prosecution, the People's Procuratorate shall, at the same time, cancel the seizure or freeze of the property or things of value seized or frozen during the period of investigation. If the person against whom prosecution is not to be initiated need be given administrative penalty or administrative sanction or his illegal gains need be confiscated, the People's Procuratorate shall make suggestions to such an effect and transfer the case to the competent organ for handling. The competent organ shall, without delay, inform the People's Procuratorate of how it has handled the case.


Article 143 A decision not to initiate a prosecution shall be announced publicly, and the decision shall, in written form, be delivered to the person who is not to be prosecuted and his unit. If the said person is in custody, he shall be released immediately.


Article 144 With respect to a case transferred by a public security organ for prosecution, if the People's Procuratorate decides not to initiate a prosecution, it shall deliver the decision in writing to the public security organ. If the public security organ considers that the decision not to initiate a prosecution is wrong, it may demand reconsideration, and if the demand is rejected, it may submit the matter to the People's Procuratorate at the next higher level for review.


Article 145 If the People's Procuratorate decides not to initiate a prosecution with respect to a case that involves a victim, it shall send the decision in writing to the victim. If the victim refuses to accept the decision, he may, within seven days after receiving the written decision, present a petition to the People's Procuratorate at the next higher level and request the latter to initiate a public prosecution. The People's Procuratorate shall notify the victim of its decision made after reexamination. If the People's Procuratorate upholds the decision not to initiate a prosecution, the victim may bring a lawsuit to a People's Court. The victim may also bring a lawsuit directly to a People's Court without presenting a petition first. After the People's Court has accepted the case, the People's Procuratorate shall transfer the relevant case file to the People's Court.


Article 146 If the person against whom a People's Procuratorate decides, in accordance with the provisions of the second paragraph of Article 142 of this Law, not to initiate a prosecution still refuses to 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 make a decision to conduct a reexamination, notify the person against whom no prosecution is to be initiated and at the same time send a copy of the decision to the public security organ.


PART THREE TRIAL


CHAPTER I TRIAL ORGANIZATIONS


Article 147 Trials of cases of first instance in the Primary and Intermediate People's Courts shall be conducted by a collegial panel composed of three judges or of judges and people's assessors totalling three. However, cases in which summary procedure is applied in the Primary People's Courts 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 three to seven judges or of judges and people's assessors totalling three to seven.

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 members of a collegial panel shall be odd in number.

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 148 If opinions differ when a collegial panel conducts its deliberations, a decision shall be made in accordance with the opinions of the majority, but the opinions 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 149 After the hearings and deliberations, the collegial panel shall render a judgment. With respect to a difficult, complex or major case, on which the collegial panel considers it difficult to make a decision, the collegial panel shall refer the case to the president of the court for him to decide whether to submit the case to the judicial committee for discussion and decision. The collegial panel shall execute the decision of the judicial committee.


CHAPTER II PROCEDURE OF FIRST INSTANCE


SECTION 1 CASES OF PUBLIC PROSECUTION


Article 150 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 bill of prosecution contains clear facts of the crime accused and, in addition, there are a list of evidence and a list of witnesses as well as duplicates or photos of major evidence attached to it.


Article 151 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 ten days before the opening of the court session. If the defendant has not appointed a defender, he shall be informed that he may appoint a defender or, when necessary, designate a lawyer that is obligated to provide legal aid to serve as 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, agents ad litem, 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, three days before the opening of the session, the subject matter of the case to be heard in public, the name of the defendant and the time and place of the court session.


The circumstances of the above-mentioned proceedings shall be entered in the written record, which shall be signed by the judges and the court clerk.


Article 152 Cases of first instance in a People's Court shall be heard in public. However, cases involving State secrets or 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 153 When a case of public prosecution is being tried in a People's Court, the People's Procuratorate shall send its procurators to the court to support the public prosecution. However, when a case is to be tried through summary procedure, the People's Procuratorate may send no procurators to the court, as provided by the provisions of Article 175 of this Law.


Article 154 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, agent ad litem, the expert witnesses and the interpreter; he shall inform the parties of their right to apply for withdrawal of any member of the collegial panel, the court clerk, the public prosecutor, any expert witnesses or the interpreter; and he shall inform the defendant of his right to defence.


Article 155 After the public prosecutor has read out the bill of prosecution in court, the defendant and the victim may present statements regarding the crime accused in the bill of prosecution, and the public prosecutor may interrogate the defendant.


The victim, the plaintiff and defender in an incidental civil action and the agents ad litem may, with the permission of the presiding judge, put questions to the defendant.

The judges may interrogate the defendant.


Article 156 Before a witness gives testimony, the judges shall instruct him 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 public prosecutor, the parties, the defenders and agents ad litem, with the permission of the presiding judge, may question the witnesses and expert witnesses. If the presiding judge considers any questioning irrelevant to the case, he shall put a stop to it.

The judges may question the witnesses and expert witnesses.

Article 157 The public prosecutor and the defenders shall show the material evidence to the court for the parties to identify; the records of testimony of witnesses who are not present in court, the conclusions of expert witnesses who are not present in court, the records of inquests and other documents serving as evidence shall be read out in court. The judges shall heed the opinions of the public prosecutor, the parties, the defenders and the agents ad litem.


Article 158 During a court hearing, if the collegial panel has doubts about the evidence, it may announce an adjournment, in order to carry out investigation to verify the evidence.


When carrying out investigation to verify evidence, the People's Court may conduct inquest, examination, seizure, expert evaluation, as well as inquiry and freeze.


Article 159 During a court hearing, the parties, the defenders and agents ad litem shall have the right to request new witnesses to be summoned, new material evidence to be obtained, a new expert evaluation to be made, and another inquest to be held.


The court shall make a decision whether to grant the above-mentioned requests.


Article 160 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. After the presiding judge has declared conclusion of the debate, the defendant shall have the right to present a final statement.


Article 161 If any participant in the proceedings of a trial or bystander violates the order of the courtroom, the presiding judge shall warn him to desist. If any person fails to obey, he may forcibly be taken out of the courtroom. If the violation is serious, the person shall be fined not more than 1,000 yuan or detained not more than 15 days. The fine or detention shall be subject to approval of the president of the court. If the person under punishment is not satisfied with the decision on the fine or detention, he may apply to the People's Court at the next higher level for reconsideration. However, the execution of the fine or detention shall not be suspended during the period of reconsideration.


Whoever assembles a crowd to make an uproar or charges into the courtroom, or humiliates, slanders, intimidates or beats up judicial officers or participants in the proceedings, thereby seriously disturbing the order of the courtroom, which constitutes a crime, shall be investigated for criminal responsibility according to law.


Article 162 After a defendant makes his final statement, the presiding judge shall announce an adjournment and the collegial panel shall conduct its deliberations and, on the basis of the established facts and evidence and in accordance with the provisions of relevant laws, render one of the following judgments:


(1) If the facts of a case are clear, the evidence is reliable and sufficient, and the defendant is found guilty in accordance with law, he shall be pronounced guilty accordingly;


(2) If the defendant is found innocent in accordance with law, he shall be pronounced innocent accordingly;


(3) If the evidence is insufficient and thus the defendant cannot be found guilty, he shall be pronounced innocent accordingly on account of the fact that the evidence is insufficient and the accusation unfounded.

Article 163 In all cases, judgments shall be pronounced publicly.


If the judgment on a case is pronounced in court, a written form of the 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, a written form of the judgment shall be delivered immediately after the pronouncement to the parties and the People's Procuratorate that indicated the public prosecution.


Article 164 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 165 A hearing may be postponed if during a trial one of thefollowing situations affecting the conduct of the trial occurs:


(1) if it is necessary to summon new witnesses, obtain new material evidence, make a new expert evaluation or hold another inquest;


(2) if the procurators find that a case for which public prosecution has been initiated requires supplementary investigation, and they make a proposal to that effect; or


(3) if the trial cannot proceed because a party applies for the withdrawal of a judicial officer.


Article 166 If the hearings of a case is postponed in accordance with the provisions of sub-paragraph (2) in Article 165 of this Law, the People's Procuratorate shall complete the supplementary investigation within one month.


Article 167 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 168 A People's Court shall pronounce judgment on a case of public prosecution within one month or, one and a half months at the latest, after accepting it. Under one of the situations provided in Article 126 of this Law, the period may be extended by one more month upon approval or decision by the Higher People's Court of a province, autonomous region or municipality directly under the Central Government.

If jurisdiction of a People's Court over a case is altered, the time limit for handling the case shall be calculated from the date on which another People's Court receives the case after the alteration.


As to a case for which a People's Procuratorate has to conduct supplementary investigation, the People's Court shall start to calculate anew the time lime for handling the case after the supplementary investigation has been completed and the case has been transferred to it.


Article 169 If a People's Procuratorate discovers that in handling a case a People's Court has violated the litigation procedure prescribed by law, it shall have the power to suggest to the People's Court that it should set it right.


SECTION 2 CASES OF PRIVATE PROSECUTION


Article 170 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.


Article 171 After examining a case of private prosecution, the People's Court shall handle it in one of the following manners in light of the different situations:


(1) If the facts of the crime are clear and the evidence is sufficient, the case shall be tried at a court session; or


(2) In a case of private prosecution for which criminal evidence is lacking, if the private prosecutor cannot present supplementary evidence, the court shall persuade him to withdraw his prosecution or order its rejection.


If a private prosecutor, having been served twice with a summons according to law, refuses to appear in court without justifiable reasons, or if he withdraws from a court session without permission of the court, the case may be considered withdrawn by him.


If during the trial of a case the judges have doubts about the evidence and consider it necessary to conduct investigation to verify the evidence, the provisions of Article 158 of this Law shall apply.


Article 172 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. Mediation shall not be conducted for cases stipulated in sub-paragraph (3) of Article 170 of this Law.


Article 173 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.


SECTION 3 SUMMARY PROCEDURE


Article 174 The People's Court may apply summary procedure to the following cases, which shall be tried by a single judge alone:


(1) cases of public prosecution where the defendants may be lawfully sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or punished with fines exclusively, where the facts are clear and the evidence is sufficient, and for which the People's Procuratorate suggests or agrees to the application of summary procedure;


(2) cases to be handled only upon complaint; and


(3) cases prosecuted by the victims, for which there is evidence to prove that they are minor criminal cases.


Article 175 For a case of public prosecution that is tried through summary procedure, the People's Procuratorate may send no procurators to the court. The defendant may present a statement and defend himself regarding the crimes accused in the bill of prosecution. In cases where the People's Procuratorate sends procurators to the court, the defendant and his defenders may, with permission of the judges, debate with the public prosecutor.


Article 176 In a case of private prosecution that is tried through summary procedure, after the bill of prosecution is read out, the defendant and his defenders may, with the permission of the judges, debate with the private prosecutor and his agents ad litem.


Article 177 Trial of cases through summary procedure shall not be subject to the provisions of Section 1 of this Chapter governing the procedures of interrogating the defendant, questioning the witnesses and expert witnesses, showing the evidence, and debating in court. However, before the judgment is pronounced, the final statement of the defendant shall be heard.


Article 178 For a case to be tried through summary procedure, the People's Court shall conclude it within 20 days after accepting it.


Article 179 If in the course of trying a case the People's Court discovers that the summary procedure is not appropriate for the case, it shall try it anew in accordance with the provisions in Section 1 or Section 2 of this Chapter.


CHAPTER III PROCEDURE OF SECOND INSTANCE


Article 180 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 shall have the right to appeal in writing or orally 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.


