On the criminal law amendment draft amendments

 

        Author Zhang Ziyang

 

      The Standing Committee of the NPC in August 30, 2011 published the "Criminal Procedure Law" amendment draft, seek an opinion publicly to whole society. According to the published draft, that the draft although great progress on the whole, but there are some terms decline phenomenon. In order to make the criminal litigation system to better fight against crime, the protection of human rights, the author thinks, the original draft to continue to perfect the outside in terms of individual, need to clear the "party in criminal litigation legal equality principle" and reflect the specific rules in each trial procedure is suitable. Specific modifications are as follows:

 

Revision a: 

One, delete the fourteenth section second, a new fourteenth section second:"The equal legal status in criminal proceedings"

 

   The revision reasons: both are criminal suspects, defendants, or the victim, before not legally guilty, the legal personality is complete, the legal status is equal. The legal status of the parties emphasized equality, help litigant rights to security including the defendant, the victim. It should be a basic principle of "party in criminal litigation legal equality principle" increased to criminal proceedings.

 

Amendment two,:

Ten, The thirty-eighth changed to forty-second, the first paragraph is revised as follows: "the public prosecutor, defender or agent ad litem, shall help the criminal suspects, defendants, victims to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses give false testimony or conduct other acts of interference proceedings of the judicial organs."

 

   The revision reasons: according to the parties in the litigation in the legal status of the principle of equality, as the public prosecutor, the victim and his agent ad litem should and as defense the defendant and his counsel are equal before the law. The public prosecutor, the victim in the criminal procedure law agent may also impede testifying behavior. It should be the main prosecution, litigation agent explicitly for obstruction of testifying behavior. In addition, "lure" one word is too broad, is not conducive to the exercise of the right of defense counsel fully, should take the "carrot" to replace the word "lure" properly.

 

Amendment three:

Eleven, One article is added as Article forty-sixth: ", and information about the client lawyer known in practice, have the right to keep confidential. However, lawyers in the practice activities, aware of the client or other people, or are being implemented to endanger national security, public safety and serious endanger the personal safety of the crime, shall promptly report to the national security, public security organs."

 

   The revision reasons: in the original draft of the "judicial authority" is too general, and does not meet the statutory duties, the crime information, should be clear to the national security, public security organs.

 

Amendment four:

Fifteen, The forty-fifth changed to fifty-first, one paragraph is added as the second paragraph: "material evidence, documentary evidence, material administrative organs collected in the process of administrative law enforcement, after the court testimony, investigation and verification, certification, can be used as evidence."

 

   The revision reasons: in the original draft of the "judicial authority" is too general, does not conform to the principle of equality of the parties legal status. It should be amended to "the court investigation and verification".

 

Amendment five:

Seventy, The 160th changed to 192nd, is amended as: "with the permission of the presiding judge, the public prosecutor, the parties and the defenders and agents ad litem, can comment on the evidence, the case and conviction, sentencing and may debate with each other. The judge declared after the end of the debate, the defendant shall have the right to present a final statement."

        Add a new paragraph as the second paragraph: " parties may become reconciled. The parties to the settlement, the people's court shall hear the parties and other relevant staff views, to review the settlement agreement is voluntary, legitimacy."

        Add a new paragraph as the third paragraph: " for the parties reached a settlement agreement in the case, the public security organ may make suggestions to the people's Procuratorate leniency. The people's Procuratorate may recommend lenient penalties to the people's court, the people's court according to law, for the defendant leniency. But the law should not be wide treatment except."

   The revision reasons: in the process of prosecution of criminal reconciliation can clear the special handling procedures, and help to promote social harmony, save judicial resources.

 

Amendment six:

Eighty, The 178th changed to 213rd, is amended as: "the summary procedure applies to the trial of the case, the people's court shall accept the case within twenty days after; for may be sentenced to three years in prison, can be extended to a month."

        The 180th changed to 215th, is amended as: "the parties or their legal representatives, or a local people's Court of first instance judgment, ruling, have the right to appeal in writing or orally to the people's court at a higher level. The defense of the accused person and close relatives, with the consent of the defendant, can appeal.

　　   " the party in an incidental civil action or their legal representatives, the local people's courts at all levels a judgment of first instance, ruling in the part of incidental civil lawsuit, filed an appeal.

        " to the parties or their legal representatives shall not be deprived of the right of appeal, with any excuses."

        The 181st changed to 216th, is amended as: "where a local people's Procuratorate considers that the people's Court of the first instance judgment, ruling the time wrong, should appeal to a higher people's court."

        The 182nd changed to 217th, is amended as: "the victim and his legal representatives judgment of first instance of a local people's court, within five days since receiving the written judgment, have the right to request the people's Procuratorate appeal. Within five days after receipt of the victim and the people's Procuratorate legal agent request, shall make a decision whether to appeal the decision and give him a reply."

        The 183rd changed to 218th, is amended as: "appeal against a decision for a period of ten days, appeal against decisions for a period of five days, from receiving the written judgment, ruling second date."

