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中华人民共和国刑事诉讼法(三)

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

  Part Three Trial

  Chapter I Trial Organizations

  Article 105 Trials of cases of first instance in the basic and intermediate people's courts shall be conducted by a collegial panel composed of one judge and two people's assessors, except for cases of private prosecution and other minor criminal cases which may be tried by a single judge alone.

  Trials of cases of first instance in the higher people's courts or the Supreme People's Court shall be conducted by a collegial panel composed of one to three judges and two to four people's assessors.

  When performing their functions in the people's courts, the people's assessors shall enjoy equal rights with the judges.

  Trials of appealed and protested cases in the people's courts shall be conducted by a collegial panel composed of three to five judges.

  The president of the people's court or the chief judge of a division shall designate one judge to be the presiding judge of the collegial panel. If the president of the court or the chief judge of a division participates in a trial, be himself shall serve as the presiding judge.

  Article 106 If opinions differ when a collegial panel conducts its deliberations, the minority should yield to the majority, but the opinion of the minority shall be entered in the records. The records of the deliberations shall be signed by the members of the collegial panel.

  Article l07 All major or difficult cases that the president of the court believes should be referred to the judicial committee shall be submitted by him to the judicial committee for discussion and decision. The collegial panel shall execute the decisions of the judicial committee.

  Chapter II Procedure of First Instance

  Section 1 Cases of Public Prosecution

  Article 108 After a people's court has examined a case in which public prosecution was initiated, it shall decide to open the court session and try the case, if the facts of the crime are clear and the evidence sufficient; it may remand the case to the people's procuratorate for supplementary investigation, if the main facts are not clear and the evidence insufficient; it may ask the people's procuratorate to withdraw its prosecution, if no criminal punishment is necessary.

  Article 109 When necessary, a people's court may conduct inquests, examination, searches, seizures and expert. evaluations.

  Article 110 After a people's court has decided to open a court session, it shall proceed with the following work:

  (1) to determine the members of the collegial panel;

  (2) to deliver to the defendant a copy of the bill of prosecution of the people's procuratorate no later than seven days before the opening of the court cession and inform the defendant that be may appoint a defender or, when accessory, designate defender for him;

  (3) to notify the people's procuratorate of the time and place of the court cession three days before the opening of the session;

  (4) to summon the parties and notify the defenders, witnesses, expert witnesses and interpreters, and deliver the summons and notices no later than three days before the opening of the count session; and

  (5) to announce in advance the subject matter of any case to be heard in public, the name of the defendant and the time and place of the court session.

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

  Article 111 Cases of first instance in a people's court shall be heard in public. However, cases involving state secrets or the private affairs of individuals shall not be beard in public.

  No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public. Generally, cases involving crimes committed by minors who have reached the age of 16 but and the age of 18shall also not be heard in public.

  The reason for not hearing a case in public shall be announced in court.

  Article 112 When a case of public prosecution is being tried in a people's court, the people's procuratorate shall send its personnel to the court to support the public prosecution, unless the criminal act is relatively minor and the people's court has agreed to forgo such personnel. If a member of the procuratorial personnel attending a court session discovers any illegalities during the proceedings, he shall have the right to suggest corrections to the court.

  Article 113 When a court session opens, the presiding judge shall ascertain if all the parties have appeared in court and announce the subject matter of the case. He shall announce the roll, naming the members of the collegial panel, the court clerk, the public prosecutor, the defender, the expert witnesses and the interpreter ; be shall inform the parties of their right to ask any member of the collegial panel, the court clerk, the public prosecutor, any expert witnesses or the interpreter to withdraw; and he shall inform the defendant of his right to defence.

  Article 114 After the public prosecutor has read out the bill of prosecution in court, the judicial personnel shall begin to question the defendant.

  With the permission of the presiding judge, the public prosecutor may interrogate the defendant.

