Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of the Procedure for Confiscating Illegal Gains in a Case Where the Criminal Suspect or Defendant Goes into Hiding or Dies

Fa Shi [2017] No.1

January 4, 2017

The Provisions of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of the Procedure for Confiscating Illegal Gains in a Case Where the Criminal Suspect or Defendant Goes into Hiding or Dies (these "Provisions"), which were adopted at the 1,705th meeting of the Judicial Committee of the Supreme People's Court and at the 59th meeting of the 12th Procuratorial Committee of the Supreme People's Procuratorate on December 26, 2016, are hereby promulgated for implementation as of January 5, 2017.

In order to apply the procedure for confiscating illegal gains in a case where the criminal suspect or defendant goes into hiding or dies in accordance with the law, several issues concerning the application of specific laws for relevant cases are hereby prescribed as below in accordance with the Criminal Procedure Law of the People's Republic of China, the Criminal Law of the People's Republic of China, the Civil Procedure Law of the People's Republic of China as well as other laws and regulations:

Article 1 The following criminal cases shall be identified as the "criminal cases" specified in Paragraph 1 of Article 280 of the Criminal Procedure Law:
1. criminal cases concerning the corruption, misappropriation of public funds, unidentified source of any huge property, concealment of any overseas deposit, secret distribution of state-owned assets and secret distribution and confiscation of money or property;
2. criminal cases concerning the acceptance of bribes, acceptance of bribes of an entity, acceptance of bribes by virtue of influence, offering bribes, offering bribes to any person with influence, offering bribes to any entity, introduction to bribery and the offering of bribes to any entity;
3. criminal cases concerning the organization and leading of and participation in any terrorist organization, assistance in any terrorist activity, preparations for any terrorist activity, publicity of terrorism or extremism, instigation of any terrorist activity, destruction of the implementation of any law by any extremist means, compulsory wearing of any clothes or mark publicizing terrorism or extremism, and illegal holding of any article publicizing terrorism or extremism; and
4. criminal cases concerning damage to national security, smuggling, money laundering, financial fraud, underworld organization and drugs.
Criminal cases concerning telecom fraud and network fraud shall be handled as per the provisions set out in the preceding paragraph.

Article 2 Cases with great influence in a province, autonomous region or municipality directly under the Central Government or nationwide or those where the criminal suspect or defendant goes into hiding overseas, shall be identified as "grave" as specified in Paragraph 1 of Article 280 of the Criminal Procedure Law.

Article 3 Where any criminal suspect or defendant absconds or hides in order to avoid detection or the investigation of criminal liability, or escapes during any criminal proceedings, he shall be identified as "going into hiding" as stipulated in Paragraph 1 of Article 280 of the Criminal Procedure Law.
If the whereabouts of any criminal suspect or defendant has been unknown due to an accident for two years or more, or the whereabouts thereof is unknown and he cannot survive as proved by relevant organs, he shall be treated as per the preceding paragraph.

Article 4 Where any criminal suspect or defendant is dead and illegal gains and other case-related property thereof shall be recovered in accordance with the Criminal Law, a people's procuratorate may make an application for confiscation of illegal gains to the people's court concerned.

Article 5 That a public security organ issues a wanted order or issues an international red notice through the International Criminal Police Organization shall be identified as "being wanted" as set out in Paragraph 1 of Article 280 of the Criminal Procedure Law.

Article 6 Any property directly or indirectly generated or obtained by committing a crime shall be identified as the "illegal gains" set out in Paragraph 1 of Article 280 of the Criminal Procedure Law.
Where illegal gains have been transformed or converted into other property in whole or in part, the property after transformation or conversion shall be deemed as "illegal gains" as set out in the preceding paragraph.
The property income after the transformation and conversion of illegal gains or the income corresponding to the illegal gains among the property already mixed with the illegal gains shall be deemed as the "illegal gains" specified in Paragraph 1 abovementioned.

Article 7 The "interested persons" set out in Paragraph 3 of Article 281 of the Criminal Procedure Law include close relatives of any criminal suspect or defendant and other natural persons and entities claiming rights to the property regarding which confiscation is applied for.
The "other interested persons" set out in Paragraph 2 of Article 281 and Paragraph 2 of Article 282 of the Criminal Procedure Law refer to the "other natural persons and entities claiming rights to the property for which confiscation is applied for" specified in the preceding paragraph.