A party to an incidental civil action or his legal representative may file an appeal against that part of a judgment or order of first instance made by a local People's Court at any level that deals with the incidental civil action.


A defendant shall not be deprived on any pretext of his right to appeal.

Article 181 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.


Article 182 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.


Article 183 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.


Article 184 If a defendant, private prosecutor, or a plaintiff or defendant in an incidental civil action files an appeal through the People's Court which originally tried the 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 party.


If a defendant, private prosecutor, or a plaintiff or defendant in an incidental civil action files an appeal directly to the People's Court of second instance, the 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 party.


Article 185 If a local People's Procuratorate protests against a judgment or order of first instance made by 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 186 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 187 A People's Court of second instance shall form a collegial panel and open a court session to hear a case of appeal. However, if after consulting the case file, interrogating the defendant and heeding the opinions of the other parties, defenders and agents ad litem, the collegial panel thinks the criminal facts are clear, it may open no court session. A People's Court of second instance shall open a court session to hear a case protested by a People's Procuratorate.


When a People's Court of second instance opens a court session to hear a case of appeal or protest, it may do so in the place where the case occurred or in the place where the People's Court which originally tried the case is located.


Article 188 With respect to both cases protested by a People's Procuratorate and cases of public prosecution tried by a People's Court of second instance in a court session, the People's Procuratorate at the same level shall send its procurators to the court. The People's Court of second instance must, 10 days before opening of the court session, notify the People's Procuratorate to examine the case files.


Article 189 After hearing a case of appeal or protest against a judgment of first instance, the People's Court of second instance shall handle it in one of the following manners in light of the different situations:


(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 meted out, the People's Court shall revise the judgment.

(3) 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, or it may rescind the original judgment and remand the case to the People's Court which originally tried it for retrial.


Article 190 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 191 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:

(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.


Article 192 The People's Court which originally tried a case shall form a new collegial panel for the case remanded to it for retrial, in accordance with the procedure of first instance. With respect to the judgment rendered after the retrial, an appeal or protest may be lodged in accordance with the provisions of Article 180, 181 or 182 of this Law.


Article 193 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 rescind or revise the original order respectively with reference to the provisions of Article 189, 190 or 192 of this Law.


Article 194 The People's Court which originally tried a case shall calculate the time limit anew for the trial of the case remanded to it by the People's Court of second instance from the date of receiving the case remanded.


Article 195 A People's Court of second instance shall try cases of appeal or protest with reference to the procedure of first instance, in addition to applying the provisions in this Chapter.


Article 196 After accepting a case of appeal or protest, a People's Court of second instance shall conclude the trial of the case within one month, or one and a half months at the latest. Under one of the situations provided in Article 126 of this Law, the period may be extended by one month upon the approval or decision by the Higher People's Court of a province, autonomous region or municipality directly under the Central Government. However, with respect to cases of appeal or protest accepted by the Supreme People's Court, the matter shall be decided by the Supreme People's Court itself.


Article 197 All judgments and orders of second instance and all judgments and orders of the Supreme People's Court are final.


Article 198 The public security organs, People's Procuratorates and People's Courts shall have the property, things of value of the criminal suspects and defendants, as well as the fruits accruing therefrom, that they have seized or frozen well kept for examination. No units or individuals shall misappropriate them or dispose of them without authorization. The lawful property of the victims shall be returned to them without delay. Prohibited articles and perishable things shall be disposed of in accordance with the relevant regulations of the State.

Things that serve as tangible evidence shall be transferred togetherwith the case, but for things that are unsuitable to be transferred,their inventory and photos and other documents of certification shall be transferred together with the case.


After a judgment rendered by the People's Court becomes effective, all the seized or frozen illicit money and goods as well as the fruits accruing therefrom, except those that are returned to the victim according to law, shall be confiscated and turned over to the State Treasury.


Any judicial officer who embezzles or misappropriates or disposes of the seized or frozen illicit money and goods as well as the fruits accruing therefrom without authorization shall be investigated for criminal responsibility according to law; if the offence does not constitute a crime, he shall be given administrative sanction.


CHAPTER IV PROCEDURE FOR REVIEW OF DEATH SENTENCES


Article 199 Death sentences shall be subject to approval by the Supreme People's Court.


Article 200 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 submitted 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 201 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.


Article 202 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 each composed of three judges.


CHAPTER V PROCEDURE FOR TRIAL SUPERVISION


Article 203 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.


Article 204 If a petition presented by a party or his legal representative or his near relative conforms to any of the following conditions, the People's Court shall retry the case:


(1) There is new evidence to prove that the confirmation of the facts in the original judgment or order is definitely wrong;


(2) The evidence upon which the condemnation was made and punishment meted out is unreliable and insufficient, or the major pieces of evidence for supporting the facts of the case contradict each other;


(3) The application of law in making the original judgment or order is definitely incorrect; or


(4) The judges in trying the case committed acts of embezzlement, bribery, or malpractices for personal gain, or bended the law in making judgment.


Article 205 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.


With respect to a case protested by a People's Procuratorate, the People's Court that has accepted the protest shall form a collegial panel for retrial; if the facts, on the basis of which the original judgment was made, are not clear or the evidence is not sufficient, it may direct the People's Court at the lower level to try the case again.


Article 206 A new collegial panel shall be formed for the retrial of a case by a People's Court in accordance with the procedure for trial supervision. If the case was originally one of first instance, it shall be tried in accordance with the procedure of first instance and the new judgment or order may be appealed or protested. If the case was originally one of second instance or was brought up for trial by a People's Court at a higher level, it shall be tried in accordance with the procedure of second instance and the judgment or order rendered shall be final.


Article 207 With respect to a case retried by a People's Court in accordance with the procedure for trial supervision, it shall conclude the trial within three months from the day on which it makes the decision to bring the case up for trial itself or on which the decision is made for it to retry the case. If it is necessary to extend the time limit, the period shall not exceed six months.


The provisions of the preceding paragraph shall apply to the time limit for the trial of a protested case that is accepted by a People's Court and is to be tried by it in accordance with the procedure for trial supervision. Where it is necessary to direct a People's Court at a lower level to try a protested case again, a decision to such an effect shall be made within one month from the day on which the protested case is accepted; the provisions of the preceding paragraph shall apply to the time limit for the trial of the case by the People's Court at the lower level.


PART FOUR EXECUTION


Article 208 Judgments and orders shall be executed after they become legally effective.


The following judgments and orders are legally effective:

(1) judgments and orders against which no appeal or protest has been filed within the legally prescribed time limit;


(2) judgments and orders of final instance; and


(3) judgments of the death penalty approved by the Supreme People's Court and judgments of the death penalty with a two-year suspension of execution approved by a Higher People's Court.


Article 209 If a defendant in custody is given the verdict of not guilty or exempted from criminal punishment by a People's Court of first instance, he shall be released immediately after the judgment is pronounced.


Article 210 When a judgment of the death penalty with immediate execution is pronounced or approved by the Supreme People's Court, the President of the Supreme People's Court shall sign and issue an order to execute the death sentence.


If a criminal sentenced to death with a two-year suspension of execution commits no intentional offense during the period of suspension of the sentence and his punishment should therefore be commuted according to law on expiration of such period, the executing organ shall submit a written recommendation to a Higher People's Court for an order; if there is verified evidence that the criminal has committed intentional offense and his death sentence should therefore be executed, the Higher People's Court shall submit the matter to the Supreme People's Court for examination and approval.


Article 211 After receiving an order from the Supreme People's Court to execute a death sentence, the People's Court at a lower level shall cause the sentence to be executed within seven days. However, under one of the following conditions the People's Court at a lower level shall suspend execution and immediately submit a report to the Supreme People's Court for an order:

(1) If it is discovered before the execution of the sentence that the judgment may contain an error;


(2) If, before the execution of the sentence, the criminal exposes major criminal facts or renders other significantly meritorious service, thus the sentence may need to be revised; or


(3) If the criminal is pregnant.


If the reason given in sub-paragraph (1) or (2) of the preceding paragraph which caused the suspension of the sentence has disappeared, the sentence may be executed only after a report is submitted to the President of the Supreme People's Court for him to sign and issue another order for execution of the death sentence. If execution is suspended for the reason given in sub-paragraph (3) of the preceding paragraph, a request shall be submitted to the Supreme People's Court for it to alter the sentence according to law.


Article 212 Before a People's Court causes a death sentence to be executed, it shall notify the People's Procuratorate at the same level to send an officer to supervise the execution.

A death sentence shall be executed by such means as shooting or injection.

A death sentence may be executed on the execution ground or in a designated place of custody.


The judicial officer directing the execution shall verify the identity of the criminal, ask him if he has any last words or letters and then deliver him to the executioner for execution of the death sentence. If it is discovered before the execution that there may be an error, the execution shall be suspended and a report submitted to the Supreme People's Court for an order.Executions of death sentences shall be announced but shall not be held in public.


After a death sentence is executed, the court clerk on the scene shall prepare a written record of it. The People's Court that caused the death sentence to be executed shall submit a report on the execution to the Supreme People's Court.


After a death sentence is executed, the People's Court that caused the death sentence to be executed shall notify the family members of the criminal.


Article 213 When a criminal is handed over for execution of his criminal punishment, the People's Court that caused the sentence to be executed shall deliver the relevant legal documents to a prison or other executing organ.


A criminal sentenced to death with a two-year suspension of execution, or life imprisonment, or fixed-term imprisonment shall, according to law, be handed over by a public security organ to a prison for execution of his criminal punishment. As to a criminal sentenced to fixed-term imprisonment, if the remaining term of sentence is not more than one year before he is handed over for execution of his criminal punishment, the sentence shall be executed by a detention house instead. As to a criminal sentenced to criminal detention, the sentence shall be executed by a public security organ.


As to a juvenile delinquent, his criminal punishment shall be executed in a reformatory for juvenile delinquents.


An executing organ shall take a criminal into custody without delay and notify the family members of the criminal.


A criminal sentenced to fixed-term imprisonment or criminal detention, upon completion of execution of the sentence, shall be issued a certificate of release by the executing organ.


Article 214 A criminal sentenced to fixed-term imprisonment or criminal detention, under either of the following conditions, may be permitted to temporarily serve his sentence outside prison:


(1) If the criminal is seriously ill and needs to be released on parole for medical treatment; or


(2) If the criminal is pregnant or is breast-feeding her own baby.


If a criminal to be released on parole for medical treatment may endanger the community or if a criminal injures himself or makes himself disabled, he may not be released on parole for medical treatment.


If a criminal is truly ill seriously and must be released on parole for medical treatment, a supporting document prepared by the hospital designated by a people's government at the provincial level shall be needed, and the matter shall be subject to examination and approval according to the procedure prescribed by law.


If it is found that a criminal released on parole for medical treatment does not meet the conditions for release on parole for medical treatment or the criminal has gravely violated the regulations regarding such release, he shall be taken back to prison without delay.


As to a criminal sentenced to fixed-term imprisonment or criminal detention who is unable to look after himself in everyday life, if his service of sentence outside prison would not endanger the community, he may be permitted to serve his sentence outside prison temporarily.


If a criminal is permitted to serve his sentence outside prison temporarily, the sentence shall be executed by the public security organ in the place where the criminal resides, the executing organ shall exercise strict control and supervision over him and the grass-roots organizations or the unit where the criminal originally belonged shall assist in supervision.