  After the judicial personnel have questioned the defendant and with the permission of the presiding judge, the victim as well as the plaintiff and defender in an incidental civil action may put questions to the defendant.

  Article 115 When questioning a witness, the judicial personnel and the public prosecutor shall instruct the witness to give testimony truthfully and explain to him the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence. The parties and the defenders may request the presiding judge to question the witnesses or expert witnesses, or ask the presiding judge's permission to put their own questions directly. If he presiding judge considers any questioning irrelevant to the case, he shall put a stop to it.

  Article 116 The judicial personnel shall show the material evidence to the defendant for him to identify. The records of testimony of witnesses who are not present in court, the conclusions of the expert witnesses, the records of inquests and other documents serving as evidence shall be read out in court, and the opinions of the parties and the defenders shall be heard.

  Article 117 During a court hearing, the parties and the defenders shall have the right to request new witnesses to be summoned, new material evidence to be collected, a new expert evaluation to be made, and another inquest to be held.

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

  Article 118 After an inquiry has been held in the courtroom, the public prosecutor and the victim shall speak; then the defendant shall make a statement and defend himself; and the defender shall conduct the defence; in addition, the participants may debate with each other. After the presiding judge has declared the conclusion of the debate, the defendant shall have the right to present a final statement.

  Article 119 If any participant in the proceedings of a trial violates the order of the courtroom, the presiding judge shall warn him to desist; if the circumstances are serious, the presiding judge may order him to leave the courtroom or investigate their criminal responsibility according to law.

  Article 120 After a defendant makes his final statement the presiding judge shall announce an adjournment; the collegial panel shall conduct its deliberations and, on the basis of the established facts and evidence and in accordance with the relevant provisions of the law, render a judgment on the defendant's guilt or innocence, specifying the crime committed and the criminal punishment to be applied or exemption from criminal punishment as appropriate.

  Article 121 In all cases, judgments shall be pronounced publicly.

  If the judgment on a case is pronounced in court, a written judgment shall be delivered within five days to the parties and the people's procuratorate that initiated the public prosecution. In cases where the judgment is pronounced later on a fixed date, the written judgment shall be delivered immediately after the pronouncement to the parties and the people's procuratorate that initiated the public prosecution.

  Article 122 The written judgment shall be signed by the members of the collegial panel and by the court clerk, and the time limit for appeal and the name of the appellate court shall be clearly indicated therein.

  Article 123 A hearing may be postponed if during a trial one of the following circumstances affecting the conduct of a trial occurs:

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

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

  (3) if the collegial panel considers the evidence of a case insufficient or discovers new facts, requiring it to either remand the case to the people's procuratorate for supplementary investigation or conduct its own inquiry; or

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

  Article 124 The court clerk shall make a written record of the entire court proceedings, which shall be examined by the presiding judge and then signed by him and the court clerk.

  That portion of the courtroom record comprising the testimony of witnesses shall be read out in court or given to the witnesses to read. After the witnesses acknowledge that the record is free of error, they shall sign or affix their seals to it.

  The courtroom record shall be given to the parties to read or shall be read out to them. If a party considers that there are omissions or errors in the record, he may request additions or corrections to be made. After the parties acknowledge that the record is free of error, they shall sign or affix their seals to it.

  Article 125 A people's court shall pronounce judgment on a case of public prosecution within one month or, one and a half months at the latest, after accepting it for trial.

  Section 2 Cases of Private Prosecution

  Article 126 After examining a case of private prosecution, the people's court may handle it according to the conditions set forth below.

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

  (2) If the case requires public prosecution by a people's procuratorate, it shall be transferred to a people's procuratorate.

  (3) In a case of private prosecution where criminal evidence is lacking, if the private prosecutor fails to present supplementary evidence and the people's court is unable to obtain the necessary evidence through investigation, the court shall persuade the private prosecutor to withdraw his prosecution or order its rejection.

