Measures of the No. 1 Intermediate Court of Shanghai for the Implementation of the Criminal Pre-Trial Conference Rules
- Area of Law： Criminal Litigation
- Level of Authority： Local Judicial Documents
- Date issued：09-05-2016
- Effective Date：09-05-2016
- Status： Effective
- Issuing Authority： Other Institutions of Shanghai Municipality
Measures of the No. 1
Intermediate People's Court of Shanghai Municipality for the Implementation of
the Criminal Pre-Trial Conference Rules
(Deliberated and adopted at the 19th Session of the Judicial Committee of the No. 1 Intermediate People's Court of Shanghai Municipality on August 10, 2016 and issued on September 5, 2016)
Article 1 In order to improve the efficiency of criminal court trials and ensure that criminal court trials are conducted smoothly, these Measures are developed in accordance with the Criminal Procedure Law of the People's Republic of China and the relevant judicial interpretations, the Opinions on Advancing the Reform of the Trial-Centered Criminal Procedure System issued by the Supreme People's Court, the Supreme People's Procuratorate and three ministries, and other provisions as well as in light of judicial practices.
Article 2 A criminal pre-trial conference shall follow the principles of legality, impartiality, openness, efficiency. impartiality, and equality, and a party shall be strictly prohibited from compelling other parties to reach consensus through consultation.
Article 3 Where a criminal case falls under any of the following circumstances, a criminal pre-trial conference may be held:
(1) There are procedural disputes, such as an application for excluding illegally obtained evidence, an application for witnesses, identification or evaluation experts and investigators to testify before court, a request for disqualification, or raising any objection to the jurisdiction of the case.
(2) There are relatively sufficient evidentiary materials, and the case is significant and complicated.
(3) It has a significant social impact.
(4) It has an incidental civil action.
(5) Other circumstances under which a criminal pre-count conference is required to be held.
Generally, no criminal pre-trial conference shall be held for a case to which summary procedure applies, except that the prosecution, defense, and judges agree to hold such a conference.
Article 4 A criminal pre-trial conference shall be held by the people's court at its discretion.
A people's procuratorate or a party and the defender or litigation representative thereof may advise or request the people's court to hold a criminal pre-trial conference. Where a people's procuratorate advises the people's court to hold a criminal pre-trial conference, such advice shall be given together when the case is transferred for prosecution; and where a party and the defender or litigation representative thereof advise or request the people's court to hold a criminal pre-trial conference, such advice or request shall be given or filed within ten days after receiving a copy of the indictment served by the people's court. After such advice is given or such a request is filed, the relevant written materials shall be submitted to the people's court with relevant evidentiary materials attached, indicating the reasons and the problems to be solved, among others.
After receiving the above materials, the people's court shall conduct an examination and, in a timely manner, decide whether to hold a criminal pre-trial conference and notify the relevant persons. Where the people's court does not agree to hold a criminal pre-trial conference, it shall explain the reasons. In case of any application for excluding illegally obtained evidence, the court shall hold a criminal pre-trial conference.
Article 5 A criminal pre-trial conference shall be presided over by the presiding judge of the collegial panel responsible for the trial of the case or the judge handing the case as designated by the presiding judge, with the assistance of assistants to the judge. The persons participating in a criminal pre-trial conference shall generally include judges, assistants to the judges, court clerks, the public prosecutor, defendant, and defender. The collegial panel may notify other litigation participants, legal representatives, and litigation representatives to participate in the criminal pre-trial conference based on the circumstances of the case.
Article 6 Where the collegial panel decides to hold a criminal pre-trial conference, the prosecution, defense, and judges as well as other participants shall be notified in advance of the main matters of the conference, and the relevant materials provided by one party shall be submitted to the other party for the necessary preparation.
The people's court shall notify the participants of the time and place of the conference three days before the criminal pre-trial conference is held.
Article 7 The collegial panel shall determine the number of pre-trial conferences as the case may be, and generally hold a pre-trial conference in camera. The persons designated by the collegial panel may observe a conference under special circumstances.
A criminal pre-trial conference that any person in custody attends shall be held in court, with armed court officers on duty.
A criminal pre-trial conference may also be held in such form as video conferencing.
