Abstract:Article 105 of the Criminal Procedure Law is a provision on periods and their calculation. Periods are counted by hour, day or month, instead of year. The phrase “ The starting hour or day of a period shall not be counted in the period” is merely a method of calculating the period. The phrase’s basic purpose is to recognize the end of the period or the cut-off point, thus avoiding the late exercise of the right, the lapse of the right, and the invalidation or violation of the law on certain acts of litigation. The time and date of the beginning of a period signify that the effect of the period has begun, with legal effect in the procedural law. However, it is not included in the duration of the litigation period. Instead, it is considered in the substantive law pertaining to the offset of sentence. In such cases, the day of detention and arrest should be included as part of the custody duration. In addition, the term “travel time” refers mainly to the time when documents are in transit and should not include the time when criminals, defendants, or suspects are sent under escort from one location to another. Excluding the latter from the period would be contrary to the spirit of the legislation in Article 105 Paragraph 4, which stipulates that the period of detention shall not be extended on account of holidays, and is also contrary to basic jurisprudence and the concept of safeguarding human rights. In addition, the three organs of the people’s courts, the people’s procuratorates, and the public security authorities may find that a suspect or defendant suffers from a mental illness in criminal proceedings and needs to be appraised. It is inappropriate to stipulate in Article 149 of the Investigation Chapter of the Criminal Procedure Law that the period during which a mental illness appraisal of a suspect is made shall not be counted as part of the period for the handling of the case. It is proposed that a separate paragraph be established in Article 105, stipulating that “the period for psychiatric evaluation shall not be counted as part of the case”, thus radiating the effect to various stages of the proceedings.

Keywords: period; unit of account; method of calculation; the starting hour or day of a period: travel time

 

Author:Dong Kun, research fellow, CASS Institute of Law;

Source:1 (2025) Law Science Magazine.