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Interpretation: according to the decision of the National People's Congress on the revision of "Criminal Procedure Law" of the people's Republic of China (through March 14, 2012 eleventh session of the National People's Congress fifth conference)

 

Eight, one article is added as Article thirty-sixth:"Defense attorneyIn the period of investigation may provide legal aid for criminal suspects; complaints, charges; apply for alteration of the compulsory measures; to the investigation organ about the crime suspect guilty and cases,To put forward opinions."

Original text: ninety-sixth: the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, can hire lawyers to provide legal advice, to its appeal, accuse agent. If the criminal suspect is arrested, the appointed lawyer may apply for bail. Cases involving state secrets, the criminal suspect to hire a lawyer, shall be subject to the approval of the investigation organ.

   The appointed lawyer shall have the right to the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody, know the circumstances of the case to the criminal suspect. The lawyer meets with the criminal suspect in custody, the investigation organ may according to the circumstances of the case and the need to present. Design of state secrets cases, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ.

Analytical:

Keywords: the right to counsel

   In theory, right, right of presence, marking the right, right of investigation and collecting evidence is the criminal defense lawyer defense duties to exercise the four pillars of rights, in legislation and practice, the present right (the suspect, the defendant asked or forced to take measures the right to the presence of counsel) has not been recognized, but the meeting right, marking the right and the right of investigation and evidence collection has been acknowledged and guarantee of the law to a considerable extent. Although our country allow ordinary citizens as a criminal defense lawyer, but obviously in the exercise of three on the right (relative) received fewer restrictions.

   Lawyers and defenders of our original criminal procedure law will review and prosecution before getting involved in criminal suit were distinguished, not given the clear "identity", for qualitative legal advice, it provides to the crime suspect, accused the complaint service such as there is no clear. This legislative ambiguous attitude to practice the problems caused by judiciary and lawyersBecause of different position,For an interpretation of the provisions by the possible principle differencesJudicial organs may, by denying the investigation stage lawyers to defend the people's identity, to the practice of law is strictly controlled, the lawyer even discontent, also difficult to really against national authorities will, but will face the risk is enormous, which eventually led to the lawyers in the investigation stage role was severely compressed, the criminal suspect litigation right is empty.

   This amendment, an important change for the lawyer investigation phase -- confirmed the defender position. Lawmakers also seem to worry about stipulation is not clear, add this article, special instructions to the defense lawyers in the investigation stage of authority. This shows how meaningful? We can understand the provisions of the Criminal Procedure Law -- the original by comparing with the original of the criminal procedure law, lawyers can provide legal advice, complaints, charges for the suspect agent (ninety-six), to the investigation organ about the crime suspected of, relevant case condition (ninety-six), to apply for change of coercive measures (seventy-five). Visible, the new thirty-six only to the detection stage attorney expansions, seems only"Have the right to put forward opinions". The so-called "have the right to put forward opinions", if only from the literal interpretation, seems to be a redundant words -- for all the activities of lawyers in criminal proceedings, basically can be interpreted as the "opinions", should think, mentioned in this section "have the right to put forward opinions", theEssential meaningIsDefence lawyers in connection with the suspect guilty and related to the case, to be able to obtain enough response, especially to be written into the file. In the back of the analysis, we can see, the other provisions of the amendment confirms our conclusion.

 

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

"Article thirty-seventhDefense attorneyCan be the sameIn custodyThe suspect, the defendant meet and communication. 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 lawyer toCertificate, the lawyer law firm proof and the power of attorney or legal aid official letterAsk to meet with the criminal suspect in custody, the defendant,The detention centerShouldArrange meeting, not later than forty-eight hours.

"The crime of endangering national security, terrorism crime, crime of particularly great bribery case, inDuring the period of investigationDefense lawyer meets with the criminal suspect in custody, shall be subject toThe investigation organPermit. Of these cases, the investigation organShould noticeThe detention center.

"The lawyer meets with the criminal suspect in custody, the defendant,The understanding of the circumstances of the case, to provide legal consultingSince theThe case is transferred for examination before prosecutionTo date, the suspect, the defendantVerify the relevant evidence.Defense attorneyThe meeting with the criminal suspect, defendantDon't be listening.

"Defense lawyer withResidential surveillanceThe suspect, the defendant meets, communication, applies the first, third, fourth.

"Thirty-eighth defense lawyers from the people's Procuratorate to the caseThe prosecution of the day, 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."

Original text: thirty-sixth: Defense Lawyers of the people's Procuratorate date, consult, extract, copy the file documents, technical identification of material, can meet with the criminal suspect in custody and communication. Other defenders, with permission of the people's Procuratorate, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the criminal suspect in custody.