Article 8 When applying for the confiscation of illegal gains to the people's court concerned, a people's procuratorate shall work out the form of application for confiscation of illegal gains.
The form of application for confiscation of illegal gains shall specify the following contents:
1. the basic information of a criminal suspect or defendant;
2. the cause and source of the relevant case;
3. facts and relevant evidential materials that the criminal suspect or defendant is suspected of a crime;
4. the situation that the criminal suspect or defendant goes into hiding, is wanted, escapes, disappears or is dead;
5. the varieties, quantities, values and locations of property regarding which confiscation is applied for, the list of property already sealed up, seized and frozen as well as relevant legal formalities;
6. relevant facts and evidential materials proving that property regarding which confiscation is applied for is illegal gains and other case-related property;
7. grounds and legal bases for the application for confiscation of illegal gains;
8. whether there is any interested person and if any, the name, identity, address and contact information of the interested person; and
9. other contents that shall be specified.
Where a translation is needed for any of the aforesaid materials, a people's procuratorate shall transfer to the people's court concerned the translation together with the form of application for confiscation of illegal gains.

Article 9 As for an application for confiscation of illegal gains, a people's court shall, within 30 days, examine it, and respectively treat it under the following circumstances:
1. where the application is within the acceptance scope of cases concerning the application for confiscation of illegal gains and within the jurisdiction of the court, materials are complete and there is evidence proving that there are criminal facts, the application shall be accepted;
2. where the application is not within the acceptance scope of cases concerning the application for confiscation of illegal gains or within the jurisdiction of the court, the application shall be returned to the people's procuratorate concerned;
3. where the application for confiscation of illegal gains does not meet the standard requirement that "there is evidence proving that there are criminal facts", the court shall inform the people's procuratorate concerned to withdraw the application, and the people's procuratorate shall do so; and
4. where materials are incomplete, the court shall instruct the people's procuratorate concerned to supplement them within seven days, and where they cannot be supplemented within seven days, the application shall be returned to the people's procuratorate concerned.

Article 10 The following circumstances shall be jointly identified as "there is evidence proving that there are criminal facts" as specified in Article 9 hereof:
1. there is any evidence proving that there is any criminal fact;
2. there is any evidence proving that the criminal facts were conducted by the criminal suspect or defendant; and
3. evidence proving that the criminal suspect or defendant committed criminal behaviors is authentic and lawful.

Article 11 After accepting an application for confiscation of illegal gains, a people's court shall, within 15 days, make an announcement for six months. Provisions on suspension, interruption or extension shall not apply during the period of the announcement.
The announcement shall specify the following contents:
1. causes and source of the case and jurisdiction of the court concerned;
2. the basic information of the criminal suspect or defendant;
3. the fact that the criminal suspect or defendant is suspected of a crime;
4. the situation that the criminal suspect or defendant goes into hiding, is wanted, escapes, disappears or is dead;
5. the varieties, quantities, values and locations of property regarding which confiscation is applied for, the list of properties already sealed up, seized and frozen as well as relevant legal formalities;
6. relevant facts that property regarding which confiscation is applied for is illegal gains and other case-related property;
7. grounds and legal bases for the application for confiscation;
8. the period and method for an interested person to apply for participation in the litigation as well as unfavorable legal consequences that the interested person may bear if the said person fails to apply to participate in the litigation as per the aforesaid period and method; and
9. other situations that shall be announced.

Article 12 An announcement shall be published and issued on media such as a newspaper publicly issued nationwide and information networks and the official website of the Supreme People's Court, and be posted on the announcement board of the people's court concerned. When necessary, an announcement may be posted at the place of crime, the place of residence of the criminal suspect or defendant concerned or the place of the property regarding which confiscation is applied for. The date of publication, issue or posting of the announcement shall be the date of the announcement. Where a people's court posts an announcement, it shall record the posting processes by taking pictures or video recording, etc.
Where a people's court has known the contact information of a domestic interested person, it shall directly serve the notice including an announcement; if direct service is difficult, the people's court may delegate service by proxy or service by mail. Upon consent of a recipient, a people's court may inform the recipient of the contents of an announcement by a method such as fax or e-mail which can confirm receipt thereof, and put the same on record; a people's court which has known the contact information of an overseas criminal suspect, defendant or interested person may, upon consent by a recipient, inform the recipient of the contents of an announcement by a method such as fax or e-mail which can confirm receipt thereof, and put the same on record; where a recipient does not give consent, or a people's court does not know the contact information of an overseas criminal suspect, defendant or interested person but the competent authority of the country (region) where the recipient is located expressively proposes that a notice including an announcement be served on the recipient, the people's court accepting the case concerning the application for confiscation of illegal gains may determine whether to serve the notice. If service is determined, a people's court shall report the contents of the announcement to the Supreme People's Court level by level. The Supreme People's Court may request the competent authority of the country (region) where the recipient is located, according to criminal judicial assistance conditions or multilateral convention or under the principle of equality and mutual benefits.

