□ reporter Ye Doudou Wang Heyan correspondent Chen Baocheng | paper

 

When the progress of Nie Shubin case error correction is not life and death, Xia Junfeng, Wu Ying is still uncertain, many people with high hopes of "Criminal Procedure Law" amendment, has been close to the finish line. Not surprisingly, "Criminal Procedure Law" (hereinafter referred to as the criminal law amendment draft) on the last day, this year the NPC in March 14th, the five meeting of the eleven session of the National People's Congress vote through.

This is the current criminal procedure law 17 years one of the biggest revision. In recent years, the miscarriages of justice, Yang Jinde Zhao Zuohai type of torture to extract confessions, Li Zhuang's lawyer perjury, continue to stimulate people's nerves. For "human rights charter" criminal procedure law called the attention, has already exceeded the legal circle corner. According to the instructions of the Standing Committee of the NPC legislation, only during the eleven session of the National People's Congress, composed of 2485 people and a delegation made on the amendment of criminal procedural law of motion, namely 81.

The law disputes through the draft aspects (see this print 2011 the thirty-fourth period of game "Criminal Procedure Law"), lawyers, law circles and even ordinary citizens hope that through practice opportunities, more to limit the public authority, better protection of the private rights. Today the three review, "the protection of human rights," added a lot of, expansion of public powers contents increased a lot "-- a netizen sum up, reflecting the general feeling.

Over the eight year China University of Political Science and Law lifetime professor Chen Guangzhong, which received the industry calls in the "NPC and CPPCC" Eve, want him to criminal law scholar statue, pay attention to several setbacks in the draft. Civil and industry in the appeal, the public power in the low-key, legislative procedure in the compact "storm". Before the final vote, the game continues.

Human rights in the law have much beautiful?

Criminal procedure law bearing the fight against crime and the protection of human rights two functions, while in the game between public power and private rights. For a long time, Chinese practice is, heavy fighting crime than the protection of human rights.

Modify the first review in 2011 August criminal law, Chen Guangzhong told reporters on the new financial, human rights must be written to in general. NPC Chi Susheng, Zhang Liansheng had led the 2004 constitutional amendment increased the appeal, "the state respects and safeguards human rights", the spirit of the constitution should reflect the purpose of legislation in criminal procedure law.

First, the NPC Standing Committee announced the draft criminal procedure law to solicit public opinion, from the reaction of warm beyond imagination. Almost every article concerning the public power expansion terms, are highly controversial, so that the second review in December, compared to a lot of low-key.

Because of the basic law substantially modified, amendment to the Criminal Procedural Law should be submitted to the NPC for deliberation by.

In March 4th this year, the eleven session of National People's Congress five session of Congress spokesman Li Zhaoxing said at a news conference, "the state respects and safeguards human rights" will be written into the criminal procedure law. Li Zhaoxing revealed early on Amending the law of "good news", which can be seen on the folk concern before the positive response.

A declarative clauses can be beauty? People more care about is the practiceCanNot abide by this principle. In this year's "NPC and CPPCC" Eve, legal scholar He Weifang, Tong Zhiwei once again urged the deputies to the NPC, CPPCC members on the Nie Shubin case. In March 7th, senior Dean Gao Yong court of Hebei province to attend the National People's Congress in accepting the "Beijing News" interview, because the case is too long, some exclusive evidence investigation difficult, at present public security checking, still can not draw the conclusion is wrong.

On this response, professor he was in his micro-blog said, "endless procrastination, Nie parents cannot afford to wait!" It represents the social disappointment, but how many have draft the specific content of human rights value terms, more critical.

Emergency worries

In March 8th, after the NPC Standing Committee after the two consideration of draft public appearance at the meeting. The participants also is in before long, only to see the panorama of the new draft. For the vast majority of legal NPC deputies and CPPCC members not very professional, rush difficult to research the ocean hundreds of the draft law.

On the afternoon of the same day of the CPPCC science constituency group discussions, a member of the CPPCC National Committee, former vice president Chen Zhilun Sichuan court has been critical, "the Chinese people's Political Consultative Conference without legislation, suggestions can be? Such an important law, many members do not know the draft, some responsible members had to have written comments submitted to the National People's congress."

