The Standing Committee of the National People's Congress to:

   

   "The people's Republic of China criminal law amendment (Draft)" (hereinafter referred to as the "revised draft") has been published by the committee, open to the community to solicit opinions. Where the legal professionals are deeply concerned about this important event Chinese in the process of rule of law, Beijing Dacheng Law firm may contribute to the progress of the rule of law.

   

     Beijing Dacheng Law Firm is one based on the China legal services, in terms of scale ranks first in Asia in large law firms, domestic and foreign practicing lawyers more than 2000, which specializes in criminal defense business experienced lawyers have more than 200 people. Dacheng Law Firm, first in the country to set up a professional study of criminal law in handling criminal cases, specialized professional departments, specialized division of labor has a leading and unique in the industry. The draft amendment after the release of a large workshop, held many law firms in many organizations and legal experts and skilled in criminal defense, interpretation of the draft amendment to.

 

   Through the research, we think, compared to the original draft amendments to the law have made great progress, attached great importance to the protection of the basic rights of citizens, clearly stated that no person shall be forced to testify against himself, the exclusion of illegal evidence, witness mandatory court system, further improve the defense system, set up a special program for juvenile delinquency and so on, this is worth praise. But the draft amendment is to solicit comments from the public and not expect social evaluation time, therefore, in the following section, we will focus on the draft amendment suggestions.

We follow the main principle is: with the constitution, according to the international universal principles; rule of law progress, realistic and pragmatic; the law is complete, have the corresponding relief system.

   

   Our central argument is: "Criminal Procedure Law" is to establish rules for action, taking into account the original "Criminal Procedure Law" has established the principle of presumption of innocence, the revised draft and increase shall not be compelled self provided proof, therefore, in the criminal process, not a criminal only the prosecution, defense, and the referee party, both parties in the litigation process, before the referee shall not make effective judgment, its legal status should be equal. The "Criminal Procedure Law" itself should be avoid leaning to either side, is to protect the criminal justice and set up the rules, in other words, procedural law itself is only for the procedure to establish a "rules of the game".

 

   We think, the draft amendment currently, are still not fully reflect the main principles and basic requirements. Specific modifications of our recommendations are as follows.

 

     A proposed merger, the original "Criminal Procedure Law" article1Tiao Hedi2The legislative purpose, refining the representation of the Criminal Procedure Law

 

   (a) the original provisions for criminal procedure law:

   "The first to ensure the correct implementation of criminal law, punishing crimes, protecting the people, safeguarding state and public security, maintaining the socialist social order, according to the constitution, this law is enacted.

   "Second criminal procedure law of the PRC 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 struggle against criminal acts, to uphold the socialist legal system, protect citizen's personal rights, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction."

 

   (two) proposed to amend:

   "Article 1  In criminal cases, to ascertain the facts, correct and timely application of criminal law, safeguard national interests, public interests and protecting the rights of citizens, according to the constitution, this law is enacted."

 

   (three) justification for the proposed changes:

   1, criminal procedure is the national person suspected of a crime (or organization) the prosecution of legal procedure, a procedure in which the state, is one of the parties, the defendant is the other party, the two sides in a legal game. "Criminal Procedure Law" to establish rules for the prosecution of crime, the rule itself must be independent of the parties, is neutral, only in this way, the rules can be used in fully guarantee the rights of both sides, find out the facts of the case, and thus the correct and applicable criminal law, make judgments or rulings.

 

   The legal status of both 2, litigation is equal, as the "Civil Procedure Law" is not to protect the plaintiff (or the defendant) rights, "administrative procedure law" is not to protect the administrative organ (or the administrative relative person's rights), "Criminal Procedure Law" is not specifically to protect action Party -- the nation's rights. Therefore, application of "Criminal Procedure Law" does not necessarily lead to represent the state of a party (the investigation organ and procuratorial organs) will benefit, but can only lead to only results -- by applicable law judge.

 

   3, the so-called " punishment of crime" is closer to a political statement, instead of "Criminal Procedure Law" the legislative purpose, its actual effect is obtained correctly apply the "criminal law" and "Criminal Procedure Law" after one possible outcome, but is not the inevitable result, this also is the world has without the "punishment" as the purpose of the legislation of criminal procedure law reason. Due to prove the criminal procedural strict requirements, sometimes the correct application of law, but does not have "the punishment of crime". If the "punishment" as "an important aim of legislation of criminal procedure law", when there is no place for this purpose in the case, it will enable people to China criminal law.

 

   4, the provisions of the state security and social and public security of the first ", maintaining the socialist social order" and the second in the "safeguard the socialist legal system, to protect the citizens' personal rights, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction" and so on political declarative language, are can be fully embodied in the "to safeguard the state interests, public interests and protecting the rights of citizens" have such professional terminology.

 

    Two, the draft amendments to article second of the regulations to entrust defenders of amendments

   (a) the draft amendment second of the original provisions:

   "The thirty-third is amended as:" the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, has the right to entrust defenders. In the period of investigation, can only be entrusted lawyer. The investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, 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 accused has the right to entrust defenders at any time. The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

   "The defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial organs."

 

   (two) suggested that the modification is:

   "The suspectThe defendant has the right at any timeTo entrust defenders.

   "The investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, shall inform the criminal suspect has the right to entrust defenders. In the period of investigation, can only be entrusted lawyer.

   "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 after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

   "The defenders by criminal suspect, the defendant shall immediately inform the Commission, handle a casePublic security organs, people's Procuratorate or court.

 

   (three) justification for the proposed changes:

   1, entrust a lawyer is a citizen's private rights, he (she) can exercise the attorney rights at any time, the criminal suspect does not lose the rights of citizens, it cannot be entrusted to the rights of defense counsel in "after the first interrogation or coercive measures taken to date";

 

   2, in accordance with China's "constitution" regulation, the public security department under the administrative organ, so it is classified as a judicial organ is not appropriate; suggestions listed the case handling organ without cage called "judicial authority" (revised draft has many such problems, suggestion are also modified, not tag the).

 

    Three, the draft amendments to Article seventh of the lawyers met with the suspect regulation amendments

   (a) the draft amendment seventh:

   "Thirty-seventh lawyer 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 lawyer to 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.

