On the revision of the criminal procedure law, recommend the Southern Metropolis Daily three article

1, Chen Guangzhong: "the privilege against self incrimination" is written into the criminal procedure law, the first in the country to disclose the basic contents of the amendment of the criminal procedure law.Http://t.cn/aEF8iS

2, Fan Chongyi: judicial reform four big thematic results have been included in the draft amendment to the Criminal Procedural Law repair method, core experts detailing practice guidelinesHttp://gcontent.oeeee.com/0/3f/03f5446139179452/Blog/eb7/758b00.html

Chen Ruihua: 3, to prevent the abuse of public power is the primary mission of the criminal law amendment. Suggestions on Amending the law more professional.Http://t.cn/a1nSJT

 

　[first] "the privilege against self incrimination" is written into the law of criminal procedure

The famous jurist Chen Guangzhong looks into the criminal law second overhaul, think that the death penalty review procedure is expected to achieve litigation reform to avoid opaque defects, the special investigative means is expected to apply to the terrorist crime, bribery case

The academic years called "presumption of innocence" into the criminal law basic principle. Chen Guangzhong says this, this principle explicitly written into criminal procedure law is unlikely. China's current criminal procedure law has absorbed the principle of presumption of innocence spirit, rules without the court ruling on any person shall be found guilty; but also stressed that in the process of investigation, trial to seek truth from facts, take facts as the basis, take the law as the criterion. The principle of presumption of innocence and still have a distance, is the consensus of scholars.
"The privilege against self incrimination" is written into criminal procedure law (hereinafter referred to as the "criminal law"), detection stage attorney will be defined as "defenders", the special investigative means for bribery cases will be willing to recognize, the criminal law article thirty-eighth is modified to guarantee the right to a lawyer, the criminal suspect near relatives won the right to refuse to testify, the second instance procedure reform goal will be to "appeal not infliction", the review procedure of death penalty is expected to conduct litigation reform, three special programs may increase......
That the re amendment to the criminal procedure law on the National People's Congress Standing Committee meeting agenda, 82 year old criminal jurists Guangzhong Chen, to the south metropolis newspaper reporter described the re amendment to the criminal procedure law in the hot and difficult, the focus and hotspot.
Chen Guangzhong, professor at China University of Political Science and Law, honorary president of the research of criminal procedure law will China law, procedural law is one of the new China founder, former president of China University of Political Science and Law, Chinese Law Association vice president, and was six term director general research procedure law will China Law (president); in the early 50 century began to engage in criminal procedure law teaching and research, in 1993 to accept the Law Committee of the NPC Standing Committee commissioned, the revised draft of amendment of criminal lawsuits; in addition to participate in important constitution, legislation law. In the re amendment to the criminal procedure law in the process, many experts to participate in the official organizations, Chen Guangzhong.

 

"The principle of presumption of innocence" or difficult to expressly in the law

The academic years called "presumption of innocence" into the criminal law basic principle. Chen Guangzhong says this, this principle explicitly written into criminal procedure law is unlikely.
The principle of presumption of innocence is refers to, any person in unproven and decision before, shall be determined as guilty; specifically include the defendant does not have the innocence of obligations, the defendant to provide beneficial evidence is to exercise the right to counsel, not guilty because the defendant does not or cannot prove that he has no crime.
China's current criminal procedure law has absorbed the principle of presumption of innocence spirit, rules without the court ruling on any person shall be found guilty; but also stressed that in the process of investigation, trial to seek truth from facts, take facts as the basis, take the law as the criterion. The principle of presumption of innocence and still have a distance, is the consensus of scholars.
According to Chen Guangzhong introduction, the legislative department thinks, China's existing laws such as clear the prosecution bears the burden of proof, embody the principle of presumption of innocence, the actual embodiment of the principle of presumption of innocence requirements.

