Chapter III
Procedure of Second Instance
Article 227 A defendant, private prosecuting party or his legal representative refusing to accept a judgment or ruling of first instance made by a local people's court shall have the right to appeal in writing or orally to the people's court at the next higher level. A defender or near relative of the defendant may, with the consent of the defendant, file an appeal.
A party to an incidental civil action and his legal representative may file an appeal against the part of the judgment or ruling of first instance on the incidental civil action made by the local people's court.
A defendant shall not, on any pretext, be deprived of his right to appeal.
Article 228 Where a local people's procuratorate believes that there is a definite error in a judgment or ruling 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 229 A victim and his legal representative refusing to accept a judgment of first instance made by a local people's court 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 of the victim and his legal representative, decide whether or not to present the protest and give a reply to the victim and his legal representative.
Article 230 The time limit for filing an appeal or presenting a protest against a judgment shall be 10 days and the time limit for filing an appeal or presenting a protest against a ruling shall be five days; the time limit shall be counted from the date the written judgment or ruling is received.
Article 231 If a defendant, private prosecuting party, or a plaintiff or defendant in an incidental civil action files an appeal through the original trial court, the people's court shall, within three days, transfer the paper of appeal together with the case file and the evidence to the people's court at the next higher level, and at the same time deliver duplicates of the paper of appeal to the people's procuratorate at the same level and to the other party.
If a defendant, private prosecuting party, or a plaintiff or defendant in an incidental civil action directly files an appeal to the people's court of second instance, the people's court shall, within three days, transfer the paper of appeal to the original trial court, and the latter shall deliver it to the people's procuratorate at the same level and to the other party.
Article 232 If a local people's procuratorate protests against a judgment or ruling of first instance made by the people's court at the same level, it shall present a written protest through the original trial court, and at the same time send a copy of the written protest to the people's procuratorate at the next higher level. The original trial court 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 233 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 a part of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.
Article 234 A people's court of second instance shall form a collegial panel and hold a court session to hear the following cases:
(1) A case of appeal in which the defendant or the private prosecuting party and his agent ad litem disagrees on the facts or evidence confirmed in the first instance and such disagreements may have an effect on conviction or meting out the punishment;
(2) A case of appeal in which the defendant is sentenced to death penalty;
(3) A case protested by a people's procuratorate; and
(4) Other cases which should be heard by the people's court in a court session.
If the people's court of second instance decides not to hold a court session to hear a case, it shall question the defendant and hear opinions of other parties, the defender and the agents ad litem.
When a people's court of second instance hold 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 original trial court is located.
Article 235 For the trial of a case protested by a people's procuratorate or a publicly prosecuted case of second instance in a court session, the people's procuratorate at the same level shall send procurators to the court. The people's court of second instance shall, after it decides to hear the case by holding a court session, notify, in a timely manner, the people's procuratorate to examine the case file. The people's procuratorate shall finish examining the case file in one month. The time for examining case file by the people's procuratorate shall not be calculated in the time limit for trial.
Article 236 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 the following manners in light of 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 appeal or protest shall be rejected and the original judgment affirmed.
(2) If the original judgment contains no error in the determination of facts, but there is error in the application of law or the punishment was inappropriately meted out, revision shall be made to the original judgment.
(3) If the facts in the original judgment were unclear or the evidence insufficient, the judgment may be revised after the facts is ascertained, or the original judgment may be rescinded and the case remanded to the original trial court for retrial.
After the original trial court makes a second judgment on the case which is remanded for re trial in accordance with Subparagraph (3) of the preceding paragraph, if the defendant files an appeal or the procuratorate presents a protest, the people's court of second instance shall make a judgment or ruling in accordance with law and shall not remand it to the original trial court for another retrial.
Article 237 In the trial of a case appealed by a defendant and his legal representative, defender or near relative, the people's court of second instance may not impose a severer criminal punishment on the defendant. In a case remanded for retrial to the original trial court by the people's court of second instance, the original trial court may not impose a severer criminal punishment on the defendant, unless there are newly-found criminal facts or the people's procuratorate brings a supplementary prosecution.
The restriction laid down in the preceding paragraph shall not apply to cases protested by a people's procuratorate or appealed by private prosecuting parties.
Article 238 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 original trial court for retrial:
(1) Violating the provisions of this Law regarding trial in public;
(2) Violating the recusal system;
(3) Depriving the parties of their litigation rights prescribed by law or restricting such rights, which may affect a fair trial;
(4) Unlawful formation of a judicial organization; or
(5) Other violations against the litigation procedures prescribed by law which may affect a fair trial.
