Interpretation of Evidence Law under Criminal Procedure Code of China

Criminal Procedure Law: People’s Republic of China

Chapter 5 Evidence [Article 48-63] / 50-65

    Chapter 5 Evidence

    Article 48– The materials that can be used to prove the facts of a case are all evidence.

    The evidence includes:

    (1) Physical evidence;

    (2) Documentary evidence;

    (3) Witness testimony;

    (4) The victim’s statement;

    (5) The confession and defense of the criminal suspect or defendant;

    (6) Appraisal opinions;

    (7) Records of investigation, inspection, identification, investigation experiment, etc.;

    (8) Audiovisual materials and electronic data.

    Evidence must be verified to be true before it can be used as a basis for a verdict.

    【Subject of this Article】

    This article is about the concept and type of evidence, and that the evidence must be verified before it can be used as the basis for a verdict.

    【Interpretation of this Article】

This article is divided into three paragraphs. The first paragraph is about the provisions of the concept of evidence. According to the provisions of this paragraph, the materials that can be used to prove the facts of the case are all evidence. This concept can be understood from three aspects:

1. Evidence is material, including material evidence, documentary evidence and other objective materials and testimony, confession and other highly subjective materials. 

2. Evidence can be used to prove the facts of the case, that is, the evidence has a certain degree of relevance to the facts of the case, and can be used to reveal and infer the facts of the case. However, whether a certain piece of evidence truly reflects the facts of the case needs to be reviewed and judged by the judicial organs. 

3. Evidence includes materials proving the guilt of the criminal suspect and the defendant, as well as materials proving the innocence of the criminal suspect and the defendant, including materials proving the crime of the criminal suspect and the defendant, as well as proving the criminal suspect and the defendant. Material that the person has committed a minor crime or can be lightened, mitigated, or exempted from punishment.  

 The second paragraph is about the regulations on the types of evidence.  According to the provisions of this paragraph, the evidence includes the following

    Eight kinds:

    1. Physical evidence. Refers to the physical objects or traces associated with the case that can be used to prove the circumstances of the case and the circumstances of the criminal suspect or defendant. Such as tools of committing crimes, leftovers at the scene, stolen goods, blood stains, fine spots, footprints, etc.

    2. Documentary evidence. Refers to the text, patterns and other materials that can prove the facts of the case with its content. Such as contracts, ledger books, and correspondence between the co-participants on criminal content, etc. The 1996 Criminal Procedure Law puts documentary evidence and physical evidence in the same item. Taking into account the obvious differences between documentary evidence and physical evidence in the nature and the way of proving the facts of the case, and with reference to the relevant provisions of the Civil Procedure Law and the Administrative Procedure Law, the Criminal Procedure Law is amended this time to provide two separate provisions for physical evidence and documentary evidence.

    3. Witness testimony. Refers to the actions of a person who knows the situation of the case on the situation of the case that they know about the case

    Statement.

    4. The victim’s statement. Refers to a statement made by a person directly affected by a criminal act on the circumstances of the case.

    5. The confession and defense of the criminal suspect and defendant. Refers to the statements made by the criminal suspect or defendant on the circumstances of the case, including both the confession of the person who admitted that he was guilty of his crime, and the justification for claiming that he was innocent or guilty.

    6. Appraisal opinion. Refers to a written opinion made by an expert appraiser with specialized knowledge after appraisal of the specialized issues in the case. Such as forensic identification report, fingerprint identification report, bloodstain identification report, etc. The result of the appraisal is not the final conclusion. It still needs to be reviewed and judged by the judicial organs in combination with the whole case and other evidence. Only after it is verified can it be used as the basis for the verdict. This item changes the name of this kind of evidence from “verification conclusion” to “verification opinion”, which is consistent with the “Decision of the Standing Committee of the National People’s Congress on the Management of Judicial Expertise”.

    7. Records of investigations, inspections, identification, investigation experiments, etc. Records of inquests and inspections refer to the records made by investigators for on-site inspections and inspections of crime-related premises, objects, persons, and corpses. Identification transcripts refer to records made by investigators to allow victims, criminal suspects or witnesses to identify crime-related objects, documents, corpses, places, or criminal suspects. The transcripts of investigation experiments refer to the transcripts formed by investigators, when necessary, in accordance with the circumstances and conditions at the time of the occurrence of a certain incident, which were formed by investigating activities that were experimentally reenacted. The records of other investigation activities conducted by the investigative agency in accordance with the law may also be used as evidence.

    8. Audiovisual materials, electronic data. Audiovisual materials refer to video and audio materials that contain content related to the case. Electronic data refers to evidence in electronic form such as e-mails, online chat records, electronic signatures, and visit records related to the facts of the case. The two types of evidence stipulated in this item may overlap with the evidence stipulated in the previous items in content, such as video recordings of witnesses giving testimony, and electronic version of the evidence.

    Equal.

  The third paragraph is about the requirement that evidence must be verified to be true before it can be used as the basis for a verdict. According to the concept in the first paragraph of this article, evidence is only the material that can be used to prove the facts of the case, and its authenticity needs to be reviewed by the judicial authority. Only when the evidence itself is true can the true situation of the case be proved. False evidence will cause errors in the determination of the case. Therefore, this paragraph clearly stipulates that “the evidence must be verified to be true before it can be used as the basis for the verdict.” This is the fundamental principle of the use of evidence. Violation of this principle will lead to wrong cases, false cases, indulgence of crimes or infringement of the legal rights of citizens. “Verification” means that the judicial organs review the objectivity and legitimacy of the evidence through legal procedures, and mutually verify the information provided by a certain piece of evidence with other evidence to remove the falsification and preserve the truth, so as to determine whether the evidence is true. “As the basis for determining the case” refers to the basis for determining the facts of the case, making decisions on whether to transfer for prosecution, whether to prosecute, etc., as well as the basis for judgments and rulings.

    Article 49 The burden of proof for the defendant’s guilt in public prosecution cases shall be borne by the People’s Procuratorate, and the burden of proof for the guilt of the defendant in private prosecution cases shall be borne by the private prosecutor.

    【Subject of this Article】

    This article stipulates the burden of proof in criminal proceedings.

    【Interpretation of this Article】

   This article distinguishes between public prosecution cases and private prosecution cases, and stipulates the burden of proof in criminal cases. According to the provisions of this article, the burden of proof of the guilt of the defendant in public prosecution cases shall be borne by the People’s Procuratorate. The burden of proof that the defendant is guilty in private prosecution cases shall be borne by the private prosecutor. Whether the defendant is guilty is the core issue in criminal proceedings, and it is also the most basic content for the People’s Procuratorate and private prosecutors to bring criminal proceedings to the court.    The burden of proof refers to the responsibility of litigants to provide evidence to prove the facts they claim. Theoretically speaking, the burden of proof is generally divided into two aspects. One is the responsibility of conduct, which is the responsibility of the parties to present evidence to prove their claims and make the litigation move in their own direction; the second is the responsibility of losing the lawsuit, which is Because of the inability to provide evidence or the evidence presented does not meet the proof standards stipulated by law, the result of his claim was found to be untenable by the court. Generally speaking, if a party is unable to provide sufficient evidence to prove its claim, the court should determine that the facts of its claim are unfounded, that is, the party that bears the burden of proof shall bear the adverse consequences of losing the case. Worldwide, the burden of proof of the guilt of the defendant in criminal proceedings is generally stipulated to be borne by the prosecution, which also conforms to the law of litigation. Article 12 of the Criminal Procedure Law of our country stipulates the principle that no one can be determined guilty without a judgment by the people’s court. This revision adds the provision that no one can be forced to prove his guilt. Proceeding from these two principles, when the People’s Procuratorate requires the court to convict anyone, it should provide reliable and sufficient evidence to prove it. The requirement that the prosecution bear the burden of proof is based on the above-mentioned principle that no one can be determined guilty without a judgment by the people’s court in accordance with the law. Only when the prosecution provides reliable and sufficient evidence to prove that the defendant is guilty can it be determined The defendant is guilty. On the other hand, this also embodies the principle of who advocates and who provides evidence. Criminal proceedings are initiated by the People’s Procuratorate and the private prosecutor. If they claim that the defendant is guilty, they should naturally prove their claims.

