[The author]2008Years10Month13DayGuangdong Provincial Higher People's court had toGuangdong high method (2008)36No.Formulate

"Guangdong Provincial Higher People's Court on the guidance of incidental civil procedure to criminal case (for Trial Implementation)"Now, with2013The provisions of the criminal reconciliation program version of the code of criminal procedure, Guangdong provincial and provincial Procuratorate, the provincial public security department, the Provincial Justice Department formulate implementation opinions for reconciliation in the case of public prosecution that I think is timely, opinions in accordance with the criminal procedure law and the Ministry of public security provisions on the procedures for the handling of criminal cases, the provisions of the Supreme People's rules in criminal litigation shall be formulated, and be refined, and the performance and the parties mentioned, reconciliation, reconciliation in the agenda, and in the reconciliation regret about processing are proposed in accordance with the actual operation of the opinion, to fill these gaps. A practical and operational. Believe in resolving social conflicts, build a positive and effective role in the harmonious society, is also the lenient and severe criminal policy embodied in the judicial practice. The excerpts here, for the majority of lawyers in the actual case!

In the opinion of the other, "Criminal Procedure Law" and "the Ministry of public security management regulations" criminal cases, criminal reconciliation "content related part of the rules of criminal procedure to the supreme", to facilitate comparison.

 

On the issuance of "Guangdong Provincial Higher People's court, the people's Procuratorate, Guangdong Province, Guangdong Provincial Public Security Bureau, Guangdong Provincial Department of justice about in public prosecution cases applicable implementation opinions reconciliation (Trial)" notice

Guangdong high method[2012]44No.

The people's court, people's Procuratorate, Public Security Bureau, Justice Bureau, Guangzhou Railway Transportation Court, procuratorate, two public security bureau:

The higher people's Court of Guangdong Province, Guangdong Provincial People's Procuratorate, the Provincial Public Security Bureau, Guangdong Guangdong Provincial Department of justice about in public prosecution cases applicable implementation opinions reconciliation (Trial) "caused to you, please carry out seriously implement. The implementation and problems encountered, please the higher people's court, report province provincial people's Procuratorate, the provincial public security department, the Department of justice.

Notice is hereby given.

Guangdong Provincial Higher People's court

Guangdong Provincial People's Procuratorate

Guangdong Provincial Public Security Department

Guangdong Provincial Department of Justice

2013Years3Month18Day

 

Guangdong Provincial Higher People's court office            2013Years3Month25Issued by the

 

 

Guangdong Provincial Higher People's court, Guangdong Provincial People's Procuratorate, the Provincial Public Security Bureau, Guangdong Guangdong Provincial Department of justice about in public prosecution cases applicable implementation opinions reconciliation (Trial) "

Introduction

In order to solve social contradiction, restore the social relations damaged by crimes, and earnestly safeguard the legitimate rights and interests of victims in criminal cases as well as the other parties, and promoting social harmony and stability, to achieve social fairness and justice, according to the criminal law, criminal procedure law and the relevant judicial interpretation of the provisions, make the implementation opinions.

                              Basic meaning

Article 1The criminal reconciliation refers to in public prosecution cases, sincere repentance of criminal suspects and defendants, obtain the forgiveness of the victims through compensation, apology and so on, so that the victims voluntary reconciliation system.

                          Basic principle

Article second The criminal reconciliation should follow the principle of legal justice. The criminal reconciliation shall not violate the laws of the state, and shall not violate the social morality, and may not harm the state, the collective or other organization, the interests of citizens.

Article third The criminal reconciliation should follow the principle of equality and voluntary. Both parties involved in the process of reconciliation have equal status; both parties can be self reconciliation, reconciliation agreement can also accept the public security organs, people's Procuratorate, the people's court presided over, living in an agreement before exit reconciliation agreement; investigators, prosecutors, judges presided over the reconciliation should eliminate bitterness contradiction, to calm the conflict disputes to guide the parties, shall not impose undue influence on either side, they shall not use their powers to force any party accept settlement proposal, and signed the settlement agreement, nor in the terms of settlement situation, forcing any side exit reconciliation agreement.