Article 13 Where an interested person applies for participation in litigation, he shall make the application in the period of announcement, and provide the evidentiary material proving the relationship with the criminal suspect or defendant concerned or the evidentiary material proving that he can claim any right to illegal gains as well as other case-related property.
An interested person may entrust an agent ad litem to participate in the litigation. Where an interested person entrusts an agent ad litem overseas, he shall entrust a lawyer with qualifications as a lawyer of the People's Republic of China and a lawfully obtained practicing certificate, and notarize and authenticate the authorization and entrustment according to Article 403 of the Interpretations of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China.
Where an interested person applies for participation in litigation after expiry of the period of announcement on any reasonable ground, the people's court concerned shall permit the same.

Article 14 After expiry of the period of the announcement, the collegiate bench of a people's court shall hear a case concerning the application for confiscation of illegal gains.
Where an interested person applies for participation in litigation or entrusts an agent ad litem to participate in litigation, the people's court concerned shall open a court session to hear the case. Where an interested person and the agent ad litem thereof refuse to appear in court for no good reason, and no any other interested person or agent ad litem participates in litigation, the people's court concerned may not open a court session to hear the case.
Where a people's court opens a court session to hear a case concerning the application for confiscation of illegal gains, the people's procuratorate concerned shall assign an official to attend.
After a people's court has decided on the date of the court session, it shall notify the people's procuratorate, the interested persons and agents ad litem, witnesses, appraisers and interpreters concerned of the date and place of the court session. A notice shall be served at least three days before the holding of a hearing in a court session by any means specified in Paragraph 2 of Article 12 hereof; where a recipient is abroad, a notice shall be served at least 30 days before the holding of a hearing.

Article 15 A procurator in court shall read out the form of application for confiscation of illegal gains, and in the phase of court investigation, present and read out evidence proving the relevant facts that property regarding which confiscation is applied for is illegal gains and other case-related property and so on.
As for any evidence which is really necessary to be presented and whose presentation may obstruct a current or future criminal investigation, the court investigation of the said evidence shall not be made publicly.
Where any interested person or the agent ad litem thereof objects to relevant facts and evidence proving that property regarding which confiscation is applied for is illegal gains and other case-related property and so on, he may give an opinion; where he claims any right to the property regarding which confiscation is applied for, he shall present relevant evidence.

Article 16 Where a people's court believes upon trial that property regarding which confiscation is applied for is illegal gains and other case-related property, such property, except that which shall be returned to the victim thereof, shall be confiscated; where property regarding which confiscation is applied for is not illegal gains or other case-related property, it shall reject the application and remove measures of sealing up, seizure and freezing.

Article 17 Where property regarding which confiscation is applied for is quite probably illegal gains and other case-related property, it shall be identified that "property regarding which confiscation is applied for is illegal gains and other case-related property" as specified in Article 16 hereof.
Where in a criminal case concerning huge properties with an unknown source, no interested person claims any right to illegal gains and other case-related property, or an interested person claims any right to illegal gains and other case-related property but relevant evidence provided by him does not meet the corresponding proof standards, it shall be deemed as "property regarding which confiscation is applied for is illegal gains and other case-related property" as specified in Article 16 hereof.

Article 18 Where an interested person fails to participate in litigation during the period of the first instance not due to intention or gross negligence, and applies for participation in litigation during the period of the second instance, the people's court concerned shall permit the same, and remand relevant litigation to the people's court which originally heard the case for retrial.

Article 19 Where a criminal suspect or defendant goes into hiding abroad, and entrusts an agent ad litem to apply for participation in litigation, and the competent authority of the country (region) where illegal gains or other case-related property are located explicitly expresses approval, the people's court concerned may permit the same.
Where the people's court permits the above, the agent ad litem of the criminal suspect or defendant shall exercise litigious rights as per regulations on the agent ad litem of an interested person hereunder.

Article 20 Where a people's procuratorate and the interested person do not object to facts and evidence judged and identified during the first instance, the people's court of the second instance may not open a court session to hear the case.
Where the people's court of the second instance decides to open a court session to hear the case, it shall inform the people's procuratorate at the same level and interested persons of the date and place of the court session in writing.
The people's court of the second instance shall examine the relevant facts on appeal and demurrer requests and application laws.