Article 239 The people's court which originally tried a case shall form a new collegial panel for the remanded case and retry it in accordance with the procedure of first instance. With respect to the judgment rendered upon retrial, an appeal or protest may be lodged in accordance with the provisions of Article 227, 228 or 229 of this Law.
Article 240 After a people's court of second instance has reviewed an appeal or protest against a ruling of first instance, it shall either rule to reject the appeal or protest or rescind or revise the original ruling accordingly with reference to the provisions of Article 236, 238 or 239 of this Law.
Article 241 For the retrial of a case remanded to the original trial court by the people's court of second instance, the said original trial court shall calculate the trial time limit anew from the date it has received the remanded case.
Article 242 A people's court of second instance shall try a case of appeal or protest with reference to the procedure of first instance, in addition to applying the provisions in this Chapter.
Article 243 After accepting a case of appeal or protest, a people's court of second instance shall conclude the trial within two month. As to a case where the defendant may be sentenced to death penalty or there is an incidental civil action, or under one of the situations provided in Article 158 of this Law, the time limit may be extended by two months upon the approval or decision of the higher people's court of the province, autonomous region or municipality directly under the Central Government; if a second extension is still needed under special situation, the second extension shall be subject to approval of the Supreme People's Court.
The time limit for trying a case of appeal or protest by the Supreme People's Court shall be decided by the Supreme People's Court itself.
Article 244 All judgments and rulings of second instance and all judgments and rulings of the Supreme People's Court are final.
Article 245 Public security organs, people's procuratorates and people's courts shall keep safe the property and things of the criminal suspects and defendants that are sealed up, distrained or frozen, as well as the fruits accrued therefrom. They shall make an inventory of the property and things as well as the accrued fruits and transfer the inventory with the case files. No entities or individuals shall misappropriate or dispose of such property, things and accrued fruits without authorization. The lawful property of the victims shall be returned to them without delay. The things that are prohibited or perishable shall be disposed of in accordance with the relevant State regulations.
Things that serve as evidence shall be transferred together with the case; however, for those unsuitable to be transferred, their inventory and photos or other documents of certification shall be transferred together with the case.
The disposition of the property or things that are sealed up, distrained or frozen as well as the fruits accruing therefrom shall be included in the judgment rendered by the people's court.
After a judgment is rendered by the people's court becomes effective, all the money and things that are sealed up, distrained or frozen and the fruits accruing therefrom shall be disposed of by the relevant department pursuant to the judgment. All the illicit money and things that are sealed up, distrained, or frozen and 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 property or things that are sealed up, distrained or frozen and the fruits accruing therefrom shall be investigated for criminal responsibility according to law; if the offence does not constitute a crime, he shall be given administrative sanctions.
Chapter IV
Procedure for Death Sentence Review
Article 246 Death sentences shall be subject to approval by the Supreme People's Court.
Article 247 Cases of first instance wherein death sentence have been meted out by intermediate people's courts and the defendants do not appeal shall be reviewed by a higher people's court and be submitted to the Supreme People's Court for approval. If the higher people's court does not agree on death sentence, it may try the case on a certiorari or remand the case for retrial.
Cases of first instance wherein death sentence has been meted out by higher people's courts and the defendants does not appeal and cases of second instance wherein death sentence has been meted out shall all be submitted to the Supreme People's Court for approval.
Article 248 Cases wherein death sentence with a two-year suspension of execution has been meted out by intermediate people's courts shall be subject to approval by higher people's courts.
Article 249 Review of death sentence cases by the Supreme People's Court and review of cases of death sentence with a suspension of execution by higher people's courts shall be conducted by collegial panels which shall be composed of three judges.
Article 250 After the Supreme People's Court has reviewed a case of death sentence, it shall issue a ruling on approving or disapproving the death sentence. If the Supreme People's Court disapproves the death sentence, it may remand the case for retrial or directly revise the judgment thereof.
Article 251 When the Supreme People's Court reviews a death sentence case, it shall question the defendant and shall hear the opinion of the defense lawyer if the defense lawyer so requests.
During the process of reviewing a death sentence case, the Supreme People's Procuratorate may put forward its opinion to the Supreme People's Court. The Supreme People's Court shall notify the Supreme People's Procuratorate of the results of review.
Chapter V
Procedure for Trial Supervision
Article 252 A party and his legal representative or near relative may present a petition to a people's court or people's procuratorate regarding a legally effective judgment or ruling, however, execution of the judgment or ruling shall not be suspended.
