Amendment to the criminal procedure law of learning

                                 Author Zhu Shaolei lawyer

Editor's note

The criminal procedure law is the basic law of criminal procedure, is the punishment of crime and protection of human rights law, criminal activity is prosecuting the crime, the punishment of the crime activities, the process of litigation and litigation results and citizens' freedom of the person, property rights and other basic rights are closely related.The amendment of the criminal procedure law relates to all aspects of the court, the procuratorate, the investigation organ, the case handling department of lawyer practice. Study the law of criminal procedure, especially the study of the amendment to the Criminal Procedural Law is a legal person in particular lawyer occupation bounden duty.

In this paper, copyright reserved, limited to law or legal occupation exchange, shall not be used for commercial purposes.

 

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     Decision of the National People's Congress on the revision of "Criminal Procedure Law" of the people's Republic of China

     Wang Zhaoguo On the amendment to the Criminal Procedural Law (Draft) description

 The Hu Kangsheng report news reports

 Lang Shengda reporters

 Chen Guangzhong accepts a reporter to visit the news reports

    1996Criminal procedure law text

     Individual learning experience

(Note: the learning materials in the so-called legislative reason is the author and editor with according to materials and personal understanding to study, and not the legislative official legislative reasons, it has not the scientific and authoritative, for reference only)

 

The criminal procedure law is the basic law of criminal procedure, judicial organs to handle criminal cases, the majority of citizens to exercise their litigation rights in accordance with the law a legal norm. With the rapid economic and social development, with the various aspects of the changes, the criminal procedure law also faces some new problems. The amendment of criminal procedure law, is to further strengthen the punishing crimes, protecting people's need, the need to further strengthen the social management and innovation, to further deepen the reform of the judicial system and working mechanism, a significant action to promote our country democratic and legal progress.

In the draft amendments to draft and revise the work, pay attention to the following problems: one is the,Insist on proceeding from China's basic national conditionsStep by step, promote the perfection of our criminal litigation system. The improvement of criminal procedure and related system, should be based on our country and will remain in the basic national conditions and the stage characteristics of the primary stage of socialism, not only to keep pace with the times, and do not go beyond the current reality, do not blindly copy foreign judicial system and litigation system. Two.We will handle well the relationship between punishing crime and protecting human rights. The amendment of the criminal procedure law and perfect, which should help to ensure the accurate and timely identification of criminal facts, correct application of law, punishment of criminals, but also to protect innocent people from criminal prosecution, respect and safeguard human rights, protection of civil litigation rights and other lawful rights. Three.To solve key problems in punishing crimes and safeguarding judicial justice. Through in-depth investigations and study, strengthen communication and coordination with all concerned, efforts to form a consensus, to solve outstanding problems in judicial practice. At the same time, pay attention to play a guiding role of law, provide clear legal norm for criminal activities.

 

The main contents of the draft amendment

Criminal law amendment draft Co111Article.

 

A,Second shall be amended as: "the criminal procedure law of the people's Republic of China is the task, to ensure accurate, timely find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution, to educate citizens to consciously abide by the law, actively accomplice to fight crime, safeguard the socialist legal system,Respect for and protection of human rights, protect citizen's personal rights, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction."

Reasons of legislation: respecting and safeguarding human rights is an important principle of constitution of our country, embodies the essential requirement of the socialist system. Criminal procedure law to carry out the principle of the Constitution in the program settings and specific provisions. Criminal litigation between the personal freedom of citizens basic rights, to "respect and protect human rights" explicitly written into the law of criminal procedure, is conducive to more fully reflect the socialist nature of our judicial system, but also conducive to the judiciary in criminal procedure to follow and implement the constitution principle.

TheThe cultivation of legal occupation, the community to "respect and ensure human rights" legal consciousness and legal ideas than any specific provisions of the law in criminal proceedings are important. Because the life of the law lies in the implementation, the implementation of the law in particular law is required by the investigators to practice. Only if all the legal occupation unified provisions legal practices in various legal concept of human rights can be truly effective specific respect and guarantee.

 

Two,The fourteenth paragraph is amended as: "the people's courts, the people's procuratorates andPoliceShall guaranteeCriminal suspects, defendants and other participants in the proceedings shall have the right to defenseAnd other litigation rights."

Delete paragraph second. (Cases involving crimes committed by minors)

Reasons of legislation:Special emphasisCriminal suspects, defendants and other participants in the proceedings shall have the right to defense. The minor criminal procedure and add a separate chapter, as of fifth the first chapters: the first chapter is a minor procedure of criminal case.

 

Three,Twentieth shall be amended as: "the intermediate people's courts shall have jurisdiction over the following criminal cases of first instance:

"(a) to endanger national security, terrorism cases;

"(two) may be sentenced to life imprisonment, the death penalty cases."

Reasons of legislation:　

ArticleFirst, China's criminal law has abolished the counter revolutionary crimes, so the law of criminal procedure corresponding to the counter revolutionary proceedings.

Second, in view of criminal terrorist activities related to national security and social harmfulness terrorism cases and social influence, the criminal trial grade modifications improve terrorism cases against terrorist crime is conducive to better.