Article fourth The criminal reconciliation should follow the principle of procedure guarantee. The application of the criminal reconciliation process must follow the relevant provisions of the criminal procedure law and its implementation rules; presided over the reconciliation of the investigators, prosecutors, judges must be in accordance with the above provisions to guide the parties reconciliation, ensure both parties obtain full and reconciliation information; any one party expressly exit and consultation, negotiation or conciliation has been unable to go on, presided over the reconciliation of the staff should give up and immediately, to legal procedures, and shall not delay the settlement on the grounds; the public security organs, people's Procuratorate, the people's court is responsible for examination by the settlement proposal its jurisdiction, and confirm the settlement agreement is valid; the settlement agreement a confirmation and settlement in accordance with the mode of settlement, the parties may not estoppel; hosted reconciliation to the initiative to accept the supervision of people's procuratorate departments, discipline inspection department of the unit and other oversight bodies.

                         Scope of application

    Article fifth   A criminal case must also meet the following conditions to start the reconciliation procedure:

    (a) the case facts are clear, indeed, sufficient evidence;

    (two) the criminal suspect or defendant voluntary confession, repentance;

    (three) the criminal suspect or the defendant and the victim both in equality, voluntary basis reconciliation.

    Article Sixth   Criminal reconciliation to the following cases:

    (a) because of love, marriage, family and neighborhood disputes and other civil disputes caused by involving criminal law the fourth chapter, the fifth chapter stipulated crime, may be sentenced to three years in prison following the penalty;

     (two) the malfeasance crime may be sentenced to prison outside the criminal negligence crime in seven years.

    Article seventh   The suspect, the defendant within five years had intentionally the crime, not the applicable criminal reconciliation.

                      The mention of reconciliation

    Article eighth   To comply with the provisions of article fifth, article sixth of the views of the public prosecution of criminal cases, the criminal suspect or the defendant and the victim may put forward for reconciliation, reconciliation application principle in writing; the public security organs, people's Procuratorate, the people's court or to the parties proposed reconciliation.

                        Reconciliation of the participants

    Article ninth   Death to the victim, his near relatives may and criminal suspects, defendants and. The victim has no capacity or with limited capacity, his legal representative, close relatives can provide reconciliation.

    The suspect, the defendant is limited capacity, its legal representative may for reconciliation. The defendant in custody during the same period, the criminal suspect, his legal representative, close relatives can provide reconciliation.

                          The agenda of reconciliation

    Article tenth    Both parties can negotiate a settlement matters, can also be made by a public security organ, the people's Procuratorate, the people's court presided over the mediation. The public security organs, people's Procuratorate, the people's court may entrust the people's mediation organizations and other social organizations hosted reconciliation.

The public security organ may choose hosted reconciliation in the office or the suspect in custody supervision place;

The people's procuratorates can choose hosted reconciliation in the office or the defendant's surveillance place of custody;

The people speak can choose hosted reconciliation in court or detain the defendant supervision place.

In the settlement process of consultation, should arrange the victim and criminal suspects and defendants, victims of direct communication, tell the mental pain suffered from the crime scene and material losses, crime condemned criminal suspects or defendants; encourage suspects or defendants caused to the other party for their actions harm, in the field of plea of repentance and apology apologize to the victim.

                   Review the settlement agreement

Article eleventh Both parties become reconciled, or in the public security organs, people's Procuratorate, the people's court presided over by a settlement agreement, which must be approved by the public security organs, people's Procuratorate, the people's court for the settlement agreement voluntary, legality. At the same time have the following situations, shall confirm the reconciliation agreement:

(a) the suspect, the defendant admitted his crimes, the facts of the crime accused no objection, sincere repentance;

(two) an apology to the victims of criminal suspects, defendants to apologize. If economic losses, in addition to the victim does not claim matters, criminal suspects, defendants and victims should be the amount of economic compensation, form and performance means consensus;

 (three) the victim expressly to give understanding to the suspect, the defendant, or the public security organs, people's procuratorates, to the people's court to the crime suspect, accused person punishment according to law.

The public security organs, people's Procuratorate, the people's court mediation agreement, presided over the production settlement agreement.

                   To fulfill the settlement agreement

Article twelfth  Harmonious agreement shall be determined according to the agreement to fulfill. Apology matters must be finished to perform in the settlement during negotiation. The agreed damages content, should fulfil immediately on both sides signed the agreement; it really difficult to one-time performance, in the victim's consent and provide effective guarantees circumstances, can the phased implementation. The suspect, the defendant can also claim payment temporarily handed over custody by the public security organs, people's Procuratorate, the people's court, the case to make the final decision after the authorities to the victim.

