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TABLE OF CONTENTS I. CRIMINAL ADJUDICATION DOCUMENT OF THE FIRST INSTANCE II. CRIMINAL JUDGMENT OF THE FIRST INSTANCE ON THE CRIME COMMITTED BY AN ENTITY III. CRIMINAL ADJUDICATION DOCUMENTS OF THE FIRST INSTANCE MADE UNDER SUMMARY PROCEDURE IV. INCIDENTAL CIVIL JUDGMENT OF THE FIRST INSTANCE ATTACHED TO CRIMINAL LITIGATION V. CRIMINAL ADJUDICATION DOCUMENTS ON CRIMES COMMITTED BY THE MINORS VI. CRIMINAL ADJUDICATION DOCUMENTS OF THE SECOND INSTANCE VII. CRIMINAL ADJUDICATION DOCUMENTS ON REVIEW OF DEATH SENTENCE VIII. CRIMINAL ADJUDICATION DOCUMENTS ON RETRIAL IX. CRIMINAL ADJUDICATION DOCUMENTS ON THE EXECUTION PROCEDURE X. OTHERS Ever since the "Sample of the Criminal Litigation Documents of Courts" (hereinafter referred to as the Amended Sample), which was discussed and adopted at the 1051st meeting of the Judicial Committee of the Supreme People's Court, came into force on July 1, 1999, some questions have been raised from all places. In order to correctly understand and implement the Amended Sample, we hereby give our answers as follows: I. CRIMINAL ADJUDICATION DOCUMENT OF THE FIRST INSTANCE (I) Beginning 1. Question: May the "Date of Birth" and the "Birth Place" in a party's basic information be stated as "Born in _____ (place name) on _______ (date)" Answer: This combined method may be used for the sake of writing succinctly. 2. Question: How to state a defendant's such basic information as his true name and birth place, etc. which he is not willing to tell or which is unable to be determined Answer: By referring to Paragraph 2 of Article 128 of the Criminal Litigation Law, which states that "If the facts of a crime are clear and the evidence is reliable and sufficient, the case may, by the name given by the criminal suspect himself, be transferred to a people's procuratorate for examination and prosecution", the information may be stated in light of the information given by the defendant himself on his name and birth place, etc., and "given by himself" shall be indicated in the brackets. 3. Question: With respect to the compulsory measure imposed upon the defendant, it is stated in some cases as "held in custody on _________ (date) due to this case"; in some other cases as "held in custody on _________ (date) as being suspected to be involved in the crime of ___________ "; or as "held in custody on _________ (date) as being suspected to ___________ "; or as "held in custody on _________ (date) as being suspected to have committed the crime of ___________ ". Which of them has stated correctly Answer: It may be stated in the last way, that is, "criminally detained or arrested (or imposed upon other measures of custody) on _________ (date) as being suspected to have committed the crime of ___________". 4. Question: In accordance with Some Provisions on Strictly Implementing the System of Time Limit for Trial of the Supreme People's Court, whether the date when the people's court filed the case after it has reviewed and made the decision of prosecution and the adjournment of trial should be written in the paragraph on the cause of the case and the process of trial Answer: In order to objectively reflect the date of prosecution by the public prosecution organ (or the private prosecutor) and the date when the people's court filed the case after it has reviewed and made the decision of prosecution, and for the convenience of the party and the relevant departments to supervise and inspect the people's court's implementation of the system of time limit for trying cases, with a view to embodying the publicity and transparency in the trial of cases, and to improving the efficiency of handling cases, the date when the case is started to be tried, i.e., the date of filing the case, should be written in the adjudication document. For example, in a public prosecution case, such words as "This Court filed the case on __________ (date), and formed a collegial panel in accordance with the law" may follow "The People's Procuratorate of ________ prosecuted to this Court on _________ (date). If the time limit for trial needs to be extended, in a case of incidental civil lawsuit, it should be written: "Upon approval by the president of this Court, the time limit for trial is extended for two months"; in the event of any circumstance prescribed in Article 126 of the Criminal Litigation Law, it should be written: "Upon approval (decision) by the Higher People's Court of _____________, the time limit for trial is extended for one more month." 5. Question: For a case not to be tried publicly according to the law, should the reason thereof be written in the paragraph on the process of trial Answer: In order to embody the legitimacy of the trial procedure, the reason for not being tried publicly should be written. It may be stated as: "This Court formed a collegial panel in accordance with the law, and heard the case not publicly since it involves State secret (or individual privacy, or the defendant is a minor)". 6. Question: Should the circumstances of designated jurisdiction, adjournment of trial or general procedure changed from summary procedure, etc. be specifically stated in the paragraph on the cause of the case and the process of trial Answer: The circumstances should be specifically stated to objectively reflect the process of trial of the case. 7. Question: For a case "to be handled only upon complaint" as prescribed in Article 98 of the Criminal Law, if the victim is unable to complain as he is under compulsion or is threatened and the people's procuratorate initiates a prosecution or the victim's near relative complains on his behalf, how to state the title of "the prosecuting party" Answer: If the people's procuratorate directly initiates the prosecution, it should be stated as the "public prosecution organ"; if the victim's near relative complains on his behalf, it should be stated as the "private prosecutor", provided that the relationship between the relative and the victim should be indicated. 