Look at Li Tian's case from the angle of the Criminal Procedure Law

First, the background information:

Li Tianyi, now known as Li Guanfeng. The famous singer Li Shuangjiang and the famous singer Meng Ge's son. According to the judicial authorities announced data shows, Li Tianyi was born in 1996 April. In September 6, 2011, charged with assault detention camp for 1 years. In September 19, 2012, Li Tianyi was dismissed from his upbringing. By February 19, 2013, report rape. Distance is lifting education, only 5 months.According to micro-blog certification for the TV drama "Ma Yongzhen" screenwriter netizen "face -" the netizen leaks, Li Tianyi early love playing 90 women,People send nickname"Haidian silver gun bully".

Li Shuangjiang, male, the Han nationality,1939Born in Harbin, member of China Communist Party, Professor, postgraduate tutor. The current director of China PLA Art Academy Music Department, director of the China Musician Association, member Chinese's Development Committee and deputy director of the Performing Arts Committee, vice chairman of the China National Vocal Music Association, a visiting professor at Central Conservatory of Music Department of music, visiting professor of Nanyang Institute of the arts, the high-level title appraisal committee member. The tenth session of the CPPCC National Committee, chairman of the National Committee of CPPCC esch.Chinese PLA major general,Positive level,The national first level actor, the level of professional technical civilian cadres. Song and dance troupe of the general political department.

Meng Ge.Formerly known as Liu Qingdi,Born in 1966,Hubei Jingzhou people, and the Zhao famous sopranoSinger, positive heads. The Standing Committee, the all China Youth Federation organs directly under the CPC Central Committee member of the all China Youth Federation, the SASAC invited member of the all China Youth federation,China Musicians AssociationMember, national vocal music master.So Li Tianyi is an army of two generation do not leave.

The victim Yang is an advertising executive secretary, 23 years old, is the people of Hebei. She and another girl when Peijiu, no employment relationship with the bar, just do the field in part-time, not regularly to the bar. Bars don't give them commission from wine, also do not accept their money, they make the guest to tip.Hostess.

Other people involved in the case

The other suspect family "background" false rumors, cases involving a total of 4 juvenile suspectsAnd An adult, except Li Tianyi had no background.

 

Two, case introduction

It was during the Spring Festival, Li Mou and parents are on vacation. Li Mou to the party leading to fly.Party in the barTo Beijing after the booking, Li Mou with GLOBAL bar captain Zhang rooms. Li often come to this bar consumption, very familiar with zhang. Li last year in this bar consumption, was also wounded a waiter, and later loss privately. The same day, except 5, drink at the GLOBAL bar and Li a Hebei friend lee. The small Wei Mou and Li Moudou is just from the field to Beijing, 6, between several people don't know each other. Subsequently, Li Mou to open an unlicensed white Mercedes Benz, Wei x driving that old car of Q7, a few people came to the bar.
    That night a few people came, Captain Zhang arranged "Scorpio" rooms for them, and a box of Corona beer, wine and black and Hennessy etc.. But some people only drink more than 20 bottles of Corona, half a bottle of black and a small bottle of Hennessy.

The victim Yang wine
    Some people find that Zhang hostessing Miss Zhang, so he called two women entered the room. A short girl, another is the victim yang. Process of drinking in bars, short girl because I don't want to drink, and Li et al. Quarreled, and left the "Scorpio" box, Li gave her a $300 tip. The little girl left, Yang is still in the box, she drank a lot of wine. Li called the foreman asked whether the introduction Zhang yang.

Leave the bar
    Zhang saw Yang was very drunk, and do not want to go out with Li et al., we proposed to go out to eat, such as Yang more sober, is up to her to decide whether they want to introduce. See the accompanying with Captain Zhang, Yang agreed to eat supper with Li et al. So, more than 3 point at about, they drove to the century of Jin Yuan Jin Dingxuan.

