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TABLE OF CONTENTS CHAPTER I GENERAL PRINCIPLES CHAPTER II PREPARATIONS PRIOR TO THE COURT APPEARANCE CHAPTER III FORENSIC INVESTIGATION CHAPTER IV DEBATE IN COURT CHAPTER V OTHER PROVISIONS CHAPTER I GENERAL PRINCIPLES Article 1. For the purpose of regulating the working procedures for the court appearance in criminal protest cases, this Rule is formulated in accordance with the Criminal Procedural Law of the People's Republic of China, Criminal Litigation Rules of the People's Procuratorates and other relevant provisions. Article 2. This Rule applies to the court appearance of the prosecutors of the people's procuratorates in the criminal protest cases to be heard by the people's courts. Article 3. The tasks of the court appearance of procurators in criminal protest cases: (1)To support the protest; (2)To protect the legitimate rights of litigation participants; and (3)To supervise, on behalf of the people's procuratorates, whether or not court trials are lawful. CHAPTER II PREPARATIONS PRIOR TO THE COURT APPEARANCE Article 4. After receiving a notice of court appearance in a criminal protest case, a prosecutor to appear in court shall make good preparations as follows: (1)To learn about the details of the case and proofs and to see if the testimonies of the witness, confessions of the defendant and other evidential materials have changed; (2)To deeply study the legal and policy issues involved in this case so as to get sufficient professional knowledge; (3)To create an outline for the court appearance in the criminal protest case; and (4)If the superior people's procuratorate decides to support the protest initiated by the inferior people's court according to the procedures for second instance, it shall make a document on supporting the protest and shall serve it upon the people's court at the same level before the court session is opened. Article 5. Generally, the outline for the court appearance in the criminal protest case shall include: (1)an outline of the interrogatories to the defendant of the original instance; (2)an outline of the inquiries to the witness, victim and appraiser; (3)a plan on producing evidence and cross-examination of the material evidence to be presented, the written evidence, testimonies of the witness, statements of the victim, confessions of the defendant and the survey and inspection transcripts to be read, and the audio-visual materials to be played; (4)the facts and evidence for supporting the protest, as well as the legal advice; (5)a forecast of the contents of the arguments of the defendant and defender in the original instance, as well as the key points of defense; and (6)a forecast of other circumstances likely to arise during the court trial and the corresponding countermeasures. Article 6. If the superior people's procuratorate supports the protest advice and reasons given by the inferior people's procuratorate, it shall state the opinions on and reasons for supporting the protest in the document on supporting the protest. If it supports the protest advice and reasons partially, it shall state the opinions on and reasons for the items it supports as well as an explanation on the items it does not support. If the superior people's procuratorate does not support the protest advice and reasons given by the inferior people's procuratorate, but if it believes that the original judgment or ruling is indeed wrong in any other aspect, it shall state its different opinions and reasons and shall raise new protest advice and reasons in the document on supporting the protest. Article 7. Prior to the court trial, the procurators to appear in court shall make good preparations as follows: (1)To verify whether or not the defendant and his defender, the plaintiff and his litigation agent of the collateral civil action, and other litigation participants who should appear in court are present; (2)To examine whether or not the formation of the collegial panel is lawful, whether or not the time limit for the service of duplicate of the criminal protest and other litigation documents comply with the statutory provisions; in the event that the defendant is blind, deaf, dumb or underage, or that he is likely to be sentenced to death but he has not entrusted any defender, whether or not the people's court has designated a lawyer for offering defense for him; and (3)To examine whether or not the identity materials of the defendant in court conform with the information of the defendant in the original instance mentioned in the criminal protest, whether or not the chief judge has clearly and completely informed the litigation participants of the litigation rights, and whether or not the chief judge has correctly or lawfully tackled the withdrawal application. After the court preparations have been completed, when the chief judge asks the procurator if he has any opinions on the court preparations, the procurator appearing in court shall put forward his opinions on the existing problems and request the chief judge to address them properly, or declare that he has no objections. CHAPTER III FORENSIC INVESTIGATION Article 8. After the chief judge or judge reads out the original judgment or ruling, a procurator shall stand up to read out the criminal