Law of the People’s Republic of China on International Mutual Legal Assistance in Criminal Matters

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Order of the President of the People’s Republic of China

No. 13

 

The Law of the People’s Republic of China on International Mutual Legal Assistance in Criminal Matters adopted at the 6th Meeting of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of Chinaon October 26, 2018 and is hereby promulgated and shall go into effect.

 

Xi Jinping

President of the People’s Republic of China

October 26, 2018

 

Law of the People’s Republic of China on International Mutual Legal Assistance in Criminal Matters

 (Adopted at the 6th Meeting of the Standing Committee of the Thirteenth National People’s Congress of the People’s Republic of China on October 26, 2018)

 

Contents

 

Chapter I General Provisions

Chapter II Presentation, Receipt and Execution of Requests for Mutual Legal Assistance in Criminal Matters

Section 1 Requesting a Foreign State for Mutual Legal Assistance in Criminal Matters

Section 2 Requesting Mutual Legal Assistance in Criminal Matters from the People’s Republic of China

Chapter III Service of Documents

Section 1 Requesting a Foreign State to Serve Documents

Section 2 Requesting the People’s Republic of China to Serve Documents

Chapter IV Investigation and Evidence Collection

Section 1 Requesting a Foreign State to Conduct Investigation and Collect Evidence

Section 2 Requesting the People’s Republic of Chinato Conduct Investigation and Collect Evidence

Chapter V Facilitating Witnesses to Testify or Assist in Investigation

Section 1 Requesting a Foreign State to Facilitate a Witness to Testify or Assist in Investigation

Section 2 Requesting the People’s Republic ofChinato Facilitate Witnesses to Testify or Assist in Investigation

Chapter VI Seizure, Impoundment and Freezing of Property Involved in a Case

Section 1 Requesting a Foreign State to Seize, Impound or Freeze Property Involved in a Case

Section 2 Requesting the People’s Republic of China to Seize, Impound or Freeze Property Involved in a Case

Chapter VII Confiscation and Return of Proceeds of Crime and Other Property Involved in a Case

Section 1 Requesting a Foreign State to Confiscate or Return Proceeds of Crime and Other Property Involved in a Case

Section 2 Requesting the People’s Republic ofChinato Confiscate or Return Proceeds of Crime and Other Property Involved in a Case

Chapter VIII Transfer of Sentenced Persons

Section 1 Transfer of Sentenced Persons to a Foreign State

Section 2 Transfer of Sentenced Persons to the People’s Republic of China

Chapter IX Supplementary Provisions

 

 

Chapter I General Provisions

 

Article 1 This Law is enacted for the purposes of ensuring proceeding of international mutual legal assistance, strengthening international cooperation in the field of criminal justice, effectively punishing and preventing crimes, protecting the lawful rights and interests of individuals and organisations, and safeguarding national interest and social order.

Article 2 For the purpose of this Law, “international mutual legal assistance in criminal matters” shall mean the assistance provided between the People’s Republic of China and a foreign state in inspection, investigation, prosecution, trial, execution and other activities of criminal cases, including assistance in the service of documents, investigation and evidence collection, arrangement of witnesses to testify or assistance in investigation, seizure, impoundment and freezing of property involved in a case, confiscation and return of proceedings of crime and other property involved in a case, transfer of sentenced persons, etc.

Article 3 Mutual legal assistance in criminal matters between the People’s Republic of China and a foreign state shall be conducted in accordance with this Law.

Execution of a request for mutual legal assistance in criminal matters made by a foreign state shall be subject to this Law, the Criminal Procedure Law and other relevant laws.

Such matters as the authorities to sign a written request, the language of the written request and supporting materials, timeline and specific procedures to apply may be determined in accordance with provisions of relevant treaty on mutual legal assistance in criminal matters or through consultation between the two parties, provided that it wouldn’t contravene the basic principles of laws of the People’s Republic of China.

Article 4 Mutual legal assistance in criminal matters between the People’s Republic ofChinaand foreign states shall be conducted under the principles of equality and reciprocity.

International mutual legal assistance in criminal matters shall not be conducted to the detriment of the sovereignty, security or public interest of the People’s Republic ofChinaor in violation of the basic principles of laws of the People’s Republic ofChina.  Except as approved by relevant authorities of the People’s Republic of China, no foreign entity, organisation or individual may conduct, within the territory of the People’s Republic of China, any of the criminal proceedings provided for in this Law and no entity, organisation or individual in the territory of the People’s Republic of China may provide to a foreign state evidentiary materials or assistance as prescribed in this Law.

Article 5 Mutual legal assistance in criminal matters of the People’s Republic of China with a foreign state shall be conducted through foreign liaison authorities.