  (4) If the defendant's act does not constitute a crime, the people's court shall persuade the private prosecutor to with draw his prosecution or order its rejection.

  Article 127 A people's court may conduct mediation in a case of private prosecution; the private prosecutor may arrange a settlement with the defendant or withdraw his prosecution before a judgment is pronounced.

  Article 128 In the process of the proceedings, the defendant in a case of private prosecution may raise a counterclaim against the private prosecutor. The provisions governing private prosecutions shall apply to counterclaims.

  Chapter III Procedure of Second Instance

  Article 129 If a party or his legal representative refuses to accept a judgment or order of first instance of a local people's court at any level, he shall have the right to appeal in writing or orally to the people's court at the next higher level. Defenders or a defendant's near relatives may file appeals with the consent of the defendant.

  A party to an incidental civil action or his legal representative may file an appeal against the portion of a judgment or order of first instance of the local people's courts that deals with the incidental civil action.

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

  Article 130 If a local people's procuratorate considers that there is some definite error in a judgment or order of first instance of a people's court at the same level, it shall present a protest to the people's court at the next higher level.

  Article 131 The time limit for an appeal or a protest against a judgment shall be ten days and the time limit for an appeal or a protest against an order shall be five days; the time limit shall be counted from the day after the written judgment or order is received.

  Article 132 If a party files an appeal through the people's court which originally tried a case, the people's court shall within three days transfer the petition of appeal together with the case file and the evidence to the people's court at the next higher level; at the same time it shall deliver duplicates of the petition of appeal to the people's procuratorate at the same level and to the other parties.

  If a party files an appeal directly to the people's court of second instance, that people's court shall within three days transfer the petition of appeal to the people's court which originally tried the case, for delivery to the people's procuratorate at the same level and to the other parties.

  Article 133 If a local people's procuratorate protests against a judgment or order of first instance of the people's court at the same level, it shall present a written protest through the people's court which originally tried the case and send a copy of the written protest to the people's procuratorate at the next higher level. The people's court which originally tried the case shall transfer the written protest together with the case file and evidence to the people's court at the next higher level and shall deliver duplicates of the written protest to the parties.

  If the people's procuratorate at the next higher level considers the protest inappropriate, it may withdraw the protest from the people's court at the same level and notify the people's procuratorate at the next lower level.

  Article 134 A people's court of second instance shall conduct a complete review of the facts determined and the application of law in the judgment of first instance and shall not be limited by the scope of appeal or protest.

  If an appeal is filed by only some of the defendants in a case of joint crime, the case shall still be reviewed and handled as a whole.

  Article 135 In cases where a people's procuratorate files a protest or a people's court of second instance requests personnel from a people's procuratorate to be in court, the people's procuratorate at the same level shall send personnel to the court. The people's court of second instance must notify the people's procuratorate ten days before the opening of a court session to examine the case files.

  Article 136 After hearing a case of appeal or protest against a judgment of first instance, the people's court of second instance shall handle it according to the conditions set forth below.

  (1) If the original judgment was correct in the determination of facts and the application of law and appropriate in the meting out of punishment, the people's court shall order rejection of the appeal or protest and affirm the original judgment.

  (2) If the original judgment contained no error in the determination of facts but the application of law was incorrect or the punishment was inappropriately decided, the people's court shall revise the judgment.

  (3) If the facts in the original judgment are unclear or the evidence insufficient, the people's court may revise the judgment after ascertaining the facts, or it may rescind the original judgment and remand the case to the people's court which originally tried the case for retrial.

  Article 137 In the trial of a case appealed by a defendant, or his legal representative, defender or near relative, the people's court of second instance may not increase the criminal punishment on the defendant.

  The restriction laid down in the preceding paragraph shall not apply to cases protested by a people's procuratorate or cases appealed by private prosecutors.

