Provisions on Protecting Judicial Personnel to Lawfully Perform Statutory Duties

 2018-07-01  31


  • Area of Law Judicial Assistance
  • Level of Authority Group Provisions
  • Date issued07-21-2016
  • Effective Date07-21-2016
  • Status Effective
  • Issuing Authority General Office of the Central Committee of the Communist Party of China (General Office, CCCPC) General Office of the State Council

Provisions on Protecting Judicial Personnel to Lawfully Perform Statutory Duties
(Issued by the General Office of the Central Committee of the Communist Party of China (CPC) and the General Office of the State Council on July 2016)
Article 1 These Provisions are developed for the purpose of implementing the relevant requirements of the Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law, and establishing and improving the protection mechanism for judicial personnel to perform statutory duties in accordance with the law, under the relevant state laws and relevant provisions as well as the relevant provisions of the CPC Central Committee, and in the light of the actual judicial work.
Article 2 Where a judge or prosecutor handles a case in accordance with the law, he shall be free of intervention by any administrative departments, social organizations, and individuals, and entitled to refuse any organization or individual's requirements that violate the statutory duties or legal procedures or hinder judicial justice. Judicial personnel shall keep a complete and faithful record of the situation where any entity or individual intervenes in judicial activities, or the handling of specific cases. Relevant departments shall, in the light of the relevant provisions, circulate a notice on or hold liable the relevant responsible persons who intervene in judicial activities and handling of specific cases.
Article 3 No entity or individual shall request a judge or prosecutor to engage in any affair beyond the scope of his statutory duties. A people's court or people's procuratorate shall be entitled to refuse the request of any entity or individual to make arrangements for judges or prosecutors to engage in any affair beyond the scope of their statutory duties.
Article 4 Where a judge or prosecutor performs his statutory duties according to the law, he shall be protected by law. No judge or prosecutor shall, without statutory causes or without statutory procedures, be transferred, removed or dismissed from his office, or given such punishment as demotion or discharge from his office.
Article 5 A judge or prosecutor may be transferred from his office only under any of the following circumstances:
(1) being required to be disqualified from positions according to provisions;
(2) being subject to official exchange according to provisions arising from the need to foster officials;
(3) adjustment of work required arising from the restructuring of the institution or reduction of the size of the staff;
(4) being unsuitable for the judicial case-handling post arising from such a penalty as removal from office and demotion; or
(5) any other circumstance that his violation of the laws, party regulations on disciplinary penalty, or the provisions of trial or procuratorial disciplines makes him unsuitable for the judicial case-handling office.
Article 6 A judge or prosecutor may be removed from his office only under any of the following circumstances:
(1) having lost the nationality of the People's Republic of China;
(2) having been transferred out of this court or procuratorate;
(3) having no need to maintain in his original office upon a change of office;
(4) being determined to be incompetent for the job through appraisal;
(5) being unable to perform work duties for more than a year arising from heath issues;
(6) being supposed to retire according to provisions;
(7) resigning or being dismissed from his job;
(8) being disqualified from remaining in the office because of violation of discipline, law or commission of a crime; or
(9) any other circumstance that his violation of the laws, party regulations on disciplinary penalty, or the provisions of trial or procuratorial disciplines makes him unsuitable for the office of judge or prosecutor.
Article 7 A judge or prosecutor may be dismissed from his office only under any of the following circumstances:
(1) having been determined as "incompetent" in annual appraisals for 2 consecutive years;
(2) being incompetent for the present job and declining to accept other arrangements;
(3) refusing to accept reasonable transfer, which is necessitated by restructuring of the institution or reduction of the size of the staff;
(4) having stayed away from work without leave or to have overstayed his leave without good reason for more than 15 days in succession or for an accumulative total of more than 30 days for a year;
(5) failing to perform the duties as a judge or prosecutor, and making no rectification upon criticism; or
(6) any other circumstance that his violation of the laws, party regulations on disciplinary penalty, or the provisions of trial or procuratorial disciplines makes him unsuitable to hold public office.
Article 8 A judge or prosecutor may be demoted or discharged from his office only under any of the following circumstances:
(1) violating party disciplines, and being discharged from his office within the Party or being given a more serious penalty;
(2) violating trial or procuratorial disciplines with serious circumstances;
(3) neglecting duties, causing serious consequences; or
(4) any other circumstance that he should be demoted or discharged from his office for his violation of the laws, party regulations on disciplinary penalty, or the provisions of trial or procuratorial disciplines.