A member of the CPPCC National Committee, Nankai University law school vice president Hou Xinyi also pointed out that, after the second trial draft no published, many members before or in accordance with a draft for discussion, "our school teacher at noon have to call me, let me express their opinions at the meeting. I am not in the law of criminal procedure, but does not speak it is unreasonable." Hou Xin said.

The vote on the draft at the low profile, compact, legislation, raising concerns. In March 7th, 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, there are backward compared to before the draft.

For example, a draft regulations, "the Supreme People's court review of death penalty cases, it shall interrogate the defendant", two referees and three reviewers will "should" to "can". This means that whether the discretion to interrogate the defendant belongs to the death penalty review. Chen Guangzhong said, if the clause was eventually passed, judge whether the interrogation or not, would be legal -- even if the facts of the case need investigation, evidence, the defendant need to face the question and the defense and urged the judge interrogating the defendant and the rule of law, this pursuit indeed qualitative effect is inconsistent.

On the criminal trial of the trial, this amendment increased provisions on special time: because of the special circumstances of the case also need to extend, be approved by the Supreme People's court. Chen Guangzhong says, if this clause finally passed, would mean the criminal case of first instance may not have a clear time limit, which is contrary to the spirit of due process and the rule of law, human rights safeguard clause also violate the amendments added, "this issue should be put out, let the National People's Congress on".

The same dispute still witness problem. Two draft amended a draft statement, will be "the court held that the witness should testify in court", or some conditions by one, is necessary, which means that, only by court, the witness to testify in court, "it is easy to lead to some local judicial authorities on a number of grounds, for its selective call or not to subpoena witnesses endorsement." Chen Guangzhong said.

RealInternationalOn a few problems, this early in the second instance, draft is determined. But the law deliberately low-key, resulting in the industry, the media have failed to make sufficient concern. According to informed sources, is to understand the situation of the legal profession, specially to call Chen Guangzhong, want to draw attention to. And finally to the vote the draft can vary, it is difficult to expect.

"Without notice" change

The revision process the most controversial issue in the criminal procedure law, is forced to take measures, under what circumstances can not notify the family. After the first draft for review, misgivings about constantly, these Provisions are even lawyers and legal scholars known as the "evil law". This time the eve of three, informed sources told reporters, these Provisions are likely to change.

The content involves three kinds of compulsory measures, respectively is the designated home residential surveillance, detention and arrest. The current criminal procedure law on the provisions of the detention and arrest: in addition to impede the investigation or not notice, should put the reasons for detention and arrest, the premises, within 24 hours of detention, arrest to inform his family or unit.

The law does not "would hinder the investigation" and "no notice" is defined, in judicial practice, not notice the situation is often abused.

The first draft of the law, "added provisions specified home residential surveillance" content: for the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the primary procuratorate or a public security organ for approval, can be specified in the residence of execution.

For the detention and arrest, stipulates: in addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, shall notify the.

After the draft of soliciting public, arouse widely questioned, people are worried about "not" notification "would hinder the investigation" is still not clearly defined, the two is that the three kinds of crime "and", easy to become in practice pocket is enlarging applicable.

The second version with some modifications. At the designated place increased residential surveillance and detention, would hinder the investigation situation: after the disappearance, should be informed immediately to residential surveillance (detainee) family. In the measure of arrest, delete "would hinder the investigation", only "unable to inform the" exception.

The third consideration of the draft text further, the designated home residential surveillance, also cancelled "exceptions would hinder the investigation", only "unable to inform the" conditions. In detention, "would hinder the investigation" situation is limited to suspected of crimes of endangering national security, terrorism, delete the word "etc.".

Such changes, it is still not enough. A member of the CPPCC National Committee, SichuanDingliShi Jie lawyer pointed out that, in the modern information society, not notice almost No. He suggested that, should notice to expand the scope of relatives and friends, relatives and friends to start promptly notify lawyer program, no notice is actually violated the citizen's right to defense. Lawyer Chen Youxi criticized, special provisions of the several can not notify the family, is obviously from the national security, the anti-corruption departments handling needs, is motivated by the idea of legislation department.

