Interpretation: the new criminal procedure law, in what place?

 

1[method] the original jurisdiction, Twentieth: Intermediate People's courts shall have jurisdiction over the following criminal cases of first instance: (a) counterrevolutionary cases, cases endangering State security; (two) the ordinary criminal cases punishable by life imprisonment, death penalty; (three) criminal cases involving crimes committed by foreigners.

The new law twentiethThe intermediate people's courts shall have jurisdiction over the following: criminal cases of first instance:(A)Harm national security, terrorism cases;(Two)May be sentenced to life imprisonment, the death penalty cases.

Change:1Crimes of counterrevolution, delete, increase in terrorism cases;2Foreigners, delete the crime.

[interpretation1]1,96Modify the annual criminal procedure law, the criminal law has not been modified, counter revolutionary crimes still exist, thus preserving the crimes of counterrevolution expression, the removed, according to the change of domestic crime, increase the crime of terrorist activities.2Crimes committed by foreigners, gradually increased in number, delete this kind of crime. The civil litigation jurisdiction prescribed court case involving foreign elements, due to increased provisions of foreign-related cases, major cases involving foreign element by the intermediate people's court jurisdiction.

Note: the foreigner crime will no longer be a standard of judging the grade jurisdiction independence, only the type of crime and sentenced to punishment is determine whether the court jurisdiction standards. Foreigners such as John suspected crime of insult, the general should be under the jurisdiction of courts at the grassroots level, but foreigners John as the alleged rape, may be sentenced to death because, by the intermediate people's court jurisdiction.

2[method], from original thirty-first: "the provisions of this Law Article twenty-eighth, article twenty-ninth, article thirtieth also apply to court clerks, interpreters and identification of human."

The new law thirty-firstA: "avoid the provisions of this chapter apply to court clerks, interpreters and identification of human. The defender, agent ad litem may require avoidance, apply for reconsideration in accordance with the provisions of this chapter."

Change: the scope of application for the body and avoid to apply for reconsideration of the subjects range from "the parties and their legal representatives", extended to the "defenders and agents ad litem".

[interpretation2Note: focus on the range] avoid the application and review body. Example: the defendant Zhang19Years old, his father because of close relatives and non statutory agent, has no right to challenge; but if he has served as counsel, right for challenge.

 

3To entrust defenders, [time] the original article33Article1Paragraph: "since the case is transferred for examination before prosecution, public prosecution cases, criminal suspects have the right to entrust defenders. The accused in a private prosecution shall have the right to entrust defenders at any time."

The new law article33Article1ParagraphThe 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."

Change: the suspects will be entrusted a defender from the time the transferred for examination before prosecution, to advance the investigation stage "the first interrogation or coercive measures taken to date"; the detection stage attorney's identity from the legal help to counsel.

[interpretation3Interpretation:] before the stage of investigation, the counsel status is not recognised, the right of investigation and evidence collection, marking the right and other defense activities impossible, identity embarrassment, the position of lawyer in investigation stage as defenders, to extend the investigation stage the procedural rights of defence counsel to clear the legislative hurdles. On the other, the first interrogation to hire a lawyer, also a foreshadowing for the interrogation lawyer present system buried.

Note: the investigation stage to hire lawyers time starting point is the first interrogation instead of after the first interrogation. The investigation stage, non lawyers can not be entrusted a defender, only lawyers can be entrusted to a lawyer.

 

4To entrust defenders, [body] the old law thirty-third: "since the case is transferred for examination before prosecution, public prosecution cases, criminal suspects have the right to entrust defenders. The accused in a private prosecution shall have the right to entrust defenders at any time." According to this stipulation, the old law has the right to entrust defenders subject range "of suspects and defendants."

The new law article33The increase in the3Paragraph":" the suspect, the defendant in custody, also by the guardian, close relatives to entrust defenders."

[interpretation4Changes in]: criminal suspects, defendants in custody, have the right to entrust his subject range can be extended to the guardian and close relatives.