protest until the end of "to the honorable xxx people's court", but he does not need to read the document number and the contents in the brackets of the text. For a protest case initiated according to the procedures of second instance, the procurator appearing in court shall read the document on supporting the protest after it reads out the criminal protest, he shall direct the forensic investigation to center around the emphases of the protest. Article 9. The prosecutor shall, in light of different protest cases, adopt the following methods to produce evidence, respectively: (1)With regard to a protest case with clear facts and exact and sufficient evidence which is initiated only because the judgment or ruling of original instance fails to correctly determine the nature of the crime or because it obviously gives improper punishment as a result of wrong application of law or because the trial of the people's court violates the statutory litigation procedures, if the facts and evidence of original instance have no change, after the procurator reads out the document on supporting the protest, the procurator may, upon permission of the chief judgment and defender, request to directly enter into court debate apart from producing evidence for and making cross-examination of the new arguments; (2)With regard to a protest case which is initiated because the failure to determine the facts clearly or the wrong adoption of some evidence in the judgment or ruling of the original instance leads to inaccurate determination of the nature of the crime or improper determination of the punishment, the prosecutor appearing in court does not need to produce evidence or cross-examine the proofs one by one that have been produced and cross examined in the original instance, and have become the basis for judgment or ruling and to which both parties to the litigation case have no objection, he shall make the forensic investigation and debate focus on the facts wrongly determined and proofs wrongly adopted in the judgment or ruling of the original instance, and shall carefully investigate, produce and demonstrate the relevant facts and proofs. Any proof relating to the criminal fact which is unclearly cross-examined in the original instance and which is disputed over during the second instance or during the retrial or any new proof which is gathered during the second instance or during the retrial shall be produced and cross-examined; and (3)With regard to a protest case which is initiated because the failure to determine the facts clearly or the wrong adoption of some evidence in the judgment or ruling of the original instance leads to inaccurate determination of the nature of the crime or improper determination of the punishment, the prosecutor appearing in court shall fully produce evidence for questions about the facts of the case, proofs, conviction, determination of punishment, etc. During the process of court trial, he shall pay attention to producing evidence, cross-examining the proofs and making arguments by centering around the key points of protest, shall fully state the protest opinions and demonstrate the reasons and legal basis for the protest in detail. Article 10. Presided over by the chief judge, the prosecutor shall interrogate the defendant by centering around the protest reasons and the disputed part of the judgment or ruling of the original instance on the determination of facts. He need not fully interrogate the defendant with respect to the undisputed facts. Prior to the interrogatories, the prosecutor shall first ask the defendant of the original instance whether the confessions he made in the past are true or false. If the defendant answers that they are false. The prosecutor shall ask which of them are false. As to the overthrow of a confession, the prosecutor may make a psychological attack against the defendant by using the policies and offer him legal education, or interrogate the defendant on the paradox between confessions made by the defendant, or make an argument by showing the relevant proofs in good time. The prosecutor shall pay attention to the ways, methods, skills and strategies of interrogatories. He shall interrogate the defendant about the confessions that are ambiguous, incomplete, contradictory or obviously unreasonable, or about the confessions that contradict with ascertained evidence. He shall not interrogate the defendant about the clear confessions or undisputed aspects. The interrogatories on the defendant shall aim at the relevant issues and shall be correct, concise and logical. With regard to a question that the defender has asked and to which the defendant has given an objective answer, usually the prosecutor should not raise it again. After the defender raises the question, if the defendant overthrows his confession or gives a vague answer and if the question relates to the determination of the fact or nature of the case or relates to the determination of punishment, the prosecutor shall interrogate the defendant repeatedly. If what the defender questions has nothing to do with the case or he takes improper language and attitude to ask questions, the prosecutor shall timely request the collegial court to stop him from doing so. After the end of forensic investigation, the prosecutor