"The privilege against self incrimination" is expected to approach method

"The privilege against self incrimination" is expected to be introduced in criminal procedure law. But did not determine the content is written in part was the investigation of evidence.
The privilege against self incrimination requires suspects, defendants have the right to statement, the investigation organ cannot be questioned.
Chen Guangzhong said, the criminal law article ninety-third "suspects of investigators question, shall be truthfully answer", and "the privilege against self incrimination" positive conflict.
According to Nandu the reporter, the legislature that the articles are "suspect answer truthfully, and not to force the suspect answers"; practitioners tend to retain the clause.
Chen Guangzhong this analysis, criminal procedure law article ninety-third "probably not modified."

 

　　The detection stage attorney will be defined as "defender" status

To amend the criminal procedure law is expected to rule, detection stage attorney will be formally defined as "defender".
Chen Guangzhong said, the detection stage attorney position was not clear, this agreement or to clear the defender: "the world is such, did not say lawyers participate in criminal litigation is not a defender of identity."
Before the 1996 revision of criminal procedure law and criminal procedure law, the lawyer getting involved in criminal suit ahead of time to the investigation stage, is a great progress; but the stipulation in article ninety-sixth, the detection stage attorney is responsible for criminal suspects "to provide legal advice, complaints, charges", and there is no clear legal status of lawyers in the investigation stage.
Therefore, some judicial departments which regarded lawyers "criminal lawsuit participates in a person" in the "other participants in the proceedings", rather than "defender", thus the lawyer rights and restrictions, also influenced the protection of rights of criminal suspects.
In order to guarantee the investigation stage the suspect's legitimate rights and interests, the law and the judicial practice circle tall repeatedly called for, and then modify the criminal procedure law should be legal status clear detection stage attorney defenders, and on the basis of the corresponding rights lawyers.
Chen Guangzhong thinks, defense part of the revised efforts will be relatively large, such as in accordance with the provisions of law, slightly to the reality, increase the content of rights defender, in order to better play the role of defending the people, in order to solve the "meet the difficult, scoring difficult, hard evidence", "three hard" problem.

 

　The anti occupation revenge, criminal procedure law of thirty-eighth is expected to modify

And article 306th of the criminal law, criminal law, thirty-eighth is a criminal defense lawyer as legal pitfalls of judicial occupation revenge, so much criminal defense lawyer criticized. But this time the provisions will be modified, in order to protect the lawyer investigation of evidence.
The criminal procedure law the thirty-eighth regulation, defense lawyer shall help the criminal suspects forge evidence or collusion, threatening, luring witnesses to change their testimony or perjury.
In judicial practice, some investigation, judicial personnel but also for the same crime, but there is no direct law be convicted or limit. Therefore this specific lawyer occupation groups and extremely severe restrictions, in other countries are also extremely rare.
Chen Guangzhong suggested, the amendment should be clear, the subject of the crime of interference of judicial activities is not limited to the defenders, should also include the investigators and prosecutors, the subject of litigation, destroy all forged, hiding evidence and other criminal acts should make no exception to be punished.
"If this clause modified successfully, according to the new method is better than the old method principle, can make the defects of article 306th of the criminal law to effectively compensate, so as to eliminate the legal obstacles to reverse the decline in the defense lawyer rate." Chen Guangzhong said.

 

The suspect was near relatives the right to refuse to testify

Evidence of the biggest thing, or is "the right to refuse to testify".
"Testify" also known as "testimony immunity" refused, social ethics is based on the consideration of witness refusing to testify rights. Many countries in the provisions of civil obligation to testify at the same time, for the protection of the family needs, but the relatives between forced to testify the restrictions.
"Compared with the traditional" loyalty "value has changed." Chen Guangzhong introduced, the amendment of criminal procedure law will be clear, the right to refuse to testify only in general criminal suspects near relatives, and serious harm to national, social cases were not affected by this limit.
According to the witness in Criminal Court low phenomenon, appearing in court as a witness is expected to clear the scope of. Chen Guangzhong pointed out that, once the two sides have differences on the testimony of witnesses, or witness testimony plays an important role in conviction and sentencing, the court will require the witness to testify in court; in this case, in order to ensure the witness to appear in court, may give the court subpoena power directly.
In addition, the evidence is likely to increase the types of evidence, may establish the exclusionary rules of illegal evidence, have the potential to make specific regulations on the "standard of proof is sufficient" evidence, has the potential to introduce "beyond a reasonable doubt".