    It is stipulated here that the People’s Procuratorate shall bear the burden of proof, which is stipulated from the perspective of the trial. In litigation, the work of collecting evidence is mainly carried out by investigative agencies such as public security organs. According to the provisions of this article, whether in a public prosecution case or a private prosecution case, the people’s procuratorate or the private prosecutor’s proof of the guilt of the defendant must be confirmed and sufficient as stipulated in Article 53 of this law. Correspondingly, the defendant does not bear the responsibility of proving his innocence, and cannot conclude that the criminal suspect or defendant is guilty just because the criminal suspect or defendant cannot prove his innocence.

    In judicial practice, it is necessary to avoid deviations in the understanding of the burden of proof. The burden of proof is not clearly stipulated in the Criminal Procedure Law of 1979 and the Criminal Procedure Law of 1996. In practice, the People’s Procuratorate assumes the responsibility of proving the guilt of the defendant. But in a few cases, sometimes there are some differences in understanding and specific implementation. For example, in Article 35 of the Criminal Procedure Law of 1996, “The responsibility of the defender is based on facts and the law to provide materials and opinions proving that the suspect or defendant is not guilty, or that the crime is mitigated or exempted from criminal responsibility.” It caused some misunderstandings. Some judicial practitioners often require the defendant and his defenders to investigate and collect evidence on their own. Based on past experience and lessons, in order to avoid wrong application, in judicial practice, it is necessary to correctly understand and apply the provisions of this article, paying attention to the following

    What time is it:

    First, it is stipulated that the burden of proof of the defendant’s guilt shall be borne by the People’s Procuratorate, instead of requiring the procuratorate to only provide evidence proving the defendant’s guilt. As a national public prosecution agency and also a legal supervision agency, the People’s Procuratorate should follow the principle of objectiveness and fairness. Whether it is evidence of a criminal suspect or defendant’s guilt or serious crime, or evidence of innocence and minor crime, it should be submitted to the people’s court. The people’s court will determine whether the defendant is guilty or not based on a comprehensive judgment based on all the evidence in the case.

    Second, it cannot deny the obligation of the court to review evidence objectively and comprehensively. In order to ensure that the court makes a fair judgment, the people’s court cannot only passively review the evidence presented by the people’s procuratorate. In the course of the court hearing, if the collegiate panel has doubts about the evidence, it can also announce an adjournment to investigate and verify the evidence.

    The third is to stipulate that the defendant shall not bear the burden of proof. It does not mean that criminal suspects and defendants cannot present evidence to the judicial organs. For example, Article 39 of this law stipulates that if the defender believes that the evidence collected by the public security organs or the people’s procuratorate to prove the innocence or minor crimes of the criminal suspect or defendant has not been submitted during the investigation, review and prosecution, he has the right to apply to the people’s procuratorate. , The people’s court calls. Article 40 stipulates that the defender shall promptly notify the public security organ and the people’s procuratorate of the evidence collected by the defender about the criminal suspect or defendant who is not at the scene of the crime, has not reached the age of criminal responsibility, and is a mental patient who is not criminally responsible. The parties and their defenders may also request the judicial organs to conduct investigations and collect materials related to the case. However, it should be noted that this activity of providing evidence is the litigation rights enjoyed by the criminal suspect, the defendant and their defenders, and it is also the responsibility of the defender. Its purpose is mainly to refute the prosecution’s allegations, not to prove I am not guilty. Their failure to exercise this right cannot lead to the legal consequences of his guilt. The defendant provided materials or evidence for defense, and the people’s court must verify it.

    Article 50: Judges, prosecutors, and investigators must, in accordance with legal procedures, collect all kinds of evidence that can prove the guilt or innocence of a criminal suspect or defendant, and the severity of the crime. It is strictly forbidden to extract confessions by torture and collect evidence by threats, inducements, deception and other illegal methods, and must not force anyone to prove their guilt. It must be ensured that all citizens who are related to the case or understand the facts of the case have the conditions to provide evidence objectively and adequately, and that they can be recruited to assist in the investigation, except in special circumstances.

    【Subject of this Article】

    This article is about the collection of evidence in accordance with the law and the comprehensive collection of evidence.

    【Interpretation of this Article】

    This article sets forth the following five requirements for the collection of evidence by judges, prosecutors, and investigators:

    1. Evidence must be collected in accordance with legal procedures. This statutory procedure has been clearly stipulated in the relevant chapters of this law. If the criminal suspect is interrogated, it should be conducted by two investigators; the search warrant must be presented during the search; the witness record must be submitted to the person for verification; the appraisal should be assigned and hired The knowledgeable person carries on and so on. In collecting evidence, judicial personnel must not violate these procedural regulations.

    2. Collect all kinds of evidence that can prove the guilt or innocence of the criminal suspect or defendant, and the severity of the crime. That is, the collection of evidence must be objective and comprehensive, and not only one aspect of evidence should be collected. Among them, “collection” refers to the investigation and collection of evidence by means of investigation, inspection, search, interrogation of criminal suspects, defendants, interrogation of victims, witnesses, identification, and investigative experiments.

    3. It is strictly forbidden to collect evidence by illegal methods. It mainly means that it is strictly forbidden to extract a confession by torture, and it is strictly forbidden to obtain evidence by means of threats, inducements, and deception. Especially the confessions of criminal suspects and defendants obtained through torture, threats, inducements, and deception are provided by the confessor under pressure or deceived. The possibility of falsehood is very high and cannot be based on this alone. Use it as a basis for finalizing the case, otherwise it is very easy to cause a wrong case. Among them, torture to extract a confession includes not only the use of violent beating of the suspect to obtain a confession, but also the use of abusive methods such as freezing, hunger, and not allowing sleep for a long time to obtain a confession. “No one shall be forced to prove his guilt” is a principled requirement for the judicial organs to collect confessions, which means that no coercive means shall be used to force anyone to confess their guilt and provide evidence to prove their guilt. In practice, interrogating criminal suspects, preaching criminal policies to them, publicizing the law on the provision of lighter punishments for truthful confession of their crimes, and ideological work to allow criminal suspects to confess their crimes, seeking lenient treatment, does not mean forcing criminal suspects to confirm I am guilty.

    4. It is necessary to ensure that all persons who are related to the case or who understand the circumstances of the case have the conditions to objectively and adequately provide evidence. Among them, “there are conditions for objectively and adequately providing evidence” mainly include the following aspects: First, it is necessary to protect the safety of witnesses and their close relatives, avoid witnesses’ fear, and get rid of possible threats and damages, so that witnesses can tell the truth of the case. Circumstances; the second is to interrogate the witnesses separately; the third is to fully listen to confessions, statements or testimony. Witnesses must not be guided to give one-sided testimony, or only one-sided confessions and testimonies should be heard and recorded.

    5. Except for special circumstances, citizens who are related to or understand the case may be recruited to assist in the investigation. This means that the work of collecting evidence depends on the people. Among them, “special circumstances” mainly refers to the fact that persons who are related to the case or who have knowledge of the case may disclose the case when they participate in the investigation, cause the unacquired criminal suspect to escape, or cause collusion, destruction, and concealment of evidence. In addition, for the involvement of state secrets People who should not know the secrets of the country are not allowed to participate in the investigation.

