Mainland Residents Serving Sentences in Taiwan Region Transferred to the Mainland

 2018-05-22  14


 Provisions of the Supreme People's Court on the Handling of Cases on Receiving Mainland Residents Serving Sentences in Taiwan Region Transferred to the Mainland to Serve Sentences by the People's Courts, as adopted at the 1653rd Session of the Judicial Committee of the Supreme People's Court 


· Document Number:Interpretation No. 11 [2016] of the Supreme People's Court

· Area of Law: Civil Litigation State Organs

· Level of Authority: Judicial Interpretation

· Date issued:04-27-2016

· Effective Date:05-01-2016

· Status: Effective

· Issuing Authority: Supreme People's Court

 

Announcement of the Supreme People's Court
The Provisions of the Supreme People's Court on the Handling of Cases on Receiving Mainland Residents Serving Sentences in Taiwan Region Transferred to the Mainland to Serve Sentences by the People's Courts, as adopted at the 1653rd Session of the Judicial Committee of the Supreme People's Court on June 2, 2015, are hereby issued, and shall come into force on May 1, 2016.
Supreme People's Court
April 27, 2016
Provisions of the Supreme People's Court on the Handling of Cases on Receiving Mainland Residents Serving Sentences in Taiwan Region Transferred to the Mainland to Serve Sentences by the People's Courts
(Interpretation No. 11 [2016] of the Supreme People's Court, adopted at the 1,653rd Session of the Judicial Committee of the Supreme People's Court on June 2, 2015 and to come into force on May 1, 2016)
In order to implement the Cross-Straits Agreement on Joint Crackdown on Crimes and Mutual Judicial Assistance and guarantee the smooth progress of receiving mainland residents serving sentences in Taiwan Region transferred to the mainland to serve sentences, these Provisions are developed in accordance with the Criminal Law of the People's Republic of China, the Criminal Procedure Law of the People's Republic of China, and other relevant laws.
Article 1 When handling cases on receiving mainland residents serving sentences in Taiwan Region (hereinafter referred to as “sentenced persons”) transferred to the mainland to serve sentences (hereinafter referred to as “cases on receiving sentenced persons”), the people's courts shall observe the principle of One China and the fundamental principle of abiding by the state laws, and adhere to the principles of humanity and reciprocity, and may not violate public interests.
Article 2 Cases on receiving sentenced persons shall be under the jurisdiction of intermediate people's courts as designated by the Supreme People's Court.
Article 3 When filing an application for receiving a sentenced person transferred to the mainland to serve sentence with the people's court, the application organ shall, at the same time, submit the following materials:
1. the written application for receiving a sentenced person as prepared by the application organ, which shall state:
(1) the specific content of provisions based on which the court of Taiwan Region determines the criminal offense committed by the sentenced person and renders a judgment;
(2) the statement that such criminal offense also constitutes a crime in the mainland in accordance with the Criminal Law, the corresponding provisions of the Criminal Law, the charge, and the reasons why such criminal offense does not enter the criminal proceedings of the mainland;
(3) the proposed specific penalty to be converted; and
(4) other matters requiring explanations.
2. the identity certificate of the sentenced person, proving that he or she is a mainland resident;
3. the judgment with conviction and penalty against the sentenced person as rendered by the court of Taiwan Region, the effectiveness certificate, and the execution document;
4. the written opinion of the sentenced person or the legal representative thereof on applying for or agreeing with serving sentence in the mainland, and the consistent intention of the legal representative and the sentenced person;
5. the written statement made by the sentenced person or the legal representative thereof that the right of the sentenced person for receiving impartial trial in Taiwan Region has been safeguarded;
6. the written opinions of the relevant competent business departments of the mainland and Taiwan Region that they agree with transferring the sentenced person to the mainland to serve sentence;
7. the explanations on the penal execution issued by the business department of Taiwan Region, including the period of custody before the sentenced person is delivered for execution, the term of penalty that has been served, the remaining term of penalty, the performance of the sentenced person during the period of serving sentence, the disgorgement of illegal gains, and the health conditions, diseases, and treatment of the sentenced person; and
8. other materials requiring submission according to the specific circumstances of the case.
Where the materials submitted by the application organ are complete, the people's court shall place the case on file within seven days. Where the materials submitted are incomplete, the people's court shall notify the application organ of supplementing materials within 15 days or two months to the maximum; and if the application organ fails to supplement materials within the prescribed time limit, the people's court may not place the case on file and shall notify the application organ in writing within seven days.
Article 4 The people's court shall form a collegial panel to try cases on receiving sentenced persons.
Article 5 The people's court shall, within one month after the case is placed on file, render a ruling on whether to approve the reception of the sentenced person. In case of complicated and special circumstances, the aforesaid prescribed time limit may be extended by one month.
Where the people's court renders a ruling on approving the reception of the sentenced person, it shall, on the basis of the facts found in the judgment rendered by the court of Taiwan Region, by reference with the charge determined by the court of Taiwan Region, and in accordance with the statutory penalty against the same or the most similar criminal offense in the Criminal Law, convert the life imprisonment or fixed-term imprisonment as determined by the court of Taiwan Region according to the following principles:
1. Where the original penalty does not exceed the maximum penalty as prescribed in the Criminal Law, including the situation that the original penalty is lower than the minimum penalty as prescribed in the Criminal Law, the original penalty shall serve as the converted penalty.
2. Where the original penalty exceeds the maximum penalty as prescribed in the Criminal Law, the maximum penalty as prescribed in the Criminal Law shall serve as the converted penalty.
3. The deprival of political rights shall not be additionally applicable to the converted penalty.
For the term “maximum penalty” as mentioned in the preceding paragraph, if the facts found by the court of Taiwan Region shall be determined as one criminal offense in accordance with the provisions of the Criminal Law, it refers to the maximum penalty against such criminal offense as prescribed in the Criminal Law; and if the facts shall be determined as multiple criminal offenses, it refers to the maximum penalty as prescribed in the Criminal Law on the joinder of penalties for plural crimes.
Where the relevant competent business department of Taiwan Region renders a decision on imposing a mitigated penalty on the sentenced person during the period of serving sentence, the people's court shall convert the mitigated penalty at the same time and render a ruling on the penalty subject to final execution.
Article 6 One day in the period of actual custody of a sentenced person before he or she is transferred to the mainland to serve sentence shall be one day in the converted term of penalty.
Article 7 Where, before being transferred to the mainland, a sentenced person has been released on parole or subject to medical parole in Taiwan Region, or the sentenced person or the legal representative thereof also applies for temporary service of sentence outside prison in the written opinion on applying for or agreeing with the transfer of the sentenced person to the mainland to serve sentence, the people's court shall make investigations in accordance with the provisions of the Criminal Law and the Criminal Procedure Law and render a decision on release on parole or temporary service of sentence outside prison.
Article 8 After rendering a ruling, the people's court shall serve it upon the application organ within seven days. The ruling shall be effective immediately after being served.
Article 9 After a sentenced person is transferred to the mainland to serve sentence, the provisions of the Criminal Law, the Criminal Procedure Law, and other relevant judicial interpretations shall apply to matters regarding commutation, release on parole, temporary service of sentence outside prison, and pardon.
Article 10 After a sentenced person is transferred to the mainland to serve sentence, the people's court shall no longer try his or her criminal offenses against which a penalty has been imposed in Taiwan Region.
Article 11 These Provisions shall come into force on May 1, 2016.