 

The special investigative means will be used for the cases of bribery

The amendment of criminal procedure law is expected to require a special investigative techniques, the executive body, the special investigative means the scope and implementation procedures.
According to Chen Guangzhong, "the technology of special investigative techniques such as monitoring, mainly by the strategy, the special investigative means by"; the special investigative means is expected to apply to the terrorist crime, serious violence crime, smuggling, bribery and other crimes of corruption cases.
In June last year, "about the death penalty cases reviewed to determine the rules of evidence problems" the twenty-fifth stipulation: "the investigation organ in accordance with the relevant provisions of the special investigative measures collected material evidence, documentary evidence and other evidence, the court verified, can be taken as a basis. The process and method of a court of law to not open the special investigative measures."
The above provisions mean the effects of special investigation evidence obtained recognition by the judicial interpretation, which is regarded as "an important step in the legalization of secret investigation".
The Supreme People's Procuratorate Deputy procurator general Zhu Xiaoqing has pointed out, the burden of bribery crime is very difficult, at present does not give the investigation organ technical means of investigation, including hacking, and include the undercover investigation, investigative entrapment, entrapment, secret investigation power, so he suggested to further improve the relevant content.

 

The reform of trial procedure to avoid the covert aggravating

In order to avoid the "appeal not infliction" principle, judicial practice often appears in the second instance court abuse Remand Authority, leading to covert aggravating appeal the penalty problem. It is reported, the amendment of criminal procedure law will reshape the procedure of second instance, focused on solving the problem.
To amend the criminal procedure law is expected to rule, any facts unclear, insufficient evidence back reiterates, will not increase; unless the discovery of new facts of a crime and to prosecute; will reflect the "case without punishment, the other to prosecute" principle.
"Appeal not infliction" means, in the case of only the defendant, the court of second instance shall not be any reason to increase the criminal punishment on the defendant. This is a special principle in the course of the second instance, designed to protect the defendant's right of appeal. This principle is confirmed by the criminal procedure law of our country included in most countries.
Chen Guangzhong introduced, some judicial organs to another of the appellant, indeed even if the case facts are clear, the evidence fully, will send a trial "unclear facts" in the name, and then through the internal instructions for punishment, in violation of the "appeal not infliction" requirements.
In addition, the case facts are not clear, the court of second instance is expected to follow the "suspected as innocent" rules, direct commuted innocence.
In accordance with the provisions of the criminal law article 189th, the court of second instance can only be amended on the basis of ascertaining the facts. Chen Guangzhong said this, this means that if the facts are not clear, the court of second instance shall have no right to "insufficient evidence" as an excuse to declare the innocence of the defendant, and therefore should be changed.

 

　　The procedure for review of death sentence is expected to achieve Litigation Reform

Chen Guangzhong introduced, then modify the criminal procedure law on the procedure for review of death sentences will be moderate also litigation reform.
Since 2007, the Supreme People's Court on the right, the death penalty review procedure is not open, opaque criticism will appear in newspapers.
In response, Chen Guangzhong said, the death penalty review itself is a procedure, but there are non administrative action of the internal audit program, more performance for the death penalty review judges see file examination case.
Litigation Reform of the death penalty review procedure, will be reflected in at least three levels:
A collegial panel of judges is at least in principle to interrogate the defendant;
Two lawyers have the right to intervene review procedure of death penalty, can be directly asked to see the full court judges statement of defence;
The three principle is the procuratorial organs have the right to intervene review procedure of death penalty, legal supervision; the court should create conditions for the prosecution involved in the death penalty review procedure.