    Article 51 The public security organ’s request for approval of arrest, the people’s procuratorate’s indictment, and the people’s court’s judgment must be faithful to the facts. Those who deliberately conceal the truth should be investigated

    responsibility.

    【Subject of this Article】

    This article is about the requirement that the arrest documents, indictments, and judgments submitted for approval must be faithful to the facts.

    【Interpretation of this Article】

    This article is a strict requirement for public security organs, people’s procuratorates, and people’s courts. Approval of arrest is a legal document submitted by the public security organ to the People’s Procuratorate for approval of the detention of a criminal suspect for a longer period of time. It is the main basis for the People’s Procuratorate to approve the arrest. In the process of approving arrests, the procuratorate generally does not conduct new investigations into the facts and evidence of the case, but verifies the facts and evidence provided in the arrest request and makes a decision on whether to approve the arrest. Once there is an error in the arrest document submitted for approval, it may cause the suspect to be improperly detained for a long time. The indictment is a legal document used by the People’s Procuratorate to accuse the people’s court of crimes on behalf of the country. Only when the indictment is submitted can the trial begin. The content of the indictment is directly related to the direction and focus of the trial. It should be very serious and rigorous and must be objective. actual. The judgment is a legal document used by the people’s court to make a judgment on the defendant, and the facts are the basis for all judgments. If the judgment is not faithful to the truth, it will inevitably lead to errors in the judgment. Therefore, this article emphasizes that these three legal documents must be faithful to the facts. “Faithful to the truth” means to conform to objective reality and to be true. It includes two aspects: one is not to be subjectively guessed, one must not be exaggerated and the other is narrowed, or even only reflect one aspect of the facts. The second is not to distort facts, fabricate facts, deliberately conceal the truth of facts, make criminals evade legal sanctions, or subject innocent people to criminal prosecution. “Those who deliberately conceal the facts shall be held accountable” means that investigators, prosecutors, and judges who deliberately falsify in the approval of arrest, indictment, or judgment shall be held accountable in accordance with the law. Those that constitute crimes such as obstruction of testimony, favoritism, abuse of power, negligence of duty, etc. shall be investigated for criminal responsibility according to law; those that are not enough for criminal punishment shall be dealt with in accordance with the provisions of the Civil Service Law, the People’s Police Law, the Procurator Law, and the Judge Law.

    What needs to be clarified is that the “factual truth” provided for in this article should be the truth of the case ascertained by the public security organs, people’s procuratorates, and people’s courts in accordance with legal procedures. The decision to amend the Criminal Procedure Law added a new provision for illegal evidence exclusion procedures. Evidence that has been excluded in accordance with the law due to illegal collection procedures shall not be used as a case identified in the public security organ’s request for approval of arrest, the people’s procuratorate’s indictment, and the people’s court’s judgment. Factual basis.

    Article 52: People’s courts, people’s procuratorates, and public security organs have the right to collect and obtain evidence from relevant units and individuals. Relevant units and individuals shall provide evidence truthfully.

    Evidence materials, such as physical evidence, documentary evidence, audio-visual materials, and electronic data collected by administrative agencies in the course of administrative law enforcement and investigation of cases, can be used as evidence in criminal proceedings.

    Evidence involving state secrets, commercial secrets, and personal privacy shall be kept confidential.

    Anyone who falsifies, conceals, or destroys evidence, no matter where it belongs, must be investigated by law.

    【Subject of this Article】

    This article is about the relevant provisions of the people’s courts, people’s procuratorates, public security organs and other agencies on the collection and retrieval of evidence.

    【Interpretation of this Article】

    The decision to amend the Criminal Procedure Law adopted at the Fifth Session of the Eleventh National People’s Congress on March 14, 2012 has made two changes to this article: First, it has added evidence collected by administrative agencies to be used in criminal proceedings. Rules for the use of evidence. The second is to increase the confidentiality of evidence involving business secrets and personal privacy.

    This article is divided into four paragraphs. The first paragraph is about the power to collect evidence and the obligation to provide evidence. According to the provisions of this paragraph, people’s courts, people’s procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. This is based on the need to ascertain the facts of the case, fight crimes, and protect human rights. The law gives the people’s courts, people’s procuratorates, and public security organs the powers. The specific procedures and norms of the people’s courts, people’s procuratorates, and public security organs for collecting and obtaining evidence are stipulated in the relevant chapters of investigation, review, prosecution, and trial. “Relevant units and individuals shall truthfully provide evidence” means that relevant units and individuals are obliged to objectively and truthfully obtain evidence from the people’s courts, people’s procuratorates, and public security organs when collecting and obtaining evidence from them in accordance with the law. Provide evidence, including surrendering real physical evidence, documentary evidence, audio-visual materials, electronic data, and providing true testimony, etc. “Provide the evidence truthfully” means neither concealing evidence, not providing testimony, nor forging evidence or fabricating false testimony, but seeking truth from facts.

    The second paragraph is about the use of evidence collected by administrative agencies as evidence in criminal proceedings. According to the provisions of this paragraph, the physical evidence, documentary evidence, audio-visual materials, electronic data and other evidential materials collected by administrative agencies in the course of administrative law enforcement and investigation of cases may be used as evidence in criminal proceedings. “Administrative law enforcement” refers to the implementation of duties entrusted by laws and regulations in administrative management. For example, industry and commerce and quality inspection departments perform market supervision responsibilities, and securities supervision and management institutions perform capital market supervision responsibilities. “Investigating cases” refers to investigating and handling cases of administrative violations and disciplinary violations in accordance with the law. For example, the industrial and commercial departments investigate and handle cases of infringement of intellectual property rights, and the administrative supervision organs investigate and handle cases of administrative violations. The scope of evidential materials covered by this paragraph is physical evidence, documentary evidence, audio-visual materials, electronic data and other physical evidence, excluding verbal evidence such as witness testimony. “Can be used as evidence” in this paragraph means that these evidences are eligible to enter criminal proceedings and do not require criminal investigation agencies to perform the procedures for obtaining evidence again. However, whether these evidences can be used as the basis for the verdict of the case still needs to be reviewed and judged by investigative, procuratorial, and judicial organs in accordance with other provisions of this law. After review, if it is something that should be excluded or is untrue, it cannot be used as a basis for a verdict.

    The third paragraph is about the confidentiality of evidence involving state secrets, commercial secrets, and personal privacy. This paragraph is mainly for the requirements of the case-handling agency and its staff. “State secrets” refer to matters related to national security and interests, determined in accordance with legal procedures, and known to only a certain range of personnel within a certain period of time. “Commercial secrets” refer to technical information and business information that are not known to the public, can bring economic benefits to the right holder, are practical, and are protected by the right holder. “Personal privacy” refers to secrets in personal life that are unwilling to be disclosed or known to others. State secrets are related to national security and interests, business secrets are related to the economic interests of the right holders, and the right to privacy is an important personal right of individuals. The Confidentiality Law, Criminal Law, Tort Liability Law and other laws provide for the protection of state secrets, commercial secrets, and personal privacy. The case-handling agency and its staff shall properly keep the evidence that involves state secrets, commercial secrets, and personal privacy that they come into contact with in the course of handling the case, and shall not be lost or divulged, and shall not be known to those who should not have known it.

    The fourth paragraph is about the forgery, concealment, and destruction of evidence that must be investigated by law. Whether the evidence is reliable and sufficient determines whether the case-handling agency will pursue criminal responsibility for the criminal suspect or defendant. The falsity, concealment and loss of evidence, especially the falsification, concealment and loss of key evidence that can be used as the basis for the verdict, will have a serious impact on the handling of the case, and even lead to unjust, false and wrong cases. Therefore, this paragraph stipulates that the forgery, concealment, or destruction of evidence, no matter where it belongs, shall be investigated for legal responsibility. “No matter where it belongs” means that no matter it is a law enforcement officer, a participant in the litigation, or other people, as long as these three acts are committed, they must be investigated by law. “Accountable by law” means to hold accountable for the forgery, concealment, and destruction of evidence in accordance with the law. Those that constitute crimes such as crimes of perjury, shelter, abuse of power, etc. shall be investigated for criminal responsibility in accordance with the law. If it does not constitute a crime, administrative penalties or sanctions shall be imposed in accordance with the law.