   Defense attorneys from the day the court handles the case, consult, extract, replicationCharged with the material of the facts of the crimeWith the defendant in custody, can meet and communication. Other defenders, with permission of the people's court, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the defendant in custody.

Analytical:

Keywords: right reading right

   The amendments, the original thirty-sixth adjustments, the original ninety-sixth on the stage of a lawyer to provide legal help integration over the provisions and regulations, absorption law thirty-third, article thirty-four. The modification results, is a certain extent strengthened the defender (mainly criminal defense lawyer marking the right and meet), communication rights. Specific provisions on the changes, as long as careful comparison can be seen, so here we will mainly focus the analysis for actual meaning behind these changes and possible prospect.

   We combine the Li Zhuang case analysis. An important episode of Li Zhuang case is, Li Zhuang in the three meeting with the criminal suspect in the process, because of not meeting (to be the team decision), met with the monitored and the police had a heated argument. In this dispute, the conflict reflects the original criminal law and the lawyers law analysis to the front in practice. This is not the case, the case of Pei Jinde in Beihai, Guizhou Gang case this problem exists. The amendment to the law on lawyers met with the right to exercise the detailed rules, the procedures required for the relevant authorities, made clear, it is the legislation on these judicial status response. Specifically, required procedures for the lawyer to visit the suspected criminal, defendant are clear, in the detention house arranged to meet obligations and arrange time clearly, is to exclude the lawyers in the actual exercise of power may have met with resistance from the criminal and judicial organs.

   The need to pay particular attention to the provisions of the third paragraph after paragraph "of the case, the investigation organShould noticeThe detention center".We should think aboutIf the investigation organ, without prior notice to the detention center, then the lawyer with the statutory procedures to request a meeting with the suspect in custody, the law would react? In the provisions of the previous paragraph three based on the analysis of the whole, we think, in reaction to the law: 1 detention center should be according to the second paragraph of this article to arrange meetings; 2 criminal judicial organs may not be the legal grounds for illegal meeting, lawyers and suspects were investigated. This explanation, essentially put an end to the investigation organ to take revenge on the law the provisions of this paragraph.

   Here the need for reflection is -- justice explanation for the criminal law provisions, how to get the stable and effective implementation in reality? Another formulation of this problem is -- if the criminal judicial authority refused to comply with the provisions of the real meaning of criminal procedure law, or to the criminal procedure law interpretation of injustice, will bear what and how to bear the legal consequences? From the theoretical point of view of law, the basic pattern of legal rules are generally considered to include "premise, patterns of behavior, the legal consequences", basically can think, the legal consequences are specific legal relation between behavior and specific subject in principle. At the same time, in the legislative technique, legal consequences must be explicitly stated, otherwise the law will become a mere scrap of paper. At the same time, for the study of the "behavior mode and legal consequences of the" theory of law, is mainly based on observations of the substantive law, so we need to consider the procedure law on this issue -- whether is special? The answer is yes: the substantive law in considering the behavior mode and legal consequences and their mutual relationship, basically do not need to consider the legal consequences to be "excited" problem, because the procedure law has responded well to this problem; and procedural law in considering the behavior mode and legal consequences of mutual relations, but must note that the legal consequences to be "excited", we noticed that many, such as "the investigation organ shall notify the" such norms exist in the criminal procedure of our country, this kind of specification defines the behavior patterns, but no corresponding legal consequences, on the other hand, even if the provisions of the law, also the lack of the mechanism of activation of the corresponding. So, in the process context, the legal consequences should be excited? (we think, behind the program context of law, legal consequence implies unfavorable burden, procedural such as acquired by illegal program action information is invalid, or the illegal procedure is replaced, the concrete analysis of this part, to the exclusion of illegal evidence procedure. Through parsing)The basic conclusion is -- excitation procedural legal liability needs some kind of program design, this design is the essence in the procedural law setup method, its main points include: 1 procedural legal liability must be clearly defined; 2 in violation of the law to procedural behavior specification of criminal judicial authority has the responsibility to automatically start accountability procedures; 3, the parties shall have the right to investigate the mechanism of criminal judicial organs start illegal procedural behaviors; 4 before the criminal judicial authority to form the mechanism of judicial review power against the power the. Can say, only in this way, the criminal procedure law of compulsory provisions of criminal judicial authorities will not become meaningless, and the justice interpretation of the provisions of the criminal procedure law can also be implemented in practice. Unfortunately, most specifications in the criminal procedure law does not meet the four benchmark, the many problems, we have to look forward to improving judicial interpretation, although this is looking a little far fetched.

