Present situation and Countermeasures of homicide victims legal agent system

   China's current "Criminal Procedure Law" eighty-second article only will the location for the parties, provisions of article fortieth of the victim has the right to entrust agents ad litem, but also the provisions of article 155th of the " prosecutors read out the bill of prosecution in court, the defendant, the victim can be accused of crimes make statements on the indictment, the prosecutor may interrogate the defendant one victim, incidental civil action, the plaintiff and defender, agent ad litem, with the permission of the presiding judge, put questions to the accused".

Because of "Criminal Procedure Law" entrusts with the victim litigation agent (hereinafter referred to as the representative) have the right to participate in the trial, including criminal lawsuit activity only indirectly defined in the relevant provisions, but not directly specified in the trial activities of the rights of victims of agent, the agent to participate in the hearing rights, obligations and legal status is not clear specific. So in judicial practice, there are few entrust an agent to participate in the litigation of criminal activities, so that some judges don't know criminal litigation agent system existence, refused even to the agent to appear.

We all know that in the case of public prosecution, although prosecutors, victims are part of the prosecution. But because of the complexity and the criminal case that protect the interests of the different focus, the prosecution organ represent the interests of the state to support the prosecution, cannot completely represent the will and interests of the victim and inclusive. To allow victims themselves or entrust a lawyer in criminal proceedings as agent of criminal proceedings, which can make up the deficiency of public bodies for the protection of victims in the very great degree.

Agent of criminal litigation can use their professional skills to assist the prosecutor accused of crime, is more important to criminal agent once found the prosecution to criminal suspects qualitative and inappropriate damage the interests of the parties, through trial published in time the agent of my own views on the case, the agent can also supervise the trial process better maintenance of the victim's legitimate rights and interests through.

The fact is China's current "Criminal Procedure Law" to make major changes to the original "Criminal Procedure Law", to increase fortieth, eighty-second, 155 to 161 has proved important legislation has taken note of the victim's agent in criminal cases. However, due to the trial of customary law provisions are too simple, long-term and the ignorance of the law, be afraid of a trouble and other subjective and objective reasons, so do not want to participate in the criminal proceedings, the criminal victims and their agents to participate in the litigation, the legal system is slowly fade out of people's field of vision.

Then, the agent of criminal procedure can appear in court, how about the status of the victims in the public prosecution litigation system, this paper try to analysis of the following:

One. The litigation rights of litigation representative cases of public prosecution

According to the "Criminal Procedure Law" the fortieth stipulation: criminal litigation in the public prosecution cases (hereinafter referred to as the criminal agent) refers to the victims in the public prosecution, entrusted by the legal representative or his near relatives, proxy client participation in criminal procedure act.Said such action by the victims or their close relatives of the criminal procedure is based on agent. Agent of criminal litigation is different from the private prosecutor entrusted agent ad litem and cases of public prosecution in incidental civil action litigant agent ad litem entrusted.

Then the agent of criminal litigation rights together what aspects? Our country's law of criminal procedure is relatively simple, only 155 to 161 of the specified enjoyed during the trial litigation rights. However, according to the Supreme People's court in January 22, 1992 issued "on approval" victim agent and the agent shall be entitled to issue any litigation rights, the approved regulations: lawyers as representative of the victims in cases of public prosecution, the right to sue, shall, in accordance with the "Criminal Procedure Law", "Provisional Regulations of lawyers" and the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of justice "a lawyer participating in litigation of several specific provisions of the joint notice" and "a lawyer participating in litigation several supplementary provisions" of the relevant provisions. Therefore, the agent lawsuit rights together mainly has following several aspects:

1, to the right. China's "criminal procedural law" the regulation of criminal procedure in the right agent is fuzzy, only provided in the 151st people's court has decided to open a court session, should inform the agent ad litem, notice or served in the three days before the opening of. "Lawyers Law" twenty-eighth stipulates clearly the lawyer can accept the homicide victims or their close relatives as principal, agent, to participate in the proceedings. Therefore, criminal lawyer shall enjoy the right to appear in court, in court of criminal lawyer right is the foundation for the exercise of other rights of action.

2, marking the right. China's "Criminal Procedure Law" is not clearly defined the agent enjoys reading right of criminal procedure.China is stipulated in the "Lawyers Law" twenty-eighth article: "lawyers, can collect, consult the materials pertaining to the case......" And "the Supreme People's Court on some problems in the implementation of" the people's Republic of China Criminal Procedure Law > explanation "the forty-ninth stipulation:" the lawyer serves as an agent ad litem, consult, extract, copy the materials pertaining to the case, to understand the."

only allow the victim's litigation representatives shall have the right to consult the files can be better activities of litigation of judicial supervision, so as to put forward myself from the facts and application of law. China's "Criminal Procedure Law" not on the agent of criminal action marking stipulating the right of the legislation is insufficient.