In practice, once the criminal suspect or defendant in custody of the state, the right to entrust defenders are unable to exercise, therefore, often by their families to entrust, then get the defendant agree and confirm, but the law itself does not explicitly close relatives of the power of attorney, the explicit provisions of criminal suspects, defendants in custody the guardian, and close relatives may entrust a defender.

Note: must be in the suspect, the defendant "in custody", the guardian and close relatives have power of attorney, others still can not be commissioned an independent.

 

5[], the designated defense stipulated: "high" the interpretation of law36"If the accused does not entrust a defender and has one of the following cases, the people's court shall appoint one for him: (a) the blind, deaf, dumb or a person with limited ability of people; (two) trial of minors under eighteen years of age; (three) may be sentenced to death."

The new law article34Article:"The suspect, the defendant is blind, deaf, mute, or is a mental patient who has not completely lost the ability to recognize or control his own conduct, counsel did not entrust,...... The suspect, the defendant may be sentenced to life imprisonment, the death penalty, counsel did not entrust, the courts, procuratorates and the public security organs shall inform the legal aid institutions appoint lawyers to defend the."

[interpretation5] change:1Designated defense situation, will be extended to life imprisonment;2The designated defense, the obligation subject from the court to the public security organ and the people's procuratorate.

Interpretation: our current criminal case rate of less than30%. Many of the accused to accept the prosecution and trial in the absence of a lawyer to help the situation, their legitimate rights and interests can not be protected effectively, it must expand the designated defense. At the same time, the stage of the proceedings will be designated defense extends to the investigation, prosecution stage, not only conducive to the protection of the rights and interests of the accused as soon as possible, can also expand the business for lawyers.

Matters needing attention: "Deaf blind into half mad, juvenile forever (no period) shoot (death)".

 

Added: some people find it no "minor" this should be the designated defense situation, in fact this is a misunderstanding, the article267Provisions of this article:" The juvenile criminal suspects, the accused does not entrust a defender, court, procuratorate, public security organ shall inform the legal aid institutions appoint lawyers to defend the." Therefore, the juvenile is still the object shall designate defense.

 

6[], lawyer s right of meeting the original article96A: "in cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ."

The new law article37Article:"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 the meeting,...... Crimes 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."

[interpretation6] change: clear lawyer hold three certificates (entrusted to a lawyer's practice certificate, certificate of his law firm and a power of attorney, the designated defense for a lawyer's practice certificate, certificate of his law firm and legal aid official) can barrier free meet, without approval. But the crime of endangering national security, terrorist crimes and the crime of particularly great bribery case, still need to go through the investigation authority.

[interpretation6]1: Although the original law only in cases involving state secrets only after the approval of the investigation organ, but in practice, the investigation organ often because of related materials and processing opinion in the course of investigating the secret as cases involving state secrets, not met with approval.08Year lawyers law attorney in possession of three certificates can be met, no approval is required, the modified absorption of this provision.

2: the crime of endangering national security, terrorism and particularly great bribery case, still need to go through the investigation organ for approval. Even in the west, for these crimes, also provides exceptions to rights, Cardoso thinks, if the protection of the basic human rights of all the criminals, the bill of rights will become American Dutch act of agreement. Can say, this exception is reasonable.

Note: the first, three cards range (prove their qualification certificate, certificate, units of the firm that entrusts the aid book or legal relationship with the case of letters), second, three kinds of crime should obtain the approval of the investigation organ meeting.

 

7[time], with "six authority": "lawyers to meet with the criminal suspect, shall arrange to meet in forty-eight hours, for the organization, leadership, to participate in the organization with underworld society nature, organization, leadership, participation in terrorist organizations or the crime of smuggling crime, drug crime, corruption and bribery and so on more than two major complicated joint crime cases,...... We should arrange the meeting in five days."

