On the new evidence in criminal procedure of second instance

Guo ZhipingZhang Fanrong

[Abstract] in the judicial practice, application of "new evidence" in the criminal procedure of second instance in the case is not rare, but China's "criminal law" to the "new evidence" is not clearly stipulated, theorists of "new evidence" to explore the most limited in the field of civil litigation, it also makes the practice in the definition of "use not unified new evidence", affecting achieve the goal of justice and efficiency. According to the criminal procedure of second instance in the "new evidence" defined standards and review methods are studied, and the "new evidence" concrete application of consequences of the comb.

[keyword] procedure of second instance new types of evidence review substantive examination

LeadWords

In the criminal procedure, procedure of second instance and appellate procedure, is the people's Court of second instance according to the appellant appeals or the people's Procuratorate protest, the people's Court of first instance has not yet been a legally effective judgment or ruling methods, steps and methods to be followed by the facts and the applicable law for the trial.[1]The people's Court of second instance by the people's Court of First Instance judgement or order of facts, evidence, law and procedure to conduct a comprehensive examination and hearing, the court of first instance to maintain correct judgment or correcting wrong judgements of the court of first instance, to achieve not only accurately punish criminals, to protect the legal rights of the victims, but also can make innocent people from prosecution by objective.

In the procedure of second instance in criminal litigation, the parties put forward new evidence which led to the case is remanded or revision of the situation is not uncommon, although the trial result is fairer, but increased the burden of parties, and affects the judicial efficiency. Litigation justice and efficiency is the value target of criminal litigation, how to regulate the new evidence presented in the second instance, justice and efficiency to achieve the balance, this is the problem that we must ponder over. As discussed in theory about the "new evidence" mainly concentrated in the field of civil litigation, the field of criminal procedure of second instance "new evidence" is less, therefore, this paper mainly in the criminal procedure, using the second review, how to define the "new evidence" are discussed.

Scarce, current legislation on the provisions of the "new evidence"

China's criminal procedure law and relevant judicial interpretations of the procedure of second instance in the "new evidence" requirement is very little. China's "Criminal Procedure Law" provisions, only 204th related to the "new evidence", but the provision to reverse the original judgment, ruling the "evidence" is one of the legal reasons to start the trial supervision procedures, and in the relevant legal provisions of the second instance procedure, and does not appear in the "new evidence the word".

Interpretation of the Supreme People's court "about some problems in the implementation of the criminal procedure law of the people's Republic of China (hereinafter referred to as the" "explain") the provisions of article 251st, for a case of appeal or protest, shall review the appeal or protest, if new facts and evidence. "The people's Procuratorate criminal rules" (hereinafter referred to as the "rules") the provisions of article 397th, for indeed, sufficient evidence to prove that the original judgment is erroneous cases, the people's Procuratorate shall lodge a protest. "Lawyers Law" provisions of article 130th, the cases of second instance without trial, lawyers shall submit a written defense opinions to the court, may present new evidence. Thus, although our criminal procedure law does not expressly provided in procedure of second instance may present new evidence, but in judicial practice there is new evidence of the case, therefore, the Supreme People's Court promulgated the "explanation" and other judicial interpretations made provisions for new evidence in the procedure of second instance in practice. But, in addition to the provisions of the above principle, the relevant law or judicial interpretation did not make a clear definition of what is "new evidence". Because the legal provisions relating to the procedure of second instance "new evidence" is too small, the "new evidence" in judicial practice and review by the lack of legal basis.

Due to China's criminal procedure has been pursuing the proof standard of objective truth, correspondingly, the evidence system also implements the evidence at any time. Based on this, the criminal procedure law of our country does not specify the second instance may not present new evidence, theory nor the classification of the old, new evidence. Although the country in 2001 promulgated the "some provisions of the Supreme People's Court on evidence in civil proceedings" (hereinafter referred to as the "rules of evidence"), which provided the system for adducing evidence in limited time, to have long pursued in civil litigation evidence at any time limit, and the "new evidence" of a specific limit. But, after all, different criminal litigation and civil litigation, we can not completely copy the provisions of the "new evidence" in the civil procedure law, criminal proceedings in the admissibility of evidence should be more cautious than other department law, because it may be deprived of his life and freedom. Therefore, the criminal procedure of second instance in the "new evidence" connotation need more laws are defined, in this way we not only because the broad understanding of the "new evidence" and lead to the waste of resources, reduce the trial judgment efficiency, not because of the "new evidence" is too narrow and lack of procedural justice.

The relevant judicial interpretations in China although the provisions of the parties may present new evidence in the trial procedure, but the criminal procedure law and related judicial interpretation of the connotation of "new evidence" is not clearly defined. Judicial review of "new evidence" in practice, there is no uniform standard to follow, it is easy to cause the administration of justice are not unified, add party ruling on the sense of injustice, caused more unnecessary action, increased the burden of the parties, but also a waste of resources in our law.

