Interpretation of Application of Law in the Handling of Cases regarding Criminal Compensation

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Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Cases regarding Criminal Compensation


· Document Number:Interpretation No. 24 [2015] of the Supreme People's Court

· Area of Law: State Compensation

· Level of Authority: Judicial Interpretation

· Date issued:12-28-2015

· Effective Date:01-01-2016

· Status: Effective

· Issuing Authority: Supreme People's Court Supreme People's Procuratorate

 

Announcement of the Supreme People's Court and the Supreme People's Procuratorate
The Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Cases regarding Criminal Compensation, as adopted at the 1,671st meeting of the Judicial Committee of the Supreme People's Court on December 14, 2015 and at the 46th meeting of the Twelfth Procuratorial Committee of the Supreme People's Procuratorate on December 21, 2015, is hereby issued, and shall come into force on January 1, 2016.
Supreme People's Court
Supreme People's Procuratorate
December 28, 2015



Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Cases regarding Criminal Compensation
(Interpretation No. 24 [2015] of the Supreme People's Court, adopted at the 1,671st meeting of the Judicial Committee of the Supreme People's Court on December 14, 2015 and at the 46th meeting of the Twelfth Procuratorial Committee of the Supreme People's Procuratorate on December 21, 2015)
In accordance with the provisions of the State Compensation Law and other relevant laws and in light of the actual work of criminal compensation, several issues concerning the application of law in the handling of cases regarding criminal compensation are hereby interpreted as follows:
Article 1 Where a compensation claimant applies for state compensation since the authority with the functions of criminal investigation, prosecution, or trial as well as the detention facility or prison administrative authority and the staff members thereof have infringed his or her personal right and property right and the application falls under the circumstances as prescribed in Articles 17 and 18 of the State Compensation Law, the application shall be within the scope of criminal compensation as prescribed in this Interpretation.
Article 2 Where, after the detention or arrest measure is removed or revoked, although the case has not been withdrawn, no decision on non-prosecution has been rendered, or no judgment of acquittal has been rendered, the case falls under any of the following circumstances, it shall fall under the circumstances of terminating the investigation of criminal liabilities as prescribed in items (1) and (2) of Article 17 of the State Compensation Law:
(1) The case-handling organ decides to terminate the criminal investigation of criminal suspects.
(2) After the measures of release on bail, residential surveillance, detention, and arrest are removed or revoked, the case-handling organ fails to transfer the case for prosecution, make a decision on non-prosecution, or withdraw the case after one year.
(3) After the expiration of the statutory time limit of the measures of release on bail and residential surveillance, the case-handling organ fails to transfer the case for prosecution, make a decision on non-prosecution, or withdraw the case after one year.
(4) The people's procuratorate fails to make a decision on non-prosecution by exceeding 30 days after the prosecution is withdrawn.
(5) The people's procuratorate fails to make a decision on non-prosecution by exceeding 30 days after the people's court decides that the parties have withdrawn the case.
(6) The people's court permits the private prosecutor of a criminal case of private prosecution to withdraw the case or the people's court decides that the parties have withdrawn the criminal case of private prosecution.
The organ liable for compensation has evidence to prove that the investigation of criminal liability has not been terminated, which is proved to be true upon examination by the compensation committee of the people's court, a decision on rejecting the compensation application of the compensation claimant shall be made.
Article 3 Where, after such measures as sealing-up, seizing, freezing, and recovery of property are taken, the case-handling organ fails to remove such measures as sealing-up, seizing, and freezing or return property, any of the following circumstances shall be determined as “infringement upon the property right” as prescribed in Article 18 of the State Compensation Law:
(1) The compensation claimant has evidence to prove that the property is irrelevant to the criminal case that has not been closed, which is proved to be true upon examination.
(2) The criminal investigation is terminated, the case is withdrawn, no prosecution is filed, a judgment of acquittal is rendered, and the investigation of criminal liability is terminated.
(3) After the measures of release on bail, residential surveillance, detention, and arrest are taken, the case fails to be transferred for prosecution, no decision on non-prosecution is made, or the case is not withdrawn by exceeding one year after the removal or revocation of compulsory measures or the expiration of the statutory time limit of such compulsory measures.
