UPDATE (May 11, 2018): The link to an English translation of the draft amendment is added below.
The NPC Standing Committee (NPCSC) is soliciting public comments on a new draft amendment to the Criminal Procedure Law (刑事诉讼法) that it just considered at its session last month. The comments period ends on June 7, 2018. We expect the amendment to pass by late August at the latest.
The original Chinese (PDF) version is available here. An English translation is available on China Law Translate. Its accompanying explanation can be read here.
To submit comments online, please refer to these instructions. Comments can also be mailed to the NPCSC Legislative Affairs Commission (全国人大常委会法制工作委员会) at the following address:
Chinese: 北京市西城区前门西大街1号 邮编：100805
English: No. 1 West Qianmen Avenue, Xicheng District, Beijing 100805
Please clearly write “刑事诉讼法修正草案征求意见” on the envelope.
Overview of Draft Amendment
The draft amendment includes 24 articles, making the following three categories of changes:
- Adding new expedited procedures that will be used in cases where the defendants have admitted guilt and accepted punishment, as well as provisions authorizing leniency for these defendants. Relevant articles of the draft amendment include articles 1, 4, 7, 9, 11, 13–17, and 19–21. The NPCSC has since August 2014 authorized China’s top judicial authorities to conduct pilot programs to implement similar procedures in a few cities across the country. Jeremy Daum has published a comprehensive overview of the pilot on China Law Translate.
- Adding new procedures for trials in absentia. According to the explanation, the Communist Party sought to establish such a scheme to facilitate its anti-corruption efforts—in particular to punish those suspects or defendants who have fled the mainland, thus physically beyond its reach. Article 24, which adds a new chapter on procedures for trials in absentia, is translated in full below. The NPCSC Legislative Affairs Commission wrote in the explanation that it will conduct further research on the scope of cases where these procedures may be used, article 24 might thus be subject to substantial revision before the amendment is passed.
- Amending the current law so that it is consistent with newer laws. The Criminal Procedure Law was last amended in 2012. Since then the NPC has adopted the (1) Supervision Law, which transfer the authority to investigate corruption and bribery cases from the procuratorates to the supervision commissions (draft articles 2, 5, 6, 8, 10, 12); (2) Criminal Law Amendment (IX), which amended procedures related to the enforcement of suspended death penalty and the payment of criminal fines (draft article 22, 23); (3) People’s Assessors Law, which altered the composition of collegial panels in first-instance criminal cases in which people’s assessors participate (draft article 18); and (4) amendments to the Lawyers Law and the Notarization Law, barring lawyers and notaries public whose licenses have been revoked from acting as defenders (draft article 3).
Procedures for Trials in Absentia
The following translation is derived from China Law Translate’s translation of the current version of the Criminal Procedure Law and is subject to further modification.
二十四、第五编增加一章，作为第三章：
Article 24: A chapter is added to Part 5 as Chapter III:
“第三章 缺席审判程序
“Chapter III: Procedures for Trials in Absentia
“第二百九十一条 对于贪污贿赂等犯罪案件，犯罪嫌疑人、被告人潜逃境外，监察机关移送起诉，人民检察院认为犯罪事实已经查清，证据确实、充分，依法应当追究刑事责任的，可以向人民法院提起公诉。人民法院进行审查后，对于起诉书中有明确的指控犯罪事实的，应当决定开庭审判。
“前款案件，由犯罪地或者被告人居住地的中级人民法院组成合议庭进行审理。
“Article 291: In corruption, bribery, and other criminal cases, where the criminal suspect or defendant has escaped abroad and the Supervision Organ [监察机关, i.e., supervision commission] has transferred the case for prosecution, the people’s procuratorate may initiate a public prosecution in the people’s court if it finds that the facts of the crime are already clear, that the evidence is credible and sufficient, and that criminal responsibility shall be pursued in accordance with law. After conducting a review, the people’s court shall decide to try the case in open court if the indictment includes clear accusations of the facts of a crime.
The intermediate people’s court at the site of the crime or the residence of the defendant shall form a collegial panel to hear the cases in the previous paragraph.