"The people's Procuratorate rules" in criminal procedure151A: "no cases involving state secrets, lawyers meet with the criminal suspect in custody, the people's Procuratorate shall meet the specific time arrangement in forty-eight hours."

The new law article37Article2Paragraph:"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."

 

[interpretation7] change:1, delete5Arrange the meeting situation days, will be unified into48Hours to arrange;2The "rules", "high in the48The specific time arrangements "with hours of expression for" in the48Hours to arrange".

Interpretation:1Whether the case, case, will be unified into48Hours to arrange.2"High", "in the rules48Hours of the specific time arrangement "with" six authority "in the"48The legislative intent of hours must see above ", with a"48To arrange time hours "(according to the regulations, arranged to have the lawyers and suspects a few months later to meet not illegal), the modified reiterated the legislative intent.

Note: remember48Hours (not two days, because the time when the two period different) must see above can be.

 

8[method] with supervision, original article96Article:"...... The lawyer meets with the criminal suspect in custody, the investigation organ may according to the circumstances of the case and the need to present......."

The new law article37Article:"...... Defense lawyers met the suspect, the defendant is not to be monitored.

[interpretation8] change: from the lawyer met the suspect, the defendant shall have the right to send staff to the scene investigation supervision, to not listen (meaning not present supervision).

Interpretation: according to the old law, the investigation organ may send personnel to the presence of supervision, practice, evolved into the present supervision shall be sent, the parties are unable to speak one's mind freely, but can not reflect the illegal procedure, the new law may not be listening (this is international convention generally follow the minimum standard of the procedure justice, investigators can only be visible but inaudible ranges of internal supervision), to guarantee the free exchange of lawyers and the parties.

 

9[range], marking the original criminal law article36A: "lawyers of the people's Procuratorate date, consult, extract, copy the file documents, technical identification of material, can meet with the criminal suspect in custody and communication."

The new law article38Article:"The defense of the people's Procuratorate date, consult, extract, copy the file material."

[interpretation9] change: the scoring range from litigation documents and technical identification of material into the materials (including the testimony of witnesses, victims' statements, audio-visual materials and other types of evidence)

Interpretation: according to the previous scoring range, testimony of witness, the statement of the victim, the suspect's confession and plea as evidence are not scoring range, defense lawyer is not active investigation, also cannot pass examination to obtain information, greatly affected the defense effect. This change will be to expand the scope of marking the dossier, lawyers at least has made great progress in legislation.

Note: the lawyer law marking scope to the materials, but because it is the National People's Congress passed a law, so in practice were always refuse to apply the provisions of this law, the criminal procedure law is confirmed, great changes.

 

 

10[the defendant], marking the right original law does not specify whether the defendant has the right to read.

The new law article37Article:"...... Since the case is transferred for examination before prosecution date, may apply to the criminal suspects and defendants, verify the relevant evidence......."

[interpretation10]1Lawyer: whether can will file to the suspect, the defendant reading, agreed with that: This is the embodiment of the right to know, but also the meaning of defense lawyers and defendants communication rights, opponents argue that the defendant, this will provide convenience for the confession, this revision has definite evidence to counsel. The suspect, the defendant to verify, established its marking the right to a certain extent.2: in order to prevent the accused after scoring a confession, or accomplice into offensive and defensive alliance, influence of prosecution evidence system, legislation to the starting point of time is limited to the verification of evidence "Transferred for examination and prosecution,", in the stage of investigation to verify the evidence can not be. In addition, the legislation does not explicitly is to show original volume, or provide a summary or oral, "check" two characters need further explanation.

Matters needing attention: 1, only to the criminal suspects and defendants, verify, and not to the family of verification;2To verify the, can only be transferred for examination before prosecution date, not in the investigation stage.

 

11[], the discovery of evidenceThe new law article40Article:"The suspects who advocate collected not at the scene of the crime, does not reach the age of criminal responsibility, mental patients belongs to not bear criminal responsibility in accordance with the law of evidence, it shall timely inform the public security organ, the people's procuratorate."