   "The lawyer meets with the criminal suspect in custody, the defendant, can learn about the case, to provide legal consulting; since the case is transferred for examination before prosecution date, may apply to the criminal suspects and defendants, verify the relevant evidence. Defense lawyers met the suspect, the defendant is not to be monitored.

   "The crime of endangering national security, terrorism crime cases, major bribery crime in the period of investigation, lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ. For these cases, the investigation organ shall notify the.

   "Defense lawyer with the criminal suspects, defendants met, communication, provisions of the first paragraph of this article, paragraph third, paragraph fourth.

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

 

   (two) we suggest deleting the provision in the shadow part of the brush, and increase the contents, specific changes to:

   "The defense lawyer may 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 lawyer to 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 the meeting.

   "In accordance with the provisions of the preceding defense lawyers proposed to meet requirements, the no timely arranged to have the lawyers met, in the arrangement before the meeting and shall not arrange the public security organs, people's Procuratorate or the people's court for the interrogation of criminal suspects, defendants.

   "The lawyer meets with the criminal suspect in custody, the defendant, can learn about the case, provide legal advice, may apply to the criminal suspects and defendants, verify the relevant evidence. Defense lawyers met the suspect, the defendant is not to be monitored.

   "Defense lawyer with the criminal suspects, defendants met, communication, provisions of the first paragraph of this article, paragraph third of the.

   "Thirty-eighth defense lawyers of the people's Procuratorate date, canAccording to the need toConsult, extract, replication,Gets the shooting modeThe materials of the case. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, replication,ShootingThe above materials."

 

(three) justification for the proposed changes:

   1, according to the existing "Criminal Procedure Law", "lawyer law" provisions, as long as the lawyers met with the formalities complete, detention should without delay to arrange. The draft amendment to a detention center in the "latest arranged a meeting with no more than forty-eight hours", is a significant setback. Considering some administrative departments engaged in defense work for lawyers to prejudice, "or arranged to have the lawyers met with no more than forty-eight hours if the" provisions, in view of its unilateral, without explanation and legitimacy, we fear, "forty-eight hours" arrange the meeting will become a norm. So, will seriously affect the suspect, the defendant lawyer help timely access rights, also seriously affect the lawyers' rights. In fact, as long as the lawyers met with the formalities complete, the arrange to meet any obstacles, not on the technology, and the final will have to arrange the meeting. Therefore, "no more than forty-eight hours " is not legal, technical necessity inefficient delays.

 

   2, the law, judicial interpretation has the lawyers gave many provisions, but there is no procedural sanction provisions, the lawyer was refused to meet but can not complain, not relief, the lawyers to become a difficult problem. In particular, the detention house belonging to the public security organs, and in most cases, the investigation organ are the public security organs, if the investigating authorities instructed denied arrange the meeting, but no sanction accordingly, so this provision will be very difficult to implement. More lawyers proposed to meet requirements, the restrictive clause during the pre arranged to meet, so that during interrogation become invalid action, can effectively solve the difficult problem of meeting.

 

   3, to the criminal suspects and defendants, verify the relevant evidence, lawyer of rights. Since in the stage of investigation, lawyers have appeared, with the status of defender then, verify the evidence rights should enjoy the same at any stage, and not without reason, illogical rules since the date of examination and prosecution. Otherwise, the lawyers in the investigation phase position of defending, and the original "to provide legal aid lawyer" is still the same, is still the only legal help change a name, does not change the essence of the person, not the defender.

 

   4, the lawyer to meet the crime of endangering national security cases, common crime terrorism crime, serious bribery case suspect need three types of draft regulations permit the investigation organ if, in view of its discretionary power completely in the investigation organ, and without any reason to refuse lawyers is not illegal, we fear that this situation next, the investigation organ refuses to the lawyers met with the three types of case suspect will become a normal state. So, these three types of suspects in the investigation stage timely access to defense lawyers the right to help will be seriously affected. But in the law, these three types of suspects should also enjoy other suspects the right to counsel assistance; social harm their own has been through the detention under control, limit them to meet with a lawyer is not consistent with the rule of reason.

 

   5, in the legislation is not biased against defense lawyer, and do not say to lawyer must have the most basic occupation respect, at least to apply presumption of innocence to counsel, in the system design level, can not think of defense lawyer may be collusion by meeting with the three types of the suspect in the case or other illegal behavior. If the individual lawyers really have this kind of situation, can according to the law be held accountable, but can not give up eating for fear of choking, the lawyer occupation group met with the three types of the suspect in the case set limits -- just as we cannot because of individual investigators have torture to extract confessions behavior, limits all interrogation of suspects.

 

   6, if the bill passes, the parties will instinctively understand and apply the law against their own favorable social environment, we fear that such provisions will be abused, and even can use such provisions refused to meet the other case crime suspect defence lawyers in the investigation stage, such as violent crime, first many a suspected terrorist activities or endanger national security crime, economic crime or crime cases, first set a suspected of bribery crime and so on (this is not difficult in technique), to prevent the lawyer to meet the objective; the case is transferred for examination before prosecution to active removed, or by the prosecution organs do not prosecution of such crimes. If that be the case, it is hard to say the investigation organ illegal, but will completely destroy the suspect system design defense lawyers in the investigation stage to help.

 

   7, in the prosecution, the specific content of defense lawyer marking should not limit the charges in "the case material of the facts of the crime," defense lawyer has the right to access all the materials and its principal interests, as long as all the material the investigation organ is handed over to the prosecution organs of the material, as long as the defense lawyers that the the interests of the clients need to consult, you should consult. In addition, in order to avoid ambiguity, the technology of license conditions, marking the way it should by defence lawyers decide.

 

    Four, the revised draft article tenth delete the proposed defender perjury discriminatory provisions

   (a) the draft amendment tenth:

   "The thirty-eighth changed to forty-second, the first paragraph is revised as follows:" defense or to any other person, shall help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts disturbing the judiciary proceedings."

 

   (two) we strongly recommend is amended as follows:

    "The thirty-eighth deletion."

 

   (three) the proposal to delete reason:

   1, the thirty-eighth changed to forty-second, is still within the logical category fourth chapter "defence and agent", the main body of the specification is still a lawyer or other bear defense responsibility person. Taking into account the "Criminal Procedure Law" and the draft amendment does not have similar provisions, the other legal practitioners, therefore, this is an imbalance, discriminatory provisions, the defense lawyer in the need to prevent potential "interference of judicial litigation activities" enemies list, such discriminatory provisions the defense lawyer occupation groups, also do not respect.