Article 215 The organ that approved the temporary service of sentence outside prison shall send a copy of its decision on the approval to a People's Procuratorate. If the People's Procuratorate considers the temporary service of sentence outside prison improper, it shall within one month from the date of receiving the notification, submit its recommendation in writing to the organ that approved the temporary service of sentence outside prison, which shall, upon receiving the written recommendation of the People's Procuratorate, reexamine its decision without delay.


Article 216 As soon as the conditions under which a criminal is permitted to serve his sentence outside prison temporarily cease to exist, if the criminal's term of sentence has not expired, he shall be taken back to prison without delay.


If a criminal dies during the period in which he is serving his sentence outside prison temporarily, the prison shall be informed thereof without delay.


Article 217 A criminal who has been sentenced to imprisonment with a suspension of execution shall be placed by the public security organ under the observation of his unit or a grass-roots organization.A criminal released on parole shall be supervised by a public security organ during the test period of parole.


Article 218 Sentence of public surveillance or deprivation of political rights that has been imposed on a criminal shall be executed by a public security organ. After the sentence is served, the executing organ shall notify the criminal himself and publicly announce to the people concerned that public surveillance is ended or that his political rights are restored.


Article 219 If a criminal sentenced to a fine fails to pay the fine within the time limit, the People's Court shall compel him to pay. If he has true difficulty in paying because he has suffered an irresistible disaster, an order may be made to reduce the fine or exempt him from payment.


Article 220 All judgments on confiscation of property, whether imposed as a supplementary punishment or independently, shall be executed by the People's Courts; when necessary, the People's Courts may execute such judgments jointly with the public security organs.


Article 221 If a criminal commits a crime again while serving his sentence, or if a criminal act that is discovered was not known at the time of judgment, he shall be transferred by the executing organ to a People's Procuratorate for handling.


If a criminal sentenced to public surveillance, criminal detention, fixed-term imprisonment or life imprisonment shows true repentance or renders meritorious service while serving his sentence and should be granted a commutation of sentence or be released on parole according to law, the executing organ shall submit a written recommendation to a People's Court for examination and an order.


Article 222 If a People's Procuratorate considers that the order on commutation of sentence or on parole made by a People's Court is

improper, it shall, within 20 days from the date of receiving a copy of the written order, submit a written recommendation to the People's Court for correction. The People's Court shall, within one month from the date of receiving the recommendation, form a new collegial panel to handle the case and render a final order.


Article 223 If, during execution of a criminal punishment, the prison or any other executing organ believes that there is an error in the judgment or the criminal lodges a petition, it shall refer the matter to the People's Procuratorate or the People's Court that pronounced the original judgment for handling.


Article 224 The People's Procuratorates shall supervise the execution of criminal punishments by executing organs to see if the execution conforms to law. If they discover any illegalities, they shall notify the executing organs to correct them.


SUPPLEMENTARY PROVISIONS


Article 225 The security departments of the Army shall exercise the power of investigation with respect to criminal offences that have occurred in the Army.

Crimes committed by criminals in prison shall be investigated by the prison.


The handling of criminal cases by the security departments of the Army and by prisons shall be governed by the relevant provisions of this Law.
(The English translations are for reference only.)

中华人民共和国刑事诉讼法
(1979年7月1日第五届全国人民代表大会第二次会议通过
1996年3月17日第八届全国人民代表大会第四次会议修正)



第一编 总则

第一章 任务和基本原则

第一条 为了保证刑法的正确实施,惩罚犯罪,保护人民,保障国家安全和社会公共安全,维护社会主义社会秩序,根据宪法,制定本法。

第二条 中华人民共和国刑事诉讼法的任务,是保证准确、及时地查明犯罪事实,正确应用法律,惩罚犯罪分子,保障无罪的人不受刑事追究,教育公民自觉遵守法律,积极同犯罪行为作斗争,以维护社会主义法制,保护公民的人身权利、财产权利、民主权利和其他权利,保障社会主义建设事业的顺利进行。

第三条 对刑事案件的侦查、拘留、执行逮捕、预审,由公安机关负责。检察、批准逮捕、检察机关直接受理的案件的侦查、提起公诉,由人民检察院负责。审判由人民法院负责。除法律特别规定的以外,其他任何机关、团体和个人都无权行使这些权力。人民法院、人民检察院和公安机关进行刑事诉讼,必须严格遵守本法和其他法律的有关规定。

第四条 国家安全机关依照法律规定,办理危害国家安全的刑事案件,行使与公安机关相同的职权。

第五条 人民法院依照法律规定独立行使审判权,人民检察院依照法律规定独立行使检察权,不受行政机关、社会团体和个人的干涉。

第六条 人民法院、人民检察院和公安机关进行刑事诉讼,必须依靠群众,必须以事实为根据,以法律为准绳。对于一切公民,在适用法律上一律平等,在法律面前,不允许有任何特权。

第七条 人民法院、人民检察院和公安机关进行刑事诉讼,应当分工负责,互相配合,互相制约,以保证准确有效地执行法律。

第八条 人民检察院依法对刑事诉讼实行法律监督。

第九条 各民族公民都有用本民族语言文字进行诉讼的权利。人民法院、人民检察院和公安机关对于不通晓当地通用的语言文字的诉讼参与人,应当为他们翻译。在少数民族聚居或者多民族杂居的地区,应当用当地通用的语言进行审讯,用当地通用的文字发布判决书、布告和其他文件。

第十条 人民法院审判案件,实行两审终审制。

第十一条 人民法院审判案件,除本法另有规定的以外,一律公开进行。被告人有权获得辩护,人民法院有义务保证被告人获得辩护。

第十二条 未经人民法院依法判决,对任何人都不得确定有罪。

第十三条 人民法院审判案件,依照本法实行人民陪审员陪审的制度。

第十四条 人民法院、人民检察院和公安机关应当保障诉讼参与人依法享有的诉讼权利。对于不满十八岁的未成年人犯罪的案件,在讯问和审判时,可以通知犯罪嫌疑人、被告人的法定代理人到场。诉讼参与人对于审判人员、检察人员和侦查人员侵犯公民诉讼权利和人身侮辱的行为,有权提出控告。

第十五条 有下列情形之一的,不追究刑事责任,已经追究的,应当撤销案件,或者不起诉,或者终止审理,或者宣告无罪:
(一)情节显著轻微、危害不大,不认为是犯罪的;
(二)犯罪已过追诉时效期限的;
(三)经特赦令免除刑罚的;
(四)依照刑法告诉才处理的犯罪,没有告诉或者撤回告诉的;
(五)犯罪嫌疑人、被告人死亡的;
(六)其他法律规定免予追究刑事责任的。

第十六条 对于外国人犯罪应当追究刑事责任的,适用本法的规定。对于享有外交特权和豁免权的外国人犯罪应当追究刑事责任的,通过外交途径解决。

第十七条 根据中华人民共和国缔结或者参加的国际条约,或者按照互惠原则,我国司法机关和外国司法机关可以相互请求刑事司法协助。


第二章 管辖

第十八条 刑事案件的侦查由公安机关进行,法律另有规定的除外。
     贪污贿赂犯罪,国家工作人员的渎职犯罪,国家机关工作人员利用职权实施的非法拘禁、刑讯逼供、报复陷害、非法搜查的侵犯公民人身权利的犯罪以及侵犯公民民主权利的犯罪,由人民检察院立案侦查。对于国家机关工作人员利用职权实施的其他重大的犯罪案件,需要由人民检察院直接受理的时候,经省级以上人民检察院决定,可以由人民检察院立案侦查。自诉案件,由人民法院直接受理。

第十九条 基层人民法院管辖第一审普通刑事案件,但是依照本法由上级人民法院管辖的除外。

第二十条 中级人民法院管辖下列第一审刑事案件:
(一)反革命案件、危害国家安全案件;
(二)可能判处无期徒刑、死刑的普通刑事案件;
(三)外国人犯罪的刑事案件。

第二十一条 高级人民法院管辖的第一审刑事案件,是全省(自治区、直辖市)性的重大刑事案件。

第二十二条 最高人民法院管辖的第一审刑事案件,是全国性的重大刑事案件。

第二十三条 上级人民法院在必要的时候,可以审判下级人民法院管辖的第一审刑事案件;下级人民法院认为案情重大、复杂需要由上级人民法院审判的第一审刑事案件,可以请求移送上一级人民法院审判。

第二十四条 刑事案件由犯罪地的人民法院管辖。如果由被告人居住地的人民法院审判更为适宜的,可以由被告人居住地的人民法院管辖。

第二十五条 几个同级人民法院都有权管辖的案件,由最初受理的人民法院审判。在必要的时候,可以移送主要犯罪地的人民法院审判。

第二十六条 上级人民法院可以指定下级人民法院审判管辖不明的案件,也可以指定下级人民法院将案件移送其他人民法院审判。

第二十七条 专门人民法院案件的管辖另行规定。

第三章 回避

第二十八条 审判人员、检察人员、侦查人员有下列情形之一的,应当自行回避,当事人及其法定代理人也有权要求他们回避:
(一)是本案的当事人或者是当事人的近亲属的;
(二)本人或者他的近亲属和本案有利害关系的;
(三)担任过本案的证人、鉴定人、辩护人、诉讼代理人的;
(四)与本案当事人有其他关系,可能影响公正处理案件的。

第二十九条 审判人员、检察人员、侦查人员不得接受当事人及其委托的人的请客送礼,不得违反规定会见当事人及其委托的人。审判人员、检察人员、侦查人员违反前款规定的,应当依法追究法律责任。当事人及其法定代理人有权要求他们回避。

第三十条 审判人员、检察人员、侦查人员的回避,应当分别由院长、检察长、公安机关负责人决定;院长的回避,由本院审判委员会决定;检察长和公安机关负责人的回避,由同级人民检察院检察委员会决定。对侦查人员的回避作出决定前,侦查人员不能停止对案件的侦查。对驳回申请回避的决定,当事人及其法定代理人可以申请复议一次。

第三十一条 本法第二十八条、第二十九条、第三十条的规定也适用于书记员、翻译人员和鉴定人。

第四章 辩护与代理

第三十二条 犯罪嫌疑人、被告人除自己行使辩护权以外,还可以委托一至二人作为辩护人。下列的人可以被委托为辩护人:
(一)律师;
(二)人民团体或者犯罪嫌疑人、被告人所在单位推荐的人;
(三)犯罪嫌疑人、被告人的监护人、亲友。正在被执行刑罚或者依法被剥夺、限制人身自由的人,不得担任辩护人。

第三十三条 公诉案件自案件移送审查起诉之日起,犯罪嫌疑人有权委托辩护人。自诉案件的被告人有权随时委托辩护人。人民检察院自收到移送审查起诉的案件材料之日起三日以内,应当告知犯
罪嫌疑人有权委托辩护人。人民法院自受理自诉案件之日起三日以内,应当告知被告人有权委托辩护人。

第三十四条 公诉人出庭公诉的案件,被告人因经济困难或者其他原因没有委托辩护人的,人民法院可以指定承担法律援助义务的律师为其提供辩护。被告人是盲、聋、哑或者未成年人而没有委托辩护人的,人民法院应当指定承担法律援助义务的律师为其提供辩护。被告人可能被判处死刑而没有委托辩护人的,人民法院应当指定承担法律援助义务的律师为其提供辩护。

