Chương V Bộ luật Tố tụng Hình sự 2003: Chứng cứ

Chapter V: EVIDENCES

Article 63.- Matters to be proved in criminal cases

When investigating, prosecuting and adjudicating criminal cases, the investigating bodies, procuracies and courts must prove:

1. Whether or not criminal acts have occurred, time, places and other circumstances of the criminal acts;

2. Who have committed the criminal acts; being at fault or not, intentionally or unintentionally, whether or not they have the penal liability capacity; purposes and motives of the commission of such crimes;

3. Circumstances aggravating and circumstances extenuating the penal liability of the accused or defendants, and personal details of the accused or defendants;

4. The nature and extent of damage caused by the criminal acts.

Article 64.- Evidences

1. Evidences are facts which are collected in the order and procedure prescribed by this Code, which are used by the investigating bodies, procuracies and courts as grounds to determine whether or not criminal acts have been committed, persons committing such acts as well as other circumstances necessary for the proper settlement of the cases.

2. Evidences are determined by:

a/ Exhibits;

b/ Testimonies of witnesses, victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases, the arrestees, persons kept in custody, the accused or defendants;

c/ Expertise conclusions;

d/ Minutes of investigating and adjudicating activities, and other documents and things.

Article 65.- Collection of evidences

1. In order to collect evidences, the investigating bodies, procuracies and courts may summon persons who know about the cases to ask and listen to their statements on the matters pertaining to the cases, solicit expertise, conduct searches, examinations and other investigating activities according to the provisions of this Code; request agencies, organizations and individuals to supply documents, objects and relate circumstances to clarify the cases.

2. Participants in the procedure, agencies, organizations or any individuals may all present documents, as well as matters related to the cases.

Article 66.- Evaluation of evidences

1. Each evidence must be evaluated in order to determine its legality, authenticity and relevance to the cases. The collected evidences must be sufficient for the successful settlement of criminal cases.

2. Investigators, procurators, judges and jurors shall identify and evaluate all evidences with a full sense of responsibility after studying generally, objectively, comprehensively and fully all circumstances of the cases.

Article 67.- Statements of witnesses

1. Witnesses shall present what they know about the cases, personal details of the arrestees, persons in custody, the accused or defendants, victims, their relationships with the arrestees, persons in custody, the accused or defendants, and/or victims, with other witnesses, and answer questions put to them.

2. Circumstances presented by witnesses must not be used as evidences if the witnesses cannot say clearly why they have known such circumstances.

Article 68.- Statements of victims

1. Victims shall present circumstances of the cases, their relationships with the arrestees, persons in custody, the accused or defendants, and answer questions that are raised.

2. Circumstances presented by victims must not be used as evidences if they cannot say clearly why they have known such circumstances.

Article 69.- Statements of civil plaintiffs, civil defendants

1. Civil plaintiffs, civil defendants shall present circumstances related to the compensation of damage caused by criminal acts.

2. Circumstances presented by civil plaintiffs or civil defendants must not be used as evidences if they cannot say clearly why they have known such circumstances.

Article 70.- Statements of persons with interests and obligations related to criminal cases

1. Persons with interests and obligations related to criminal cases shall present circumstances directly related to their interests and obligations.

2. Circumstances presented by persons with interests and obligations related to criminal cases must not be used as evidences if they cannot say clearly why they have known such circumstances.

Article 71.- Statements of arrestees, persons in custody

Arrestees, persons in custody shall present circumstances related to their being suspected of having committed criminal acts.

Article 72.- Statements of the accused or defendants

1. The accused or defendants shall present circumstances of the cases.

2. Confessions of the accused or defendants shall only be regarded as evidences if they are consistent with other evidences of the cases.

Confessions of the accused or defendants must not be used as sole evidences for conviction.

Article 73.- Expertise conclusions

1. Experts shall conclude on the matters required to be expertised and bear personal responsibility for their conclusions.

Expertise conclusions must be expressed in writing.

If the expertise has been conducted by a group of experts, all the group members shall sign the written general conclusions. In cases where their opinions are divergent, each person shall write his/her own conclusion therein.

2. In cases where the procedure-conducting bodies disagree with the expertise conclusions, they must clearly state the reasons, if such conclusions are unclear or incomplete, the procedure-conducting bodies shall decide to solicit additional expertise or re-expertise according to general procedures.

