中华人民共和国刑事诉讼法（三）

Article 105 Trials of cases of first instance in the basic and intermediate people's courts shall be conducted by a collegial panel composed of one judge and two people's assessors， except for cases of private prosecution and other minor criminal cases which may be tried by a single judge alone.

Trials of cases of first instance in the higher people's courts or the Supreme People's Court shall be conducted by a collegial panel composed of one to three judges and two to four people's assessors.

When performing their functions in the people's courts， the people's assessors shall enjoy equal rights with the judges.

Trials of appealed and protested cases in the people's courts shall be conducted by a collegial panel composed of three to five judges.

The president of the people's court or the chief judge of a division shall designate one judge to be the presiding judge of the collegial panel. If the president of the court or the chief judge of a division participates in a trial， be himself shall serve as the presiding judge.

Article 106 If opinions differ when a collegial panel conducts its deliberations， the minority should yield to the majority， but the opinion of the minority shall be entered in the records. The records of the deliberations shall be signed by the members of the collegial panel.

Article l07 All major or difficult cases that the president of the court believes should be referred to the judicial committee shall be submitted by him to the judicial committee for discussion and decision. The collegial panel shall execute the decisions of the judicial committee.

Chapter II Procedure of First Instance

Section 1 Cases of Public Prosecution

Article 108 After a people's court has examined a case in which public prosecution was initiated， it shall decide to open the court session and try the case， if the facts of the crime are clear and the evidence sufficient； it may remand the case to the people's procuratorate for supplementary investigation， if the main facts are not clear and the evidence insufficient； it may ask the people's procuratorate to withdraw its prosecution， if no criminal punishment is necessary.

Article 109 When necessary， a people's court may conduct inquests， examination， searches， seizures and expert. evaluations.

Article 110 After a people's court has decided to open a court session， it shall proceed with the following work：

（1） to determine the members of the collegial panel；

（2） to deliver to the defendant a copy of the bill of prosecution of the people's procuratorate no later than seven days before the opening of the court cession and inform the defendant that be may appoint a defender or， when accessory， designate defender for him；

（3） to notify the people's procuratorate of the time and place of the court cession three days before the opening of the session；

（4） to summon the parties and notify the defenders， witnesses， expert witnesses and interpreters， and deliver the summons and notices no later than three days before the opening of the count session； and

（5） to announce in advance the subject matter of any case to be heard in public， the name of the defendant and the time and place of the court session.

The circumstances of the above mentioned proceedings shall be entered in the written record， which shall be signed by the judicial personnel and the court clerk.

Article 111 Cases of first instance in a people's court shall be heard in public. However， cases involving state secrets or the private affairs of individuals shall not be beard in public.

No cases involving crimes committed by minors who have reached the age of 14 but not the age of 16 shall be heard in public. Generally， cases involving crimes committed by minors who have reached the age of 16 but and the age of 18shall also not be heard in public.

The reason for not hearing a case in public shall be announced in court.

Article 112 When a case of public prosecution is being tried in a people's court， the people's procuratorate shall send its personnel to the court to support the public prosecution， unless the criminal act is relatively minor and the people's court has agreed to forgo such personnel. If a member of the procuratorial personnel attending a court session discovers any illegalities during the proceedings， he shall have the right to suggest corrections to the court.

Article 113 When a court session opens， the presiding judge shall ascertain if all the parties have appeared in court and announce the subject matter of the case. He shall announce the roll， naming the members of the collegial panel， the court clerk， the public prosecutor， the defender， the expert witnesses and the interpreter ； be shall inform the parties of their right to ask any member of the collegial panel， the court clerk， the public prosecutor， any expert witnesses or the interpreter to withdraw； and he shall inform the defendant of his right to defence.

Article 114 After the public prosecutor has read out the bill of prosecution in court， the judicial personnel shall begin to question the defendant.

With the permission of the presiding judge， the public prosecutor may interrogate the defendant.

After the judicial personnel have questioned the defendant and with the permission of the presiding judge， the victim as well as the plaintiff and defender in an incidental civil action may put questions to the defendant.

Article 115 When questioning a witness， the judicial personnel and the public prosecutor shall instruct the witness to give testimony truthfully and explain to him the legal responsibility that shall be incurred for intentionally giving false testimony or concealing criminal evidence. The parties and the defenders may request the presiding judge to question the witnesses or expert witnesses， or ask the presiding judge's permission to put their own questions directly. If he presiding judge considers any questioning irrelevant to the case， he shall put a stop to it.

Article 116 The judicial personnel shall show the material evidence to the defendant for him to identify. The records of testimony of witnesses who are not present in court， the conclusions of the expert witnesses， the records of inquests and other documents serving as evidence shall be read out in court， and the opinions of the parties and the defenders shall be heard.

Article 117 During a court hearing， the parties and the defenders shall have the right to request new witnesses to be summoned， new material evidence to be collected， a new expert evaluation to be made， and another inquest to be held.

The court shall make a decision whether to grant the above mentioned requests.

Article 118 After an inquiry has been held in the courtroom， the public prosecutor and the victim shall speak； then the defendant shall make a statement and defend himself； and the defender shall conduct the defence； in addition， the participants may debate with each other. After the presiding judge has declared the conclusion of the debate， the defendant shall have the right to present a final statement.