 

May be prescribed psychiatric patients forced medical procedures

According to Chen Guangzhong introduction, the minor crime case trial procedure, the parties reconciliation procedure and psychiatric patients forced medical procedures, is expected as a special program written in the law of criminal procedure.
Juvenile trial procedure is clear, the minor crime the trial of the case, except for the non prosecution of additional conditions, will also establish the legal status of elimination system: namely, to five years in prison the following sentence sentenced to juvenile delinquency, will not be recorded in the file, in order to facilitate the growth of juveniles.
The parties reconciliation procedures, will be limited to be sentenced to three years in prison for the crime suspect general criminal cases, there may be negligent crime and was sentenced to seven years in prison for the crime suspect. Chen Guangzhong said, the revised criminal procedure law is expected to apply this procedure to the above two kinds of circumstances, as long as the parties reconciliation, the court be lenient sentence the defendant.
The mental patient forced medical procedures would be expected after a court ruling, the parties that the behavior that is harmful to the society, the parties that are mental patients, and will be forced to place specific units, medical.
 
Nandu reporter Chen Baocheng from Beijing

 

[Second] the judicial reform four big thematic results have been included in the draft amendment to the Criminal Procedural Law
Participate in the criminal procedure law and the two amendment of well-known scholar Professor Fan Chongyi Nandu to accept the interview, said the law aims to consolidate the achievements of the judicial reform in recent years, the law authority and the public that the lack of communication led to some misunderstanding
　　
Criminal law amendment draft to solicit public comments for 3 days, only more than 3 pieces of advice received at the National People's Congress website; at the same time, the social public opinion, the general public and the different interest groups criticized the draft provisions of sound, this criticism shows the social public to the public power expansion, private rights of poor security concerns, but the lack of the revised criminal law purpose, objectives, the pursuit of the goal of the basic questions of understanding and questioning, thus causing a participation in the legislative attention.
How to treat the amendment of the criminal procedure law? Southern Metropolis Daily reporter yesterday with the revised criminal procedure law enacted in 1979 and 1996 and the criminal procedural law scholars, Research Institute of China University of Political Science and Law professor Fan Chongyi, honorary president of procedural law.
Legal relationship of criminal law involves complicated, such as the advanced experience of foreign countries in China is OK or not? Through the test and empirical study. A number of projects, reform of sentencing procedure reform, the reform of the criminal reconciliation recording, evidence system reform will need some time to test and empirical study, so I dragged. There was also that during this period, that judicial authorities and scholars had sharp contradiction, the authorities fight for power and money lead to revision of the criminal procedure law and even died of dystocia. This is most probably it did not actually happen personal opinion, is not understanding the re amendment to the criminal procedure law process.

 

　The amendment of the criminal procedure law both crimes and protecting human rights

Nandu: look at how the public opinion, the general public and the different interest groups on the draft of the criminal procedure law of criticism?
Fan Chongyi: the current discussion, is not for the amendment of the criminal procedure law background, in the discussion of specific issues; and involvement to discuss specific issues, he said all the words. This criticism of at least two questions:
One is between the law and public authority of law guiding ideology of the lack of communication, lead the public to practice guidelines recognize unknown. The two is that some people don't follow the thinking method of value balance, often one-sided understanding of a law, but not fully understand, resulting in "only and one point less than the rest", from one extreme to the other extreme.
The two is to use the thinking method of value balance. Consider the light right to defense, does not take into account the social stability and the fight against crime, OK? Consider the light crime, social progress? Here is the value choice and balance problems. For example, forced the witnesses to appear in court, but the suspect, the defendant is not forced to close relatives.
This is a one-sided understanding, some people say the law privileges, subversion of the "loyalty". This view is one-sided: witness is the obligation of every citizen, exemption from criminal suspects near relatives compulsory, but this is not a complete exemption certificate authority.
Nandu: how to treat this revision of the criminal procedure law background?
Fan Chongyi: we are developing countries, is still at the primary stage of socialism, in the transition period. To highlight the contradictions among the people during this period, the social pattern of distribution of interests, the gap between rich and poor is increasing, the contradiction between cadres and the masses, labor conflicts in the constantly emerging, crime rising, people on the right requirements more stringent, the emergence of the network technology, the political and legal work faces new challenges, even a small case may cause social unrest. It requires us to modify the criminal procedure law should be targeted, to take into account the balance striking crimes and guaranteeing human rights.