Article 9 Where a judge or prosecutor is transferred, removed or dismissed from his office, or given such punishment as demotion and discharge from his office, it shall, according to the procedure and management powers as provided by the law, be conducted. The judge or prosecutor shall be notified of such a decision in writing, specifying the reasons and basis for the decision.
Where a judge or prosecutor objects to such a decision on transfer, removal or dismissal from his office, or such punishment as demotion and discharge from his office, he may, in accordance with the law, apply for reconsideration or review, or file a petition or file a petition again. No judge or prosecutor shall be given a more serious penalty arising from an application for reconsideration or review, or filing of a petition or filing of a petition again.
Article 10 The appraisal of the case-handling quality of a judge or prosecutor, and the appraisal of work performance shall be impartial, and comply with the judicial pattern. No annual appraisal of a judge or prosecutor in respect of his morality, capability, diligence, achievement, and uprightness shall exceed the requirement of his statutory duties and professional ethics. The appraisal measures and standards shall be uniformly developed by the Supreme People's Court and the Supreme People's Procuratorate, and the local people's courts or people's procuratorates may make appropriate adjustment in light of the actual circumstances. No office of a judge or prosecutor shall be adjusted by the means or on the basis of rating by the number of handled cases, dismissal for lowest rating, ineffective receipt of persons who file public complaints, etc.
Article 11 Where a judge or prosecutor causes a misjudged case not through intentional violation of the laws and regulations, or gross negligence, and causes serious consequences, he shall not be liable for the misjudged case.
Article 12 Records of the handling of cases, and the relevant approval, management, guidance and supervision shall be kept throughout the whole process. A judge or prosecutor shall, according to the judicial responsibility system, be responsible for the factual evidence found, opinions offered, and decisions made in the performance of trial or procuratorial duties. Where the department at a higher level, the person in charge of the entity, the judicial committee, the procuratorial committee, etc. changes, pursuant to duties, the decision of a judge or prosecutor, the judge or prosecutor shall not be liable for the consequences, except where the intentional concealment or gross negligence of the judge or prosecutor causes the missing of material evidence or material circumstances, or his supply of other false situation causes the erroneous decision.
Article 13 In the process of the investigation and verification of the report, charge or complaint against the duty performance of a judge or prosecutor, the judge or prosecutor involved shall have the right to know, defend and provide evidence. The discipline inspection and supervision departments of the people's courts or the people's procuratorates shall keep faithful records of the statement, defense and evidence provided by the judge or prosecutor involved, and make an explanation on whether or not the statement, defense and evidence are admitted.
Article 14 The performance of statutory duties by a judge or prosecutor shall not be investigated for the liability of misjudged cases without the review of the judge or prosecutor disciplinary committee. Where a judge or prosecutor should be held liable for violation of party disciplines, trial or procuratorial disciplines, or public security or criminal laws, except misjudged cases, the relevant provisions shall apply.
Where the judge or prosecutor disciplinary committee reviews a case relating to the liability of a judge or prosecutor for a misjudged case, a hearing shall be held. The relevant institutions of the people's court or the people's procuratorate shall assign people to make a report to the judge or prosecutor disciplinary committee on the facts that the judge or prosecutor involved violated the laws and disciplines, and the proposed handling opinions and basis. The judge or prosecutor involved shall be entitled to make a statement or defense. The judge or prosecutor disciplinary committee shall, based on the facts found and the provisions of the laws, offer suggestions on no liability, exemption from liability or giving a disciplinary sanction.
Article 15 Where a judge or prosecutor is subjected to false report, malicious accusation, or insult or defamation by making use of information, the Internet, and other means, leading to damage to reputation, the people's court, the people's procuratorate and the public security department shall, jointly with the relevant departments, clarify facts, eliminate the negative impact, maintain the good reputation of the judge or prosecutor, and, in accordance with the law, hold the relevant entities or individuals liable.
Article 16 Where a relevant department mishandled a judge or prosecutor, it shall restore the office and reputation of the mishandled person, eliminate the negative impact, make compensation for the economic loss caused, and, in accordance with the law, hold liable any person who made the malicious accusation or defamation. Where a judge or prosecutor is temporarily suspended from promotion arising from being under investigation, but is deemed by the relevant department not to be held for legal or disciplinary liability, the time of the promotion shall be calculated from the date of the temporary suspension.
