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In order to correctly hear the cases of affirming unlawful infringement of the people's court in trials and enforcement, the present Provisions are formulated in accordance with the State Compensation Law of the People's Republic of China and other relevant laws. Article 1. Where a citizen, legal person or any other organization believes that the work-related conduct of the people's court or its functionaries has infringed upon his (its) legitimate rights and interests, before it claims for state compensation, he (it) shall apply for affirmation in accordance with the law with the exceptions listed in Article 5 of the present Measures. Article 2. Where a citizen, legal person or any other organization applies for state compensation because he (it) alleges that the people's court or any of its functionaries violates the law in exercising their duties, he (it) shall be the applicant for affirmation. An affirmation application shall be accepted by the people's court that makes a judicial act, but an application for affirming the judicial act of a grassroots people's court as illegal shall be accepted by the intermediate people's court. Article 3. An affirmation application that meets the following conditions shall be accepted: (1) The affirmation applicant shall meet the qualifications for a claimant of state compensation stipulated in Article 18 of the State Compensation Law of the People's Republic of China; (2) Having specific affirmation pleadings and infringement facts and reasons; (3) The affirmation applicant shall apply for affirmation within 2 years from the day when the judicial act is committed or when he (it) is or should be aware of the judicial act; and (4) It is under the jurisdiction of the people's court that accepts the affirmation application. Article 4. An affirmation application shall not be accepted if: (1) in accordance with the law, the applicant shall lodge an appeal or applies for retrial through the adjudicative supervision procedures; (2) the pleadings in the application have been accepted and are being investigated by the judicial organ; (3) the act of the personnel of the people's court has nothing to do with their exercise of duties; (4) it is under the circumstance stipulated in Article 214 of the Civil Procedural Law of the People's Republic of China; or (5) it is in any other circumstance that is beyond the affirmation scope according to the law. Article 5. A judgment, ruling or decision made by the people's court under any of the following circumstances belongs to lawful affirmation. A party concerned may apply for state compensation on the basis of this judgment, ruling or decision: (1) The decision of arrest has been revoked according to law with the exception stipulated in Article 15 of the Criminal Procedural Law of the People's Republic of China; (2) The judgment declares innocence and has already become effective; (3) A liable person for any of the acts listed in Article 15 (4) and (5) of the State Compensation Law has been punished in accordance with the law; (4) Having committed an act prescribed in Article 16 (1) of the State Compensation Law, and having made a decision of revocation in accordance with the law; (5) Revoking the illegal judicial detention, monetary penalty, property preservation, or enforcement of a ruling or decision; or (6) Other circumstances under which the illegal acts are corrected. Article 6. Within 7 days after the people's court receives an affirmation application, it shall decide whether to accept it or not. When examining an application for acceptance, if the court finds that no evidence supports the application, it may inform the affirmation applicant to make supplements. Article 7. If the affirmation applicant refuses to accept the decision of dismissal, it may, within 15 days after it receives the decision of dismissal, apply to the superior people's court for reconsideration. The superior people's court shall make a decision about whether to accept it or not within 30 days after it receives the reconsideration application. Article 8. The people's court shall form a collegial panel to hear an affirmation case. Article 9. In the trial of an affirmation case, the people's court shall examine the following items: (1) Whether there are facts to prove the to-be-affirmed tort or not; (2) The reasons or basis for which the people's court made the former judicial act; (3) Whether the former act, through which the people's court exercised its duties, is consistent with the legal procedure or not, whether the law applied to the former exercise of duties is correct or not; and (4) Other items necessary to be examined. Article 10. The people's court may examine the written materials of an affirmation case and may hold a hearing in light of the specific circumstance of the case. Whether to hold a hearing or not, it shall be decided by the collegial panel. Article 11. As for an affirmation case, the occurrence of any of the following circumstances in the former course of trial or enforcement shall be determined as illegal: (1) The people's court decided to arrest a criminal suspect without criminal fact or clear fact or sufficient evidence, and after releasing him, it fails to revoke the decision in accordance with