8. Question: For a case involving a crime committed by a minor, if his statutory agent does not appear in court, whether the item of "statutory agent" should still be listed in the party's basic information in the initial part Answer: It should be listed. However, among the persons appearing in court in the paragraph on the process of trial, the content on the statutory agent's failure to appear in court need not be stated. (II) Facts and Evidence 9. Question: How to be "appropriately outlined and in detail" when stating the opinions of the prosecuting and the defending parties and the part of "facts and evidence" verified through the trial Answer: It depends on different cases. In principle, no dispute between the prosecuting party and the defending party may be regarded as the criterion. That is, the facts over which the prosecuting party and the defending party has no dispute may be generalized to the point. The evidence on which the procuratorial organ's prosecution is based may be generalized as "The procuratorial organ has provided the corresponding evidence". In the part of facts and evidence "verified through the trial", the facts and evidence ascertained by the court through the trial should be specifically written. When stating the evidence, it may be first written: "The above mentioned facts can be proved by the following evidence which is submitted by the procuratorial organ and which is cross-examined and authenticated by the court". As for the facts over which the prosecuting party and the defending party are in dispute, no matter whether they are "opinions on prosecution or defense" or the part of facts "verified through the trial", they should be stated in detail; the facts and evidence in dispute should be specifically analyzed and authenticated, with the reason for adopting the evidence being written. 10. Question: If one or more defendants commit the same kind of crime for more than one time, may the facts and evidence be inductively stated Answer: For several crimes of the same kind over which both the prosecuting party and the defending party have no dispute and which have been tried in the court and verified to be true, the factual and evidential part may be inductively stated in light of the time, place, means, object, etc. of the crimes. 11. Question: What is the meaning of the "source of evidence" required by the Amended Sample to be written in the adjudication document Answer: It mainly means which party provides the evidence, either the prosecuting party or the defending party. 12. Question: When stating the evidence, should the defendant's confession, the victim's statements, the testimony of the witness or other word evidence be in the first person or in the third person Answer: In principle, they should be in the third person, but the key words proving the facts of the case may also be in the first person. 13. Question: For the victim in a case of privacy or the witness in other case who is unwilling to disclose his true name in the adjudication document, may only the surname, without the first name, be written in order to protect his reputation and safety Answer: In order to maintain the authenticity and solemnness of the adjudication document, the witness' true name should be written in the adjudication document; in order to protect the reputation of the victim, only the surname may be written in the adjudication document, without the first name, upon request of the victim or in light of the specific circumstance of the case. Specifically, it may be stated as "Zhangijij" or "Wangijij", instead of "Zhang¡Á¡Á" or "Wang¡Á¡Á". 14. Question: How to state the circumstances of voluntary surrender, meritorious performance or recidivists, etc. in the adjudication document Answer: As required by the Amended Sample, the ascertainment of the circumstances of voluntary surrender or meritorious performance, etc. should be written in the factual part, attached with the evidence for confirming that the circumstance of voluntary surrender or meritorious performance, etc. is tenable; as for the demonstration on how to punish the defendant under the circumstance of voluntary surrender, meritorious performance, etc., it should be stated in the reasoning part. As for the circumstance involving recidivists, the information on the previously sentenced criminal punishments and the date of release at the expiry of the criminal punishment should be written in the defendant's basic information in the initial part. 15. Question: For a case in which it is confirmed upon trial that the prosecuted facts are unclear, the evidence is insufficient and innocence is declared, how to state the factual and evidential part May this part be omitted and "this court holds" be directly written Answer: No. For this type of cases in which the defendant cannot be ascertained as guilty due to insufficiency of the evidence, the specific contents that "the facts are unclear and the evidence is insufficient" should be, upon specific analysis and authentication of the evidence, written in the part of facts "verified through the trial" regarding the prosecuted criminal facts, so as to set the base for the reasoning of the judgment. 