A room at the Hubei Hotel with other ID

    Yang in the car looking for captain Zhang, learned that Zhang has left, Yang said to get off, and Li et al. Don't agree and hit her. Some people drive to find the hotel, first because the noise is not good, second and no room. To find a few are not appropriate, few people finally came to the Hubei Hotel. All the way to the Hubei Hotel came out from the bar, in this process, Li x, Wei so and so are several drunk driving. Staff recalled. The hotel provides an identity card only for a person, the hotel staff were asked to Li Mou, but the boys said to the girl. The girl to leave the room. The staff immediately release. Li Tianyi et al with Yang, came into the room, after Li Tianyi et al of Yang sexual assault. Li et al. Even through lots to determine the order of sexual relations. Afterwards came a little money, give the victim yang.

 

A,Litigation process

In February 19th, a woman alarm, said late on February 17th, its been a singer's son Li Tianyi, gang rape.

In February 20th, Li Tianyi and other 5 people were detained on criminal charges involving the crime of rape.

In February 27th, the 5 people such as Li Tianyi to gang rape case because of the complexity of the case, be extended detention for a month.

In March 7th, prosecutors said, Li Tianyi and five suspected rape has been legally arrested.

In May 6th, the prosecutor accepts the Beijing Public Security Bureau Haidian branch is transferred for examination before prosecution Li Tian 5 people alleged rape case. In the meantime, to the public security organ for supplementary investigation one time.

In June 27th, the police confirmed that Li Tian one one case investigation over, into the examination prosecution stage.

In July 8th, prosecutors alleged rape to court to sue to Li Tianyi et al.

July 22nd,LeeDay oneAlleged rape meeting before the court in Haidian court.

In August 28th, the Li Tian trial, the trial of two days.

In September 26th, the Li Tian case of public trial, Li Tianyi was convicted of rape, sentenced to 10 years in prison.

The parties did not appeal, procuratorate no protest.

 

 

Two,The focus of controversy

Whether the 1 Li Tian case should be heard?

According to the "criminal procedural interpretation" provisions, under the age of 18 criminal cases of minors are not public trial. The minor is a trial under the age of 18, rather than the crime under the age of 18. The provisions of the criminal law of the minor crime will not be sentenced to death penalty refers to the criminal suspect or the accused crime under the age of 18.

If the Li Tianyi trial is under 18 years of age, so the case should not be open trial, the dispute is whether he has not reached the age of 18?

The evidence:

(1Netizen Li Shuangjiang released in 2006) to Lu Yu about the video chat show, show that Mrs. Li Shuangjiang personally. Li Tianyi has reached the age of 12, according to Li Tianyi that is nowAt the age of 21.

 

2.Internet rumors of a 2002 "women's life" Li Shuangjiang article, which mentioned Li Tianyi 8 years old that year, read the third grade primary school. Accordingly, the Li Tianyi was of age.

3.Li Tianyi graduation photos.

 

Affirmative evidence:

1.The ID card and the account of theRecord, Li Tianyi was born in1996 April.

2."Lu Yu about" was recorded in 2011 2006 non .

3.Meng Ge1995Once pregnant, but miscarried .

4.The 4 year old Li Tianyi in 2000 to become the Olympic bid Ambassador 

 

My point of view:

Effect of documented evidence that the state is higher than that of other common evidence, unless there is evidence to prove the state organs document is wrong, or shall be admissible state agency documents. In this case, Li Tianyi's age should be based on the identity of the account and registration age prevail, there is nothing wrong with the practice of the court.

 

2Li Tianyi can bail?

In February 23, 2013 the Beijing police confirmed, Li Tianyi detained. Wang Chuan, Li Tianyi has been released on bail to go home, in this regard, police confirmed as false news. So, whether Li Tianyi has obtained a guarantor pending trial may?

Bail in criminal proceedings, the people's court, the people's Procuratorate, the public security organ shall order it to some or the criminal suspect, defendant to provide a guarantor or pay margin, ensure that the suspect, the defendant does not evade or obstruct the investigation, prosecution and trial, and a kind of compulsory measure becking call.