    Article 53 In the judgment of all cases, the emphasis must be on evidence, investigation and research, and not credulous confession. Only the defendant’s confession, without other evidence, cannot be found guilty and punished; if there is no defendant’s confession and the evidence is reliable and sufficient, the defendant can be found guilty and punished.

    The evidence is reliable and sufficient, and the following conditions should be met:

    (1) The facts of conviction and sentencing are all proved by evidence;

    (2) The evidence on which the verdict is based has been verified through legal procedures;

    (3) Synthesize the evidence of the whole case and exclude reasonable doubts about the facts ascertained.

    【Subject of this Article】

    This article is about evidence-heavy, credulous confession, and criminal case proof standards.

    【Interpretation of this Article】

 This article is divided into two paragraphs. The first paragraph is about the provisions of emphasizing evidence and not credulous confession. Oral confessions, that is, the confessions of criminal suspects and defendants, are important evidence in criminal proceedings and are of great significance in determining the facts of the case. The case-handling agency should pay attention to the collection of confessions. However, because criminal suspects and defendants are persons who may be held criminally responsible, they often consider whether they are beneficial to them when making confessions. The confession may be mixed with false elements, or even completely false. On the other hand, confessions are uncertain and may change at any time. If the case-handling agency trusts or even relies on confessions and does not pay attention to the collection of other evidence, it is likely that once criminal suspects and defendants retract their confessions, they will be convicted without a license, which is not conducive to fighting crimes and improving the quality of case handling. Moreover, relying on confessions can easily lead to unscrupulous methods to obtain confessions, and illegal methods such as torture to extract confessions, infringement of the lawful rights and interests of criminal suspects and defendants. This paragraph stipulates the principle of “emphasis on evidence, investigation and research, and not credulous confession”. “Emphasis on evidence” means to pay attention to the collection and determination of all evidence, especially objective evidence other than confessions. “Not credulous confession” means that one cannot easily believe the confession without verification and mutual confirmation with other evidence. As a concretization of this principle, this paragraph also clearly stipulates the handling of cases under two special circumstances. The first is that “the defendant cannot be found guilty and sentenced if there is only the defendant’s confession and no other evidence.” This means that the people’s court cannot confirm the defendant if there is only the defendant’s guilty confession and no other evidence confirms it. People are guilty and sentenced, which means that they cannot be convicted on the basis of confession alone, even if they are convicted and exempt from punishment. This is different from some foreign regulations that the defendant can be convicted and sentenced as long as the defendant pleads guilty. It embodies the spirit of seeking truth from facts and fully protects the rights of the defendant. The second is “there is no confession by the defendant, and the evidence is reliable and sufficient, and the defendant can be found guilty and sentenced”, which means that the defendant does not confess, but other evidence verified by the court is reliable and sufficient to prove the defendant’s guilt , The defendant can also be convicted and sentenced.

    The second paragraph is about the conditions for determining “the evidence is reliable and sufficient.” This article and other provisions of the Criminal Procedure Law must apply the conditions stipulated in this paragraph to determine that the “evidence is reliable and sufficient”. According to the provisions of this paragraph, to determine that the evidence is reliable and sufficient, three conditions should be met:

    1. The facts of conviction and sentencing are all proved by evidence. Refers to the facts that are the basis for determining whether a criminal suspect or defendant has committed a crime and what kind of crime, whether or not to be sentenced to him, and what kind of punishment should be imposed, including various elements that constitute a certain crime and various circumstances that affect sentencing. All the case-handling agencies have collected evidences through legal procedures. This is the basis for determining “the evidence is reliable and sufficient.”

    2. The evidence based on the verdict has been verified through legal procedures. It refers to the verification by investigative agencies, people’s procuratorates, and people’s courts in accordance with the procedures prescribed by law, including the newly added illegal evidence exclusion procedures for the decision to amend the Criminal Procedure Law, and the evidence used as the basis for the verdict is found to be true. This condition focuses on the aspect of confirming that the evidence is “true”.

    3. Based on the evidence of the entire case, reasonable doubts about the facts ascertained have been eliminated. It means that on the basis of verifying the truth of each piece of evidence, the case-handling personnel use legal knowledge, logic and experience to reason and make judgments after a comprehensive review of the evidence, to the extent that they can eliminate reasonable doubts about the confirmed case facts. “Excluding reasonable doubt” refers to the fact that there is no reasonable and well-founded doubt about the confirmed facts, and in fact it has reached the level of certainty. “Evidence is reliable and sufficient” has strong objectivity, but in judicial practice, whether this standard is met or not depends on the subjective judgment of investigators, prosecutors, and judges in order to achieve the unity of subjective and objective. Only when there is no reasonable doubt about the case and the formation of inner conviction, can the case be determined as “reliable and sufficient.” The use of the term “beyond reasonable doubt” in this article does not modify the proof standard of China’s criminal proceedings, but further clarifies the meaning of “reliable and sufficient evidence” from a subjective point of view, which is convenient for case-handling personnel to grasp.

    Article 54 The confessions of criminal suspects and defendants collected by illegal methods such as torture and the confessions of witnesses and victims collected by illegal methods such as violence and threats shall be excluded. Where the collection of physical evidence or documentary evidence does not comply with legal procedures and may seriously affect judicial justice, it shall be supplemented or corrected or a reasonable explanation shall be made; if it cannot be supplemented or corrected or a reasonable explanation shall be made, the evidence shall be excluded.

    If evidence that should be excluded during investigation, review, prosecution, or trial is found, it shall be excluded in accordance with the law, and shall not be used as the basis for prosecution opinions, prosecution decisions, and judgments.

    【Subject of this Article】

    This article is about the scope of the exclusion of illegal evidence and the obligation of the case-handling agency to exclude illegal evidence.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the scope of excluding illegal evidence, that is, the regulations on which evidence should be excluded. According to the provisions of this paragraph, there are two types of illegal evidence that should be excluded in criminal proceedings:

    The first category is confessions of criminal suspects and defendants collected by illegal methods such as torture and witness testimonies and victim statements collected by illegal methods such as violence and threats, that is, verbal evidence collected by illegal methods. “Torture to extract a confession” refers to the use of physical torture or disguised physical torture to cause the person to suffer severe physical or mental pain or suffering and have to confess, such as beating, electric shock, hunger, freezing, roasting, etc. “Illegal methods” refers to methods that have the degree of violation of the law and the degree of coercion on the parties equivalent to that of torture, violence, or threats, so that they have to make statements against their will. Collecting verbal evidence by the illegal methods provided in this paragraph seriously violates the personal rights of the parties concerned, undermines judicial justice, and can easily lead to unjust, false and wrong cases. It is the most serious situation of illegal evidence collection. This paragraph stipulates that the verbal evidence obtained by the above-mentioned illegal methods shall be strictly excluded.