3, the right to collect evidence material. Lawyer according to the case of need, may apply to the people's Procuratorate, the people's court for the collection, investigation and evidence obtainment or apply to the people's court to inform the witnesses to testify in court. Attorney to investigate the evidence by lawyers and law firms practicing certificate to prove, to investigate relevant units or individuals undertaking legal matters with the situation. (see "lawyer law" article thirty-fifth)

4, agent of criminal proceedings in the trial process of litigation rights. Roughly: attended the court and to the defendant, ask questions, the witnesses and expert on the documents as evidence put forward opinions, views and debate the rights on the evidence and the case and application notice new witnesses, obtain new material evidence, to apply for re identification or inspection rights litigation agent (a case of public prosecution see "Criminal Procedure Law" article 155th - 161st);

Agent of criminal proceedings is to accept the entrusted to participate in the criminal proceedings, so I think the agent of criminal action in addition to the provisions of laws and regulations directly enjoy more rights, should also be granted from the rights of the client, the proxy. Refers to the criminal lawyer because in litigation agent status, its can exercise the agent itself is owned and awarded the exercise of the litigation rights, and the agent will constraints, these rights lawyers have called the attorney agency rights. In the case of public prosecution, litigation rights of victims of the most typical has the right to challenge, request the right to protest, the agent should also enjoy the rights agency.

Two cases of public prosecution status in litigation, criminal litigation agent

The litigation status of the victims in the public prosecution of criminal litigation agent, our country has no explicitly stipulated in the law of criminal procedure in criminal litigation agent in any litigation status. The current status of criminal litigation agent qualitative in our theory and practice mainly has the following several points: independent, dependent, both independent and dependent.

1 independence. Lawyers believe that as the representative of the victims in cases of public prosecution, is based on the facts and the law in action, not by the will of the victim of the constraints, and can not be influenced by procuratorate indictment. Thus, litigation agent has independent status of litigation

 2 dependent said. That the agent of criminal proceedings do not have independent status in the criminal procedure, but depends on the principal, granted in accordance with the law only in the client's litigious rights within the scope of activities. 　　

     Dual 3 dependent and independent said. That the litigation status of criminal procedure is the dual agent. An agent ad litem and participate in litigation, is entrusted by the people, act according to the generation, maintenance of the legitimate rights and interests of victims, which is dependent; at the same time, but the agent to act independently according to law, to effectively safeguard the legitimate rights and interests of the victim, which reflects the independent agency activities.

I think the agent of criminal proceedings should have independent legal status, the reasons are as follows:

The first,According to China's "Criminal Procedure Law" fiftieth stipulates: "an agent ad litem shall submit to the people's court shall be signed or sealed by the power of attorney; if a principal is a party in an incidental civil action, litigation agent shall submit to the people's court shall be signed or sealed by the agency attorney." Visible, agent of criminal litigation is different from criminal incidental civil agent, agent of criminal proceedings in the trial published views are not entirely dependent on the proxy agent authorization.

Second, agent of criminal litigation is matched with the judicial organ for investigation of criminal responsibility of the accused in legal proceedings, but his agent opinions can not be influenced by the prosecution organ.

Third, he may not be the person to criminal liability of the defendant's judgement as to defend the active criterion, which is independent of the judge.

Fourth, he can only according to the national law and the facts of the case: agent opinions, expose crime, safeguard the legitimate rights and interests of the victim, and thus independent of as its principal defendant. [

Therefore, the author thinks that a case of public prosecution, criminal litigation agent with counsel, should also be the litigation status of independent. Agent of criminal proceedings in criminal procedure is independent of prosecutors, judges, and independent of the principal accused of crime will, criminal litigation is to safeguard the lawful rights and interests of the client and not all interests.

Three, some suggestions for improving the criminal litigation rules

Combining with the analysis above the agent lawsuit rights and litigation status of the current law, we can see that the criminal victim entrusted agent, in the case of public prosecution, the provisions of criminal litigation system is rare in judicial practice and China's current criminal procedure law is not perfect has the very big relations, I think we should take measures from the following several aspects to perfect our criminal litigation system agent.

(1) the provisions of criminal procedure to clear the agent right of investigation and evidence collection rights and before the court.

China's "Criminal Procedure Law" provides a series of procedural rights of criminal proceedings in the trial process agent right in the public prosecution cases, but does not specify the agent right of investigation in criminal procedure has the right and before trial. These procedural rights realize must take the criminal lawyer has the right to appear in court and the court investigation evidence collection power based.

(2 clearly defined agent of criminal proceedings has independent status of litigation.

 Because of "Criminal Procedure Law" on the status of litigation agent criminal proceedings have not made the explicit stipulation, resulting in the judicial practice is different, some courts have agent of criminal proceedings as the public prosecutor's subsidiary, and some even the victim and his agent ad litem arrangement in the seats, affecting the agent of criminal proceedings in the trial the effect of activity.

  (3) expressly provided for the prosecution indictment should be delivered to the victim.

"Criminal Procedure Law" 151st stipulates: "the court has decided to open a court session after the prosecution indictment, should be later than ten days before the hearing on the defendant", whether the victim shall not serve. Such regulations and the party status does not match. Has the qualification of the victim, should have the understanding of the development of the case the right, so that we can timely entrust agent of criminal proceedings to protect their legitimate rights and interests.

(4) should be clearly defined agent of criminal proceedings and the defendant's counsel have equal rights.

Defenders of the defendant's current "Criminal Procedure Law" rights and obligations have made specific provisions, the provisions for criminal victims rights and obligations of the agents is not perfect. The author thinks, in order to protect the rights of victims, the realization of judicial justice, should stipulate the criminal litigation agent with the defense of the accused person rights and obligations the same.

To sum up, only to improve the "Criminal Procedure Law" provisions of the criminal litigation representative litigation rights and litigation status, can we truly achieve the protection of the rights of victims, disappear to make any judicial practice in criminal litigation rights trampled agent phenomenon.