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中华人民共和国刑事诉讼法(二)

2006-05-18 16:56   我要纠错 | 打印 | 收藏 | | |

  Article 50 When making an arrest, a public security organ must produce an arrest warrant.

  Within 24 hours after an arrest, the family of the arrested person or the unit to which he belongs shall be notified of the reasons for arrest and the place of detention, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.

  Article 51 Interrogation must be conducted within 24 hours after the arrest, by a people's court or people's procuratorate with respect to a person it has decided to arrest, and by a public security organ with respect to a person it has arrested with the approval of the people's procuratorate. If it is found that the person should not have been arrested, he must be immediately released and issued a release certificate.

  Article 52 If in the process of examining and approving arrests, a people's procuratorate discovers illegalities in the investigatory activities of the public security organ, it shall notify the public security organ to make corrections, and the public security organ shall notify the people's procuratorate of what corrections have been made.

  Chapter VII Incidental Civil Actions

  Article 53 If a victim has suffered material losses as a result of the defendant's criminal act, he shall have the right to file an incidental civil action during the course of the criminal proceeding.

  If losses have been caused to state property or collective property, the people's procuratorate may file an incidental civil action while initiating a public prosecution.

  When necessary, the people's court may seal up or distrain upon the property of the defendant.

  Article 54 An incidental civil action shall be beard together with the criminal case. Only for the purpose of preventing excessive delay in a trial of the criminal case may the same judicial organization, after completing the trial of the criminal case, continue to hear the incidental civil action.

  Chapter VIII Time Periods and Service

  Article 55 Time periods shall be calculated by the hour, the day and the month.

  The hour and day from which a time period begins shall not be counted as within the time period.

  A legally prescribed time period shall not include travelling time. Appeals or other documents that have been mailed before the expiration of the time period shall not be regarded as overdue.

  Article 56 When a party cannot meet a deadline due to irresistible causes or for other legitimate reasons, he may, within five days after the obstacle is removed, apply to continue the proceedings that should have been completed before the expiration of the time period.

  A people's court shall decide whether or not to approve the application described in the preceding paragraph.

  Article 57 Summons, notices and other court documents shall be delivered to the addressee himself; if the addressee is absent, the documents may be received on his behalf by an adult member of his family or a responsible person of his unit.

  If the addressee or a recipient on his behalf refuses to accept the documents or refuses to sign and affix his seal to the receipt, the person serving the documents may ask the addressee's neighbours or other witnesses to the scene, explain the situation to them, leave the documents at the addressee's residence, record on the service certificate the particulars of the refusal and the date of service and sign his name to it; the service shall thus be deemed to have been completed.

  Chapter IX Other Provisions

  Article 58 For the purpose of this Law, the definitions of the following terms are:

  (1) “Investigation” means the specialized investigatory work and related compulsory measures carried out according to law by public security organs and people's procuratorates in the process of handling cases.

  (2) “Parties” means private prosecutors, defendants and the plaintiffs and defendants in incidental civil actions.

  (3) “Legal representatives” means the parents, foster parents or guardians of a person being represented and representatives of the government organ or people's organization responsible for that person's protection.

  (4) “Participants in the proceedings” means the parties, victims, legal representatives, defenders, witnesses, expert witnesses and interpreters.

  (5) “Near relatives” means a person's husband or wife, father, mother, sons, daughters, and brothers and sisters born of the same parents.

  Part Two Filing a Case, Investigation and Initiation of Public Prosecution

  Chapter I Filing a Case

  Article 59 State organs, people's organizations, enterprises, institutions and citizens upon discovering facts of a crime or a criminal suspect shall have the right and duty to bring a complaint or accusation to a public security organ, people's procuratorate or people's court, as proper to the scopes of jurisdiction provided for in Article 13 of this Law.