16. Question: If the procuratorial organ prosecutes that the defendant has committed several crimes, but the court holds after trial that the defendant has only committed one crime, how to state that in the factual and reasoning part Answer: In the part of opinions on prosecution and defense, the several crimes prosecuted by the procuratorial organ should still be objectively summarized; while in the part of facts and evidence verified through the trial, it should be stated by distinguishing different cases. If it is tried and verified by the court that the criminal facts prosecuted by the procuratorial organ are tenable, but only one crime is constituted, or the prosecuted "several crimes" should have been one crime in accordance with the legal provisions (such as habitual criminal, combinative crime, implicated offense, continuing crime, etc.), the reason for not constituting several crimes should be stated in the part beginning with "this court holds"; if it is verified through court trial that among the prosecuted "several crimes", some are tenable, but some others are not tenable due to insufficiency of evidence, and only one crime is constituted, then the analysis on the evidence proving that the prosecuted crimes are not tenable should be stated in the part of "facts and evidence", with demonstrations added in the reasoning part. 17. Question: If it is confirmed by the court through trial that the prosecuted criminal facts are tenable, but both the prosecuting party's prosecution and the defending party's defense on the nature of the crime are not tenable, while the defendant's act constitutes another crime, how to state the factual part Answer: Under the circumstance that the prosecuted "criminal facts" are tenable, but the prosecuted "nature of the crime" is inappropriate, the facts and evidence verified through the trial should be truthfully stated; the reason for lawfully ascertaining which crime the defendant has committed, and also the reason that neither crime asserted by the prosecuting party and the defending party is tenable, should be written in the reasoning part. (III) Reasons 18. Question: If the procuratorial organ requests to withdraw the prosecution before the court announces the judgment and is permitted by the court, how to cite the legal basis in the criminal order Answer: Article 177 of the Supreme People's Court's "Interpretation on Some Issues Concerning the Implementation of the Criminal Litigation Law of the People's Republic of China" should be cited as the basis of the order. 19. Question: If one adjudication document involves the legal clauses for conviction and punishment of more than one defendants, among which, some are the same, and some are different, should the legal clause for each defendant be cited separately or the legal clauses for the whole case be cited comprehensively when the adjudication document is made Answer: In order to fully embody the accuracy of the legal clause applied to the defendant and to intensify the pertinence of the cited legal clause, the legal clauses applied to each defendant in a case of joint crimes should be cited person by person. (IV) Result of the Judgment 20. Question: If the procuratorial organ prosecutes that the defendant has committed several crimes, but one of the crimes is confirmed through trial not to be tenable due to insufficiency of evidence, should it be stated in the part of result of the judgment Answer: It is appropriate to make a sufficient demonstration on the circumstance that the evidence is insufficient and the prosecuted crime cannot be tenable in the reasoning part of the judgment, and is unnecessary to state it in the result of the judgment. 21. Question: If one defendant is both sentenced to a fixed-term imprisonment and to be imposed upon a criminal fine, how to state the dates of beginning and end of the term of the punishment and the time limit for the payment of the criminal fine Answer: If one defendant is both sentenced to a fixed-term imprisonment and to be imposed upon a criminal fine, the dates of beginning and end of the term of the punishment and the time limit for the payment of the criminal fine should be separately indicated in brackets after the fixed-term imprisonment and the criminal fine are sentenced. 22. Question: For a case in which the combined punishment for several crimes is "determined on the basis of the punishment that remains to be executed for the earlier crime and the punishment imposed for the new crime", which day should be the starting date of "the remaining punishment" for the earlier crime How to state it in the adjudication document Answer: The starting date of "the remaining punishment" for the earlier crime may be the date when the new crime is committed. The dates of beginning and end of the term of the punishment in the result of the judgment may be stated as: "The term of the punishment shall be calculated as of the date when the judgment is executed. If the criminal is held in custody before the execution of the judgment, one day in custody shall be considered as one day of the term sentenced, that is, from _________ (date) (the date when the new crime is committed) to _________ (date)." (V) Ending 23. Question: If a criminal case of private prosecution is permitted to be withdrawn, is it possible to write down no such contents as "If refusing to accept this Order, the party may, within 5 days as of the next day after receipt of the written order, appeal either via this Court or directly to the ____ People's Court of ______. If the appeal is in writing, one original and __ counterparts of the petition of appeal should be submitted." in the ending part of the written criminal order Answer: They should be written. Although the private prosecutor requests to withdraw the case, and he might not appeal after the people's court orders to permit him to withdraw the case, but his litigation rights imposed by law should still be protected in accordance with the law, and should be explicitly stated in the written order. II. CRIMINAL JUDGMENT OF THE FIRST INSTANCE ON THE CRIME COMMITTED BY AN ENTITY 24. Question: If, in a case on a crime committed by an entity, the entity is nullified or is bankrupt after the procuratorial organ has prosecuted to the court, how to state it in the adjudication document Answer: The name of the prosecuted entity should be listed in the initial part, and the fact that the entity has been nullified by the relevant department or declared bankruptcy by the people's court should be indicated in brackets; the circumstance that entity has been nullified or declared bankruptcy should be briefly written in the factual part; the reason for terminating the trial of the prosecuted entity should be illustrated in the reasoning part; the first item of the result of the judgment should begin with: "The trial of the prosecuted entity ________ is terminated"; and then the judgment made on the defendants (that is, the