Article 253 If a petition presented by a party and his legal representative or near relative falls in any of the following circumstances, the people's court shall retry the case:
(1) Where there is new evidence proving that a fact confirmed in the original judgment or ruling is erroneous, which may affect the conviction or sentencing;
(2) Where the evidence based on which the conviction was made and punishment meted out is unreliable or insufficient, or should be excluded according to law, or there are contradictions among the physical evidence supporting the facts of the case;
(3) Where there is error in the application of law in making the original judgment or ruling;
(4) Where there is violation of the litigation procedure stipulated by law and such violation may affect a fair trial; or
(5) Where any of the judges trying the case engaged in embezzlement, bribery or malpractices for personal gain or bended the law in making the judgment.
Article 254 If the president of a people's court finds a definite error in a legally effective judgment or ruling of his court in 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 a definite error in a legally effective judgment or ruling of a people's court at any lower level, or if a people's court finds a definite error in a legally effective judgment or ruling of a people's court at a lower level, it shall have the power to try the case on a certiorari or instruct a people's court at a lower level to retry the case.
If the Supreme People's Procuratorate finds a definite error in a legally effective judgment or ruling of a people's court at any level, or if a people's procuratorate finds a definite error in a legally effective judgment or ruling 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 ruling in accordance with the procedure for trial supervision.
The people's court that has accepted a case protested by the people's procuratorate shall form a collegial panel to retry the case. If the facts on the basis of which the original judgment was made are unclear or the evidence is insufficient, it may instruct a people's court at the lower level to retry the case.
Article 255 Where a people's court remands a case for retrial to a people's court at the lower level, it shall designate a people's court other than the original trial court to retry the case; however, it may designate the original trial court to retry the case if it is more suitable for the original trial court to retry it.
Article 256 When the original trial court retries a case in accordance with the procedure for trial supervision, a new collegial panel shall be formed. If the remanded case was a case of first instance, it shall be retried in accordance with the procedure of first instance and the new judgment or ruling may be appealed or protested. If the remanded case was a case of second instance or was tried on certiorari by a people's court at a higher level, it shall be retried in accordance with the procedure of second instance and the new judgment or ruling rendered shall be final.
If a case is retried by the people's court by holding a court session, the people's procuratorate at the same level shall have procurators present before the court.
Article 257 Where a people's court decides that a case need be retried and that a compulsory measure need be applied to the defendant, the people's court shall make a decision thereupon. Where a case is protested by the people's procuratorate for retrial, if a compulsory measure need be applied to the defendant, such a decision shall be made by the people's procuratorate.
When a people's court tries a case in accordance with the procedure for trial supervision, it may decide to suspend the execution of the original judgment or ruling.
Article 258 Where a case is retried by a people's court in accordance with the procedure for trial supervision, the retrial shall be concluded within three months from the date when the decision is made to retry the case on a certiorari or to remand the case for retrial. If it is necessary to extend the time limit, the extension shall not exceed six months.
The provisions of the preceding paragraph on the trial time limit shall apply to the trial of a protested case accepted by a people's court in accordance with the procedure for trial supervision. Where it is necessary to instruct a people's court at a lower level to retry a protested case, a decision shall be made within one month from the date when the protested case is accepted for retrial, and the provisions of the preceding paragraph on the trial time limit shall apply to the retrial of the case by the people's court at the lower level.
Part Four
Execution
Article 259 Judgments and rulings shall be executed after they become legally effective.
The following judgments and rulings are legally effective:
(1) Judgments and rulings against which no appeal or protest has been filed within the statutory time limit;
(2) Judgments and rulings of final instance; and
(3) Judgments of death penalty approved by the Supreme People's Court and judgments of death penalty with a two-year suspension of execution approved by a higher people's court.
Article 260 Where a people's court of first instance decides that a defendant in custody is not guilty or is exempted from criminal punishment, the defendant shall be released immediately after the judgment is pronounced.
Article 261 When a judgment of 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.
Where a criminal sentenced to death with a two-year suspension of execution commits no intentional crime during the period of suspension of the sentence and his punishment should therefore be commuted on the expiration of such a period, the executing organ shall submit a written recommendation to a higher people's court for decision. If there is verified evidence proving that the criminal has committed an intentional crime during the suspension period and the circumstances are serious, and therefore his death sentence should be executed, the higher people's court shall submit the matter to the Supreme People's Court for approval. Where the criminal has committed an intentional crime during the suspension period but the death sentence is not executed, the period of suspension of death sentence shall be recounted and the matter shall be submitted to the Supreme People's Court for the record.