(4) Without taking such measures as release on bail, residential surveillance, detention, and arrest, the case fails to be transferred for prosecution, no decision on non-prosecution is made, or the case is not withdrawn by exceeding two years after the case is placed on file.
(5) The people's procuratorate fails to make a decision on non-prosecution by exceeding 30 days after the prosecution is withdrawn.
(6) The people's procuratorate fails to make a decision on non-prosecution by exceeding 30 days after the people's court decides that the parties have withdrawn the case.
(7) The property that is not disposed of in the effective judgment is handled by other means in violation of law.
Under any of circumstances as prescribed in items (3) to (6) of the preceding paragraph, where the organ liable for compensation has evidence to prove that the investigation of criminal liabilities has not been terminated, which is proved to be true upon examination by the compensation committee of the people's court, a decision on rejecting the compensation application of the compensation claimant shall be made.
Article 4 When making a decision on compensation, the organ liable for compensation shall notify the compensation claimant of the right to apply for reconsideration with the organ at the higher level of the organ liable for compensation within 30 days. Where the organ liable for compensation fails to notify the compensation claimant according to the law and the compensation claimant applies for reconsideration within two years upon receipt of the decision on compensation, the reconsideration organ shall accept the application.
The handling of a compensation application by the compensation committee of the people's court shall be governed by the provisions of the preceding paragraph.
Article 5 Where the investigation of criminal liabilities is terminated after the measure of criminal detention is taken against a citizen, any of the following circumstances shall be deemed as “illegal criminal detention” as prescribed in item (1) of Article 17 of the State Compensation Law:
(1) The detention measure is taken in violation of the requirements as prescribed in the Criminal Procedure Law.
(2) The detention measure is taken in violation of the procedures as prescribed in the Criminal Procedure Law.
(3) The detention measure is taken against a citizen according to the requirements and procedures as prescribed in the Criminal Procedure Law, but the detention duration exceeds the time limit as prescribed in the Criminal Procedure Law.
The compensation for infringement upon personal freedom incurred from an illegal criminal detention shall be calculated from the date of detention.
Article 6 Where, in a case of the joinder of penalties for plural crimes, some charges are unfounded upon retrial and the original judgment is changed, the term of imprisonment exceeds the term as determined in the judgment upon retrial, and the citizen applies for state compensation for the imprisonment exceeding the time limit, a decision on compensation shall be made.
Article 7 In accordance with the provisions of items (2) and (3) of Article 19 of the State Compensation Law, where any person who does not bear the criminal liability in accordance with the provisions of Articles 17 and 18 of the Criminal Law or any person who is not subject to criminal liability in accordance with the provisions of paragraph 2 of Articles 15 and 173 of the Criminal Procedure Law is held in custody, the state shall not assume the compensation liability; however, where, after a lawsuit is filed, any person is erroneously sentenced to detention, fixed-term imprisonment, and life imprisonment by the people's court and the detention, fixed-term imprisonment, and life imprisonment have been executed, the people's court shall make compensation under the circumstances of infringement upon citizens' right of personal freedom during the period of continuous detention after the judgment is rendered.
Article 8 Where the organ liable for compensation claims that its compensation liability should be exempted in accordance with the circumstances as prescribed in items (1) and (5) of Article 19 of the State Compensation Law, the organ liable for compensation shall bear the burden of proof for the establishment of the exemption.
Article 9 Where an injured citizen dies, his or her successor and other relatives with a relationship of maintenance shall be entitled to apply for state compensation.
When there are multiple successors in the same order that have the right of succession according to the law, where one successor or multiple of them apply for state compensation as compensation claimants, the application shall have effect on all successors.
When there are multiple compensation claimants, where one compensation claimant or multiple of them apply for withdrawing or abandoning the compensation claim without the unanimous consent, such application shall have no effect on other compensation claimants who do not make it clear that they withdraw or abandon the compensation claim.
Article 10 Where a detention facility and the staff members thereof infringe upon citizens' lawful rights and interests and cause damages when performing the functions, the competent department of the detention facility shall be the organ liable for compensation.
