Article 33. Procedure-conducting agencies and procedure-conducting persons
Procedure-conducting agencies include:
A) Investigation agency;
B) Procuracy;
C) Court.
2. The persons conducting the proceedings include:
A) Heads and deputy heads of investigation authorities and investigators;
B) The Head, Deputy Head of the Procuracy, Procurator;
C) Chief Justices, Vice Court Presidents, Judges, Assessors, Court Clerks.
Article 34. Duties, powers and responsibilities of the Heads and Deputy Heads of the Investigation Agency
1. The heads of investigation agencies have the following tasks and powers:
A) Directly organize and direct investigation activities of investigation authorities;
B) Decide to assign Deputy Heads of investigation authorities and investigators to investigate criminal cases;
C) Examining the investigation activities of the Deputy Heads of the Investigation Agency and Investigators;
D) Decide to change or cancel unlawful and unlawful decisions of the Deputy Heads of the Investigation Agency and Investigators;
Dd) Decide to change investigators;
E) To settle complaints and denunciations within the competence of investigation authorities.
When the Head of the Investigation Agency is absent, a Deputy Head is authorized by the Head to perform the tasks and powers of the Head. The Deputy Heads are answerable to the Head for the assigned tasks.
2. When investigating a criminal case, heads of investigation agencies have the following tasks and powers:
A) Decide to prosecute the case or prosecute the accused; decide not to prosecute the case; decide to merge or split the case;
B) Decide to apply, change or cancel deterrent measures;
C) Decide to hunt down suspects, search, seize, withhold, distrain property, and handle exhibits;
D) Decide to solicit expertise, decide to excavate corpses;
Dd) Conclusion of investigation of the case;
E) Decide to suspend investigation, decide to suspend investigation, decide to resume investigation;
G) Directly carry out investigation measures; issue and revoke certificates of defense counsels; to make decisions and carry out other proceedings under the jurisdiction of the Investigation Agency.
3. When assigned to investigate a criminal case, deputy heads of the investigation agency have the tasks and powers specified in Clause 2 of this Article.
4. The heads and deputy heads of the investigating agency must take responsibility before law for their actions and decisions.
Article 35. Duties, powers and responsibilities of Investigators
1. Investigators assigned to investigate criminal cases have the following tasks and powers:
A) Prepare criminal case files;
B) Summon and interrogate the accused; to summon and take testimonies from witnesses, victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases;
C) Decide to escort the accused, decide to escort witnesses;
D) To execute orders for arrest, custody, temporary detention, search, seizure, custody and distrainment of property;
Dd) Carry out scene examination, autopsy, confrontation, identification and investigation;
E) Carry out other investigative activities under the authority of the investigating authority as assigned by the Head of the Investigation Agency.
2. Investigators must be held responsible before law and the head of the investigating agency for their actions and decisions.
Article 36. Duties, powers and responsibilities of the Head and Deputy Head of the Procuracy
1. The head of The Procuracy has the following duties and powers:
A) Organize and direct activities of exercising prosecution rights and administer legal compliance in criminal proceedings;
B) To decide to assign Deputy Heads of The procuracies and procurators to exercise prosecution rights and administer the law observance in procedural activities for criminal cases;
C) Examining activities of exercising prosecution rights and supervising the law observance in criminal proceedings by Deputy Heads of Procuracies and Procurators;
D / To protest according to cassation or reopening procedures according to the court’s legally effective judgments or rulings in accordance with law;
E) Decisions to change or cancel unlawful and unlawful decisions of the Deputy Head of the Procuracy and procurators;
E) Decisions to withdraw, suspend or cancel unlawful and illegal decisions of the procuracies of lower levels;
G) The decision to change the Procurator;
H) To settle complaints and denunciations within the competence of The procuracy.
When the Head of the Procuracy is absent, a Deputy Head is authorized by the Head to perform the duties and powers of the Head. The Deputy Director is responsible to the Director for the assigned tasks.