The Ministry of Justice of the People’s Republic ofChinaand other foreign liaison authorities shall be responsible for presenting, receiving and transmitting requests for mutual legal assistance in criminal matters and handling other affairs relating to international mutual legal assistance in criminal matters.

In the absence of a treaty on mutual legal assistance in criminal matters between the People’s Republic ofChinaand a foreign state, communication shall be through diplomatic channels.

Article 6 The National Supervisory Commission, the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, the Ministry of State Security and other departments are the competent authorities for execution of international mutual legal assistance in criminal matters, and shall, according to their  division of functions, be responsible for reviewing criminal mutual legal assistance requests made to a foreign country, examining and handling criminal mutual legal assistance requests having made by a foreign country and forwarded by foreign liaison authorities, and undertaking other tasks relating to international mutual legal assistance in criminal matters. In the case of transfer of sentenced persons, the Ministry of Justice shall, according to its division of functions, fulfill its responsibilities as the competent authority.

The organ to handle a case of mutual legal assistance in criminal matters shall be the one handling the relevant case, who shall be responsible for submitting to the competent authority to which it is subordinate requests for mutual legal assistance in criminal matters to be made to a foreign country, and executing requests for mutual legal assistance in criminal matters having made by a foreign country and assigned by the competent authority to which it is subordinate.

Article 7 The State shall ensure the funds for international mutual legal assistance in criminal matters.

Article 8 The expenses incurred from the execution of a request for mutual legal assistance in criminal matters between the People’s Republic ofChinaand a foreign state shall be borne in accordance with provisions of the relevant treaty in between. In the absence of such treaty or relevant clauses in the said treaty, it shall be decided through consultation under the principles of equality and reciprocity.

 

 

Chapter II Presentation, Receipt and Execution of Requests for Mutual Legal Assistance in Criminal Matters

 

Section 1 Requesting a Foreign State for Mutual Legal Assistance in Criminal Matters

 

Article 9 Where the organ handling a case needs to request a foreign state for mutual legal assistance in criminal matters, it shall prepare a written request for mutual legal assistance in criminal matters with the relevant materials attached. Upon approval by the competent authority to which it is subordinate after examination, request shall be made through the foreign liaison authority to the foreign state in a timely manner.

Article 10 A written request to a foreign state for mutual legal assistance in criminal matters shall be made in accordance with provisions of the treaty on mutual legal assistance in criminal matters, if any. In the absence of such treaty or relevant clauses in the said treaty, it may be prepared by referring to Article 13 of this Law. Where the requested state has particular requirements, the request may be made accordingly, provided that the basic principles of laws of the People’s Republic of China are not thus violated.

The written request and supporting materials shall be prepared in Chinese, to which translation into the official language of the requested state shall be attached.

Article 11 Where the requested state puts forward additional conditions for executing the requested mutual legal assistance in criminal matters, the Ministry of Foreign Affairs may make assurance about such conditions, provided that the said conditions will not be detriment to the sovereignty, security or public interest of the People’s Republic of China. If the requested state explicitly states that the assurance made by the foreign liaison authority is sufficient and effective, the assurance may also be made by the foreign liaison authority. It shall be the Supreme People’s Procuratorate to decide whether to make assurance about restricted prosecution and the Supreme People’s Court on whether to make assurance on sentencing.

The relevant authorities shall be bound by the assurance made when pursuing the criminal liability of a person involved in the case concerned.

Article 12 After receiving from the foreign state a notification or results of execution of the requested legal assistance, the foreign liaison authorities shall forward the said notification or results to or inform the relevant competent authority in a timely manner.

Where a foreign state requests information on the result of the criminal proceeding for which it has provided legal assistance in criminal matters, the foreign liaison authorities shall forward the said request to the competent authority for handling.

 

Section 2 Requesting Mutual Legal Assistance in Criminal Matters from the People’s Republic of China

 

Article 13 Where a foreign state makes a request to the People’s Republic of China for mutual legal assistance in criminal matters, it shall file a written request in accordance with provisions of the relevant treaty on mutual legal assistance in criminal matters, if any. In the absence of such treaty or relevant clauses in the said treaty, it shall specify the following items in the written request and attach relevant materials:

(1) Name of the organ that makes the request;

(2) Nature of the case, basic information on the person(s) involved in the case, and facts in the charge(s);

(3) Provisions of law applicable to the case;

(4) Requested matters and purpose(s) of the request;

(5) Connections between requested matters and the case;

(6) Timeline expected for executing the requested assistance; and

(7) Other information necessary or additional requirements.

In the absence of a treaty on mutual legal assistance in criminal matters, the requesting state shall give an assurance of reciprocity.

A Chinese translation of the written request and supporting materials shall be attached.