    The second category is physical evidence and documentary evidence whose collection procedures do not conform to legal procedures. “Inconsistent with legal procedures” includes failure to comply with the laws on the subject of evidence collection, the procedures for obtaining evidence, and the method of obtaining evidence, such as material evidence obtained by a person who is not qualified to handle a case, material evidence that does not have the signature of a witness in the inspection record, and the search warrant is not presented. Documentary evidence, etc. The situation of illegal collection of physical evidence and documentary evidence is more complicated. The physical evidence and documentary evidence themselves are objective evidence, and the violation of the evidence collection procedure generally does not affect the credibility of the evidence. Moreover, many physical and documentary evidences are unique, and once they are excluded, they cannot be obtained again. The laws of most countries do not provide for absolute exclusion of physical evidence obtained illegally, but treat them differently according to different situations. This article takes into account the requirements of punishing crimes and safeguarding human rights, and stipulates that if the collection of physical evidence or documentary evidence does not comply with legal procedures and may seriously affect judicial justice, it shall be supplemented or corrected or a reasonable explanation shall be made; if it cannot be supplemented or corrected or a reasonable explanation shall be made, the evidence shall be used. Be excluded. “May seriously affect judicial justice” is a prerequisite for excluding illegally obtained physical evidence and documentary evidence. It means that the collection of physical evidence and documentary evidence that does not comply with legal procedures is obviously illegal or has serious circumstances, which may impair the fairness, authority, and judicial authority of judicial organs in handling cases. The credibility of the company has caused serious damage. The main body of “additions, corrections or reasonable explanations” is the case-handling agency or personnel that collects evidence. “Correction and correction” refers to the remediation of insubstantial defects in the evidence collection procedure, such as signing an inspection or inspection record that lacks the signature of an investigator. “Reasonable explanation” refers to a logical explanation of the flaws in the evidence collection process, such as an explanation of the copying time of documentary evidence. According to the provisions of this paragraph, if the organ or person collecting evidence has made supplements or corrections or reasonable explanations on the illegal evidence collection, if the reviewing agency considers that the evidence does not affect the use of the evidence, the evidence may continue to be used; The evidence should be excluded.

    The second paragraph is about the obligations of investigative agencies, procuratorial agencies, and judicial agencies to exclude illegal evidence. Investigation agencies, procuratorial agencies, and adjudication agencies are not allowed to adopt illegal methods to collect evidence, and they all have the duty to maintain judicial justice and the legal rights of litigation participants. In the process of handling the case, if they discover that the evidence they have collected contains illegal evidence that should be excluded according to law, they are obliged to exclude it. The “evidence that should be excluded” in this paragraph refers to the verbal evidence and physical evidence that should be excluded in accordance with the first paragraph of this article. According to the provisions of this paragraph, evidence excluded in accordance with the law shall not be used as the basis for the prosecution opinions of the investigative agency, the prosecution decision of the prosecution agency, and the judgment of the judicial agency. It is stipulated that case handling agencies at each stage of criminal proceedings have the obligation to exclude illegal evidence, which is conducive to the early detection and elimination of illegal evidence, improving the quality of case handling, and safeguarding the legal rights of litigation participants.

    Article 55: When the People’s Procuratorate receives a report, accusation, report, or discovers that investigators have used illegal methods to collect evidence, it shall conduct investigation and verification. Where there are circumstances in which evidence is collected by illegal methods, corrective opinions shall be put forward; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law.

    【Subject of this Article】

    This article is about the People’s Procuratorate’s investigation, verification and handling of the illegal collection of evidence by investigators.

    【Interpretation of this Article】

 This article first stipulates the power of the People’s Procuratorate to investigate the illegal collection of evidence by investigators. The sources of clues that the People’s Procuratorate investigates and investigators illegally obtain evidence can be reports, accusations, and reports made by the parties or other people, or clues discovered by themselves. “Reporting a crime” means that the masses report to the procuratorial organ that investigators have illegally obtained evidence. “Accussion” means that a party whose rights have been violated by an act of illegal evidence collection informs the procuratorial organ. “Reporting” refers to the conduct of an insider other than the party concerned reporting to the procuratorial organ and exposing that the investigator has illegally obtained evidence. The behavior of investigators to collect evidence illegally includes the collection of verbal evidence using illegal methods such as torture, violence, and threats, and the collection of physical evidence using illegal methods such as illegal searches and illegal seizures. According to the provisions of this article, regardless of whether the illegal collection of evidence by investigators is serious enough to constitute a crime, the People’s Procuratorate has the right and should conduct investigation and verification. The method of investigation and verification may be to inquire the relevant parties or insiders, consult, retrieve or copy relevant legal documents and file materials, and conduct injury inspections on the victims.    Regarding the handling by the People’s Procuratorate after investigating clues about the illegal collection of evidence by investigators, this article stipulates two situations. The first is that the People’s Procuratorate should provide corrective opinions for cases where evidence is collected by illegal methods. The content of the corrective opinions shall be determined according to the specific circumstances of the case. This corrective opinion is an important way for the People’s Procuratorate to exercise legal supervision power, and the investigative agency should pay attention to it. Where the illegal evidence collection is true, the illegal act shall be corrected in time, the people’s procuratorate shall be notified of the correction, and the illegally obtained evidence shall be excluded in accordance with the provisions of this law. Second, if investigators use illegal methods to collect evidence, which constitutes crimes such as torture, violent evidence collection, illegal search, abuse of power, and malpractice for personal gains, the People’s Procuratorate shall file a case for investigation in accordance with the law, and investigate the criminal responsibility of the relevant personnel.

    Article 56– In the course of court proceedings, if the judges believe that there may be circumstances in which evidence may be collected by illegal methods as provided for in Article 54 of this Law, they shall conduct a court investigation on the legality of the evidence collection.

    The parties, their defenders, and agents ad litem have the right to apply to the people’s court to exclude evidence collected by illegal methods in accordance with the law. Those who apply for the exclusion of evidence collected by illegal methods shall provide relevant clues or materials.

    【Subject of this Article】

    This article is about the initiation procedures for court investigations on the legality of evidence collection.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the power to initiate court investigations on the legality of evidence collection. According to the provisions of this paragraph, “in court proceedings” refers to the time frame for the initiation of the investigation, which refers to the process from the opening of the court trial to the conclusion of the court debate. The power to initiate investigations belongs to the judges of the people’s courts, and the conditions for initiating investigations are that the judges “believe that there may be circumstances in which evidence may be collected by illegal methods as prescribed in Article 54 of this law”, including the illegal collection of verbal evidence and the collection of physical evidence. Statutory procedures may seriously affect judicial justice. The judges may initiate investigations according to their powers based on the circumstances discovered during the trial, or they may decide to initiate investigations after reviewing the applications submitted by the parties and their defenders and agents ad litem in accordance with the provisions of paragraph 2 of this article. The investigation procedure stipulated in this paragraph is a relatively independent court investigation procedure specifically aimed at the legality of the evidence collection provided by the prosecutor.    The second paragraph is about the provisions of the parties, their defenders, and agents ad litem applying for the initiation of the legality investigation procedures for the collection of evidence. Illegal evidence collection first infringes the legal rights of the parties, and empowers the parties, their defenders, and agents ad litem to apply for the initiation of the legality investigation procedure for evidence collection, which is conducive to the timely detection and elimination of illegal evidence, maintaining judicial justice, and meeting the requirements of protecting human rights . According to the provisions of this paragraph, the subjects who have the right to apply for the initiation of the investigation procedure are the parties and their defenders and agents ad litem. According to the first paragraph of this article and the relevant judicial interpretations, they have the right to apply from the time the case enters the trial stage to the conclusion of the court debate. This paragraph stipulates the conditions for the application for the exclusion of illegal evidence, that is, the applicant shall provide relevant clues or materials about the illegal collection of evidence by the case-handling agency and its staff. “Clues” refer to information that can explain the existence of illegal evidence collection and guide investigations, such as memories of when and where they were tortured to extract a confession. “Materials” are materials that can be used to prove the existence of illegal evidence collection, such as blood coats, scars, and testimony from personnel in the same cell. The reason why this paragraph stipulates that the application should provide clues or materials is that on the one hand, the parties are witnesses of the illegal evidence collection and are conditionally provided with relevant clues or materials to the court for investigation; on the other hand, it is also to prevent the parties and their defenders from litigation. Agents abused their litigation rights and filed applications at will, which interfered with the normal progress of court trials. It should be pointed out that the requirements of this paragraph for the applicant to provide clues or materials are relatively loose, that is, if there are materials, materials should be provided, and if materials are not or cannot be provided, clues for verification shall be provided. At the same time, providing clues or materials is only a requirement for the applicant to submit an application. Once the judge decides to initiate the investigation procedure, according to Article 57 of this law, the burden of proving the legality of the evidence collection is still borne by the People’s Procuratorate. Where the parties, their defenders, and agents ad litem apply to initiate an investigation, the judges shall conduct a preliminary review of the application and relevant clues or materials. If, after review, it is found that there may be an illegal evidence collection situation as provided for in Article 54, the investigation procedure shall be initiated in accordance with the provisions of the first paragraph; if it is deemed impossible that there is an illegal evidence collection situation as provided for in Article 54, the application shall be rejected.

