[blogger press] after the amendment of criminal procedure law, Shanxi law firm lawyers division of organization learning all the new criminal procedure law, the blogger to counseling. The blogger course outline to be published, hope you peer criticism guidance.

Teaching outline is as follows:

 

Effect of the defense lawyer to modify the Criminal Procedure Law (a)   

   

   A, safeguard human rights impact on the method of criminal defense

   Safeguard human rights to the criminal procedure law, therefore, many people think this is a bright spot in the new criminal law, but also a great progress of the criminal procedure law. But I don't think so. Because the criminal procedure law, the first did not change, the purpose of legislation of criminal procedure law is still "in order to ensure theThe criminal lawCorrect implementation, punishing crimes, protecting the people, safeguarding state and public security, maintaining the socialist social order, according to theConstitutionThis law, formulate." That is to say, the criminal procedure law still has obvious class struggle. The people here is a political concept, the concept is not law, citizenship is a legal concept. At the same time, lawmakers concept does not completely change. This will affect the criminal law human rights protection function to a certain extent, but also directly affect the US as a criminal defense lawyer role play.

   Amendment to the criminal procedure law before and after, in the law and lawyers, the most controversial is the new criminal procedure law the provisions of article seventy-third, the provisions of article eighty-third of the same. In the past people disease and most of the Commission for Discipline Inspection of the "double", also is the secret arrest, no legal basis for human. But from now on, in criminal cases also appeared in the secret arrest, disappearance of the possible world, and has legal basis.We should pay attention to in the future: (in criminal defense1The criminal law article)306The provisions of article still exists. (2What is the legal consequence) illegal investigation organs, public prosecution, court illegal criminal procedure law, law and no provisions. (3The new criminal law article)42Article,46Article,47Specific provisions.

   Two, the new criminal procedure law has a certain effect on the remission of lawyers "Trilemma"

   Meet the difficult, difficult, difficult is our scoring defense lawyers three difficult, the new criminal procedure law helped to resolve the difficulties of.

   (a) to have certain effect to solve the meeting

   The new criminal law thirty-seventh stipulation: "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 to meet, not later than forty-eight hours."
"The crime of endangering national security, terrorism crime, crime of particularly great bribery case, in the period of investigation lawyer meets with the criminal suspect in custody, it shall obtain the permission of the investigation organ. Of these cases, the investigation organ shall notify the."
"The lawyer meets with the criminal suspect in custody, the defendant, the understanding of the circumstances of 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."
"Defense lawyer with the criminal suspects, defendants met, communication, applies the first, third, fourth."

   (two) to solve the "marking difficult" have a certain role

   The new criminal law thirty-eighth stipulation: "lawyers of the people's Procuratorate date, consult, extract, copy the file material. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material."

   (three) for solving the "defense" has a certain role

   First of all, the provisions of article thirty-third of new criminal procedure law in the crime suspect should enjoy the right to defend.

   The new criminal law article thirty-third: "the suspect since the first interrogation by the investigatory organ or coercive measures taken to date, has the right to entrust defenders; in the investigation period, can only be entrusted lawyer. The accused has the right to entrust defenders at any time.
When the investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, it shall inform the criminal suspect has the right to entrust defenders. The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders. The people's court shall accept the case within three days, it shall inform the defendant has the right to entrust defenders. The suspect, the defendant in custody requests entrust a defender, the people's court, the people's procuratorates and the public security organs shall promptly convey the requirements.
The suspect, the defendant in custody, also by the guardian, close relatives to entrust defenders.
The defenders by criminal suspect, defendant after commissioning, it shall promptly inform the court authority."

   Secondly, the provisions of article thirty-sixth of new criminal procedure law in the investigation stage to the investigation organ body comments

The new criminal law the thirty-sixth regulation "defense counsel in the investigation period can provide legal assistance for criminal suspects; complaints, charges; apply for alteration of the compulsory measures; to the investigation organ about the crime suspect guilty and case, put forward opinions."

   Once again, the new criminal procedure law stipulates that the thirty-eighth defense lawyers in the prosecution may consult, copy, excerpt of the materials

   Fourth, the new criminal procedure law stipulates that the thirty-ninth defense lawyers are entitled to apply to the authority to obtain evidence

   Fifth, the new criminal law the fortieth regulation favorable evidence law made it shall timely inform the public security organ and the people's procuratorate.

   Three, the new criminal procedure law on lawyers to further improve

   (a) should be the defense lawyers higher quality from the types of evidence

   1, the appraisal conclusion to expert opinion

   2, increase the electronic data

   (two) the standard of proof required criminal defense lawyer must have a comprehensive analysis of the evidence competence

   Provisions of Article 53 of the new criminal procedural law: "of all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the accused confessed, no other evidence, not the defendant is found guilty and sentenced to a criminal punishment; without the confession of the accused, the evidence is reliable and sufficient, can the defendant is found guilty and sentenced to a criminal punishment.
The evidence is reliable and sufficient, the applicant shall meet the following conditions:
(a) the conviction and sentencing facts have evidence;
(two) according to the verdict evidence are verified by the statutory procedures;
(three) the comprehensive evidence of the case, the fact is beyond reasonable doubt."

   (three) the illegal evidence exclusion procedure legitimacy requirements of criminal defense lawyers on the evidence carefully review

   The new criminal law article fifty-fourth, Article 55, Article 56, Article 57, the provisions of Article 58 of illegal evidence exclusion procedure. Illegal evidence exclusion procedure also known as v. v.. Put forward the new request to our criminal defense lawyer's quality.