[interpretation11] interpretation: with the expansion of lawyers range, its obligations also increases. Because lawyers can see the archives in the transferred for examination before prosecution date, avoid to a certain degree assault charges, the defense will the innocence and do not bear criminal responsibility of evidence informed in advance of the prosecution, but also avoid the need for RAID defense. This can be seen as a budding Chinese evidence discovery system.

Note: what are the three types of evidence to inform the prosecutor? Not guilty (not at the scene of the crime) and he shall not bear criminal responsibility (has not reached the age of criminal responsibility and the mental patient) evidence.

 

12Defendant's obligations, [] the original article38A: defense lawyers and other defenders, may help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to change their testimony or conduct other acts to disturb the proceedings of the judicial organs.

The new law article42Article:Counsel or any other person, shall help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs.

[interpretation12] change:1The subject of duty, from the defenders to "defense or to any other person";2Delete, change testimony formulation.

Interpretation:1The original article38And the criminal law article306The echo each other at a distance, together constitute the occupation discrimination against defenders group. Criminal special settings to defend the perjury in the whole world, this also is very rare, and more likely to make false testimony of police and prosecutors, but no corresponding charges. The abolition of criminal law306Voice always can be heard without end. Interpretation2The changes will be compulsory subjects: extended to counsel and any other person, has strong pertinence, legislators have begun to realize that306The unreasonable one, was finally abolished306The initial results. Secondly, delete "change testimony" statement, because not all"Change testimony"Act should be banned, only to change testimony against the facts (perjury) should be banned.

 

13The specified home residential surveillance, [] the original article57Paragraph 1: "by the criminal suspect, defendant residential surveillance shall observe the following provisions: (a) without the approval of the organ executing shall not leave the place, no fixed residence, not to leave the designated residence without permission;......"

New law."Residential surveillance shall be in...... Place of execution; no fixed residence, can be performed on the specified home. For the alleged crimes against national security, terrorism crime, crime of particularly great bribery, in the shelter implementation may hinder the investigation, with the approval of a procuratorate or public security, can also be performed on the specified home. But not in custody, special case handling place execution."

[interpretation13]: specify changes in home residential surveillance is not the creation of a new system, already exists, but only for no fixed abode people can take, but this amendment, increasing regulations, to endanger national security, terrorist activities, particularly great bribery three kinds of crime, even if there are fixed in place, as long as the execution may hinder the investigation, you can specify residential surveillance.

Interpretation: this one was widely criticized, people worried about increased three kinds of crime can be unconditionally assigned to residential surveillance, originally aimed at members to adopt double measures, can take on any arbitrary (citizens within the prescribed time -- residential surveillance6Months, at defined locations -- designated residence). The personal freedom of citizens will be a major violation.2The reason is: legislation, this three kinds of crime is special, and residence in the execution will cause the accomplice alert, flight or transfer, conceal, destroy evidence happen, so, can the designated home residential surveillance.3Even if is: "no fixed abode, can specify the residence" is not reasonable. For example, Zhang SanAArea of permanent residence, but inBDistrict, suspected of a crime,BThe case handling organ can use in the district BNo fixed residence and its designated residential surveillance? Moreover, the no fixed abode, rent or buy a house after being made permanent residence, whether can still continue to designated residential surveillance? All these need to be clear judicial interpretation.

Note: This is the controversial provisions, we know: the general case requires no fixed abode, can specify home residential surveillance, three special cases, have a fixed residence can also specify residential surveillance, but not in the place of custody or the place, otherwise it is a disguised form of detention.

 

14Residential surveillance, [] the original method to notify the family of the specified home residential surveillance after notification of family issues not addressed, often appears in practice does not notify the family, relatives and family mistakenly thought of missing report happens.

The new law article73Article2Paragraph:"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."