Ignore, for the general public but more crucial question relates to the designated place "residential surveillance". Many scholars and lawyers worry, this measure is likely to become "detain", even the past many illegal practices "legalization". China University of Political Science and Law professor Bian Jianlin think, detention, arrest after the first time to escort the detention center, is to eliminate the case in the outside, to prevent torture to extract confessions. The specified home residential surveillance, the control is lost.

And the point of view, this provision is likely to practice has been controversial "double" "double refers to" the measures (usually the discipline inspection and supervision organs, sometimes combined with the procuratorial organs are also used to provide legal basis ")".

The public power

The modification process of the criminal procedure law, the public power to strengthen, the most obvious is the public security organ of power expansion. For example, the long time summons, subpoena, prolonged from 12 hours to 24 hours.

In addition, the crimes of endangering national security, terrorism, organized crimes of the underworld, serious drug crime or other serious harm to society of criminal cases, the major crime of corruption, bribery and major serious violations of civil rights power utilization, the investigation organ approval can take technical investigation methods.

However, weight at the same time, the technical means of investigation on the applicable objects, procedures for examination and approval, licensing, evidence, judicial relief and legal supervision, did not make specific strict rules.

A member of the CPPCC National Committee, China University of Political Science and Law professor Cao Yisun said, the morning of March 8th to draft, some ministerial leaders said, there were provisions of Party cadres, not special tools, no special means of contradictions among the people. Now the technology is highly developed, the technical means of investigation if the lack of strict restrictions, once the abuse, too terrible.

Some academics have suggested, and approval authority of the technical methods of investigation, should be increased to above the provincial procuratorate.

In the private rights, an important aspect relates to the occupation rights lawyer safeguard. In 2007 the "Lawyers Law" amendment, lawyer s right of meeting, marking the right, the guarantee of right of defense has made great progress, but the lag of the criminal procedure law and practical obstacles, making such progress almost completely in vain.

The amendment to the Criminal Procedural Law provisions of the draft, the lawyers in the investigation organ for the first time interrogation or coercive measures taken to date, they can defend the identity of the person in the case. Defense lawyers requested a meeting with the criminal suspect, the defendant in custody, detention house shall promptly arrange meetings, no later than 48 hours.

At the same time, lawyers in the meeting with the criminal suspect, the defendant is not to be monitored. However, crimes against national security, terrorism crime, crime of particularly great bribery case, during the investigation of the lawyers met with the criminal suspect in custody, it shall obtain the permission of the investigation organ.

The "Lawyers Law" does not provide for these exceptions, many lawyers appealed, the criminal procedure law should be with "lawyer law" seamless docking.

Provisions controversy also relates to the so-called "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, the lawyer occupation environment continues to deteriorate, Li Zhuang case and the Beihai four lawyers perjury case is typical.

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.

Two reviewing the draft Criminal Procedure Law added a provision: the defense of people suspected of a crime, the case shall be undertaken by outside counsel for the investigating authority. This means that, for the "lawyer perjury" increased provisions to avoid co investigation organs, to avoid the same case investigation organ at the defender investigation and enforcement measures.

This progress, from lawyers and scholars is still relatively far cry. A member of the CPPCC National Committee, the National Lawyers Association former president Yu Ning proposal, according to the procedure of excluding illegal evidence, the defense lawyer's perjury and other issues, by the public security organs or the prosecution organ for hearing the case the court to start the procedure of excluding illegal evidence. As the court's investigation, found the evidence of perjury or obtained by other illegal ways, should be excluded in accordance with the law; if the lawyer alleged acts of crime should be on file for investigation and prosecution, the court may order the cancellation of the lawyers in the case of counsel qualification, and outside cases undertaken by the defenders of the investigating organ handle.

While Zhou Guangquan proposed, for a lawyer's duty, should undertake the case after the closing, "if the law be held accountable, and the host of the case shows, do perjury did not play what role, the lawyers said unfair."

 

This print journalist letter contributed to this report

 

To Liu Guiming teacher blog:Http://blog.sina.com.cn/s/blog_4a47cd200102dx21.html

Modify the Criminal Procedure Law: progress or regress?

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