Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice on Certain Issues Related to Excluding Illegal Evidence for Handling Criminal Cases

最高人民法院、最高人民检察院、公安部、国家安全部、司法部关于办理刑事案件排除非法证据若干问题的规定

Promulgating Institution: Supreme People's Court; Supreme People's Procuratorate; Ministry of Public Security; Ministry of State Security; Ministry of Justice

Document Number: Fa Fa [2010] No. 20

Promulgating Date: 06/13/2010

Effective Date: 07/01/2010

颁布机关: 最高人民法院; 最高人民检察院; 公安部; 国家安全部; 司法部

文    号: 法发[2010]20号

颁布时间: 06/13/2010

实施时间: 07/01/2010

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正文

To regulate judicial acts and promote judicial impartiality, we have formulated these Provisions in accordance with the Criminal Procedure Law and relevant judicial interpretations, by taking into consideration the actual practice of handling criminal cases by the people's courts, people's procuratorates, public security organs, national security organs, and judicial administrative organs.

    为规范司法行为,促进司法公正,根据刑事诉讼法和相关司法解释,结合人民法院、人民检察院、公安机关、国家安全机关和司法行政机关办理刑事案件工作实际,制定本规定。

   Article 1   The statements of the criminal suspect or the defendant obtained through extortion of confessions by torture or by other illegal means, or testimonies of witnesses, statements of victims obtained through violence, threat, or other illegal means, shall be deemed illegal verbal evidence.

     第一条 采用刑讯逼供等非法手段取得的犯罪嫌疑人、被告人供述和采用暴力、威胁等非法手段取得的证人证言、被害人陈述,属于非法言词证据。

   Article 2   Illegal verbal evidence that is determined in accordance with the law shall be excluded and shall not serve as a basis for ruling a case.

     第二条 经依法确认的非法言词证据,应当予以排除,不能作为定案的根据。

   Article 3   Where a people's procuratorate examines and approves an arrest or examines a prosecution, it shall exclude illegal verbal evidence in accordance with the law, and shall not use them as a basis for approving an arrest or filing a public prosecution.

     第三条 人民检察院在审查批准逮捕、审查起诉中,对于非法言词证据应当依法予以排除,不能作为批准逮捕、提起公诉的根据。

   Article 4   After the duplicate of the bill of prosecution is served and before the court session starts, if the defendant alleges that his pre-trial statements are obtained through illegal means, he shall submit written opinions to the people's court. If it is indeed difficult for the defendant to write, he can orally make the statements and a staff of the people's court or his defender can make written records of his statements, which shall be affixed with the signature or fingerprint of the defendant.

The people's court shall submit the written opinions of the defendant or the photocopy of written records of his statements to the people's procuratorate before the opening of the court.

     第四条 起诉书副本送达后开庭审判前,被告人提出其审判前供述是非法取得的,应当向人民法院提交书面意见。被告人书写确有困难的,可以口头告诉,由人民法院工作人员或者其辩护人作出笔录,并由被告人签名或者捺指印。

    人民法院应当将被告人的书面意见或者告诉笔录复印件在开庭前交人民检察院。

   Article 5   Before the court opening or during the court hearing, if the defendant and his defender allege that the pre-trial statements of the defendant are obtained through illegal means, after the public prosecutor has read out the bill of indictment, the court shall first conduct investigation in the court.

After the court debate is finished, if the defendant and his defender allege that the pre-trial statements of the defendant are obtained through illegal means, the court shall also conduct investigation.

     第五条 被告人及其辩护人在开庭审理前或者庭审中,提出被告人审判前供述是非法取得的,法庭在公诉人宣读起诉书之后,应当先行当庭调查。

    法庭辩论结束前,被告人及其辩护人提出被告人审判前供述是非法取得的,法庭也应当进行调查。

   Article 6   Where a defendant and his defender allege that the pre-trial statements of the defendant are obtained through illegal means, the court shall request them to provide relevant clues or evidences relating to the persons, time, place, way, content, etc., of the allegedly illegal evidence collection process.

     第六条 被告人及其辩护人提出被告人审判前供述是非法取得的,法庭应当要求其提供涉嫌非法取证的人员、时间、地点、方式、内容等相关线索或者证据。

   Article 7   Though examination, if the court has doubt about the legitimacy of the way by which the pre-trial statements of the defendant are obtained, the public prosecutor shall provide the interrogation records or the original audio or video recordings of the interrogation process or other related evidences, and request the court to notify other persons present at the interrogation or other witnesses to appear in court and give testimony. If the suspicion of extorting confession by torture remains, it shall request the court to notify the interrogators to appear in court and give testimony to prove the legitimacy of the way by which the said statements are obtained. If the public prosecutor fails to provide evidence in court, it may, in accordance with Article 165 of the Civil Procedure Law, make a proposal to the court to postpone the hearing.

The interrogators or other related persons shall appear in court and give testimony when being notified in accordance with the law.

If the explanatory materials submitted by the public prosecutor with its official seal affixed do not bear the signature or seal of the relevant interrogators, such materials shall not serve as a basis for proving the legitimacy of the evidence collection process.

The two parties to the prosecution may conduct cross-examination and argument with regard to the legitimacy of the way by which pre-trial statements of the defendant are obtained.