Article 14 A request for mutual legal assistance in criminal matters made by a foreign state to the People’s Republic of China may be refused under any of the following circumstances:

(1) The act against which the request is made would not constitute a crime according to laws of the People’s Republic of China;

(2) By the time the request is received, the crime against which the request is made is already subject to inspection, investigation, prosecution or trial within the territory of the People’s Republic of China, or in respect of it a judgment has been rendered and become effective, criminal proceedings have been terminated, or it could no longer be prosecuted by reason of lapse of time;

(3) The request relates to a political offence;

(4) The request relates to a purely military offence;

(5) The request is made for the purpose of inspecting, investigating, prosecuting, trying or enforcing the punishment on a person based on his race, ethnicity, religion, nationality, gender, political opinions or identity, among others, or that person may be subject to unfair treatment for the aforesaid reasons;

(6) The assistance requested has no substantial connection with the relevant case; and

(7) Other circumstances where the request may be rejected.

Article 15 Upon receiving a foreign state’s request for mutual legal assistance in criminal matters, the foreign liaison authorities shall examine the written request and supporting materials and, where relevant requirements in form and contents are satisfied, forward them to the competent authority for handling, as division of functions provides. If their form and contents fail to satisfy requirements, the requesting state may be requested to supplement supporting materials or resubmit a request.

For a request for mutual legal assistance in criminal matters which evidently impairs the sovereignty, security or public interest of the People’s Republic of China, the foreign liaison authorities may refuse it directly.

Article 16 Upon receiving a written request for mutual legal assistance in criminal matters and supporting materials forwarded by the foreign liaison authorities, the competent authority shall examine and proceed with one of the following:

(1) Where the competent authority, in accordance with provisions of this Law and the treaty on mutual legal assistance in criminal matters, deems that it can assist as requested, it shall decide as such and assign it to the relevant organ.

(2) Where the competent authority, in accordance with Article 4 or 14 of this Law or the treaty on mutual legal assistance in criminal matters, deems that it should, in whole or in part, refuse the request for assistance, it shall return the written request and supporting materials to the foreign liaison authorities and provide reasons for such refusal.

(3) Where the competent authority has confidentiality requirements for or attaches other conditions to, execution of the requested assistance, it shall put forward such requirements or conditions to the foreign state through the foreign liaison authorities and, if the foreign state accepts such conditions and gives a written assurance, decide to execute the requested assistance under the attached conditions.    (4) Where the competent authority deems that supporting materials shall be supplemented, it shall notify the foreign liaison authorities in writing that the requesting state shall provide such materials within a reasonable time.

Where the competent authority deems that execution of the requested assistance may obstruct the ongoing inspection, investigation, prosecution, trial or enforcement by a relevant authority of the People’s Republic of China, it may decide to postpone the assistance. Notification of such decision and its reasons shall be made in writing to the foreign liaison authorities.

Where a foreign state has raised confidentiality requirements or other particular procedural requirements for execution of its request, the competent authority may arrange as such, provided that the basic principles of laws of the People’s Republic of China are not violated.

Article 17 The organ handling a case in relation to which a foreign state has made a request for mutual legal assistance shall, upon receiving the assignment from the competent authority, execute the requested assistance in accordance with law, and report the results or circumstances that have obstructed execution to the competent authority in a timely manner.

In the course of executing the requested assistance, the relevant organ shall protect the lawful rights and interests of the parties and other persons involved and personal information.

Article 18 Where a foreign state requests to use the evidentiary materials obtained through mutual legal assistance in criminal matters for purposes other than the case in relation to which the request was made, the foreign liaison authorities shall forward the request to the competent authority to decide.

Article 19 Upon receiving notification or results of execution from the competent authority, the foreign liaison authorities shall forward it to or inform the requesting state in a timely manner.

For cases where legal assistance in criminal matters has been provided by the People’s Republic of China, the competent authority may, through the foreign liaison authorities, request the foreign state to notify results of the relevant litigation.

Upon receiving notification of results of litigation from a foreign state, the foreign liaison authorities shall forward relevant materials to or inform the competent authority in a timely manner. Where a criminal lawsuit has been filed against a citizen of the People’s Republic of China, such notification shall be made to the Ministry of Foreign Affairs too.

Chapter III Service of Documents

 

Section 1 Requesting a Foreign State to Serve Documents

 

Article 20 Where the organ handling a case needs assistance from a foreign state in serving a summons, a notice, an indictment, a written judgment or any other judicial documents, it shall prepare a written request for mutual legal assistance in criminal matters with relevant materials attached, which shall, after being examined and approved by the competent authority to which it is subordinate, be filed with the foreign state by the foreign liaison authorities in a timely manner.

Article 21 For a written request to a foreign state for serving documents, it shall indicate the name or title of the recipient, the address for service of documents and the relevant rights and obligations of which the recipient shall be informed at the service.