第三十五条 辩护人的责任是根据事实和法律,提出证明犯罪嫌疑人、被告人无罪、罪轻或者减轻、免除其刑事责任的材料和意见,维护犯罪嫌疑人、被告人的合法权益。

第三十六条 辩护律师自人民检察院对案件审查起诉之日起,可以查阅、摘抄、复制本案的诉讼文书、技术性鉴定材料,可以同在押的犯罪嫌疑人会见和通信。其他辩护人经人民检察院许可,也可以查阅、摘抄、复制上述材料,同在押的犯罪嫌疑人会见和通信。辩护律师自人民法院受理案件之日起,可以查阅、摘抄、复制本案所指控的犯罪事实的材料,可以同在押的被告人会见和通信。其他辩护人经人民法院许可,也可以查阅、摘抄、复制上述材料,同在押的被告人会见和通信。

第三十七条 辩护律师经证人或者其他有关单位和个人同意,可以向他们收集与本案有关的材料,也可以申请人民检察院、人民法院收集、调取证据,或者申请人民法院通知证人出庭作证。辩护律师经人民检察院或者人民法院许可,并且经被害人或者其近亲属、被害人提供的证人同意,可以向他们收集与本案有关的材料。

第三十八条 辩护律师和其他辩护人,不得帮助犯罪嫌疑人、被告人隐匿、毁灭、伪造证据或者串供,不得威胁、引诱证人改变证言或者作伪证以及进行其他干扰司法机关诉讼活动的行为。违反前款规定的,应当依法追究法律责任。

第三十九条 在审判过程中,被告人可以拒绝辩护人继续为他辩护,也可以另行委托辩护人辩护。

第四十条 公诉案件的被害人及其法定代理人或者近亲属,附带民事诉讼的当事人及其法定代理人,自案件移送审查起诉之日起,有权委托诉讼代理人。自诉案件的自诉人及其法定代理人,附带民事诉讼的当事人及其法定代理人,有权随时委托诉讼代理人。人民检察院自收到移送审查起诉的案件材料之日起三日以内,应当告知被害人及其法定代理人或者其近亲属、附带民事诉讼的当事人及其法定代理人有权委托诉讼代理人。人民法院自受理自诉案件之日起三日以内,应当告知自诉人及其法定代理人、附带民事诉讼的当事人及其法定代理人有权委托诉讼代理人。

第四十一条 委托诉讼代理人,参照本法第三十二条的规定执行。

第五章 证据

第四十二条 证明案件真实情况的一切事实,都是证据。

证据有下列七种:
(一)物证、书证;
(二)证人证言;
(三)被害人陈述;
(四)犯罪嫌疑人、被告人供述和辩解;
(五)鉴定结论;
(六)勘验、检查笔录;
(七)视听资料。

以上证据必须经过查证属实,才能作为定案的根据。

第四十三条 审判人员、检察人员、侦查人员必须依照法定程序,收集能够证实犯罪嫌疑人、被告人有罪或者无罪、犯罪情节轻重的各种证据。严禁刑讯逼供和以威胁、引诱、欺骗以及其他非法的方法收集证据。必须保证一切与案件有关或者了解案情的公民,有客观地充分地提供证据的条件,除特殊情况外,并且可以吸收他们协助调查。

第四十四条 公安机关提请批准逮捕书、人民检察院起诉书、人民法院判决书,必须忠实于事实真象。故意隐瞒事实真象的,应当追究责任。

第四十五条 人民法院、人民检察院和公安机关有权向有关单位和个人收集、调取证据。有关单位和个人应当如实提供证据。对于涉及国家秘密的证据,应当保密。凡是伪造证据、隐匿证据或者毁灭证据的,无论属于何方,必须受法律追究。

第四十六条 对一切案件的判处都要重证据,重调查研究,不轻信口供。只有被告人供述,没有其他证据的,不能认定被告人有罪和处以刑罚;没有被告人供述,证据充分确实的,可以认定被告人有罪和处以刑罚。

第四十七条 证人证言必须在法庭上经过公诉人、被害人和被告人、辩护人双方讯问、质证,听取各方证人的证言并且经过查实以后,才能作为定案的根据。法庭查明证人有意作伪证或者隐匿罪证的时候,应当依法处理。

第四十八条 凡是知道案件情况的人,都有作证的义务。生理上、精神上有缺陷或者年幼,不能辨别是非、不能正确表达的人,不能作证人。

第四十九条 人民法院、人民检察院和公安机关应当保障证人及其近亲属的安全。

对证人及其近亲属进行威胁、侮辱、殴打或者打击报复,构成犯罪的,依法追究刑事责任;尚不够刑事处罚的,依法给予治安管理处罚。


第六章 强制措施

第五十条 人民法院、人民检察院和公安机关根据案件情况,对犯罪嫌疑人、被告人可以拘传、取保候审或者监视居住。

第五十一条 人民法院、人民检察院和公安机关对于有下列情形之一的犯罪嫌疑人、被告人,可以取保候审或者监视居住:
(一)可能判处管制、拘役或者独立适用附加刑的;
(二)可能判处有期徒刑以上刑罚,采取取保候审、监视居住不致发生社
会危险性的。取保候审、监视居住由公安机关执行。

第五十二条 被羁押的犯罪嫌疑人、被告人及其法定代理人、近亲属有权申请取保候审。

第五十三条 人民法院、人民检察院和公安机关决定对犯罪嫌疑人、被告人取保候审,应当责令犯罪嫌疑人、被告人提出保证人或者交纳保证金。

第五十四条 保证人必须符合下列条件:
(一)与本案无牵连;
(二)有能力履行保证义务;
(三)享有政治权利,人身自由未受到限制;
(四)有固定的住处和收入。

第五十五条 保证人应当履行以下义务:
(一)监督被保证人遵守本法第五十六条的规定;
(二)发现被保证人可能发生或者已经发生违反本法第五十六条规定的行为的,应当及时向执行机关报告。被保证人有违反本法第五十六条规定的行为,保证上人未及时报告的,对保证人处以罚款,构成犯罪的,依法追究刑事责任。

第五十六条 被取保候审的犯罪嫌疑人、被告人应当遵守以下规定:
(一)未经执行机关批准不得离开所居住的市、县;
(二)在传讯的时候及时到案;
(三)不得以任何形式干扰证人作证;
(四)不得毁灭、伪造证据或者串供。
   被取保候审的犯罪嫌疑人、被告人违反前款规定,已交纳保证金的,没收保证金,并且区别情形,责令犯罪嫌疑人、被告人具结悔过,重新交纳保证金、提出保证人或者监视居住、予以逮捕。犯罪嫌疑人、被告人在取保候审期间未违反前款规定的,取保候审结束的时候,应当退还保证金。

第五十七条 被监视居住的犯罪嫌疑人、被告人应当遵守以下规定:
(一)未经执行机关批准不得离开住处,无固定住处的,未经批准不得离开指定的居所;
(二)未经执行机关批准不得会见他人;
(三)在传讯的时候及时到案;
(四)不得以任何形式干扰证人作证;
(五)不得毁灭、伪造证据或者串供。

  被监视居住的犯罪嫌疑人、被告人违反前款规定,情节严重的,予以逮捕。

第五十八条 人民法院、人民检察院和公安机关对犯罪嫌疑人、被告人取保候审最长不得超过十二个月,监视居住最长不得超过六个月。在取保候审、监视居住期间,不得中断对案件的侦查、起诉和审理。对于发现不应当追究刑事责任或者取保候审、监视居住期限届满的,应当及时解除
取保候审、监视居住。解除取保候审、监视居住,应当及时通知被取保候审、监视居住人和有关单位。

第五十九条 逮捕犯罪嫌疑人、被告人,必须经过人民检察院批准或者人民法院决定,由公安机关执行。

第六十条 对有证据证明有犯罪事实,可能判处徒刑以上刑罚的犯罪嫌疑人、被告人,采取取保候审、监视居住等方法,尚不足以防止发生社会危险性,而有逮捕必要的,应即依法逮捕。对应当逮捕的犯罪嫌疑人、被告人,如果患有严重疾病,或者是正在怀孕、哺乳自己婴儿的妇女,可以采取取保候审或者监视居住的办法。

第六十一条 公安机关对于现行犯或者重大嫌疑分子,如果有下列情形之一
的,可以先行拘留:
(一)正在预备犯罪、实行犯罪或者在犯罪后即时被发觉的;
(二)被害人或者在场亲眼看见的指认他犯罪的;
(三)在身边或者住处发现有犯罪证据的;
(四)犯罪后企图自杀、逃跑或者在逃的;
(五)有毁灭、伪造证据或者串供可能的;
(六)不讲真实姓名、住址,身份不明的;
(七)有流窜作案、多次作案、结伙作案重大嫌疑的。

第六十二条 公安机关在异地执行拘留、逮捕的时候,应当通知被拘留、逮捕人所在地的公安机关,被拘留、逮捕人所在地的公安机关应当予以配合。

第六十三条 对于有下列情形的人,任何公民都可以立即扭送公安机关、人
民检察院或者人民法院处理:
(一)正在实行犯罪或者在犯罪后即时被发觉的;
(二)通缉在案的;
(三)越狱逃跑的;
(四)正在被追捕的。

第六十四条 公安机关拘留人的时候,必须出示拘留证。拘留后,除有碍侦查或者无法通知的情形以外,应当把拘留的原因和羁押的处所,在二十四小时以内,通知被拘留人的家属或者他的所在单位。

第六十五条 公安机关对于被拘留的人,应当在拘留后的二十四小时以内进行讯问。在发现不应当拘留的时候,必须立即释放,发给释放证明。对需要逮捕而证据还不充足的,可以取保候审或者监视居住。

第六十六条 公安机关要求逮捕犯罪嫌疑人的时候,应当写出提请批准逮捕书,连同案卷材料、证据,一并移送同级人民检察院审查批准。必要的时候,人民检察院可以派人参加公安机关对于重大案件的讨论。

第六十七条 人民检察院审查批准逮捕犯罪嫌疑人由检察长决定。重大案件应当提交检察委员会讨论决定。

第六十八条 人民检察院对于公安机关提请批准逮捕的案件进行审查后,应当根据情况分别作出批准逮捕或者不批准逮捕的决定。对于批准逮捕的决定,公安机关应当立即执行,并且将执行情况及时通知人民检察院。对于不批准逮捕的,人民检察院应当说明理由,需要补充侦查的,应当同时通知公安机关。

第六十九条 公安机关对被拘留的人,认为需要逮捕的,应当在拘留后的三日以内,提请人民检察院审查批准。在特殊情况下,提请审查批准的时间可以延长一日至四日。对于流窜作案、多次作案、结伙作案的重大嫌疑分子,提请审查批准的时间可以延长至三十日。人民检察院应当自接到公安机关提请批准逮捕书后的七日以内,作出批准逮捕或者不批准逮捕的决定。人民检察院不批准逮捕的,公安机关应当在接到通知后立即释放,并且将执行情况及时通知人民检察院。对于需要继续侦查,并且符合取保候审、监视居住条件的,依法取保候审或者监视居住。

第七十条 公安机关对人民检察院不批准逮捕的决定,认为有错误的时候,可以要求复议,但是必须将被拘留的人立即释放。如果意见不被接受,可以向上一级人民检察院提请复核。上级人民检察院应当立即复核,作出是否变更的决定,通知下级人民检察院和公安机关执行。

第七十一条 公安机关逮捕人的时候,必须出示逮捕证。逮捕后,除有碍侦查或者无法通知的情形以外,应当把逮捕的原因和羁押的处所,在二十四小时以内通知被逮捕人的家属或者他的所在单位。

第七十二条 人民法院、人民检察院对于各自决定逮捕的人,公安机关对于经人民检察院批准逮捕的人,都必须在逮捕后的二十四小时以内进行讯问。在发现不应当逮捕的时候,必须立即释放,发给释放证明。