  Public security organs, people's procuratorates and people's courts shall accept all complaints, accusations and the voluntary surrender of offenders. If a matter does not fall under the receiving organ's jurisdiction, it shall refer the matter to the competent organ and notify the complainant or the accuser. If the matter does not fall under the receiving organ's jurisdiction but calls for emergency measures, it shall take emergency measures first and then refer the matter to the competent organ.

  Article 60 Complaints and accusations may be filed in writing or orally. The person receiving an oral complaint or accusation shall make a written record of it, which, after being read to the complainant or accuser and found free of error, shall be signed or sealed by the complainant or accuser.

  The person receiving a complaint or an accusation shall clearly explain to the complainant or accuser the legal responsibility that shall be incurred for making a false accusation. However, a complaint or accusation that does not accord with the facts, or even a mistaken complaint shall be strictly distinguished from a false accusation, as long as no fabrication of facts or falsification of evidence is involved.

  If the complainant or accuser wishes to remain anonymous, his name shall be kept confidential during the period of investigation.

  Article 61 A people's court, people's procuratorate or public security organ shall, within the scope of its jurisdiction, promptly examine the materials provided by a complainant or accuser and the confession of an offender who has voluntarily surrendered. If it believes that there are facts of a crime and criminal responsibility should be investigated, it shall file a case.

  If it believes that there are no facts of a crime or that the facts are obviously incidental and do not require investigation of criminal responsibility, it shall not file a case and shall notify the complainant of the reason. If the complainant does not agree with the decision, he may ask for reconsideration.

  Chapter II Investigation

  Section 1 Interrogation of the Defendant

  Article 62 Interrogation of a defendant must be conducted by the investigatory personnel of a people's procuratorate or public security organ. During an interrogation, there must be no fewer than two members of the investigatory personnel participating.

  Article 63 A defendant who does not need to be arrested or detained may be summoned to a designated place for interrogation, or he may be interrogated at his residence or his unit, but in all cases the investigatory personnel shall produce a certificate issued by a people's procuratorate or public security organ.

  Article 64 When interrogating a defendant, the investigatory personnel shall first ask the defendant whether or not he has committed any criminal act, and let him state the circumstances of his guilt or explain his innocence; then they may ask him other questions. The defendant shall answer the investigatory personnel's questions truthfully, but he shall have the right to refuse to answer any questions that are irrelevant to the case.

  Article 65 During the interrogation of a defendant who is deaf or mute, a person who has a good command of sign language shall participate, and such circumstances shall be noted in the record.

  Article 66 The record of an interrogation shall be shown to the defendant for checking; if the defendant cannot read, the record shall be read to him. If there are omissions or errors in the record, the defendant may make additions or corrections. When the defendant acknowledges that the record is free from error, he shall sign or affix his seal to it. The investigatory personnel shall also sign the record. If the defendant requests to write a personal statement, he shall be permitted to do so. When necessary, the investigatory personnel may also ask the defendant to write a personal statement.

  Section 2 Questioning of the Witnesses

  Article 67 Investigatory personnel may question a witness at his unit or residence, but they must produce a certificate issued by a people's procuratorate or public security organ. When necessary, they may also notify the witness to give testimony at the people's procuratorate or public security organ.

  Witnesses shall be questioned individually.

  Article 68 When a witness is questioned, he shall be instructed to provide evidence and give testimony truthfully and shall be informed of the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence.

  Article 69 The provisions of Article 66 of this Law shall also apply to the questioning of witnesses.

  Article 70 The provisions of all articles in this Section shall apply to the questioning of victims.

  Section 3 Inquest and Examination

  Article 71 Investigatory personnel shall conduct an inquest or examination of the sites, objects, people and corpses relevant to a crime. When necessary, experts may be assigned or invited to conduct an inquest or examination under the direction of the investigatory personnel.

  Article 72 Each and every unit and individual shall have the duty to preserve the scene of a crime and to immediately notify a public security organ to send personnel to hold an inquest.

  Article 73 Investigatory personnel must carry a certificate issued by a public security organ while conducting an inquest or examination.

