Interpretation of the Extradition Law of the People's Republic of China

Author: Hu Kangsheng
Publisher:
Publishing Time: 2001-08-01
Features: The "Legal Interpretations Series of the People's Republic of China" is a series of books organized and edited under the leadership of the Legal Affairs Commission of the Standing Committee of the National People's Congress. This series consists of a series of legal interpretations. It is compiled by relevant experts, scholars, and some legislative participants. The series adheres to the basic requirement of accurately reflecting the legislative purpose and the content of legal provisions. Every legal interpretation in the series strives to achieve authority in views and accuracy in content interpretation. We believe that the publication of this series will provide helpful assistance for readers to further study the law.
Chapter General Provisions
Article 1 To safeguard the normal process of extradition, strengthen international cooperation in punishing crimes, protect the legitimate rights and interests of individuals and organizations, and maintain national interests and social order, this Law is formulated.
Article 2 Extradition between the People's Republic of China and foreign countries shall be carried out in accordance with this Law.
Article 3 The People's Republic of China and foreign countries shall carry out extradition cooperation on the basis of equality and mutual benefit. Extradition cooperation shall not damage the sovereignty, security, and social public interests of the People's Republic of China.
Article 4 Extradition between the People's Republic of China and foreign countries shall be conducted through diplomatic channels. The Ministry of Foreign Affairs of the People's Republic of China is the designated agency for extradition liaison. If the extradition treaty stipulates otherwise for the liaison agency, the provisions of the treaty shall prevail.
Article 5 In handling extradition cases, compulsory measures such as extradition detention, extradition arrest, or extradition surveillance may be taken against the requested person for extradition based on the circumstances.
Article 6 The following terms used in this Law shall have the following meanings:
(1) "Requested Person for Extradition" refers to the person requested by the requesting country to be granted extradition to the requested country;
(2) "Extradited Person" refers to the person who is extradited from the requested country to the requesting country;
(3) "Extradition Treaty" refers to the extradition treaties concluded or jointly participated in by the People's Republic of China and foreign countries, or other treaties containing extradition provisions.
Chapter Extradition to the People's Republic of China
Section Conditions for Extradition
Article 7 For a foreign country's extradition request to the People's Republic of China to be granted, it must meet all of the following conditions:
(1) The act for which extradition is requested constitutes a crime under both the laws of the People's Republic of China and the laws of the requesting country;
(2) If the extradition is requested for criminal prosecution, the People's Republic of China and the requesting country's laws shall both provide a sentence of more than one year in prison or a heavier penalty for the crime in question; if the extradition is requested for the execution of a sentence, at the time the extradition request is made, the uncompleted sentence of the requested person for extradition shall be at least six months. For multiple crimes in the extradition request that meet the provisions of the preceding paragraph, as long as one of them meets the provisions of the second item of the preceding paragraph, extradition may be granted for all such crimes.
Article 8 If a foreign country's extradition request to the People's Republic of China has any of the following circumstances, extradition shall be refused:
(1) According to the laws of the People's Republic of China, the requested person for extradition holds the nationality of the People's Republic of China;
(2) When the extradition request is received, the judicial organs of the People's Republic of China have rendered a final judgment on the crime for which extradition is requested, or have terminated the criminal procedure;
(3) Extradition is requested for a political crime, or the People's Republic of China has granted asylum to the requested person for extradition;
(4) The requested person for extradition may be prosecuted or have a sentence executed due to reasons such as race, religion, nationality, gender, political views, or identity, or the requested person for extradition may suffer unfair treatment in the judicial process due to such reasons;
(5) According to the laws of the People's Republic of China or the requesting country, the crime for which extradition is requested is purely a military crime;
(6) According to the laws of the People's Republic of China or the requesting country, at the time the extradition request is received, the crime is beyond the statute of limitations, or the requested person for extradition has been pardoned, and as a result, criminal liability should not be imposed on the requested person for extradition;
(7) The requested person for extradition has suffered or may suffer torture or other cruel, inhuman, or degrading treatment or punishment in the requesting country;
(8) The requesting country submits an extradition request based on an absentia judgment. However, except where the requesting country commits to giving the requested person for extradition a new trial opportunity in the presence of the court upon extradition, the request shall be refused.