                         The legal effect of reconciliation

    Article thirteenth     Investigation by the public security organ to end to the prosecution case, think the views, such as a criminal reconciliation agreement and confirmation, can put forward to punish leniently legally suggestions to the people's procuratorate.

     Article fourteenth    The people's Procuratorate to the public security organs for prosecution, such as a criminal reconciliation agreement and confirmation, can put forward to lenient punishment suggestions to the people's court; for minor crimes, without penalty, can make the decision not to initiate a prosecution.

   Article fifteenth  The people's Procuratorate for examination to the public security organ with the case of the settlement agreement and the legal lenient treatment advice, do not agree with leniency suggested, the people's Procuratorate shall explain the reason for it, notify the public security organ at the same time.

   The public security organ agreed leniency suggested the people's Procuratorate's decision to not, think is wrong, may request the people's Procuratorate review.

Article sixteenth   The people's court for a criminal reconciliation agreement and confirmation, can according to the defendant lenient punishment.

Article seventeenth    On the basis of reconciliation agreement, the people's Procuratorate decide not to initiate a prosecution against the defendant in accordance with the law, the people's court according to law, the defendant lenient punishment, shall specify the settlement agreement in legal documents published in the main content as well as the reason not to prosecute or leniency.

               The regrets about processing

Article eighteenth   In the investigation stage, the settlement agreement is signed, one party or both parties renege or non-compliance with the agreement, the public security organ shall be deemed the settlement agreement is invalid, and the cases dealt with in accordance with the law. The parties in the non prosecution decision was made before the break, can be reached a settlement; can not be reconciled, the people's Procuratorate shall make a decision not to initiate a prosecution in accordance with the law to prosecute or. The parties back after the decision not to initiate a prosecution, the people's procuratorates do not cancel the original decision, except where there is voluntary, legal principles and scope of proof.

At the trial stage, one party or both parties signed the settlement agreement, decision, ruled that estoppel, the people's court no longer on the defendant leniency.

 The settlement agreement has been fulfilled, one party retracts, the people's court shall not support, but there is evidence that the settlement violates the voluntary, other than legal principles.

                     Supplementary articles

Article nineteenth This opinion issued since the date of implementation. There are inconsistent with the law, judicial interpretation, or the legal, judicial explanation of the new regulations, in accordance with the law, the judicial interpretation execution.

 

 

 

 

Provisions on the criminal reconciliation in the criminal procedure law:

 The fifth series The special procedure

The second chapterThe parties reconciliation in cases of public prosecution procedure

Article 277thThe following cases of public prosecution, sincere repentance of criminal suspects and defendants, obtain the forgiveness of the victims through compensation for the losses, such as an apology, victims voluntary conciliation, the parties may settle:

　　(A)Due to civil disputes, suspected of criminal law the fourth chapter, the fifth chapter stipulated crime, may be sentenced to three years in prison following the penalty;

　　(Two)In addition to outside of the malfeasance crime may be sentenced to seven years in prison under penalty of criminal negligence cases.

The suspect, the defendant within five years had intentionally the crime, not the provisions of this chapter shall apply program.

Article 278th the parties reconciliation, the public security organs, people's Procuratorate, the people's court shall listen to the opinions of the parties and other relevant personnel to review comments, voluntary reconciliation, legitimacy, and presided over the production settlement agreement.

279th cases to reach a settlement agreement, the public security organ may make suggestions to the people's Procuratorate leniency. The people's Procuratorate may recommend lenient penalties to the people's court;For minor crimes, without penalty, may decide not to initiate a prosecution. The people's court may, according to law, the defendant lenient punishment.

The Ministry of public security provisions on criminal procedure

The tenth chapterThe second section mediation in cases of public prosecution procedure

Article 322nd The following cases of public prosecution, criminal suspects sincere repentance, obtain the forgiveness of the victims through compensation for the losses, such as an apology, victims voluntary reconciliation, the public security organ at or above the county level shall be responsible for the approval of public prosecution cases according to law, as the parties reconciliation for:

(a) caused by civil disputes, suspected of criminal law the fourth chapter, the fifth chapter stipulated crime, may be sentenced to three years in prison following the penalty;

Two.In addition to outside of the malfeasance crime may be sentenced to seven years in prison under penalty of criminal negligence cases.