Article 17 In respect of any act disturbing and hindering judicial activities, or threatening, retaliating, framing, insulting, defaming, or violently assaulting judicial personnel or the close relatives thereof, punishment shall be given in a more serious manner in accordance with the law.
Where the personal freedom or regular life of the judicial personnel and the close relatives thereof is hindered by threatening, making troubles, disturbing, tailing, assaulting, hurling insults, damaging property, or other means, the public security department shall, upon receiving a report, shall rapidly assign police to effectively stop such hindrance. Whoever is committing an offense shall, in accordance with the law, be decisively dealt with and given a punishment in a more serious manner. For a mental patient who has committed violent behavior, endangering the personal safety of the judicial personnel and the close relatives thereof, before a people's court makes an involuntary medical treatment decision, a public security department may, upon the approval of the person in charge of a public security department at or above the county level, take interim protective restraint measures, and may, if necessary, send him to a mental hospital for treatment.
Article 18 Where a people's court or people's procuratorate handles such highly dangerous cases as terrorist activity offense, organized gangsterdom offense, significant drug-related offense and evil organization offense, it shall adopt appearance protection, prohibiting particular persons from contacting, and other necessary protection measures in respect of the judges or prosecutors and their close relatives thereof. The protection measure of concealing identity may be adopted in respect of the close relatives of judges and prosecutors.
The aforesaid protection measures may, as regards the handling of other relatively dangerous cases, upon the application of judicial personnel themselves, be adopted in respect of the judicial personnel and the close relatives thereof.
Article 19 The personal information of judicial personnel shall be protected by the law. Where a person infringes upon the human dignity of judicial personnel, or leaks the information on judicial personnel and the close relatives thereof which should, in accordance with the law, not be disclosed, the relevant person shall, in accordance with the law and relevant provisions, be held liable.
Article 20 The right of judges and prosecutors to rest and holiday shall be safeguarded in accordance with the law. Where a judge or prosecutor works overtime not on a statutory working day, he shall enjoy deferred rests; but if he cannot enjoy deferred rests, he shall be given priority upon the distribution of bonus of performance appraisal.
Article 21 The state shall implement the measures for medical security, and improve the measures for the pensions and preferential treatments, so as to provide judges and prosecutors, in respect of their human life, property, medical care, and other rights and interests, with guarantee matching their occupational risks.
Article 22 Where the leading official or direct person in charge of a people's court, people's procuratorate, or public security department causes significant damage to the personal and property rights and interests of judicial personnel performing duties in accordance with the law or the close relatives thereof by neglecting duties, taking a perfunctory attitude, shifting responsibilities, intentionally delaying, or abusing powers, he shall be given a disciplinary punishment; if a crime is constituted, criminal responsibilities shall be investigated according to the law.
Article 23 Where a state authority and its functionaries commit any of the following conduct, the judicial personnel shall be entitled to file an accusation, and the person directly responsible and responsible leaders shall be given a disciplinary punishment; if a crime is constituted, criminal responsibilities shall be investigated according to the law:
(1) intervening in judicial activities, and hindering judicial justice;
(2) requesting a judge or prosecutor to engage in any affair beyond the scope of his statutory duties;
(3) transferring, removing or dismissing a judge or prosecutor from his office, or giving him such punishment as demotion and discharge from his office violating these Provisions;
(4) nonfeasance in respect of the appeal for the guarantee of the performance of duties by judicial personnel in accordance with the law;
(5) violating the rights of judicial personnel to file accusations or petition for rights; or
(6) any other conduct seriously infringing upon the statutory rights of judges and prosecutors.
Article 24 For the purpose of these Provisions, judicial personnel means judges, prosecutors and supporting members of the judiciary who undertake case-handling duties at the people's courts and the people's procuratorates.
Article 25 Where military provisions provide for the protection of military judicial personnel performing statutory duties in accordance with the law, such provisions shall prevail.
Article 26 These Provisions are subject to the interpretation of the Commission for Political and Legal Affairs of the CPC Central Committee, jointlywith the Supreme People's Court and the Supreme People's Procuratorate.
Article 27 These Provisions shall come into force on July 21, 2016.