    Article 57 In the process of court investigations on the legality of evidence collection, the People’s Procuratorate shall prove the legality of evidence collection.

    If the existing evidence materials cannot prove the legitimacy of the evidence collection, the people’s procuratorate may request the people’s court to notify the relevant investigators or other personnel to appear in court to explain the situation; the people’s court may notify the relevant investigators or other personnel to appear in court to explain the situation. Relevant investigators or other personnel may also request to appear in court to explain the situation. After being notified by the people’s court, the relevant personnel should appear in court.

    【Subject of this Article】

    This article is about the burden of proof of the legality of the evidence collection and that investigators and other personnel appear in court to explain the situation.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the burden of proof on the legality of evidence collection. In criminal proceedings, it is the basic principle of modern criminal proceedings that the prosecution bears the burden of proof of the defendant’s guilt. Article 49 of this law also clearly stipulates that the burden of proof of the guilt of the defendant in public prosecution cases shall be borne by the People’s Procuratorate. If the People’s Procuratorate wants to prove that the defendant constituted a crime, it should also prove that the evidence used to prove that the defendant constituted a crime is legal. Most of the evidence proving the defendant’s guilt is collected by the public security organs and the People’s Procuratorate in accordance with the law, and has been reviewed by the People’s Procuratorate in accordance with the law. The People’s Procuratorate is also capable of proving the legitimacy of the evidence collection. Therefore, this paragraph stipulates that in the process of court investigations on the legality of evidence collection, the People’s Procuratorate shall prove the legality of evidence collection. The People’s Procuratorate can prove the legitimacy of evidence collection by providing interrogation transcripts, audio and video recordings of the interrogation process, custody records, and physical examination records to the court, and requesting the court to notify the relevant investigators or other personnel to appear in court to explain the situation in accordance with the second paragraph of this article. Wait. If the People’s Procuratorate is unable to prove the legality of the evidence collection, or if the evidence cannot be ruled out by illegal methods, the people’s court shall review the relevant evidence in accordance with the provisions of Article 54 and Article 58 of this Law. To process.

    The second paragraph is about the provisions concerning the presence of investigators or other personnel in court to explain the situation during the court investigation procedure on the legality of the collection of evidence. As the agency that bears the burden of proof for the legitimacy of evidence collection, the procuratorial agency shall continue to provide evidence through other methods when the evidence materials transferred to the people’s court are insufficient to prove the legitimacy of the evidence collection. The investigators who collect evidence and other personnel who know the situation of the evidence collection, as the witnesses of the evidence collection process, know the most about whether the evidence collection is legal. If the relevant evidence is indeed collected legally, they will appear in court to explain the relevant circumstances, which is a strong proof of the legality of the evidence collection. The 1996 Criminal Procedure Law has no clear provisions for investigators to testify in court. The central government’s opinions on deepening the reform of the judicial system and working mechanism clarify the scope and procedures for investigators to testify in court. This paragraph stipulates that the relevant investigators and other personnel appear in court to explain the relevant circumstances of the evidence collection under certain circumstances.

    According to the provisions of this paragraph, the premise for the relevant investigators and other personnel to appear in court to explain the situation is that “the existing evidence materials cannot prove the legality of the evidence collection”, that is, the public prosecution agency provides interrogation transcripts, audio and video recordings, custody records, physical examination records, etc. to the court. The materials cannot prove the legitimacy of the evidence collection, causing the relevant evidence to be deemed illegally obtained and excluded. In this case, investigators’ appearance in court to explain the situation is to support the People’s Procuratorate’s prosecution work, and reflects the principle of mutual cooperation between public security organs and procuratorial organs in criminal proceedings, is conducive to the punishment of crimes, and is consistent with the purpose of the investigation organs. The scope of personnel appearing in court is “relevant investigators or other personnel.” “Relevant investigators” mainly refer to investigators involved in the collection of relevant evidence, such as investigators who interrogate criminal suspects, and investigators who extract evidence. “Other personnel” refers to other personnel who understand the evidence collection, such as the police in the detention center and witnesses during the search. They appear in court to “explain the situation”, mainly to explain to the court the process of collecting evidence, so that the court can review the legality of the evidence collection. There are two situations in which investigators and other personnel appear in court to explain the situation. One is that if the People’s Procuratorate deems it necessary for them to appear in court to explain the situation, they can request the people’s court to issue a notice. They give notice. After being notified by the people’s court, the relevant personnel should appear in court. The second is that relevant investigators and other personnel voluntarily asked to appear in court to explain the situation. For example, out of a sense of responsibility and maintaining the legitimacy of investigative activities, relevant investigators are required to appear in court to refute the accused’s allegations of illegal evidence collection. As a means of proving the legitimacy of evidence collection under specific circumstances, the provisions of this article on investigators and other personnel appearing in court to explain the situation are more prudent and reliable, and will not cause major difficulties and interference to the work of the investigative agency.

    Article 58: Where, after a court hearing, it is confirmed or cannot be ruled out that there is a situation in which evidence is collected by illegal methods as provided for in Article 54 of this law, the relevant evidence shall be excluded.

    【Subject of this Article】

    This article is about how to deal with the legality of evidence collection after court investigation.

    【Interpretation of this Article】

    The “after court trial” in this article means that after the court investigation procedures on the legality of evidence collection as provided in Articles 56 and 57 of this Law, the judges have reviewed and prosecuted the legality of the evidence collection. The evidence presented by the defense and the defense after hearing the opinions of the prosecution and defense. At this time, the people’s court shall, based on the results of the investigation, conduct a    deal with:   

 1. Where it is confirmed that there is an illegal collection of evidence as prescribed in Article 54 of this Law, including the confirmation that there is an illegal collection of verbal evidence, and the confirmation that the collection of physical evidence does not comply with legal procedures, which may seriously affect judicial justice and cannot be supplemented or corrected or given a reasonable explanation Under circumstances, the relevant evidence should be excluded and shall not be used as the basis for the judgment.

    2. It cannot be ruled out that there is illegal evidence collection as stipulated in Article 54 of this Law, that is, the procuratorial organ’s proof of the legality of the evidence collection has not reached a certain and sufficient level. There are still doubts about the situation of collecting evidence by illegal methods. The people’s court shall also exclude relevant evidence and shall not use it as a basis for judgment.

    3. If, after court investigation and the People’s Procuratorate, the court confirms that there is no illegal evidence collection as stipulated in Article 54 of this Law, the relevant evidence is legally obtained evidence and can be used in the court investigation of the criminal verdict of the conviction. Yes, it can be used as the basis for the verdict.

    Article 59- The testimony of a witness must be cross-examined and verified by the prosecutor, the victim, the defendant, and the defender in court before it can be used as the basis for a verdict. When the court finds that a witness intends to give false testimony or conceal criminal evidence, it shall deal with it in accordance with the law.