Article 9 If a foreign country's extradition request to the People's Republic of China has any of the following circumstances, extradition may be refused:
(1) The People's Republic of China has criminal jurisdiction over the crime for which extradition is requested and is conducting criminal proceedings or preparing to initiate criminal proceedings against the requested person for extradition;
(2) Due to reasons such as the age or health of the requested person for extradition, it is not appropriate to extradite them based on humanitarian principles.
Section Submission of Extradition Request
Article 10 The extradition request of the requesting country shall be submitted to the Ministry of Foreign Affairs of the People's Republic of China.
Article 11 When requesting extradition, the requesting country shall submit an extradition request, which shall include:
(1) The name of the requesting agency;
(2) The name, gender, age, nationality, type and number of identification documents, occupation, physical characteristics, place of residence and habitual residence, and other information helpful in identifying the requested person for extradition and locating them;
(3) The facts of the crime, including the time, place, actions, and results of the crime;
(4) The laws on the conviction and sentencing of the crime, as well as the statute of limitations.
Article 12 When requesting extradition, the requesting country shall provide the following materials at the same time as submitting the extradition request:
(1) If the extradition is requested for criminal prosecution, a copy of the arrest warrant or other documents with equivalent effect shall be attached; if the extradition is requested for the execution of a sentence, a copy of the final judgment or ruling shall be attached, and for a portion of the sentence that has already been executed, a certificate of the executed sentence shall also be attached;
(2) Necessary evidence or materials related to the crime. If the requesting country has the photograph, fingerprints, or other materials that can confirm the identity of the requested person for extradition, they shall be provided.
Article 13 The extradition request submitted by the requesting country under this section, or other relevant documents, shall be officially signed or stamped by the competent authorities of the requesting country and shall be accompanied by a Chinese translation or a translation in other languages approved by the Ministry of Foreign Affairs of the People's Republic of China.
Article 14 When requesting extradition, the requesting country shall provide the following guarantees:
(1) The requesting country shall not hold the requested person for extradition criminally for crimes committed before extradition, nor shall it extradite them to a third country. However, except where the People's Republic of China agrees, or the requested person for extradition does not leave the requesting country within 30 days after the conclusion of the criminal proceedings, the completion of the sentence, or the early release, or voluntarily returns after leaving, the requesting country may be held responsible for any damages caused to the requested person for extradition due to the extradition request.
(2) If the requesting country withdraws or abandons the extradition request after submitting it, or submits an incorrect extradition request, the requesting country shall bear the responsibility for any damages caused to the requested person for extradition due to the extradition request.
Article 15 In the absence of an extradition treaty, the requesting country shall make a reciprocal commitment.
Section Review of Extradition Request
Article 16 After receiving the extradition request from the requesting country, the Ministry of Foreign Affairs shall review whether the extradition request and the attached documents and materials meet the provisions of this Chapter, Section 2 and the extradition treaty.
Article 17 If two or more countries request extradition of the same person for the same or different acts, the priority order of accepting the extradition request shall be determined by comprehensively considering factors such as the order in which the People's Republic of China receives the extradition request and whether the People's Republic of China and the requesting country have an extradition treaty relationship.
Article 18 If the Ministry of Foreign Affairs finds that the extradition request submitted by the requesting country does not meet the provisions of this Chapter, Section 2 and the extradition treaty, it may request the requesting country to provide supplementary materials within 30 days. The term may be extended by 15 days upon the request of the requesting country. If the requesting country fails to provide supplementary materials within the above-mentioned term, the Ministry of Foreign Affairs shall terminate the extradition case. The requesting country may submit a formal extradition request for the same crime again.
Article 19 If the Ministry of Foreign Affairs finds that the extradition request submitted by the requesting country meets the provisions of this Chapter, Section 2 and the extradition treaty, it shall forward the extradition request and the attached documents and materials to the Supreme People's Court and the Supreme People's Procuratorate.