 

Section 2 Requesting the People’s Republic of China to Serve Documents

 

Article 22 A foreign state may request the People’s Republic of China to assist in serving a summons, a notice, an indictment, a written judgment and other judicial documents. Such assistance by the People’s Republic of China in serving judicial documents does not constitute a recognition of the legal validity of the relevant judicial document from the foreign state.

A foreign state’s request for assistance in serving a summons shall be made within the time limit specified in the relevant treaty, if any. In the absence of such treaty or relevant clauses in the said treaty, the request shall be filed no later than three months before the court hearing starts.

The People’s Republic of China is under no obligation to assist in serving summons requiring its citizen(s) to be interrogated or appear in court as defendant.

Article 23 Where a foreign state requests the People’s Republic of China to serve documents, the written request shall indicate the name or title of the recipient, the address for service of documents and the relevant rights and obligations of which the recipient shall be informed at the service.

Article 24 The people’s court or any other organ handling the relevant case that is responsible for assisting in the service of documents shall, in a timely manner, inform the foreign liaison authorities of the result of execution through the competent authority to which it is subordinate. The foreign liaison authorities shall then inform the requesting state, attaching the receipt of service or other documents of proof signed by the recipient, except when the service was not possible.

 

 

Chapter IV Investigation and Evidence Collection

 

Section 1 Requesting a Foreign State to Conduct Investigation and Collect Evidence

 

Article 25 Where the organ handling a case needs assistance from a foreign state in investigation and evidence collection on any of the following matters, it shall prepare a written request for mutual legal assistance in criminal matters with relevant materials attached, which shall, after being examined and approved by the competent authority to which it is subordinate, be filed with the foreign state by the foreign liaison authorities in a timely manner.

(1) Search and identification of relevant persons;

(2) Inquiry and verification of information on property involved in a case and financial accounts;

(3) Obtainment and provision of testimonies or statements by relevant persons;

(4) Obtainment and provision of documents, records, electronic data and articles;

(5) Obtainment and provision of expert opinions;

(6) Investigation or inspection of places, articles, persons and corpses;

(7) Search of persons, articles, residences and other relevant places; and

(8) Others.

For a request to a foreign state for assistance in investigation and evidence collection, the organ handling the case and making such request may include that its person(s) be present when the request is executed.

Article 26 Where a request for assistance in investigation and evidence collection is made to a foreign state, the written request and the attached materials shall indicate the following, when necessary:

(1) Name, gender, address, identity and contact information of the person under investigation and other materials that can help identify him;

(2) List of questions to be raised to the person under investigation;

(3) Name, gender, address of residence, identity and contact information, features of appearance and behaviour of the person who needs to be found or identified, and other materials that can help with the search or identification;

(4) Ownership, location, characteristics, appearance, quantity and other specific information of the property that needs to be inquired about or verified, or information on the financial accounts that need to be consulted or verified;

(5) Holder, location, characteristics, appearance, quantity and other specific information about the documents, records, electronic data and articles that need to be obtained;

(6) Specific information on what needs to be assessed by an expert witness;

(7) Specific information on places and articles, among others, which need to be investigated or inspected;

(8) Specific information on what needs to be searched; and

(9) Other materials that can help with execution of the request.

Article 27 Where the requested state asks evidentiary materials or articles provided to be returned, the organ handling the case shall return them through the foreign liaison authorities as soon as possible.

 

Section 2 Requesting the People’s Republic of China to Conduct Investigation and Collect Evidence

 

Article 28 A foreign state may request the People’s Republic of China to assist in investigation and evidence collection, as specified in Paragraph 1 of Article 25 of this Law.

Where a foreign state requests the People’s Republic of China to conduct investigation and collect evidence, the written request and attached materials shall indicate items as specified in Article 26 of this Law, where necessary.

Article 29 Where a foreign state requests assistance from the People’s Republic of China in investigation and evidence collection, it may include that its person(s) be present when the request is executed. Any such person permitted to be present shall abide by laws of the People’s Republic of China and follow arrangements by the competent authority and the organ handling the case.

Article 30 Where the requesting state makes an assurance about returning evidentiary materials or articles provided to it, as sought by the organ handling the case, the latter may decide to provide as requested.

 

 

Chapter V Facilitating Witnesses to Testify or Assist in Investigation

 

Section 1 Requesting a Foreign State to Facilitate a Witness to Testify or Assist in Investigation

 

Article 31 Where the organ handling a case needs assistance from a foreign state to arrange for a witness or expert witness to testify in the People’s Republic of China, testify by making video and audio records or assist in investigation, it shall prepare a written request for mutual legal assistance in criminal matters with relevant materials attached, which shall, after being examined and approved by the competent authority to which it is subordinate, be filed with the foreign state by the foreign liaison authorities in a timely manner.