directly responsible person in charge and other directly liable persons) should be written in the second item. 25. Question: If a prosecuted entity has modified its name after committing a crime, how to list the prosecuted entity, and how to state the result of the judgment Answer: Usually, the name of the entity after modification should be listed, provided that the entity's previous name should be indicated in brackets. In the result of the judgment, the entity after modification should be convicted of a crime and punished (imposed upon a criminal fine), or declared innocent on the basis of the facts verified through the trial and in accordance with the relevant legal provisions. III. CRIMINAL ADJUDICATION DOCUMENTS OF THE FIRST INSTANCE MADE UNDER SUMMARY PROCEDURE 26. Question: For a case in which the people's court decides to or the procuratorial organ suggests or agrees to apply the summary procedure, should it be written in the initial part of the adjudication document Answer: No matter whether the summary procedure is applied upon decision of the people's court or upon suggestion or consent of the people's procuratorate, there are separate written materials attached, therefore it is appropriate that only such contents as "This Court applies the summary procedure in accordance with the law, and the case is to be tried by a single judge alone" are written in the initial part. 27. Question: For a case tried under the summary procedure, how to embody the feature of "simplicity" in the adjudication document Answer: The premise for applying summary procedure is that "the facts are clear and the evidence is sufficient", and usually, both the prosecuting party and the defending party have no fundamental divergence on the prosecuted facts and evidence. Therefore, when making this kind of adjudication document, the contents asserted by the prosecuting party and the defending party may be succinctly generalized; the facts "verified through the trial" may be summarized, and the evidence for determining the case may be omitted; while the reason of the judgment may be properly demonstrated. IV. INCIDENTAL CIVIL JUDGMENT OF THE FIRST INSTANCE ATTACHED TO CRIMINAL LITIGATION 28. Question: If a party is both a criminal defendant and a defendant of the incidental civil lawsuit, should "defendant of the incidental civil lawsuit" be indicated in brackets after the item of "defendant" Answer: When a criminal defendant is simultaneously a defendant of the incidental civil lawsuit, there is no need to indicate "defendant of the incidental civil lawsuit" in brackets in the initial part; if the two defendants are not the same person, then "defendant of the incidental civil lawsuit" should be separately listed. 29. Question: If the plaintiff of an incidental civil lawsuit is the victim of a case of privacy (such as rape, etc.), should the victim's true name be written in the initial part of the item of "plaintiff of the incidental civil lawsuit" How to state the issue of compensation in the result of the judgment Answer: In a case of privacy, in order to protect the victim's reputation, only the surname should be written in the adjudication document, for example, "Li ijij", so as to avoid side effects. It should be stated in the result of the judgment that: "______ (name), defendant (or defendant of the incidental civil lawsuit), should compensate Li ijij, plaintiff of the incidental civil lawsuit, _______ (specific amount of the economic losses)." 30. Question: If, in an incidental civil lawsuit attached to the criminal litigation, the plaintiffs are numerous, should all the plaintiffs be listed in the initial part of the judgment Answer: Usually they should all be listed. To bring an incidental civil lawsuit is a litigation right imposed upon the victim by law. Once the victim and his near relative or his statutory agent brings an incidental civil lawsuit in accordance with the law, they should all be listed in the initial part of the judgment one by one, so as to embody the protection of the victim's lawful litigation right. But if the system of representative is applied in accordance with the Civil Litigation Law, then only the representative and his authorized agent need to be listed, with the name list of the plaintiffs who bring the incidental civil lawsuit attached to the adjudication document. 31. Question: If, in an incidental civil lawsuit, the defendant does not clarify the defender's scope of agency in the civil litigation, should the opinions enunciated by the defender regarding the incidental civil part be stated in the adjudication document Answer: If the defendant does not authorize the defender to simultaneously act as a civil litigation agent, the defender has no right to enunciate opinions regarding the part of incidental civil lawsuit; nor should the enunciated opinions be stated in the adjudication document. 32. Question: If the relative of an adult (including adult but unmarried) defendant voluntarily assumes the liability for civil compensation in an incidental civil case attached to the criminal litigation, may it be stated in the result of the judgment as: "_____ should be paid by the defendant's parents from their joint family properties" Answer: No. As the defendant is an adult, it should still be stated in the result of the judgment that: "_________ (name), the defendant, should compensate _________ (name), the plaintiff of the incidental civil lawsuit __________ (the compensation amount and the date of payment)". If the defendant's relative voluntarily compensate on his behalf, it may be stated in the factual part of the adjudication document. 