[interpretation14]:1, unable to notice, refers to the criminal suspect no family, the suspect, the defendant status, home address, means of communication can not find or according to its links can not contact, and for reasons such as natural disasters, irresistible cause communication, traffic disruption and unable to notice. But these are the judicial interpretation should be clear, otherwise it may by law enforcement personnel abuse.2, for unidentified suspects, defendants should first investigate the identity, not after the investigation directly to "can't notice" refused to notify the family.

Matters needing attention:1Applies only to the designated place, residential surveillance, not suitable for residence in the implementation of residential surveillance;2, only not notice may not notice, not including "impede the investigation";3, must notify the family, and no unit.

 

15Residential surveillance, [] to be shortenedThe new law article74Article"The specified deadline: home residential surveillance shall be offset. Be sentenced to control, surveillance, the term is to be shortened by a day; sentenced to criminal detention, fixed-term, residential surveillance for two days to be shortened by one day."

[interpretation15]1, the law does not provide for residential surveillance may be to be shortened, the revised provisions specified residential surveillance may to be shortened, visible, the coercive measures in the restriction of personal freedom degree and the general residential surveillance, detention has characteristics similar to the. But from the point of view of theory, designated residential surveillance and detention exist difference, therefore designated residential surveillance2Day allowance criminal detention, fixed-term1Day.

 

2However, in judicial practice, once the suspect is designated for residential surveillance, personal freedom has been deprived of custody, and is, therefore, the provisions of this ninety percent off against protection is not beneficial for the rights of the suspect, this is one of the reasons specified in the battered residential surveillance system.

Matters needing attention:1The specified residential surveillance, equivalent to half the custody state, so the specified monitor daily allowance a day, specified monitor two allowance detention and prison one day.2The term is to be shortened, calculated from the date of execution, rather than the date of entry into force of the judgment.

 

16Residential surveillance, [] the original law obligation57A: "the monitored the suspect, the defendant shall comply with the following provisions:1, without the approval of the organ executing shall not leave the place, no fixed residence, not to leave the designated residence without permission;2Without approval, no enforcement agencies to meet with others;3In communications, the time to;4, not to interfere in any form of witness;5, shall not destroy or falsify evidence, or collusion."

The new law article75Article: "by the criminal suspect, defendant residential surveillance shall observe the following provisions: (a) without the approval of the organ executing the implementation of residential surveillance shall not be allowed to leave the premises; (two) without the approval of the organ executing the communication or others may not be met; (three) to the case promptly in the communications time; (four) shall not in any form interference of witness;...... (five) shall not destroy or falsify evidence, or collusion; (six) the passport and other travel documents, identity documents, documents, the executing organ preservation driving."

 

[interpretation16] change:1Will not be allowed to leave, "home" or "home" to leave the premises;2Increased, without the approval of the organ executing the provisions shall not communication;3"The passport, increase the specified entry certificate, ID card, driving license to the enforcement organ preservation".

Interpretation:1No, communication means that other communication shall not live together with other family members and hired a defender, in addition to correspondence, including phone e-mail and text messages.2Foreigners in China, increasing crime, for these people to residential surveillance to prevent their departure, the Chinese citizens crime to residential surveillance, also need to prevent their escape supervision, thus increasing the seized documents obligations.

Note: comparison of obligations and bail1To leave the premises, after executing organ rather than decision authority for approval, if it is to test the decision residential surveillance, public security before approval, also should be decided to the consent of the organ.2, not to leave live in cities and counties are guaranteed obligations, shall not be allowed to leave the premises is monitoring obligations.3, released on bail pending trial, seize documents is selective obligations, does not have to take, in the residential surveillance, is must comply with the obligations;4, bail, as long as the passport and driver papers for executing organ preservation, residential surveillance increased ID, because the latter activity scope is little, do not need to carry ID.

 

17Residential surveillance obligation violation, [processing] the original article57Article2Paragraph: "by the criminal suspect, defendant under residential surveillance violates the provisions of the preceding paragraph, if the circumstances are serious, he shall be arrested."

