Chương VIII Bộ luật Tố tụng Hình sự 2003: Khởi tố vụ án hình sự

Chapter VIII: INSTITUTION OF CRIMINAL CASES

Article 100.- Grounds for instituting criminal cases

Criminal cases shall be instituted only when criminal signs have been identified. The identification of criminal signs shall be based on the following grounds:

1. Denunciations of citizens;

2. Information reported by agencies or organizations;

3. Information reported on the mass media;

4. Criminal signs directly detected by investigating bodies, procuracies, courts, border guard, customs, ranger, coast guard forces and other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities;

5. Confession by offenders.

Article 101.- Denunciations and information on offenses

Citizens may denounce offenses to investigating bodies, procuracies, courts or other bodies, organizations. If a denunciation is made orally, the receiving agency or organization must make a minutes thereof with the signature of the denouncer.

Agencies, organizations, when detecting or receiving denunciations of citizens, must promptly report such information in writing to the investigating bodies.

Article 102.- Confession by offenders

When offenders come to give confessions, the receiving agencies or organizations must make minutes thereof, clearly inscribing the full names, ages, occupations, residences and statements of the confessors. They shall have to immediately inform the investigating bodies or procuracies thereof.

Article 103.- Tasks of settling offence denunciations and information and proposals for institution of criminal cases

1. Investigating bodies and procuracies shall have the responsibility to receive all offense denunciations and information from individuals, agencies and organizations as well as criminal case institution proposals transferred by State agencies. Procuracies shall have the responsibility to immediately transfer offense denunciations and information and criminal case institution proposals enclosed with relevant documents they have received to competent investigating bodies.

2. Within twenty days after receiving offense denunciations, information, and/or criminal case institution proposals, the investigating bodies must, within the scope of their responsibilities, examine and verify the information sources and decide to institute or not to institute criminal cases.

In cases where the denounced events, offense information or criminal case institution proposals involve many complicated circumstances or where the examination and verification thereof must be conducted at many different places, the time limit for settling denunciations and information may be longer, but must not exceed two months.

3. The results of settlement of offense denunciations or information or criminal case institution proposals of State bodies must be sent to the procuracies of the same level and be notified to the reporting agencies, organizations or the offense denouncers.

The investigating bodies must apply necessary measures to protect the offense denouncers.

4. The procuracies shall have to supervise the settlement by the investigating bodies of offence denunciations and information or criminal case institution proposals.

Article 104.- Decisions to institute criminal cases

1, When determining that criminal signs have existed, the investigating bodies must issue decisions to institute criminal cases. The heads of border guard units, customs or ranger offices, the coast guard force and the heads of other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities, shall issue decisions to institute criminal cases in the cases specified in Article 111 of this Code.

The procuracies shall issue decisions to institute criminal cases in cases where they cancel decisions not to institute criminal cases, which have been issued by the bodies stated in this Clause, and in cases where the trial panels request to institute the criminal cases.

The trial panels shall issue decisions to institute criminal cases or request the procuracies to institute criminal cases if they, in the course of trial at court sessions, detect new offenses or offenders required to be investigated.

2. Decisions to institute criminal cases must clearly state the time and grounds for institution, the applicable articles of the Penal Code, and the full names and positions of the decision issuers.

3. Within 24 hours after issuing decisions to institute criminal cases, the procuracies must send such decisions to the investigating bodies for investigation; institution decisions enclosed with documents related to the institution of criminal cases, which have been issued by the investigating bodies, border guard, customs and ranger, coast guard force, or other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities, must be sent to the procuracies for procuration of the institution; institution decisions of the trial panels must be sent to the procuracies for consideration and decision on the investigation; institution requests of the trial panels shall be sent to the procuracies for consideration and decision on the institution.

Article 105.- Institution of criminal cases at victims’ requests

1. The cases involving the offenses prescribed in Clauses 1 of Articles 104, 105, 106, 108, 109, 111, 113, 121, 122, 131 and 171 of the Penal Code shall only be instituted at the requests of victims or lawful representatives of victims who are minors or persons with physical or mental defects.

2. In cases where the criminal case institution requesters withdraws their requests before the opening of court sessions of first-instance trial, the cases must be ceased.

Where exist grounds to determine that the institution requesters have withdrawn their requests against their own will due to force or coercion, the investigating bodies, procuracies or courts may, though such institution requesters have withdrawn their requests, still continue conducting the procedure for the cases.

Victims who have withdrawn their criminal case institution requests shall have no right to file their requests again, except for cases where their withdrawal is due to force or coercion.

Article 106.- Change or supplementation of decisions to institute criminal cases

1. When they have grounds to determine that the instituted criminal cases are not true to the committed criminal acts or there remain other offences, the investigating bodies or procuracies shall issue decisions to change or supplement the decisions to institute the criminal cases.

2. In cases where the investigating bodies decide to change or supplement the decisions to institute criminal cases, within 24 hours after issuing such decisions, the investigating bodies must send them to the procuracies for supervision of such institution.

Where the procuracies decide to change or supplement the decisions to institute criminal cases, within 24 hours after issuing such decisions, the procuracies must send them to the investigating bodies for investigation.

Article 107.- Grounds for not instituting criminal cases

Criminal cases shall not be instituted when one of the following grounds exists:

1. There is no offence;

2. The committed acts do not constitute an offence;

3. The persons committing acts dangerous to the society have not yet reached the age to bear penal liability;

4. The persons committing criminal acts have got the legally valid judgments or decisions to cease their cases.

5. The statute of limitations for penal liability examination has expired;

6. The offenses have been granted general amnesty;

7. The persons committing acts dangerous to the society are deceased, except for cases where the reopening review of the cases is required for other persons.

Article 108.- Decisions not to institute criminal cases

1. When there exists one of the grounds prescribed in Article 107 of this Code, the persons with competence to institute criminal cases shall issue decisions not to institute criminal cases; if they have instituted criminal cases, they must issue decisions to cancel such institution decisions and notify the offense-denouncing or reporting agencies, organizations or individuals of the reasons therefor; if deeming it necessary to handle the cases by other measures, they shall send the files thereof to the concerned agencies or organizations for settlement.

Within 24 hours after their issuance, decisions not to institute criminal cases, decisions to cancel decisions to institute criminal cases and related documents must be sent to the procuracies of the same level.

2. The agencies, organizations or individuals that have denounced or reported on the offenses shall have the right to complain about the decisions not to institute criminal cases. The competence and procedures for settling such complaints shall comply with the provisions of Chapter XXXV: OF THIS CODE.

Article 109.- Powers and responsibilities of procuracies in instituting criminal cases

1. The procuracies shall exercise the right to prosecute and supervise the law observance in the institution of criminal cases, ensuring that criminal cases be instituted for all detected offenses and the institution of criminal cases be grounded and lawful.

2. In cases where the decisions to institute criminal cases, which are issued by investigating bodies, border guard, customs, ranger, the coast guard force, or other agencies of the People’s Police or the People’s Army, which are assigned to conduct a number of investigating activities, are ungrounded, the procuracies shall issue decisions to cancel such decisions; if the decisions not to institute criminal cases, which are issued by such agencies, are ungrounded, the procuracies shall cancel them and issue decisions to institute criminal cases.

3. Where the decisions to institute criminal cases, which are issued by the trial panels, are ungrounded, the procuracies shall file protests against them with the superior courts.