Chương XVIII Bộ luật Tố tụng Hình sự 2003: Quy định chung về thủ tục tố tụng tại phiên tòa

Chapter XVIII: GENERAL PROVISIONS ON PROCEDURES AT COURT SESSIONS

Article 184.- Direct, oral and uninterrupted trial

1. The courts must directly determine the circumstances of the cases by asking questions and listening to opinions of the defendants, victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases, witnesses and experts, examine exhibits and listen to the opinions of the procurators and defense counsels. Judgments shall be based only on the evidences examined at court sessions.

2. The trial must be conducted uninterruptedly, excluding break time.

Article 185.- Composition of first-instance trial panels

A first-instance trial panel shall be composed of one judge and two jurors. For serious and complicated cases, the trial panel may be composed of two judges and three jurors.

For cases where the defendants brought for trial are charged with offenses punishable by death as the highest penalty, the trial panel shall be composed of two judges and three jurors.

The judges presiding over court sessions shall conduct the trial and maintain the court order.

Article 186.- Replacement of trial panel members in special cases

1. The members of trial panels must hear the cases from the beginning to the end.

2. In the course of trial, if a judge or juror discontinues hearing the case, the court may still hear the case with the alternate judge or juror. Only alternate judges and jurors who are present at the court sessions from the beginning may participate in adjudicating the cases. Where a trial panel consists of two judges but the judge presiding over the court session cannot continue hearing the case, the judge being member of the trial panel shall preside over the court session and the alternate judge shall be added to the trial panel as a member.

3. Where there is no alternate judge or juror for replacement or if the presiding judge of a court session must be replaced while there is no substitute judge as prescribed in Clause 2 of this Article, the case must be re-tried from the beginning.

Article 187.- Appearance of defendants at court sessions

1. Defendants must appear at court sessions in response to court summonses; if they are absent without plausible reasons, they shall be escorted according to the procedure prescribed in Article 130 of this Code; if they are absent for plausible reasons, the court sessions must be postponed.

If the defendants suffer from mental diseases or other dangerous diseases, the trial panels shall suspend the cases till the defendants recover from their illnesses.

If the defendants have escaped, the trial panels shall suspend the cases and request the investigating bodies to pursue them.

2. Courts may try the defendants in absentia in the following cases:

a/ The defendant has escaped and his/her pursuit has been in vain;

b/ The defendant stays abroad and cannot be summoned to the court session;

c/ The absence of the defendant causes no obstacle to the trial and he/she has been handed the summons properly.

Article 188.- Supervision of defendants at court sessions

1. Defendants being held in temporary detention, when appearing at court sessions, shall only be allowed to meet with their defense counsels. Their contacts with other persons must be permitted by the presiding judges of the court sessions.

2. Defendants who are not held in temporary detention must be present at the court sessions throughout the period of adjudication.

Article 189.- Appearance of procurators

1. Procurators of the procuracies of the same level must participate in court sessions. For serious and complicated cases, two procurators may together participate in court sessions. In case of necessity, there may be alternate procurators.

2. If procurators are absent or changed while there are no alternate ones for replacement, the trial panels shall postpone court sessions and immediately report thereon to the procuracies of the same level.

Article 190.- Appearance of defense counsels

Defense counsels shall be obliged to participate in court sessions. They may send in advance their written defenses to the courts. If defense counsels are absent, the courts shall still open the court sessions.

Where defense counsels are compulsorily required under the provisions of Clause 2, Article 57 of this Code but they are absent, the trial panels must postpone the court sessions.

Article 191.- Appearance of victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases or their lawful representatives

1. If victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases or their lawful representatives are absent, the trial panels shall decide, on a case by-case basis, to postpone the court session or proceed with the trial.

2. If deeming that the absence of victims, civil plaintiffs or civil defendants would cause obstacles only to the settlement of compensation questions, the trial panels may sequester the compensation for later trial according to civil procedures.