The new law article75Article2Paragraph: "by the criminal suspect, defendant under residential surveillance violates the provisions of the preceding paragraph, if the circumstances are serious, can be arrested; need to be arrested, the suspect, defendant custody."

Change: the violation of residential surveillance duty, where the circumstances are serious, shall be arrested, changed to "arrest, can also advance detention".

[interpretation17]1If the circumstances are relatively minor, breach of duty, can continue to residential surveillance, if the circumstances are serious, be arrested. The reason the original law "should" to "can", is considered to increase the processing method of "custody";2The arrest, need after a long time of examination and approval, therefore, in the arrest before allowing the custody, to play the same deprived of his freedom effect.

 

18Residential surveillance, [during] supervisionThe new law article76Article:"Executive organ of criminal suspects, defendants, can adopt the electronic monitoring, not regular inspection monitoring method for monitoring compliance with the provisions of the residential surveillance; in the period of investigation, can communicate to criminal suspects monitor."

[interpretation18]: the rapid development of communication and network technology has greatly increased the difficulty of monitoring, some countries adopt electronic Bracelet monitor mode to strengthen surveillance, China also began to try a similar way in community correction, the effect is very good, so set the rules. But as required by monitoring communication cracked crime, it must comply with the relevant provisions of technical investigation, strict examination and approval, means, object and time limit.

Note: the general can understand. Note, the communication of monitoring only for criminal suspects, not for the family.

 

19The conditions of arrest, [] the original article60A: "to have evidence to prove the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the occurrence of danger to society, thus necessitating arrest, shall be immediately arrested according to law."

The new law article79Article: "there is evidence on the facts of the crime, may be sentenced penalty above the suspect, the defendant, to take bail is still not enough to prevent the danger to the society, should be arrested: (a) may implement the new crime; (two) the real danger endanger national security, public security and social order the;...... (three) may destroy or forge evidence, witnesses or collusion of the interference; (four) to the victims, informants, may take revenge against the implementation; (five) Dutch act or attempt to escape......

The new law article79Article2,3Paragraph:"To have evidence to prove the facts of the crime, may be sentenced to more than ten years of punishment, or there is evidence to prove the facts of the crime, may be sentenced penalty above, once an intentional crime or unidentified, should be arrested. Was released, monitor the suspect, defendant breach of bail, residential surveillance shall, if the circumstances are serious, can be arrested."

[interpretation19] change:1The conditions of arrest, the "social risk" to be refined, lists5Case;2Two additional cases, arrest -- there is evidence to prove the facts of the crime, may be sentenced to ten years of punishment and there is evidence to prove the facts of the crime, may be sentenced to penalty above, had an intentional crime or unidentified";3, increase can arrest situations: breach of bail or monitoring regulations, if the circumstances are serious.

Interpretation: the original method the conditions of arrest for "there is evidence to prove the facts of the crime (evidence condition), may be sentenced penalty above (the penalty condition) and take bail or monitoring, not enough to prevent the occurrence of danger to society, thus necessitating arrest (necessary conditions)", but the necessary condition is not clearly defined, wording fuzzy, cause the operation to different standards in practice, the conditions of arrest master too strict,

The arrest is not arrested, police were forced to residential surveillance custody in disguised form, or the extension of the period of detention to arrest the generation. In addition, some places on the offence is a minor or a social danger is very small suspects also arresting action, there should be sentenced to prison in the short period of detention, the court finally sentenced to how long how long, therefore, the necessity conditions, the social risk into five kinds of situations.

Actually, No.2Two kinds of circumstances referred to in paragraph should be arrested, can also be understood as the refinement of the social risk conditions, such as "may be sentenced to ten years in prison, the" presumption of its serious social harmfulness, and "once an intentional crime or unidentified", also can be estimated with social risk more serious.

Note: the amendments mainly pay attention to:1The five kind, which is harmful to the society situation, no memory, only need to grasp the law;2, No.2Two putative paragraph to have social harmfulness situation must bear in mind;3Attention, consistent with the above situation is "should" arrest, and breach of bail or monitoring regulations, if the circumstances are serious, is "to" arrest.

