中华人民共和国刑事诉讼法（一）

会计考友 · 发表于 2012-8-16 08:34:12

　　中华人民共和国刑事诉讼法
　　CRIMINAL PROCEDURE LAW OF THE PEOPLE'S REPUBLIC OF CHINA
　　（Adopted at the Second Session of the Fifth National People's Congress on July 1， 1979， promulgated by Order No.6 of the Chairman of the Standing Committee of the National People's Congress on July 7， 1979， and effective as of January 1， 1980）（Editor's Note： This Law was revised by the Decision of the National People's Congress on Amendments of the Criminal Procedure Law of the People's Republic of China promulgated on March 17， 1996）
　　时效性：已被修正　颁布日期：19790701 　实施日期：19800101 　失效日期：19970101 　颁布单位：全国人大
　　Contents
　　Part One General Provisions
　　Chapter I The Guiding Ideology， Aim and Basic Principles
　　Chapter II Jurisdiction
　　Chapter III Withdrawal
　　Chapter IV Defence
　　Chapter V Evidence
　　Chapter VI Compulsory Measures
　　Chapter VII Incidental Civil Actions
　　Chapter VIII Time Periods and Service Chapter IX Other Provisions
　　Part Two Filing a Case， Investigation and Initiation of Public Prosecution
　　Chapter I Filing a Case
　　Chapter II Investigation
　　Section 1 Interrogation of the Defendant
　　Section 2 Questioning of the Witnesses
　　Section 3 Inquest and Examination
　　Section 4 Search
　　Section 5 Seizure of Material Evidence and Documentary Evidence
　　Section 6 Expert Evaluation
　　Section 7 Wanted Orders
　　Section 8 Conclusion of Investigation
　　Chapter III Initiation of Public Prosecution
　　Part Three Trial
　　Chapter I Trial Organizations
　　Chapter II Procedure of First Instance
　　Section 1 Cases of Public Prosecution
　　Section 2 Cases of Private Prosecution
　　Chapter III Procedure of Second Instance
　　Chapter IV Procedure for Review of Death Sentences
　　Chapter V Procedure for Trial Supervision Part Four Execution
　　Part One General Provisions
　　Chapter I The Guiding Ideology， Aim and Basic Principles
　　Article 1 The Criminal Procedure Law of the People's Republic of China， which takes Marxism-Leninism-Mao Zedong Thought as its guide and the Constitution as its basis， is formulated in the light of the concrete experiences of the people of all China's nationalities in carrying out the people's democratic dictatorship， led by the proletariat and based on the worker-peasant alliance， that is， the dictatorship of the proletariat， and in accordance with the actual need to strike the enemy and protect the people.
　　Article 2 The aim of the Criminal Procedure Law of the People's Republic of China is to ensure that the facts of crimes shall be accurately and promptly ascertained， that the application of law shall be correct and that criminals shall be punished； to guarantee that innocent people shall not under go criminal prosecution； to educate citizens to voluntarily observe the law and actively struggle against criminal acts， in order to uphold the socialist legal system； to protect the citizens rights of the person， democratic rights and other rights； and to guarantee the smooth progress of the cause of the socialist revolution and socialist construction.
　　Article 3 The public security organs shall be responsible for investigation， detention and preliminary examination in criminal cases. The people's procuratorates shall be responsible for approving arrests， conducting procuratorial work （including investigation） and initiating public prosecution. The people's courts shall be responsible for adjudication. No other organ， organization or individual shall have the right to exercise such powers.
　　In conducting criminal proceedings， the people's courts， the people's procuratorates and the public security organs must strictly observe this Law and any relevant stipulations of other laws.
　　Article 4 In conducting criminal proceedings， the people's courts， the people's procuratorates and the public security organs must rely on the masses， base themselves on facts and take the law as the criterion. The law applies equally to all citizens and no privilege whatsoever is permissible before the law.