Article 20 If the requested person for extradition has already been detained for extradition before the requesting country submits a formal extradition request, upon receiving the extradition request and the attached documents and materials, the Supreme People's Court shall promptly forward them to the relevant higher people's court for review. If the requested person for extradition has not been detained for extradition before the requesting country submits a formal extradition request, upon receiving the extradition request and the attached documents and materials, the Supreme People's Court shall notify the Ministry of Public Security to locate the requested person for extradition. After locating the requested person for extradition, the Ministry of Public Security shall, depending on the circumstances, take measures such as extradition detention or extradition surveillance and notify the Supreme People's Court. Upon receiving the notification from the Ministry of Public Security, the Supreme People's Court shall promptly forward the extradition request and the attached documents and materials to the relevant higher people's court for review. If, after the Ministry of Public Security searches, it confirms that the requested person for extradition is not within the territory of the People's Republic of China or the requested person for extradition cannot be located, the Ministry of Public Security shall promptly notify the Supreme People's Court. Upon receiving the notification from the Ministry of Public Security, the Supreme People's Court shall promptly notify the Ministry of Foreign Affairs of the search results, and the Ministry of Foreign Affairs shall notify the requesting country.
Article 21 After reviewing, if the Supreme People's Procuratorate finds that criminal prosecution should be conducted by the judicial organs of the People's Republic of China for the crime for which extradition is requested or other crimes of the requested person for extradition, but criminal proceedings have not yet been initiated, it shall, within one month from receiving the extradition request and the attached documents and materials, inform the Supreme People's Court and the Ministry of Foreign Affairs of the intention to initiate criminal proceedings.
Article 22 The higher people's court shall review the extradition request of the requesting country in accordance with the relevant provisions of this Law and the extradition treaty regarding the conditions for extradition, and shall form a collegiate panel of three judges to conduct the review.
Article 23 When reviewing the extradition case, the higher people's court shall hear the statement of the requested person for extradition and the opinions of the Chinese lawyer they have retained. The higher people's court shall send a copy of the extradition request to the requested person for extradition within ten days of receiving it from the Supreme People's Court. The requested person for extradition shall submit their opinion within thirty days of receiving it.
Article 24 After reviewing, the higher people's court shall make the following rulings separately:
(1) If it is deemed that the extradition request of the requesting country meets the provisions of this Law and the extradition treaty, a ruling shall be made that the conditions for extradition are met. If the requested person for extradition has circumstances for deferring extradition as stipulated in Article 42 of this Law, the ruling shall state this;
(2) If it is deemed that the extradition request of the requesting country does not meet the provisions of this Law and the extradition treaty, a ruling shall be made not to extradite. If the requesting country requests, a ruling may be made to transfer relevant property related to the case at the same time as the ruling that the conditions for extradition are met, without affecting other criminal proceedings being conducted within the territory of the People's Republic of China and without infringing on the legitimate rights and interests of any third party within the territory of the People's Republic of China.
Article 25 After making a ruling on meeting the conditions for extradition or not extraditing, the higher people's court shall read it to the requested person for extradition and shall, within seven days of making the ruling, report the ruling and relevant materials to the Supreme People's Court for review. If the requested person for extradition is dissatisfied with the ruling of the higher people's court on meeting the conditions for extradition, the requested person for extradition and their retained Chinese lawyer may, within ten days from the time the court reads the ruling to the requested person for extradition, submit their opinions to the Supreme People's Court.
Article 26 The Supreme People's Court shall review the ruling of the higher people's court under the following circumstances and handle it separately:
(1) If it is deemed that the ruling of the higher people's court meets the provisions of this Law and the extradition treaty, the ruling of the higher people's court shall be confirmed;
(2) If it is deemed that the ruling of the higher people's court does not meet the provisions of this Law and the extradition treaty, the Supreme People's Court may rule to rescind it, remand it to the original court for review, or directly make a ruling on modification.
Article 27 During the review process, if necessary, the court may request the requesting country to provide supplementary materials within 30 days through the Ministry of Foreign Affairs.
Article 28 After making a ruling on confirmation or modification, the Supreme People's Court shall, within seven days of making the ruling, send the ruling to the Ministry of Foreign Affairs and also deliver it to the requested person for extradition. If the Supreme People's Court confirms or makes a ruling not to extradite, it shall promptly notify the Ministry of Public Security to lift the compulsory measures taken against the requested person for extradition.
Article 29 After receiving the ruling of the Supreme People's Court not to extradite, the Ministry of Foreign Affairs shall promptly notify the requesting country. After receiving the ruling of the Supreme People's Court on meeting the conditions for extradition, the Ministry of Foreign Affairs shall report to the State Council for a decision on whether to extradite. If the State Council decides not to extradite, the Ministry of Foreign Affairs shall promptly notify the requesting country. The court shall promptly notify the Ministry of Public Security to lift the compulsory measures taken against the requested person for extradition.