33. Question: For an incidental civil case attached to the criminal litigation, may it be stated in the result of the judgment "exempted from compensation" or be listed in a separate item that "The plaintiff's litigation claims in the incidental civil lawsuit are rejected" Answer: If it is confirmed through trial that the defendant's criminal acts (or illegal acts) do cause material losses (including the already incurred actual losses and the inevitable losses) to the victim, he should certainly bear the liability for civil compensation, and usually it may not be adjudicated to "exempt the compensation", so that the victim's lawful rights and interests may be maintained earnestly. If, after the judgment is made in accordance with the law, the defendant is verified in the process of execution to have no property for execution, an order for suspension or termination of the execution may be made. If the judgment affirms that the defendant should bear no liability for civil compensation, it should be stated in the result of the judgment as prescribed in the Amended Sample: "________, the defendant, should bear no liability for civil compensation", not stated as: "The plaintiff's litigation claims in the incidental civil lawsuit should be rejected". 34. Question: In a case of public prosecution, if the part of incidental civil lawsuit is settled through conciliation, how to make the agreement on incidental civil conciliation attached to the criminal litigation Answer: If, in a publicly prosecuted case of incidental civil lawsuit attached to the criminal litigation, both parties reach a conciliation agreement on the economic losses before the judgment is announced, an "incidental civil conciliation agreement attached to the criminal litigation" should be made. It may be made by referring to Sample 9 of the incidental civil conciliation agreement attached to the criminal litigation for cases of private prosecution of the first instance and the explanations thereof. 35. Question: If the plaintiff of an incidental civil lawsuit withdraws a case, should an order on permitting the withdrawal be separately made regarding the part of incidental civil lawsuit For the part of the criminal litigation, which is under continued trial, should a criminal judgment or an incidental civil judgment attached to the criminal litigation be made Answer: If the plaintiff of an incidental civil lawsuit withdraws a case, the people's court should separately make an order on permitting the withdrawal. Since the part of incidental civil lawsuit has been withdrawn, a criminal judgment should be separately made after the trial of the criminal part is finalized. 36. Question: For a case of incidental civil lawsuit attached to the criminal litigation, if the judgment is made on the criminal part before the part of civil compensation is settled, which kind of adjudication document should be used Can the same case number be used Answer: In accordance with Article 78 of the Criminal Litigation Law, if the judgment is made on the criminal part earlier, a criminal judgment should be made in order to prevent the trial of the criminal case from being delayed for too much time; if the trial and adjudication of the part of civil compensation are continued by the same trial organization, an incidental civil judgment attached to the criminal litigation should be made, and it should be written in the paragraph on the process of trial that the judgment is made on the criminal part earlier, so as to be linked with the said judgment. In addition, the same case number should be used. V. CRIMINAL ADJUDICATION DOCUMENTS ON CRIMES COMMITTED BY THE MINORS 37. Question: If a minor defendant's guardians (parents) are ruled to bear the liability for civil compensation, may they be listed in the initial part as defendants of the incidental civil lawsuit How to state them in the result of the judgment Answer: The guardians who have the right of guardianship over the minor defendant in accordance with the law should be listed as "statutory agents and also defendants of incidental civil lawsuit", instead of only "statutory agents" or "defendants of incidental civil lawsuit". In such an incidental civil lawsuit, the guardians of the minor defendant actually have double litigation status and double identity. They are both the minor defendant's statutory agents to maintain the defendant's lawful rights and interests, and are defendants in the incidental civil lawsuit to bear the liability for civil compensation. It should be stated in the result of the judgment: "_______ (name), defendant of the incidental civil lawsuit, should compensate ______ (name), plaintiff of the incidental civil lawsuit, _________ (the compensation amount and the date of payment)." 38. Question: How to regulate the making of the criminal adjudication documents on crimes committed by the minors Answer: The crimes committed by the minors have their particularity. When making a criminal judgment on a crime committed by a minor, the guideline of "educating, reforming and saving" as well as the principle of "relying mainly on education supplemented by punishment" should be adhered to, and it should be noticed to fully reflect the features of the crimes committed by the minors. The people's court should make the adjudication document in accordance with the requirements in the Criminal Litigation Law and in Some Provisions on Trying Cases on the Crimes Committed by the Minors of the Supreme People's Court on the newly supplemented sample of the criminal judgment and the explanations thereof which are applied in the general procedure of the first instance over cases on crimes committed by the minors (see Supplementary Sample 2). VI. CRIMINAL ADJUDICATION DOCUMENTS OF THE SECOND INSTANCE 39. Question: For a case in which the defendant and the plaintiff of the incidental civil lawsuit both appeal, in which order should the criminal contents and civil ones be listed in the initial part and the factual and reasoning part of the adjudication document of the second instance Answer: In the initial part, the civil contents may be listed before the criminal ones, while in other parts, the criminal contents should be listed before the civil ones. If, among two or more plaintiffs of the incidental civil lawsuit, only some of them appeal, the plaintiffs who do not appeal may be listed as "plaintiffs of the incidental civil lawsuit of the original instance" following the "appellants (plaintiffs of the incidental civil lawsuit of the original instance". 