　　   The 184th changed to 219th, is amended as: "the parties, the plaintiff and defendants in incidental civil actions filed an appeal through the people's court, the people's court shall within three days will appeal together with the case file, the evidence to the people's Court level, at the same time, a copy of the appeal petition to the people's Procuratorate at the same level and the other party.

        "The parties, the plaintiff and defendants in incidental civil actions files an appeal directly to the people's Court of second instance, the people's Court of second instance shall within three days of the petition of appeal to the people's court to the people's Procuratorate at the same level and to the other party."

　　  The 185th changed to 220th, is amended as: "where a local people's Procuratorate of the people's courts at the same level the first trial, an appeal, shall put forward an appeal through the people's court, the people's Procuratorate and a copy of the written appeal. The people's court shall appeal together with the case file, the evidence to the people's Court level, and will appeal to the parties a copy.

       "A superior people's Procuratorate if that appeal is undeserved, may apply to a people's court at the same level of withdrawal of appeal, and notify the lower level people's procuratorate."

   The 186th changed to 221st, is amended as: "the people's Court of second instance shall conduct a comprehensive review on the first trial of facts and the application of the law, not subject to appeal range limits.

       "The joint crime is only part of the defendants appeal, shall examine the case, together. " 

 

   The revision reasons: according to the party's legal status in the criminal proceeding the principle of equality, to be given to the victim and his legal representatives, the right to appeal to the above terms. In addition, the prosecution against the original judgment, ruling, should the above identity appeal at the court of second instance procedure, should not in the legal supervisor identity mentions counterappeal.

 

Amendment seven:

Eighty-one, The 187th changed to 222nd, the first paragraph is revised as follows: "the people's Court of second instance to the following cases, shall form a collegial panel, trial:

   "(a) the facts, evidence of the parties and their legal representatives to the first instance verdict, the objection, the people's Court of second instance that may affect the appeal the conviction and sentencing;

   "(two) cases of appeal against the defendant was sentenced to life imprisonment, the death penalty;

   "(three) the people's Procuratorate appeal;

   "(four) the people's Court of second instance shall hold a hearing that other cases.

   "The people's Court of second instance decided not to hold a hearing, it shall interrogate the defendant, to listen to the other parties, the defenders and agents ad litem, opinions."

 

      The revision reasons: the accused person was sentenced to life imprisonment in the case open a court session, helps to protect the human rights; at the same time, according to the party's legal status in the criminal proceeding the principle of equality, the victim should also enjoy the right of appeal. It will also be the (a) people, the defendant in the private prosecutor for the replacement of "the parties" as appropriate; will also be relevant provisions of the "protest" to "appeal" is appropriate.

 

Amendment eight:

Eighty-two, The 188th changed to 223rd, is amended as: "the people's Procuratorate prosecution cases of appeal or the people's Court of second instance trial, the people's Procuratorate at the same level shall send personnel to the court. The people's Court of second instance shall consult the files in the decision after hearing the timely notify the people's procuratorate. The people's Procuratorate shall check it up in twenty days. The people's Procuratorate to examine the case of time not included in the trial period."

   The revision reasons: according to the party's legal status in the criminal proceeding the principle of equality, the people's Procuratorate refuses to accept the decision should also appeal. So it should be the procedure of second instance in the "protest" is changed to "appeal".

 

Amendment nine:

Eighty-three, The 189th changed to 224th, is amended as: "the people's Court of second instance case on appeal the judgment of the first instance, after hearing, shall handle it according to the following circumstances:

(a) the original judgment facts and the applicable law is correct, appropriate sentencing, it shall dismiss the appeal, upheld the;

(two) the original judgment no error in the determination of facts, but the applicable law is wrong, or inappropriate, and shall be amended;

   (three) the original judgment facts are not clear or the evidence is insufficient, can be changed after ascertaining the facts; or it may rescind the original judgment, remanded by the people's court re trial."

    One paragraph is added as the second paragraph: ", the people's court ruling in accordance with the provisions of the third items of the case remanded, defendants appeal or the people's Procuratorate filed an appeal, the people's Court of second instance after the trial, still believe that the facts are not clear and the evidence is insufficient, it shall make a judgment."

    The 190th changed to 225th, is amended as: "the people's Court of second instance trial the defendant or his legal representative, counsel, close relatives of the appeal case, shall not increase the criminal punishment on the defendant.

    " people's Procuratorate appeal or the victim, private prosecutor or his legal representative of appeal, not subject to the provisions of the preceding paragraph."

    The 191st changed to 226th, 192nd to 227th, 193rd to 228Th, 195th to 230th, and the several of the "protest" to "appeal" or delete.

 

   The revision reasons: according to the party's legal status in the criminal proceeding the principle of equality, the provisions of the "protest" is changed to "appeal"; "provisions increase the victim or his legal representative appeal".

 

Amendment ten:

Eighty-four, The 196th changed to 231st, is amended as: "the people's Court of second instance appellate cases, shall be concluded within one month, not later than one and a half months; the people's Court of second instance court of appeals, no later than two months. The act of 155th under one of the circumstances stipulated by the provincial, autonomous region, or municipality directly under the central government, the higher people's court approval or decision, and may be extended for two months, but the appeals to the Supreme People's court, decided by the Supreme People's court. Because of the special circumstances of the case also need to extend the trial period, the approval or decision by the Supreme People's court."