Article 8 Judges may get to know the related information and listen to opinions from both the prosecution and defense on the following issues:
(1) Whether they raise any objection to the jurisdiction of the case.
(2) Whether to apply for trial in camera.
(3) Whether to request disqualification of relevant persons.
(4) Whether to apply for excluding illegally obtained evidence.
(5) Whether to apply for submission of any evidence proving the innocence or minor crime of a defendant that is collected by the public security authority and the people's procuratorate but are not submitted during the period of investigation and prosecution examination.
(6) Whether to provide new evidence.
(7) Whether to request any identification or evaluation expert to testify before court, whether to request the court to notify any person with expertise to appear in court, and whether to request to provide any interpreter.
(8) Whether to request witnesses to testify before court, whether they raise any objection to the list of witnesses, identification or evaluation experts and persons with expertise appearing in court.
(9) Whether to apply for conducting re-identification or survey and inspection.
(10) Whether to apply for a postponed trial of the case.
(11) Whether to apply for removing or modifying compulsory measures against the defendant.
(12) Whether to conduct mediation for an incidental civil case.
(13) Whether they raise any objection to the evidence provided by the defender to prove the innocence or minor crime and other evidentiary materials.
(14) Other issues related to the trial of the case.
Judges shall stop both the prosecution and defense from offering opinions on the conviction and sentence of the case.
Article 9 Judges shall, item by item, solicit the opinions of both the prosecution and defense on the issues listed in Article 8 of these Measures to get to know the relevant information. Both the prosecution and defense shall, according the order of “applicant first,” respectively provide explanations, offer opinions, and present relevant evidentiary materials.
Article 10 Where a defendant and his or her legal representative or defender apply for excluding illegally obtained evidence, the relevant clues or evidentiary materials shall be provided. If the people's court deems upon examination that the procedure for excluding illegally obtained evidence should be launched, the people's procuratorate shall explain the legality of the evidence. When the applicant still raises any objection to the legality of the evidence, the people's court may advise the people's procuratorate to conduct investigation and verification if it deems necessary. Where the people's procuratorate decides to conduct investigation and verification, it may advise the court to additionally decide the opening time of the court session or postpone the trial of the case.
Article 11 Both the prosecution and defense may exchange all the evidence to be presented in a court session and their opinions during a criminal pre-trial conference. Both the prosecution and defense shall only explain whether to raise any objection to the evidence and be prohibited from presenting or cross-examining evidence. For evidence to which neither prosecution or defense has objection, the presentation of evidence and cross-examination may be simplified in a court session; for evidence to which either party raises any objection, the presentation of evidence, cross-examination, and debate shall be emphasized.
The evidence presented by both the prosecution and defense in a court session that are not showed before any criminal pre-trial conference shall be deemed as new evidence, and its rules for burden of proof shall be governed by the provisions of the Criminal Procedure Law and the relevant judicial interpretations on new evidence.
Article 12 A judge may preside over a civil mediation with both plaintiff and defendant in an incidental civil action, and may advise the relevant litigation representatives or close relatives to participate in the mediation.
Article 13 The court clerk shall prepare transcripts of a criminal pre-trial conference, and upon examination by the judge presiding over the conference, the judge, assistants to the judge and the court clerk shall sign such transcripts and the participants are required to read and sign them.
Article 14 The procedural issues on which both the prosecution and defense have reached consensus may be just briefly explained in a court session, and if either prosecution or defense raises any objection again in a court session, the court may directly dismiss the objection, except that there are new facts or evidence.
For the evidence not excluded as decided in accordance with the law or that without being applied for excluding illegally obtained evidence in a criminal pre-trial conference, the court may directly dismiss such evidence if the defendant and the defender thereof apply for excluding illegally obtained evidence in a court session, except that relevant clues or materials are found during the court session.
For the procedural issues that both the prosecution and defense fail to reach consensus, the collegial panel shall make a decision and notify both the prosecution and defense in a court session, or may notify them in an appropriate form and provide explanations to them before a court session is held.
Article 15 These Measures shall be subject to interpretation by the Judicial Committee of the No. 1 Intermediate People's Court of Shanghai Municipality.
Article 16 These Measures shall come into force on the date of issuance.