Article 32 Where a request is made to a foreign state to arrange for a witness or expert witness to testify or assist in investigation, the written request and materials attached shall indicate the following, where necessary:

(1) Name, gender, address, identity and contact information of the witness or expert witness and other materials that can help identify him;

(2) Purpose, necessity, time, place and other information about the requested testifying or assistance in investigation;

(3) Rights and obligations of the witness or expert witness;

(4) Measures to protect the witness or expert witness;

(5) Allowances to be granted to the witness or expert witness; and

(6) Other materials that can help with execution of the request.

Article 33 A crime committed by a witness or expert witness requested to come to the People’s Republic of China to testify or assist in investigation before his entry shall not be subject to prosecution before he departs.  His personal freedom shall not be restricted either, unless he commits an offence after entry, in relation to which compulsory measures have been taken.

The preceding paragraph shall cease to apply, where the witness or expert witness fails to depart within the time limit prescribed in the relevant treaty or within 15 days from the day when he notified of no need for further stay, unless the overstay is due to force majeure or other extraordinary reasons.

Article 34 The organ handling the case in relation to which a request has been made shall, in accordance with law, grant allowances to the witness or expert witness who comes to the People’s Republic of China to testify or assist in investigation.

Article 35 Where a person requested to come to the People’s Republic of China to testify or assist in investigation is a detainee, the foreign liaison authorities shall, in conjunction with the relevant competent authority, reach an agreement with the requested state in advance on matters relating to the transfer of the detainee.

The competent authority and the organ handling the case shall abide by the said agreement, including taking the transferred person into custody in accordance with law and transferring the detainee back to the requested state in a timely manner after completion of the requested testifying or assistance in investigation.

 

Section 2 Requesting the People’s Republic of China to Facilitate Witnesses to Testify or Assist in Investigation

 

Article 36 A foreign state may request assistance from the People’s Republic of China in arranging for a witness or expert witness to testify in the foreign state,  testify by making video or audio records or assist in investigation.

Where a foreign state requests the People’s Republic of China to arrange for a witness or expert witness to testify or assist in investigation, the written request and  attached materials shall indicate items specified in Article 32 of this Law, where necessary.

The requesting state shall make a written assurance on treatment accorded to the relevant witness or expert witness, as prescribed in Paragraph 1 of Article 33 of this Law.

Article 37 Where a witness or expert witness agrees with a written consent to testify or assist in investigation as requested, the organ handling the case shall, through the competent authority to which it is subordinate, notify in a timely manner the foreign liaison authorities of his agreement, requirements and conditions, who shall then notify the requesting state accordingly.

Where a witness or expert witness is arranged to testify by making video or audio records, the competent authority or the organ handling the case shall dispatch its own person(s) to be present. Any impairment of the sovereignty, security or public interest of the People’s Republic of China or violation of basic principles of laws of the People’s Republic of China during the recording shall be ceased immediately.

Article 38 Where a foreign state requests transfer of a detainee to testify or assist in investigation abroad and makes assurance to send him back in a timely manner after the completion of the requested testifying or assistance in investigation, the foreign liaison authorities shall solicit opinions of the competent authority and the said detainee. If both the competent authority and the detainee agree, the foreign liaison authorities shall, in conjunction with the relevant competent authority, reach an agreement with the requesting state in advance on matters relating to the transfer of the detainee.

The period of detainment abroad in the course of such assistance shall be subtracted from the duration of imprisonment imposed on the detainee from the People’s Republic of China.

Chapter VI Seizure, Impoundment and Freezing of Property Involved in a Case

 

Section 1 Requesting a Foreign State to Seize, Impound or Freeze Property Involved in a Case

 

Article 39 Where the organ handling a case needs assistance from a foreign state to seize, impound or freeze property involved in the case, it shall prepare a written request for mutual legal assistance in criminal matters with relevant materials attached, which shall, after being examined and approved by the competent authority to which it is subordinate, be filed with the foreign state by foreign liaison authorities in a timely manner.

Where a foreign state has raised a special requirement for execution of the request made by the People’s Republic of China for assistance in seizing, impounding or freezing property involved in a case, such requirement may be approved provided that it is not against basic principles of laws of the People’s Republic of China. Where the relevant decision needs to be made by the judicial authority, it shall be the people’s court to make such decision.

Article 40 Where a request is made to a foreign state to seize, impound or freeze property involved in a case, the written request and attached materials shall indicate the following, when necessary:

(1) Proof of ownership, name, characteristics, appearance, quantity and other information of the property involved in the case that is requested to be seized, impounded or frozen;

(2) Location of the property involved in a case that is requested to be seized, impounded or frozen. For funds or other financial assets deposited in a financial institution, name and address of the said financial institution and account information shall be specified;

(3) A duplicate of relevant legal documents;

(4) Legal provisions on seizure, impoundment and freezing and protection of rights of parties of interest; and

(5) Other materials that can help with execution of the request.