may, according to the interrogatories raised by the defender, litigation agent and chief judge (judge), raise supplementary interrogatories. Article 11. The people's court shall give notice to and be responsible for arranging the witnesses and appraisers to testify in court. A witness shall be questioned according to the sequential order provided for in Article 156 of the Criminal Procedural Law, however, for a witness provided by the defending party, if the public prosecutor believes that it is more proper for the defender to question him first, the defender may first raise questions to him. The prosecutor shall question the witnesses with respect to the omission, paradox, ambiguity and disputed contents in their testimonies and shall center around the facts closely relating to the conviction of crime and determination of punishment. The questions shall be in the form of one question one answer, and which shall be concise and clear. Where a witness makes a false statement, the fact shall be clarified by raising questions to him, and where necessary, the evidence may be presented and read out. Article 12. An appraiser shall be questioned by reference to Article 11. Article 13. When the prosecutor requests the collegial panel to allow him to read out the relevant testimonies or written evidence or to present the material evidence, he shall explain about the object of proof. After the collegial panel consents, the prosecutor shall, before producing evidence, state the subject, object, time and place for obtainment of evidence and shall state that the evidence is lawfully obtained. When the prosecutor presents any newly gathered proof, he shall state the source and evidential role of the proof, as well as the relevant information of the witness, and shall request the tribunal to make cross-examination. Article 14. Any new evidence obtained by the judge upon investigation and verification during the process of second instance shall be presented by the judge in the tribunal and shall be cross-examined by the prosecutor. Article 15. With regard to the evidential materials presented by the defender, no matter they are new or they were produced and cross-examined during the process of trial of the original instance, the prosecutor shall actively participate in the cross-examination. He shall not only raise his opinions on the genuineness of the evidential materials presented by the defender but also pay attention to the defender's intention to produce evidence. If it is groundless for the defender to use such evidential materials to support his allegation, the prosecutor shall make an argument in a timely manner. As for any new evidential materials presented by the defender, party, or defendant of the original instance, the prosecutor may conduct interrogatories and cross-examination and may put forward his opinions on the lawful evidential force of these evidential materials. Article 16. During the trial of tribunal, if there is any doubt about the evidence or if it is necessary to supplement any new evidence, make a new appraisal or resurvey the venue, the prosecutor may ask the chief judge to adjourn or postpone the trial of the case. CHAPTER IV DEBATE IN COURT Article 17. After the chief judge announces the end of the court investigation and beginning of the court debate, the prosecutor shall state his opinions on supporting the protest. The opinions on supporting the protest mentioned in the notice about printing and distributing the Rules on the Public Examination of Non-prosecution Cases by the People's Procuratorates (for Trial Implementation) and notices of other 3 documents shall: (1)sum up the facts and evidence determined in the judgment of the original instance or ruling as well as the information about the cross-examination in court, demonstrate whether or not the facts determined in the judgment of the original instance are clear, whether or not the evidence is sufficient or not; (2)demonstrate the errors of the judgment or ruling of the original instance in the aspects of conviction of crime, determination of punishment and application of law, state the correct claims, and clearly express the support to protest; and (3)disclose the nature and extent of seriousness of the crime by the defendant. Article 18. With regard to the allegation of the defendant of the original instance or defender, if the prosecutor deems it necessary to debate on it, a debate shall be made in the tribunal. The debate shall have emphases and shall be well-structured. It shall not debate on the claims and contents that have noting to do with this case or that have been debated. Article 19. After the end of court debate, the prosecutor shall carefully hear the final statement of the defendant of original instance. CHAPTER V OTHER PROVISIONS Article 20. The clerk shall carefully note down the court trial information. The court trial transcripts shall be put into the files of the case. Article 21. If the prosecutor finds that the people's court violates the statutory litigation procedures in the trial of a case, he may, after the end of the court trial, file a written correction advice to the people's court on behalf of the people's procuratorate upon permission of the chief prosecutor. |
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