The suspect within five years had intentionally the crime, not as a case of public prosecution for mediation.

Article 323rd Any of the following circumstances, does not belong to criminal cases caused by civil disputes:

(a) plot to harm others;

(two) the crime of the underworld organization involved;

(three) relates to stir up trouble;

(four) relates to affray;

(five) times deliberately hurt others body;

(six) the other is reconciliation.

Article 324th Reconciliation, the public security organ shall examine whether the facts are clear, the victim is voluntary and compliance with the provisions of the conditions.

The public security organs for examination, shall listen to the opinions of both partiesAnd for the record; when necessary, the parties can listen to relatives,The local residents' committee or villagers' committee personnel and other relevant personnel to understand the circumstances of the case of opinion.

Article 325th Reconciliation, the public security organ shall, presided over the production settlement agreement, and the parties and other participants signature.

A minor party in the minor parties, the legal agent or other adult relatives should be present.

Article 326th The settlement agreement shall include the following contents:

(a) the basic facts of the case and the main evidence;

Two.The suspectAdmit to the crime, the facts of the crime accused no objection, sincere repentance;

Three.The suspectBy apologizing, forgiven by the victim to the apology, compensation for losses; involving compensation for losses, damages, shall specify the manner; to file an incidental civil action, the plaintiff of the supplementary civil action withdrawing the incidental civil action;

(four) victims voluntary reconciliation, request or agree toThe suspectThe lenient punishment according to law.

The settlement agreement shall timely perform.

Article 327th To reach a settlement agreement cases, the principal of the public security organ at or above the county level for approval, the public security organs to transfer the case to the people's Procuratorate for examination and prosecution, can put forward to lenient treatment recommendations.

      The Supreme People's Procuratorate rules of criminal procedure (Trial)

The thirteenth chapter The second sectionThe parties reconciliation in cases of public prosecution procedure

 

Article 510thThe following cases of public prosecution,The parties may settle:

 

(A)Due to civil disputes,Suspected of criminal law the fourth chapter, the fifth chapter stipulated crime,May be sentenced to three years in prison following the penalty;

 

(Two)In addition to outside of the malfeasance crime may be sentenced to seven years in prison under penalty of criminal negligence cases.

 

The prosecution case shall also meet the following conditions:

 

(A)The suspect sincere repentance,To the victim's compensation for the losses, such as an apology;

 

(Two)The clear understanding of the criminal suspect;

 

(Three)The parties are willing to compromise,In accordance with the provisions of relevant laws;

 

(Four)Intentional crime belongs to a specific victim or direct victims of criminal negligence;

 

(Five)The case facts are clear,Indeed, sufficient evidence.

 

The suspect within five years had intentionally the crime,Do not apply the provisions of this section of the program.

 

The suspects had criminal intent on making 277th criminal procedure law, the provisions of the first paragraph of crime five years ago,No matter whether has held an intentional crime,The provisions of the preceding paragraph shall be determined to within five years once the intentional crime.

 

Article 511stThe victim's death,His legal representative, close relative can reconciliation and criminal suspects.

 

The victim is no capacity or limited capacity,The statutory agent may bring reconciliation.

 

Article 512ndThe suspect is the limited capacity of the,The statutory agent may bring reconciliation.

 

The criminal suspect in custody,With the consent of the suspect,His legal representative, close relatives can provide reconciliation.

 

Article 513rdThe parties may reach a settlement on compensation, apology, civil liability issues,And on the victim and his legal representatives or near relatives if required or agreed to the public security organs, people's Procuratorate, the people's Court of criminal suspects to leniency consultations,But not to the case facts, admissibility of evidence, the applicable law and conviction and sentencing law belong to the scope of powers of the public security organ, the people's Procuratorate, the people's Court of the negotiating.

 

Article 514thThe parties may reach a settlement by themselves,Also can be approved by the people's mediation committee, villagers' committee, residents' committees, the relevant unit or colleagues, friends and other organizations or individuals mediation and reconciliation.