 

   2, if the defender really engaged in the occult, destroy or falsify evidence, or collusion and the threat of the witness, can on the basis of "criminal law" third, seven people about any perjury "interference proceedings" judicial organs should be the penalty provisions, the criminal legal liability. "Criminal Procedure Law" such a procedural requirements of the rule of law, this was no longer necessary for special provisions. Therefore, the original thirty-eighth is not necessary to retain.

 

    Five, the draft amendments to the provisions of article fourteenth of the amendments of the evidence

   (a) the draft amendment to article fourteenth:

   "The forty-third changed to forty-ninth, is amended as:" the judges, procurators and investigators must, in accordance with legal procedures, to prove the criminal suspect, defendant's guilt or innocence, crime seriousness of evidence. Prohibit torture to extract confessions and other illegal methods to collect evidence, no person shall be forced to prove himself to be guilty. Must ensure that all relevant to the case or to understand the citizen, has objectively and fully provides evidence of the conditions, except in special circumstances, and can absorb them to assist in the investigation."

 

   (two) suggested that the modification is:

   "The judges, procurators and investigators must, in accordance with legal procedures, to prove the criminal suspect, defendant's guilt or innocence, crime seriousness of evidence. Prohibit torture to extract confessions andWith the threat, enticement, deceit, in hunger, lack of sleep andOtherAny of the suspects, defendants suffer physical or mental tortureIllegal methods to collect evidence, no person shall be forced to prove himself to be guilty."

 

   (three) justification for the proposed changes:

   1, the original forty-third still have "prohibited torture to extract confessions and to the threat, enticement, deceit and other illegal methods to collect evidence" that rigorous expression, at least will "by threat, enticement, deceit" methods to collect evidence as "illegal methods to collect evidence;" but the draft amendment of the change, only the inquisition torture and other illegal methods in parallel, according to the "analogy rules for light Ming heavy", people generally think "other illegal methods" is illegal behavior is more serious than the torture to extract confessions, such "by threat, enticement, deceit", not "other illegal means", in order to collect the evidence is not evidence of illegal the. This is a serious setback.

 

   2, even if not for the above understanding, tied in to torture to extract confessions and "other illegal methods" circumstances, even professional staff is also very difficult to understand the "other illegal methods" and what is the specific. In such a serious problem, the legislation if take fuzzy way, will be difficult to define the connotation and extension of the "other illegal methods", which will for all "non torture to extract confessions of illegal methods to collect evidence" opened up the road. If so, will greatly not conducive to prohibit "legislative purpose to collect evidence by other illegal means".

 

   3, in practice there are the suspects or witnesses to hunger, not to collect evidence sleep mode (revised draft article forty-seventh of the regulations necessary to ensure that the suspect, diet and rest time is implicitly acknowledge the existence of such a situation in reality), the cause of suspects or witnesses, pressure and threats ", enticement, deception", rather, plus the suggestion in the list of "illegal method".

 

   4, the suspect, the defendant illegal evidence lies in the fact that they suffered physical or mental torture, this is the general regulations on illegal evidence.

  

   5, "must ensure that all relevant to the case or to understand the citizen, has objectively and fully provides evidence of the conditions, except in special circumstances, and can absorb them to assist in the investigation", this statement has caused custody witness evidence consequences in the real world, the witness (or suspect) suddenly "disappeared", a time is the case handling organ that has been taken away "to assist in the investigation" often appear in reality, the witness (or suspect) in fact is in custody in disguised form state. "To assist in the investigation" has become a restriction of personal freedom of the special means outside the law, the illegal method without approval, no time limit, have great arbitrariness limit the personal freedom of a citizen should be banned. Therefore proposed to delete this brush shadow statement.

 

    Six, the provisions of the draft amendment fifteenth adoption of the administrative organ to collect evidence of the amendments

   (a) the draft amendment fifteenth:

   "The forty-fifth changed to fifty-first, one paragraph is added as the second paragraph:" material evidence, documentary evidence, material administrative organs collected in the process of administrative law enforcement, the judicial organs shall verify, can be used as evidence."

 

   (two) suggested that increased the paragraph is amended as follows:

"Administrative organs in the process of administrative law enforcementThrough legal procedureMaterial evidence, documentary evidence material collected by the judicial organ, verification, can be used as evidence."

 

   (three) justification for the proposed changes:

   The main sign of administration according to law is the law enforcement activities of administrative organs must strictly abide by the statutory procedures, but the practice shows that, without a deep tradition of the rule of law society, the administrative organ is the most easy to violations of the rights of citizens in violation of the statutory procedures, and then stir social unrest. Therefore, cannot simply be administrative organs of the new evidence as the judicial referee according to. Requests the executive through legal procedures to collect evidence, or in the administration of justice does not recognize its effectiveness, this is the rule of law in social problem because of the.

 

   Seven, on the draft amendment seventeenth of illegal evidence exclusion rules amendments

   (a) the draft amendment seventeenth:

   "One article is added as article fifty-third, that:" the use of torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats and other illegal methods to collect the testimony of witnesses, victims' statements, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence, seriously affecting judicial justice, the evidence should be excluded.

   "In the investigation, prosecution, trial found the evidence should be excluded, should be excluded in accordance with the law, shall not be used as prosecution, prosecution and judgment basis.""

 

   (two) the provisions that would add the following modifications:

   "Using torture to extract confessionsOr by threat, enticement, deceit, in hunger, lack of sleep andOtherAny of the suspects, defendants suffer physical or mental tortureIllegal methods to collect the criminal suspect, defendant's confession and testimony of witnesses, victims' statements, should be excluded. Violation of the provisions of the law collection evidence, documentary evidence, for the evidence should be excluded.

   "In the investigation, prosecution, trial found the evidence should be excluded, should be excluded in accordance with the law, shall not beCoercive measures,Prosecution, prosecution and judgment basis."

 

   (three) justification for the proposed changes:

   1, in the exclusion of illegal evidence can not generally say "torture to extract confessions and other illegal methods", should as far as possible list of possible ways of illegal evidence form, the specific reasons are expressed in the amendments to the draft amendment fourteenth proposals.