第七十三条 人民法院、人民检察院和公安机关如果发现对犯罪嫌疑人、被告人采取强制措施不当的,应当及时撤销或者变更。公安机关释放被逮捕的人或者变更逮捕措施的,应当通知原批准的人民检察院。

第七十四条 犯罪嫌疑人、被告人被羁押的案件,不能在本法规定的侦查羁押、审查起诉、一审、二审期限内办结,需要继续查证、审理的,对犯罪嫌疑人、被告人可以取保候审或者监视居住。

第七十五条 犯罪嫌疑人、被告人及其法定代理人、近亲属或者犯罪嫌疑人、被告人委托的律师及其他辩护人对于人民法院、人民检察院或者公安机关采取强制措施超过法定期限的,有权要求解除强制措施。人民法院、人民检察院或者公安机关对于被采取强制措施超过法定期限的犯罪嫌疑人、被告人应当予以释放、解除取保候审、监视居住或者依法变更强制措施。

第七十六条 人民检察院在审查批准逮捕工作中,如果发现公安机关的侦查活动有违法情况,应当通知公安机关予以纠正,公安机关应当将纠正情况通知人民检察院。


第七章 附带民事诉讼

第七十七条 被害人由于被告人的犯罪行为而遭受物质损失的,在刑事诉讼
过程中,有权提起附带民事诉讼。如果是国家财产、集体财产遭受损失的,人民检察院在提起公诉的时候,可以提起附带民事诉讼。人民法院在必要的时候,可以查封或者扣押被告人的财产。

第七十八条 附带民事诉讼应当同刑事案件一并审判,只有为了防止刑事案件审判的过分迟延,才可以在刑事案件审判后,由同一审判组织继续审理附带民事诉讼。


第八章 期间、送达

第七十九条 期间以时、日、月计算。期间开始的时和日不算在期间以内。法定期间不包括路途上的时间。上诉状或者其他文件在期满前已经交邮的,不算过期。

第八十条 当事人由于不能抗拒的原因或者其他正当理由而耽误期限的,在障碍消除后五日以内,可以申请继续进行应当在期满以前完成的诉讼活动。前款申请是否准许,由人民法院裁定。

第八十一条 送达传票、通知书和其他诉讼文件应当交给收件人本人;如果本人不在,可以交给他的成年家属或者所在单位的负责人员代收。收件人本人或者代收人拒绝接收或者拒绝签名、盖章的时候,送达人可以邀请他的邻居或者其他见证人到场,说明情况,把文件留在他的住处,在送达证上记明拒绝的事由、送达的日期,由送达人签名,即认为已经送达。


第九章 其他规定

第八十二条 本法下列用语的含意是:
(一)“侦查”是指公安机关、人民检察院在办理案件过程中,依照法律进行的专门调查工作和有关的强制性措施;
(二)“当事人”是指被害人、自诉人、犯罪嫌疑人、被告人、附带民事诉讼的原告人和被告人;
(三)“法定代理人”是指被代理人的父母、养父母、监护人和负有保护责任的机关、团体的代表;
(四)“诉讼参与人”是指当事人、法定代理人、诉讼代理人、辩护人、证人、鉴定人和翻译人员。
(五)“诉讼代理人”是指公诉案件的被害人及其法定代理人或者近亲属、自诉案件的自诉人及其法定代理人委托代为参加诉讼的人和附带民事诉讼的当事人及其法定代理人委托代为参加诉讼的人;
(六)“近亲属”是指夫、妻、父、母、子、女、同胞兄弟姊妹。

第二编 立案、侦查和提起公诉


第一章 立案

第八十三条 公安机关或者人民检察院发现犯罪事实或者犯罪嫌疑人,应当按照管辖范围,立案侦查。
第八十四条 任何单位和个人发现有犯罪事实或者犯罪嫌疑人,有权利也有义务向公安机关、人民检察院或者人民法院报案或者举报。
被害人对侵犯其人身、财产权利的犯罪事实或者犯罪嫌疑人,有权向公安机关、人民检察院或者人民法院报案或者控告。
公安机关、人民检察院或者人民法院对于报案、控告、举报,都应当接受。对于不属于自己管辖的,应当移送主管机关处理,并且通知报案人、控告人、举报人;对于不属于自己管辖而又必须采取紧急措施的,应当先采取紧急措施,然后移送主管机关。犯罪人向公安机关、人民检察院或者人民法院自首的,适用第三款规定。

第八十五条 报案、控告、举报可以用书面或者口头提出。接受口头报案、控告、举报的工作人员,应当写成笔录,经宣读无误后,由报案人、控告人、举报人签名或者盖章。
接受控告、举报的工作人员,应当向控告人、举报人说明诬告应负的法律责任。但是,只要不是捏造事实,伪造证据,即使控告、举报的事实有出入,甚至是错告的,也要和诬告严格加以区别。公安机关、人民检察院或者人民法院应当保障报案人、控告人、举报人及其近亲属的安全。报案人、控告人、举报人如果不愿公开自己的姓名和报案、控告、举报的行为,应当为他保守秘密。

第八十六条 人民法院、人民检察院或者公安机关对于报案、控告、举报和自首的材料,应当按照管辖范围,迅速进行审查,认为有犯罪事实需要追究刑事责任的时候,应当立案;认为没有犯罪事实,或者犯罪事实显著轻微,不需要追究刑事责任的时候,不予立案,并且将不立案的原因通知控告人。控告人如果不服,可以申请复议。

第八十七条 人民检察院认为公安机关对应当立案侦查的案件而不立案侦查的,或者被害人认为公安机关对应当立案侦查的案件而不立案侦查,向人民检察院提出的,人民检察院应当要求公安机关说明不立案的理由。人民检察院认为公安机关不立案理由不能成立的,应当通知公安机关立案,公安机关接到通知后应当立案。

第八十八条 对于自诉案件,被害人有权向人民法院直接起诉。被害人死亡或者丧失行为能力的,被害人的法定代理人、近亲属有权向人民法院起诉。人民法院应当依法受理。


第二章 侦查

第一节 一般规定

第八十九条 公安机关对已经立案的刑事案件,应当进行侦查,收集、调取犯罪嫌疑人有罪或者无罪、罪轻或者罪重的证据材料。对现行犯或者重大嫌疑分子可以依法先行拘留,对符合逮捕条件的犯罪嫌疑人,应当依法逮捕。

第九十条 公安机关经过侦查,对有证据证明有犯罪事实的案件,应当进行预审,对收集、调取的证据材料予以核实。

第二节 讯问犯罪嫌疑人

第九十一条 讯问犯罪嫌疑人必须由人民检察院或者公安机关的侦查人员负责进行。讯问的时候,侦查人员不得少于二人。

第九十二条 对于不需要逮捕、拘留的犯罪嫌疑人,可以传唤到犯罪嫌疑人所在市、县内的指定地点或者到他的住处进行讯问,但是应当出示人民检察院或者公安机关的证明文件。传唤、拘传持续的时间最长不得超过十二小时。不得以连续传唤、拘传的形式变相拘禁犯罪嫌疑人。

第九十三条 侦查人员在讯问犯罪嫌疑人的时候,应当首先讯问犯罪嫌疑人是否有犯罪行为,让他陈述有罪的情节或者无罪的辩解,然后向他提出问题。犯罪嫌疑人对侦查人员的提问,应当如实回答。但是对与本案无关的问题,有拒绝回答的权利。

第九十四条 讯问聋、哑的犯罪嫌疑人,应当有通晓聋、哑手势的人参加,并且将这种情况记明笔录。

第九十五条 讯问笔录应当交犯罪嫌疑人核对,对于没有阅读能力的,应当向他宣读。如果记载有遗漏或者差错,犯罪嫌疑人可以提出补充或者改正。犯罪嫌疑人承认笔录没有错误后,应当签名或者盖章。侦查人员也应当在笔录上签名。犯罪嫌疑人请求自行书写供述的,应当准许。必要的时候,侦查人员也可以要犯罪嫌疑人亲笔书写供词。

第九十六条 犯罪嫌疑人在被侦查机关第一次讯问后或者采取强制措施之日起,可以聘请律师为其提供法律咨询、代理申诉、控告。犯罪嫌疑人被逮捕的,聘请的律师可以为其申请取保候审。涉及国家秘密的案件,犯罪嫌疑人聘请律师,应当经侦查机关批准。

受委托的律师有权向侦查机关了解犯罪嫌疑人涉嫌的罪名,可以会见在押的犯罪嫌疑人,向犯罪嫌疑人了解有关案件情况。律师会见在押的犯罪嫌疑人,侦查机关根据案件情况和需要可以派员在场。涉及国家秘密的案件,律师会见在押的犯罪嫌疑人,应当经侦查机关批准。

第三节 询问证人

第九十七条 侦查人员询问证人,可以到证人的所在单位或者住处进行,但是必须出示人民检察院或者公安机关的证明文件。在必要的时候,也可以通知证人到人民检察院或者公安机关提供证言。
询问证人应当个别进行。

第九十八条 询问证人,应当告知他应当如实地提供证据、证言和有意作伪证或者隐匿罪证要负的法律责任。询问不满十八岁的证人,可以通知其法定代理人到场。

第九十九条 本法第九十五条的规定,也适用于询问证人。

第一百条 询问被害人,适用本节各条规定。

第四节 勘验、检查

第一百零一条 侦查人员对于与犯罪有关的场所、物品、人身、尸体应当进行勘验或者检查。在必要的时候,可以指派或者聘请具有专门知识的人,在侦查人员的主持下进行勘验、检查。

第一百零二条 任何单位和个人,都有义务保护犯罪现场,并且立即通知公安机关派员勘验。

第一百零三条 侦查人员执行勘验、检查,必须持有人民检察院或者公安机关的证明文件。

第一百零四条 对于死因不明的尸体,公安机关有权决定解剖,并且通知死者家属到场。

第一百零五条 为了确定被害人、犯罪嫌疑人的某些特征、伤害情况或者生理状态,可以对人身进行检查。犯罪嫌疑人如果拒绝检查,侦查人员认为必要的时候,可以强制检查。检查妇女的身体,应当由女工作人员或者医师进行。

第一百零六条 勘验、检查的情况应当写成笔录,由参加勘验、检查的人和见证人签名或者盖章。

第一百零七条 人民检察院审查案件的时候,对公安机关的勘验、检查,认为需要复验、复查时,可以要求公安机关复验、复查,并且可以派检察人员参加。

第一百零八条 为了查明案情,在必要的时候,经公安局长批准,可以进行侦查实验。

侦查实验,禁止一切足以造成危险、侮辱人格或者有伤风化的行为。

第五节 搜查

第一百零九条 为了收集犯罪证据、查获犯罪人,侦查人员可以对犯罪嫌疑人以及可能隐藏罪犯或者犯罪证据的人的身体、物品、住处和其他有关的地方进行搜查。

第一百一十条 任何单位和个人,有义务按照人民检察院和公安机关的要求,交出可以证明犯罪嫌疑人有罪或者无罪的物证、书证、视听资料。

第一百一十一条 进行搜查,必须向被搜查人出示搜查证。

在执行逮捕、拘留的时候,遇有紧急情况,不另用搜查证也可以进行搜查。

第一百一十二条 在搜查的时候,应当有被搜查人或者他的家属,邻居或者其他见证人在场。

搜查妇女的身体,应当由女工作人员进行。

第一百一十三条 搜查的情况应当写成笔录,由侦查人员和被搜查人或者他的家属,邻居或者其他见证人签名或者盖章。如果被搜查人或者他的家属在逃
或者拒绝签名、盖章,应当在笔录上注明。