 

20After the detention, [notice] the original article64Article2Paragraph: "after the detention, in addition to hinder the investigation or not notice, shall give the reasons for detention and the place, in twenty-four hours, notify the detainee's family or the unit to which he belongs."

The new law article83Article2Paragraph:"Arrest, the detainee shall immediately send the detention center custody, not later than24Hours. 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 detention24Within the hour, notify the detainee's family. After the investigation situation to disappear, it shall immediately notify the detainee's family."

[interpretation20] change:1Requirements, detained immediately sent to detention center;2, will hinder the investigation not notice is defined as a crime of endangering national security or terrorism crime;3Notice, will range from "family or unit" to "family";4Would hinder the investigation situation, disappeared, immediately notify the detainee's family.

Interpretation:1Request immediately sent to jail, because the practice often be held in other places. The detention center as a formal places of detention, detain, return, security, monitoring of the supervision have more requirements, is conducive to the protection of suspects and prevent the escape. Not later than24Hours, because sometimes detained from the distant, or detained after spot identify, assist captured accomplice.

2The law cannot notice, or hinder the investigation can not notify the family or unit, but hinder the investigation is a completely subjective standard, extremely easy to be interpreted as an excuse not to inform, therefore, this will hinder the investigation not notice strictly limited in the harm national security crime and terrorism crimes two kinds of situations, narrowing the scope of the case without notice.

3The original law, under normal circumstances, should be detained after the families "or" unit notice, but in practice, because of "or" the selectivity, therefore often family members had not received any notification, the said unit has been notified, and the unit had not received any notification, said the family has been notified, mutually making excuses buck, the clear provisions must notify the family, delete the provisions of circular units.

4Provisions, increase, would hinder the investigation situation disappears, it shall notify the family members. It is further limited to impede the investigation for reasons not notify the family of the conditions, to avoid the abuse of this provision by detainees missing secret. So, to hinder investigation for two layer is equal to the limit: one is the alleged offense, two cases disappeared after must immediately notify the family.

Note: the need to pay attention to, detention after3A24Hours:1After the detention, the latest24Hours send detention;2General shall, after the detention24Hours to inform families;3After, should be in detention24Hours of interrogation.

 

21[review of arrest, interrogation]The new law article86Article1ParagraphReview: "people's Procuratorate approved the arrest, can ask the criminal suspect; in any of the following circumstances, it shall interrogate the criminal suspect: (a) have doubts about whether it meets the conditions for arrest; (two) the suspect asked prosecutors to statements; (three) the investigation activities may have a serious illegal act."

[interpretation21] procuratorate review of arrest, is often written examination, in recent years, some places began to direct the interrogation of criminal suspects, verify the facts, clarify the evidence. The rise to the official in the criminal procedure law.

Matters needing attention: 2010To develop joint by the Supreme People's Procuratorate and the Ministry of public security "on the stage of the interrogation of criminal suspects arrested regulations" provisions shall interrogate the certain circumstances.

 

22[review of arrest, interrogation]The new law article86Article2Paragraph:"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."

[interpretation22]: for legal advice is "can" listen to, but if the lawyer asked, "should" listen to.

 

23After the arrest, [notice] the original article71Article2Paragraph: "after the arrest, in addition to hinder the investigation or not notice, should put the reasons and detain arrested in place24Hours to inform the family of the arrested person or the unit to which he belongs."

The new law article91Article2Paragraph:"After the arrest, it shall immediately be arrested for custody. In addition to not notice shall, after the arrest24Within the hour, notify the family of the arrested person."

[interpretation23] change:1Increased provisions, immediately will be arrested for house of detention;2Delete, would hinder the investigation may not notice;3Notify the unit, remove the obligation, must notify the family.