Article 11 Where an organ arrests a citizen after it takes the measure of detention against the citizen and the state assumes the compensation liability, the organ that makes the decision on arrest shall be the organ liable for compensation.
Article 12 Where the people's court renders a judgment of conviction in the first instance and the case falls under any of the following circumstances after it is remanded for retrial in the second instance, it shall be deemed as compensation for acquittal in a retrial as prescribed in paragraph 4 of Article 21 of the State Compensation Law and the people's court that renders the judgment of conviction in the first instance shall be the organ liable for compensation:
(1) A judgment of acquittal is rendered by the original people's court and the judgment has come into force.
(2) The people's procuratorate makes a decision on non-prosecution during the period of retrial.
(3) The people's procuratorate fails to make a decision on non-prosecution by exceeding 30 days after the prosecution is withdrawn during the period of retrial or by exceeding 30 days after the people's court decides that the parties have withdrawn the case.
Where a judgment of acquittal is rendered upon retrial according to the trial supervision procedure, the people's court that renders the original effective judgment shall be the organ liable for compensation.
Article 13 The compensation for medical expenses shall be determined according to the receipt vouchers of medical fees, treatment costs, and hospitalization expenses issued by the medical institution and in light of the clinic history, diagnosis certificate, and other relevant evidence. Where the organ liable for compensation raises any objection to the necessity and rationality of the treatment, it shall bear the burden of proof.
Article 14 The compensation for nursing expenses shall be calculated by reference to the standard of labor remuneration for local health care workers engaging in nursing services of the same grade. In principle, the nursing expenses shall be calculated according to the expense standard of nursing services provided by one nurse; however, where the medical institution or the judicial appraiser has a specific opinion, the number of nurses may be determined and the corresponding nursing expenses shall be compensated according to such opinion.
The nursing period shall expire when the citizen regains the self-care ability. When a citizen fails to regain the self-care ability due to disability, the nursing period may be reasonably determined according the citizen's age, health status, and other factors. In general, the nursing period may not exceed 20 years.
Article 15 The compensation for expenses of disability living assistive devices shall be calculated according to the standard of reasonable expenses of ordinary applicable devices. Where there is any special need because of the injury, it may be determined by reference to the opinions of the auxiliary assistive devices allocation institution.
The replacement period and compensation period of assistive devices shall be determined by reference to the opinions of the allocation institution.
Article 16 The compensation for lost wages due to the missed working time shall be determined according to the period of missed working time of an injured citizen and the national average daily wage for employees of the previous year and the maximum compensation for lost wages shall be five times of the national average daily wage for employees of the previous year.
The period of missed working time shall be determined according to the certificate issued by the medical institution where the citizen receives treatment. Where a citizen continues to delay his or her work due to disability, the period of missed working time may be calculated up to the day before the disability grade serving as the compensation basis is determined upon appraisal.
Article 17 For compensation for the physical disability of a citizen, the degree of the citizen's loss of working capacity shall be determined upon appraisal of the degree of disability by the judicial appraiser and the compensation for disability shall be determined by reference to the following standards:
(1) Where it is determined that a citizen has disability of levels 1 to 4 according to the grades of disability as stipulated by the state, it shall be deemed that the citizen completely losses working capacity and the range of compensation for disability shall be ten to twenty times of the national average annual wage for employees of the previous year.
(2) Where it is determined that a citizen has disability of levels 5 to 10 according to the grades of disability as stipulated by the state, it shall be deemed that the citizen partially losses working capacity. For disability of levels 5 to 6, the range of compensation for disability shall be five to ten times of the national average annual wage for employees of the previous year; and for disability of levels 7 to 10, the range of compensation for disability shall be not more than five times of the national average annual wage for employees of the previous year.