Article 41 Where a foreign state’s continued seizure, impoundment or freezing of the relevant property involved in a case is necessary after the period determined by the foreign state expires, the organ handling the case shall make a new request.

Where the organ handling the case decides to remove the seizure, impoundment or freezing, it shall notify the requested state in a timely manner.

 

Section 2 Requesting the People’s Republic of China to Seize, Impound or Freeze Property Involved in a Case

 

Article 42 A foreign state may request the People’s Republic of China to assist in seizing, impounding or freezing property involved in a case which is located within the territory of the People’s Republic of China.

Where a foreign state requests the People’s Republic of China to seize, impound or freeze property involved in a case, the written request and attached materials shall indicate items specified in Article 40 of this Law, where necessary.

Article 43 Where the competent authority deems upon examination that the following conditions are met, it may approve the seizure, impoundment or freezing requested, and arrange for execution by the relevant organ:

(1) The seizure, impoundment or freezing requested meets the conditions prescribed in laws of the People’s Republic of China;

(2) The seizure, impoundment or freezing requested is relevant to inspection, investigation, prosecution or trial of a criminal case being proceeded in the requesting state;

(3) The property in relation to which a request has been made can be seized, impounded or frozen;

(4) Execution of the request would not be detrimental to the lawful rights and interests of a party of interest; and

(5) Execution of the request would not affect an on-going inspection, investigation, prosecution, trial or execution by an authority in the People’s Republic of China.

The organ handling the case shall, through the competent authority and in a timely manner, notify the foreign liaison authorities of the result of the requested seizure, impoundment or freezing, who shall then inform the requesting state. Where necessary, the organ handling the case may, in accordance with law, take measures to dispose of the seized, impounded or frozen property.

Article 44 Where a foreign state deems it necessary to continue seizing, impounding or freezing the relevant property after the determined period of seizure, impoundment or freezing, it shall make a new request to the foreign liaison authorities.

Where the foreign state decides to remove the seizure, impoundment or freezing requested, the foreign liaison authorities shall, through the competent authority, notify the organ handling the case of such decision and to remove accordingly in a timely manner.

Article 45 Where a party of interest holds objection to the seizure, impoundment or freezing to be executed, and the organ handling the case deems upon examination that the seizure, impoundment or freezing requested does not meet the conditions prescribed in Paragraph 1 of Article 43 of this Law, it shall submit a request to the competent authority to remove such seizure, impoundment or freezing. It shall be for the competent authority to decide on the said request and, if granted, notify the foreign liaison authorities, who shall then inform the requesting state. Where objection is raised on handling of the relevant case, the organ handling the case may, through the competent authority to which it is subordinate, forward it to the foreign liaison authorities, who shall then raise it to the requesting state.

Article 46 Where the lawful rights and interests of a party of interest have been impaired as a result of inappropriate seizure, impoundment or freezing caused by the requesting state, the organ handling the case may, through the foreign liaison entities, demand the requesting state to assume the liability of compensation.

 

 

Chapter VII Confiscation and Return of Proceeds of Crime and Other Property Involved in a Case

 

Section 1 Requesting a Foreign State to Confiscate or Return Proceeds of Crime and Other Property Involved in a Case

 

Article 47 Where the organ handling a case needs assistance from a foreign state to confiscate proceeds of crime and other property involved in a case, it shall prepare a written request for mutual legal assistance in criminal matters with relevant materials attached, which shall, after being examined and approved by the competent authority to which it is subordinate, be filed with the foreign state by foreign liaison authorities in a timely manner.

A request for a foreign state returning the proceeds of crime and other property involved in a case to the People’s Republic of China or the victim(s) of the case may be made along with the request for confiscation or separately.

Where a foreign state has raised a special requirement for returning the proceeds of crime and other property involved in a case that has been seized, impounded or frozen as requested, such requirement may be approved provided that it is not against basic principles of laws of the People’s Republic of China. Where the relevant decision needs to be made by the judicial authority, it shall be the people’s court to make such decision.

Article 48 Where a request is made to a foreign state to confiscate or return proceeds of crime and other property involved in a case, the written request and attached materials shall indicate the following, where necessary:

(1) Name, characteristics, appearance, quantity and other information of the proceeds of crime and other property involved in the case that is requested to be confiscated or returned;

(2) Location of the proceeds of crime and other property involved in the case that is requested to be confiscated or returned. For funds or other financial assets deposited in a financial institution, name and address of the said financial institution and account information shall be specified;

(3) Grounds for confiscation or return and the relevant proof of ownership;

(4) A duplicate of relevant legal documents;

(5) Legal provisions on confiscation and return and protection of rights of parties of interest; and

(6) Other materials that can help with execution of the request.

