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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)

The analytical principle: people generally clear, insiders do not joke

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

    Original text: article second: "the criminal procedure law of the people's Republic of China is the task, to ensure accurate, timely find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution, to educate citizens to consciously abide by the law, actively accomplice crime to fight, to uphold the socialist legal system, protect the citizen personal rights, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction.

Analytical:

    China in 2004 amended its constitution, one of the most important change is that "the state respects and safeguards human rights" into the constitution of thirty-third, as this article third. And article thirty-third of the constitution is the first constitution of the second chapter "the fundamental rights and duties of citizens.".

    The criminal law amendment, the respect and protection of human rights as the task of criminal procedural law, to some extent, is the unification of criminal procedure law and the Constitution in the spirit of the.

    So, the criminal procedure law to do this modification means what? Here the first analysis the meaning and system simple.

    The characteristics of our country's legislation, every law first basically is the law legislation purpose and legislative basis.

     The legislative purpose of the criminal procedure law, the first clearly stated: "the correct implementation of security law, punishing crimes, protecting the people, safeguarding state and public security, maintaining social order of socialism". In the recent sixteen years (from the criminal procedure law last modified date), the jurisprudence of the amendment of the criminal procedure law in many suggestions, very important one is the "human rights" is listed as one of the purpose of legislation of criminal procedure law. From the analysis of the meaning, "punishing crimes, protecting the people" and "the punishment of the crime, the safeguard human rights" the difference between the two is that, the former criminal law purpose (or purpose) is single, which showed the criminal procedure law is the "dual core" structure in the legislative purpose. Then, the latter in the implementation of the law will appear in such a problem -- the punishment of crime and protection of human rights, the conflict between the how to do? Should pay attention to the conflict, the aim of the legislation, its essence is the conflict between criminal punishment and human rights, in reality the specific investigation, prosecution organ (even to the judicial organ) and the defendant in criminal activities in the personal rivalry. Obviously, this confrontation is the objective existence of inequality, if emphasizing human rights priority or and the punishment of crime and criminal proceedings, in the design of the system will appear as "illegal evidence exclusion", "shall not force the defendant to testify against himself.". If only from the logical deduction, we will not just to see, the system design is to do not make individuals arbitrarily suppress by state violence, but there is a risk that the guilty one is not the conviction and sentencing. This risk, is not difficult to accept as against one party state organs, but also the community unacceptable. (a point behind the program design more specific analysis, will be based on real cases analysis).

     To solve the problem of the conflict, law circles put forward the solutions to the various theory, where the vast majority of the foreign practices for reference or simply copy. While the theory of "punishing crime and protecting human rights" of the settlement of the conflict, at greater depths is embodied in the different understanding of so-called procedural law and substantive law. In general view is that the two -- one, the substantive law to procedural law, because the meaning and purpose of the procedural law is to ensure implementation of the substantive law; secondly, both substantive law and procedural law, the procedural law has its independent of substantive meaning and purpose. In the first point of logic, purpose, connotation and significance of the protection of human rights is to punish crime, conflict, should adhere to the principle of giving priority to the punishment of the crime; in the second point of logic, the punishment of crime sometimes to give way for the protection of human rights. The second conclusion insist, is actually the "due process" confidence and persistence, believe, with some scholars program design is called "justice" principle to reduce violent, more rational, can absorb the society for "indulging crime" discontent.

    Back to the amendment of the decision, we see, "respect and protect human rights" was defined as the task of criminal procedural law, and the legislative purpose of the law is still the "punishing crimes, protecting the people". This means that, the criminal procedure law in character selection in favour of the first view. This means, the criminal procedure law basically established"At the same time the punishment of the crime of respect and safeguard human rights, but the punishment of the crimePrinciple. (extracted from the principle, is very important. For the interpretation of other specific system design this amendment.)

Two, the fourteenth paragraph is amended as: "the people's courts, the people's procuratorates and the public security organs shall safeguardThe suspectAnd other participants in the proceedings, the defendant who enjoys according to lawRight of DefenseAnd other litigation rights."

Delete paragraph second.

Original text: the first paragraph of article fourteenth: the people's court, the people's procuratorates and the public security organs shall safeguard the litigant participant shall have the litigation rights.

   In the second paragraph fourteenth: for minors under the age of eighteen criminal cases, in the time of interrogation and trial, can inform the criminal suspect, the legal representative of the defendant at.