Third, may be sentenced to life imprisonment, the death penalty case trial of a permission to the intermediate court, no longer distinguish between ordinary criminal cases or special cases.

Fourth, the national treatment principle of criminal cases of foreigners crime, not particularly stressed the need by the intermediate people's Court of first instance.

 

　　Four,Thirty-first shall be amended as: "a challenge under this chapter shall apply to court clerks, interpreters and identification of human.

 "The defender, agent ad litem may require avoidance, apply for reconsideration in accordance with the provisions of this chapter."

Reasons of legislation:

The modification is givenThe defenders and agents ad litem, criminal litigation request for withdrawal, reconsideration, litigation rights.

 

Five,Thirty-third shall be amended as:"The suspect since the first interrogation by the investigatory organ or coercive measures taken to date, has the right to entrust defenders; in the investigation period, can only be entrusted lawyer. The accused has the right to entrust defenders at any time.

   When the investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, it shall inform the criminal suspect has the right to entrust defenders. The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders. The people's court shall accept the case within three days, it shall inform the defendant has the right to entrust defenders.The suspect, the defendant in custody requests entrust a defender, the people's court, the people's procuratorates and the public security organs shall promptly convey the requirements.

    The suspect, the defendant in custody, also by the guardian, close relatives to entrust defenders.

   The defenders by criminal suspect, defendant after commissioning, it shall promptly inform the court authority.

Reasons of legislation:

The defense system is an important system of criminal proceedings in the protection of criminal suspects, defendants to exercise his right according to law. The draft amendment to focus on improving the provisions counsel in criminal litigation legal status and role, expanding the scope of legal aid.

1You can entrust defenders clear criminal suspects in the investigation stage.The amendments to the criminal procedure law about criminal suspects in the investigation stage revision can only hire a lawyer to provide legal help: can entrust a lawyer criminal suspects in the investigation period.

2, some representative, criminal suspects, defendants in custody requests entrust a defender, the people's court, the people's procuratorates and the public security organs shall promptly convey the requirements. The Law Committee of the adoption of this advice, suggestions.

 

Six,Thirty-fourth shall be amended as: "the suspect, the defendant due to financial difficulties or other reasons, counsel did not entrust,And his near relatives may apply to legal aid institutions. To meet the conditions of legal aid, legal aid agencies shall appoint lawyers to defend the.

 "The suspect, the defendant is blind, deaf, dumb, orMental patient who has not completely lost the ability to recognize or control his own conduct, not entrust a defender, the people's court,The people's procuratorates and the public security organsShall inform the legal aid institutions appoint lawyers to defend the.

 "The suspect, the defendant may be sentenced toLife imprisonment, the death penalty, not entrust a defender, the people's court,The people's procuratorates and the public security organsShall inform the legal aid institutions appoint lawyers to defend the."

Reasons of legislation:

The defense system is an important system of criminal proceedings in the protection of criminal suspects, defendants to exercise his right according to law. Amendment to broaden the scope of legal aid.

First, legal aid is not confined to the prosecutor's case, the amendment will be the scope of legal aid in criminal procedure extend beyond all criminal proceedings, and the application procedure of legal aid, legal aid agencies.

Second, the legal aid recipient object expanded to the suspects on the basis of the original program, from the early stages of the investigation. Inform the legal aid institutions subject to the people's court appointed lawyer extension, the people's procuratorates and the public security organs.

Third, appointed defense by the blind, deaf, dumb and may be sentenced to life imprisonment, the death penalty to expand the mental patient who has not completely lost the ability to recognize or control his own conduct.

The right to defense fourth, minors. The minor criminal procedure and add a separate chapter, as of fifth the first chapters: the first chapter is a minor procedure of criminal case.

 

Seven,Thirty-fifth shall be amended as: "the responsibility of a defender shall according to the facts and the law,Put forwardMaterials and opinions of criminal suspects, defendants not guilty, a mitigated punishment or exemption from criminal responsibility,, the maintenance of criminal suspects, defendantsLitigation rights and other lawful rights and interests."

Reasons of legislation:

First, inIn the criminal procedure amendment establishes provisionsNo person shall be forced to prove his guilty principleTherefore, as a defenseThe burden of proof shall not bear criminal litigation, but have the right to present materials and arguments the suspect, the defendant not guilty, a mitigated punishment or exemption from criminal responsibility.

Second, the modified the original textThe legitimate rights and interestsClearLitigation rights and other lawful rights and interests,That the responsibility of a defender shallMore attention should be paid to the maintenance of the suspect, the defendant's litigation rights.

 

EightOne article is added as the thirty-sixth,,: "defense counsel in the investigation period can provide legal assistance for criminal suspects; complaints, charges; apply for alteration of the compulsory measures; to the investigation organ about the crime suspect guilty and case, put forward opinions."

Reasons of legislation:

AmendmentYou can entrust defenders clear criminal suspects in the investigation stageThe lawyer has the right, as advocates of early involvement in the investigation stage. Therefore, the amendment prescribed litigation rights and responsibilities to ensure the investigation stage the lawyer.