 

   2, illegal collection of evidence, but also "seriously affect judicial justice" to rule out the possibility, then, who is authorized to do it? "What is the serious influence judicial justice" standard? Such extreme vague expression will logically lead to the conclusion that: in the "not serious influence judicial justice", the illegal collection of evidence, and can be as the basis of decision. The wrong way is actually "exclusionary rule" into "the illegal evidence admissibility rule", which will result in serious disorder of justice. Therefore, we strongly recommend to delete this is obviously not appropriate modification.

 

   3, not only for the illegal evidence as for prosecution, prosecution and judgment basis, nor to the illegal evidence as to take coercive measures basis, this should not need any further explanation.

 

   Eight, the revised draft of eighteenth people's Procuratorate investigation of illegal evidence rule amendments

   (a) the draft amendment to Article eighteenth of the original:

   "One article is added as article fifty-fourth,:" the people's Procuratorate received a report, complaint, report or the discovery of the illegal methods to collect evidence, shall conduct investigation and verification. To do to illegal methods to collect evidence situation, should put forward rectification opinions, when necessary, may suggest the investigation organ replacement of the people. For illegal methods to collect evidence, which constitutes a crime, shall be investigated for criminal responsibility according to law.""

 

   (two) suggested that the new provisions amended as:

   "The people's Procuratorate received a report, complaint, report or the discovery of the illegal methods to collect evidence, shall conduct investigation and verification. To do to illegal methods to collect evidence situation, should put forward rectification opinions,And requirementsThe investigation organ replacement of the people,To investigate the legal liability of the illegal evidence, which constitutes a crime, shall be investigated for criminal responsibility according to law."

 

   (three) justification for the proposed changes:

   1, according to China's constitution, the people's Procuratorate is the supervisory organ for law enforcement, as has been able to do the investigation organ illegal collection of evidence, the procuratorate but only in the "necessary" (how to judge it?) "Can" (just don't do?) The replacement of the people "advice", people's Procuratorate on the criminal law enforcement Is it right? Too weak?

 

   2, we think, once can be sure that the investigation organ illegal collection of evidence, the people's procuratorates must fulfill the function of legal supervision in accordance with the law, immediately asked the investigation organ replacement personnel, and shall be investigated for legal responsibility to the illegal evidence including criminal liability. Only in this way, illegal evidence can become the investigation organ "forbidden area".

 

   Nine, the revised draft of article twenty-first of the court of the exclusionary rules of illegally obtained evidence of amendments

   (a) the draft amendment twenty-first original:

   "One article is added as Article fifty-seventh,:" for after the court, that is to collect evidence by illegal methods, or there are serious doubts, to collect evidence by illegal means the possibility cannot be ruled out, the evidence shall be dealt with in accordance with the provisions of this article fifty-third.""

 

   (two) suggested that the new provisions amended as:

   "For after the court, that is to collect evidence by illegal methods, or there are serious doubts,The investigation personnel or other personnel to appear in court to explain the situation afterTo collect evidence by illegal means the possibility cannot be ruled out, the evidence shall be dealt with in accordance with the provisions of this article fifty-third."

 

   (three) justification for the proposed changes:

   According to the provisions of the draft, the court investigation in the legitimacy of evidence, by the investigators testify in court is one of the main investigation contents. In practice, when the defendant claimed the investigation organ illegal evidence, investigators will certainly statement and guarantee the legitimate way to self collect evidence. In this case, if the investigators note is more reasonable, convincing, it can exclude the illegal collection of evidence may. If the investigators note too rough or unreasonable, the parties concerned and the defenders and agents ad litem, still questioned, should not easily accept investigators description, but should be legal requirements of the prosecution cited evidence collecting evidence, otherwise can't rule out the possibility of illegal evidence gathering. Therefore, it is necessary to emphasize"The investigation personnel or other personnel to explain the situationStill can not rule out the possible "to collect evidence by illegal methods, in order to prevent often appear in practice as long as the investigators in the court to explain the situation, whether that is reasonable, was thought to have no other proof of the phenomenon continues.

 

   Ten, the provisions of the draft amendment twenty-nine residential surveillance of delete comments

   (a) the draft amendment to Article twenty-ninth of the original:

   "One article is added as article seventy-second,:" the people's court, the people's procuratorates and the public security organs in accordance with the conditions of arrest, in any of the following circumstances of criminal suspects, defendants, to residential surveillance:

"(1) with severe disease, the life cannot provide for oneself;

"(2) pregnant or breast-feeding her baby;

"(3) because of the need for the special circumstances of the case or the handling of cases, take measures are more suitable for residential surveillance;

"(4) detention period expires, the case has not yet completed, need to residential surveillance measures.

"In accordance with the bail conditions, but the suspect, the defendant cannot provide a guarantor, do not pay the deposit, or residential surveillance.

"Residential surveillance shall be executed by a public security organ.""

 

   (two) strongly suggest deleting residential surveillance third kinds of situations, namely, delete "because of the need for the special circumstances of the case or the handling of cases, to residential surveillance measures more appropriate" as a case for residential surveillance.

 

   (three) the proposal to delete reason:

   1, according to the provisions of the new provisions, reference and practice around the world, residential surveillance is a completely from the system design to the suspect's point of view, one should and must be accounted for arrest and custody to compulsory measures light. Therefore, the suspect cannot for residential surveillance more than detained in prison more adverse treatment.

 

   2, the so-called "because of the need for the special circumstances of the case or the handling of the case" residential surveillance measures taken, is not conducive to residential surveillance from suspect angle of arrangement, but will facilitate the investigation organ case and the measures taken. And what is the "special circumstances" case, what is "the handling of cases needs", which are by the investigating authorities on their own hands, and not to any organization or individual to explain, also need not consider the suspect's interest. It has been designed to residential surveillance system.

 

   3, further consideration of the draft amendment thirtieth, thirty-one also provides for residential surveillance can be designated places, in some cases, can not inform the family, may refuse to defense lawyers, without the approval of the organ executing no freedom and so on, then essentially secret detention conditions, if the investigation organ "because of the need to" the special circumstances of the case or the handling of cases and the suspects at the designated places and residential surveillance, in six months time, 24 hours a day in the suspect the investigation organ unilateral control, security of any right of suspects will be completely out of control, even not to mention their human dignity will be how to obtain security at least, also strongly questioned how to avoid the possibility of the investigation organs abuse of power? How the suspect will obtain from torture to extract confessions, cheat for, inducement of security?

