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	PROVISIONS ON GUARANTEEING LAWYERS' PRACTICE ACCORDING TO LAW IN CRIMINAL ACTIONS

	(Notice of the Supreme People's Procuratorate on Printing and Distributing the Provisions on Guaranteeing Lawyers' Practice According to Law in Criminal Actions, February 10, 2004: In order to safeguard the legitimate rights and interests of the lawsuit participants, further guarantee the lawyers' practice according to law when the people's procuratorates directly accept cases for investigation, examine criminal cases for prosecutions, the Provisions on Guaranteeing Lawyers' Practice According to Law in Criminal Actions are formulated by the Supreme People's Procuratorate in accordance with the Criminal Procedural Law of the People's Republic of China and other relevant laws. These Provisions were adopted at the 16th Conference of the 10th Procuratorial Committee on December 30, 2003)


SUBJECT : PRACTICE IN CRIMINAL ACTIONS
ISSUING DEPARTMENT : THE SUPREME PEOPLE'S COURT OF THE PEOPLE'S REPUBLIC OF CHINA
ISSUE DATE : 02/10/2004
IMPLEMENT DATE : 02/10/2004
LENGTH : 1,609 words
TEXT :

In order to safeguard the legitimate rights and interests of the lawsuit participants, to further guarantee the lawyers' practice according to law when the people's procuratorates directly accept cases for investigation, and examine criminal cases for prosecutions, and to promote the people's procuratorates to enforce the law strictly and impartially, the present Provisions are formulated in accordance with the Criminal Procedural Law of the People's Republic of China and other relevant laws and in light of the actual circumstances in the procuratorial work.

I. ON LAWYERS' VISITING OF THE SUSPECTED CRIMINALS

1. Where a people procuratorate directly accepts a case for investigation, the lawyer who accepts the entrustment of a suspected criminal may visit the suspected criminal in custody and ask him (her) about the information related to the case as of the day when the procurators interrogate him (her) for the first time or when the people's procuratorate takes mandatory measures against him (her). The people's court shall inform the lawyer of the suspected crime(s) and the place of custody of the suspected criminal.

2. With regard to a case directly accepted by the people's procuratorate for investigation, if the lawyer requests to visit the suspected criminal, the investigation department shall assign special persons to accept the lawyers' materials for the request of visiting the suspected criminal, shall arrange the lawyer to visit the suspected criminal and shall keep a record for inquiries.

3. The investigation department of the people's procuratorate shall arrange for an interview within 48 hours after the lawyer makes a request.

With regard to a crime of embezzlement and bribery or any other serious and complicated joint crime committed by two or more persons, if such case is directly accepted by the people's procuratorate and a lawyer requests to visit a suspected criminal in custody, the investigation department shall arrange for an interview within 5 days from the day when the lawyer makes a request.

4. When the investigation department of the people's procuratorate arranges the lawyer to visit the suspected criminal, it may, according to the circumstances of the case and the necessities of work, decide on whether to assign prosecutorial personnel to be present.

5. With regard to a case accepted by the people's procuratorate for investigation, if the lawyer requests to visit the suspected criminal in custody and the case involves state secrets, the investigation department shall decide to approve or disapprove the request within 5 days from the day when the lawyer makes a request. If it approves of the request, it shall issue an Approval Decision on Visiting Suspected Criminal in Custody to the lawyer, and shall arrange for an interview. If it disapproves of the request, it shall issue a Disapproval Decision on Visiting Suspected Criminal in Custody to the lawyer, and shall give explanations. If the case doesn't involve state secrets, no approval is required.

6 When a lawyer visits a suspected criminal in custody, he (she) may ask the suspected criminal about the following information:

(1) The basic information of the suspected criminal;

(2) Whether the suspected criminal has committed or has participated in the suspected crime(s);

(3) The statements of the suspected criminal about the facts and circumstances of the case;

(4) Arguments of the suspected criminal about his (her) innocence or light offence;

(5) Whether the legal formalities for taking mandatory measures are complete, whether the procedure is legitimate;

(6) Whether his (her) rights of the person or litigant rights are infringed upon after the mandatory measures are taken against him (her); and

(7) Other case-related information necessary to ask about.

7. During the examination and prosecution of the people's procuratorate, the defending lawyer may visit the suspected criminal upon the strength of the power of attorney or the law firm's letter. During the interview, the people's procuratorate shall not assign any prosecutorial personnel to be present.

