A discussion on some not appeal of defendant's lawsuit status in the second trial and verdict criminal joint crimes after the first trial

Guangxi Jun GUI law firmLawyer Yang Shitong 13978749474

The so-called criminal crime case verdict after partial without appeal of the defendant, mainly refers to, in a criminal case of joint crime, after the verdict down, the part of the defendant in a case of joint crime verdict of the first trial of appeal, and the part of the defendants, the decision to obey, not to appeal. Because of the special nature of criminal cases, criminal procedure law and judicial interpretation provisions specifically trial court for appeal or protest cases, the court of second instance is not subject to appeal or protest scope limit, but for the whole of the case by the court of unity. Moreover, in a joint crime in criminal cases, a common criminal defendants appeal, will very likely the case overturned, or principal, accessory, upside down position change. So, about the criminal in a case of joint crime part co defendant appeal and part co defendant does not appeal, has great influence on the other defendants, although some co defendant did not appeal, but the decision is very likely in the defendants appeal appeal can be determined after the verdict. Although based on experience as we all know, the odds are not without appeal of the accused in the second sentence.

The court of criminal appeal trial without special appeals based on limited area, the question arises: not the defendant in a case of joint crime to the position and role in the trial? When the defendant did not appeal the verdict?

About the two problem, we first have a look the provisions of China's laws and regulations and judicial interpretations. A simple look at the law, the regulations are issued by the Supreme People's Court on the application of "the people's Republic of China Criminal Procedure Law" interpretation of the provisions, as follows:

Article 299th: local people's courts at all levels in the announcement of the first judgment, ruling, shall notify the defendant, private prosecutor and his legal representatives judgment, ruling, have the right within the legal time limit in written or oral form, through the court or directly to a higher people's Court of appeal; the defense of the accused person, close relatives agreed by the defendant, but also can appeal; incidental civil litigation parties and their legal representatives, can the judgment, ruling in incidental civil part of the appeal.

The defendant, private prosecutor, incidental civil litigation parties and their legal representatives whether to appeal, the appeal before the expiry of said at last "shall prevail.

Article 301st: the appeal, appeal must be made within the statutory time limit. Appeal against a decision, appeal for a period of ten days; appeal against decisions, appeal for a period of five days. The appeal or protest, period, from receiving the written judgment, order calculation book second days.

The protest period with civil judgments, rulings, should be in accordance with the criminal appeal, part of the appeal, appeal to determine the period. Incidental civil part of a separate trial, an appeal shall be determined in accordance with the provisions of the criminal procedure law period.

Article 310th: second court hearing a case of appeal or protest, should be the first judgment, ruling that the facts and the application of the law to conduct a comprehensive review, not subject to appeal or protest, limiting the scope of the.

Article 311st: a case of joint crime, only the part of the defendants appeal, or the prosecutor is only part of the defendant's appeal against the sentence, or the people's Procuratorate is only part of the defendant's decision to lodge a protest, the people's Court of second instance shall be checked on the case, together.

Article 312nd: a case of joint crime, the defendant appeals for death, other defendant does not appeal, the people's Court of second instance shall examine the case. After review, the defendants to death does not constitute a crime, shall be acquitted; constitutes a crime, shall terminate the trial. The other co defendants still shall make a judgment, ruling.

Article 313rd: civil claim annexed to a criminal case, only incidental civil litigation parties and their legal representatives in the appeal, the people's Court of second instance shall examine the case. After the examination, the judgment of first instance criminal part and no improper, the people's Court of second instance only need to make the treatment of incidental civil part; the first trial of incidental civil part facts are clear, the correct application of law, shall be subject to the criminal supplementary civil ruling upheld, dismissed the appeal.

Article 314th: civil claim annexed to a criminal case, only incidental civil litigation parties and their legal representatives in the appeal, the criminal judgment of first instance occurred in the appeal after the expiration of the legal effect.

Article 316th: during the second instance, the defendant in addition to defend oneself, still can continue to entrust the first trial counsel or entrust another defender defense.

The common crime case, only the part of the defendants appeal, or the prosecutor is only part of the defendant's appeal against the sentence, or the people's Procuratorate is only part of the defendant's decision to lodge a protest, other co defendants also can entrust his defense.

Article 323rd: hearing a case of appeal or protest, can focus on the judgment of the first instance, ruling controversial or questionable parts. According to the circumstances of the case, can be heard in the following ways:

(three) the defendant does not appeal to people in the trial of cases, has not been applied in court or the people's court that there is no need to appear in court, can no longer be summoned to appear in court;

(four) the defendant has committed several crimes cases, no objection to the criminal facts are clear and can not be heard in court.

In court cases, not appeal, the people's Procuratorate has not its decision defendant protest requirements appear in court, he shall be permitted to. People appear in court investigation and debate.

From the above we can see: firstly, criminal appeal period is ten days, that is five days, if no appeal, as recognized by the court, to abandon the appeal right; secondly, the criminal case, only the part of the defendants appeal part does not appeal, or only the criminal supplementary civil plaintiff appeal the second instance court, still needs comprehensive trial on the case; thirdly, procedure of second instance in criminal process, not a part of defendants filing an appeal may appear in the second trial, can also participate in the court debate or the entrusted court, of course, it may not go to trial, debate, even do not have to appear in court; finally, the criminal supplementary civil plaintiff appeal, the defendant does not appeal, the court of second instance the case that court of First Instance judgement of the criminal part not improper, the criminal part judgment with effect from the date of the expiration of trial appeal.