Article 262 After receiving an order of death sentence execution from the Supreme People's Court, the people's court at a lower level shall cause the sentence to be executed within seven days. However, the people's court at a lower level shall suspend the execution of death sentence under one of the following circumstance and immediately submit a report to the Supreme People's Court for decision:
(1) Where it is discovered before the execution of the sentence that the judgment may contain an error;
(2) Where, before the execution of the sentence, the criminal exposes major criminal facts or renders other significantly meritorious service, therefore the sentence may need to be revised; or
(3) Where the criminal is pregnant.
If the reason given in subparagraph (1) or (2) of the preceding paragraph which caused the suspension of the execution 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 subparagraph (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 263 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.
Death sentence shall be executed by means such as shooting or injection.
Death sentence may be executed on the execution ground or in a designated place of custody.
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. 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 decision.
Execution of death sentence 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 the execution. 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 executed shall notify the criminal's family members of the matter.
Article 264 When a criminal is handed over for serving his sentence, the people's court that hands him over for such a purpose shall, within 10 days after the judgment takes effect, deliver the relevant legal documents to the public security organ, the prison or other executing organ.
A criminal sentenced to death with a two-year suspension of execution or to life imprisonment or fixed-term imprisonment shall, according to law, be handed over by a public security organ to a prison to serve his sentence. As to a criminal sentenced to fixed-term imprisonment, if the remaining term of service is not more than three months before he is handed over for serving his sentence, he shall serve the residual sentence in a detention house instead. As to a criminal sentenced to criminal detention, the sentence shall be executed by a public security organ.
A juvenile delinquent shall serve his sentence in a juvenile delinquent reformatory.
The executing organ shall take a criminal in custody without delay and notify the criminal's family members of the matter.
Upon completion of his service of sentence, a criminal sentenced to fixed-term imprisonment or criminal detention shall be given a certificate of release by the executing organ.
Article 265 A criminal sentenced to fixed-term imprisonment or criminal detention may be permitted to temporarily serve his sentence outside prison under one of the following circumstances:
(1) If the criminal is seriously ill and needs to be released on parole for medical treatment;
(2) If the female criminal is found pregnant or is breast-feeding her own baby; or
(3) If the criminal is unable to take care of himself in everyday life and his service of sentence outside prison will not endanger the community.
A criminal sentenced to life imprisonment falling under the circumstances prescribed in the second subparagraph may be permitted to temporarily serve her sentence outside prison.
If the release of a criminal on parole for medical treatment may endanger the community or he may injure himself or cause himself disabled, he may not be released on parole for medical treatment.
If a criminal is truly seriously ill and must be released on parole for medical treatment, the illness shall be diagnosed in the hospital designated by the people's government at the provincial level and relevant supporting documents shall be issued by the said hospital.
Before the criminal is handed over for serving his sentence, temporary service of sentence outside prison shall be subject to the decision of the people's court that is to hand him over for service of sentence; whereas after the criminal is handed over for serving his sentence, a written opinion on temporary service of sentence outside prison shall be proposed by the prison or detention house, which shall be subject to the approval of the prison administration organ at or above the provincial level or the public security organ at or above the level of the city divided into districts.
Article 266 Where a prison or detention house proposed a written opinion on temporary service of sentence outside prison, it shall send a duplicate of the opinion to the people's procuratorate. The people's procuratorate may put forward its recommendation in writing to the deciding or approving organ.
Article 267 The organ that decides to grant or approve temporary service of sentence outside prison shall send a copy of the decision to the people's procuratorate. If the people's procuratorate considers the decision on temporary service of sentence outside prison is improper, it shall, within one month from the date of receiving the notification, put forward its recommendation in writing to the deciding or approving organ. The deciding or approving organ shall, upon receiving the written recommendation of the people's procuratorate, reexamine the decision without delay.
Article 268 Under any of the following circumstances, a criminal who is permitted to temporarily serve his sentence outside prison shall be taken back in prison without delay:
(1) If it is discovered that the criminal has failed to meet the conditions for being permitted to temporarily serve sentence outside prison;
(2) If the criminal seriously violates the relevant supervisory and administrative regulations on temporary service of sentence outside prison; or
(3) If the criminal's term of sentence has not expired when the conditions for temporary service of sentence outside prison cease to exist.
Where a criminal permitted to temporarily serve his sentence outside prison upon a decision by the people's court should thereafter be taken back in prison, the people's court shall make a decision for such a purpose and send the relevant legal documents to the public security organ, the prison or other executing organ.