第六节 扣押物证、书证

第一百一十四条 在勘验、搜查中发现的可用以证明犯罪嫌疑人有罪或者无罪的各种物品和文件,应当扣押;与案件无关的物品、文件,不得扣押。

对于扣押的物品、文件,要妥善保管或者封存,不得使用或者损毁。

第一百一十五条 对于扣押的物品和文件,应当会同在场见证人和被扣押物品持有人查点清楚,当场开列清单一式二份,由侦查人员、见证人和持有人签名或者盖章,一份交给持有人,另一份附卷备查。

第一百一十六条 侦查人员认为需要扣押犯罪嫌疑人的邮件、电报的时候,经公安机关或者人民检察院批准,即可通知邮电机关将有关的邮件、电报检交扣押。

不需要继续扣押的时候,应即通知邮电机关。

第一百一十七条 人民检察院、公安机关根据侦查犯罪的需要,可以依照规定查询、冻结犯罪嫌疑人的存款、汇款。

犯罪嫌疑人的存款、汇款已被冻结的,不得重复冻结。

第一百一十八条 对于扣押的物品、文件、邮件、电报或者冻结的存款、汇款,经查明确实与案件无关的,应当在三日以内解除扣押、冻结,退还原主或者原邮电机关。

第七节 鉴定

第一百一十九条 为了查明案情,需要解决案件中某些专门性问题的时候,应当指派、聘请有专门知识的人进行鉴定。

第一百二十条 鉴定人进行鉴定后,应当写出鉴定结论,并且签名。

对人身伤害的医学鉴定有争议需要重新鉴定或者对精神病的医学鉴定,由省级人民政府指定的医院进行。鉴定人进行鉴定后,应当写出鉴定结论,并且由鉴定人签名,医院加盖公章。

鉴定人故意作虚假鉴定的,应当承担法律责任。

第一百二十一条 侦查机关应当将用作证据的鉴定结论告知犯罪嫌疑人、被害人。如果犯罪嫌疑人、被害人提出申请,可以补充鉴定或者重新鉴定。

第一百二十二条 对犯罪嫌疑人作精神病鉴定的期间不计入办案期限。

第八节 通缉

第一百二十三条 应当逮捕的犯罪嫌疑人如果在逃,公安机关可以发布通缉令,采取有效措施,追捕归案。

各级公安机关在自己管辖的地区以内,可以直接发布通缉令;超出自己管辖的地区,应当报请有权决定的上级机关发布。

第九节 侦查终结

第一百二十四条 对犯罪嫌疑人逮捕后的侦查羁押期限不得超过二个月。案情复杂、期限届满不能终结的案件,可以经上一级人民检察院批准延长一个月。

第一百二十五条 因为特殊原因,在较长时间内不宜交付审判的特别重大复杂的案件,由最高人民检察院报请全国人民代表大会常务委员会批准延期审理。

第一百二十六条 下列案件在本法第一百二十四条规定的期限届满不能侦查终结的,经省、自治区、直辖市人民检察院批准或者决定,可以延长二个月:
(一)交通十分不便的边远地区的重大复杂案件;
(二)重大的犯罪集团案件;
(三)流窜作案的重大复杂案件;
(四)犯罪涉及面广,取证困难的重大复杂案件。

第一百二十七条 对犯罪嫌疑人可能判处十年有期徒刑以上刑罚,依照本法第一百二十六条规定延长期限届满,仍不能侦查终结的,经省、自治区、直辖市人民检察院批准或者决定,可以再延长二个月。

第一百二十八条 在侦查期间,发现犯罪嫌疑人另有重要罪行的,自发现之日起依照本法第一百二十四条的规定重新计算侦查羁押期限。犯罪嫌疑人不讲真实姓名、住址,身份不明的,侦查羁押期限自查清其身份之日起计算,但是不得停止对其犯罪行为的侦查取证。对于犯罪事实清楚,证据确实、充分的,也可以按其自报的姓名移送人民检察院审查起诉。

第一百二十九条 公安机关侦查终结的案件,应当做到犯罪事实清楚,证据确实、充分,并且写出起诉意见书,连同案卷材料、证据一并移送同级人民检察院审查决定。

第一百三十条 在侦查过程中,发现不应对犯罪嫌疑人追究刑事责任的,应当撤销案件;犯罪嫌疑人已被逮捕的,应当立即释放,发给释放证明,并且通知原批准逮捕的人民检察院。

第十节 人民检察院对直接受理的案件的侦查

第一百三十一条 人民检察院对直接受理的案件的侦查适用本章规定。

第一百三十二条 人民检察院直接受理的案件中符合本法第六十条、第六十一条第四项、第五项规定情形,需要逮捕、拘留犯罪嫌疑人的,由人民检察院作出决定,由公安机关执行。

第一百三十三条 人民检察院对直接受理的案件中被拘留的人,应当在拘留后的二十四小时以内进行讯问。在发现不应当拘留的时候,必须立即释放,发给释放证明。对需要逮捕而证据还不充足的,可以取保候审或者监视居住。

第一百三十四条 人民检察院对直接受理的案件中被拘留的人,认为需要逮捕的,应当在十日以内作出决定。在特殊情况下,决定逮捕的时间可以延长一日至四日。对不需要逮捕的,应当立即释放;对于需要继续侦查,并且符合取保候审、监视居住条件的,依法取保候审或者监视居住。

第一百三十五条 人民检察院侦查终结的案件,应当作出提起公诉、不起诉或者撤销案件的决定。


第三章 提起公诉

第一百三十六条 凡需要提起公诉的案件,一律由人民检察院审查决定。

第一百三十七条 人民检察院审查案件的时候,必须查明:
(一)犯罪事实、情节是否清楚,证据是否确实、充分,犯罪性质和罪名的认定是否正确;
(二)有无遗漏罪行和其他应当追究刑事责任的人;
(三)是否属于不应追究刑事责任的;
(四)有无附带民事诉讼;
(五)侦查活动是否合法。

第一百三十八条 人民检察院对于公安机关移送起诉的案件,应当在一个月以内作出决定,重大、复杂的案件,可以延长半个月。

人民检察院审查起诉的案件,改变管辖的,从改变后的人民检察院收到案件之日起计算审查起诉期限。

第一百三十九条 人民检察院审查案件,应当讯问犯罪嫌疑人,听取被害人和犯罪嫌疑人、被害人委托的人的意见。

第一百四十条 人民检察院审查案件,可以要求公安机关提供法庭审判所必需的证据材料。
人民检察院审查案件,对于需要补充侦查的,可以退回公安机关补充侦查,也可以自行侦查。

对于补充侦查的案件,应当在一个月以内补充侦查完毕。补充侦查以二次为限。补充侦查完毕移送人民检察院后,人民检察院重新计算审查起诉期限。

对于补充侦查的案件,人民检察院仍然认为证据不足,不符合起诉条件的,可以作出不起诉的决定。

第一百四十一条 人民检察院认为犯罪嫌疑人的犯罪事实已经查清,证据确实、充分,依法应当追究刑事责任的,应当作出起诉决定,按照审判管辖的规定,向人民法院提起公诉。

第一百四十二条 犯罪嫌疑人有本法第十五条规定的情形之一的,人民检察院应当作出不起诉决定。
对于犯罪情节轻微,依照刑法规定不需要判处刑罚或者免除刑罚的,人民检察院可以作出不起诉决定。
人民检察院决定不起诉的案件,应当同时对侦查中扣押、冻结的财物解除扣押、冻结。对被不起诉人需要给予行政处罚、行政处分或者需要没收其违法所得的,人民检察院应当提出检察意见,移送有关主管机关处理。有关主管机关应当将处理结果及时通知人民检察院。

第一百四十三条 不起诉的决定,应当公开宣布,并且将不起诉决定书送达被不起诉人和他的所在单位。如果被不起诉人在押,应当立即释放。

第一百四十四条 对于公安机关移送起诉的案件,人民检察院决定不起诉的,应当将不起诉决定书送达公安机关。公安机关认为不起诉的决定有错误的时候,可以要求复议,如果意见不被接受,可以向上一级人民检察院提请复核。

第一百四十五条 对于有被害人的案件,决定不起诉的,人民检察院应当将不起诉决定书送达被害人。被害人如果不服,可以自收到决定书后七日以内向
上一级人民检察院申诉,请求提起公诉。人民检察院应当将复查决定告知被害人。对人民检察院维持不起诉决定的,被害人可以向人民法院起诉。被害人也可以不经申诉,直接向人民法院起诉。人民法院受理案件后,人民检察院应当将有关案件材料移送人民法院。

第一百四十六条 对于人民检察院依照本法第一百四十二条第二款规定作出的不起诉决定,被不起诉人如果不服,可以自收到决定书后七日以内向人民检察院申诉。人民检察院应当作出复查决定,通知被不起诉的人,同时抄送公安机关。


第三编 审判


第一章 审判组织

第一百四十七条 基层人民法院、中级人民法院审判第一审案件,应当由审判员三人或者由审判员和人民陪审员共三人组成合议庭进行,但是基层人民法院适用简易程序的案件可以由审判员一人独任审判。

高级人民法院、最高人民法院审判第一审案件,应当由审判员三人至七人或者由审判员和人民陪审员共三人至七人组成合议庭进行。

人民陪审员在人民法院执行职务,同审判员有同等的权利。

人民法院审判上诉和抗诉案件,由审判员三人至五人组成合议庭进行。

合议庭的成员人数应当是单数。

合议庭由院长或者庭长指定审判员一人担任审判长。院长或者庭长参加审判案件的时候,自己担任审判长。

第一百四十八条 合议庭进行评议的时候,如果意见分歧,应当按多数人的意见作出决定,但是少数人的意见应当写入笔录。评议笔录由合议庭的组成人员签名。

第一百四十九条 合议庭开庭审理并且评议后,应当作出判决。对于疑难、复杂、重大的案件,合议庭认为难以作出决定的,由合议庭提请院长决定提交审判委员会讨论决定。审判委员会的决定,合议庭应当执行。


第二章 第一审程序

第一节 公诉案件

第一百五十条 人民法院对提起公诉的案件进行审查后,对于起诉书中有明确的指控犯罪事实并且附有证据目录、证人名单和主要证据复印件或者照片的,应当决定开庭审判。

第一百五十一条 人民法院决定开庭审判后,应当进行下列工作:

(一)确定合议庭的组成人员;
(二)将人民检察院的起诉书副本至迟在开庭十日以前送达被告人。对于
被告人未委托辩护人的,告知被告人可以委托辩护人,或者在必要的时候指定
承担法律授助义务的律师为其提供辩护;
(三)将开庭的时间、地点在开庭三日以前通知人民检察院;
(四)传唤当事人,通知辩护人、诉讼代理人、证人、鉴定人和翻译人员,
传票和通知书至迟在开庭三日以前送达;
(五)公开审判的案件,在开庭三日以前先期公布案由、被告人姓名、开
庭时间和地点。

上述活动情形应当写入笔录,由审判人员和书记员签名。

第一百五十二条 人民法院审判第一审案件应当公开进行。但是有关国家秘密或者个人隐私的案件,不公开审理。

十四岁以上不满十六岁未成年人犯罪的案件,一律不公开审理。十六岁以上不满十八岁未成年人犯罪的案件,一般也不公开审理。

对于不公开审理的案件,应当当庭宣布不公开审理的理由。

第一百五十三条 人民法院审判公诉案件,人民检察院应当派员出席法庭支持公诉,但是依照本法第一百七十五条的规定适用简易程序的,人民检察院可以不派员出席法庭。

第一百五十四条 开庭的时候,审判长查明当事人是否到庭,宣布案由;宣布合议庭的组成人员、书记员、公诉人、辩护人、诉讼代理人、鉴定人和翻译人员的名单;告知当事人有权对合议庭组成人员、书记员、公诉人、鉴定人和翻译人员申请回避;告知被告人享有辩护权利。

