中华人民共和国刑事诉讼法(二)
来源:优易学  2010-1-14 12:14:38   【优易学:中国教育考试门户网】   资料下载   外语书店

 

  Examination of the persons of women shall be conducted by female personnel or doctors.

  Article 76 A record shall be made of the circumstances of an inquest or examination, and it shall be signed or sealed by the participants in the inquest or examination and the eyewitnesses.

  Article 77 If, in reviewing a case, a people's procuratorate deems it necessary to repeat an inquest or examination that has been done by a public security organ, it may ask the latter to conduct another inquest or examination and may send procuratorial personnel to participate in it.

  Article 78 When necessary and with the approval of the director of a public security bureau, investigative experiments may be conducted in order to clarify the circumstances of a case.

  In conducting investigative experiments, it shall be forbidden to take any action which is hazardous, humiliating to anyone, or offensive to public morals.

  Section 4 Search

  Article 79 In order to collect criminal evidence and track down an offender, investigatory personnel may search the person, belongings and residence of the defendant and anyone who might be hiding a criminal or criminal evidence, as well as other relevant places.

  Article 80 Every unit and individual shall have the duty to surrender, at the request of a people's procuratorate or public security organ, any material or documentary evidence that may prove a defendant's guilt or innocence.

  Article 81 When a search is to be conducted, a search warrant must be shown to the person to be searched.

  If an emergency occurs when an, arrest or detention is being made, a search may be conducted without a search warrant.

  Article 82 During a search, the person to be searched or his family members, neighbours or other eyewitnesses shall be present at the scene. Searches of the persons of women shall be conducted by female personnel.

  Article 83 A record shall be made of the circumstances of a search, and it shall be signed or sealed by the investigatory personnel and the person searched or his family members, neighbours or other eyewitnesses. If the person searched or his family members have become fugitives or refuse to sign or affix their seals to the record, this shall be noted in the record.

  Section 5 Seizure of Material Evidence and Documentary Evidence

  Article 84 Any articles and documents discovered during an inquest or search that may be used to prove a defendant's guilt or innocence shall be seized. Objects and documents which are irrelevant to the case may not be seized.

  Seized articles and documents shall be properly kept or sealed for safekeeping and may not be utilized or damaged.

  Article 85 All seized articles and documents shall be carefully checked by the investigatory personnel jointly with the eyewitnesses and the holder of the articles; a detailed list shall be made in duplicate on the spot and shall be signed or sealed by the investigatory personnel, the eyewitnesses and the holder. One copy of the list shall be given to the holder, and the other copy shall be kept on file for reference.

  Article 86 If the investigatory personnel deem it necessary to seize the mail or telegrams of a defendant, they may, upon approval of a public security organ or a people's procuratorate, notify the post and telecommunications offices to hand over the relevant mail and telegrams for seizure.

  When it becomes unnecessary to continue a seizure, the post and telecommunications offices shall be immediately notified.

  Article 87 If any seized articles, documents, mail or telegrams are proved through investigation to be irrelevant to a case, they shall be promptly returned to their original owners or the original post and telecommunications offices.

  Section 6 Expert Evaluation

  Article 88 When certain special problems relating to a case need to be solved in order to clarify the circumstances of the case, experts shall be assigned or invited to give their evaluations.

  Article 89 After evaluating a matter, the expert shall write a conclusion of expert evaluation and affix his signature to it.

  Article 90 A defendant shall be notified of any expert conclusion which will be used as evidence in his case. A supplementary expert evaluation or anew expert evaluation may be conducted at the defendant's request.

  Section 7 Wanted Orders

  Article 91 If a defendant who should be arrested is a fugitive, a public security organ may issue a wanted order and take effective measures to pursue him for arrest and bring him to justice.

  Public security organs at any level may directly issue wanted orders within the areas under their jurisdiction; they shall request a higher-level organ with the proper authority to issue orders for areas beyond their jurisdiction.