Analytical:

   First of all, the amendment to delete paragraph second, not cancelled the interrogation, the trial of juvenile delinquency (suspect) present system person legal agent. In contrast, an important change in the criminal law amendment is to "minor criminal procedure" dedicated a chapter, which increase the special rules, 270th trial and the interrogation of juvenile criminal cases in detail, than the principle provisions of article fourteenth of the original has been progress. (detailed)

   And then back to the first amendment. Highlight the "amendment of criminal suspects and defendants, shall enjoy the right of defense", it seems only literally emphasize, no real significance. I can tell you, in the criminal procedure law amended in the former, the criminal suspect's right of defense is not to get legislation approved, the criminal procedure law only vaguely criminal suspects can obtain legal aid in criminal investigation. And the crime suspect and the defendant s change, basically is to the public prosecutor to prosecute for node. Amendment to such a statement, means China is investigated for criminal responsibility of people's right to defense to the criminal investigation stage.

   What's the point? I'll tell you, our constitution article 125th paragraph: "after the defendant has the right to defense." That is to say, the right to defense is the defendant's constitutional rights. The criminal procedure law to be held between criminal responsibility of criminal suspects and defendants, a dangerous hidden is denied the right to defense of the criminal suspect (in fact the original law of criminal procedure is to do so), but the risk is actually unconstitutional (first, pay attention to my words -- in fact unconstitutional, however, our country wood has constitutional review mechanism, so the · · · · · · you'll see; second, the reason is, the constitution of this requirement, our legal system is not to be held criminally responsible for the title of distinction, that is to say, the constitution recognizes the defender enjoyed, what is actually being investigated for criminal responsibility, and criminal procedure law before the distinction is compressed to defend the right of the main range, so it is unconstitutional).

   Therefore, the significance of revision of criminal procedure system, is to bring order out of chaos, not progress, but at least is in error.

   Right to defense why important? If I tell you because it is a constitutional right, or because it is the human rights, so what did not say does not have what difference. I give a small knowledge, criminal proceedings in the structure of the system are two kinds of tendency -- "administrative punishment" and "lawsuit against type".

   A typical example of the former should go to China's ancient yamen case (Bao · · · · · ·) where to find, but also do not have to cross so far, we take the more recent Chongqing Gang, not thick Secretary mentioned in an interview, "black is the public security act with united strength", this is actually a "basic characteristics the structure of criminal procedure of administrative punishment", in this structure, the criminal procedure system is to realize the national implementation of the penalty power of this power (I didn't use to fight crime and expression) means, shall be investigated for criminal responsibility is the object of the power operation process, and the public security organs is to wear a pair of pants. In order to avoid a long and minute statement also said not clear, I hit an example -- justice is the three cook, be held people like chopping board. This example should help you to feel the control authority of the risk of the lawsuit structure -- lack, lack of protection for subject of criminal litigation, and alienated to tyranny tool risk and (almost) inevitable.

   And the so-called "lawsuit against the" litigation structure, the appearance is similar to the campus debate the (appearance only, is not completely equal, this point discussed in detail below), right to defense is very important to the formation of the structure of litigation, because it means that criminal responsibility was the main body position and the ability to refute, making the criminal litigation by the "administrative punishment" linear structure into a "lawsuit against the" triangle structure. This is many scholars described as "triangle structure, the referee in the middle, both sides equal armed reason against" litigation structure lies in the exercise of the power restriction mechanism, firstly, confirm the existence of the right to defense essentially gave the different voices the opportunity to express, this is the error reduction for possible, also increase the sense of security is the pursuer and system recognition; secondly, it also makes the prosecution organ and judicial organ are separated, so that the facts of the crime and the penalty for it will take at least two levels (the form can be considered to be at least three levels -- the investigation organ for the first time, the prosecution organ second, judicial organs third times, even more levels may also in death penalty cases etc), which has a positive significance mentioned. But these and I for all sorts of positive significance of capacity and coverage does not mention, relative to the "administrative punishment" structure or function of the biggest advantage is that it is more likely to prevent tyranny, provides better security also is stable sense of security, social person. (I don't deny the authority of the crime is also important, for a sense of security and social stability but individual crime and tyranny, obviously the latter should become the priority objective system).  

   Now we can go back to discuss a topic (the punishment of crime and protection of human rights). Although I finally from the literal and the viewpoint of the system refines the criminal law to "punish crime priority principle", but the criminal procedure law that will respect and guarantee human rights to clear out, it means that our criminal procedure system in the structure will be more inclined to or tending to "lawsuit against the type structure". This is obviously a certain degree of progress or bring order out of chaos (as mentioned earlier), essential meaning and right to defense seems to lie in the! In the back of the interpretation, we will see, the tyranny (power abuse) in high incidence areas is the pre-trial stage, especially in the investigation stage. You will understand, right to defense for the so-called "suspect" and every one of us, how important!