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Guiding Opinions of the Supreme People's Procuratorate on Several Issues Concerning the Withdrawal of Prosecution in Public Prosecution Cases | | 最高人民检察院关于公诉案件撤回起诉若干问题的指导意见 |
(February 2, 2007, No.18 [2007] of the Supreme People's Procuratorate) | | (2007年2月2日 [2007]高检诉发18号) |
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Article 1 These Opinions are formulated in accordance with the relevant provisions of the Criminal Procedure Law of the People's Republic of China, the Criminal Litigation Rules of the People's Procuratorates and other laws and judicial interpretations and in light of the actualities of the public prosecution of the people's procuratorates. | | 第一条 根据《中华人民共和国刑事诉讼法》、《人民检察院刑事诉讼规则》等法律、司法解释的有关规定,结合人民检察院公诉工作实际,制定本意见。 |
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Article 2 “Withdrawal of prosecution” refers to the litigation activities whereby the people's procuratorate decides to withdraw the public prosecution instituted against all or part of the defendants due to the occurrence of certain statutory causes after it has initiated a public prosecution and before the people's court makes a judgment. | | 第二条 撤回起诉是指人民检察院在案件提起公诉后、人民法院作出判决前,因出现一定法定事由,决定对提起公诉的全部或者部分被告人撤回处理的诉讼活动。 |
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Article 3 For a case of public prosecution, the people's procuratorate may withdraw its prosecution under any of the following circumstances: | | 第三条 对于提起公诉的案件,发现下列情形之一的,人民检察院可以撤回起诉: |
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1. The criminal facts do not exist; | | (一)不存在犯罪事实的; |
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2. The crime is not committed by the defendant; | | (二)犯罪事实并非被告人所为的; |
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3. The offence is obviously minor and no serious harm has been caused, and therefore it is not deemed as a crime; | | (三)情节显著轻微、危害不大,不认为是犯罪的; |
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4. There is not sufficient evidence or the evidence changes, and therefore it does not meet the conditions for prosecution; | | (四)证据不足或证据发生变化,不符合起诉条件的; |
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5. The defendant should not bear criminal liabilities because he does not reach the age for criminal liability; | | (五)被告人因未达到刑事责任年龄,不负刑事责任的; |
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6. The defendant is a mentally insane, and the damage was caused when he was unable to identify or control his own act, and therefore he should not bear the criminal liability after being established through accreditation of legal procedures; | | (六)被告人是精神病人,在不能辨认或者不能控制自己行为的时候造成危害结果,经法定程序鉴定确认,不负刑事责任的; |
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7. The defendant shall not be subject to criminal liability due to the change of any law or judicial interpretation; or | | (七)法律、司法解释发生变化导致不应当追究被告人刑事责任的; |
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8. Other circumstances under which the defendant shall not be subject to criminal liabilities. | | (八)其他不应当追究被告人刑事责任的。 |
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Article 4 Where the people's court suggests that the people's procuratorate withdraw the prosecution or an innocent judgment is to be made, the people's procuratorate shall earnestly examine and exchange views with the people's court; if the conditions for withdrawal of prosecution as prescribed in Article 3 of these Opinions are met, the prosecution may be withdrawn; if the criminal facts are considered clear, the evidence is conclusive and convincing, and the offender shall be subject to criminal liabilities according to law, the people's court shall make a judgment according to law. | | 第四条 对于人民法院建议人民检察院撤回起诉或拟作无罪判决的,人民检察院应当认真审查并与人民法院交换意见;对于符合本意见第三条规定的撤回起诉条件的,可以撤回起诉;认为犯罪事实清楚,证据确实、充分,依法应当追究刑事责任的,由人民法院依法判决。 |
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Article 5 Under any of the following circumstances, a case shall not be withdrawn after a public prosecution is instituted, and it shall be handled in accordance with relevant provisions, respectively: ...... | | 第五条 案件提起公诉后出现如下情况的,不得撤回起诉,应当依照有关规定分别作出处理: ...... |
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