2. When exercising prosecution rights and administering the law observance in procedural activities with respect to criminal cases, the heads of The procuracies have the following duties and powers:
A) Decision to institute the case, decide not to prosecute the case, decide to prosecute the accused; to request investigation authorities to institute or change the decision to initiate criminal charges or prosecute suspects according to the provisions of this Code;
B) Requesting the Head of the Investigation Agency to change the investigator;
C) Decide to apply, change or cancel deterrent measures; decide to extend the investigation, decide to extend detention; requesting investigation agency to hunt for the accused;
D) Decisions to ratify, decisions not to approve decisions of investigation authorities;
E) Decisions to annul unfounded and illegal decisions of investigation authorities;
E) Decision to transfer the case;
G) Decide to prosecute, decide to return files for additional investigation, decide to solicit expertise;
H) Decide to suspend or terminate the case, decide to resume investigation, decide to handle evidence;
I) To protest according to appellate procedures against court judgments and rulings;
K) Issue and revoke certificates of defense counsel; to make decisions and carry out other activities of proceedings within the jurisdiction of the Procuracy.
3. When assigned to exercise prosecution rights and supervise law observance in procedural activities with respect to criminal cases, Deputy Heads of Procuracies have the duties and powers prescribed in Clause 2. This.
4. The heads and deputy heads of The procuracies must take responsibility before law for their actions and decisions.
Article 37. Duties, powers and responsibilities of Procurators
1. Procurators assigned to exercise the right of prosecution and administer the law observance in procedural activities with respect to criminal cases have the following duties and powers:
A) Supervise the prosecution, supervise investigation activities and the preparation of case files by investigation authorities;
B) Request an investigation;
C) Summoning and interrogating the accused; to summon and take testimonies from witnesses, victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases;
D) Supervise arrest, custody and temporary detention;
E) Attend court sessions; read the procuracies’ indictments and decisions related to the resolution of the cases; ask, present evidence and conduct impeachment; to express opinions on the settlement of the cases, debate with procedure participants at court sessions;
E) To supervise the law observance in the Court’s adjudication activities, of the procedure participants and oversee the Court’s judgments and decisions;
G) Supervise the execution of court judgments or decisions;
H) To perform other duties and powers within the Procuracy’s authority as assigned by the Head of the Procuracy.
2. Procurators shall be held accountable before law and to the head of the procuracy for their actions and decisions.
Article 38. Duties, powers and responsibilities of the Chief Justices and Deputy Chief Justices of the Court
1. The court president has the following duties and powers:
A) Organizing the court’s adjudication work;
B) Decide to assign Deputy Chief Justices of the Courts, Judges and Assessors to settle and adjudicate criminal cases; decide to assign Court Clerks to proceed with the criminal proceedings;
C) Decide to replace judges, assessors, court clerks before the opening of the court hearing;
D) To protest according to cassation procedures against the legally effective judgments or rulings of the Court in accordance with this Code;
E) Issuing a decision to execute a criminal judgment;
E) Decision to postpone the serving of imprisonment penalty;
G) Decide to suspend the serving of imprisonment penalty;
H) Decision to remove criminal records;
I) To settle complaints and denunciations within the Court’s jurisdiction.
When the Chief Justice of the Court is absent, a Deputy Chief Justice is authorized by the Chief Justice to perform the chief judge’s duties and powers. The Deputy Chief Justices shall be held accountable to the Chief Justice for the assigned tasks.
2. When settling a criminal case, the court president has the following duties and powers:
A) Decide to apply, change or cancel the detention measure; decide to handle evidence;
B) Decision to transfer the case;
C) Issue and revoke certificates of defense counsel; to issue decisions and conduct other proceedings within the Court’s jurisdiction.
3. When assigned to settle or adjudicate a criminal case, Deputy Chief Justices of the Court have the duties and powers specified in Clause 2 of this Article.
4. The court president and deputy chief justices must take responsibility before law for their actions and decisions.
Article 39. Duties, powers and responsibilities of Judges
1. Judges assigned to settle and adjudicate criminal cases have the following tasks and powers:
A) Study the case file before opening the court session;
B) Participate in the trial of criminal cases;
C) Carry out legal proceedings and vote on matters falling within the jurisdiction of the Trial Panel;
D) Carry out other proceedings within the Court’s authority as assigned by the Chief Justice of the Court.
2. Judges assigned to preside over court sessions, apart from the duties and powers prescribed in Clause 1 of this Article, also have the following duties and powers:
A) Decide to apply, change or cancel deterrent measures in accordance with this Code;
B) Decide to return files for further investigation;
C) Decide to bring the case to trial; decide to suspend or suspend the case;
D) Decide to summon people to be questioned to court sessions;
E / To conduct other proceedings under the court’s jurisdiction as assigned by the court president.
3. Judges holding the post of president and deputy chief of the Court of Appeal of the Supreme People’s Court have the right to issue and revoke defense counsel’s certificates.