Where a criminal not eligible for temporarily serving his sentence outside prison has obtained such a permission through bribery or by any other illegal means, the period of time he has temporarily served his sentence outside prison shall not be counted in his serving time. Where a criminal flees while he is temporarily serving his sentence outside prison, the period of time when he has fled away shall not be counted in his service time.
Where a criminal dies while he is temporarily serving his sentence outside prison, the executing organ shall notify the prison or detention house of his death without delay.
Article 269 A criminal who is sentenced to controlled release, imprisonment with probation, or release on parole, or is permitted to temporarily serve his sentence outside prison shall go through community correction according to law, and the authority in charge of community correction shall be responsible for the execution of the sentence.
Article 270 Sentence of deprivation of a criminal's political rights shall be executed by the public security organ. After the criminal has completed serving his sentence, the executing organ shall notify in writing the criminal, the criminal's employer and the community organization in the place where the criminal resides as such.
Article 271 Where a criminal sentenced to a fine fails to pay the fine within the prescribed time limit, the people's court shall compel him to pay. If the criminal truly has difficulty in paying the fine because he has suffered an irresistible disaster, upon a ruling of the people's court, he may be allowed to pay an amount smaller than the fine, or postpone or be exempted from the payment of the fine accordingly.
Article 272 Sentence of confiscation of property contained in all judgments, whether it is imposed independently or as a supplementary punishment, shall be executed by the people's court; where it is necessary, it may be executed by the people's court jointly with the public security organ.
Article 273 Where, during the service of sentence, a criminal commits a new crime, or another of his criminal acts is discovered which has not been known at the time of judgment, the criminal shall be transferred by the executing organ to a people's procuratorate for handling.
Where, during the service of sentence, a criminal sentenced to controlled release, criminal detention, fixed-term imprisonment or life imprisonment shows true repentance or renders meritorious service and should therefore be granted a commutation of sentence or be released on parole according to law, the executing organ shall submit a written recommendation to the people's court for ruling and shall also send a copy of the recommendation to the people's procuratorate. The people's procuratorate may put forward its opinions in writing to the people's court.
Article 274 If a people's procuratorate considers that the ruling a people's court granting commutation of sentence or release on parole is improper, it shall, within 20 days from the date of receiving a copy of the written ruling, put forward 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 ruling.
Article 275 Where, during the execution of a sentence, the prison or another executing organ believes that there is an error in the judgment or the criminal lodges a petition, the prison or executing organ shall refer the matter to the people's procuratorate or the people's court that pronounced the judgment for handling.
Article 276 The people's procuratorates shall supervise the execution of sentence by executing organs to see if the execution is in compliance of the law. If the people's procuratorates discover any illegalities, they shall notify the executing organs to make correction.
Part Five
Special Procedures
Chapter I
Procedure for Juvenile Delinquency Cases
Article 277 With respect to juveniles who committed crimes, the policy of education, persuasion and redemption shall be implemented, and the principle of taking education as the main method and punishment as a subsidiary one shall be upheld.
When people's courts, people's procuratorates or public security organs deal with juvenile delinquency cases, they shall ensure that the juveniles are entitled to their procedural rights, that they have access to legal help and that their cases are handled by judges, procurators or investigators who are familiar with the physical and mental characteristics of juveniles.
Article 278 Where a juvenile criminal suspect or defendant fails to engage a defender, the people's court, people's procuratorate or public security organ shall notify a legal aid agency to designate a lawyer to defend him.
Article 279 When a public security organ, people's procuratorate or people's court deals with a juvenile delinquency case, it may, in light of the specific circumstances, conduct investigation in respect of the growth experience, reasons for committing the crime, guardianship, education and other situations of the juvenile criminal suspect or defendant.
Article 280 The measure of detention shall be rigorously restricted when being applied to a juvenile criminal suspect or defendant. For a people's procuratorate to approve the detention of a juvenile or a people's court to decide to detain a juvenile, it shall interrogate the juvenile criminal suspect or defendant and hear the opinions of his defense lawyer.
Juveniles who are under arrest or detention or who serve their sentences shall be jailed, managed and educated separately from the adults.
Article 281 In a juvenile delinquency case, when the juvenile criminal suspect or defendant is interrogated or tried, his legal representative shall be notified and be present. If there is no way of notifying his legal representative, or his legal representative cannot be present or is an accomplice in the case, his other adult relative or the representative of his school, employer, the community organization where he resides or the organization for the protection of juveniles may be notified and be present, and the relevant situations shall be recorded for file. The legal representative present may exercise the procedural rights on behalf of the juvenile criminal suspect or defendant.