the law; (2) Sealing up, detaining, freezing or recovering the lawful properties irrelevant to the criminal case, causing any damage; (3) Taking or repeatedly taking mandatory measures by violating the law, such as summoning by force, detaining, giving monetary penalties, against a person without hampering the litigation, the party against whom a judgment or order is made or the assistant in execution, and failing to revoke it in accordance with the law; (4) The judicial detention exceeds the time limit prescribed in the law or specified in the decision; (5) Imposing a judicial monetary penalty that is higher than the statutory amount; (6) Resulting any damage to the affirmation applicant due to taking or revoking preservation measures illegally; (7) Causing any damage to the affirmation applicant due to sealing up, detaining, freezing, selling off or enforcing the private properties of the applicant by exceeding relevant standards; (8) Causing any damage to the affirmation applicant by repeatedly sealing up, detaining, freezing the properties of the applicant; (9) The intentional failure to perform the custodian duties on the sealed-up or detained properties causes the occurrence of loss of or damage to the said properties or any other serious consequence and thus results in damage to the applicant; (10) The intentional delay of execution or failure to execute the already found properties of the party against whom a judgment or order is made results in loss of the properties targeted for execution and thus causes damage to the affirmation applicant; (11) The failure to resume the execution of a case, which should be resumed for execution, results in loss of the properties targeted for execution, and thus causes damage to the affirmation applicant; (12) Without legal basis, the properties or money was executed to any other party concerned or a person not involved in the case and thus results in damage to the affirmation applicant; (13) The illegal sealing up, detaining or execution of properties of a person not involved in a case results in damage to any outsider of the case; (14) Failing to auction the properties that shall be auctioned, selling off properties or paying a debt in kind results in damage to the affirmation applicant; or (15) Other circumstances in violation of the law. Article 12. Where the people's court affirms or doesn't affirm the illegal exercise of duties, it shall make a ruling. If it affirms that it is illegal, it shall simultaneously revoke the original illegal ruling. The ruling made by the people's court on whether the judicial act of this court is in violation of the law or not shall be signed by its president. The ruling, which is made by the superior people's court on whether the judicial act of the inferior people's court is in violation of the law, shall be signed by the collegial panel. Article 13. When the people's court hears an affirmation case, it shall make a ruling within 6 months after it serve the acceptance notice on the parties concerned. If it is necessary to extend the time period, it may extend it for 3 months approval of the president of this court. Article 14. After the people's court accepts an affirmation application, if it fails to make a ruling at the expiry of the time period for trial, the affirmation applicant may file a written appeal with the superior people's court 30 days after the expiry of the said time period. The superior people's court shall, within 3 months after it receives the appeal, order the inferior people's court to make a ruling or hear the case by itself. If it is necessary to extend the time limit for conducting trial by itself, it may extend for 3 months upon approval of the president of this court. Article 15. Where the superior people's court holds a hearing for the trial of case, the inferior people's court shall appear at the hearing. If the affirmation applicant fails to appear at the hearing without any justifiable reason, he (it) shall be deemed to have withdrawn the affirmation application. Article 16. The people's court that makes the former judicial act is obligatory to make an explanation about the legality of such act. Article 17. If the affirmation applicant refuses to accept the ruling made by the people's court on denying the act illegal, it may file an appeal with the superior court within 30 days after it receives the ruling. The superior people's court shall, within 3 months after it receives the affirmation appeal, make a ruling on whether to affirm or deny the appeal. If it is necessary to extend the time period, it may extend for 3 months upon approval of the president of this court. Article 18. Where the supreme people's court considers that there is indeed any mistake in an affirmation ruling made by a people's court or by a superior people's court against an inferior people's court, it may directly make the affirmation, or may order the inferior people's court or another people's court of the same level to make re-affirmation. Article 19. Where the judicial interpretations issued prior to the promulgation of the present Provisions contradict with the present Provisions, the latter shall prevail. Article 20. The present Provisions shall come into effect as of October 1, 2004. |
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