Where a citizen with the duty of maintenance partially losses working capacity, the compensation for disability may be determined according to the grade of disability and by reference to the conditions of the dependant's loss of income source and may not exceed 20 times of the national average annual wage for employees of the previous year to the maximum.
Article 18 Where an injured citizen completely loses working capacity, the standard for the distribution of living expenses to his or her dependant without working capacity shall refer to the standard of the minimum subsistence allowance as determined by the provincial people's government at the domicile of the dependant when the decision on compensation is made.
Where the maintenance term is determinable, the living expenses may be determined upon negotiation and paid in a lump sum. Where the maintenance term is indeterminable, the maintenance term may be determined with the upper limit of 20 years and the living expenses may be paid in a lump sum. If the dependant is over 60 years old, the maintenance term shall decrease by one year for increase in the age by one year; and if the age of the dependant exceeds the prescribed maintenance term, the dependant may receive living expenses year by year until his or her death.
Article 19 Where an organ infringes upon the property right of any citizen, legal person, and other organization and causes damage, the organ shall assume the compensation liability in accordance with the provisions of Article 36 of the State Compensation Law.
Where the property fails to be restored to the original state or is lost, the property damage shall be calculated according to the market price in the occurrence of such damage or in other reasonable manners.
Article 20 For the return of the executed penalty or fine, the recovered or confiscated money, and the remittance whose freezing is lifted, the deposit interest over the same period shall be paid, the interest rate shall be determined by reference to the one-year benchmark interest rate for RMB time deposit of lump-sum deposit and lump-sum withdrawal published by the People's Bank of China when the organ liable for compensation makes the decision on compensation, and the compound interest may not be calculated.
Where the reconsideration organ or the compensation committee of the people's court modifies the original decision on compensation, the interest rate shall be determined by reference to the one-year benchmark interest rate for RMB fixed time deposit of lump-sum deposit and lump-sum withdrawal published by the People's Bank of China when the new decision is made.
The period of interest calculation shall commence from the time of occurrence of an infringement act to the time when an effective decision on compensation is made; where the infringement act is ceased before an effective decision on compensation is made, the interest calculation shall be terminated at the cessation of such infringement act.
Where the confiscated or recovered money is the compensation claimant's lawful deposit in a financial institution, the interest shall be calculated at the interest rate as agreed on in the deposit contract during the validity term of the contract.
Article 21 The term “previous year” as prescribed in Articles 33 and 34 of the State Compensation Law refers to the “previous year when the organ liable for compensation makes a decision on compensation;” where the reconsideration organ or the compensation committee of the people's court modifies the original decision on compensation, the compensation for personal freedom shall be calculated according to the standard of national average wage for employees of the previous year when the new decision is made.
Where the standard of national average wage for employees of the previous year is not published when the decision on compensation or reconsideration is made, the standard of national average wage for employees of the latest year that has been published shall prevail.
Article 22 Any of the following decisions on compensation and reconsideration shall be a decision that is legally effective:
(1) a decision that is made by the organ liable for compensation where no application for reconsideration is filed and no application for state compensation is filed with the people's court at the next higher level within the time limit as prescribed in Article 24 of the State Compensation Law;
(2) a decision on reconsideration where no application for state compensation is filed with the compensation committee of the people's court within the time limit as prescribed in Article 25 of the State Compensation Law; and
(3) a decision on compensation that is made by the compensation committee of the people's court.
The legally-effective decision and reconsideration decision made by the organ liable for compensation and the legally-effective compensation decision made by the compensation committee shall have the same legal effect and must be executed according to the law.
Article 23 This Interpretation shall come into force on January 1, 2016. Where the judicial interpretations previously issued by the Supreme People's Court and the Supreme People's Procuratorate are inconsistent with this Interpretation, this Interpretation shall prevail.