4. Judges must be held responsible before law for their actions and decisions.
Article 40. Duties, powers and responsibilities of jurors
1. Assessors assigned to adjudicate criminal cases have the following tasks and powers:
A) Study the case file before opening the court session;
B) Participate in the trial of criminal cases according to first-instance and appellate procedures;
C) Carry out legal proceedings and vote on matters falling within the jurisdiction of the Trial Panel.
2. Assessors must be responsible before law for their actions and decisions.
Article 41. Duties, powers and responsibilities of Court Clerks
1. Court clerks assigned to initiate the proceedings with respect to criminal cases have the following duties and powers:
A) Disseminate the rules of the court session;
B) To report to the Trial Panel the list of persons summoned to the court session;
C) Record the minutes of the court session;
D) Carry out other proceedings within the Court’s authority as assigned by the Chief Justice of the Court.
2. Court clerks shall be held responsible before the law and to the court president for their acts.
Article 42. Cases in which the proceedings must be refused or changed
Procedure-conducting persons must refuse to conduct legal proceedings or be changed if:
1. They are at the same time the victim, the civil plaintiff, the civil defendant; persons with interests and obligations related to the lawsuit; are legal representatives, relatives of those persons or the accused or defendants;
2. They have participated as defense counsels, witnesses, expert witnesses, interpreters in that case;
3. There are other clear grounds to believe that they may not be impartial in their quest.
Article 43. Right to request to change procedure-conducting persons
The following persons may request to change procedure-conducting persons:
1. Procurator;
2. Defendants, defendants, victims, civil plaintiffs, civil defendants and their legal representatives;
3. Defense counsels, defense counsels of interests of victims, civil plaintiffs and civil defendants.
Article 44. Change of Investigator
Investigators must refuse to initiate the proceedings or be changed, if:
A) Fall into one of the cases prescribed in Article 42 of this Code;
B) Has instituted proceedings in that case in the capacity of Procurator, Judge, juror or Court clerk.
2. The replacement of investigators shall be decided by the head of the investigation agency.
If the investigator is the head of the investigation agency and falls into one of the cases specified in Clause 1 of this Article, the investigation of the case shall be conducted by the immediate superior investigation agency.
Article 45. Change of Procurator
1. Procurators must refuse to conduct the proceedings or be changed, if:
A) Fall into one of the cases prescribed in Article 42 of this Code;
B) Has instituted proceedings in that case in the capacity of Investigator, Judge, juror or Court clerk.
2. The replacement of procurators before the court session is opened shall be decided by the Procurator General of the same level.
If the Procurator to be changed is the Head of the Procuracy, it shall be decided by the Head of the immediate superior Procuracy.
In cases where procurators must be changed at court sessions, the trial panels shall decide to postpone the court sessions.
The appointment of another Procurator is decided by the Head of the Procuracy of the same level or the Head of the immediate superior Procuracy.
Article 46. Change of Judges and Assessors
1. Judges and assessors must refuse to participate in the trial or be replaced if:
A) Fall into one of the cases prescribed in Article 42 of this Code;
B) They are on the same trial panel and are close relatives;
C) Has participated in first-instance or appellate trials or conducts proceedings in that case in the capacity of Investigator, Procurator, Court clerk.
2. The replacement of judges or assessors before the opening of court sessions shall be decided by the court president. If the Judge to be replaced is the Chief Justice, it shall be decided by the Chief Justice of the immediate superior court.
The replacement of Judges and Assessors at court sessions shall be decided by the Trial Panel before the interrogation begins by voting in the deliberation room. When considering which member, that member can present his / her opinion, the Council decides by majority.
In cases where the judges or assessors must be changed at the court sessions, the trial panels shall issue decisions to postpone the court sessions.
The appointment of new members of the Trial Panel shall be decided by the Chief Justice of the Court.
Article 47. Changing Court Clerks
1. Court clerks must refuse to initiate the proceedings or be changed, if:
A) Fall into one of the cases prescribed in Article 42 of this Code;
B) Having instituted proceedings in that case in the capacity of procurators, investigators, judges or jurors.
2. The change of court clerks before the opening of court sessions shall be decided by the court president.
The replacement of court clerks at court sessions shall be decided by the trial panels.
In cases where the court clerk must be changed at the court session, the trial panel shall issue a decision to postpone the court session.
The appointment of other court clerks is decided by the Chief Justice of the Court.