Article 192.- Appearance of witnesses

Witnesses shall participate in court sessions in order to clarify the circumstances of the cases. If an witness is absent but has earlier given his/her statements at the investigating body, the judge presiding the court session shall announce such statements. If a witness to important matters is absent, the trial panel shall decide, on a case-by-case basis, to postpone the court session or proceed with the trial.

If an witness has been subpoenaed by the court but deliberately refuses to appear without plausible reasons and their absence impedes the trial, the trial panel may issue an escort decision. The procedure for escorting witnesses shall comply with the provisions of Article 134 of this Code.

Article 193.- Appearance of experts

1. When being subpoenaed by courts, experts shall participate in court sessions.

2. If experts are absent, the trial panel shall decide, on a case-by-case basis, to postpone the court session or proceed with the trial.

Article 194.- Time limit for postponement of court sessions

For the cases where court sessions must be postponed under Articles 45. 46, 47, 187, 189, 190, 191, 192 and 193 of this Code, the time limit for postponement of court sessions of first-instance trial shall not exceed thirty days, counting from the date of issuance of the decisions to postpone the court sessions.

Article 195.- Withdrawal of prosecution decisions or conclusion on lesser offenses by procurators at court sessions

During court sessions, after inquiring, procurators may withdraw part or whole of the prosecution decsions or conclude on lesser offenses, but the trial panels must try the whole cases.

Article 196.- Limits of trial

Courts shall only adjudicate defendants and acts of the offenses which have been prosecuted by the procuracies and decided by the courts to be brought for trial.

Courts may adjudicate defendants according to clauses other than those in the same articles which the procuracies have applied to prosecute them, or for other offenses equal to or lesser than the ones prosecuted by the procuracies.

Article 197.- Internal rules of court sessions

1. Before starting court sessions, the court clerks must announce the internal rules of the court sessions.

2. All people in the courtrooms must show respect for the trial panels, keep order and obey the instructions of the presiding judges.

3. All people in the courtrooms must stand up when the members of the trial panels enter the courtrooms. Those who have been summoned for inquiry may present their opinions provided that their presentation is permitted by the presiding judges. The persons presenting opinions must stand while being questioned, except where they are permitted by the presiding judges to sit and present their statements due to their poor health.

4. Persons aged under 16 years shall not be allowed to enter the courtrooms, except where they are summoned by the courts for inquiry.

Article 198.- Measures against persons violating order at court sessions

Persons who violate order at court sessions shall be warned, fined, forced to leave the court rooms by the presiding judges or arrested on a case-by-case basis.

The security guards of court sessions shall have to keep order at court sessions and execute the orders of the presiding judges to force the persons disturbing order at court sessions to leave the courtrooms or arrest them.

Article 199.- Making court judgments and decisions

1. Court judgments shall decide on whether or not the defendants have committed the offenses, penalties and other judicial measures. Judgments must be discussed and adopted in the deliberation chambers.

2. Decisions to change members of the trial panels, procurators, court clerks, experts, interpreters to transfer the cases, to request additional investigation, to suspend or cease the cases and to arrest or release defendants must be discussed and adopted in the deliberation chambers and made in writing.

3. Decisions on other matters shall be discussed and adopted by the trial panels at the courtrooms, are not required to be made in writing but must be recorded in the minutes of the court sessions.

Article 200.- Minutes of court sessions

1. The minutes of a court session must contain the date, hour and venue of the court session and all developments thereat from commencement of trial to pronouncement of judgment. Apart from being recorded in the minutes, developments at a court session may be audio- and/or video-recorded,

2. All questions and answers must be recorded in the minutes.

3. At the end of court sessions, the judges presiding over the court sessions must examine the minutes and sign them together with the court clerks.

4. Procurators, defendants, defense counsels, victims, civil plaintiffs, civil defendants, persons with interests and obligations related to the cases, defense counsels of the interests of the involved persons or lawful representatives of such persons may read the minutes of the court sessions and have the right to request the writing of amendments and/or supplements in such minutes and certify them with their signatures.