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Provisions of the Supreme People's Court about Several
Issues Concerning the Trial of Cases for Affirming State
Compensation by the People Court (for Trial Implementation)
Announcement of the Supreme People's Court of the People's
Republic of china
(The Provisions of the Supreme People's Court about Several
Issues Concerning the Trial of Cases for Affirming State
Compensation by the People Court (for Trial Implementation)
were adopted at the 1315th meeting of the Adjudicative
Committee of the Supreme People's Court on May 18, 2004.
They are hereby promulgated and shall come into effect as of
October 1, 2004.
August 10, 2004.
Provisions of the Supreme People's Court about Several
Issues Concerning the Trial of Cases for Affirming State
Compensation by the People Court (for Trial Implementation)
(Judicial Interpretation No. 10 [2004] adopted at the 1315th
meeting of the Supreme People's Court of the Adjudicative
Committee of the Supreme People's Court on May 18, 2004)
In order to correctly hear the cases of affirming tortious
delinquencies of the people's court in trials and
enforcement, the present Provisions are formulated in
accordance with the State Compensation Law of the People's
Republic of China and other relevant laws.
Article 1 Where a citizen, legal person or any other
organization believes that the work-related conduct of the
people's court or its functionaries has infringed upon his
(its) legitimate rights and interests, before it claims for
state compensation, he (it) shall apply for affirmation in
accordance with the law with the exceptions as listed in
Article 5 of the present Measures.
Article 2 Where a citizen, legal person or any other
organization applies for state compensation because he (it)
alleges that the people's court or any of its functionaries
violates the law in exercising their duties, he (it) shall
be the applicant for affirmation.
An affirmation application shall be accepted by the people's
court that makes a judicial act, but an application for
affirming the judicial act of a grassroots people's court as
illegal shall be accepted by the intermediate people's
court.
Article 3 An affirmation application that meets the
following conditions shall be accepted:
(1) The affirmation applicant shall meet the qualifications
for a claimant of state compensation as stipulated in
Article 18 of the State Compensation Law of the People's
Republic of China;
(2) Having specific affirmation pleadings and infringement
facts and reasons;
(3) The affirmation applicant shall apply for affirmation
within 2 years from the day when the judicial act is
committed or when he (it) is or should be aware of the
judicial act;
(4) It is under the jurisdiction of the people's court that
accepts the affirmation application.
Article 4 An affirmation application shall not be accepted
if:
(1) in accordance with the law, the applicant shall lodge an
appeal or applies for retrial through the adjudicative
supervision procedures;
(2) the pleadings in the application have been accepted and
are being investigated by the judicial organ;
(3) the act of the personnel of the people's court has
nothing to do with their exercise of duties;
(4) it is under the circumstance as stipulated in Article
214 of the Civil Procedural Law of the People's Republic of
China; or
(5) it is in any other circumstance that is beyond the
affirmation scope according to the law.
Article 5 A judgment, ruling or decision made by the
people's court under any of the following circumstances
belongs to lawful affirmation. A party concerned may apply
for state compensation on the basis of this judgment, ruling
or decision:
(1) The decision of arrest has been revoked according to law
with the exception as stipulated in Article 15 of the
Criminal Procedural Law of the People's Republic of China;
(2) The judgment declares innocence and has already become
effective;
(3) A liable person for any of the acts as listed in Article
15 (4) and (5) of the State Compensation Law has been
punished in accordance with the law;
(4) Having committed an act as prescribed in Article 16 (1)
of the State Compensation Law, and having made a decision of
revocation in accordance with the law;
(5) Revoking the illegal judicial detention, monetary
penalty, property preservation, or enforcement of a ruling
or decision; or
(6) Other circumstances under which the illegal acts are
corrected.
Article 6 Within 7 days after the people's court receives an
affirmation application, it shall decide whether to accept
it or not.
When examining an application for acceptance, if the court
finds that no evidence supports the application, it may
inform the affirmation applicant to make supplements.
Article 7 If the affirmation applicant refuses to accept the
decision of dismissal, it may, within 15 days after it
receives the decision of dismissal, apply to the superior
people's court for reconsideration.
The superior people's court shall make a decision about
whether to accept it or not within 30 days after it receives
the reconsideration application.
Article 8 The people's court shall form a collegial panel to
hear an affirmation case.
Article 9 In the trial of an affirmation case, the people's
court shall examine the following items:
(1) Whether there are facts to prove the to-be-affirmed tort
or not;
(2) The reasons or basis for which the people's court made
the former judicial act;
(3) Whether the former act, through which the people's court
exercised its duties, is consistent with the legal procedure
or not, whether the law applied to the former exercise of
duties is correct or not;
(4) Other items necessary to be examined.