   One of the more important is the plot in the Li Zhuang case, key sources of evidence Li Zhuang is set to perjury to investigators to monitor and Gong Gangmo met with the situation. The investigation organ for lawyers can be monitored, a major difference is the lawyer law and the criminal procedure law. From the average person to criminal litigation of perceptual knowledge (national crime) point of view, seems to be perfectly logical and reasonable monitoring the investigation organs to the lawyer, because it can prevent a lawyer to help criminals by estoppel, drilling legal loopholes to evade punishment. This is clearly understanding at the same time based on the responsibility and right to defense lawyers substantial misunderstanding. In the analysis of 1, 2, 3, 4, I am not to mind taking the trouble analysis of the right of defense of the meaning, the significance of protecting human rights, the significance of rational confrontation, stressed the importance of criminal procedure to prevent the public power of the violent, here I do not want to repeat the argument, just pointed out, listening seriously compressed the defense lawyer in space, increases the risk of lawyers, the security vulnerable themselves, the so-called performance parties "procedural rights and legitimate interests" of war responsibility did not speak. This program details, system character is about possible criminal proceedings (administrative punishment or litigation against? This is a problem!) This correction, from the point of view of "respect and ensure human rights", comply with the provisions of the law -- lawyers are not listening. At the same time, through legislation that lawyers during the meeting to the suspect, the defendant to understand the case, provide legal advice, so as to verify the evidence validity, in fact is to protect the lawyers second insurance -- if I were being monitored, which were the judiciary as perjury or obstruction of witnessing the evidence act, will not be regarded as illegal.

   The need to consider"Listen," should be how to explain? The investigation organ is entitled simply "monitor", such as video. From the legislative purpose, "not listen" form to secret communication protection law and criminal suspects, defendants, it includes respect for law, suspects personality, ensure that both sides equal confrontation, the protection of lawyers and defendants not because they see remarks and suffer adverse consequences of rich the connotation of. At the same time, this "protection" is not unlimited, the law can not tolerate the "beyond the reasonable content of meetings" behavior in the meeting, such as the use of the meeting, the destruction of the physical evidence of key, or make some other meeting with no relationship. From these two (protection and control), "listening" and should not be construed to include "video", in other words, "not to be listening," means to meet in the criminal judicial organs "visible but not hear" state. Of course, such as the analysis above, the norms of the criminal procedure law, only the provisions of "behavior" and not to "legal consequence" and "activation", so in practice the effect how, it is hard to say. (of course, can also be considered, for the criminal judicial organ violates "is not the legal consequences of the principle of monitoring", should be combined with the illegal evidence elimination procedures were overall inspection.)

   The amendment to the lawyers were also conform to the revision of the lawyers law, and further. (Law thirty-fourth stipulation, the lawyer of the date since the case of prosecution, have the right to consult, extract and duplicate litigation documents and case material. The lawyer of the case by the people's court date, have the right to consult, extract and duplicate the case and all materials. The criminal law is amended as: since the date of review and prosecution, consult, extract and duplicate the case file materials)

   A practical operation in China's criminal procedure law in the design of the system in effect is --Investigation files center doctrine. That is to say, the investigation files is very important for the prosecution indictment, during the trial, also basically is files material "verification", the court in the review of cases, will also come into contact with the case all files. In the understanding of the background, we found, provisions on marking the right of the criminal procedure law, the law of the understanding is very limited, which makes his lack of basic guarantee of quality. In the Li Zhuang case, Li Zhuang's lawyer, unable to access to the case file, in the trial face prosecutors interpret out of context, surprise attack type proof and accusation, in a passive position in fact.

   From these preliminary analyses, we seem to think, bencixiufa, in substantive defense lawyers, met with the communication right, made a considerable breakthrough. However, the legislative changes can shake the judicial practice of the unspoken rule, also need amendment enters into force, in practice to test.

Ten, increase 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 defendant not guilty evidence not submitted, shall have the right to apply for access to the people's Procuratorate, the people's court.

"Article fortieth of criminal suspects defender 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."

Hara Jowen: no

Analytical:

Keywords: evidence of innocence crime evidence

   The full exercise of marking the right, the defender may from the files found in to prove the criminal suspect, the defendant not guilty evidence. If the public security organ, the procuratorate evidence not submitted, the defender has the right to apply to the people's Procuratorate, the people's court. This provision in a sense is the extension of marking the right (of course, the defender may also through their own investigation or other legal means to find clues).

   This provision has the purpose of legislation, good but, I do not hold too much hope this clause. Because of the lack of judicial control basic provisions. Because of not guilty, guilty of evidence application, will undoubtedly weaken the strength of the indictment, the investigating authorities and the public prosecutor will not easily accept the consequences. If the system design is not the introduction of judicial control, even if the obtaining of evidence application, but also launched a public security self-examination and self negotiation, there is great risk of obtaining invalid.

   As for the fortieth, and law of criminal procedure fifteenth combined with understanding. Because not present evidence, below the age of criminal responsibility of evidence, psychiatric evidence are likely to show that the suspect Fu Hedi fifteen list should be canceled or not to prosecute the case.