    【Subject of this Article】

    This article stipulates that the testimony of a witness must be verified to be true before it can be used as the basis for a verdict.

    【Interpretation of this Article】

    There are two meanings in this article. One is that the testimony of witnesses must be cross-examined and verified by the court before it can be used as the basis for a verdict. This is the necessary procedure for the witness’s testimony as the basis for the verdict. There are two aspects to this mandatory procedure stipulated in this article: 1. The testimony provided by the witness must be cross-examined by the prosecutor, the victim, the defendant, and the defender. That is to say, whether it is a witness presented by the prosecutor or the victim, or a witness presented by the defendant or the defender, both parties must cross-examine. The method of cross-examination includes both the prosecution and the defense asking the witness about the specific content of the testimony provided by the witness or asking the witness about the situation they want to know. Through the questioning, the witness can make a comprehensive and in-depth statement of the testimony, exposing the contradictions in the false or unreliable testimony. It is convenient for court review; it also includes raising questions and opinions on the doubtful points in the witness testimony presented by the other party, or answering the other party’s queries and putting forward rebuttal opinions. For witnesses who have not appeared in court, both parties shall also cross-examine the transcripts of the testimonies read out. 2. The testimony must be verified before it can be used as a basis for a verdict. “Verification” of testimony mainly refers to passing cross-examination in court investigations, confirming that the witness has the qualifications to produce evidence, confirming that the testimony collection procedure is legal, and using other evidence of the whole case, including physical evidence, documentary evidence, testimony from other witnesses, victim statement, defendant Conduct a comprehensive analysis of the confession and defense of the person to eliminate doubts and confirm the credibility of the testimony. In this process, the judges must always listen to the opinions of the prosecution and defense objectively in order to correctly determine the testimony.

    Second, if the court finds that the witness intends to give false testimony or conceal criminal evidence, it shall be dealt with in accordance with the law. Among them, there are two main situations of “perjury”: one is to distort the facts and fail to provide the true information of the case, such as making false statements in terms of behavior, time, important circumstances, etc.; the other is to fabricate facts, including innocence through false accusations Of people commit crimes, or justify the guilty. “Hidden criminal evidence” refers to the behavior of a witness knowing that the defendant has committed a criminal act and deliberately concealing it. For example, when a witness is presenting a fight, he knows that Zhang San is present and participates in the fight, but deliberately does not wait. “According to the law” means that in addition to not using the witness’s testimony, if the witness’s behavior constitutes a crime of perjury, a crime of shelter, etc., it shall be transferred to the public security agency for criminal responsibility in accordance with the law.

    Article 60 Anyone who knows the circumstances of a case has the obligation to testify.

    A person who is physically or mentally defective or young, cannot distinguish right from wrong, or cannot express correctly, cannot be a witness.

    【Subject of this Article】

    This article is about the obligation to testify and the qualifications of witnesses.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the obligation to testify for everyone who knows the circumstances of the case. “A person who knows the situation of the case” refers to seeing or hearing the crime with his own eyes, or seeing or hearing the behavior of the criminal suspect or defendant with his own eyes, or hearing the criminal suspect or defendant with his own ears. , The victim’s narrative of the case, etc., and thus the person who understands the situation of the case. Such people are obliged to provide the true information of the case to show whether the suspect or defendant is guilty or innocent, and whether the crime is serious or minor. People who know the situation of the case from the news media or hearsay, or speculate about the situation of the case, are not persons who “know the situation of the case” mentioned in this article, and cannot be witnesses and have no obligation to testify. The “obligation to testify” means that those who understand the circumstances of the case must not refuse to testify and should truthfully provide testimony. Witnesses should personally testify to the judicial organs, and they cannot testify on their behalf, nor can they testify about the facts of the case that they do not know. This is the purpose of this law to punish crimes and protect innocent people from criminal prosecution. Every citizen should abide by the legal obligations set forth by those who know the circumstances of the case.

 The second paragraph is about the qualifications of witnesses. Not everyone who knows the circumstances of the case can be a witness. According to this article, people who have the following three circumstances cannot be a witness:

1. People who are physically defective, unable to distinguish right from wrong, and unable to express correctly. For example, people with color blindness and low vision cannot be used as witnesses to state crime scenes in some cases;

2. People who are mentally flawed, cannot distinguish right from wrong, and cannot express correctly. For example, during the onset of the onset of mental illness, people can’t distinguish things or characters, or can’t make correct expressions. 3. A person who is young, cannot distinguish right from wrong, and cannot express correctly refers to those who have unclear memory, unidentified identification, or unclear expression of the person in the case due to their young age. Among them, “the inability to distinguish right from wrong and the inability to express correctly” is the core and decisive condition of the above three situations. Although they are physically or mentally defective, or young, they can still be witnesses if they can distinguish right from wrong and express them correctly. For example, a person with intermittent mental illness who is not ill or who is young but has normal recognition and expression skills can be a witness. In litigation activities, the review of whether the witness has the ability to give evidence is important to ensure the authenticity of the evidence.

    significance.

    Article 61: People’s courts, people’s procuratorates and public security organs shall guarantee the safety of witnesses and their close relatives.

    Threats, insults, beatings, or retaliation against witnesses and their close relatives constitute a crime, they shall be investigated for criminal responsibility according to law; if they are not enough for criminal punishment, they shall be given public security management penalties according to law.

    【Subject of this Article】

    This article is about ensuring the safety of witnesses and their close relatives.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the obligations of the people’s courts, people’s procuratorates and public security organs to ensure the safety of witnesses and their close relatives. “The safety of witnesses and their close relatives should be guaranteed” means that the people’s courts, people’s procuratorates, and public security organs should take necessary protective measures for witnesses and their close relatives who may be in danger due to testimony, based on the circumstances of the case. Such as arresting criminal suspects and defendants in time, keeping secrets for witnesses during the investigation stage, etc. For those that comply with the provisions of Article 62 of this Law, the protective measures provided for in this Article shall also be adopted. The judiciary should raise the issue of protecting the safety of witnesses and their close relatives to the height of protecting the legal rights of citizens, and regard it as an important task in handling cases. Only in this way can the worries of the witnesses be resolved and they will be encouraged to testify actively.

    The second paragraph is about the provisions that threaten, insult, beat, or retaliate against witnesses and their close relatives shall be investigated for legal responsibility in accordance with the law. In our country, the most important way to protect witnesses is to hold legal responsibility for the actions of retaliation against witnesses and their close relatives. According to the provisions of this paragraph, all threats, insults, beatings, retaliations, etc. to witnesses and their close relatives constitute a crime in accordance with the provisions of the Criminal Law. Among them, “threat” refers to the threat of violence or other illegal acts. “Insult” refers to openly using words and actions to slander and attack one’s personality and reputation in public. “Battering” refers to the use of violence to injure a witness and his close relatives. “Retaliation” includes the use of various means to retaliate and persecute witnesses and their close relatives. For the above-mentioned acts, where the circumstances are minor and not enough for criminal punishment, the perpetrator shall be detained or fined in accordance with the provisions of the Public Security Administration Punishment Law. The provisions of this paragraph are a concrete manifestation of protecting the litigation rights of witnesses, and are also the main measures taken by the people’s courts, people’s procuratorates, and public security organs to protect the safety of witnesses and their close relatives.

    Article 62: In cases such as crimes endangering national security, terrorist activity crimes, organized crimes of a triad nature, drug crimes, etc., witnesses, experts, and victims are at risk for the personal safety of themselves or their close relatives because they testify in the proceedings. The courts, people’s procuratorates and public security organs shall adopt one or more of the following protective measures:

    (1) Do not disclose personal information such as real name, address and work unit;

    (2) Taking measures to testify in court without revealing their appearance and true voice;

    (3) Prohibit specific persons from contacting witnesses, appraisers, victims and their close relatives;

    (4) Adopt special protection measures for persons and houses;

    (5) Other necessary protective measures.

