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Article 1. These Provisions shall apply to the court trial of criminal retrial cases pursuant to the procedures of first instance or second instance. Article 2. After the people's court receives a criminal protest filed by the people's procuratorate according to the procedure for prosecutorial supervision over adjudication, it shall deal with it in light of the following different circumstances respectively: (1) If it does not fall within the jurisdiction of this court, it shall decide to return it to the people's procuratorate; (2) If it is unable to find the defendant of the original instance (the appellant of the original instance) by following the address as indicated in the protest, the people's court shall ask the people's procuratorate that initiates the protest to assist it look for the defendant of the original instance. If it still fails to find the defendant of the original instance after the people's procuratorate has made efforts to do so, the people's court shall return the criminal protest to the people's procuratorate; (3) If the protest fails to clearly specify the exact address of the defendant of the original instance (appellant of the original instance), the people's court shall ask the people's procuratorate to make a supplement within 7 days. If the supplemented address is still unclear, or if the people's procuratorate fails to make a supplement within the time limit, the people's court shall maintain the original judgment; or (4) If the protest is initiated on the grounds that there are new proofs to show that the merits determined in the original judgment or ruling are wrong indeed, but the protest is not accompanied by a list of new proofs, list of witnesses and photocopies or photos of crucial proofs, the people's procuratorate shall make supplements within 7 days. If the supplemented materials are still incomplete, the people's court shall make a ruling to maintain the original judgment. Article 3. If the appeal is initiated on the grounds that there are new proofs to show that the merits determined in the original judgment or ruling are wrong indeed, the protest shall be accompanied by a list of new proofs, name list of witnesses, and photocopies or photos of crucial proofs. If it is necessary for the people's court to obtain proofs, the clues for the proofs shall be accompanied. If there are no clues accompanied, supplements shall be made within 7 days. If the supplemented clues are incomplete, or if no supplement is made within the time limit, the people's court shall decide to reject the appeal. Article 4. None of the members of the collegial panel for the trial of this case in the first instance, second instance or review proceeding may participate in the trial of this case in the retrial proceeding. Article 5. The people's court shall hear the following retrial cases by opening a court session: (1) A case which is to be tried according to the procedures of the first instance; (2) A case for which it is necessary to hear the merits or evidence according to the procedures of second instance; (3) A case that the people's procuratorate initiates a protest in accordance with the procedure for the prosecutorial supervision over adjudication; (4) A case that it is possible to impose a heavier punishment on the defendant of the original instance (appellant of the original instance); (5) Any other case for which a court session shall be opened. Article 6. No court session is required for any of the following retrial cases: (1) A case that the merits are determined clearly, the proofs are exact and sufficient, but the application of law is wrong and the sentence is too heavy in the original judgment or ruling; (2) A case for which a judgment or ruling had been made before the Criminal Procedural Law came into force in 1979; (3) A case that the defendant of the original instance (appellant of the original instance) or the private prosecutor has been dead, or has lost the capacity to bear criminal liabilities; (4) A case that the defendant of the original instance (appellant of the original instance) is serving a sentence in an outlying area where the traffic is most inconvenient and as a result it is really difficult to bring him (her) to the court; but if the people's court initiates a protest, the people's court shall obtain the consent of the people's procuratorate; (5) A case that the people's court decides to retry the case under the procedure for the prosecutorial supervision over adjudication, and the people's procuratorate fails to assign any person to appear in the court after the people's court has made two notifications to it according to Article 9 (4) of these Provisions. Article 7. When the people's court hears a retrial case of joint crime, if the retrial decision of the people's court or the protest of the people's procuratorate only is against some of the defendants of the original instance for the same case (appellants of the original instance for the same case), and if the absence of the appearance of the other defendants of the original instance for the same case (appellants of the original instance for the same case) will not affect the trial of the case, the other defendants are not required to appear in court to participate in the lawsuit. If some of the defendants of the original instance for the same case (appellant of the original instance for the same case) who satisfy the conditions as prescribed in Article 6 (3), or (4) of these Provisions can't