The new "criminal procedural law" the sixty-fifth stipulation: the people's court, the people's procuratorates and the public security organ to have one of the following cases of criminal suspects, defendants, can bail: (a) may be sentenced to public surveillance, detention or independent additional penal apply; (two) may be sentenced penalty above, take bail no danger to society; (three) suffering from a serious illness, the life cannot provide for oneself, pregnant or breast-feeding her baby, release on bail will not take the place of danger to society; (four) detention period expires, the case has not yet completed, need to take bail.

From the bail system of our country, generally applicable misdemeanor and physical abnormalities are suspect. The misdemeanor, in judicial practice, the general in the suspended suspect apply for bail.

　　The crime of rape is a felony, sentence of three years. Gang rape is a crime with aggravated circumstances, sentenceMore than 10 years. Although minors shall be given a lighter or mitigated punishment, but not less than three years. From theoretic say Li Tianyi can bail, but from the judicial practice, Li Tianyi can't bail.

 

 

 

3Social investigation can affect conviction and sentencing?

268th of the criminal procedural law stipulates, "the public security organs, people's Procuratorate, the people's court for minor criminal cases, according to the situation of the juvenile criminal suspects, defendants growth experience, the causes of crime, care and education investigation." The social investigation system of juvenile justice "is the United Nations Standard Minimum Rules" to establish a foundation of the juvenile justice system.The final report of the formation of Social Survey Institute, which itself is not directly reflect the fact that the case itself, there is no direct correlation with the facts of the crime, can be used as criminal litigation evidence controversial. However, reflecting the social survey report of juvenile growth experience, family environment, personality characteristics, social activities, consistent performance, community attitudes, and can provide a reference for handling. The procuratorial organs need to be arrested is the arrest necessity of reference, in the prosecution, sentencing recommendations in the process should be as an important reference for the investigation report. Social investigation report has important significance in the process of the criminal lawsuit, plays an important role in the judicial organ to correctly handle the case, is to take the education saving measure according to the suspected criminal minors."The Supreme People's Court on the application of 'of the people's Republic of China Criminal Procedure Law' interpretation of the" 476th ", the Supreme People's Procuratorate, the people's Procuratorate rules of criminal procedure (Trial)" article 486th the Ministry of public security, public security organs "provisions" program 311st criminal cases to carry out social surveys will be limited to the provisions of the criminal procedure law content. 

A series of reports from the Li Tianyi case, judicial organs for the juvenile criminal suspects have not yet carried out social investigation, but the media by mining, tracking, interview, have to Li Tianyi's growing experience, family environment, personality characteristics, social activities, consistent performance, students and teachers to reflect and reveal to the public, all the progress of the case of Li Tianyi all in the public opinion supervision.Public opinion instead of the social investigation, also has some influence on the decision.

 

4This case will be private?

Micro-blog friends broke the son of Li Shuangjiang alleged gang rape case actress cancellation charges, the two sides have reached a settlement intention, the victim gets great material compensation, including work, real estate and Beijing account. You can withdraw the case?

This is obviously the misinformation. Procuratorate is Chinese legal prosecution, public prosecution power is the authority and obligation. The case is rape, and belongs to the category of national public prosecution, the victim is not right and the defendant private withdrawal.

 

5Whether the compensation can affect conviction and sentencing?

Rape crime belongs to the prosecution case, even if the victim compensation or payment of compensation for mental damage, will still be investigated for criminal responsibility, but may be considered in the measurement of penalty. For how much compensation, because rape on the compensation of victims is a kind of spiritual damage compensation, and compensation for spiritual damages at present there is no unified specific standards, but also it is very difficult to define a standard, it should be how much compensation, this mainly according to the wishes of both parties and the actual conditions of the family.An attitude more compensation just shows that the crime of crime of regret, it is a sentencing consideration, whether a mitigated punishment also have other aspects, not necessarily that compensation will be mitigated punishment.

 

6In this case there is no extended custody?