40. Question: For a case in which the defendant is sentenced to death (including death penalty with a suspension of execution) but only the plaintiff of the incidental civil lawsuit appeals, how should the adjudication document be made by the court of the second instance Can the originally sentenced death penalty (death penalty with a suspension of execution) be verified and approved or be revised in the second instance Answer: It actually involves two procedures, and is an issue of whether one or two criminal adjudication document should be made. It depends on the second instance and the review of the case. If the higher court (or the military court of the PLA) affirms the part of incidental civil compensation in the original judgment through the trial of the second instance; or if the higher court verifies and approves the death penalty (including death penalty with a suspension of execution) in the criminal part after its review, the court may make only one incidental written civil order attached to the criminal litigation in order to be brief, and use "Final" as the code character of the procedure. If, after the trial of the second instance by the higher court, the part of incidental civil compensation needs to be revised, or the criminal part needs to be revised, then two criminal adjudication documents should be made (one is the incidental civil judgment attached to the criminal litigation, the other is the criminal order; or one is the incidental written civil order attached to the criminal litigation, and the other is the criminal judgment). 41. Question: In an incidental civil lawsuit attached to the criminal litigation, if the criminal defendant does not appeal after the judgment of the first instance is made, and only the party of the incidental civil lawsuit appeals, should "the original public prosecution organ" be stated in the initial part of the adjudication document of the second instance Should the contents of the criminal part be written in the factual and evidential part Should "the criminal part has come into validity" be written in the reasoning part Should "the criminal judgment is affirmed" be written in the part of result of the judgment Answer: "The original public prosecution organ" should be stated in the initial part, and it should be written in the paragraph on the process of trial that, if the party fails to appeal or protest within the time limit, the criminal part of the judgment of the original instance shall come into legal validity after expiry of the time limit for appeal and protest; while in the factual and evidential part, the facts on the economic losses caused by the defendant's criminal acts to the plaintiff of the incidental civil lawsuit and the evidence thereof should be written mainly; the reasoning part should emphatically demonstrate whether the reasons proposed by the appellant regarding the incidental civil part are tenable; and the part of result of the judgment only needs to adjudicate the incidental civil part, without involving the criminal part. 42. Question: If there is no discrepancy between the facts and evidence ascertained in the second instance and those ascertained in the first instance, should contents ascertained in the first instance or those ascertained in the second instance be written in detail in the factual and evidential part of the criminal order of the second instance If there is any discrepancy, how to state then Answer: It depends on different cases in principle. Under usual circumstances, if there is no discrepancy between the facts and evidence ascertained in the second instance and those ascertained in the first instance, and both the prosecuting party and the defending party have no dissent on this point, a method of "stating one in detail and outlining the other" can be used to state the facts and evidence ascertained in the first instance in detail and outline those ascertained in the second instance; if there is any discrepancy between the facts and evidence ascertained in the second instance and those ascertained in the first instance, or both the prosecuting party and the defending party have dissent on this point, then the divergent facts and evidence between the first instance and the second should be emphasized, and the facts and evidence dissented from by the prosecuting party and the defending party should be analyzed and authenticated, with the reason for whether they are adopted being written. If the court considers in light of the specific situation of the case that it is proper to state in the method of "stating one in detail and outlining the other", it may also outline those in the first instance and state those in the second instance in detail. The general requirement is to be appropriately simplified and to avoid unnecessary repeats in the factual parts of the first and second instances. 43. Question: Should the clauses of substantial law (for example, the Criminal Law) be cited in the reasoning part of the criminal adjudication document in a case of the second instance (review) Answer: It depends on different circumstances. If the original judgment is ordered to be affirmed, remanded for retrial or is verified and approved, only the relevant clauses of the procedural law need to be cited; if the original judgment is rescinded or revised, or the court of the first instance cites a wrong legal clause, the relevant clauses of both the procedural law and the substantial law should be cited. In terms of order, the procedural law should be cited earlier, and the substantial law later. However, no matter under which of the above mentioned circumstances, the legal basis applied in the judgment of the first instance should be cited when the reason of the judgment of the first instance is stated, so that the adjudication of the second instance (review) will have its pertinence. 