“第二百九十二条 人民法院应当通过有关国际条约中规定的司法协助方式或者受送达人所在地法律允许的其他方式，将传票和人民检察院的起诉书副本送达被告人。被告人收到传票和起诉书副本后未按要求归案的，人民法院应当开庭审理，依法作出判决，并对违法所得及其他涉案财产作出处理。
“Article 292: The people’s court shall deliver the subpoena and a copy of the people’s procuratorate’s indictment to the defendant through judicial assistance means as prescribed in the relevant international treaties or other means permitted by the law of the addressee’s location. Where the defendant does not surrender as required after receiving the subpoena and the copy of the indictment, the people’s court shall hear the case in open court, render a verdict in accordance with law, and dispose of unlawful gains and other property involved in the case.
“第二百九十三条 人民法院缺席审判案件，被告人有权委托辩护人，被告人的近亲属可以代为委托辩护人。被告人及其近亲属没有委托辩护人的，人民法院应当通知法律援助机构指派律师为其提供辩护。
“Article 293: In trials in absentia conducted by the people’s court, defendants have the right to retain a defender, and defendants’ close relatives may retain a defender on their behalf. Where defendants and their close relatives have not retained a defender, the people’s court shall notify a legal aid organization to appoint a lawyer to provide them with a defense.
“第二百九十四条 人民法院应当将判决书送达被告人及其近亲属、辩护人。被告人或者其近亲属不服判决的，有权向上一级人民法院上诉。辩护人经被告人或者其近亲属同意，可以提出上诉。
“Article 294: The people’s courts shall send written verdicts to the defendants and their close relatives and defenders. Where the defendants or their close relatives are not satisfied with the verdict, they have the right to appeal the people’s court at the next higher level. Defenders may raise appeals with the defendants’ or their close relatives’ consent.
“第二百九十五条 在审理过程中，被告人自动投案或者被抓获的，人民法院应当重新审理。
“罪犯在判决、裁定发生法律效力后归案的，人民法院应当将罪犯交付执行刑罚。交付执行刑罚前，人民法院应当告知罪犯有权对判决、裁定提出异议。罪犯对判决、裁定提出异议的，人民法院应当重新审理。
“依照生效判决、裁定对罪犯的财产进行处理确有错误的，应当予以返还、赔偿。
“Article 295: Where during the course of a trial, the defendant voluntarily surrenders or is captured, the people’s court shall retry the case.
“Where a convict is brought to justice after the verdict or judgment has already taken legal effect, the people’s court shall transfer the defendant for enforcement of his penalty. Before the transfer for the enforcement of penalty, the people’s court shall inform the convict that he has the right to raise objections to the verdict or judgment. Where a convict raises objections to the verdict or judgment, the people’s court shall retry the case.
“Where the disposition of a convict’s property in accordance with an effective verdict or judgment is truly in error, it shall be returned and compensation made.
“第二百九十六条 由于被告人患有严重疾病，无法出庭的原因中止审理超过六个月，被告人仍无法出庭，被告人及其法定代理人申请或者同意继续审理的，人民法院可以在被告人不出庭的情况下缺席审理，依法作出判决。
“Article 296: Where because the defendant has a serious illness and is unable to appear in court, the proceedings are suspended for over six months, and the defendant is still unable to appear in court, and where the defendant and his agent ad litem applies for or consents to continuation of the trial, the people’s court may conduct a trial in absentia where the defendant does not appear in court and render a verdict in accordance with law.
“第二百九十七条 被告人死亡的，人民法院应当裁定终止审理；但有证据证明被告人无罪，人民法院经缺席审理确认无罪的，依法作出判决。
“人民法院按照审判监督程序重新审判的案件，被告人死亡的，人民法院可以缺席审理，依法作出判决。”
“Article 297: Where the defendant has died, the people’s court shall render a judgment terminating the trial; but where there is evidence proving that the defendant is innocent, and the people’s court confirms his innocence after conducting a trial in absentia, it shall render a verdict in accordance with law.
“In a case where the people’s court holds a new trial in accordance with trial supervision procedures and the defendant has died, the people’s court may conduct a trial in absentia and renders a verdict in accordance with law.”
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