Article 74.- Exhibits

Exhibits are articles which have been used as tools or means for the commission of crimes; items carrying traces of crimes, things being the targets of crimes, as well as money and other things which can be used to prove the crimes and criminals.

Article 75.- Collection and preservation of exhibits

1. Exhibits should be collected in time, fully and described according to their actual conditions in the minutes and inserted in the case files.

Where exhibits cannot be inserted into the case files, they must be photographed and may be video-recorded for insertion in the case files. Exhibits must be sealed up and preserved.

2. Exhibits must be preserved intact, not letting them be lost, confused or damaged. The sealing and preservation of exhibits shall be as follows:

a/ Exhibits required to be sealed up must be sealed up immediately after being collected. The sealing and unsealing must comply with law provisions and recorded in a minutes to be inserted in the case file;

b/ Exhibits being money, gold, silver, precious metals, gems, antiques, explosives, inflammables, toxins or radioactive substances must be expertized immediately after being collected and delivered to banks or other specialized agencies for preservation;

c/ Exhibits which cannot be taken to the offices of the procedure-conducting bodies for preservation shall be handed over by the procedure-conducting bodies to the owners or lawful managers of objects or properties, their relatives or local administrations, agencies or organizations where the exhibits exist for preservation.

d/ For exhibits being easy-to-deteriorate or difficult-to-preserve goods, if they do not fall into the case prescribed in Clause 3, Article 76 of this Code, competent bodies defined in Clause 1, Article 76 of this Code shall, within the scope of their powers, decide to sell them according to law and remit the proceeds therefrom into their custody accounts at State treasuries for management;

e/ For exhibits brought to the offices of the procedure-conducting bodies for preservation, the police agencies shall have to preserve them at the investigating and prosecuting stages; the judgment-executing agencies shall have to preserve them at the adjudicating and judgment-executing stages.

3. If the persons responsible for preserving exhibits of criminal cases let them lost or damaged, break the seals, consume, transfer, fraudulently swap, conceal or destroy them, they shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability according to Article 310 of the Penal Code; if they add, appropriate, modify, fraudulently swap, destroy or damage exhibits of criminal cases in order to distort the case files, they shall bear penal liability according to Article 300 of the Penal Code; if causing damage, they shall have to pay compensation therefor according to law provisions.

Article 76.- Handling of exhibits

1. The handling of exhibits shall be decided by investigating bodies if the criminal cases are ceased at the investigating stage; by the procuracies if the cases are ceased at the prosecuting stage; or by courts or trial panels at the adjudicating stage. The execution of decisions on handling exhibits must be recorded in minutes.

2. Exhibits shall be handled as follows:

a/ Exhibits being tools and means used for the commission of crimes, or articles banned from circulation shall be confiscated and forfeited into the State fund or be destroyed.

b/ Exhibits being items, money owned by the State, organizations or individuals but appropriated by offenders or used as tools and means for the commission of crimes shall be returned to their owners or lawful managers; in cases where their owners or lawful managers are unidentifiable, they shall be forfeited into the State fund;

c/ Exhibits being money or property acquired from the commission of crimes shall be confiscated and forfeited into the State fund;

d/ Exhibits being easy-to-deteriorate or difficult-to-preserve goods may be sold according to law;

e/ Exhibits of no value or no use shall be confiscated and destroyed.

3. In the course of investigation, prosecution or adjudication, competent bodies defined in Clause 1 of this Article shall have the right to decide to return the exhibits stated at Point b, Clause 2 of this Article to their owners or lawful managers if they deem that such will not affect the handling of the cases.

4. Disputes over the right to own exhibits shall be settled according to civil procedures.

Article 77.- Minutes of investigating and adjudicating activities

The circumstances recorded in the minutes of arrests, searches, scene examinations, autopsies, confrontations, identification and investigation experiments, in the minutes of court sessions and the minutes of other proceedings conducted in accordance with this Code may be regarded as evidences.

Article 78.- Other documents and objects in criminal cases

The circumstances related to criminal cases, which are recorded in documents as well as objects supplied by agencies, organizations and individuals may be regarded as evidences.

Where these documents and objects show signs specified in Article 74 of this Code, they shall be regarded as exhibits.