44. Question: For a case in which the death penalty with a suspension of execution is sentenced in the first instance, and the procuratorial organ withdraws its protest in the second instance and is agreed upon by the court after examination, should the court of the second instance make one or two adjudication documents Answer: It should make two written orders. One is the criminal order on permitting the withdrawal of the protest, and the other is the criminal order on verifying and approving the death penalty with a suspension of execution or the criminal judgment that revises the original judgment. VII. CRIMINAL ADJUDICATION DOCUMENTS ON REVIEW OF DEATH SENTENCE 45. Question: If, in a case on review of death sentence to joint crimes, there are both death penalty (death penalty with a suspension of execution) and criminal punishment of life imprisonment, fixed-term imprisonment, criminal detention or public surveillance, etc., should the basic information of the defendant who is sentenced to life imprisonment or other criminal punishment be written when the adjudication document on review of the death penalty (death penalty with a suspension of execution) is made Answer: In accordance with Article 280 of the Interpretation on Some Issues Concerning the Implementation of the Criminal Litigation Law of the People's Republic of China of the Supreme People's Court, it is unnecessary to write the defendant's basic information on the criminal punishment of the original instance such as life imprisonment, fixed-term imprisonment, criminal detention or public surveillance, etc. in the adjudication document on the case on verified and approved or revised death penalty to joint crimes. 46. Question: Does the time of beginning and end of the term of a death penalty with two years of suspension of execution need to be written in the adjudication document on verification and approval of the death penalty with two years of suspension of execution Answer: No. The time limit of a death penalty with two years of suspension of execution is only for testing whether the criminal of death penalty with a suspension of execution should be under execution of the death penalty, and moreover, whether to execute the death penalty against the criminal is undetermined. 47. Question: For a case of combined punishment for several crimes, if there are both death penalty (death penalty with a suspension of execution) and other criminal punishments or property supplementary punishments such as confiscation of property or criminal fine, etc., may the adjudication result in the adjudication document on verification and approval of the death penalty only be stated as "The criminal judgment of the Intermediate (or Higher) People's Court of ______ [Criminal Judgment No. ____ of the Initial (or Final) Instance] on sentencing ________, the defendant, to death penalty (death penalty with a suspension of execution) due to the crime of ____, attached with deprivation of political rights for life, is hereby verified and approved" Answer: No. Separate conviction and punishment are a scientific means to combined punishment for several crimes. When the people's court is verifying and approving a judgment on death penalty, the combined punishment for several crimes is imposed on the basis of separate conviction and punishment and follow-up decision on execution of the criminal punishment. Therefore, it is not to say that only the judgment of several crimes that contains death penalty is verified and approved, but the whole judgment made by the court of the original instance (including other criminal punishments and property supplementary punishments like confiscation of property and criminal fine) is verified and approved. If the defendant only commits one crime and is sentenced to death penalty attached with property supplementary punishment, it should also be written in the result of the adjudication. VIII. CRIMINAL ADJUDICATION DOCUMENTS ON RETRIAL 48. Question: If the people's court at a higher level finds that the judgment of the first instance ascertained the facts unclearly, and lacked sufficient evidence, and therefore decides to remand the case for retrial after it brings a case to trial according to the retrial procedure, may the sample document be made by referring to the sample remanded from the second instance for retrial Answer: Yes. This kind of adjudication document should embody the feature of a case of retrial in the initial part; the reasoning part and the part of result of the order may be made with reference to Sample 16 remanded for retrial in the second instance and the explanations thereof. 49. Question: For a case retried not due to the facts or evidence, should the facts and evidence ascertained in the original instance or those in the retrial be stated in detail when the part of "facts and evidence" of the adjudication document is made Answer: the facts and evidence ascertained in the original instance may be stated in detail and those in the retrial may be outlined. 50. Question: As required by the "Decision on Retrial", it should be written in the ending part that "the execution of the original judgment (order) shall not be suspended during the period of retrial". However, for a case on death penalty or a case with the execution having been finished, how should the ending part of the "Decision on Retrial" be stated Answer: It is to common cases that the execution of the original judgment or order shall not be suspended during the period of retrial. For a case on death penalty, a case with the execution having been finished or a case in which the original judgment declares innocence or the criminal punishment is exempted, the above statement may be omitted from the ending part of the "Decision on Retrial". 