 

The people's Procuratorate for prosecution case the rules stipulated in article 510th,Can advise the parties to compromise,And inform the corresponding rights and obligations,It may be necessary to provide legal advice.

 

Article 515thThe people's Procuratorate shall examine the voluntary reconciliation, legitimacy,The focus of the review of the following contents:

 

(A)Both parties are voluntary reconciliation;

 

(Two)The suspect is sincere repentance,Whether to make an apology to the victim,The amount of compensation for the damage caused by the economic and the ability to adapt and compensation;

 

(Three)The victim and his legal representatives or near relatives is clear understanding of criminal suspects;

 

(Four)Compliance with the law;

 

(Five)Whether the damage state, the collective and the social and public interests or the legitimate rights and interests of others;

 

(Six)Compliance with social morality.

 

Review,Shall listen to the opinions of the parties and other relevant personnel to the reconciliation opinions,The legal consequences of criminal cases may inform the leniency and the rights and obligations of both parties,And making a record attached.

 

Article 516thAfter review that the voluntary reconciliation,The content of the legal,And in accordance with the rules and conditions stipulated in article 510th,The people's Procuratorate shall preside over making reconciliation agreement.

 

The main contents include the reconciliation agreement:

 

(A)The basic situation of the parties;

 

(Two)The main facts of the case;

 

(Three)The suspect sincere repentance,Admit to the crime,The accused of the crime of no objection,To the victim's compensation for the losses, such as an apology;Compensation for loss,Shall state the amount of compensation, fulfilling manner, period;

 

(Four)The victim and his legal representatives or near relatives of the suspect to be forgive,And public security organs, people's Procuratorate or consent, the people's Court of criminal suspects punishment according to law.

 

The reconciliation agreement shall be signed by both parties,You can specify the settlement agreement in the people's procuratorates under the auspices of the series production. Prosecutors don't sign the settlement agreement,Not with the seal of the people's Procuratorate seal.

 

The reconciliation agreement is made in three copies,The parties hold a,Another hand in people's Procuratorate attached for reference.

 

Article 517thCompensation settlement agreement of the contract,Should fulfil immediately on both sides signed the agreement,At the latest to leniency in people's procuratorates execute. It really difficult to one-off performance,In the victim's consent and provide effective security situation,Can also be phased implementation.

 

Article 518thTo reach a settlement agreement of both parties in the investigation stage,The public security organs to the people's Procuratorate lenient treatment recommendations,The people's Procuratorate the arrest and prosecution in the review should take full account of the public security organs of the proposal.

 

Article 519thThe people's Procuratorate to the public security organ for approval of arrest cases,The parties reached a settlement agreement,Can be used as a factor has no social risk and social risk size to be considered,The review does not need to be arrested,You can make a decision not to approve arrest;In the stage of review and prosecution can change the compulsory measures according to law.

 

Article 520thThe people's Procuratorate to the public security organs for examination before prosecution,The parties reached a settlement agreement,Can be used as a factor in whether penalty or punishment shall be considered,In accordance with the law of the non prosecution conditions,You can decide not to prosecute.

 

For it shall initiate a public prosecution according to law,The people's procuratorates can propose lenient punishment sentencing proposal to the people's court.

 

Article 521stThe people's Procuratorate public prosecution to the parties to reach a settlement made the decision not to initiate a prosecution,Shall listen to the opinions of both parties for reconciliation,And find out whether the suspect had fulfilled the settlement agreement, cannot be performed instantly is to provide effective security,Factors as whether the decision not to prosecute the consideration.

 

The parties in the non prosecution decision was made before the break,Can be reconciled. Can not be reconciled,The people's Procuratorate shall make a decision not to initiate a prosecution in accordance with the law to prosecute or.

 

The parties in the non prosecution decision made after back,The people's Procuratorate does not cancel the original decision,But there is evidence that the settlement violates the voluntary, other than legal principles.

 

Article 522ndCriminal suspects or their relatives by violence, threat, deception or other illegal methods force, lured the victim reconciliation,Or threat, after the agreement is fulfilled. The victim,Shall determine that the settlement agreement is invalid. Has been made not to approve arrest or the decision not to initiate a prosecution,The people's Procuratorate may cancel the original decision according to the circumstances of the case,Prosecution of criminal suspects arrested or.