 

   4, the new provisions with respect to the original "criminal procedural law" in article fifty-first of the residential surveillance rules, is a huge setback, is to admit the abuse of the practice to residential surveillance, a secret detention specified in the law of.

 

   Eleven, the provisions of the draft amendment to Article thirtieth of residential surveillance notification amendments

   (a) the draft amendment to Article thirtieth of the original:

   "One article is added as article seventy-third,:" residential surveillance shall execute the criminal suspects, defendants in place; no fixed residence, can be specified in the residence of execution. For the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the place of custody, special case handling place execution.

   "The specified home residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the premises, in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people.

   "The specified home residential surveillance, criminal suspects, defendants to entrust defenders, this Law shall apply to the thirty-third.

   "The supervision of people's Procuratorate to specify the decision and implementation of residential surveillance is legal residence."

   

   (two) suggested that the new provisions of the second paragraph is revised as follows:

   "The specified home residential surveillance,In addition to being residential surveillance did not inform his family name, domicile or contact and the executing organ cannot be verified under residential surveillance, home or family contact,Should the residential surveillance and enforcement of the premises, in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people."

 

   (three) justification for the proposed changes are as follows:

   1, in modern society, any form of secret detention, are contrary to the principle of rule of law of the protection of human rights.

 

   The mutual love between 2, family care is a basic human normal society should protect, even for suspicion of crime (or sentenced to recognize for the crime) and lose the free man, tell their families lose their freedom of reason and the place where it is now, the humanitarian requirements. The specified residential surveillance in effect is a disguised detention under residential surveillance of people lost their personal freedom, in this case, the state should ensure that the most basic information under residential surveillance family as soon as possible to the family. If lightly to "not notice" by not fulfill the obligation to inform, it is disregard for a society the most basic ethical principles, the actual cause secret detention consequences will hurt the security of every citizen.

 

   3, only the investigation organ unilateral grasp "unable to inform", revised as more operable "Under residential surveillance did not inform his family name, domicile or contact and the executing organ cannot be verified under residential surveillance, home or family contact", to supervise the investigation organ strictly fulfill the obligation to inform.

 

   4, as for the other cases not notice, namely "suspected of crimes of endangering national security, terrorist crimes, notification would hinder the investigation of possible", we suggest to be deleted. Because the provisions of this law, the principle of which is not justified. These two crime suspect has been controlled, have essentially been disguised detention, inform the family only perform basic humanitarian obligations. Between us and the terrorism is the most fundamental difference is: we are a humanitarian, we respect human life, freedom and rights, rather than to treat terrorism terrorism.

 

   5, the so-called "notice may impede the investigation" in legal technology is unreasonable. The suspect has been control, further investigation of the suspect is not affected by whether the notification of family influence; on the family, in the implementation of the principle of presumption of innocence in the case, there is no reason to think the family is the accomplice, and be able to know under residential surveillance sites can be on the investigation of interfering. Step back, even if the family members hold the presumption of guilt, that they might send news secretly has not yet been arrested for other suspects, so in the revised draft article fifty-six has given the means of secret investigation the investigation organ case of extensive, not through the suspect families Shun rattan touch melon, arrest more suspects? This investigation provides a convenient, "how it would hinder the investigation"?

 

   Twelve, the revised draft of thirty-first residential surveillance to be shortened by provisions of the amendments

   (a) the draft amendment to Article thirty-first of the original:

   "One article is added as article seventy-fourth,:" specified period home residential surveillance shall be offset. Criminals sentenced to public surveillance, surveillance, the term is to be shortened by a day; sentenced to criminal detention, fixed-term, residential surveillance for two days to be shortened by one day.""

 

   (two) suggested that this provision is amended as follows:

   "The specified period residence residential surveillance shall be offset. Criminals sentenced to public surveillance,Residential surveillance, the term is to be shortened by two days; sentenced to criminal detention, fixed-term,Residential surveillance, the term is to be shortened by one day."

 

   (three) justification for the proposed changes:

   As the former one, and with reference to the draft amendments to the thirty-second limit on the designated detailed provisions of the residential surveillance, the suspect, designated residential surveillance is not only no freedom of action, and is essentially disguised custody. According to the provisions of the time of detention fold, suggestions made these modifications.

 

   Thirteen, the draft amendments to the provisions of the thirty-sixth detained amendments

   (a) the draft amendment to Article thirty-sixth of the original:

   "The sixty-fourth changed to eighty-fourth, second paragraph is revised as follows:" arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should give the reasons for detention and the place, in the detention within twenty-four hours after notification, the detainee's family."

 

   (two) suggested that this provision is amended as follows:

   "Arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours.In addition to the detainee does not inform the family name, domicile or contact and the executing organ cannot verify the families of detainees, domicile or contact mode,Should put the reasons for detention and the place of detention, in twenty-four hours after notification, the detainee's family."

   

   (three) justification for the proposed changes:

   Pertaining to the detention notice after the revision reasons families, with the specified notification about surveillance of residence revision reasons families.

 

   Fourteen, the draft amendment thirty-ninth arrest notice provisions of the amendments

   (a) the draft amendment to Article thirty-ninth of the original:

   "The seventy-first changed to ninety-second, the second paragraph is revised as follows:" after the arrest, it shall immediately be arrested for custody. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should be arrested and custody premises, within twenty-four hours after the arrest, notify the family of the arrested person."

 

   (two) suggested that this provision is amended as follows:

   "After the arrest, it shall immediately be arrested for custody,Not later than twenty-four hours. In addition to arrest people do not tell the family name, domicile or contact and the executing organ cannot verify the arrested person, place or family contact,The reason and the detention shall be arrested in the premises, within twenty-four hours after the arrest, notify the family of the arrested person."

 

   (three) justification for the proposed changes:

   After the arrest of detention shall be sent to the specific time limit shall not exceed twenty-four hours, that is, to sent to detention limit and detained after the match. Other reasons, with the residential surveillance or detained on specified after the notice of the revision reasons families.