  Article 138 If a people's court of second instance discovers that a people's court of first instance has violated the litigation procedures stipulated by law, and the correct rendering of judgment may have thus been affected, it shall rescind the original judgment and remand the case to the people's court which originally tried the case for retrial.

  Article 139 The people's court which originally tried a case shall conduct a retrial of the case remanded to it in accordance with the procedure of first instance. The parties may appeal and the people's procuratorate at the same level may protest against the judgment rendered after the retrial.

  Article 140 After a people's court of second instance has reviewed an appeal or protest against an order of first instance, it shall order rejection of the appeal or protest or quash or revise the original order respectively with reference to the provisions of Articles 136, 138 and 139 of this Law.

  Article 141 A people's court of second instance shall try cases of appeal or protest with reference to the procedure of first instance unless otherwise stipulated in this Chapter.

  Article 142 A people's court of second instance shall conclude the trial of a case of appeal or protest within one month or, one and a half months at the latest, after accepting it for trial.

  Article 143 A11 judgments and orders of second instance and all judgments and orders of the Supreme People's Court shall be final.

  Chapter IV Procedure for Review of Death Sentences

  Article 144 Death sentences shall be approved by the Supreme People's Court.

  Article 145 A case of first instance where an intermediate people's court has imposed a death sentence and the defendant does not appeal shall be reviewed by a higher people's court and reported to the Supreme People's Court for approval. If the higher people's court does not agree with the death sentence, it may bring the case up for trial or remand the case for trial.

  Cases of first instance where a higher people's court bas imposed a death sentence and the defendant does not appeal, and cases of second instance where a death sentence has been imposed shall all be submitted to the Supreme People's Court for approval.

  Article 146 A case where an intermediate people's court has imposed a death sentence with a two-year suspension of execution, shall be approved by a higher people's court.

  Article l47 Reviews by the Supreme People's Court of cases involving death sentences and reviews by a higher people's court of cases involving death sentences with a suspension of execution shall be conducted by collegial panels composed of three judges.

  Chapter V Procedure for Trial Supervision

  Article 148 A party or a victim and his family or other citizens may present a petition to a people's court or people's procuratorate regarding a legally effective judgment or order, but the execution of the judgment or order cannot be suspended.

  Article 149 If the president of a people's court at any level finds some definite error in a legally effective judgment or order of his court as to the determination of facts or application of law, he shall refer the matter to the judicial committee for handling.

  If the Supreme People's Court finds some definite error in a legally effective judgment or order of a people's court at any lower level, or if a people's court at a higher level finds some definite error in a legally effective judgment or order of a people's court at a lower level, it shall have the power to bring the case up for trial itself or may direct a people's court at a lower level to conduct a retrial.

  If the Supreme People's Procuratorate finds some definite error in a legally effective judgment or order of a people's court at any level, or if a people's procuratorate at a higher level finds some definite error in a legally effective judgment or order of a people's court at a lower level, it shall have the power to protest against the judgment or order in accordance with the procedure for trial supervision.

  Article 150 A new collegial panel shall be formed for the retrial of a case by a people's court in accordance with the procedure for trial supervision. If the case was originally one of first instance, it shall be tried in accordance with the procedure of first instance and the new judgment or order may be appealed or protested. If the case was originally one of second instance or was brought up for trial by a people's court at a higher level, it shall be tried in accordance with the procedure of second instance and the judgment or order rendered shall be final.

  Part Four Execution

  Article 151 Judgments and orders shall be executed after they become legally effective.

  The following judgments and orders are legally effective:

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

  (2) judgments and orders of final instance; and

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

  Article 152 If a defendant in custody is given the verdict of not guilty or exempted from criminal punishment by a people's court of first instance, he shall be released immediately after the judgment is pronounced.

  Article 153 When a judgment of the death penalty with immediate execution is pronounced or approved by the Supreme People's Court, the President of the Supreme People's Court shall sign and issue an order to execute the death sentence.

