Modify the Criminal Procedure Law: progress or regress?

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  • / Author: Aaron Lewis

Liu Guiming ":

   In less than 12 hours, the criminal procedure law will vote on the completion of new. According to the Convention, the normal should be no problem. However, different sound is still rising. Now, the biggest, most, the loudest voices basically points to seventy-third, the so-called "no notice" situation.

   Similarly, the scholars have different opinions. Some scholars claim to see the revised the criminal law significance and main bright spot, some scholars argue that the modification of the criminal procedure law of regression can obviously.

   Why is it so?

 

 

 

Professor Chen Weidong accepted xinhuanet.com interview:Every aspect of the great progress

 

                   In 2012 03 months 11 days15:10        Source: xinhuanet.com     

In March 10th, legal experts, Renmin University of China law school professor Chen WeidongCriminal Procedure LawModify the topic interview xinhuanet.com reporter.Xinhuanet.com reporter Li Ying perturbation

Xinhuanet.com reporter Han Yuanjun Li Ying

Criminal Procedure LawThe draft amendmentThe morning of March 8th to the five session of the eleven National People's Congress for consideration, this is the second after China's criminal procedure law enacted in 1979 1996, the first modification, judicial circles, academic circles as "another leap" development of China's human rights cause, causing great concern in the community. With the net friend concern, xinhuanet.com reporter 10 interview two times in Professor Chen Weidong School of law, Renmin University of China expert on amendment of the criminal procedure law.

Crime andThe protection of human rightsThe combination of

Xinhuanet.com reporter: how do you evaluate the criminal procedure law amended second times?

Chen Weidong.This revision has more than 100, an increase of 66 articles, can be said that every modification of the clauses is necessary. These Provisions are mainly carried out the "how to better balance in the fight against crime and the protection of human rights" of the spirit, changed the past emphasis on punishment of crimes and punishment, the fight against crime and the protection of human rights in the evidence combination, compulsory measures, in the trial procedure on the issue through the protection of human rights spirit, aspects of the modification is tremendous progress.

The revised criminal procedure law content, enrich and perfect, system more complete, have greatly improved in the criminal procedure of scientific, democratization, the rule of law. I feel deeply, our justice is constantly moving toward more humane, rational direction, especially the level of protection of human rights to hitherto unknown degree.

Cut offInquisition by tortureSource of power

Xinhuanet.com reporter:Draft amendment to the criminal procedure law has many bright spots, which caused widespread concern is on the prohibition of torture to extract confessions, to prevent miscarriages of justice occurred content. Please describe the changes in this area.

Chen Weidong.Prevention of torture to extract confessions evidence of illegal behavior result in miscarriages of justice, which is the focus of the amended criminal procedure law. To prevent this from happening, the source is to end violence, torture to extract confessions obtained evidence can not be used as evidence, there would be no torture.

Draft amendment to the criminal procedure law but no person shall be forced to prove his guilt increased in forty-third, the following chapters also focus on regulation of illegal evidence exclusion. That is, the illegal evidence exclusion include oral confession, exclude the statement of the victim and the evidence, but the emphasis on of exclusion.

Here the legal term is "using torture to extract confessions and other illegal methods to collect the suspect,DefendantThe statement ", the" and "word, my explanation is" torture to extract confessions away ',' "rather than" within the ',' ", if the torture to extract confessions as violence, harsh corporal punishment, the" other "should also include to the criminal suspect body, physiology with ways and means to great pain, such as corporal punishment, abuse, boil, hungry, shall be deemed to exclude method. The investigators, judicial personnel are not in accordance with legal procedures allows a method to obtain evidence, but take the method of physical and mental health, damage infringement of one's personality, dignity, this is not only a violation of human rights, but also the abuse of authority.

 

The defense systemThere are three major progress

Xinhuanet.com reporter:Draft amendment to the criminal procedure law of the relevant provisions of lawyers participated in the defense of any changes, what are these changes starting point?