第一百五十五条 公诉人在法庭上宣读起诉书后,被告人、被害人可以就起诉书指控的犯罪进行陈述,公诉人可以讯问被告人。

被害人、附带民事诉讼的原告人和辩护人、诉讼代理人,经审判长许可,可以向被告人发问。

审判人员可以讯问被告人。

第一百五十六条 证人作证,审判人员应当告知他要如实地提供证言和有意作伪证或者隐匿罪证要负的法律责任。公诉人、当事人和辩护人、诉讼代理人经审判长许可,可以对证人、鉴定人发问。审判长认为发问的内容与案件无关的时候,应当制止。

审判人员可以询问证人、鉴定人。

第一百五十七条 公诉人、辩护人应当向法庭出示物证,让当事人辨认,对未到庭的证人的证言笔录、鉴定人的鉴定结论、勘验笔录和其他作为证据的文书,应当当庭宣读。审判人员应当听取公诉人、当事人和辩护人、诉讼代理人的意见。

第一百五十八条 法庭审理过程中,合议庭对证据有疑问的,可以宣布休庭,对证据进行调查核实。

人民法院调查核实证据,可以进行勘验、检查、扣押、鉴定和查询、冻结。

第一百五十九条 法庭审理过程中,当事人和辩护人、诉讼代理人有权申请通知新的证人到庭,调取新的物证,申请重新鉴定或者勘验。

法庭对于上述申请,应当作出是否同意的决定。

第一百六十条 经审判长许可,公诉人、当事人和辩护人、诉讼代理人可以对证据和案件情况发表意见并且可以互相辩论。审判长在宣布辩论终结后,被告人有最后陈述的权利。

第一百六十一条 在法庭审判过程中,如果诉讼参与人或者旁听人员违反法庭秩序,审判长应当警告制止。对不听制止的,可以强行带出法庭;情节严重的,处以一千元以下的罚款或者十五日以下的拘留。罚款、拘留必须经院长批准。被处罚人对罚款、拘留的决定不服的,可以向上一级人民法院申请复议。复议期间不停止执行。

对聚众哄闹、冲击法庭或者侮辱、诽谤、威胁、殴打司法工作人员或者诉讼参与人,严重扰乱法庭秩序,构成犯罪的,依法追究刑事责任。

第一百六十二条 在被告人最后陈述后,审判长宣布休庭,合议庭进行评议,根据已经查明的事实、证据和有关的法律规定,分别作出以下判决:
(一)案件事实清楚,证据确实、充分,依据法律认定被告人有罪的,应
当作出有罪判决;
(二)依据法律认定被告人无罪的,应当作出无罪判决;
(三)证据不足,不能认定被告人有罪的,应当作出证据不足、指控的犯
罪不能成立的无罪判决。

第一百六十三条 宣告判决,一律公开进行。

当庭宣告判决的,应当在五日以内将判决书送达当事人和提起公诉的人民检察院;定期宣告判决的,应当在宣告后立即将判决书送达当事人和提起公诉的人民检察院。

第一百六十四条 判决书应当由合议庭的组成人员和书记员署名,并且写明上诉的期限和上诉的法院。

第一百六十五条 在法庭审判过程中,遇有下列情形之一,影响审判进行的,
可以延期审理:
(一)需要通知新的证人到庭,调取新的物证,重新鉴定或者勘验的;
(二)检察人员发现提起公诉的案件需要补充侦查,提出建议的;
(三)由于当事人申请回避而不能进行审判的。

第一百六十六条 依照本法第一百六十五条第二项的规定延期审理的案件,人民检察院应当在一个月以内补充侦查完毕。

第一百六十七条 法庭审判的全部活动,应当由书记员写成笔录,经审判长审阅后,由审判长和书记员签名。

法庭笔录中的证人证言部分,应当当庭宣读或者交给证人阅读。证人在承
认没有错误后,应当签名或者盖章。
法庭笔录应当交给当事人阅读或者向他宣读。当事人认为记载有遗漏或者差错的,可以请求补充或者改正。当事人承认没有错误后,应当签名或者盖章。

第一百六十八条 人民法院审理公诉案件,应当在受理后一个月以内宣判,至迟不得超过一个半月。有本法第一百二十六条规定情形之一的,经省、自治区、直辖市高级人民法院批准或者决定,可以再延长一个月。人民法院改变管辖的案件,从改变后的人民法院收到案件之日起计算审理期限。

人民检察院补充侦查的案件,补充侦查完毕移送人民法院后,人民法院重新计算审理期限。

第一百六十九条 人民检察院发现人民法院审理案件违反法律规定的诉讼程序,有权向人民法院提出纠正意见。

第二节 自诉案件

第一百七十条 自诉案件包括下列案件:
(一)告诉才处理的案件;
(二)被害人有证据证明的轻微刑事案件;
(三)被害人有证据证明对被告人侵犯自己人身、财产权利的行为应当依法追究刑事责任,而公安机关或者人民检察院不予追究被告人刑事责任的案件。

第一百七十一条 人民法院对于自诉案件进行审查后,按照下列情形分别处
理:
(一)犯罪事实清楚,有足够证据的案件,应当开庭审判;
(二)缺乏罪证的自诉案件,如果自诉人提不出补充证据,应当说服自诉
人撤回自诉,或者裁定驳回。

自诉人经两次依法传唤,无正当理由拒不到庭的,或者未经法庭许可中途
退庭的,按撤诉处理。法庭审理过程中,审判人员对证据有疑问,需要调查核实的,适用本法第
一百五十八条的规定。

第一百七十二条 人民法院对自诉案件,可以进行调解;自诉人在宣告判决前,可以同被告人自行和解或者撤回自诉。本法第一百七十条第三项规定的案件不适用调解。

第一百七十三条 自诉案件的被告人在诉讼过程中,可以对自诉人提起反诉。

反诉适用自诉的规定。

第三节 简易程序

第一百七十四条 人民法院对于下列案件,可以适用简易程序,由审判员一
人独任审判:
(一)对依法可能判处三年以下有期徒刑、拘役、管制、单处罚金的公诉
案件,事实清楚、证据充分,人民检察院建议或者同意适用简易程序的;
(二)告诉才处理的案件;
(三)被害人起诉的有证据证明的轻微刑事案件。

第一百七十五条 适用简易程序审理公诉案件,人民检察院可以不派员出席
法庭。被告人可以就起诉书指控的犯罪进行陈述和辩护。人民检察院派员出席
法庭的,经审判人员许可,被告人及其辩护人可以同公诉人互相辩论。

第一百七十六条 适用简易程序审理自诉案件,宣读起诉书后,经审判人员
许可,被告人及其辩护人可以同自诉人及其诉讼代理人互相辩论 。

第一百七十七条 适用简易程序审理案件,不受本章第一节关于讯问被告人、
询问证人、鉴定人、出示证据、法庭辩论程序规定的限制。但在判决宣告前应
当听取被告人的最后陈述意见。

第一百七十八条 适用简易程序审理案件,人民法院应当在受理后二十日以
内审结。

第一百七十九条 人民法院在审理过程中,发现不宜适用简易程序的,应当
按照本章第一节或者第二节的规定重新审理。


第三章 第二审程序

第一百八十条 被告人、自诉人和他们的法定代理人,不服地方各级人民法
院第一审的判决、裁定,有权用书状或者口头向上一级人民法院上诉。被告人
的辩护人和近亲属,经被告人同意,可以提出上诉。

附带民事诉讼的当事人和他们的法定代理人,可以对地方各级人民法院第
一审的判决、裁定中的附带民事诉讼部分,提出上诉。

对被告人的上诉权,不得以任何借口加以剥夺。

第一百八十一条 地方各级人民检察院认为本级人民法院第一审的判决、裁
定确有错误的时候,应当向上一级人民法院提出抗诉。

第一百八十二条 被害人及其法定代理人不服地方各级人民法院第一审的判
决的,自收到判决书后五日以内,有权请求人民检察院提出抗诉。人民检察院
自收到被害人及其法定代理人的请求后五日以内,应当作出是否抗诉的决定并
且答复请求人。

第一百八十三条 不服判决的上诉和抗诉的期限为十日,不服裁定的上诉和
抗诉的期限为五日,从接到判决书、裁定书的第二日起算。

第一百八十四条 被告人、自诉人、附带民事诉讼的原告人和被告人通过原
审人民法院提出上诉的,原审人民法院应当在三日以内将上诉状连同案卷、证
据移送上一级人民法院,同时将上诉状副本送交同级人民检察院和对方当事人。

被告人、自诉人、附带民事诉讼的原告人和被告人直接向第二审人民法院
提出上诉的,第二审人民法院应当在三日以内将上诉状交原审人民法院送交同
级人民检察院和对方当事人。

第一百八十五条 地方各级人民检察院对同级人民法院第一审判决、裁定的
抗诉,应当通过原审人民法院提出抗诉书,并且将抗诉书抄送上一级人民检察
院。原审人民法院应当将抗诉书连同案卷、证据移送上一级人民法院,并且将
抗诉书副本送交当事人。

上级人民检察院如果认为抗诉不当,可以向同级人民法院撤回抗诉,并且
通知下级人民检察院。

第一百八十六条 第二审人民法院应当就第一审判决认定的事实和适用法律
进行全面审查,不受上诉或者抗诉范围的限制。

共同犯罪的案件只有部分被告人上诉的,应当对全案进行审查,一并处理。

第一百八十七条 第二审人民法院对上诉案件,应当组成合议庭,开庭审理。

合议庭经过阅卷,讯问被告人、听取其他当事人、辩护人、诉讼代理人的
意见,对事实清楚的,可以不开庭审理。对人民检察院抗诉的案件,第二审人
民法院应当开庭审理。

第二审人民法院开庭审理上诉、抗诉案件,可以到案件发生地或者原审人
民法院所在地进行。

第一百八十八条 人民检察院提出抗诉的案件或者第二审人民法院开庭审理
的公诉案件,同级人民检察院都应当派员出庭。第二审人民法院必须在开庭十
日以前通知人民检察院查阅案卷。

第一百八十九条 第二审人民法院对不服第一审判决的上诉、抗诉案件,经
过审理后,应当按照下列情形分别处理:
(一)原判决认定事实和适用法律正确、量刑适当的,应当裁定驳回上诉
或者抗诉,维持原判;
(二)原判决认定事实没有错误,但适用法律有错误,或者量刑不当的,
应当改判;
(三)原判决事实不清楚或者证据不足的,可以在查清事实后改判;也可
以裁定撤销原判,发回原审人民法院重新审判。

第一百九十条 第二审人民法院审判被告人或者他的法定代理人、辩护人、
近亲属上诉的案件,不得加重被告人的刑罚。
人民检察院提出抗诉或者自诉人提出上诉的,不受前款规定的限制。

第一百九十一条 第二审人民法院发现第一审人民法院的审理有下列违反法
律规定的诉讼程序的情形之一的,应当裁定撤销原判,发回原审人民法院重新
审判:
(一)违反本法有关公开审判的规定的;
(二)违反回避制度的;
(三)剥夺或者限制了当事人的法定诉讼权利,可能影响公正审判的;
(四)审判组织的组成不合法的;
(五)其他违反法律规定的诉讼程序,可能影响公正审判的。