Article 21 For any appeal or demurrer case concerning an objection to a judgment made in the first instance, a people's court of the second instance shall, upon trial, treat the case as per the following circumstances:
1. where facts judged and identified in the first instance are clear and laws are applied correctly, the appeal or demurrer shall be rejected, and the original judgment shall be upheld;
2. where facts judged and identified in the first instance are clear but laws are applied wrongly, the original judgment shall be changed;
3. where facts judged and identified in the first instance are unclear, the people's court of the second instance may change the original judgment after ascertaining the facts, or revoke the original judgment and remand the case to the people's court which originally heard the case for retrial; and
4. where the judgment of the first instance violates statutory litigation proceedings, probably resulting in an impartial trial, the people's court of the second instance shall revoke the original judgment, and remand the case to the people's court which originally heard the case for retrial.
After the people's court of the first instance judges a case remanded for retrial as per Item 3 of the preceding paragraph, the people's court of the second instance shall make a ruling on appeal or demurrer due to an objection to the judgment of the people's court of the first instance in accordance with the law, and shall not remand the case to the people's court which originally heard the case for retrial again.

Article 22 Where illegal gains or other case-related property are overseas, the public security organ, the people's procuratorate or any other investigation organ responsible for case filing and investigation shall prepare the legal instrument for sealing up, seizure or freezing and the letter of request for assistance in sealing up, seizure or freezing, and submit them to the corresponding supreme authority of the system of public security or procuratorate, etc. level by level. Afterwards, the supreme authority abovementioned shall request assistance from the competent authority of the country (region) where illegal gains or other case-related property are located, as per relevant criminal and judicial assistance treaties or multilateral conventions or under the principle of equality and mutual benefits.
Where the competent authority of the requested country (region) states that the subject preparing and issuing the legal instrument for sealing up, seizure or freezing must be a court, the public security organ, people's procuratorate or any other investigation organ responsible for case filing and investigation shall make an application for sealing up, seizure or freezing to the people's court at the same level. Upon examination and approval, the said people's court shall prepare the order of sealing up, seizure or freezing and the letter of request for assistance in sealing up, seizure or freezing, and submit them to the Supreme People's Court level by level. Afterwards, the Supreme People's Court shall request assistance from the competent authority of the country (region) where illegal gains or other case-related property are located, as per criminal and judicial assistance treaties or multilateral conventions or under the principle of equality and mutual benefits.
The letter of request shall specify the following contents:
1. case cause and whether the issuing subject of the legal instrument for sealing up, seizure or freezing has jurisdiction;
2. facts and relevant evidence proving that a criminal suspect or defendant is suspected of a crime, except evidence that may obstruct ongoing or future criminal investigations;
3. where an announcement is issued, the situations of issue of the announcement, notifying any interested person to participate in litigation, guaranteeing that the participant in litigation can exercise litigious rights in accordance with the law and so on;
4. the varieties, quantities, values, locations and so on of the property regarding which sealing up, seizure or freezing is applied for and relevant legal formalities;
5. relevant facts and evidential materials proving that property regarding which sealing up, seizure or freezing is applied for is illegal gains and those concerning other case-related property;
6. grounds and legal bases for requesting the sealing up, seizure or freezing of property; and
7. other contents required by the requested country (region).

Article 23 Where illegal gains or other case-related property are abroad and the people's court accepting the case concerning the application for confiscation of illegal gains orders confiscation upon trial, it shall formulate a confiscation order and the letter of request for assistance in execution of the confiscation order, and submit them to the Supreme People's Court level by level. Afterwards, the Supreme People's Court shall request assistance from the competent authority of the country (region) where illegal gains or other case-related property are located, as per criminal and judicial assistance treaties or multilateral conventions or under the principle of equality and mutual benefits.
The letter of request shall specify the following contents:
1. case cause and the issuing subject of the confiscation order having jurisdiction;
2. the aforesaid judgment is effective;
3. facts and relevant evidence proving that a criminal suspect or defendant is suspected of a crime, except evidence that may obstruct ongoing or future criminal investigations;
4. the situation that the criminal suspect or defendant goes into hiding, is wanted, escapes, or is dead;
5. the situations of issue of the announcement, notifying any interested person to participate in litigation, guaranteeing that the participant in litigation can exercise litigious rights in accordance with the law and so on;
6. the varieties, quantities, values, locations and so on of property regarding which confiscation is applied for, and relevant legal formalities of sealing up, seizure and freezing;
7. relevant facts and evidential materials proving that property regarding which confiscation is applied for is illegal gains and other case-related property;
8. grounds and legal bases for the application for confiscation of property; and
9. other contents required by the requested country (region).

Article 24 Where an entity is revoked or canceled after committing the crimes set out in Article 1 hereof, and the directly responsible person-in-charge and other persons directly liable of the said entity go into hiding or are dead, making the case unable to be heard as per the common criminal litigation procedures, Article 4 hereof shall be followed.

Article 25 These Provisions shall come into effect as of January 5, 2017. If there is any discrepancy between judicial interpretations issued before and these Provisions, these Provisions shall prevail.