51. Question: If a death penalty with two years of suspension of execution sentenced to a criminal is commuted to a fixed-term imprisonment after expiry of the two years of suspension of execution, and then the death penalty with a suspension of execution is retried to be revised as a fixed-term imprisonment, how should the term of the punishment converted in the criminal judgment through retrial be stated Answer: The starting date of the term of the punishment should be calculated from the day when the defendant is held in custody after committing the crime. IX. CRIMINAL ADJUDICATION DOCUMENTS ON THE EXECUTION PROCEDURE 52. Question: Should the range of suggested commutation of punishment proposed by the execution organ be written in the criminal order on commutation of punishment Answer: As required by the Amended Sample, it only needs to be written in the order that the execution organ proposes the suggestion on commutation of punishment on a specific date, and the range of suggested commutation of punishment needs not be written. 53. Question: If a court finds any error in a validated order made by itself on commutation of punishment or parole, it should make a correction in accordance with the law. However, if the people's procuratorate does not propose this matter, what law should be cited in the reasoning part of the order as the basis for the order Answer: It should be ascertained according to the validated order whether the error is in respect of facts or of application of law, and then Item (1) or (3) of Article 204 of the Criminal Litigation Law, or Article 79 or Article 82 of the Criminal Law may be cited as the legal basis for the order. 54. Question: For a case in which the suggestion proposed by the execution organ on commutation of punishment or on parole is tried by the collegial panel to fail to meet the conditions for commutation of punishment or parole, in which way should the people's court return the file Answer: It should return the file to the execution organ in written decision (see Supplementary Sample 5), and briefly state in the written decision the specific reasons that the suggestion does not meet the conditions for commutation of punishment or parole, and the commutation of punishment or parole is not permitted. 55. Question: Does "This order is the order of the final instance" need to be written in the ending part of a criminal order on commutation of punishment or parole Answer: No. Commutation of punishment or parole is a system of modifying criminal punishment in the process of execution, instead of a system indicating the level of trial. Therefore, it is unnecessary to write: "This order is the order of the final instance" in the ending part of a written order. But it must be written: "This order will come into legal validity upon its service." X. OTHERS 56. Question: If the people's court decides to restrict a defendant of a foreign-involved criminal case from exiting the territory, what kind of litigation document should be made Answer: In accordance with Articles 322 and 323 of the Interpretation on Some Issues Concerning the Implementation of the Criminal Litigation Law of the People's Republic of China of the Supreme People's Court, if the people's court decides to restrict a defendant of a foreign-involved criminal case from exiting the territory, it should make a written decision on restricting him from exiting the territory. Such a written decision is applicable to other relevant criminal suspects ascertained by the people's court, it should be attached with a separate letter to notify the public security organ or State security organ at the same level (see Supplementary Sample 4). 57. Question: A procuratorial officer who appears in court is sometimes stated as "appearing in court to support the public prosecution", or sometimes as "appearing in court to implement the duties", or "appearing in court to participate in the litigation", which statement is correct Answer: In accordance with Article 129 of the Interpretation on Some Issues Concerning the Implementation of the Criminal Litigation Law of the People's Republic of China of the Supreme People's Court and the Amended Sample, a procuratorial officer who appears in court during the first instance should be stated as "appearing in court to support the public prosecution"; in the second instance, as "appearing in court to implement the duties" or "appearing in court to support the protest"; in retrial procedure, it should be stated according to the above provisions on the basis of the specific procedure applied. 58. Question: If a defendant sentenced to death dies after the judgment of the first instance is announced but before the expiry of the time limit for appeal, it should be ordered to terminate the trial in accordance with Article 15 of the Criminal Litigation Law. But at this time, the first instance has been ended, while the procedure of the second instance and the review of death sentence are not started yet, who should make the written order on terminating the trial, and how to state it Answer: Since the judgment of the first instance is announced, that is, the procedure of the first instance had been ended, the written order on terminating the trial should be made by the people's court at the next higher level; the people's court at the next higher level may make the criminal order by referring to Amended Sample 41, and may make corresponding alterations on some relevant parts. 59. Question: If the people's court agrees on the suggestion of the people's procuratorate and decides to adjourn the trial, what form should be adopted Answer: In accordance with Article 157 of the Interpretation on Some Issues Concerning the Implementation of the Criminal Litigation Law of the People's Republic of China of the Supreme People's Court, the people's court should make a written decision on the adjournment of trial (see Supplementary Sample 3). 60. Question: The Amended Sample prescribes the typeface and the size of characters for the adjudication document, but the computer typeface in the present use does somewhat not conform to the sample. How to deal with this matter Answer: The size of characters should be strictly in compliance with the Amended Sample. However, since different computers (softwares) are not completely uniform in setting the typeface, the typeface of the documents may be properly changed, provided that it must be solemn, elegant and clear. |
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