     第七条 经审查,法庭对被告人审判前供述取得的合法性有疑问的,公诉人应当向法庭提供讯问笔录、原始的讯问过程录音录像或者其他证据,提请法庭通知讯问时其他在场人员或者其他证人出庭作证,仍不能排除刑讯逼供嫌疑的,提请法庭通知讯问人员出庭作证,对该供述取得的合法性予以证明。公诉人当庭不能举证的,可以根据刑事诉讼法第一百六十五条的规定,建议法庭延期审理。

    经依法通知,讯问人员或者其他人员应当出庭作证。

    公诉人提交加盖公章的说明材料,未经有关讯问人员签名或者盖章的,不能作为证明取证合法性的证据。

    控辩双方可以就被告人审判前供述取得的合法性问题进行质证、辩论。

   Article 8   If the court has doubts about evidence provided by the two parties to the prosecution, it may announce an adjournment and conduct investigation and verification to the evidence. When necessary, it may also notify the procurators and defenders to appear in the court.

     第八条 法庭对于控辩双方提供的证据有疑问的,可以宣布休庭,对证据进行调查核实。必要时,可以通知检察人员、辩护人到场。

   Article 9   During the court session, if the public prosecutor needs to conduct additional investigation for new evidence and suggests on a postponed hearing, the court shall grant consent.

If the defendant and its defender apply for notifying the interrogators, other persons present at the interrogation, or other witnesses to appear in court and the court also believes it necessary, the court may announce to postpone the hearing.

     第九条 庭审中,公诉人为提供新的证据需要补充侦查,建议延期审理的,法庭应当同意。

    被告人及其辩护人申请通知讯问人员、讯问时其他在场人员或者其他证人到庭,法庭认为有必要的,可以宣布延期审理。

   Article 10   Subject to the examination of the court, under any of the following circumstances, the pre-trial statements of the defendant may be read out and cross-examined in court:

(1) The defendant and its defender fail to provide relevant clues or evidences proving the illegitimacy of the evidence collection process;

(2) The defendant and its defender have provided relevant clues or evidence proving the illegitimacy of the evidence collection process, and the court has no doubts about the legitimacy of the way by which the pre-trial statements of the defendant are obtained; or

(3) The evidence provided by the public prosecutor is reliable and sufficient, which is able to clear the prosecutor from the suspicion of illegally obtaining the pre-trial statements of the defendant.

Whether or not the pre-trial statements of the defendant that are read out in the court can serve as a basis for ruling a case shall be determined by taking into account the statements made by the defendant in court and other evidence.

     第十条 经法庭审查,具有下列情形之一的,被告人审判前供述可以当庭宣读、质证:

    (一)被告人及其辩护人未提供非法取证的相关线索或者证据的;

    (二)被告人及其辩护人已提供非法取证的相关线索或者证据,法庭对被告人审判前供述取得的合法性没有疑问的;

    (三)公诉人提供的证据确实、充分,能够排除被告人审判前供述属非法取得的。

    对于当庭宣读的被告人审判前供述,应当结合被告人当庭供述以及其他证据确定能否作为定案的根据。

   Article 11   If the public prosecutor fails to provide evidence to prove the legitimacy of the pre-trial statements of the defendant, or the evidences it provides are not reliable or sufficient enough, the said statements cannot serve as the basis for ruling the case.

     第十一条 对被告人审判前供述的合法性,公诉人不提供证据加以证明,或者已提供的证据不够确实、充分的,该供述不能作为定案的根据。

   Article 12   If the first-instance people's court fails to examine the opinions submitted by the defendant and his defender alleging that the pre-trial statements of the defendant are illegally obtained, and it also uses such pre-trial statements of the defendant as a basis for ruling the case, the second-instance people's court shall examine the legitimacy of the way by which the pre-trial statements of the defendant are obtained. If the procurator fails to provide evidence proving the legitimacy or the evidence provided are not reliable or sufficient enough, the said statements of the defendant cannot serve as a basis for ruling the case.

     第十二条 对于被告人及其辩护人提出的被告人审判前供述是非法取得的意见,第一审人民法院没有审查,并以被告人审判前供述作为定案根据的,第二审人民法院应当对被告人审判前供述取得的合法性进行审查。检察人员不提供证据加以证明,或者已提供的证据不够确实、充分的,被告人该供述不能作为定案的根据。

   Article 13   During the court hearing, if the procurator, the defendant and his defender allege that the written testimony of the witnesses that are not present in the court or the written statements of the victim who is not present are illegally obtained, they shall bear the burden of proof for proving the legitimacy of their evidence collection process.

With regard to the evidence stated in the preceding paragraph, the court shall conduct investigation in reference to these Provisions.

     第十三条 庭审中,检察人员、被告人及其辩护人提出未到庭证人的书面证言、未到庭被害人的书面陈述是非法取得的,举证方应当对其取证的合法性予以证明。

    对前款所述证据,法庭应当参照本规定有关规定进行调查。

   Article 14   If the process of collecting material evidence and documentary evidence obviously violates the relevant legal provisions, which is likely to affect the impartiality of the trial, such evidence shall be corrected or supplemented or reasonable explanations shall be made, otherwise, the material evidence or documentary evidence cannot serve as a basis for ruling the case.

     第十四条 物证、书证的取得明显违反法律规定,可能影响公正审判的,应当予以补正或者作出合理解释,否则,该物证、书证不能作为定案的根据。

   Article 15   These Provisions shall become effective on July 1, 2010.

     第十五条 本规定自二〇一〇年七月一日起施行。