 

Nine, thirty-sixth changed to two, as thirty-seventh, thirty-eighth, amended as:

"Thirty-seventh defense lawyers with the criminal suspect in custody, meet and correspond with the defendant. Other defenders, with permission of the people's court, the people's Procuratorate, may also with the criminal suspect in custody, meet and correspond with the defendant.

"Defense lawyers the lawyer's practicing certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange to meet, not later than forty-eight hours.

"Crimes of endangering national security, terrorist activities, particularly great bribery crimeIn the investigation of criminal cases, counsel meets with the criminal suspect in custody,The investigation organ shall permit. Of these cases, the investigation organ shall notify the.

"Defense lawyers meet the suspect, the defendant, the understanding of the circumstances of the caseProviding legal consultation, etc.;Since the case is transferred for examination before the date, to the suspect, the defendantVerify the relevant evidence. Defense attorneyThe meeting with the criminal suspect, the defendant is not to be monitored.

"Defense lawyer with the criminal suspects, defendants met, communication, applies the first, third, fourth.

"Thirty-eighth defense lawyers of the people's Procuratorate date, consult, extract, replicationIn this case the materials. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material."

Reasons of legislation:

ArticleA,Echoing the new lawyer law,The new lawyer law of lawyer rights stipulated in the criminal procedure law solemnly as national legislation inThe judicial organs, to avoid unreasonable difficulties. Restatement of the criminal procedure law, lawyer, a lawyer's practicing certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange to meet, not later than forty-eight hours. I hope this modification can effectively solve the lawyersMeet the difficult problem.

Second, in view of our country and will remain in the basic national conditions and the stage characteristics of the primary stage of socialism, considering China's present situation investigation and investigation ability, more conducive to the fight againstCrimes of endangering national security, terrorism crime, crime of particularly great briberyAccording to the reality, judicial department needs and requirements, the suspect in the criminal procedure law amendment requires the defense counsel in the investigation period met with more than three cases, shall be approved by the investigation organ.

Of course, from the legislation angle, this also from another angle shows that in addition toCrimes of endangering national security, terrorist activities, particularly great bribery crimeMakeCrime casesOther than all other crimesDuring the investigation, a defense lawyer in meeting with the criminal suspect in custody duringNo longer need the investigation organ licenseThe investigation organ; not for any reason obstruct lawyers.

Third,Echoing the new lawyer lawThe new lawyer law "Defense attorneyThe meeting with the criminal suspect, the defendant is not to be monitored" solemnly stipulated in criminal procedure law countries as the basic law, to protect the suspect, the defendant's litigation rights and lawyers' rights.

Fourth, the amendment is an important breakthrough is required"Since the case is transferred for examination before the date, to the suspect, the defendantVerify the relevant evidence."Of course, as a senior lawyer said, here is the new right is practising trap new. LawyerTo the criminal suspect, the defendantTo verify the relevant evidenceNeed to be cautious,At present, the risk of criminal defense lawyers are too high, a little careless improper operation, will be the Judicial Office organs in collusion, perjury, obstruction to testify for the criminal defense lawyer in jail; also hope that the Supreme People's Procuratorate, the Supreme Court made the concrete judicial interpretation or National Lawyers Association formulated explicit handling criminal casesOperationGuidelines on the risk in practice of lawyers.

Fifth,This modification is another important breakthrough is required"Defense lawyers of the people's Procuratorate date, consult, extract, replicationIn this case the materials", the original96The text is specified"ThisFile documents, technical identification of materials". This provision is beneficial to the development of criminal defense lawyers work. But I doubt is here"In this case the materials"How to understand, namely specific can include what material to the Supreme People's Procuratorate judicial interpretation,

 

Ten,Increased two, as thirty-ninth, fortieth:

"Article thirty-ninth the defender believes in the investigation, prosecution during the public security organs, people's Procuratorate collected prove the criminal suspect, the defendantInnocence or light offence evidence not submitted, shall have the right to apply for access to the people's Procuratorate, the people's court.

"Article fortiethThe defending suspects were collected not at the scene of the crime, does not reach the age of criminal responsibility, mental patients belongs to not bear criminal responsibility in accordance with the law of evidence, it shall timely inform the public security organ, the people's Procuratorate."

Reasons of legislation:

First, the current criminal defense lawyers in practice, evidence collection is very weak, the arrested suspects, defendants can not go out to collect evidence in its favor. But in practice, judicial organs have strong evidence of ability, but as for departmental interests and unwilling to produce beneficial to the accused evidence. So, the criminal procedure amendment defenders, apply to the people's Procuratorate, the people's court investigation evidence collection rights, i.e."The defender believes in the investigation, prosecution, public security organs, people's Procuratorate collected during the prove the criminal suspect, defendant not guilty evidence not submitted, shall have the right to apply for access to the people's Procuratorate, the people's court."

Second, for the action game balance, since it gives counsel for investigation and evidence collection rights, so also will the defense evidence to judicial authorities the right to know, that is"The defending suspects were collected not at the scene of the crime, does not reach the age of criminal responsibility, mental patients belongs to not bear criminal responsibility in accordance with the law of evidence,It shall timely inform thePublic security organs, people's Procuratorates." (to be continued)