 

   The revision reasons: according to the principle of equality of legal status of the parties, the public prosecutor in procedure of second instance against the original should be unified use "appeal" in the title, not to use the "protest".

 

Amendment eleven:

Eighty-six, One article is added as article 239th,: "the Supreme People's court review of death penalty cases, it shall interrogate the defendant, to listen to the victim, private prosecutor, the prosecutor and the opinions of the defender.

   "In the process of death penalty cases, the Supreme People's procuratorate can give advice to the Supreme People's court."

 

     The 204th changed to 241st, changed to "the party or his legal representative, close relatives of the complaint meets one of the following cases, the people's court shall accept and retrial:

   (a) there is new evidence to prove that the original decision, ruled that the fact that is wrong;

   (two) between the main evidence according to conviction and sentencing evidence does not do, or not fully prove the facts of a case of contradiction;

   (three) the original judgment, ruling the main evidence for ascertaining the facts is false;

   (four) the original judgment, ruling the main evidence for ascertaining the facts without quality certificates;

   (five) the evidence necessary for the trial of the case, the parties because of objective reasons can not be collected, the people's court for a written investigation and collection, the people's court has not collected;

   (six) the original judgment, that there is some error in the application of the law;

   (seven) in violation of the provisions of laws, jurisdiction in error;

   (eight) the judicial officers. Judicial organization of illegal or should be avoided in accordance with the law without avoidance;

   (nine) without the capacity for action without statutory agent or litigation shall be parties, because you cannot blame themselves or their agents ad litem reasons, did not participate in the proceedings;

   (ten) in violation of the provisions of laws, depriving party debate right;

   (eleven) has not been served with a summons, judgment by default;

   (twelve) the original decision, ruled that the omission or beyond the litigation request;

   (thirteen) according to legal instruments to make the original decision, ruled that the revocation or modification.

   (fourteen) the judges in the trial of the case, take bribes, play favouritism and commit irregularities, perverted the law behavior.

 

    The revision reasons: review of death penalty cases not only relates to the protection of human rights, but also relates to the victim, private prosecutor and the public human rights protection. It should also listen to the victim, private prosecutor, the prosecutor and the defender's opinion; criminal retrial case specific acceptance criteria, can help guide the parties the right of appeal, the retrial efficiency improvement.

 

Amendment twelve:

Ninety-six, Cancel fifth parts with second chapters: the second chapter of "mediation in cases of public prosecution procedure"

   

    The revision reasons: the parties reconciliation is only can be lenient Sentencing Factors in the public prosecution cases, can be solved in the process of prosecution, need no single set "mediation in cases of public prosecution procedure".

 

Amendment thirteen

Ninety-eight, Add a chapter, as the fifth parts with fourth chapters:
    "The fourth chapter the mental patient to violence forced medical procedures
    "281st if a mental patient violence endangers public security or cause death, serious injury, upon verification and confirmation through legal procedure, do not bear criminal responsibility according to law, continue to harm society possible, the people's court may decide to compulsory medical.
    "Article 282nd for violent behavior of mandatory medical treatment, by the people's Procuratorate applying to the people's court. The people's court shall form a collegial panel to conduct the trial for the respondent, comply with the compulsory medical conditions, can make the compulsory medical decisions. The people's court in the case was found during the defendant comply with the compulsory medical conditions, can be directly to make mandatory medical decision.
    "The people's court compulsory medical case, it shall notify the applicant or the legal representative of the defendant at.
    "In the decision of a people's court compulsory medical treatment, can be the applicant or the defendant to take protective measures to restrain.
    "Article 283rd compulsory medical institution shall regularly to be compulsory medical person for diagnostic assessment. To have nothing to do with the personal danger, no need to compulsory medical treatment, shall timely termination of opinion, reportedly decided to the approval of the people's court for compulsory treatment. Be forced to medical men and their near relatives shall have the right to apply for cancellation of the compulsory medical.
    "Article 284th the people's Procuratorate on execution of compulsory medical institutions are legitimate implementation supervision."

 

On the draft amendments:

Ninety-six, cancel fifth series "chapter fourth mental patients to violence forced medical procedures"

 

    The revision reasons:The compulsory health behavior, mental patients do not belong to the criminal responsibility of crime domain, also do not belong to the criminal compulsory measures, included in the special criminal procedure and the law conflict; secondly, according to the article eighteenth of the criminal law "The mental patient harm consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family or guardian shall be ordered to put in the custody and care; when necessary, the government mandated health ", the government mandatory health when the administrative compulsory measures for spirit the patient, by the" Administrative Coercion Law "and the forthcoming" mental health law "regulation, and can be relieved by the administrative litigation, criminal litigation does not comply with the provisions of the criminal law into.

 

    

    The amendments to the "legal status of the parties in the criminal proceedings in the principle of equality", contribute to the implementation of the basic principles of "the presumption of innocence" criminal procedure, accurate and effective fight against crime, the guarantee of basic human rights, including the right of appeal, the defendant, to promote social progress.