会计考友 · 发表于 2012-8-16 08:34:13

　　Article 5 In conducting criminal proceedings， the people's courts， the people's procuratorates and the public security organs shall divide the responsibilities， coordinate their efforts and check each other to ensure the correct and effective enforcement of the law.
　　Article 6 Citizens of all nationalities shall have the right to use their native spoken and written languages in court proceedings. The people's courts， the people's procuratorates and the public security organs shall provide translations for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality.
　　Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area， court hearings shall be conducted in the spoken language commonly used in the locality， and judgments， notices and other documents shall be issued in the written language commonly used in the locality.
　　Article 7 In trying cases， the people's courts shall apply the system whereby the second instance is final.
　　Article 8 Cases in the people's courts shall be heard in public， unless otherwise provided by this Law. A defendant shall have the right to defence， and the people's courts shall have the duty to guarantee his defence.
　　Article 9 In trying cases， the people's courts shall apply the system of people's assessors taking part in trials in accordance with this Law.
　　Article 10 The people's courts， the people's procuratorates and the public security organs shall safeguard the procedural rights to which participants in proceedings are entitled according to law.
　　In cases where a minor under the age of 18 commits a crime， the legal representative of the defendant may be notified to be present at the time of interrogation and trial.
　　Participants in proceedings shall have the right to file charges against judicial， procuratorial and investigatory personnel whose acts infringe on their citizens' procedural rights or subject their persons to indignities.
　　Article 11 In any of the following circumstances， no criminal responsibility shall be investigated； if investigation has already been undertaken， the case shall be dismissed， or prosecution shall not be initiated， or innocence shall be declared：
　　（1） if an act is obviously of minor importance， causing no serious harm， and is therefore not deemed a crime；
　　（2） if the limitation period for criminal prosecution has expired；
　　（3） if an exemption of criminal punishment has been granted in a special amnesty decree；
　　（4） if the crime is to be handled only upon complaint according to the Criminal Law， but these has been no complaint or the complaint has been withdrawn；
　　（5） if the defendant is deceased； or
　　（6） if other laws or decrees provide an exemption from investigation of criminal responsibility.
　　Article 12 Provisions of this Law shall apply to foreigners who commit crimes for which criminal responsibility should be investigated.
　　If foreigners with diplomatic privileges and immunities commit crimes for which criminal responsibility should be investigated， those cases shall be resolved through diplomatic channels.
　　Chapter II Jurisdiction
　　Article 13 Minor criminal cases that are to be handled only upon complaint or do not require an investigation shall be directly accepted and may be mediated by the people's courts.
　　Cases involving crimes of corruption， violation of the citizens democratic rights and dereliction of duty， as well as other cases which the people's procuratorates consider necessary to handle directly themselves shall be placed on file by the people's procuratorates， which shall conduct investigation and decide whether or not to initiate a public prosecution.
　　All cases other than those provided in the two preceding paragraphs shall be investigated by the public security organs.
　　Article 14 The basic people's courts shall have jurisdiction as courts of first instance over ordinary criminal cases； however， those cases which fall under the jurisdiction of the people's courts at higher levels as stipulated by this Law shall be exceptions.

会计考友 · 发表于 2012-8-16 08:34:14

　　Article 15 The intermediate people's courts shall have jurisdiction as courts of first instance over the following criminal cases；
　　（1） counterrevolutionary cases；
　　（2） ordinary criminal cases punishable by life imprisonment or the death penalty； and
　　（3） criminal cases in which the offenders are foreigners or in which Chinese citizens have infringed upon the lawful rights of foreigners.
　　Article 16 The higher people's courts shall have jurisdiction as courts of first instance over major criminal cases that pertain to an entire province（or municipality directly under the Central Government， or autonomous region）。
　　Article 17 The Supreme People's Court shall have jurisdiction as the court of first instance over major criminal cases that pertain to the whole nation.
　　Article 18 When necessary， people's courts at higher levels may try criminal cases over which people's courts at lower levels have jurisdiction as courts of first instance； they may also transfer criminal cases over which they themselves have jurisdiction as courts of first instance to people's courts at lower levels for trial. If a people's court at a lower level considers the circumstances of a criminal case in the first instance to be major or complex and to necessitate a trial by a people's court at a higher level， it may request that the case be transferred to the people's court at the next higher lever for trial.
　　Article 19 A criminal case shall be under the jurisdiction of the people's court in the place where the crime was committed. If it is more appropriate for the case to be tried by the people's court in the place where the defendant resides， then that court may have jurisdiction over the case.
　　Article 20 When two or more people's courts at the same level have jurisdiction over a case， it shall be tried by the people's court that first accepted it. When necessary the case may be transferred for trial to the people's court in the principal place where the crime was committed.</p>
　　Article 21 A people's court at a higher level may instruct a people's court at a lower level to try a case over which jurisdiction is unclear and may also instruct a people's court at a lower level to transfer the case to another people's court for trial.
　　Article 22 The jurisdiction over cases in special people's courts shall be stipulated separately.
　　Chapter III Withdrawal
　　Article 23 In any of the following situations， a member of the judicial， procuratorial or investigatory personnel shall voluntarily withdraw， and the parties to the case and their legal representatives shall have the right to demand his with drawl：
　　（1） if he is a party or a near relative of a party to the case；
　　（2） if be or a near relative of his has an interest in the case；
　　（3） if he has served as a witness， expert witness or defender in the current case or has represented a party in an incidental civil action； or
　　（4） if he has any other relations with a party to the case that could affect the impartial handling of the case.
　　Article 24 The withdrawal of judicial， procuratorial and investigatory personnel shall be determined respectively by the president of the court， the chief procurator， and the head of a public security organ； the withdrawal of the president of the court shall be determined by the court's judicial committee； and the withdrawal of the chief procurator or the head of a public security organ shall be determined by the procuratorial committee of the people's procuratorate at the corresponding level.
　　A member of the investigatory personnel may not suspend investigation of a case before a decision is made on his withdrawal.
　　If a decision has been made to reject an application for withdrawal， a party may apply for one reconsideration.
　　Article 25 The provisions of Articles 23 and 24 of this Law shall also apply to court clerks， interpreters and expert witnesses.
　　Chapter IV Defence
　　Article 26 In addition to exercising the right to defend himself； the defendant may entrust the following persons to defend him：

