Law of the People's Republic of China on International Mutual Legal Assistance in Criminal Matters
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 China on 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 China to 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 of China to 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 of China to 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 of China and 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 of Chinaor in violation of the basic principles of laws of the People's Republic of China. 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 of China and 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 of China and 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 of China and 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.