Chen Weidong.The defense system is an important part of our judicial system, the right to defense is the most important embodiment the defendant litigation rights. The right of defense to modify the overall cohesion the lawyers law, and the propulsion.

First of all, the first time in Chinese realizedThe suspect, the defendant can counsel from the accused, synchronization realization of defense and prosecution, it is very important to progress. Criminal law, criminal suspects, defendants in the investigation stage can only hire a lawyer to provide legal help, only to review and prosecution, trial stage, it may entrust a defender. Provided is the answer to legal questions of legal assistance, provide legal advice, That's it, no birthright, status, rights and obligations of the proceedings on the. The defender is involved in litigation, can exercise defense duties.

Secondly, for intense lawyers perform defense duties have meet the difficult, difficult to investigate and collect evidence, human rights can not be guaranteed and so on, the criminal procedure law to conduct a comprehensive revision. For example, in the past the lawyers met with the parties, should be approved, the amended provisions, all cases except outside the bribery crime, crimes of endangering national security crime of terrorist activities, particularly significant as long as a lawyer qualification certificate, certificate, law firm client letter or legal aid official three cards are complete, the detention center must be given to the arrangement, the time limit is 48 hours.

Another development is the lawyers can not be monitored, it's not just about the guarantee of right of defense and is a great restriction on investigative power. At the same time, the lawyer and the investigation progress is great. After modification, in the prosecution phase,Defense attorneyYou can refer to the case materials and material evidence; if the public security organ, the procuratorial organs have the innocence of the defendant or light offence evidence and not be transferred, the defense lawyer may apply to the people's Procuratorate and the people's court to obtain, to ensure the rights of lawyer investigation of evidence.

Special type of case law

Xinhuanet.com reporter:Draft amendment to the criminal procedure law also increased a series"The special procedure"What is the point of departure, please increase the special program?

Chen Weidong.Four special program is the need to adapt to the development, design their own characteristics according to the special case. In the past our judicial procedure only ordinary procedure, all cases are stipulated by the criminal procedure law of the first trial, second instance and the procedure for trial supervision, but special cases, such as mandatory medical treatment is not a criminal case procedure, such as in adult proceedings are not suitable for minors. This increase in juvenile criminal proceeding procedure of public prosecution, criminal reconciliation procedure, criminal suspects, defendants escape death, confiscation of property procedures, four special program mental patients do not bear criminal responsibility, build contemporary China criminal special procedure system, this special type of case law.

Expand the scope of legal aid

Xinhuanet.com reporter:In the legal aid, what do the new regulations this change?

Chen Weidong.Legal aid in our country for many years development is slow, the amendment of criminal procedure law expands the recipient entity, expand the scope of legal aid. First, the regulation is not just economic difficulties and the minors and the deaf blind, also provides the spirit obstacle behavior ability can enjoy the legal aid, which is the main expansion. In addition, the current legal provisions only in death penalty cases before they can apply for, and the amendment to the Criminal Procedural Law draft, may be sentenced to life imprisonment in cases, suspects can apply for legal aid.

In the time range is more important, before the trial stage, provided by a court appointed lawyer legal aid, the provisions from the beginning of the investigation stage, this is great progress. Investigation by the public security organ, review, prosecution, courts, as long as they comply with the conditions, without a lawyer, will be to provide legal aid. So I can be estimated very optimistic, criminal procedure law, the revision after implementation, Chinese legal aid has taken solid steps, has the huge development.