 

   Fifteen, the draft amendment forty-seventh summons, subpoena provisions revisions

   (a) the draft amendment to Article forty-seventh of the original:

   "The ninety-second changed to 116th, second paragraph is revised as follows:" call, summon duration shall not exceed twelve hours; major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours.

   "Not to continuous summons, subpoena criminal suspects into custody in disguised forms. Call, summon the suspect, shall ensure that the suspect necessary food, rest time."

 

   (two) proposed to remove the shadow part of the brush, delete "major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours".

 

   (three) the proposal to delete reason:

   1, the detention time was prolonged to twenty-four hours, which is a significant setback. The summons, subpoena, in fact has restricted the suspect's personal freedom, the twenty-four hour period, the investigators and the suspect is in a closed space. As long as the understanding the draft amendment forty-sixth mandatory provisions "necessity investigation organ interrogation of suspects should be" in the detention center, should understand that any system design to the investigators suspect separate disposal is not appropriate. The suspect, this twenty-four hour far less safe in the detention center, is the existence of possible suspects rights are violated, and this is the suspect cannot prevent and resist the.

 

   2, the original text of the draft expressed conflicting. Since the major, complex,"NeedTake the detention, arrest measures ", then it can be detained, arrested in twelve hours, no need to extend the summons, subpoena time.

 

   Sixteen, the revised draft article forty-eighth provisions of the amendments to the interrogation of criminal suspects

   (a) the draft amendment to article forty-eighth of the original:

   "The ninety-third changed to 117th, one paragraph is added as the second paragraph:" when, the investigators suspect, should the law to inform the suspect confess to leniency.""

   The ninety-third of the original "Criminal Procedure Law": "when the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him. The suspect of investigators question, shall truthfully answer. But irrelevant to the case, have the right to refuse to answer."

 

   (two) suggested that this provision is amended as follows:

   "When the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him.

   "When the investigators suspect, shallInform the criminal suspect according to the wishes of their own confession rights, have the right to remain silent, andTo inform the suspect confess to the law leniency."

 

   (three) justification for the proposed changes:

   1, the draft amendment fourteenth added a "no person shall be forced to prove his guilt", where "any person" of course including the ultimate in law proved guilty suspect, in other words, even if is really guilty, in the criminal prosecution process is still not be forced to testify against himself "". The logical premise of this rule is that the suspect has the right to statement according to the wishes of their own, that is to confess, which include making confession voluntary and refused to confession freedom. If the lifting of the suspect in the voluntary, the rules of criminal procedure if the permission suspects in the forced confession, protecting the rights of suspects will is disrupted, torture to extract confessions, threat, enticement, deceit and other illegal evidence of the way is inevitable.

 

   2, if still continue to retain the suspects "to answer truthfully" obligations, this shows that if the investigating authorities believe the suspects to answer is not "true", can continue to ask the suspect must be "answer", and the suspect does not provide investigators are not satisfied with the statement of voluntary, denying confession freedom, this is ask suspects confession against his will, is to force a suspect. This is a direct violation of the "no person shall be forced to prove themselves guilty" principle.

 

   3, the draft amendment thirteenth added "the defendant guilty of the burden of proof is on the prosecution to bear" provisions, extension, the investigation organ should also be guilty of criminal burden of proof, the suspect has no obligation to prove his innocence. Therefore, the suspect voluntary confession or to keep silent, does not affect the investigation organ according to burden sharing principle to collect the suspect guilty evidence; but if the investigating authorities expect that suspect guilty evidence through the interrogation of a criminal suspect, it has violated the burden sharing principle.

 

   4, some of the objections that if the suspect "s confession voluntary right, transcend the reality of Chinese. The key here is the investigation organs are used to make a confession by forcing suspects and investigating criminal cases, and can not accept to suspect in the case of evidence. If the investigating authorities automatically is presented to determine the voluntary confession right in legislation forward, it never will be -- police agencies around the world are passively accept the rules. Therefore, only the legislation first, is it possible to change the investigation organ error handling style, to establish the respect for human rights in criminal proceedings system.

 

   5, to prevent the investigation organ torture to extract confessions and other illegal behavior of evidence collection, the most effective system design is the suspect by the voluntary right interrogation presence right of lawyer and the suspect, two indispensable theory. The draft amendment to the suspect interrogation presence right of lawyer did not do any system arrangement, this is the major defects. In this case, is only starting from the existing "any person not to be a witness against himself" principle, clear the suspect's confession voluntary right, this person right at least can get theoretical guarantee. In fact, in the absence of the lawyer, who did not know that the suspect "voluntary statement of" what is the matter! How many cruel torture to extract confessions cases confirmed this point. But the provisions of a suspect voluntary confession right, always Something is better than nothing..

 

   Seventeen, the provisions of the forty-ninth amendment, video recording of the amendments

   (a) the forty-ninth amendment of the text:

   "When the investigators suspect, can the audio or video recording of the interrogation process; may be sentenced to life imprisonment or death, shall carry out the sound recording or video recording of the interrogation process.

"Audio or video recordings shall be full, maintain integrity."

 

   (two) suggested that paragraph second of content increase, modify:

   "Audio or video recordings shall be full of,The beginning and ending time is consistent with the interrogation,Maintain integrity."

 

   (three) justification for the proposed changes:

   In reality, a lot of audio and video are the investigators in the suspect "finished work" after recording, cannot reflect the truth, so that the original provisions of formality. Integrity from time to review for the recording, in order to ensure the audio and video real.

 

   Eighteen, the revised draft of fifty-six new technical investigation prescribed amendments

   (a) as the new part five, is no longer the only reference, record modification opinions and reasons.

 

   (two) amendments and suggestions for the following reasons:

   1, the "eighth investigation" changed to "section eighth of technical investigation and secret investigation".

   

    Justification for the proposed changes:From the provisions of this section of the content, technical investigation and secret investigation are two different means of investigation, not tolerant of each other in the concept. Technical investigation investigators through modern technical means for the implementation of secret investigation is, through the implementation of the "special", therefore, the secret investigation is not the category of technical investigation.

 

   2, will add 147th in the first paragraph two two applicable technical investigation "other serious social crimes" and "the implementation of the functions and powers of the serious violations of civil rights major crime" two kinds of situations to delete.