会计考友 · 发表于 2012-8-16 08:34:15

　　（1） lawyers；
　　（2） citizens recommended by a people's organization or the unit to which the defendant belongs， or other citizens permitted by the people's court； and
　　（3） near relatives or guardians of the defendant.
　　Article 27 If a public prosecutor appears in court to conduct a public prosecution and the defendant has not entrusted anyone to be his defender， the people's court may designate a defender for him.
　　If the defendant is deaf or mute， or he is a minor， and thus has not entrusted anyone to be his defender， the people's court shall designate a defender for him.
　　Article 28 The responsibility of a defender shall be to present， according to the facts and the law， materials and opinions proving the innocence of the defendant， the pettiness of his crime and the need for a mitigated punishment or exemption from criminal responsibility， thus safeguarding the lawful rights and interests of the defendant.
　　Article 29 Defence lawyers may consult the file record of the current case， acquaint themselves with the circumstances of the case， and meet and correspond with the defendant in custody. Other defenders， when permitted by the people's court， may also acquaint themselves with the circumstances of the case and meet and correspond with the defendant in custody.
　　Article 30 During a trial， the defendant may refuse to have his defender continue to defend him and may entrust his defence to another defender.
　　Chapter V Evidence
　　Article 31 All facts that prove the true circumstances of a case shall be evidence.
　　There shall be the following six categories of evidence：
　　（1） material evidence and documentary evidence；
　　（2） testimony of witnesses；
　　（3） statements of victims；
　　（4） statements and exculpations of defendants；
　　（5） expert conclusions； and
　　（6） records of inquests and examination.
　　Any of the above evidence must be verified before it can be used as the basis for deciding cases.
　　Article 32 Judicial， procuratorial and investigatory personnel must， in accordance with the legally prescribed process， collect various kinds of evidence that can prove the defendant's guilt or innocence and the gravity of his crime. It shall be strictly forbidden to extort confessions by torture and to collect evidence by threat， enticement， deceit or other unlawful means. Conditions must be guaranteed for all citizens who are involved in a case or who have information about the circumstances of a case to objectively and fully furnish evidence and， except in special circumstances， they may be brought into help the investigation.
　　Article 33 The public security organ's requests for approval of arrest， the people's procuratorate's bills of prosecution and the people's court's written judgments must be faithful to the facts. The responsibility of anyone who intentionally conceals the facts shall be investigated.
　　Article 34 The people's courts， the people's procuratorates and the public security organs shall have the authority to collect or obtain evidence from the relevant state organs， enterprises， institutions， people's communes， people's organizations and citizens.
　　Evidence involving state secrets shall be kept confidential.
　　Anyone that falsifies， conceals or destroys evidence， regardless of which side of a case he belongs to， must be investigated under the law.
　　Article 35 In the decision of all cases， stress shall be laid on evidence， investigation and study； credence shall not be readily given to oral statements. A defendant cannot be found guilty and sentenced to a criminal punishment if there is only his statement but no evidence； the defendant may be found guilty and sentenced to a criminal punishment if evidence is sufficient and reliable， even without his statement.
　　Article 36 The testimony of a witness may be used as a basis in deciding a case only after the witness has been questioned and cross-examined in the courtroom by both sides， that is， the public prosecutor and victim as well as the defendant and defenders， and after the testimonies of the witnesses on all sides have been heard and verified. If a court discovers through investigation that a witness has intentionally given false testimony or concealed criminal evidence， it shall handle the matter in accordance with the law.