    Witnesses, appraisers, or victims who believe that the personal safety of themselves or their close relatives are in danger due to testimony in litigation, they may request protection from the people’s court, people’s procuratorate, or public security organ.

    People’s courts, people’s procuratorates, and public security organs adopt protective measures in accordance with the law, and relevant units and individuals should cooperate.

    【Subject of this Article】

    This article is about taking special protection measures for witnesses, experts, and victims in specific cases.

    【Interpretation of this Article】

    This article is divided into three paragraphs. The first paragraph is the provision that special protective measures should be taken for witnesses, experts, and victims in specific cases. According to the provisions of this paragraph, the scope of cases where special protective measures can be taken are crimes that endanger national security, terrorist activities, organized crimes of the underworld nature, and drug crimes. Among them, “crimes endangering national security” refer to cases that endanger the national security of the People’s Republic of China, including but not limited to the crimes stipulated in Chapter 1 of the Criminal Law. “Terrorist activity crime” refers to the use of violence, sabotage, intimidation and other methods for the purpose of creating social panic, endangering public safety, or coercing state agencies and international organizations, causing or intending to cause casualties, major property losses, damage to public facilities, Social disorder and other serious social harm criminal acts, as well as criminal acts that instigate, fund or otherwise assist in the implementation of the above activities, including organizing, leading, participating in terrorist activities, organized crimes, intentional homicides committed by terrorist organizations or terrorists, Explosion, kidnapping and other crimes, financing of terrorist activities, etc. “Organized crimes of the underworld nature” refer to organized crimes of the nature of organizing, leading, and participating in underworld crimes, and the crimes of intentional homicide, intentional injury, robbery, and forced trading committed by underworld organizations and their members. “Drug crimes” refer to crimes such as smuggling, trafficking, transportation, manufacturing drug crimes, and illegal planting of original drug plants. These types of crimes all involve national security or public security, and are highly hazardous to society, and witnesses, appraisers, and victims suffer severe retaliation. For other criminal cases, if the social harm and the risks faced by witnesses, appraisers, and victims are equivalent to those of the above-mentioned four crimes, the special protective measures provided in this article can also be adopted. The objects of special protection measures are witnesses, experts and victims of the case. The condition for taking protective measures is that the personal safety of witnesses, appraisers, and victims is at risk because they testify in litigation, including the investigation, prosecution, and trial stages to investigative agencies, people’s procuratorates, and people’s courts. This kind of danger should be a real danger, and the case-handling agency should determine whether it is necessary to take special protective measures according to the specific degree of the danger and the actual situation. The case-handling agency may take the initiative to decide to take protective measures, or it may take protective measures at the request of witnesses, experts and victims in accordance with the second paragraph of this article. There are five special protection measures stipulated in this paragraph, and the case-handling agency may decide to take one or more measures based on the circumstances of the case:

    1. Personal information such as real name, address and work unit will not be disclosed. It means that the case-handling agency keeps relevant personal information confidential in the process of handling the case, including the use of pseudonyms in legal documents such as indictments and judgments to replace real personal information.

    2. Take measures to testify in court without revealing their appearance and true voice. This refers to the fact that the people’s courts take technical measures to prevent their appearance and voice from being exposed to the defendant and observers when relevant personnel appear in court to participate in litigation, but they should ensure the smooth progress of cross-examination by both the prosecution and the defense.

    3. Certain persons are prohibited from contacting witnesses, appraisers, victims and their close relatives. It means that the case-handling agency takes measures and issues injunctions to prohibit certain persons who may retaliate from contacting witnesses, evaluators, victims and their close relatives within a certain period of time.

    4. Take special protection measures for persons and houses. This includes sending police to protect the safety of witnesses, appraisers, victims, and homes. In very rare cases, the residence and name can even be changed according to the needs of the case.

    5. Other necessary protective measures. Refers to other special protective measures other than the above four items that the case-handling agency deems necessary to take.

    The second paragraph is about the requirements for protection of witnesses, experts and victims. This paragraph gives witnesses, expert witnesses, and victims the right to request protection from the people’s court, people’s procuratorate, and public security organs when they believe that the personal safety of themselves or their close relatives is in danger due to testimony in litigation, so as to more effectively deal with them. The personal safety of relevant personnel shall be protected. After receiving the request, the people’s court, the people’s procuratorate, and the public security organs shall conduct a serious review, and shall decide to adopt one or more of the protections specified in the first paragraph if they meet the requirements of the first paragraph and are indeed dangerous.

    Measure

    The third paragraph is about the regulations that relevant units and individuals should cooperate in taking protective measures. People’s courts, people’s procuratorates, and public security organs adopt the protective measures specified in the first paragraph in accordance with the law, and sometimes require the cooperation of other units or individuals. If the personal information of witnesses is not disclosed, it may require the cooperation of the news media, and prohibiting certain persons from contacting witnesses, appraisers, victims and their close relatives may require the cooperation of grassroots organizations. This article stipulates that relevant units and individuals shall cooperate with the case-handling agency to take protective measures in accordance with the law, so that the protective measures can effectively play the necessary protective role.

    Article 63: The expenses of transportation, accommodation, meals, etc. incurred by the witnesses in fulfilling the obligation of testifying shall be subsidized. Subsidies for witnesses to testify are included in the operating expenses of judicial organs, and are guaranteed by the government’s finances at the same level.

    If witnesses from the work unit testify, the work unit shall not deduct wages, bonuses and other benefits.

    【Subject of this Article】

    This article is about subsidies for witnesses and the unit where the witnesses are not allowed to deduct their welfare benefits.

    【Interpretation of this Article】

    This article is divided into two paragraphs. The first paragraph is about the provision of subsidies for the expenses of witnesses for testifying. According to the provisions of this paragraph, the people’s court, people’s procuratorate, and public security organ handling the case shall provide subsidies for the expenses of transportation, accommodation, meals and other expenses incurred by the witness in fulfilling the obligation of testifying. The scope of the subsidy covers the transportation, accommodation, and dining expenses of the witness in fulfilling the obligation of testifying, such as the necessary transportation expenses from the place of the witness’s residence to the location of the judicial authority, and the hotel accommodation expenses during the testimony in a different place. The expenses of witnesses in each stage of the litigation for testifying shall be subsidized by the competent authority for handling the case at that stage. The standard of subsidy should be based on the actual expenditure, and should not be set too high. The specifics can be stipulated by the judicial organs. This paragraph also stipulates the source of the funding required for the subsidy, that is, it is included in the business funding of the judiciary and guaranteed by the government at the same level to ensure that the provisions of the subsidy are implemented. The judicial organs shall include the expenses required for witness subsidies when compiling the budgets for the business expenses of their units.

    The second paragraph is about the regulations that the unit where the witness belongs shall not deduct the welfare benefits of the witness. Witnesses cooperating with judicial organs to testify are fulfilling statutory obligations, so delays in work are not absenteeism. According to the provisions of this paragraph, if a witness has a work unit, his work unit shall not deduct wages, bonuses, and other benefits based on the witness’s testimony as the reason for delaying work, or use other reasons or methods to deduct wages, bonuses, and other benefits. same. This is the responsibility of the witness’s unit to support the witness to testify and cooperate with the judicial organ in handling the case. According to the provisions of this article, the treatment of witnesses during their testimony will not be affected, and the expenditures will be subsidized, and economic worries have basically been resolved.

NOTE: The decision to amend the Criminal Procedure Law adopted at the Fifth Session of the Eleventh National People’s Congress on March 14, 2012 made several textual adjustments to this article to make the statement more accurate and concise.

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