8. All interviews between the lawyer and the suspected criminal shall be arranged for in the place of custody.

II. ON HEARING THE LAWYER'S OPINIONS

9. After the people's procuratorate accepts a case for investigation and decides to arrest the suspected criminal, the lawyer entrusted by the suspected criminal may apply for recognizance on bail for him (her). Where the entrusted lawyer considers that the statutory custody time limit has expired, he (she) may make a request for lifting or changing the mandatory measures. The people's procuratorate shall make a decision within 7 days and shall make a written reply to the entrusted lawyer via its investigation department.

10. Before the people's procuratorate completes the investigation, the case-handler shall hear the opinions of the entrusted lawyer about the case and shall note them down carefully and shall add them to the archival files. Where the entrusted lawyer offers any opinions in writing, those shall be added to the archival files.

11. When the people's procuratorate examines a case transferred to it for prosecution, if the defending lawyer considers that the statutory time limit for the people's procuratorate to take mandatory measures has expired, he may make a request for lifting or changing the mandatory measures. The people's procuratorate shall make a written decision within 7 days and shall give the defending lawyer a written reply via its public prosecution department.

12. When the people's procuratorate examines a case transferred to it for prosecution, it shall hear the opinions of the lawyer of the suspected criminal and the lawyer of the victim and shall note them down carefully and add them to the archival files. Where it is difficult to hear the opinions of the lawyer of the suspected criminal and the lawyer of the victim, it may send a written notice to them, asking them to give written opinions. If the lawyer(s) fails to give any opinion during the examination and prosecution, the people's procuratorate shall indicate this in the archival files.

13. With regard to the opinions given to the people's procuratorate by the lawyer about proving the innocence or light offence of the suspected criminal, or mitigating or exempting him (her) from the criminal liabilities, they shall be carefully examined by the case-handlers.

III. ON LAWYERS' CONSULTING OF THE ARCHIVAL MATERIALS

14. The defending lawyer, and the lawyer entrusted by the victim, his (her) legal agent or the close relatives of the victim may consult, make extracts from and copy the litigation documents and technical authentication materials related to the case from the day when the people's procuratorate commences the examination of the case for prosecution.

15. Where a lawyer requests to consult, make extracts from and copy the litigation documents and technical authentication materials related to the case, the public prosecution department shall make an arrangement after it receives such a request. If it is unable to make an arrangement on that very day, it shall make explanations to the lawyer, select a date within 3 days and inform the lawyer in time.

16. During the period of the people's procuratorate' examining of the prosecution or after it institutes a prosecution, if the defending lawyer finds any evidential materials that can prove the innocence or light offence of the suspected criminal or can extenuate or exempt him from punishment, and provide these evidential materials to the people's procuratorate, the public prosecution department of the people's procuratorate shall accept and examine them.

IV. ON DEFENDING LAWYERS' APPLICATION FOR GATHERING AND OBTAINING EVIDENCE

17. When the defending lawyer files an application to the people's procuratorate for gathering and obtaining proofs from the witnesses provided by the suspected criminal, or other relevant entities and individuals, the people's procuratorate shall gather and obtain those proofs that are of importance to the determination of the facts and the applicable laws in the case and shall make notes and add them to the archival files.

18. Where the defending lawyer files an application to the people's procuratorate for gathering the case-related materials from the victim, his (her) close relatives or the witnesses provided by the victim, the people's procuratorate shall ask the victim, his (her) close relatives, or the witnesses provided by the victim for opinions, upon examination it shall make a decision on whether to grant the applicant an approval within 7 days and shall inform him (her) of the decision. If the people's procuratorate disapproves, it shall give the applicant reasons in writing.

19. When gathering or obtaining proofs upon application of the defending lawyer, the people's procuratorate may notify the applicant to be present.

V. ON THE SETTLEMENT OF LAWYERS' COMPLAINTS

20. During the period of handling a criminal case, if a lawyer finds that the case-handling department of the people's procuratorate or any case-handler violates the law and the present Provisions, he (she) may file a complaint to the people's procuratorate that accepts the case or to the superior people's procuratorate.

21. Having received the complaints of lawyers, the people's procuratorates of all levels shall settle them in time in pursuance of the relevant laws and the present Provisions. Where a lawyer files a complaint on the refusal to arrange for an interview, the people's procuratorate shall make a decision within 5 days from the day when it receives the complaint, and shall inform the case-handling department to comply with the decision.

22. The people's procuratorates of all levels shall timely notify the complainants of the settlement results in writing.

23. Where a lawyer complains that a procurator commits acts in violation of the law in handling a case, the relevant people's procuratorate shall timely conduct investigation. If he (she) does commit any acts in violation of the law or discipline, he shall be subject to the legal and disciplinary liabilities in accordance with the law.