Article 49 Where a foreign state assists in the confiscation or return of proceeds of crime and other property involved in a case as requested, it shall be for the foreign liaison authorities to, in conjunction with the competent authority, negotiate with the foreign state on  transfer of the relevant property.

Where a foreign state requested to assist in confiscating or returning proceeds of crime and other property involved in a case demands a share therein, it shall be for the foreign liaison authorities, in conjunction with the competent authority, to negotiate with the foreign state to determine on the amount or proportion.

 

Section 2 Requesting the People’s Republic of China to Confiscate or Return Proceeds of Crime and Other Property Involved in a Case

 

Article 50 A foreign state may request the People’s Republic of China to assist in confiscating or returning proceeds of crime and other property involved in a case.

Where a foreign state requests the People’s Republic of China to assist in confiscating or returning proceeds of crime and other property involved in a case, the written request and attached materials shall indicate items specified in Article 48 of this Law, where necessary.

Article 51 Where the competent authority deems upon examination that the following conditions are met, it may approve the requested assistance in confiscating proceeds of crime and other property involved in a case, and arrange for execution by the relevant organ:

(1) The requested confiscation of proceeds of crime and other property involved in a case meets the conditions prescribed in laws of the People’s Republic of China;

(2) Relevant rights of parties of interest are under full protection by the foreign state;

(3) Property is available in the People’s Republic of China for execution;

(4) The written request and attached materials make a detailed description of the ownership, name, characteristics, appearance, quantity and other information of the property in relation to which the request is made;

(5) The confiscation requested cannot be executed or fully executed in the requesting state; and

(6) Other conditions that shall be met in the opinion of the competent authority.

Article 52 A request made by a foreign state for assistance in confiscating proceeds of crime and other property involved in a case may be refused under any of the following circumstances, about which reasons shall be explained:

(1) Judicial authority of the People’s Republic of China or a third state has rendered an effective judgment on the property in relation to which a request has been made, and the judgment has been or is being executed;

(2) The property in relation to which a request has been made does not exist, is damaged, lost, sold or transferred, which makes it impossible to execute the request, except where the request is for confiscation of the property sold or transferred;

(3) The person in relation to which a request has been made still has outstanding debt or is involved in a pending lawsuit within the territory of the People’s Republic of China; and

(4) Any other circumstances under which a request may be refused.

Article 53 Where a foreign state requests the return of proceeds of crime and other property involved in a case and has provided reliable and sufficient evidence, the competent authority may approve such request and arrange for execution by the relevant organ if it deems upon examination that the conditions prescribed in laws of the People’s Republic of China are met. Prior to the return, the organ handling the case may deduct a reasonable amount of expenses incurred from executing the request.

Article 54 Where a foreign state requests assistance in confiscating or returning proceeds of crime and other property involved in a case, the foreign liaison authorities may, in conjunction with the competent authority, demand a share therein. It shall be for the foreign liaison authorities, in conjunction with the competent authority, to negotiate with the foreign state to determine on the exact amount or proportion.

Chapter VIII Transfer of Sentenced Persons

 

Section 1 Transfer of Sentenced Persons to a Foreign State

 

Article 55 A foreign state may request the People’s Republic of China for transferring back to that state a sentenced person of its nationality; the People’s Republic of China may request a foreign state for transferring back to that state a sentenced person of its nationality.

Article 56 Transfer of any sentenced person to a foreign state shall comply with the following conditions:

(1) The sentenced person is a national of that state;

(2) The conduct on account of which the criminal penalty was imposed against the sentenced person also constitutes a crime in accordance with laws of that state;

(3) The judgment imposing criminal penalty on the sentenced person has come into legal force;

(4) The sentenced person consents in writing to the transfer, or where the agent of the sentenced person consents in writing to the transfer where the sentenced person’s age, physical, mental or other conditions make it really necessary for the agent to give consent on behalf of the sentenced person;

(5) Both the People’s Republic of China and the foreign state agree to the transfer.

A request for transfer may be refused under any of the following circumstances:

(1) The sentenced person is sentenced to death with a suspension of execution or to life imprisonment, except that such penalty has been commuted to fixed-term imprisonment by the time of the request;

(2) The remaining duration of imprisonment to be served by the sentenced person is less than one year by the time of the request;

(3) The sentenced person is a party to a pending lawsuit within the territory of the People’s Republic of China; and

(4) Other circumstances under which the transfer is inappropriate.

Article 57 For  transfer of a sentenced person to a foreign state, the written request and attached materials shall specify the following particulars as needed:

(1) Name of the organ that makes the request;

(2) Name, gender, nationality, identity and other information of the sentenced person whose transfer has been requested;

(3) The place where the sentenced person serves the sentence;

(4) The legal basis and grounds for requesting the transfer;

(5) A written statement of the sentenced person or his agent consenting to the transfer; and

(6) Other matters.