   

     The proposal to delete reason:Technical investigation may be a serious violation of the rights of citizens, which should be clearly and strictly limited. And "other serious harm to society of criminal case" and "the power of serious violation of civil rights, major crime" and its connotation and extension are not deterministic, without judgment, judgment is not subject to supervision main body. It is not affected by the abuse of the possibility of the power of supervision, on the other hand, this is not clearly defined technical investigation range (including 150th new so-called "secret investigation") may even become the local political struggle and political struggle tool.

 

   3, proposed to increase the terms:The types of technical investigation measures, clear; recommended "after approval" strict revision"After the approval of the person in charge of the investigation organ"Will "; for complex, difficult cases, the expiration of the time limit is still necessary to continue to adopt the measures of technical investigation, after approval, the validity period may be extended, each time shall not exceed three months" is amended as "for complex, difficult cases, the expiration of the time limit is still necessary to continue to take the technical investigation measures,After an investigation organ of the original approval authorities for approval,The validity period may be extended, shall not exceed three months;Second or more prolonged, must be reported to provincial level people's Procuratorate approved".

 

    Suggested reasons:Prevent the power of civil rights, is an important objective of criminal litigation law "countries", China is no exception. If the investigation measures, category, extension, the decision-making organ and so on all of these by the investigating authorities a discretion, the police power will not limit, abuse of power can not balance, this is not the country under the rule of law.

 

   4, proposed to increase the following content in the new article 150th:The secret investigative measures and types, the public security organs at or above the county level may decide the implementation of secret investigation set the corresponding examination and approval procedures.

 

    Suggested reasons:Exercising a public power and civil rights directly related, restricted by other agencies, this is the basic demand of the society governed by law.

 

   Nineteen, the sixty-seventh amendment provisions of the amendments of the witness to testify in court

   (a) the sixty-seventh amendment of the text:

   "One article is added as article 186th,:" the testimony of a witness has a significant impact on the sentencing, and the public prosecution has objection, parties concerned or defender, agent ad litem, or the people's court that the witness should testify in court, witnesses should testify in court.

   "People's police crime witness its duty as a witness to testify in court, to the provisions of the preceding paragraph.

   "The public prosecutor, the parties concerned or the defenders and agents ad litem, the expert opinion of objections, or the people's court that his testimony necessary, the appraiser shall appear in the court. After the people's court shall notify, identification of refusing to testify in court, expert opinion shall not be taken as a basis."

 

   (two) suggested that the first paragraph:

    "The prosecution, the parties and their counsel, litigation agent has any objection to the testimony of a witness, or the people's court that the witness should testify in court, witnesses should appear in court. The witness refusing to testify in court, the witness shall not be taken as a basis."

 

   (three) justification for the proposed changes:

   1, "testimony of witness on sentencing have significant effect", the "great influence" is not good judgement, easily lead to excessive discretion dispute and judges, not to change the rate of the witness appearing in reality very low. In accordance with the basic meaning of the principle of direct words, is provided for as long as the public prosecutor, the defender, agent ad litem or on the testimony of witnesses have objection, or the people's court considers necessary, witnesses should appear in court.

 

   2, the provisions of the third paragraph of the identification of the person refused to testify in court, it shall not be as the verdict according to expert opinion. But there are no provisions are more common, the more important the witness refuses to appear in court to testify procedural sanction consequences. Although the provisions of article sixty-eighth of the "can enforce the court" of ten days detention and other measures, but this is optional, and the witness person punished, in effect on the action on the admissibility of evidence is still lack of clearly defined. Should be in the first behind, increase and identification of refusing to testify in court procedures of the sanctions provisions of the same.

 

   Twenty, the draft amendments to the provisions of article eighty-first of second hearing comments

   (a) the original draft amendment eighty-first:

    "The 187th changed to 222nd, the first paragraph is revised as follows:" the people's Court of second instance to the following cases, shall form a collegial panel, trial:

   "(1) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence of objection, the people's Court of second instance that may affect the appeal the conviction and sentencing;

   "(2) cases of appeal against the defendants were sentenced to death;

   "(3) case protested by a people's procuratorate;

   "(4) the people's Court of second instance shall hold a hearing that other cases.

   "The people's Court of second instance decided not to hold a hearing, it shall interrogate the defendant, to listen to the other parties, the defenders and agents ad litem, opinions.""

 

   (two) the proposal to delete the second instance court case (1) the shaded part items, namely, "the people's Court of second instance that may affect the conviction and sentencing", directly modify as follows:

"The defendant, private prosecutor and his legal representatives on the first trial of facts, evidence objection appeal cases".

 

   (three) the proposal to delete reason:

   According to the neutrality of Adjudication Rules, the court can not active prior audit entity cases, more can't active affirmation lawsuit participates in a party proposes to the facts and evidence of the case dispute whether substantive affect the conviction and sentencing in the trial before. As long as the litigation party facts and evidence in cases of objection, there is the possibility of the conviction and sentencing, for the protection of the litigation rights of the parties, the court of second instance must be hearing.

 

   Twenty-one, the draft amendments to the eighty-fourth second limit amendments

   (a) the draft amendment to article eighty-fourth of the original:

   "The 196th changed to 231st, is amended as:" the people's Court of second instance accepting a case of appeal or protest, it shall conclude the trial of the case within one month, not later than one and a half months; the people's Court of second instance court of appeal, the appeal case, no later than two months. The act of 155th under one of the circumstances stipulated by the provincial, autonomous region, or municipality directly under the central government, the higher people's court approval or decision, and may be extended for two months, but the Supreme People's court accepts a case of appeal or protest, decided by the Supreme People's court. Because of the special circumstances of the case also need to extend the trial period, the approval or decision by the Supreme People's court.""

 

   (two) the proposal to delete the first sentence in the "the people's Court of second instance appellate cases protested by the brush," the shadow part, which directly to "the people's Court of second instance appellate cases".

 

   (three) the proposal to delete reason:

   All protest cases, according to court, this is already in the second sentence of "the people's Court of second instance court of appeal, the appeal case, no later than two months" logic category, therefore, the first sentence in the "protest" is redundant.