If the legal representative or other persons present believes that the lawful rights and interests of the said juvenile are infringed during the interrogation or trial, he may raise his opinions. The record of the interrogation or the courtroom record shall be given to the legal representative or any of the aforementioned persons to read or be read out to them.
When a female juvenile criminal suspect is interrogated, there shall be female staff members present.
In trying a juvenile delinquency case, after the juvenile defendant makes the final statement, his legal representative may make a supplementary statement.
When questioning a juvenile victim or juvenile witness, the provisions in the first, second and third paragraphs shall be applicable.
Article 282 Where a juvenile is suspected of committing a crime prescribed in Chapter IV, V or VI of Part Two of the Criminal Law, and may be given a sentence not heavier than fixed-term imprisonment of one year, if he shows repentance, the people's procuratorate may decide to conditionally waive prosecution despite the fact that the case meets the requirements for prosecution. Before the people's procuratorate makes a decision on conditionally waiving the prosecution, it shall hear the opinions of the public security organ and the victim.
If a public security organ requests a reconsideration of the decision on conditionally waiving prosecution or submits such a decision for review, or the victim files a petition regarding such a decision, the provisions in Articles 179 and 180 of this Law shall be applicable.
If a juvenile criminal suspect and his legal representative have objection to the people's procuratorate's decision on conditionally waiving prosecution, the people's procuratorate shall make a decision to prosecute the case.
Article 283 During the observation period for conditionally waiving prosecution, the people's procuratorate shall supervise and observe the juvenile criminal suspect against whom the prosecution is conditionally waived. The guardians of the juvenile criminal suspect shall strengthen education and provide assistance to the people's procuratorate in its supervision and observation work.
The observation period for conditionally waiving prosecution shall be not less than six months but not more than one year. Such period shall be counted from the date when the people's procuratorate makes the decision on conditionally waiving prosecution.
The juvenile criminal suspect against whom the prosecution is conditionally waived shall obey the following provisions:
(1) Abiding by laws and regulations and submitting himself to supervision;
(2) Reporting on his own activities as required by the supervision organ;
(3) Reporting and obtaining approval from the supervisory organ for any departure from the city or county where he lives or for any change in residence; and
(4) Subjecting himself to correction and education as required by the supervisory organ.
Article 284 If the juvenile criminal suspect against whom the prosecution is conditionally waived falls in one of the following circumstances during the observation period, the people's procuratorate shall rescind the decision on conditionally waiving prosecution and bring a public prosecution:
(1) If the juvenile criminal suspect commits a new crime, or if he is found having committed another crime before the decision on conditionally waiving prosecution was made which should also be prosecuted; or
(2) The juvenile criminal suspect violates the provisions on public security administration, or the relevant supervisory or administrative provisions on conditionally waiving prosecution as stipulated by the observing organ, and the circumstances are serious.
Where the juvenile criminal suspect against whom the prosecution is conditionally waived does not fall in any of the aforesaid circumstances during the observation period, the people's procuratorate shall make a decision on waiving prosecution when the observation period expires.
Article 285 If a defendant is under the age of 18 when his case is tried, such a case shall not be heard in public. However, upon the consent of the juvenile defendant and his legal representative, the school where the juvenile defendant studies and the organization for the protection of juveniles may send their representatives to be present.
Article 286 If a criminal is under the age of 18 when he committed the accused crime and is given a sentence not heavier than fix-term imprisonment of five years, his criminal record shall be sealed.
Sealed criminal records are not accessible by any entity or individual, except where a judicial organ needs to handle relevant cases or a relevant entity makes inquiry according to the provisions of the state. Any entity accessing such records according to law shall keep confidential the information contained in the sealed criminal records.
Article 287 Juvenile delinquency cases shall be handled according to, apart from the provisions of this Chapter, other applicable provisions of this Law.
Chapter II
Procedure for a Publicly Prosecuted Case
Where the Parties Reaches a Settlement
Article 288 In a case of public prosecution prescribed as the follows, if the criminal suspect or defendant sincerely shows repentance and has obtained forgiveness from the victim by compensating or making apology to the victim or by other means, and the victim is willing to settle, the parties may reach a settlement:
(1) If the case arises out of a civil dispute that involves a crime prescribed in Chapters IV and V of the Criminal Law and may be given a sentence not heavier than fixed-term imprisonment of three years; or
(2) If the case is of a crime of negligence, with the exception of the crime of dereliction of duty, and a sentence not heavier than fixed-term imprisonment of seven years may be given.
The procedure stipulated in this Chapter shall not be applicable to any criminal suspect or defendant who has intentionally committed a crime over the past five years.