  Section 8 Conclusion of Investigation

  Article 92 The time limit for holding a defendant in custody during investigation shall not exceed two months. If the circumstances of a case are complex and the case cannot be concluded within that time limit, an extension of one month may be allowed with the approval of the people's procuratorate at the next higher level.

  In the event of a particularly grave and complex case which still cannot be concluded within the extension period as provided in the preceding paragraph, the Supreme People's Procuratorate shall request the Standing Committee of the National People's Congress to approve a postponement of the hearing of the case.

  Article 93 After a people's procuratorate has concluded its investigation of a case, it shall make a decision whether to initiate a public prosecution, exempt from prosecution or dismiss the case.

  After a public security organ has concluded its investigation of a case, it shall make a written recommendation to initiate prosecution or exempt from prosecution, and the written recommendation shall be transferred together with the case file and evidence to the people's procuratorate at the same level for examination and decision.

  Article 94 If it is discovered during an investigation that a defendant's criminal responsibility should not have been investigated, the case shall be dismissed; if the defendant is under arrest, he shall be released immediately and issued a release certificate, and the people's procuratorate which originally approved the arrest shall be notified.

  Chapter III Initiation of Public Prosecution

  Article 95 A11 cases requiring initiation of a public prosecution or exemption from prosecution shall be examined and decided by the people's procuratorates.

  Article 96 In examining a case, a people's procuratorate shall ascertain:

  (1) whether the facts and circumstances of the crime are clear, whether the evidence is reliable and sufficient and whether the charge and the nature of the crime has been correctly determined;

  (2) whether there are any crimes that have been omitted or other persons whose criminal responsibility should be investigated;

  (3) whether it is a case in which criminal responsibility should not be investigated;

  (4) whether the case has an incidental civil action; and

  (5) whether the investigation of the case is being lawfully conducted.

  Article 97 A people's procuratorate shall make a decision within one month on a case that a public security organ has transferred to it with a recommendation to initiate a public prosecution or exempt from prosecution; an extension of a half month may be allowed for major or complex cases.

  Article 98 When examining a case, a people's procuratorate shall interrogate the defendant.

  Article 99 In examining a case requiring supplementary investigation, a people's procuratorate may conduct the investigation itself or remand the case to a public security organ for supplementary investigation.

  In cases where supplementary investigation is to be conducted, it shall be completed within a month.

  Article 100 When a people's procuratorate considers that the facts of a defendant's crime have been ascertained, that the evidence is reliable and sufficient and that criminal responsibility should be investigated according to law, it shall make a decision to initiate prosecution and shall, in accordance, with the provisions for trial jurisdiction, initiate a public prosecution in a people's Court.

  Article 101 The people's procuratorate may exempt from prosecution any case that, according to the provisions of the Criminal Law, does not require criminal punishment or for which exemption from criminal punishment may be granted.

  Article 102 A decision to exempt from prosecution shall be announced publicly, and a written decision to exempt from prosecution shall be delivered to the defendant and to his unit. If the defendant is in custody, he shall be released immediately.

  When a people's procuratorate decides to exempt from prosecution a case transferred by a public security organ with a recommendation to initiate a prosecution, it shall deliver a written decision to exempt from prosecution to the public security organ. If the public security organ considers the decision to be mistaken, it may demand reconsideration, and if the demand is rejected, it may request the people's procuratorate at the next higher level to review the case.

  If the people's procuratorate decides to exempt from prosecution a case that involves a victim, it shall send a written decision to exempt from prosecution to the victim. If the victim does not accept the decision, he may present a petition to the people's procuratorate within seven days after receiving the written decision. The people's procuratorate shall notify the victim of the result of its reexamination.

  Article 103 If a defendant does not accept a decision to exempt from prosecution, be may present a petition to the people's procuratorate within seven days. The people's procuratorate shall make a decision to conduct a reexamination, notify the defendant of the decision and at the same time send a copy of it to the public security organ.

  Article 104 If a defendant is under any one of the circumstances provided in Article 11 of this Law, the people's procuratorate shall make a decision not to prosecute. The provisions of Article 102 of this Law shall apply to a decision not to prosecute.

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