第一百九十二条 原审人民法院对于发回重新审判的案件,应当另行组成合
议庭,依照第一审程序进行审判。对于重新审判后的判决,依照本法第一百八
十条、第一百八十一条、第一百八十二条的规定可以上诉、抗诉。

第一百九十三条 第二审人民法院对不服第一审裁定的上诉或者抗诉,经过
审查后,应当参照本法第一百八十九条、第一百九十一条和第一百九十二条的
规定,分别情形用裁定驳回上诉、抗诉,或者撤销、变更原裁定。

第一百九十四条 第二审人民法院发回原审人民法院重新审判的案件,原审
人民法院从收到发回的案件之日起,重新计算审理期限。

第一百九十五条 第二审人民法院审判上诉或者抗诉案件的程序,除本章已
有规定的以外,参照第一审程序的规定进行。

第一百九十六条 第二审人民法院受理上诉、抗诉案件,应当在一个月以内
审结,至迟不得超过一个半月。有本法第一百二十六条规定情形之一的,经省、
自治区、直辖市高级人民法院批准或者是决定,可以再延长一个月,但是最高
人民法院受理的上诉、抗诉案件,由最高人民法院决定。

第一百九十七条 第二审的判决、裁定和最高人民法院的判决、裁定,都是
终审的判决、裁定。

第一百九十八条 公安机关、人民检察院和人民法院对于扣押、冻结犯罪嫌
疑人、被告人的财物及其孳息,应当妥善保管,以供核查。任何单位和个人不
得挪用或者自行处理。对被害人的合法财产,应当及时返还。对违禁品或者不
宜长期保存的物品,应当依照国家有关规定处理。

对作为证据使用的实物应当随案移送,对不宜移送的,应当将其清单、照
片或者其他证明文件随案移送。

人民法院作出的判决生效以后,对被扣押、冻结的赃款赃物及其孳息,除
依法返还被害人的以外,一律没收,上缴国库。

司法工作人员贪污、挪用或者私自处理被扣押、冻结的赃款赃物及其孳息
的,依法追究刑事责任;不构成犯罪的,给予处分。


第四章 死刑复核程序

第一百九十九条 死刑由最高人民法院核准。

第二百条 中级人民法院判处死刑的第一审案件,被告人不上诉的,应当由
高级人民法院复核后,报请最高人民法院核准。高级人民法院不同意判处死刑
的,可以提审或者发回重新审判。

高级人民法院判处死刑的第一审案件被告人不上诉的,和判处死刑的第二
审案件,都应当报请最高人民法院核准。

第二百零一条 中级人民法院判处死刑缓期二年执行的案件,由高级人民法
院核准。

第二百零二条 最高人民法院复核死刑案件,高级人民法院复核死刑缓期执
行的案件,应当由审判员三人组成合议庭进行。


第五章 审判监督程序

第二百零三条 当事人及其法定代理人、近亲属,对已经发生法律效力的判
决、裁定,可以向人民法院或者人民检察院提出申诉,但是不能停止判决、裁
定的执行。

第二百零四条 当事人及其法定代理人、近亲属的申诉符合下列情形之一的,
人民法院应当重新审判:
(一)有新的证据证明原判决、裁定认定的事实确有错误的;
(二)据以定罪量刑的证据不确实、不充分或者证明案件事实的主要证据
之间存在矛盾的;
(三)原判决、裁定适用法律确有错误的;
(四)审判人员在审理该案件的时候,有贪污受贿,徇私舞弊,枉法裁判
行为的。

第二百零五条 各级人民法院院长对本院已经发生法律效力的判决和裁定,
如果发现在认定事实上或者在适用法律上确有错误,必须提交审判委员会处理。

最高人民法院对各级人民法院已经发生法律效力的判决和裁定,上级人民
法院对下级人民法院已经发生法律效力的判决和裁定,如果发现确有错误,有
权提审或者指令下级人民法院再审。

最高人民检察院对各级人民法院已经发生法律效力的判决和裁定,上级人
民检察院对下级人民法院已经发生法律效力的判决和裁定,如果发现确有错误,
有权按照审判监督程序向同级人民法院提出抗诉。

人民检察院抗诉的案件,接受抗诉的人民法院应当组成合议庭重新审理,
对于原判决事实不清楚或者证据不足的,可以指令下级人民法院再审。

第二百零六条 人民法院按照审判监督程序重新审判的案件,应当另行组成
合议庭进行。如果原来是第一审案件,应当依照第一审程序进行审判,所作的
判决、裁定,可以上诉、抗诉;如果原来是第二审案件,或者是上级人民法院
提审的案件,应当依照第二审程序进行审判,所作的判决、裁定,是终审的判
决、裁定。

第二百零七条 人民法院按照审判监督程序重新审判的案件,应当在作出提
审、再审决定之日起三个月以内审结,需要延长期限的,不得超过六个月。

接受抗诉的人民法院按照审判监督程序审判抗诉的案件,审理期限适用前
款规定;对需要指令下级人民法院再审的,应当自接受抗诉之日起一个月以内
作出决定,下级人民法院审理案件的期限适用前款规定。



第四编 执行


第二百零八条 判决和裁定在发生法律效力后执行。

下列判决和裁定是发生法律效力的判决和裁定:

(一)已过法定期限没有上诉、抗诉的判决和裁定;
(二)终审的判决和裁定;
(三)最高人民法院核准的死刑的判决和高级人民法院核准的死刑缓期二
年执行的判决。

第二百零九条 第一审人民法院判决被告人无罪、免除刑事处罚的,如果被
告人在押,在宣判后应当立即释放。

二百一十条 最高人民法院判处和核准的死刑立即执行的判决,应当由最高
人民法院院长签发执行死刑的命令。

被判处死刑缓期二年执行的罪犯,在死刑缓期执行期间,如果没有故意犯
罪,死刑缓期执行期满,应当予以减刑,由执行机关提出书面意见,报请高级
人民法院裁定;如果故意犯罪,查证属实,应当执行死刑,由高级人民法院报
请最高人民法院核准。

第二百一十一条 下级人民法院接到最高人民法院执行死刑的命令后,应当
在七日以内交付执行。但是发现有下列情形之一的,应当停止执行,并且立即
报告最高人民法院,由最高人民法院作出裁定:
(一)在执行前发现判决可能有错误的;
(二)在执行前罪犯揭发重大犯罪事实或者有其他重大立功表现,可能需
要改判的;
(三)罪犯正在怀孕。

前款第一项、第二项停止执行的原因消失后,必须报请最高人民法院院长
再签发执行死刑的命令才能执行;由于前款第三项原因停止执行的,应当报请
最高人民法院依法改判。

第二百一十二条 人民法院在交付执行死刑前,应当通知同级人民检察院派
员临场监督。

死刑采用枪决或者注射等方法执行。

死刑可以在刑场或者指定的羁押场所内执行。

指挥执行的审判人员,对罪犯应当验明正身,讯问有无遗言、信札,然后
交付执行人员执行死刑。在执行前,如果发现可能有错误,应当暂停执行,报
请最高人民法院裁定。

执行死刑应当公布,不应示众。

执行死刑后,在场书记员应当写成笔录。交付执行的人民法院应当将执行
死刑情况报告最高人民法院。

执行死刑后,交付执行的人民法院应当通知罪犯家属。

第二百一十三条 罪犯被交付执行刑罚的时候,应当由交付执行的人民法院
将有关的法律文书送达监狱或者其他执行机关。

对于被判处死刑缓期二年执行、无期徒刑、有期徒刑的罪犯,由公安机关
依法将该罪犯送交监狱执行刑罚。对于被判处有期徒刑的罪犯,在被交付执行
刑罚前,剩余刑期在一年以下的,由看守所代为执行。对于被判处拘役的罪犯,
由公安机关执行。

对未成年犯应当在未成年犯管教所执行刑罚。

执行机关应当将罪犯及时收押,并且通知罪犯家属。

判处有期徒刑、拘役的罪犯,执行期满,应当由执行机关发给释放证明书。

第二百一十四条 对于被判处有期徒刑或者拘役的罪犯,有下列情形之一的,
可以暂予监外执行:
(一)有严重疾病需要保外就医的;
(二)怀孕或者正在哺乳自己婴儿的妇女。

对于适用保外就医可能有社会危险性的罪犯,或者自伤自残的罪犯,不得
保外就医。

对于罪犯确有严重疾病,必须保外就医的,由省级人民政府指定的医院开
具证明文件,依照法律规定的程序审批。发现被保外就医的罪犯不符合保外就
医条件的,或者严重违反有关保外就医的规定的,应当及时收监。

对于被判处有期徒刑、拘役,生活不能自理,适用暂予监外执行不致危害
社会的罪犯,可以暂予监外执行。

对于暂予监外执行的罪犯,由居住地公安机关执行,执行机关应当对其严
格管理监督,基层组织或者罪犯的原所在单位协助进行监督。

第二百一十五条 批准暂予监外执行的机关应当将批准的决定抄送人民检察
院。人民检察院认为暂予监外执行不当的,应当自接到通知之日起一个月以内
将书面意见送交批准暂予监外执行的机关,批准暂予监外执行的机关接到人民
检察院的书面意见后,应当立即对该决定进行重新核查。

第二百一十六条 暂予监外执行的情形消失后,罪犯刑期未满的,应当及时
收监。

罪犯在暂予监外执行期间死亡的,应当及时通知监狱。

第二百一十七条 对于被判处徒刑缓刑的罪犯,由公安机关交所在单位或者
基层组织予以考察。

对于被假释的罪犯,在假释考验期限内,由公安机关予以监督。

第二百一十八条 对于被判处管制、剥夺政治权利的罪犯,由公安机关执行。
执行期满,应当由执行机关通知本人,并向有关群众公开宣布解除管制或者恢
复政治权利。

第二百一十九条 被判处罚金的罪犯,期满不缴纳的,人民法院应当强制缴
纳;如果由于遭遇不能抗拒的灾祸缴纳确实有困难的,可以裁定减少或者免除。

第二百二十条 没收财产的判决,无论附加适用或者独立适用,都由人民法
院执行;在必要的时候,可以会同公安机关执行。

第二百二十一条 罪犯在服刑期间又犯罪的,或者发现了判决的时候所没有
发现的罪行,由执行机关移送人民检察院处理。

被判处管制、拘役、有期徒刑或者无期徒刑的罪犯,在执行期间确有悔改
或者立功表现,应当依法予以减刑、假释的时候,由执行机关提出建议书,报
请人民法院审核裁定。

第二百二十二条 人民检察院认为人民法院减刑、假释的裁定不当,应当在
收到裁定书副本后二十日以内,向人民法院提出书面纠正意见。人民法院应当
在收到纠正意见后一个月以内重新组成合议庭进行审理,作出最终裁定。

第二百二十三条 监狱和其他执行机关在刑罚执行中,如果认为判决有错误
或者罪犯提出申诉,应当转请人民检察院或者原判人民法院处理。

第二百二十四条 人民检察院对执行机关执行刑罚的活动是否合法实行监督。
如果发现有违法的情况,应当通知执行机关纠正。



附则


第二百二十五条 军队保卫部门对军队内部发生的刑事案件行使侦查权。

对罪犯在监狱内犯罪的案件由监狱进行侦查。

军队保卫部门、监狱办理刑事案件,适用本法的有关规定。
 

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