Article 289 Where the parties in a case reach a settlement, the public security organ, people's procuratorate or people's court shall hear the opinions of the parties and other relevant persons, examine whether the settlement is voluntary and legitimate, and organize the making of a written settlement agreement.
Article 290 Where the parties in a case has reached a settlement agreement, the public security organ may propose leniency to the people's procuratorate, and the people's procuratorate may make a recommendation to the people's court for lenient punishment. If the circumstances of the crime are minor and no criminal punishment needs to be imposed, the people's procuratorate may decide not to prosecute the case. The people's court may impose a lenient punishment on the defendant in accordance with law.
Chapter III
Trial in Absentia
Article 291 Where a supervisory organ or public security organ transfers a case for prosecution which involves a crime of embezzlement or bribery, or a crime endangering state security or crime of terrorist activity which has been examined by the Supreme People's Procuratorate and need be tried without delay, but the criminal suspect or defendant is outside the territory of China, if the people's procuratorate deems that the facts of the case are clear, the evidence solid and sufficient and criminal responsibility should be pursued according to law, the people's procuratorate may bring a prosecution according to law. If, after review, the people's court finds that the charged criminal facts in the bill of prosecution are clear-cut and the conditions for a trial in absentia are satisfied, a decision shall be made to try the case in court.
A case prescribed in the preceding paragraph shall be tried by a collegial panel of the intermediate people's court in the place of residence of the criminal suspect or defendant before he departed from China or by an intermediate people's court designated by the Supreme People's Court.
Article 292 The people's court shall deliver the summon and a copy of the bill of prosecution to the defendant by means of judicial assistance as stipulated in the relevant international treaties or worked out diplomatically, or by any other means which is allowed by the law of the place where the defendant currently stays. Where the summon and the copy of the bill of prosecution has been delivered to the defendant but the defendant fails to appear before the court as is required, the people's court shall hold a court session to try the case, render a judgment according to law, and dispose of the illegal gains and other property involved in the case.
Article 293 Where a case is to be tried in absentia by the people's court, the defendant shall have the right to engage a defender, or his near relative may engage a defender for the defendant. If both the defender and his near relative fail to engage a defender, the people's court shall inform a legal aid agency to appoint a lawyer to defend him.
Article 294 The people's court shall have the written judgment delivered to the defendant or his near relative and his defender. Where the defendant or his near relative has objection to the judgment, he or his near relative shall have the right to appeal to the people's court at the next higher level. The defender may file an appeal upon consent of the defendant or his near relative.
Where the people's procuratorate believes that there is a definite error in the judgment made by the people's court, it shall present a protest to the people's court at the next higher level.
Article 295 Where, during the course of a trial in absentia, the defendant voluntarily surrenders himself or is captured, the people's court shall retry the case.
Where a criminal surrenders himself or is brought back to China after the judgment or ruling of his case has become effective, the people's court shall hand him over for serving his sentence. Before handing him over, the people's court shall inform him of his right to raising any objection to the judgment or ruling of his case. Where the criminal does raise an objection, the people's court shall retry the case.
Where there is a definite error in the judgment or ruling as to the disposal of the criminal's property, his property shall be returned or he shall be compensated properly.
Article 296 Where the trial of a case is discontinued because the defendant is unable to appear in court due to serious illness, and he remains so after the trial has been discontinued for six months or more, the people's court may, upon application or consent of the defendant and his legal representative or of his near relative for resuming the trial, try the case in absentia without the defendant appearing in court and render a judgment according to law.
Article 297 Where the defendant is deceased, the people's court shall rule to terminate the trial; however, if there is evidence proving the defendant's innocence, the people's court shall, after trying the case in absentia and affirming that the defendant is innocent, render a judgment according to law.
Where the people's court retries a case according to the procedure for trial supervision and the defendant is deceased, the people's court may try the case in absentia and render a judgment according to law.
Chapter VI
Procedure for Confiscating Illegal Gains Involved in a Case
Where the Criminal Suspect or Defendant Flees, Hides or is Dead
Article 298 For a grave crime of embezzlement or bribery or terrorist activity, if the criminal suspect or defendant flees or hides and cannot be brought to justice one year after he is wanted for arrest, or if the criminal suspect or defendant is dead, and the illegal gains and other property involved in the said case should be recovered in accordance with the provisions of the Criminal Law, the people's procuratorate may apply to the people's court for confiscation of the illegal gains.
Where a public security organ believes that there is any of the circumstances specified in the preceding paragraph, it shall prepare a written opinion on confiscation of the illegal gains and transfer the case to the people's procuratorate.