The Beijing News reported in March 7th, Lee was the prosecution arrest. According to the provisions of "Criminal Procedure Law" article 154th, the length of detention of suspects arrested after the investigation of 2 months, approval may be extended for 1 months, or 3 months. From Li was arrested June 27th police confirmed that the investigation has ended, more than 3 months. So the Li Tianyi case seems to have extended detention of suspected.

"Criminal Procedure Law" 154th article: on the investigation of criminal suspects arrested after the period of detention shall not exceed2Month. The complexity of the case, the case cannot be concluded within the time limit, an extension of 1 months may be approved by the people's Procuratorate at the next higher level. According to the "Criminal Procedure Law" in article 156th, The term "in the provisions of the criminal procedure law" article 154th of the following cases still cannot investigate terminative, the provincial,Autonomous Region, municipalities directly under the central government approved by a people's Procuratorate or decision, may be extended for 2 months:The fourth paragraph is toCrime involving a wide range of major and complicated cases, evidence of the difficulties. According to the "Criminal Procedure Law" in article 157th, the criminal suspect may be sentenced penalty above 10 years, the provincial, autonomous region, municipality directly under the central government, the people's Procuratorate approval or decision, and may be extended for 2 months. According to the "Criminal Procedure Law" in article 155th, due to special reasons, in a long time should not be brought to trial a particularly grave and complex cases, byThe Supreme People's ProcuratorateReport toThe Standing Committee of the National People's CongressGroup delay time trial. This investigation Li day detention period as a case2+1+2+2+N=7+N months, does not exceed the investigation detain deadline. This question is redundant.

 

7Meng Ge can apply for court again?

 In September 11th, Lee counsel blue and revealed Li Tianyi lawyer formally to the Haidian court court again "application" and 12 domestic criminal practice, theory and forensic experts expert opinions, requirements in the second session, the victim, expert certificate witnesses, on-site inspection, illegal evidence exclusion and other six application, serious judicial, to prevent miscarriages of justice, points out that the presiding judge refused to advocate toilet and into the court, the abuse of judicial power, the illegal procedure. 

Haidian court review of that, the main contents of the application in the two meeting before trial and trial has been in a clear answer, the reasons are no new evidence to support, the lawsuit participates in a person's litigation rights are protected by law, the statutory agent Katie and advocate the application again hearing the lack of factual basis and legal basis, no support, Haidian court has told Li Moumou counsel Chen Shu to the hospital, when facing the told the court rejected the application decision, and record. 

The parties and their legal agents can apply for court again? Whether the court should accept? The law does not expressly. So I think, this should be the discretion of judge. The court may reject the application of Meng Ge.

 

8The defense lawyer's resignation

The first defense attorneyYuan Chenghui, because "the case is complex, cannot satisfy the principal idea", but resigned the position of agent. Second defense lawyersXue ZhenyuanIn May 30, 2013, the resignation, resignation reason "why some inconvenient, not to say". The third termDefense attorneyChen Shu,Wang RanIn July 10th, announced to take overLi TianyiCase,Stick to the end.

The focus is on why the two former lawyer can not adhere to in the end, what the Li Tian case has what problem leads to two former lawyers insist not bottom go to. Some people ask, the lawyer can unilaterally cancelling the contract.

 

Lawyer law
Thirty-second a client may refuse to have been commissioned to continue to defend the lawyer or their agent, at the same time can be a lawyer acting as a defender or agent.
The lawyer entrusted, without good reason, refuse to defend or agent shall not. However, the matters entrusted illegal, the client uses the service provided by the lawyer to engage in illegal activities or the client intentionally conceals important facts related to the case, the lawyer shall have the right to refuse to defend or agent.

That is to say, in addition to "the matters entrusted illegal, the client uses the service provided by the lawyer to engage in illegal activities or the client intentionally conceals important facts relating to the case of" situation, the lawyer can't lift the agency contract.
Be held accountable for the responsibility of breach of contract, and complaints to law firms, lawyers' association. 

In this case defense lawyers and the legal agent negotiation is good, so the termination of the contract and no wrong.