Article 58 The competent authority shall verify the willingness of the sentenced person to be transferred. Where a foreign state requests to dispatch personnel to verify such willingness of a sentenced person, the competent authority may make arrangements therefor.

Article 59 Where a foreign state requests the People’s Republic of China for transferring a sentenced person, or the competent authority deems it necessary to request a foreign state for transferring a sentenced person, the competent authority shall, in conjunction with competent departments involved, decide whether or not to approve the request from the foreign state or whether or not to request to the foreign state for transferring a sentenced person. Where a decision is made on approving the transfer request of a foreign state, the foreign liaison authority shall notify the requesting state and the sentenced person in writing.

Article 60 The transfer of a sentenced person shall be executed by a criminal penalty enforcement organ designated by the competent authority. The time, place and form of the transfer and other related matters shall be determined by the competent authority through consultation with the foreign state.

Article 61 Where, after being transferred, a sentenced person files an appeal against the original binding judgment, such appeal shall be filed with the people’s court with jurisdiction in the People’s Republic of China.

Where the people’s court modifies or revokes the original judgment, it shall notify the relevant foreign state in a timely manner.

 

Section 2 Transfer of Sentenced Persons to the People’s Republic of China

 

Article 62 The People’s Republic of China may request a foreign state for transferring back to China a sentenced person of Chinese nationality, and a foreign state may request the People’s Republic of China for transferring back to China a sentenced person of Chinese nationality. Relevant provisions of Section 1 of this Chapter shall apply, mutatis mutandis, to the specific conditions and procedures for such transfer.

Article 63 After a sentenced person is transferred back to China, the competent authority shall designate a criminal penalty enforcement organ to take him into custody first.

Article 64 The people’s procuratorate shall prepare a written application for conversion of criminal penalty with the relevant materials attached, and submit the same to the intermediate people’s court at the place of the enforcement organ for an order on conversion of criminal penalty.

The people’s court shall, based on the finding of facts in the judgment of the foreign court, issue an order on conversion of criminal penalty in accordance with the Criminal Law of the People’s Republic of China. Where the nature and duration of the criminal penalty imposed by the foreign court conform to relevant provisions of laws of the People’s Republic of China, the conversion shall be made according to the criminal penalty imposed by the foreign court and its duration. Where the nature and duration of criminal penalty imposed by the foreign court do not conform to provisions of laws of the People’s Republic of China, the category and duration of the converted criminal penalty shall be determined according to the following principles:

(1) The converted criminal penalty shall, as far as possible, correspond with the criminal penalty imposed by the foreign court.

(2) The converted criminal penalty shall be no more severe than that imposed by the foreign court in terms of nature or duration, nor exceed the maximum duration of the imprisonment prescribed in the Criminal Law of the People’s Republic of China for the same category of crimes.

(3) A criminal penalty of deprivation of liberty shall not be converted into a property penalty.

(4) The converted criminal penalty shall not be bound by the minimum duration of imprisonment prescribed in the Criminal Law of the People’s Republic of China for the same category of crimes.

Where a sentenced person had been in custody before he or she was transferred back to China to serve the rest of his or her sentence, each day spent in such custody shall be deducted from the duration of imprisonment after conversion.

The order issued by the people’s court on conversion of criminal penalty shall be final.

Article 65 The criminal penalty enforcement organ shall, according to the order on conversion of criminal penalty, take into custody the sentenced person who has been transferred back to China so as to enforce the rest of the penalty. Enforcement of his or her criminal penalty and, where applicable, commutation, parole and temporary service of a sentence outside an incarceration facility, among others, shall be proceeded in accordance with laws of the People’s Republic of China.

Article 66 Where a sentenced person, after being transferred back to China, files an appeal against the judgment rendered by the foreign court, such appeal shall be filed with a foreign court with jurisdiction.

 

Chapter IX Supplementary Provisions

 

Article 67 This Law shall apply, mutatis mutandis, to mutual legal assistance in criminal matters between the People’s Republic of China and relevant international organisations.

Article 68 Requests for mutual legal assistance in criminal matters presented to the People’s Republic of China, and documents and evidentiary materials provided at the request of the People’s Republic of China shall be notarised and legalised in accordance with provisions of the relevant treaty. In the absence of such clauses in the said treaty or a treaty between the two states, it shall be handled under the principle of reciprocity.

Article 69 For the purpose of this Law, “treaties on mutual legal assistance in criminal matters” shall mean the treaties on mutual legal assistance in criminal matters, the treaties on transfer of sentenced persons, and other treaties containing such clauses on mutual legal assistance in criminal matters or transfer of sentenced persons, which have been concluded between or jointly acceded to by the People’s Republic of China and a foreign state.

Article 70 This Law shall be effective as of the date of promulgation.

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