  Article 74 If the cause of a death is unclear, a public security organ shall have the power to order an autopsy and shall notify the family members of the deceased to be present.

  Article 75 An examination may be conducted of the person of the victim or defendant in order to ascertain some of his characteristics or physiological condition, or the circumstances of the injury.

  If a defendant refuses to be examined, the investigatory personnel, when they deem it necessary, may conduct a compulsory examination.

  Examination of the persons of women shall be conducted by female personnel or doctors.

  Article 76 A record shall be made of the circumstances of an inquest or examination, and it shall be signed or sealed by the participants in the inquest or examination and the eyewitnesses.

  Article 77 If, in reviewing a case, a people's procuratorate deems it necessary to repeat an inquest or examination that has been done by a public security organ, it may ask the latter to conduct another inquest or examination and may send procuratorial personnel to participate in it.

  Article 78 When necessary and with the approval of the director of a public security bureau, investigative experiments may be conducted in order to clarify the circumstances of a case.

  In conducting investigative experiments, it shall be forbidden to take any action which is hazardous, humiliating to anyone, or offensive to public morals.

  Section 4 Search

  Article 79 In order to collect criminal evidence and track down an offender, investigatory personnel may search the person, belongings and residence of the defendant and anyone who might be hiding a criminal or criminal evidence, as well as other relevant places.

  Article 80 Every unit and individual shall have the duty to surrender, at the request of a people's procuratorate or public security organ, any material or documentary evidence that may prove a defendant's guilt or innocence.

  Article 81 When a search is to be conducted, a search warrant must be shown to the person to be searched.

  If an emergency occurs when an, arrest or detention is being made, a search may be conducted without a search warrant.

  Article 82 During a search, the person to be searched or his family members, neighbours or other eyewitnesses shall be present at the scene. Searches of the persons of women shall be conducted by female personnel.

  Article 83 A record shall be made of the circumstances of a search, and it shall be signed or sealed by the investigatory personnel and the person searched or his family members, neighbours or other eyewitnesses. If the person searched or his family members have become fugitives or refuse to sign or affix their seals to the record, this shall be noted in the record.

  Section 5 Seizure of Material Evidence and Documentary Evidence

  Article 84 Any articles and documents discovered during an inquest or search that may be used to prove a defendant's guilt or innocence shall be seized. Objects and documents which are irrelevant to the case may not be seized.

  Seized articles and documents shall be properly kept or sealed for safekeeping and may not be utilized or damaged.

  Article 85 All seized articles and documents shall be carefully checked by the investigatory personnel jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made in duplicate on the spot and shall be signed or sealed by the investigatory personnel, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference.

  Article 86 If the investigatory personnel deem it necessary to seize the mail or telegrams of a defendant, they may, upon approval of a public security organ or a people's procuratorate, notify the post and telecommunications offices to hand over the relevant mail and telegrams for seizure.

  When it becomes unnecessary to continue a seizure, the post and telecommunications offices shall be immediately notified.

  Article 87 If any seized articles, documents, mail or telegrams are proved through investigation to be irrelevant to a case, they shall be promptly returned to their original owners or the original post and telecommunications offices.

  Section 6 Expert Evaluation

  Article 88 When certain special problems relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to give their evaluations.

  Article 89 After evaluating a matter, the expert shall write a conclusion of expert evaluation and affix his signature to it.

  Article 90 A defendant shall be notified of any expert conclusion which will be used as evidence in his case. A supplementary expert evaluation or anew expert evaluation may be conducted at the defendant's request.

  Section 7 Wanted Orders

  Article 91 If a defendant who should be arrested is a fugitive, a public security organ may issue a wanted order and take effective measures to pursue him for arrest and bring him to justice.

  Public security organs at any level may directly issue wanted orders within the areas under their jurisdiction; they shall request a higher-level organ with the proper authority to issue orders for areas beyond their jurisdiction.