会计考友 · 发表于 2012-8-16 08:34:16

　　Article 37 All those who have information about a case shall have the duty to testify.
　　Physically or mentally handicapped persons or minors who cannot distinguish right from wrong or cannot properly express themselves shall not be qualified as witnesses.
　　Chapter VI Compulsory Measures
　　Article 38 The people's courts， the people's procuratorates and the public security organs may， according to the circumstances of a case， issue a warrant to compel the appearance of the defendant， order him to obtain a guarantor pending trial or subject him to residential surveillance.
　　A defendant under residential surveillance may not leave a designated area. Residential surveillance shall be carried out by the local public security station or by the people's commune or defendant's unit entrusted with the task.
　　If a new development occurs in a case where a defendant has obtained a guarantor pending trial or is placed under residential surveillance， these measures shall be revoked or altered.
　　Article 39 Arrests must be approved by a people's procuratorate or decided by a people's court and must be carried out by a public security organ.
　　Article 40 When the main facts of a crime have been already ascertained and the offender could be sentenced to a punishment of not less than imprisonment， and if such measures as allowing him to obtain a guarantor pending trial or placing him under residential surveillance would be insufficient to prevent the occurrence of danger to society， thus necessitating arrest， the off ender shall be immediately arrested according to law.
　　If an offender who should be arrested is seriously ill or is a pregnant woman or a woman breast-feeding her own baby， the offender may be allowed to obtain a guarantor pending trial or be placed under residential surveillance.
　　Article 41 Public security organs may initially detain an active criminal deserving arrest or a major suspect under any of the following conditions：
　　（1） if he is preparing to commit a crime， is in the process of committing a crime or is discovered immediately after committing a crime；
　　（2） if he is identified as having committed a crime by a victim or an eyewitness；
　　（3） if criminal evidence is found on his body or at his residence；
　　（4） if he attempts to commit suicide or escape after committing the crime， or he is a fugitive；
　　（5） if there is likelihood of his destroying or falsifying evidence or colluding with others to give false statements；
　　（6） if his identity is unknown and he is strongly suspected of committing crimes going from one place to another； and
　　（7） if he is engaged in “beating， smashing and looting” and is seriously undermining work， production and public order.
　　Article 42 The offenders listed below may be seized outright by any citizen and delivered to a public security organ， a people's procuratorate or a people's court for handling：
　　（1） any person who is committing a crime or is discovered immediately after committing a crime；
　　（2） any person who is wanted for arrest；
　　（3） any person who has escaped from prison； and
　　（4） any person who is being pursued for arrest.
　　Article 43 When detaining a person， a public security organ must produce a detention warrant.
　　Within 24 hours after a person has been detained， his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody， except in circumstances where such notification would hinder the investigation or there is no way of notifying them.
　　Article 44 A public security organ shall interrogate a detainee within 24 hours after detention. If it is found that the person should not have been detained， be must be immediately released and issued a release certificate. If the public security organ finds it necessary to arrest a detainee when sufficient evidence is still lacking， it may allow the detainee to obtain a guarantor pending trial or place him under residential surveillance.

会计考友 · 发表于 2012-8-16 08:34:17

　　Article 45 When a public security organ wishes to arrest an offender， it shall submit a written request for approval of arrest together with the case file and evidence to the people's procuratorate at the same level for examination and approval. When necessary， the people's procuratorate may send its personnel to participate in the public security organ's discussion of a major case.
　　Article 46 The chief procurator shall make the decision in a people's procuratorate's examination and approval of an arrest. Major cases shall be submitted to the procuratorial committee for discussion and decision.
　　Article 47 After a people's procuratorate has examined a case with respect to which a public security organ has submitted a request for approval of arrest， it shall decide according to the circumstances either to approve the arrest， disapprove the arrest， or request a supplementary investigation.
　　Article 48 If the public security organ deems it necessary to arrest a detainee， it shall， within three days after the detention， submit a request to the people's procuratorate for examination and approval. Under special circumstances， the time limit for submitting the request may be extended by one to four days. The people's procuratorate shall decide either to approve or disapprove the arrest within three days after receiving the request for approval of arrest from a public security organ. If the people's procuratorate disapproves the arrest， the public security organ shall， upon receiving notification of the decision， immediately release the detainee and issue him a release certificate.
　　If the public security organ or the people's procuratorate fails to act in accordance with the provisions of the preceding paragraph， the detainee and his family shall have the right to demand his release， and the public security organ or the people's procuratorate shall immediately release him.
　　Article 49 If the public security organ considers the people's procuratorate's decision to disapprove an arrest to be incorrect， it may request a reconsideration but must immediately release the detainee. If the public security organ's opinion is not accepted， it may request a review by the people's procuratorate at the next higher level. The higher people's procuratorate shall immediately review the matter， decide whether or not to make a change and notify the lower people's procuratorate and the public security organ to implement its decision.</p>

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