Chapter II
Jurisdiction
Article 19 Investigation in criminal cases shall be conducted by public security organs, except as otherwise provided by law.
People's procuratorates may file cases for investigation when they find in exercising legal supervision over litigation activities that there are judicial officers taking advantage of their functions and powers and committing crimes such as illegally detaining others, extorting confessions by torture or engaging in illegal search, which infringe upon the rights of citizens and undermine justice. Where there is a need for the people's procuratorates to directly handle cases of grave crimes which are committed by state functionaries taking advantage of their functions and powers and which are under the jurisdiction of public security organs, the people's procuratorates may file such cases for investigation 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 20 Primary people's courts shall have jurisdiction as courts of first instance over ordinary criminal cases, except those cases which fall under the jurisdiction of the people's courts at higher levels as stipulated by this Law.
Article 21 Intermediate people's courts shall have jurisdiction as courts of first instance over the following criminal cases:
(1) Crimes endangering state security and crimes of terrorist activity; and
(2) Crimes punishable by life imprisonment or death penalty.
Article 22 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 23 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 24 When necessary, people's courts may try criminal cases over which the people's courts at lower levels have jurisdiction as courts of first instance. Where a people's court considers that the circumstances of a criminal case is grave or complex and thus necessitating the trial of first instance by the 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 25 A criminal case shall be under the jurisdiction of the people's court in the place where the crime was committed. Where 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 26 Where two or more people's courts at the same level have jurisdiction over a case, the case shall be tried by the people's court that first accepts it. When necessary, the case may be transferred for trial by the people's court in the principal place where the crime was committed.
Article 27 A people's court 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 28 The jurisdiction over cases in special people's courts shall be stipulated separately.
Chapter III
Recusal
Article 29 In any of the following situations, a judge, procurator or investigator shall voluntarily recuse himself, and the parties to the case and their legal representatives shall have the right to demand his recusal:
(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, which may affect the impartial handling of the case.
Article 30 A judge, procurator or investigator shall not accept invitation to meals or gifts from a party to the case or from a person entrusted by such a party, and shall not, in violation of regulations, meet with a party to a case or a person entrusted by such a party.
A judge, procurator or investigator who violates the provisions of 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 recuse.
Article 31 The recusal 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 recusal of the president of the court shall be determined by the court's judicial committee; and the recusal 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 recusal.
If a decision has been made to reject the application for recusal, the party to the case and his legal representative may apply for reconsideration once.
Article 32 The provisions on recusal in this Chapter shall also be applicable to court clerks, interpreters and expert witnesses.
Defenders and agents ad litem may demand recusal and apply for reconsideration of the decision thereon in accordance with the provisions of this Chapter.
Chapter IV
Defense and Representation
Article 33 In addition to exercising the right to defend himself, a criminal suspect or defendant may engage through authorization one or two persons as his defender(s). The following persons may be authorized as defenders:
(1) Lawyers;
(2) Persons recommended by a public organization or by the entity for which the criminal suspect or defendant works; and
(3) Guardians or relatives and friends of the criminal suspect or defendant.
A person who is subjected to criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as a defender.
A person who has been expelled from public office or whose lawyer's or notary's practice certificate has been revoked shall not serve as a defender, unless he is the guardian or a near relative of the criminal suspect.
Article 34 A criminal suspect shall have the right to engage defender(s) when he is interrogated for the first time or from the date when he is subjected to a compulsory measure by an investigatory body; however, he can only engage lawyer(s) as his defender(s) during the investigatory period. A defendant is entitled to defender(s) at any time.
An investigatory body shall inform the latter that he has the right to engage defender(s) at the first time when a criminal suspect is interrogated or subjected to a compulsory measure. A people's procuratorate shall, within three days from the date of receiving the file record of a case transferred for prosecution, inform the criminal suspect that he has the right to engage defender(s). A people's court shall, within three days from the date of accepting a case, inform the defendant that he has the right to defender(s). Where a criminal suspect or defendant held in custody requests defender(s), the people's court, people's procuratorate or public security organ shall deliver his request in a timely manner.
Where a criminal suspect or defendant is held in custody, his guardian or near relative may engage defender(s) for him.
A defender shall, once being engaged by a criminal suspect or defendant, inform the authority handling the case of his authorization in a timely manner.
Article 35 Where a criminal suspect or defendant fails to engage a defender due to financial difficulty or other reasons, he or his near relative may apply to a legal aid agency. If he is eligible to legal aid, the legal aid agency shall appoint a lawyer to defend him.