Article 119 If any participant in the proceedings of a trial violates the order of the courtroom， the presiding judge shall warn him to desist； if the circumstances are serious， the presiding judge may order him to leave the courtroom or investigate their criminal responsibility according to law.

Article 120 After a defendant makes his final statement the presiding judge shall announce an adjournment； the collegial panel shall conduct its deliberations and， on the basis of the established facts and evidence and in accordance with the relevant provisions of the law， render a judgment on the defendant's guilt or innocence， specifying the crime committed and the criminal punishment to be applied or exemption from criminal punishment as appropriate.

Article 121 In all cases， judgments shall be pronounced publicly.

If the judgment on a case is pronounced in court， a written judgment shall be delivered within five days to the parties and the people's procuratorate that initiated the public prosecution. In cases where the judgment is pronounced later on a fixed date， the written judgment shall be delivered immediately after the pronouncement to the parties and the people's procuratorate that initiated the public prosecution.

Article 122 The written judgment shall be signed by the members of the collegial panel and by the court clerk， and the time limit for appeal and the name of the appellate court shall be clearly indicated therein.

Article 123 A hearing may be postponed if during a trial one of the following circumstances affecting the conduct of a trial occurs：

（1） if it is necessary to summon new witnesses， collect new material evidence， make a new expert evaluation or hold another inquest；

（2） if members of the procuratorial personnel find that a case for which public prosecution has been initiated requires supplementary investigation， and they make a proposal to that effect；

（3） if the collegial panel considers the evidence of a case insufficient or discovers new facts， requiring it to either remand the case to the people's procuratorate for supplementary investigation or conduct its own inquiry； or

（4） if the trial cannot proceed because a party applies for the withdrawal of a judicial functionary.

Article 124 The court clerk shall make a written record of the entire court proceedings， which shall be examined by the presiding judge and then signed by him and the court clerk.

That portion of the courtroom record comprising the testimony of witnesses shall be read out in court or given to the witnesses to read. After the witnesses acknowledge that the record is free of error， they shall sign or affix their seals to it.

The courtroom record shall be given to the parties to read or shall be read out to them. If a party considers that there are omissions or errors in the record， he may request additions or corrections to be made. After the parties acknowledge that the record is free of error， they shall sign or affix their seals to it.

Article 125 A people's court shall pronounce judgment on a case of public prosecution within one month or， one and a half months at the latest， after accepting it for trial.

Section 2 Cases of Private Prosecution

Article 126 After examining a case of private prosecution， the people's court may handle it according to the conditions set forth below.

（1） If the facts of the crime are clear and the evidence sufficient， the case shall be tried at a court session.

（2） If the case requires public prosecution by a people's procuratorate， it shall be transferred to a people's procuratorate.

（3） In a case of private prosecution where criminal evidence is lacking， if the private prosecutor fails to present supplementary evidence and the people's court is unable to obtain the necessary evidence through investigation， the court shall persuade the private prosecutor to withdraw his prosecution or order its rejection.

（4） If the defendant's act does not constitute a crime， the people's court shall persuade the private prosecutor to with draw his prosecution or order its rejection.

Article 127 A people's court may conduct mediation in a case of private prosecution； the private prosecutor may arrange a settlement with the defendant or withdraw his prosecution before a judgment is pronounced.

Article 128 In the process of the proceedings， the defendant in a case of private prosecution may raise a counterclaim against the private prosecutor. The provisions governing private prosecutions shall apply to counterclaims.

Chapter III Procedure of Second Instance

Article 129 If a party or his legal representative refuses to accept a judgment or order of first instance of a local people's court at any level， he shall have the right to appeal in writing or orally to the people's court at the next higher level. Defenders or a defendant's near relatives may file appeals with the consent of the defendant.

A party to an incidental civil action or his legal representative may file an appeal against the portion of a judgment or order of first instance of the local people's courts that deals with the incidental civil action.

A defendant shall not be deprived on any pretext of his right to appeal.

Article 130 If a local people's procuratorate considers that there is some definite error in a judgment or order of first instance of a people's court at the same level， it shall present a protest to the people's court at the next higher level.

Article 131 The time limit for an appeal or a protest against a judgment shall be ten days and the time limit for an appeal or a protest against an order shall be five days； the time limit shall be counted from the day after the written judgment or order is received.

Article 132 If a party files an appeal through the people's court which originally tried a case， the people's court shall within three days transfer the petition of appeal together with the case file and the evidence to the people's court at the next higher level； at the same time it shall deliver duplicates of the petition of appeal to the people's procuratorate at the same level and to the other parties.

If a party files an appeal directly to the people's court of second instance， that people's court shall within three days transfer the petition of appeal to the people's court which originally tried the case， for delivery to the people's procuratorate at the same level and to the other parties.

Article 133 If a local people's procuratorate protests against a judgment or order of first instance of the people's court at the same level， it shall present a written protest through the people's court which originally tried the case and send a copy of the written protest to the people's procuratorate at the next higher level. The people's court which originally tried the case shall transfer the written protest together with the case file and evidence to the people's court at the next higher level and shall deliver duplicates of the written protest to the parties.