  Section 8 Conclusion of Investigation

  Article 92 The time limit for holding a defendant in custody during investigation shall not exceed two months. If the circumstances of a case are complex and the case cannot be concluded within that time limit, an extension of one month may be allowed with the approval of the people's procuratorate at the next higher level.

  In the event of a particularly grave and complex case which still cannot be concluded within the extension period as provided in the preceding paragraph, the Supreme People's Procuratorate shall request the Standing Committee of the National People's Congress to approve a postponement of the hearing of the case.

  Article 93 After a people's procuratorate has concluded its investigation of a case, it shall make a decision whether to initiate a public prosecution, exempt from prosecution or dismiss the case.

  After a public security organ has concluded its investigation of a case, it shall make a written recommendation to initiate prosecution or exempt from prosecution, and the written recommendation shall be transferred together with the case file and evidence to the people's procuratorate at the same level for examination and decision.

  Article 94 If it is discovered during an investigation that a defendant's criminal responsibility should not have been investigated, the case shall be dismissed; if the defendant is under arrest, he shall be released immediately and issued a release certificate, and the people's procuratorate which originally approved the arrest shall be notified.

  Chapter III Initiation of Public Prosecution

  Article 95 A11 cases requiring initiation of a public prosecution or exemption from prosecution shall be examined and decided by the people's procuratorates.

  Article 96 In examining a case, a people's procuratorate shall ascertain:

  (1) whether the facts and circumstances of the crime are clear, whether the evidence is reliable and sufficient and whether the charge and the nature of the crime has been correctly determined;

  (2) whether there are any crimes that have 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 97 A people's procuratorate shall make a decision within one month on a case that a public security organ has transferred to it with a recommendation to initiate a public prosecution or exempt from prosecution; an extension of a half month may be allowed for major or complex cases.

  Article 98 When examining a case, a people's procuratorate shall interrogate the defendant.

  Article 99 In examining a case requiring supplementary investigation, a people's procuratorate may conduct the investigation itself or remand the case to a public security organ for supplementary investigation.

  In cases where supplementary investigation is to be conducted, it shall be completed within a month.

  Article 100 When a people's procuratorate considers that the facts of a defendant's crime have been ascertained, that the evidence is reliable and sufficient and that criminal responsibility should be investigated according to law, it shall make a decision to initiate prosecution and shall, in accordance, with the provisions for trial jurisdiction, initiate a public prosecution in a people's Court.

  Article 101 The people's procuratorate may exempt from prosecution any case that, according to the provisions of the Criminal Law, does not require criminal punishment or for which exemption from criminal punishment may be granted.

  Article 102 A decision to exempt from prosecution shall be announced publicly, and a written decision to exempt from prosecution shall be delivered to the defendant and to his unit. If the defendant is in custody, he shall be released immediately.

  When a people's procuratorate decides to exempt from prosecution a case transferred by a public security organ with a recommendation to initiate a prosecution, it shall deliver a written decision to exempt from prosecution to the public security organ. If the public security organ considers the decision to be mistaken, it may demand reconsideration, and if the demand is rejected, it may request the people's procuratorate at the next higher level to review the case.

  If the people's procuratorate decides to exempt from prosecution a case that involves a victim, it shall send a written decision to exempt from prosecution to the victim. If the victim does not accept the decision, he may present a petition to the people's procuratorate within seven days after receiving the written decision. The people's procuratorate shall notify the victim of the result of its reexamination.

  Article 103 If a defendant does not accept a decision to exempt from prosecution, be may present a petition to the people's procuratorate within seven days. The people's procuratorate shall make a decision to conduct a reexamination, notify the defendant of the decision and at the same time send a copy of it to the public security organ.

  Article 104 If a defendant is under any one of the circumstances provided in Article 11 of this Law, the people's procuratorate shall make a decision not to prosecute. The provisions of Article 102 of this Law shall apply to a decision not to prosecute.

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