The application for confiscation of illegal gains shall contains relevant evidence materials relating to the facts of the crime and the illegal gains, a statement of the categories, amounts and locations of the involved property and whether or not the property has been sealed, distrained or frozen.
When necessary, the people's court may seal, distrain or freeze the property for which an application for confiscation has been made.
Article 299 Application for confiscation of illegal gains shall be heard by a collegial panel formed in the intermediate people's court in the place where the crime was committed or the criminal suspect or defendant resides.
After the people's court accepts an application for confiscation of illegal gains, it shall issue a public notice. The period of public notice shall last six months. The near relative of the criminal suspect or defendant and other interested parties shall have the right to apply for participating in the lawsuit, and they may also engage agents ad litem to participate in the lawsuit.
The people's court shall hear the application for confiscation of illegal gains on the expiration of the period of public notice. If there are interested parties participating in the lawsuit, the people's court shall hold a court session to hear the case.
Article 300 The people's court shall, upon investigation and after hearing the case, rule to confiscate the property that is found to be illegal gains or other property involved in the case, except for the property that should be returned to the victim in accordance with law. As to the property that should not be confiscated, the people's court shall rule to reject the application and lift the measures for sealing, distraining or freezing such property.
The near relative of the criminal suspect or defendant, other interested parties or the people's procuratorate may appeal or protest against such a ruling made by the people's court in accordance with the provisions in preceding paragraph.
Article 301 If the criminal suspect or defendant voluntarily surrenders himself to justice or is captured during course of hearing, the people's court shall terminate the hearing of such an application.
If it is definitely erroneous to confiscate the property of the criminal suspect or defendant, such property shall be returned or compensation shall be made accordingly.
Chapter IV
Procedure for Compulsory Medical Treatment for Mental Patients
Who Bear no Criminal Responsibility According to Law
Article 302 Where a mental patient who has engaged in violence and thereby jeopardized public security or seriously endangered citizens' personal safety is not held criminally responsible after being examined according to statutory procedure but may continue to do harm to the society, the said mental patient may be subjected to compulsory medical treatment.
Article 303 The people's court shall decide on whether to apply compulsory medical treatment to a mental patient according to the provisions of this Chapter.
Where a public security organ finds that a mental patient meets the conditions for compulsory medical treatment, it shall produce a written opinion on compulsory medical treatment and transfer the case to the people's procuratorate for handling. Where the people's procuratorate finds that a mental patient meets the conditions for compulsory medical treatment in a case which is transferred by the people's security organ or which is under examination for prosecution, it shall submit an application to the people's court for the mental patient to receive compulsory medical treatment. Where the people's court finds during the trial that the defendant meets the conditions for compulsory medical treatment, it may make a decision on compulsory medical treatment.
Before the people's court makes a ruling on compulsory medical treatment, the public security organ may apply temporary and protective restraining measures to a violent mental patient.
Article 304 A people's court shall, after accepting an application for compulsory medical treatment, form a collegial penal to hear the case.
When a people's court hears a case applying for compulsory medical treatment, it shall inform the legal representative of the respondent or defendant to be present. If the respondent or defendant fails to engage an agent ad litem, the people's court shall inform a legal aid agency to designate a lawyer to provide legal assistance for him.
Article 305 If the people's court considers the respondent or defendant meets the conditions for compulsory medical treatment after hearing the case, it shall, within one month, make a decision on compulsory medical treatment.
Where a victim and his legal representative or near relative has objection to the decision on applying compulsory medical treatment to the respondent or defendant, the victim and his legal representative or near relative may apply to the people's court at the next higher level for reconsideration.
Article 306 An institution providing compulsory medical treatment shall conduct regular diagnosis and assessment of the person who is under such treatment. If the person no longer poses threats to the personal safety of others and does not need further compulsory medical treatment, the said institution shall put forward its opinion on terminating the compulsory medical treatment in a timely manner and submit its opinion to the people's court that had ruled for applying compulsory medical treatment for approval.
The person who is under compulsory medical treatment and his near relative shall have right to apply for termination of the compulsory medical treatment.
Article 307 People's procuratorates shall supervise the making and implementation of compulsory medical treatment rulings.
Supplementary Provisions
Article 308 The security departments of the Army shall exercise the power of investigation with respect to crimes in the Army.
China Coast Guard shall exercise the power of investigation with respect to the crimes at sea.
Crimes committed by criminals in prison shall be investigated by the prison.
The handling of criminal cases by the security departments of the Army, China Coast Guard and prisons shall be governed by the relevant provisions of this Law.