Article 10 The people's court may examine the written
materials of an affirmation case and may hold a hearing in
light of the specific circumstance of the case. Whether to
hold a hearing or not, it shall be decided by the collegial
panel.
Article 11 As for an affirmation case, the occurrence of any
of the following circumstances in the former course of trial
or enforcement shall be determined as illegal:
(1) The people's court decided to arrest a criminal suspect
without criminal fact or clear fact or sufficient evidence,
and after releasing him, it fails to revoke the decision in
accordance with the law;
(2) Sealing up, detaining, freezing or recovering the lawful
properties irrelevant to the criminal case, causing any
damage;
(3) Taking or repeatedly taking mandatory measures by
violating the law, such as summoning by force, detaining,
giving monetary penalties, against a person without
hampering the litigation, the party against whom a judgment
or order is made or the assistant in execution, and failing
to revoke it in accordance with the law;
(4) The judicial detention exceeds the time limit as
prescribed in the law or as specified in the decision;
(5) Imposing a judicial monetary penalty that is higher than
the statutory amount;
(6) Resulting any damage to the affirmation applicant due to
taking or revoking preservation measures illegally;
(7) Causing any damage to the affirmation applicant due to
sealing up, detaining, freezing, selling off or enforcing
the private properties of the applicant by exceeding
relevant standards;
(8) Causing any damage to the affirmation applicant by
repeatedly sealing up, detaining, freezing the properties of
the applicant;
(9) The intentional failure to perform the custodian duties
on the sealed-up or detained properties causes the
occurrence of loss of or damage to the said properties or
any other serious consequence and thus results in damage to
the applicant;
(10) The intentional delay of execution or failure to
execute the already found properties of the party against
whom a judgment or order is made results in loss of the
properties targeted for execution and thus causes damage to
the affirmation applicant;
(11) The failure to resume the execution of a case, which
should be resumed for execution, results in loss of the
properties targeted for execution, and thus causes damage to
the affirmation applicant;
(12) Without legal basis, the properties or money was
executed to any other party concerned or a person not
involved in the case and thus results in damage to the
affirmation applicant;
(13) The illegal sealing up, detaining or execution of
properties of a person not involved in a case results in
damage to any outsider of the case;
(14) Failing to auction the properties that shall be
auctioned, selling off properties or paying a debt in kind
results in damage to the affirmation applicant; or
(15) Other circumstances in violation of the law.
Article 12 Where the people's court affirms or doesn't
affirm the illegal exercise of duties, it shall make a
ruling. If it affirms that it is illegal, it shall
simultaneously revoke the original illegal ruling.
The ruling made by the people's court on whether the
judicial act of this court is in violation of the law or not
shall be signed by its president. The ruling, which is made
by the superior people's court on whether the judicial act
of the inferior people's court is in violation of the law,
shall be signed by the collegial panel.
Article 13 When the people's court hears an affirmation
case, it shall make a ruling within 6 months after it serve
the acceptance notice on the parties concerned. If it is
necessary to extend the time period, it may extend it for 3
months approval of the president of this court.
Article 14 After the people's court accepts an affirmation
application, if it fails to make a ruling at the expiry of
the time period for trial, the affirmation applicant may
file a written appeal with the superior people's court 30
days after the expiry of the said time period.
The superior people's court shall, within 3 months after it
receives the appeal, order the inferior people's court to
make a ruling or hear the case by itself. If it is necessary
to extend the time limit for conducting trial by itself, it
may extend for 3 months upon approval of the president of
this court.
Article 15 Where the superior people's court holds a hearing
for the trial of case, the inferior people's court shall
appear at the hearing.
If the affirmation applicant fails to appear at the hearing
without any justifiable reason, he (it) shall be deemed to
have withdrawn the affirmation application.
Article 16 The people's court that makes the former judicial
act is obligatory to make an explanation about the legality
of such act.
Article 17 If the affirmation applicant refuses to accept
the ruling made by the people's court on denying the act
illegal, it may file an appeal with the superior court
within 30 days after it receives the ruling.
The superior people's court shall, within 3 months after it
receives the affirmation appeal, make a ruling on whether to
affirm or deny the appeal. If it is necessary to extend the
time period, it may extend for 3 months upon approval of the
president of this court.
Article 18 Where the supreme people's court considers that
there is indeed any mistake in an affirmation ruling made by
a people's court or by a superior people's court against an
inferior people's court, it may directly make the
affirmation, or may order the inferior people's court or
another people's court of the same level to make
re-affirmation.
Article 19 Where the judicial interpretations issued prior
to the promulgation of the present Provisions contradict
with the present Provisions, the latter shall prevail.
Article 20 The present Provisions shall come into effect as
of October 1, 2004.
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