 
 
 
 
 
 
 
 
Amendment to the Criminal Procedural Law clause controversyThe seventy-third is to squeeze private

 

In 2012 03 months 13 days 13:32 Source:People.com.cn

 

 

Amendment to the criminal procedure law by the parties concerned

Punishing criminals and safeguarding human rights, will become the legal milepost

　　                                  People.com.cn public opinion monitoring room public opinion analyst Zhu Yi

　　

     In March 14th, the five meeting of the eleventh session of the National People's Congress will consider the vote on the amendment to the criminal procedure law. The criminal procedure law "constitution", and experts say "the constitution is the law of criminal procedure in criminal procedure law is static, dynamic constitution", so people especially the legal profession, intellectual circles pay attention. Vote on amendment to the criminal procedure law, a major event is the NPC plenary meeting organization, is "a form of" socialist legal system China characteristics of the important cornerstone. The revision process can properly respond to the public concern, is of great significance.

Criminal procedure law overhaul has attracted widespread media attention, during the period from March 1st to March 11 domestic media up to 1108. The mainstream media reports, the draft amendment to the Criminal Procedural Law summarized the experience of judicial practice, improve the criminal proceedings in the judicial power configuration, and adhere to the punishment of crime and protection of human rights and principles, is expected to become the new development Chinese milepost of criminal procedure law. Some of the media to report on amendment to the Criminal Procedural Law "from the system to prevent the occurrence of torture to extract confessions behavior", shows that the National People's Congress legislation concerns conform to the mainstream public opinion, help contain some places in recent years was torture to extract confessions, reiterated and promote judicial procedural justice.

　Some of the legal profession that, although the revision has not little progress, but part of the terms are still controversial. The amendment to the criminal procedure law article seventy-third the most enthusiastic response, the clause main provisions, for alleged crimes against national security, terrorism crime, crime of particularly great bribery crime suspects, the public security organ may specify home residential surveillance. Suspected of crimes of endangering national security, terrorist crimes, in the "notice may impede the investigation" situation, can not inform the families under residential surveillance. Many online posts that, such a provision that expansion of public security investigation organ of power, is conducive to the fight against crime, guarantee for the rights of the suspects have ignored.

China University of Political Science and Law professor Chen Guangzhong said in an interview with reporters, in the death penalty review interrogation of a defendant, the special circumstances of the case the trial "trial without limit", witnesses to the court approved three major issues, program highlights the public power "storm" momentum, a back draft compared to before the; in addition, insufficient lawyer occupation environment security, disputes involving "lawyer perjury". In the process of criminal procedure, lawyer investigation of evidence and defense, tend to be regarded as the public security, procuratorial organs "confrontation", resulting in the public security and procuratorial organs, the criminal procedure law article thirty-eighth and Article 306 of the criminal law, "occupation of revenge on the criminal defense lawyer". In recent years, emerge in an endless stream of lawyers in perjury case, many lawyers and scholars have called for changes to the terms. Some members of the NPC Standing Committee, for example, Tsinghua University professor Zhou Guangquan puts forward, should be the scope of perjury, the same applies to all the participants in the proceedings, including the public security personnel.

Several cases in recent years, different level reflects a further restriction of public power. The draft amendment of criminal procedural law causes a netizen to concern about the terms of public power into the private right nature of extrusion. Part of the net friend think, amendments to the criminal procedure law should protect not weaken the citizens "freedom from fear".

Although criminal procedure law submitted to the National People's Congress of the draft amendment to as many as 110, but due to the lack of relevant background knowledge, ordinary users can really participate in the discussion of the topic can be counted on one's fingers. Legal experts and some active online "opinion leaders", and even some entrepreneurs and artists who are on the draft, expressed strong concern.

The National People's Congress, such as Xichang College professor Wang Mingwen, deputy director of Chi Susheng, lawyers, Statistics Bureau of Hubei province Ye Qing, also in the personal micro-blog this amendment concerns. Wang Mingwen on behalf of the micro-blog wrote: "strongly recommended the abolition of surveillance on the 'designated residence' living in the provisions of. The reason is because of its no provisions similar to the specification of the reconnaissance activities, to torture to extract confessions may provide places and conditions, very dangerous. May lead the prohibition of torture to extract confessions and illegal evidence exclusion of all efforts come to nothing!"