Section Compulsory Measures for Extradition
Article 30 For cases where a foreign country formally submits an extradition request, if an application is made for detention measures for the person to be requested for extradition due to an emergency, the Ministry of Public Security may take measures such as extradition detention based on the application of the foreign country. The application referred to in the preceding paragraph shall be submitted through diplomatic channels or in writing to the Ministry of Public Security and shall include:
(1) The content stipulated in Articles 11 and 14 of this Law;
(2) An explanation that the materials referred to in the first item of Article 12 of this Law have been obtained;
(3) An explanation that a formal extradition request will be submitted soon. For applications submitted through diplomatic channels, the Ministry of Foreign Affairs shall promptly forward the application to the Ministry of Public Security. For applications submitted to the Ministry of Public Security, the Ministry of Public Security shall notify the Ministry of Foreign Affairs of the relevant circumstances of the application.
Article 31 When the Ministry of Public Security takes measures such as extradition detention for the requested person according to the provisions of Article 30 of this Law, if the application is submitted to the Ministry of Public Security, the Ministry of Public Security shall promptly notify the other party of the implementation status. If the application is submitted through diplomatic channels, the Ministry of Public Security shall notify the Ministry of Foreign Affairs of the implementation status, and the Ministry of Foreign Affairs shall promptly notify the requesting country. If the Ministry of Public Security does not receive a formal extradition request from the foreign country within 30 days after taking measures such as extradition detention, the extradition detention shall be revoked. The term may be extended by 15 days upon the request of the foreign country. If extradition detention is revoked according to the second item of the preceding paragraph, the requesting country may formally submit an extradition request for the same crime again.
Article 32 After receiving the extradition request and the attached documents and materials, if it is deemed that failure to take measures such as extradition arrest may affect the normal process of extradition, the higher people's court shall promptly make a decision on extradition arrest. If measures such as extradition arrest are not taken for the requested person for extradition, the higher people's court shall promptly make a decision on extradition surveillance.
Article 33 Measures such as extradition detention, extradition arrest, and extradition surveillance shall be implemented by the Ministry of Public Security.
Article 34 The agency that takes measures such as extradition shall question the person subjected to such measures within 24 hours after taking them. The person subjected to measures such as extradition may hire a Chinese lawyer to provide legal assistance. When implementing measures such as extradition, the Ministry of Public Security shall inform the person subjected to such measures of the above rights.
Article 35 For the requested person for extradition who should be subject to measures such as extradition arrest, if they suffer from serious illness or are pregnant or nursing their infant, measures such as extradition surveillance may be taken.
Article 36 After the State Council makes a decision to grant extradition, it shall promptly notify the Supreme People's Court. If the requested person for extradition has not been arrested for extradition, the court shall promptly make a decision on extradition arrest.
Article 37 If the requesting country withdraws or abandons the extradition request, the compulsory measures such as extradition taken against the requested person for extradition shall be immediately lifted.
Section Execution of Extradition
Article 38 Extradition shall be carried out by the Ministry of Public Security. If the State Council decides to grant extradition, the Ministry of Foreign Affairs shall promptly notify the Ministry of Public Security and notify the requesting country and the Ministry of Public Security to agree on the time, place, and method of handing over the requested person for extradition, as well as other matters related to the execution of extradition.
Article 39 For the execution of extradition in accordance with the provisions of Article 38 of this Law, the Ministry of Public Security shall, according to the ruling of the court, hand over property related to the case to the requesting country. If extradition cannot be carried out due to the death, escape, or other reasons of the requested person for extradition, the above-mentioned property may also be handed over to the requesting country.
Article 40 If the requesting country does not receive the requested person for extradition within 15 days from the agreed time of handover, it shall be deemed as automatically abandoning the extradition request. The Ministry of Public Security shall promptly release the requested person for extradition, and the Ministry of Foreign Affairs may no longer accept the requesting country's request for extradition for the same crime again. If the requesting country is unable to receive the requested person for extradition within the above-mentioned term due to reasons beyond its control, it may apply for an extension of the term, but the longest extension shall not exceed 30 days, or it may re-agree on the handover matters in accordance with the provisions of Article 38 of this Law.
Article 41 If the extradited person returns to the People's Republic of China before the end of the criminal proceedings or the completion of the sentence in the requesting country, they may be re-extradited upon the submission of the same extradition request by the requesting country again, without the need to submit the documents and materials stipulated in this Chapter, Section 2.