Where a criminal suspect or defendant fails to engage a defender, and he is blind, deaf or dumb, or a mental patient who is not completely aware of or has incomplete ability to control his own conduct, a people's court, people's procuratorate or public security organ shall inform a legal aid agency for appointing a lawyer to defend him.
Where a criminal suspect or defendant fails to engage a defender and he may be sentenced to life imprisonment or death penalty, a people's court, people's procuratorate or public security organ shall inform a legal aid agency for appointing a lawyer to defend him.
Article 36 Legal aid agencies may station duty lawyers in such premises as the people's courts or detention houses. In case that a criminal suspect or defendant fails to engage a defender and no legal aid agency has appointed a lawyer to defend him, a duty lawyer may offer assistance in legal consultation, advice on procedural choice, application for alteration of compulsory measures and providing opinions on the case, etc.
A people's court, people's procuratorate and detention house shall inform a criminal suspect or defendant of his right to meet with a duty lawyer, and shall facilitate the criminal suspect or defendant in meeting with a duty lawyer.
Article 37 The responsibility of a defender is, based on the facts and law, to put forward materials and opinions showing that a criminal suspect or defendant is innocent, that his defense is a light one, or that he should be exempted from criminal responsibility or bear mitigated criminal responsibility, and to protect the procedural rights and other legitimate rights of the criminal suspect or defendant.
Article 38 A defense lawyer may provide a criminal suspect with legal help during the investigatory period, act as the agent ad litem for filing a complaint or charge, apply for altering the applied compulsory measure, inquire of an investigatory body about the suspected crime and relevant information of the case and put forward opinions.
Article 39 A defense lawyer may meet and correspond with a criminal suspect or defendant in custody. Other defenders may do so with permission of the people's court or people's procuratorate.
Where a lawyer requests to meet with the criminal suspect or defendant in custody on the strength of his practice certificate, paper issued by his law firm, and the letter of authorization or official legal aid paper, the detention house shall make arrangements in a timely manner for them to meet, without exceeding 48 hours the latest.
For a case under investigation which involves a crime endangering national security or a crime of terrorist activity, a defense lawyer shall obtain approval from the investigatory body for meeting with the criminal suspect held in custody during the investigatory period. In such a case, the investigatory body shall notify the detention house in advance.
A defense lawyer may inquire about the case involved, provide legal consultation, etc. when meeting with the criminal suspect or defendant in custody; and may verify relevant evidence with the criminal suspect or defendant from the date the case is transferred for prosecution. A defense lawyer's meeting with the criminal suspect or defendant shall not be subject to surveillance.
Provisions of the first, third and fourth paragraphs shall be applicable to a defense lawyer's meeting and correspondence with a criminal suspect or defendant under house arrest.
Article 40 A defense lawyer may consult, excerpt and duplicate the case files pertaining to the case he or she is handling from the date the case is being examined by the people's procuratorate for prosecution. Other defenders may also consult, excerpt and duplicate the aforesaid materials upon permission of the people's court or people's procuratorate.
Article 41 If a defender believes that the public security organ or people's procuratorate fails to submit the evidence collected during the periods of investigation and examination for prosecution which can prove the innocence of the criminal suspect or defendant or prove that the crime committed is lighter than the one charged, the defender shall have the right to apply to the people's procuratorate or people's court for access to such evidence.
Article 42 If a defender finds that a criminal suspect has an alibi, or that there is evidence proving that the criminal suspect has not reached the age for assuming criminal responsibility or is an mental patient who should not assume any criminal responsibility in accordance with law, the defender shall inform the public security organ and people's procuratorate as such without delay.
Article 43 A defense lawyer may, with the consent of witnesses or other entities and individuals concerned, collect from them information pertaining to the current case. The defense lawyer may also apply to the people's procuratorate or people's court for collection and obtaining of evidence, or request the people's court to notify a witness for appearing in court and giving testimony.
With the permission of the people's procuratorate or people's court, and with the consent of a victim or of a witness provided by the victim's near relative or the victim himself, a defence lawyer may collect information pertaining to the current case from the said victim or witness.
Article 44 No defender or any other person may assist a criminal suspect or defendant in concealing, destroying or falsifying evidence, or collide to tally a confession, or threat or entice a witness into giving false testimony, or engage in any other act interfering with the proceedings carried out by judicial organs.