Then, when the criminal case of joint crime after the verdict down, only part of the appeal and the defendant does not appeal cases, how to deal with? Has the appeal of the defendant must be no doubt two trial after the entry into force of the first instance, but not the defendant? The decision will come into effect? How to suit the position is not the defendant in the second instance of?

For some of the above problems, at present our country criminal procedure law and no provisions related to relatively clear, on the above issues, I think can do the following understanding:

First of all, on the status of the co defendant does not appeal in the second instance. I think in the criminal case of joint crime, the defendant does not appeal the status in the second instance is more like a similar role to witness, is conducive to the court investigation evidence collection, evidence of the facts of the crime accused of appeal. And its position, can be in the proceedings as "the first defendant", while in the second because no appeal range limits, are the trial, but the verdict does not appeal, neither the appellant, nor the appellee, so do not list the appellant, only listed first defendant. If the trial of the second instance is found out, and the role of the defendant did not appeal in the crime status has changed, or the court of first instance facts are not clear, erroneous law application, this time although it did not appeal, but based on the principle of rule of law and the protection of basic human rights, the spirit of seeking truth from facts, the court of second instance can still be straight without their appeal the conviction, the defendant did not appeal the sentence change. So, on the other hand, the court of second instance based on self to find out the truth, the defendant does not appeal the case, found an error in the trial, the spirit to come, in fact, is a process of self supervision, self correction! This process is not because the defendant's appeal, appeal to start, but the court self start, this is a kind of trial supervision procedure, error correction.

So, this would explain a problem, why the first defendant did not appeal, and in the second instance has been changed, which is the embodiment of self correcting function of the court, this is a criminal case specific (seemingly civil cases also have a small amount of similar provisions), the purpose is to prevent the occurrence of injustice and misjudged cases, guarantee judicial fairness, justice.

Secondly, a defendant did not appeal the decision to the entry into force of the. I think, the law gives the accused the verdict in a trial of ten days to appeal, if the verdict of the first trial, can completely in ten days after receiving the appeal against the judgment. Conversely, if it does not appeal, is deemed to waive the right of appeal, approved a trial facts and agreed to a trial conviction, sentencing. In principle, in the absence of the other defendants appeal case, a trial of appeal expires, the decision shall be in effect, this is a no objection. However, when a part of the common crime the accused to appeal or protest or punishment on the part of Procuratorate of the people part of the appeal of the case, is not the same. Because the criminal procedure of second instance is the case trial, whether it is part of the appeal or protest, or part of the criminal civil appeal, the court of second instance will carry out a comprehensive trial of the criminal case, and then the court of second instance trial of second instance. According to the situation of independent legal facts, identify, independently, and this process and the results, completely may overturn a trial facts, thus changing the applicable law. This is the particularity of criminal cases, which leads to the particularity of criminal cases. Therefore, under normal circumstances, in the criminal case of joint crime, although only part of the appeal, but because the part the defendant's appeal outcome uncertainty, resulting in the non appeal the trial results of uncertainty. Namely: although criminal crime case part of the defendant did not appeal, but the conviction and sentencing, but may be reduced, a lighter punishment results in the second stage, so before the trial did not appeal the defendant in the two trial verdict, still can not take effect.

Then, when the effect?

I think, this can be divided into two types are discussed:

The first case is, after the second instance court, trial court in the trial, the defendant does not appeal to the facts of the crime and the first instance, the court of first instance no conviction and sentencing the defendant does not appeal to the improper. In this case, the second instance court do not appeal conviction, sentencing for processing, does not change the first instance judgment, is not indicated in the two judgement. In this case, "criminal judgment of first instance did not appeal the effective part" in the appeal after the expiration of the specific, we can refer to the criminal law judicial interpretation of the provisions of article 314th of the "criminal supplementary civil action case, only incidental civil litigation parties and their legal representatives appeal, the criminal judgment of first instance occurred in the appeal period after the legal effect."

The second case is the court of second instance in the second instance, the facts ascertained, that the court of first instance of the defendant did not appeal the facts are not clear, erroneous law application, which led to the conviction, sentencing error. At this time, the court of second instance will be self starting with the equivalent of a "self correction" program, change a trial did not appeal the conviction and sentencing (of course, the premise is can reduce, not increase, thereby changing) the trial did not appeal the defendant. This time, the trial did not appeal the defendant shall be effective only in the two trial, because a trial basis is revoked, changed.

So, I think, the criminal case of joint crime, the defendant does not appeal in a similar to "witness" status in the second instance, not because of the appellant, and does not have the appeal of all human rights and obligations, and not the defendant in a second trial is to ascertain the facts and the truth of the two instance court better, better for the case of a comprehensive grasp, and thus decided to each of the defendants (including an appeal and the defendant did not appeal the conviction, sentencing). If the court of second instance does not change did not appeal the conviction and sentencing in the judgment, did not appeal the defendant shall enter into force on the first instance of appeal expires; conversely, if changed, then the effective judgment in the Second Instance sentenced after.