 

   Twenty-two, the revised draft of ninety-seventh new confiscated property shall escape the suspect amendments

   

   (a) as the new part four, is no longer the only reference, record amendments. The revision reasons a comprehensive is:The important rights and interests of confiscation of property refers to the not yet convicted suspect, defendant, in the absence of any treatment conditions, to be careful, be restricted, verifiable, and even can be reversed.

 

   (two) the specific amendments and for the following reasons:

   1, suggestions will add fifth part third chapter name changed to "criminal suspects, defendants escape, death casesSuspectedThe illegal incomePropertyForfeiture proceedings "namely add bold and underlined words. And proposed in this chapter, all related to vocabulary related to this part of the re expression.

 

   Suggested reasons: suspect, defendant missing or escape, is a self that benefit maximization, self protective behavior of their choice, the behavior of its motives in any case, are not necessarily extrapolated suspect identity on criminal charges in the. Coupled with our criminal trial by default system is not specified, and the draft amendment seventy-second also increased the defendants, suspend the trial of the case, in this case, the alleged crimes have not been confirmed, the property of the defendant cannot be considered "illegal income". Therefore, "suspected of illegal income property" should be a more appropriate vocabulary.

 

   2, proposed in the new article two hundred and seventy-nine, add the following provisions:The confiscation of suspects and defendants, the ruling shall be announced to the public property, public announcement for a period of six months.

   

   Proposal to increase the reason: accepting the confiscation of property for the announcement six months, corresponding to dispose of property, the first and second instance ruled that should notice to the society, to the public to accept the supervision of society. In addition, ruled that the announcement is also conducive to escaping suspect, defendant judgment according to its own value decides whether it is to explain the nature of property, which is also conducive to the case to make a fair deal.

 

   3, proposed a new:"The intermediate people's court property was confiscated by the confiscation of property and income cut decided to local finance department dedicated to the escrow, and that in the ruling. Such as escaping criminal suspects, defendants were captured or surrendered, according to the criminal case finally the trial result is decided by the confiscation of property ownership: if a criminal judgment finally found the defendant property is the proceeds of crime, the finance escrow property turned over to the state treasury; if a criminal judgment finally can't found the defendant property is the proceeds of crime, the finance escrow property returns the defendant.

"If an effective confiscation order after ten years, escaping the suspect, the defendant is not arrested, will finance escrow property turned over to the state treasury. The suspect, the defendant dies or is declared dead, the suspect, the defendant killed or declared dead, will finance escrow property turned over to the state treasury."

 

   Suggested reasons: it must take into account the suspect, the defendant's property may indeed be the proceeds of crime, and must not be in no condition for a long time, but also take into account to avoid the case handling organ for the profit motive for the confiscation of the disappearance of the suspect, defendant property, will rule the confiscated property by neutral and finance departments and professional management, and limited to ten years, according to the final ownership situation depends on the development of the property, the illegal income that neither appeases suspect, defendant, also give the suspect, the defendant lawful property rights to protect.

 

   Twenty-three, the draft amendment ninety-eighth mandatory medical treatment regulation amendments

   (a) the new chapter of the 282nd original:

   "The mental patient to violence of the compulsory medical treatment, by the people's Procuratorate applying to the people's court. The people's court shall form a collegial panel to conduct the trial for the respondent, comply with the compulsory medical conditions, can make the compulsory medical decisions. The people's court in the case was found during the defendant comply with the compulsory medical conditions, can be directly to make mandatory medical decision.

   "The people's court compulsory medical case, it shall notify the applicant or the legal representative of the defendant at."

 

   (two) suggest modifications are as follows:

   "Compulsory medical treatment of mental patients to violence,The victims and their close relatives, orThe people's Procuratorate applying to the people's court. The people's court shall form a collegial panel to conduct the trial for the respondent, comply with the compulsory medical conditions, can make the compulsory medical decisions. The people's court in the case was found during the defendant comply with the compulsory medical conditions, can be directly to make mandatory medical decision.

"The people's court compulsory medical case, it shall notify theThe applicant,The applicant or the legal representative of the defendant, DefenderBe present.

 

   (three) justification for the proposed changes:

   1, mental patients gradually increase is a kind of social phenomenon in the modern society can not be avoided, the treatment of mental patients is related to many civil and administrative law. Compulsory treatment of mental patients in the criminal procedure, only to let the real danger to the society by the treatment of psychiatric patients and constraints, and will not cause further harm to society; but also to prevent the normal people were lightly identified as mental illness, has long been compulsory treatment, personal rights have been seriously hurt; but also to prevent the crime suspect, the accused mental illness is to escape legal sanction.

 

   2, according to the new provisions of article two hundred and eighty-one, mental patients do not bear criminal responsibility, only in the "continue to harm society possible under the circumstances", it could be decided in compulsory medical. But whether the defendant "continue to endanger the society may", different people may have different judgment. If after the crime, the defendant voluntarily accept psychiatric treatment, and the people's Procuratorate also believed that "the defendant not to endanger the society may", the defendant may therefore be free, therefore, give the victims or their close relatives for the defendant to accept compulsory medical application right, this is justified.

 

   3, the compulsory medical decision, involving major of the applicant or the defendant's personal interest, shall be made by the respondent or defendant make statements, and assisted by the counsel of identification documents and "to" harm the social debate, therefore, mandatory medical judicial procedures should be the defendant defense lawyers present.

  

   Director, members of the Committee: Thank you for your efforts on the progress of the rule of law in China and dedication! Around the "Criminal Procedure Law", we have other suggestions, such as: the police interrogation presence right of lawyer, places of detention is independent of the public security organs, the investigation organ illegal procedural sanctions, control the exchange of evidence and the court before does not contact the evidence, the death penalty review court trial, the defendant dual risk elimination, fully guaranteed, criminals in custody the suspect and the defendant's civil rights and the right of access to lawyers and so on. These rights are the system design rule of law should be, in our present criminal procedure law "" but are missing. Progressive but we understand the process of the rule of law, so we present only in the draft amendment proposed changes.

 

   We look forward to the end of the amendment, which is consistent with the sincerity of civil rights protection of our great era; look forward to test it withstand the test of time, most people can stand.

 

Yours sincerely

Salute the noble!

 

 

                                                Beijing Dacheng Law Firm

                                                Two, one one September 20th