Section Suspension and Temporary Extradition
Article 42 When the State Council decides to grant extradition, if the judicial organs of the People's Republic of China are conducting criminal proceedings or executing a sentence for other crimes against the requested person for extradition, the State Council may simultaneously decide to suspend extradition.
Article 43 If the suspension of extradition may cause serious obstacles to the criminal proceedings of the requesting country, and it does not hinder the criminal proceedings being conducted within the territory of the People's Republic of China, and the requesting country guarantees to return the requested person for extradition unconditionally immediately after the completion of the relevant procedural procedures, temporary extradition may be granted upon the request of the requesting country. The decision on temporary extradition shall be made by the State Council after obtaining the consent of the Supreme People's Court or the Supreme People's Procuratorate.
Section Transit for Extradition
Article 44 If extradition between foreign countries requires passing through the territory of the People's Republic of China, it shall be proposed in accordance with the provisions of Article 4 and Section 2 of this Chapter. If extradition is carried out by air transport and there is no plan to land within the territory of the People's Republic of China, the provisions of the preceding paragraph shall not apply; however, if an unplanned landing occurs, the provisions of the preceding paragraph shall apply.
Article 45 For the transit request submitted by foreign countries, the Ministry of Foreign Affairs shall review it in accordance with the relevant provisions of this Law and make a decision on whether to grant or refuse transit. The decision on granting or refusing transit shall be notified to the requesting country through the same channel as receiving the request. After making a decision to grant transit, the Ministry of Foreign Affairs shall promptly notify the Ministry of Public Security. Matters such as the time, place, and method of transit shall be decided by the Ministry of Public Security.
Article 46 The transit for extradition shall be supervised or assisted by the public security organ of the place of transit. The public security organ may provide temporary detention facilities upon the request of the transit requesting country.
Chapter Extradition to Foreign Countries
Article 47 When requesting foreign countries to grant extradition or transit for extradition, the provincial, autonomous region, or municipal people's courts, people's procuratorates, public security organs, public security organs for state security, or prison management organs responsible for handling relevant cases shall separately submit proposals to the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, or the Ministry of Justice, and attach relevant documents and materials and their certified translations. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, or the Ministry of Justice shall separately review and approve them in conjunction with the Ministry of Foreign Affairs and submit the request to foreign countries through the Ministry of Foreign Affairs.
Article 48 In emergencies, measures such as temporary detention may be requested from foreign countries before formally submitting an extradition request to foreign countries through diplomatic channels or other channels agreed by the requested country.
Article 49 The documents, materials, and materials required for the request for extradition, transit, or temporary detention shall be submitted in accordance with the provisions of the extradition treaty. If there is no extradition treaty or the extradition treaty does not stipulate, it may be referred to the provisions of Section 2, Section 4, and Section 7 of this Law. If the requested country has special requirements, it may be submitted in accordance with the special requirements of the requested country without violating the basic principles of the laws of the People's Republic of China.
Article 50 If the requested country imposes conditions on granting extradition, for conditions that do not damage the sovereignty, national interests, or public interests of the People's Republic of China, the Ministry of Foreign Affairs may, on behalf of the government of the People's Republic of China, make commitments to the requested country. For commitments on limiting prosecution, the Supreme People's Procuratorate shall make the decision; for commitments on sentencing, the Supreme People's Court shall make the decision. The judicial organs shall be bound by the commitments made.
Article 51 The Ministry of Public Security is responsible for receiving the person granted extradition by foreign countries and property related to the case. For other departments that submit requests for extradition, the Ministry of Public Security shall promptly transfer the extradited person and property related to the case to the department that submitted the request for extradition; it may also jointly receive the extradited person and property related to the case with other departments.
Chapter Supplementary Provisions
Article 52 According to this Law, whether to extradite shall be decided by the State Council. When necessary, the State Council may authorize relevant departments of the State Council to make the decision.
Article 53 If the requesting country withdraws or abandons the extradition request after submitting it, or submits an incorrect extradition request, causing damages to the requested person for extradition, and the requested person for extradition submits a claim for compensation, the claim shall be submitted to the requesting country.
Article 54 The costs incurred in handling extradition cases shall be handled in accordance with the extradition treaty or agreement jointly participated in or signed by the requesting country and the requested country.
Article 55 This Law shall come into force upon promulgation.