Interpretation:1After the arrest, had asked immediately sent to detention center, in order to prevent the detention in other places, and the detention center custody, hearing, security, surveillance, supervision system is more perfect, to prevent the occurrence of torture to extract confessions and escape Dutch act etc..

2At the latest, detained in24Hours send detention, arrest should be immediately sent to the detention center, the reason is: arrest may need to assist in the collection of evidence, captured accomplice, and take the measure of arrest, had mastered the necessary evidence, generally do not have the urgency, but most were arrested suspects have been detained, detained in prison what, no need to set long time.

3Detention, and different, the investigation organ for approval of arrest, the case has been the investigation for a long period of time, the suspect often have been detained for a certain period of time, a considerable part of the investigation work has been completed, will inform the family, generally will not obstruct the investigation.

4, delete can notify the unit, retaining only inform the family, in order to prevent prevarication. Since then, as long as their families are not informed, is illegal, but not to inform the unit for reason.

Note: note the arrest and detention of relevant content.1, detention should be immediately sent to jail, not later than24Hours, arrest should be immediately sent to the detention center.2In addition, the detention: unable to notice or suspected of crimes of endangering national security, terrorist activity crime notification would hinder the investigation of possible situation, should inform the family, was arrested except can not notice, shall notify the family.

 

24[after the arrest, detention review] to be

[interpretation24]: with the development of litigation to change, the conditions of arrest may also change, such as case crime amount are reduced, affect the estimate may be sentenced to a punishment, the danger to the society may have been ruled out, therefore, the need for timely review of detention necessity, lower the rate of custody.

Matters needing attention: 1, found that should not remain in custody, "shall" suggestions "release" or "change" coercive measures (such as to bail);2The competent authorities shall, in the "ten days" to notify the people's procuratorate.

 

25[/The main application for alteration of the compulsory measures] the original article52A: "the criminal suspect in custody, the defendant and his agent ad litem, near relatives shall have the right to apply for bail."

The new law article95Article:"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."

[interpretation25] change:1The defender, increase in the application of the body(The original article96The existing of this regulation, the absorption to paragraph);2The application for bail, a modification for compulsory measures, the application to expand the scope of;3Relevant organs, increases the processing of the application.

 

Interpretation:1The changes in the conditions of arrest, strict expanded at the same time to apply for change of coercive measures (such as from arrest to bail or monitoring) right from two aspects, to lower the rate of custody;2The original method96The suspect is arrested, the appointed lawyer may apply for bail for the absorption of this article, to increase the application subject;3, increase the processing program is to prevent muddle with one's duty.

Note: the value of the law examination greatly, in the law of criminal procedure, has always been subject to various procedural rights is the focus of attention. Students need to focus on the subject has the right to apply for compulsory measures to change, especially the defenders. This year is likely to be around the defendant's right to a multiple choice.

 

26[], arrest forced change original article74A: "the suspect, the defendant in custody cases, not in custody, in the investigation of the provisions of this law, a trial period of review and prosecution, trial Banjie, require continued investigation, trial, the criminal suspect, the defendant can bail or residential surveillance."

The new law article96Article:"The 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 residential surveillance."

[interpretation26] changes: an increase in the time limit cannot be completed within the stipulated time to release the suspect, the defendant.

 

Interpretation: in practice, the term still remain in custody of criminal suspects, defendants, which emerge in an endless stream of extended custody phenomenon, or change to bail or residential surveillance, the guarantor or the monitoring of the time and not included in the period, leading to many cases long procrastinate not definitely, in order to solve this problem, this increase provisions as long as the expiration of the time limit, in principle, should be immediately put.

Matters needing attention1, the expiration of the period, he shall be released immediately;2Only need, continued investigation, trial, can only be guaranteed surveillance;3, can be guaranteed to monitor, rather than be. It can be understood as may be released surveillance, also can not be guaranteed surveillance and remain in custody? Whether or not. Can only be understood as can be guaranteed, but also can monitor. Choose between them. But it can not understand can remain in custody.