appear in court, their absence of appearance will not affect the court trial. Article 8. Except the protest of the people's procuratorate, usually the retrial shall not impose a heavier punishment upon the defendant of the original instance (appellant of the original instance). Pursuant to Items (2) through (6) of Article 6, as well as Article 7, if no court session is required to be opened because the conditions for opening a court session are not satisfied, or if it is not required that the relevant defendants participate in the lawsuit by appearing in court, no heavier punishment may be imposed upon the defendant of the original instance (appellant of the original instance) or the defendants of the original instance for the same case (the appellants of the original instance for the same case). Article 9. Before the people's court opens a court session, it shall: (1) determine the members of the collegial panel; (2) not later than 30 days prior to the court session, not later than 60 days prior to the court session for a serious or complicate case, deliver to the people's procuratorate at the same level the retrial decision and duplicate of the appeal and inform it to consult the case files and prepare to appear in court; (3) not later than 30 days prior to the court session, deliver to the defendant of the original instance (appellant of the original instance) the retrial decision or duplicate of the protest and inform him that it may entrust a defender, or designate a lawyer who undertakes the obligation of legal aid to act as his defender; (4) not later than 15 days prior to the court session, not later than 60 days prior to the court session for a serious or complicate case, notify the defender to consult the case files and prepare to appear in court; (5) not later than 7 days prior to the court session, notify the people's procuratorate of the time and place of the court session; (6) summon the parties concerned, make a notification to the defender, litigation agent, witnesses, appraisers and translator. The service of the subpoenas and notices shall be made not later than 7 days prior to the court session; and (7) not later than 7 days prior to the court session for a case of open trial, announce the causes of action of the case, name of the defendant of the original instance (appellant of the original instance) as well as the time and place of the court session. Article 10. When the people's court tries a retrial case upon protest of the people's procuratorate, if the people's procuratorate fails to appear in court after it receives a notice of appearance, the people's court shall deal with the case by regarding it as being withdrawn by the people's procuratorate and make a notification to the litigation participants. Article 11. After the people's court decides to retry or to accept the protest, if the defendant of the original instance (appellant of the original instance) is serving a sentence, the people's court shall, upon the strength of the retrial decision or protest and a warrant for bringing a prisoner before the court, go through the formalities for bringing him (her) before the court. If the defendant of the original instance (appellant of the original instance) is in custody and if it is possible for the retrial to change the original judgment and declare him (her) innocent, after the people's court makes a ruling to stop the execution of the original ruling, he (she) may obtain a guarantor and await trial out of custody. If the defendant of the original instance (appellant of the original instance) is not in custody and if it is really necessary to take mandatory measures in pursuance of the law, after the people's court makes a ruling to stop the execution of the original ruling, it shall take mandatory measures. Article 12. After the defendant of the original instance (appellant of the original instance) receives a retrial decision or protest, if it is unable to locate his (her) whereabouts, or if he (she) fails to appear in court, the people's court shall stop the trial of the case. The trial shall not be resumed until the defendant of the original instance (appellant of the original instance) appears in court. If his (her) whereabouts remains unknown after the lapse of 2 years, the people's court shall make a ruling to terminate the trial. Article 13. The people's court shall, 30 days prior to the court session, notify the people's procuratorate, parties concerned or defender to consult and copy the list of new proofs, as well as the photocopies and photos of the new proofs submitted by both parties The people's court shall, 15 days prior to the court session, notify both the public prosecutor and defendant to consult and copy the list of new proofs, as well as the photocopies and photos of the new proofs picked up by the people's court. Article 14. During the period after both the public prosecutor and defendant receive the retrial decision or protest and before the people's court makes a notification about the date of court session, they may submit new proofs. After the court session is opened, the people's court will not accept any new evidence unless such evidence is advantageous to the defendant of the original instance (appellant of the original instance). Article 15. Prior to the court session, the collegial panel shall verify when and why the defendant of the original instance (appellant of the original instance) on whom a judgment was made by the people's court, whether or not he (she) committed any new crime when serving