Two, the definition of "new evidence"

 The evidence is in legal form. To be able to prove to the facts of the case has all the facts. In criminal litigation, the facts in the case process in essence is the collection, examination, judgment and evidence of process. Because our legal system is not perfect, the legal consciousness of the public is not strong enough, the parties litigation ability is not high, in the face of the state organs, many suspects because of the lack of professional knowledge of law, unable to provide accurate powerful for self evidence. At the same time, China's current criminal procedure specified in the lawyer case Co., and only at the trial stage, because the evidence consciousness not strong, as a professional non legal, some evidence of the importance of understanding is not enough, causing the evidence properly, so as to bear the adverse consequences of litigation. Even in the designated agent case, the defense lawyers in the trial stage to intervene in the proceedings, and the real time to collect evidence is in investigation, prosecution and trial before the examination, so hard to avoid some important evidence can not be collected.

Therefore, in our present judicial situation, the "new evidence" defined standards strictly will deviate from the criminal procedure system of entity justice, so enjoy the legitimate rights and interests of the parties are not the justice due protection.[II]

The provisions of the civil procedure rules of evidence ":" in the second new evidence including: new findings concluded in the first instance trial evidence; the parties may apply to the people's court investigation evidence collection unauthorised proof before the expiration of the term in the first instance, the court of second instance shall be permitted to apply for the examination that is collected by the evidence. The author thinks, can learn from the civil litigation theories of criminal procedure of second instance of the "new evidence" is defined as: the trial court had no evidence, but except the parties deliberately do not provide evidence.

First of all, the criminal suspect, the defendant's not legal professionals, evidence consciousness is not strong, in the face of the investigating authorities and the public prosecutor's investigation and prosecution, criminal suspects, defendants violated the act on their own. Although can understand, but they can make what evidence to be against the state organs prosecution is not very clear, this also makes some important evidence was ignored by them, it is difficult to collect. Right to defense is suspect, the defendant has the most basic rights, has become an important symbol of the rule of law civilization of the world, the constitution, the criminal procedure law of our country although the suspect, defendant the right to defense provisions were made, but the legal provisions and judicial practice and the protection of criminal suspects, defendants rights there is much difference, really can not suspect, defendant legal professionals help defense. At the same time, lawyer intervene in the proceedings from the procuratorial organs prosecution stage began, in spite of detection stage attorney can provide legal aid to criminal suspects, but only to provide legal advice, complaints, charges for access, but not the right of investigation and evidence collection, identity is not the defender. At best, the need to collect evidence within the time limit, the lawyers' rights, and the ability to collect the evidence of criminal suspects, defendants are not strong. Therefore, in the second stage, should allow criminal suspects and defendants, putting forward the new evidence, this is one way to maintain the legitimate rights and interests of the criminal suspect, the defendant.

Secondly, the purpose of criminal proceedings is the punishment of crime and protection of human rights, on one hand, countries through the criminal lawsuit activity, in the foundation of accurate, timely find out the facts of the case to the act constitutes a crime of the correct application of criminal law, punishing crimes, so as to realize the right of punishment of the country; on the other hand, the state in the criminal procedure activities, to protect the criminal lawsuit participates in a person's legitimate rights and interests are not violated, especially to guarantee and the outcome of the case is of direct interest to the criminal suspect, the defendant and the victim's rights to exercise. Taking into account the criminal suspects and defendants, the lack of professional knowledge of law, allowing it to put forward the new evidence in the trial procedure. But because of some uncontrollable objective reasons, such as material witnesses to go abroad, the investigation organ in the investigation stage may also be unable to collect some evidence, and even to the prosecution trial stage it is unable to get the evidence, these evidence until a trial ended after the trial was collected, in order to prove the criminal suspect, the defendant crime fact, protect the interests of victims, let the suspect actually pay for their crime, public prosecution to the new evidence in the collection, in the second instance is also proposed, only in this way, can we better against crime, maintaining social order.

Finally, China's criminal procedure which follows the proof standard of objective truth, to seek truth from facts, Mistakes must be corrected whenever discovered policy, when new evidence to prove that a judgment, ruling mistake, the court of second instance shall correct. However, if no restrictions to allow new evidence of the second instance, or whether the parties did not submit the evidence in a trial and allow the trial procedure for any reason, it will undoubtedly increase the burden on both sides, wasted resources, affect the efficiency of the litigation. Therefore, for non parties proposed in the second instance trial in a trial evidence, the court can not be adopted without restriction, and must be on these new evidence review definition, see whether it belongs to the second instance of the "new evidence", make corresponding processing according to the results of the review and.

Three, the "new evidence" review and Application

The relevant judicial interpretations of the criminal procedure law of our country establishes the second program may present new evidence, but no provisions for the "new evidence" standard of review and program of the evidence presented. The author believes that, in defining the "new evidence" meaning, only with the "new evidence" of the review process, in order to make the procedure of second instance trial more targeted, improve the efficiency of trial.