  If a criminal sentenced to death with a two-year suspension of execution shows true repentance or renders meritorious service during the period of suspension of the sentence, and his punishment should therefore be commuted according to law, the executing organ shall submit a written recommendation to the higher people's court in the locality for an order; if there is verified evidence that a criminal has resisted reform in a flagrant way and his death sentence should therefore be executed, the higher people's court must submit the matter to the Supreme People's Court for approval.

  Article 154 After receiving an order from the Supreme People's Court to execute a death sentence, the people's court at a lower level shall cause the sentence to be executed within seven days. However, under either of the following conditions the people's court at a lower level shall suspend execution and immediately submit a report to the Supreme People's Court for an order:

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

  (2) if the criminal is pregnant.

  If the first reason in the preceding paragraph which caused the suspension of a sentence, has disappeared, the sentence may be executed only after a report is submitted to the President of the Supreme People's Court for him to sign and issue another order to execute the death sentence. If execution is suspended for the second reason in the preceding paragraph, the matter shall be reported to the Supreme People's Court, requesting it to revise the sentence according to law.

  Article 155 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 official to supervise the execution.

  The judicial personnel directing the execution shall verify the identity of the criminal, ask him if he bas any last words or letters and then deliver him to the executioner for execution of the death sentence. If it is discovered before the execution that there may be an error, the execution shall be suspended and a report submitted to the Supreme People's Court for an order.

  Executions of death sentences shall be announced but shall not be held in public.

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

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

  Article 156 If cases of criminals who are sentenced to death with a two-year suspension of execution, or to life imprisonment, fixed-term imprisonment or criminal detention, the people's court that caused the sentence to be executed shall deliver the notice of execution of the sentence and the written judgment to the prison or other place of reform through labour for the sentence to be executed; the executing organ shall notify the family of the criminal.

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

  Article 157 A criminal sentenced to life imprisonment, fixed-term imprisonment or criminal detention may be permitted to temporarily serve his term outside prison under either of the following conditions:

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

  (2) if the criminal is a pregnant woman or a woman breast-feeding her own baby.

  In cases where a criminal serves his sentence outside prison, the public security organ may entrust the execution of his sentence to the public security station at the criminal's original place of residence, and the local grass-roots organization or the criminal's original unit shall assist in the supervision.

  Article 158 A criminal who has been sentenced to imprisonment with a suspension of execution shall be delivered by the public security organ to his unit or a grass-roots organization for observation.

  A criminal released on parole shall be supervised by a public security organ during the probation period for parole.

  Article 159 Sentences of public surveillance or deprivation or political rights that have been imposed on criminals shall be executed by the public security organs. When such a sentence has been completed, the executing organ shall notify the criminal himself and publicly announce to the masses concerned the ending of public surveillance or there straiten of political rights.

  Article 160 If a criminal sentenced to a fine fails to pay the fine within the time limit, the people's court shall compel him to pay. If he has true difficulties in paying because he bas suffered an unavoidable disaster, an order may be made to reduce the fine or exempt him from payment.

  Article 161 All sentences of confiscation of property, whether imposed as a supplementary punishment or independently, shall be executed by the people's courts; when necessary, the people's courts may execute such judgments jointly with the public security organs.

  Article 162 If a criminal commits a new crime while serving his sentence, or if a criminal act is discovered that was not known at the time of judgment, the prison or the organ in charge of reform through labour shall transfer his case to the people's procuratorate for handling.

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

  Article 163 If during the execution of a punishment, if the prison or the organ in charge of reform through labour believes that there is an error in the judgment, or the criminal makes a petition, it shall refer the matter to the people's procuratorate or people's court that pronounced the original judgment.

  Article 164 The people's procuratorates shall supervise the execution of judgments and orders in criminal cases and the activities of prisons, detention houses and organs in charge of reform through labour to see that such executions and activities conform to the law. If they discover any illegalities, they shall notify the executing organs to correct them.

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