A person violating the provisions of the preceding paragraph shall be investigated for legal responsibility according to law, and a defender suspected of committing a crime shall be dealt with by an investigatory body other than the one handling the case for which the defender is engaged. If the aforesaid defender is a lawyer, the law firm or lawyers' association he belongs to shall be notified of such a matter in time.
Article 45 During a trial, a defendant may refuse to have his defender continue to defend him and may authorize another defender for such a purpose.
Article 46 A victim of a publicly prosecuted case, his legal representative or near relative, and a party to an incidental civil action and his legal representative shall have the right to engage an agent ad litem from the date when the case is transferred for prosecution. In a privately prosecuted case, the private prosecuting party and his legal representative, and a party to an incidental civil action and his legal representative shall have the right to engage an agent 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 prosecution, notify the victim and his legal representative or near relative, and the party to an incidental civil action and his legal representative that they have the right to engage their own agent ad litem. The people's court shall, within three days from the date of accepting a case of private prosecution, notify the private prosecuting party and his legal representative, and the party to an incidental civil action and his legal representative that they have the right to engage their own agent ad litem.
Article 47 The provisions of Article 33 of this Law shall be applied mutatis mutandis to the engagement of an agent ad litem.
Article 48 A defense lawyer is entitled to confidentiality as regards the situation and information of his client that he comes to know of in practice. However, if a defense lawyer becomes aware that his client or any other person is going to commit or is committing a crime that undermines national security or public security or that seriously endangers the safety of another person, the defense lawyer shall inform the judicial organs as such without delay.
Article 49 If a defender or an agent ad litem believes that a public security organ, people's procuratorate or people's court, or any of its staff members obstructs the defender or agent ad litem from exercising his procedural rights in accordance with law, the defender or agent ad litem is entitled to lodge a complaint or bring an accusation with the people's procuratorate at the same or next higher level. The people's procuratorate concerned shall make an investigation upon receiving such a complaint or accusation, and if the situation complained or accused of is verified to be true, the people's procuratorate shall notify the relevant organ for rectification.
Chapter V
Evidence
Article 50 All materials that can be used to prove the facts of a case shall be evidence.
Evidence shall comprise of the following:
(1) Physical evidence;
(2) Documentary evidence;
(3) Testimony of a witness;
(4) Statement of a victim:
(5) Statement and exculpation of a criminal suspect or defendant;
(6) Expert conclusion;
(7) Record of inquest, examination, identification and investigatory experiment; and
(8) Audio-visual material and electronic data.
Evidence must be verified before it is used as the basis for deciding a case.
Article 51 In a publicly prosecuted case, the burden of proof that a defendant is guilty lies with the people's procuratorate; whereas in a privately prosecuted case, the burden of proof lies with the prosecuting party.
Article 52 A judge, procurator or investigator must, in accordance with the statutory procedure, collect various kinds of evidence, no matter it proving the criminal suspect's or defendant's guilt or innocence, or the crime to be a minor or grave one. It is strictly forbidden to extort confessions by torture or to collect evidence by threat, enticement, deceit or any other unlawful means. No one may be forced to incriminate himself. Conditions must be provided to guarantee that a citizen involved in a case or possessing information about a case has the opportunity to objectively and fully furnish evidence and, except in special circumstances, the aforesaid citizen may be brought in to help the investigation.
Article 53 A public security organ's request for approval of detention, people's procuratorate's bill of prosecution and people's court's written judgment must faithfully stick to the facts. Anyone who intentionally conceals the facts shall be investigated for responsibility.
Article 54 A people's court, people's procuratorate and public security organ shall have the authority to collect or obtain evidence from the entities and individuals concerned. Such entities and individuals concerned shall provide truthful evidence.
Evidence collected by an administrative organ in the course of administrative law enforcement or handling of a case, such as physical evidence, documentary evidence, audio-visual material or electronic data, may be used as evidence in a criminal litigation.
Evidence involving state secrets, trade secrets or privacy shall be kept confidential.
Anyone who falsifies, conceals or destroys evidence, regardless of the standing he has in a case he, must be investigated for responsibility under the law.
Article 55 In the handling and decision of a case, stress shall be laid on evidence, investigation and study, and credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced if there is only his confession but no other evidence; however, a defendant may be found guilty and sentenced if, in the absence of his confession, there is reliable and sufficient evidence proving his guilt.