 

Eleven, the thirty-eighth changed to forty-second, amended as:"Counsel or any other person, not help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs.

"In violation of the provisions of the preceding paragraph, shall be investigated for legal responsibility according to law, defendants suspected of a crime, shall beExcept for the defenders to handle cases of the investigating organ. The defender is a lawyer, shallInformThe law firm or the lawyers' association."

Original text: thirty-eighth: defense lawyers and other defenders, may help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnessesChange testimonyOr give false testimony or conduct other acts to disturb the proceedings of the judicial organs.

   Violation of the provisions of the preceding paragraph, shall be investigated for legal responsibility according to law.

Analytical:

Keywords:: perjury

   The criminal procedure law of thirty-eighth is a big kill take defenders throat. It with article 306th of the criminal law (river called lawyer perjury) a, almost stifled the defender's courage and conscience. The original provisions have some evil law characteristics: 1 discrimination defender, Defender just norms, while ignoring the more possible perjury and other malignant conditions of the public security personnel. 2 bags of provisions, provisions in the so-called "change testimony" is not the understanding and awareness of evidence, the case fact mistake deliberately caused and the general sense of the different understanding of distinction, in fact for the public security organs provide great free exercise space to suppress the defenders. 3 destruction of justice, to Li Zhuang case as an example, the conviction of Li Zhuang, in fact be justice denied the Gong Gangmo case is the main reason to torture to extract confessions, the Gong Gangmo trial justice constitutes a serious damage.

   But the original provisions in the problems on the design of the system in terms of the pocket, there are 1: the defender is forged or prejudice to testify the responsibility when to hold, is not clearly defined, the practice of police organs are "happy" in the original conclusion of the case before the start of investigation. For example, the Li Zhuang case, Gong Gangmo case is not in session, Li Zhuang has been in the article 306 of the criminal law in the legal sense of conviction and punishment, and are not. In fact, Li Zhuang case has become a tool of Justice ruled Gong Gangmo torture to extract confessions dispute case. 2 corresponding who to assume the duties of the problem, not clearly defined, in practice, to Li Zhuang case in Beihai and the four law case, is a defense contractor case investigation organ for investigation. This has seriously deviated from the principles of due process.

   The repair method, first literally changed the defender of discrimination, and the abolition of the "change testimony" this one formulation, and the provisions of the defenders suspected of a crime, shall be handled by the investigation organ to undertake outside the investigation organ. The defender is a lawyer, but also as the lawyers law, even notice the law firms or lawyers association. The provisions of this series, is the legislation on the bad situation in judicial practice response.

   But we should pay attention to the provisions, be still exists not just system tilt -- articles clear tend to regulate "defense", the public power side showed a "trust", this point, similar to the avoidance system. Of course, we can also use the method system of interpretation of criminal law, that the essence of discrimination does not exist (at least in the perjury issue), because the criminal law has the corresponding provisions of the prohibition of torture to extract confessions, the privilege against self incrimination and the exclusionary rule of illegally obtained evidence. For further reflect on this problem, we have to analysis.

 

Twelve, increase two, as forty-sixth, forty-seventh:

"And the information about the forty-sixth defense attorney known in practice, have the right to keep confidential. However, defense lawyers in the practice activities, aware of the client or other people, or are being implemented to endanger national security, public safety and serious endanger the personal safety of the crime, the judicial organ shall timely inform the.

"Article forty-seventh the defenders and agents ad litem, think that the public security organs, people's Procuratorate, the people's court and its personnel impede their exercise their litigation rights according to law, have the right to sue to the same level or the people's Procuratorate at a higher level to file a complaint or. The people's Procuratorate to appeal or accusation shall timely carry out the examination, is the case, notify the relevant authorities to rectify."

Hara Jowen: no

Analytical:

Keywords: Lawyer confidentiality litigation rights relief

   The forty-sixth is the adaptation to the law of article thirty-eighth. Need not verbosity.

   Forty-seventh the provisions of that, legislators consider the defenders and agents ad litem, litigation rights by the relief of infringement upon.Legislators will path design of remedy for the procuratorate Office. It is considered "nature's Procuratorate organs for legal supervision" based on. However, the right relief system design, procedural obstacles to justice is not justice control significance, and with the administrative tendency. The people's Procuratorate is responsible for the right of public prosecution and the right of investigation of the part itself is a crime personality, even on a Procuratorate, the procuratorate is not level independent organization building, overcome the defects of the system's character at. But, this kind of censorship of the general provisions, in practice it may lead to the defenders and agents ad litem, the complaint, accusation is excluded, no chance to argue with the alleged infringement of public security. Secret, one-sided, biased review, it is difficult to become the defenders and agents ad litem, litigation rights is to provide security.