   1, about the illegal evidence exclusion startup problems

   The illegal evidence elimination time startup

   The new criminal procedural law fifty-fourth paragraph second "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." Therefore, the illegal evidence exclusion program start time but in the investigation stage, the prosecution stage, also can be in the trial stage.

   The main problem of illegal evidence exclusion proceedings

   A, according to the provisions of the second paragraph fifty-fourth of the new criminal procedure law, the illegal evidence exclusion program initiated by the investigation organs, the prosecution organ, the people's court to initiate, it is no problem.

   B, the new criminal procedural law provisions of the second paragraph of "fifty-sixth party and the defender, agent ad litem shall have the right to request the people's court to illegal methods to collect evidence shall be excluded. For the exclusion of illegal methods to collect evidence, shall provide relevant clues or materials." Visible, in the trial stage, the people's court to initiate the procedure of excluding illegal evidence, the parties (including the victim, the defendant), the defenders and agents ad litem may file an application for start of illegal evidence procedure. But the question is whether, in the stage of investigation and trial lawyer may apply to start the procedure of excluding illegal evidence? I think he will. Because, according to the provisions of the new criminal law, whether the prosecution or trial stage in the stage of investigation, review, a lawyer's duty is the defense duty. The new criminal law the thirty-fifth regulation "the responsibility of a defender shall be according to the facts and law, materials and opinions of the suspect, the defendant not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the litigation rights and other lawful rights and interests." Accordingly, as a defense lawyer can apply for the investigation organs, the prosecution organ to start the procedure of excluding illegal evidence.

   The application startup procedure of excluding illegal evidence way

   Fifty-sixth the provisions of the second paragraph of "the parties and their counsel, litigation representatives shall have the right to request the people's court to illegal methods to collect evidence shall be excluded. For the exclusion of illegal methods to collect evidence, shall provide relevant clues or materials."

   A, I think can be written or oral form, we should pay attention to whether there is a future Supreme Court judicial interpretation.

   B, if it is a written application, in submission and shall also submit relevant clue or evidence.

   2, about the procedural issues of exclusion of illegal evidence

   (1) the investigation stage, the stage of review and prosecution of illegal evidence exclusion procedure

   (2) the program illegal evidence exclusion of the trial stage

   (in Beihai, intentional injury case)

   (four) the witnesses and expert witnesses, investigators in the court to defend us lawyers put forward new requirements

In particular, identification, investigation personnel, they have certain professional knowledge, which requires us to criminal defense lawyer must strengthen the relevant business learning, strengthen the courtroom inquiry skills training and training.

   (five) should arouse our attention to take coercive measures to place and period

   The illegal detention in criminal procedure and extended custody issue has been very common, modify the new criminal procedural law, this problem may change. About this, as the criminal defense lawyers should pay attention to.

   Rule seventy-third: "residential surveillance shall be carried out in the criminal suspect, the defendant's; no fixed residence, can be specified in the residence of execution. For the alleged crimes against national security, terrorism crime, crime of particularly great bribery, in the shelter implementation 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 in the place of custody, special case handling place execution.
The specified home residential surveillance, in addition to not notice, should be in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people.
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."

   Eighty-third the provisions of the second paragraph: "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, terrorist activity crime notification would hinder the investigation of possible situation, should be in detention within twenty-four hours after notification, the detainee's family. After the investigation situation to disappear, it shall immediately notify the detainee's family."

   The provisions of article eighty-fourth "the public security organs of the detainee shall, after the detention within twenty-four hours of interrogation. In that time shall not be detained, must immediately release, issued a release certificate."

   Eighty-sixth the provisions of the second paragraph of "the people's Procuratorate for examination and approval of arrest, may question the witnesses and other participants in the proceedings, to listen to the views of the defense lawyer; lawyer requested shall listen to the opinions, defense lawyer."

   The provisions of article ninety-first "after the arrest, it shall immediately be arrested for custody. In addition to not notice shall, within twenty-four hours after the arrest, notify the family of the arrested person."

   The provisions of article ninety-third "the suspect, the defendant was arrested, the people's Procuratorate shall still the necessity of the detention review. The detention is not necessary, should be recommended to be released or alteration of the compulsory measures. The relevant authorities shall within ten days to notify the people's procuratorate."

   The provisions of article ninety-fifth "the suspect, the defendant or his legal representative, close relative or lawyer shall have the right to apply for alteration of the compulsory measures. Receive request the people's court, people's Procuratorate and the public security organs, it shall make a decision within three days; does not agree to the change of coercive measures, it shall inform the applicant, and explain the reasons for disapproval."

   The provisions of article ninety-sixth "suspects, the accused in custody cases, not in custody, in the investigation of the provisions of this law, a trial period of review and prosecution, trial Banjie, the suspect, the defendant shall release the need to verify,; trial, the suspect, the defendant can bail or surveillance living."

   The provisions of article ninety-seventh "people's court, people's Procuratorate or public security organs to the compulsory measures adopted by the statutory period expires the suspect, the defendant shall release, release, release on bail, residential surveillance or alteration of the compulsory measures according to law. The suspect, the defendant or his legal representative, close relative or lawyer to the people's court, the people's Procuratorate or public security organs to take coercive measures to the statutory period expires, the right to request the lifting of compulsory measures."

   In general, changes the new criminal procedure law, the criminal defense lawyers, our occupation environment will have certain difference, but because lawmakers concept has not changed, there is class struggle left traces of the new criminal procedural law, which for our criminal defense lawyer, there is a risk, there is we need to pay attention to. At the same time, the new criminal procedure law also put forward higher requirements for our criminal defense lawyer, hope everyone to pay attention to strengthen the study and understanding of the new law.