The following conditions shall be met for evidence to be reliable and sufficient:
(1) Every fact used for condemning a crime and sentencing shall be proved by evidence;
(2) Every piece of evidence based on which a case is decided shall be examined and verified as true according to the statutory procedure; and
(3) Based on all the evidence in a case, the facts ascertained thereby is beyond reasonable doubt.
Article 56 A confession of a criminal suspect or defendant obtained by means of torture, or a witness's testimony or victim's statement obtained by violence, threat or other unlawful means shall be excluded. Physical evidence or documentary evidence that is obtained in violation of law and may seriously affect justice shall be supplemented, corrected, or reasonably explained; where supplementation, correction or reasonable explanation fails to be made, the aforesaid evidence shall be excluded.
Evidence that should be excluded as is discovered during investigation, examination before prosecution or during trial, shall be excluded in accordance with law, and shall not be used as the basis for prosecutorial opinion or decision, nor as the basis for a court decision.
Article 57 Where a people's procuratorate receives a complaint, an accusation or a report, or discovers that an investigator collects evidence by illegal means, it shall carry out an investigation for verification. If illegal means is resorted in the collection of evidence, it shall put forward an opinion on rectification; if a crime is committed, the said investigator shall be investigated for criminal responsibility accordance to law.
Article 58 If, during a court trial, a judge believes there is a possibility that evidence is collected by illegal means specified in Article 56 of this Law, the judge shall investigate in court as regards the legality of the said evidence.
A party and his defender or an agent ad litem is entitled to applying to a people's court for excluding illegally collected evidence in accordance with law. Whoever applies for exclusion of illegally collected evidence shall provide relevant clues or material.
Article 59 During the court investigation for the legality of evidence collection, the people's procuratorate shall bear the burden of proof.
In the absence of sufficient evidentiary material proving the legality of evidence collection, the people's procuratorate may request the people's court to notify relevant investigators or other persons concerned to give explanation before the court, and the people's court may, upon such a request, notify relevant investigators or other persons concerned to give explanation before the court. Relevant investigators or other persons concerned may also take the initiative to request to offer their explanation before the court. The persons concerned shall appear before the court if so notified by the people's court.
Article 60 Evidence shall be excluded if court investigation confirms or is unable to rule out that there have been circumstances of collecting evidence by illegal means as is specified in Article 56 of this Law.
Article 61 Testimony of a witness shall only be admitted as the basis for determining a case after the witness has been cross-examined in courtroom by the public procurator and the victim as one side and by the defendant and the defender as the other side. If a court finds through investigation that a witness intentionally gives false testimony or conceals criminal evidence, the court shall handle the matter in accordance with law.
Article 62 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 63 The people's court, people's procuratorate and public security organ shall ensure the safety of a witness and his near relatives.
Anyone who intimidates, insults, beats or retaliates against a witness or his near relatives, which constitutes a crime, shall be investigated for criminal responsibility according to law; if the circumstances are not serious enough for criminal punishment, he shall be punished for violation of public security in accordance with law.
Article 64 Where, a witness, expert witness or victim testifies in the proceedings of a crime endangering state security, a crime of terrorist activity, a crime committed by an organization of the nature of a criminal gang, or a drug-related crime, etc., and thus the personal safety of the said person or of his near relative is endangered, the people's court, people's procuratorate and public security organ shall adopt one or more of the following protective measures:
(1) Keeping confidential the real name, address, employer and other personal information of the aforesaid person;
(2) Avoiding exposing the actual appearance or true voice of the person who testifies in court;
(3) Prohibiting certain persons from having contact with the said witness, expert witness, victim and his near relatives;
(4) Adopting special measures to protect the personal safety and residential security of the aforesaid persons; and
(5) Other necessary protective measures.
A witness, expert witness or victim who believes that his personal safety or the personal safety of his near relatives is in danger due to his testimony in the proceedings may apply for protection with the people's court, people's procuratorate or public security organ.
Relevant entities and individuals shall provide cooperation when a people's court, people's procuratorate or public security organ takes protective measures in accordance with law.
Article 65 A witness shall be entitled to allowance in terms of transportation, accommodation and food expenses incurred for performing the obligation of giving testimony. The allowance granted to a witness for giving testimony shall be included in the operational expenses of judicial organs and be guaranteed by the people's government's finance at the same level.
Where the witness is an employee, the entity he works for shall not deduct his salary, bonus or any other benefit or do so in a disguised form.