According to micro-blog survey, 97.2% expressed concern about criminal procedure law overhaul. In a study entitled "investigation of criminal procedure law do you familiar with" the law of criminal procedure, full text totally do not understand and do not know more than 65% of the total, said to see lively, see the votes accounted for about 20%, said "I have studied the law of criminal procedure, this is my old job" accounted for only 9% this shows, elite opinion leader powerful influence public opinion, simply do not understand the criminal procedure law in effect of netizen opinion leaders worry, view of nature by assimilation. Before and after the relevant departments of corrections in the criminal procedure law case review, it is necessary to enhance the legal interpretation and popularization.

　　

The depth of interpretation:Various disputes of criminal procedure law article seventy-third

 
 

Amendment to the Criminal Procedural Law draft and revise five passages seventy-third not in the column

In 2012 03 months 13 days 21:05 Xinhuanet.com

 

Xinhua Beijing, 13 March Xinhua (reporter Huo Xiaoguang, Cui Qingxin, Zhou Yingfeng) the third meeting of the presidium of five session of the eleven National People's Congress 13 days of hearing and deliberating the draft decision of the NPC Law Committee on the revision of the criminal procedure law amendments report.

The chairman of the Law Committee of the NPC Hu Kangsheng reported, the morning of March 11th, the delegation considered the draft decision of the National People's Congress on the revision of the criminal procedure law. Delegates generally agreed that, modify the draft decision to better absorb the comments made by the representative, agreed to bring this meeting to vote through. At the same time some representatives to amend the draft decision proposed some amendments.

Hu Kangsheng said, the Law Committee held a meeting on the morning of March 12th, the revised draft decision were considered, one study of the deliberation opinions of representatives. Legal Committee to think, to modify the draft decision is feasible, and proposed the following amendments:

A draft decision, modify the provisions of article fifth of the criminal suspects and defendants, the right to entrust defenders. Some representatives, criminal suspects, defendants 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 Law Committee of the adoption of this advice, suggestions.

Two, changes to use torture to extract confessions and other illegal methods to collect evidence should be excluded by decision eighteenth draft, also provides the condition to exclude evidence, in violation of the law to collect evidence. Some representatives, of the evidence has been in violation of the provisions of laws, the collection of evidences, also can be corrected or explain. The Law Committee research thinks, this can be limited to collect evidence, documentary evidence, does not meet the statutory procedures. Recommendations will be the relevant provisions is amended as: "the collection of physical evidence, documentary evidence does not meet the statutory procedures, may seriously affect judicial justice, shall be corrected or make reasonable explanations; no correction or to make a reasonable explanation, the evidence should be excluded."

Three, revised draft decision forty-seventh requires the inspection of personal investigation measures. Some suggestions of the representatives of the "fingerprint information, blood urine and other biological samples" to "extract the fingerprint information, collection of blood, urine and other biological samples". The Law Committee of the adoption of this advice, suggestions.

Four, revised draft rules in decision ninety-third: the Supreme People's court review of death penalty cases, may interrogate the defendant. Some suggestions of the representatives of the "can" interrogation of a defendant to "should" interrogating the defendant. The Law Committee of the adoption of this advice, suggestions.

Five, revised draft rules in decision 108th: criminal suspects and defendants, voluntary sincere repentance, obtain the forgiveness of the victims through compensation, apology and so on, the parties may settle. Some representatives proposed, should be clear in the case of public prosecution, the victim voluntarily reconciliation, the parties may settle. The Law Committee of the above provisions, should be amended as: "sincere repentance of criminal suspects, defendants, obtain the forgiveness of the victims through compensation for the losses, such as an apology, victims voluntary conciliation, the parties may settle".

Hu Kangsheng said, according to some representative opinions, also to modify the draft decision made individual text revision. Modify the voting version of the draft recommendations have been determined according to the above opinion modifications.