Due to limit or influence of criminal procedure will eventually to the criminal suspect, the defendant's life and freedom, so in the setting of the second instance "new evidence" standard of review should be more cautious, pay attention to fully highlight the provision with entity justice value target balance. Review standards are too broad, so that is not allowed to put forward new evidence in the procedure of second instance, waste judicial resources, affect the judicial efficiency; review criteria are too strict, so this should belong to the new evidence is not included in the second instance trial procedure, is a departure from the criminal substantive justice, the lawsuit participates in a person's legitimate rights and interests without proper protection.

(a) the form of review

The form of review from the form of the prosecution and the defense evidence whether the "new evidence" for review, review of the evidence and not on whether a judgment, ruling result influence. Specifically, can from the following several aspects: first, the evidence must be "new faces", namely the first instance procedure does not appear in the evidence, to prevent the parties due to the referee dissatisfaction repeat present evidence, lawsuit efficiency; secondly, the parties must submit a "new" evidence obtained time, place the first instance court, not the burden of reason, the obstacles of proof material;[3]A preliminary examination of the parties did not submit evidence of these reasons in the first instance court of first instance trial, full consideration of factors to submit these evidence of disorder, including the party's subjective attitude, economic capacity, cultural degree and some other non parties can control factors etc.. If the parties themselves deliberately not in the first instance trial when submitting the evidence, then should not adopt the evidence. Finally, the parties must submit the "new evidence within a reasonable period of time". If the trial to trial, the latest in the second instance trial should be submitted before the end of the second instance; if only to make a written examination, be submitted within a reasonable period of time specified by the court trial, ensure smooth.

(two) the substantive examination

Substantive examination of whether the evidence is evidence and proof of the force is enough to change the trial judges are reviewed. Confirm the evidence ability is one of the substantive examination, if the evidence submitted to the illegal evidence, does not have the ability to prove, then also not included in the second "new evidence" of the range. Probative evidence submitted to review the second instance is another aspect of examination as to substance, which focus on the review of the evidence and the facts of the case are relevance, is sufficient to affect the adjudication of first instance that the facts of the case and the applicable law. The judicial personnel to conduct an overall review submission of evidence, evidence or proof should be carried out according to the specific circumstances of the review of the evidence, the two review of the order for the sake of efficiency can be exchanged, at the same time, the judicial personnel shall explain the reasons to the double side action for the above two aspects of the review, so as to enhance the credibility of the court.

(three) the "new evidence" the consequences

According to China's "Criminal Procedure Law" provisions of article 187th, the people's Procuratorate cases and cases on appeal, the court of second instance shall open the court session, but for part of the appeal case crime fact clearly can not hearing. Thus, in the course of the second instance trial mode is divided into trial and no trial (written trial) two. In addition, according to the "Criminal Procedure Law" provisions of article 189th, the second trial results are divided into three kinds: the original referee facts and the applicable law is correct, appropriate sentencing, it shall dismiss the appeal or protest, upheld the original judgment; no error in the determination of facts, but the application of law is wrong, or inappropriate, it shall to the original judgment; the facts are unclear or the evidence is insufficient, can be changed after ascertaining the facts, or it may rescind the original judgment, the remand.

The parties submitted in the second trial evidence, judicial officers through the form of review and substantive review after the second instance, the "new evidence" standard, then the judge in the trial procedure must take the trial way, but not without the trial of the case, this is consistent with the procedures involved in the principles of requirements, also in line with the principles of public program requirements, to a certain extent, can also increase the both parties and the public on the judgment result fairness acceptance.

In determining the submission of both parties in the course of the second instance evidence belongs to the "new evidence" and decided to take a trial mode, trial after the trial, the handling of the case has three kinds of situations: if you consider the evidence will influence the cognizance of the fact of adjudication of first instance, the court of second instance shall transfer the case remanded, so as to fully guarantee the right to protest the appeal rights and procuratorial organs of the defendant, which is also in line with our country implements two instance system principle to the case. If the evidence only has an effect on the applicable law or adjudication of first instance, is affecting only the sentencing of the defendant, then the court of second instance can be integrated in this case all the evidence (including new evidence for a trial of original evidence and second) to commute, this will also ensure that the judicial efficiency, not a waste of judicial resources. If the evidence is "new evidence", but did not affect the determination of the first instance judgment of facts and the applicable law and the defendant sentencing, so should the court upheld the verdict.

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From an objective point of view, the evidence is with the passage of time and continue to be discovered, blindly for parties in the prosecution or during a trial court to submit the evidence all is not realistic. The parties to the litigation was found at the end of the trial after the trial evidence or is in the trial period could not collect evidence, the parties to the program settings necessary relief should also, after all the criminal consequence is related to the defendant's life or freedom, and this is also conducive to the realization of balanced value of procedure justice and substantive justice.