the sentence, whether or not his (her) sentence was commuted, whether or not he (she) was be released on parole, and when he will be released after completion of the sentence. Article 16. During the period prior to the start of court session and after the defendant of the original instance (appellant of the original instance) arrives at the place where the court session is to be opened, the collegial panel shall verify the basic information of the defendant of the original instance (appellant of the original instance) and inform him (her) of the right to defence and final statement. After the transcripts are made, they shall bear the signatures of the members and clerk of the collegial panel. Article 17. Prior to the start of court session, the chief judge shall announce the list of the members and clerk of the collegial panel, public prosecutor, defender, appraiser and translator and shall inform the parties concerned and legal agents of the right to apply for disqualification. Article 18. If the people's court decides to retry the case, one of the members of the collegial panel shall read out the retrial decision. For a retrial case upon protest of the people's procuratorate, the public prosecutor shall read out the protest. If the appeal was lodged by a party concerned and his (her) legal agent or his (her) close relative, the defendant of the original instance (appellant of the original instance) and his (her) defender shall state the grounds for the appeal. Article 19. Presided by the chief judge, both the public prosecutor and defendant shall respectively make a statement about the issues concerning the merits of the case, evidence, applicable law, etc. The collegial panel shall summarize and confirm the issues concerning the merits, evidence and applicable law which are undisputed and disputed between the public prosecutor and defendant. Article 20. Presided by the chief judge, the court investigation and debate shall be conducted on issues which are disputed between the public prosecutor and defendant. Article 21. Presided by the chief judge, both the public prosecutor and defendant shall cross-examine the new proofs, or the disputed proofs on which the conviction of crime and determination of punishment in the original judgment is based. Article 22. At the stage of debate, if an appeal was lodged by the defendant of the original instance (appellant of the original instance) and his (her) legal agent or his (her) close relative, the defendant of the original instance (appellant of the original instance) and his (her) defender shall first make a statement of defence, then the public prosecutor shall make a statement, and finally the victim and his agent shall make a statement. If an appeal was lodged by the victim and his (her) legal agent or his (her) close relative, the victim and his (her) agent shall first make a statement, then the public prosecutor shall make a statement, and finally the defendant of the original instance (appellant of the original instance) and his (her) defender shall make a statement of defence. If a protest was initiated by the people's procuratorate, the public prosecutor shall first make a statement, then the victim and his (her) agent shall make a statement, finally the defendant of the original instance (appellant of the original instance) and his (her) defender shall make a statement of defence. In the event that an appeal was lodged and a protest was initiated, the public prosecutor shall first make a statement, then the appealing party concerned and his (her) agent or defender shall make a statement or make an argument, finally the opposite party concerned and his agent or defender shall make a statement or make an argument. Upon permit of the chief judge, the public prosecutor, parties concerned and their defenders and litigation agents may debate with one another. Article 23. The collegial panel may declare the result of corroboration according to the proofs produced, cross-examined and debated by both parties. Article 24. Where a retrial changes the original judgment, and if a party concerned is declared innocent and if he (she) is entitled to apply for state compensation, when the judgment is declared, the collegial panel shall notify him (her) that he (she) is entitled to apply for state compensation as soon as the judgment becomes effective. Article 25. The people's court shall finish the trial of a retrial case within 3 months after it makes a decision of retrial. If it is necessary to extend the time limit, upon approval of the president of this court, it may extend 3 months at most. Computing from the next day after the people's procuratorate receives a notice about consulting the case files, the time that the people's procuratorate spends on consulting the case files after the expiration of the seven-day time limit for the people's procuratorate to consult the case files shall not be included in the time limit for the trial of the retrial case. Article 26. The court trial procedures for the retrial cases of criminal private prosecution tried according to the procedures of first instance or second instance shall be governed by these Provisions. Article 27. Where any relevant provisions on the court trial procedures of retrial cases issued by the Supreme People's Court prior to the promulgation of these Provisions are contrary to these Provisions, the latter shall prevail. Article 28. These Provisions shall come into force as of January 1, 2002. |
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