 

　Criminal procedure law targeted key changes rather than "overhaul"

Nandu: can you explain the guiding ideology of the law?
Fan Chongyi: the revised criminal procedure law, is the key to modify, rather than a comprehensive revision. Some media said "overhaul", but the general part is not modified. The key of this modification, is to solve new problems for China's social and economic development of the judicial work needed. This is the guiding ideology of legislation to change the range. Several times I attend the meeting, the central have repeatedly emphasized.
The revised criminal procedure law, aimed at consolidating the judicial reform achievement, the 2008 Central Committee on judicial reform introduced 19 document four topics, sixty projects related to the achievements of the reform of criminal procedure law to criminal law of absorption.
In addition, modification of criminal procedure law in our country, not only to promote democracy and the rule of law progress, but also from the China reality, solving practical problems and issues, and cannot remain stagnant. Some people say that the law content ahead, in fact, democracy and the rule of law progress related to China's international status, some problems of legislation is to advance, but the lead should be based on the actual Chinese, to consider the social carrying capacity.
Nandu: why as a guiding ideology?
Fan Chongyi: in 2007 October, the political and legal work development report five word: more emphasis on democracy, more emphasis on how to realize the fairness and justice in the whole society, more emphasis on the rule of law, more emphasis on respecting and safeguarding human rights, more emphasis on the supervision and restriction of power. These five words summed up the development trend of the criminal procedure law. On this basis, the central put forward four topics, sixty specific projects in judicial reform task to the political and legal work.
Nandu: could you summarize the main content of the judicial reform over the past few years?
Fan Chongyi: these four topics are: first, including the right of investigation, prosecution, trial power and executive power, judicial power allocation function optimization; second, summarizes 30 years hard lessons, how to implement the criminal policy of combining punishment with leniency; third, improve administrative law enforcement team of quality; fourth, political funding.
The four topics that include 60 judicial reform project. From the beginning of 2008 to the first quarter of this year, has completed nearly 50 projects; the judicial interpretation issued more than 30 pieces. The key of this amendment of criminal procedure law, is to reform the four project 60 project results to absorb the amendment. For example, the sentencing procedure, exclusion of the illegal evidence, criminal reconciliation, audio and video. The public understanding of these, will understand: the amendment of the criminal procedure law related content is not accidental, but there are certain reform foundation.

 

The outside of the criminal law amendment delay misunderstanding

Nandu: we also note that, the criminal procedure law amended second times lasted long, legislative plan which has been on the National People's Congress, but fruitless. Could you introduce it in the criminal law amendment process, what obstacles?
Fan Chongyi: the legal relationship of criminal law involves complicated, such as the advanced experience of foreign countries in China is OK or not? Through the test and empirical study. A number of projects, reform of sentencing procedure reform, the reform of the criminal reconciliation recording, evidence system reform will need some time to test and empirical study, so I dragged.
There was also that during this period, that judicial authorities and scholars had sharp contradiction, the authorities fight for power and money lead to revision of the criminal procedure law and even died of dystocia. This is most probably it did not actually happen personal opinion, is not understanding the re amendment to the criminal procedure law process.

Nandu: according to your understanding in legislation, to understand the problem, in relation to the global level, what are the key problems which need attention?
Fan Chongyi: one is the contradiction and the conflict between the realization of judicial modernization and Chinese characteristics. The realization of judicial modernization is the Chinese nation not to move or retreat position; in criminal litigation, is to go the road of due process of law, to emphasize the value of procedure: justice is demonstrated by the program, so stick to the modern judicial standards.

 

Considering the actual China not clearly defined the right of silence

Nandu: in the criminal procedural law, which embodies the modern standard of justice?
Fan Chongyi: such as the presumption of innocence, absorb the spirit of the first amendment of criminal procedure law, the privilege against self incrimination is absorbed, justice, public trial, speedy trial are reflected in the criminal procedure code.
Nandu: the draft stipulates the privilege against self incrimination, but there is no clear right to silence, why?
Fan Chongyi: each specific absorption standard modern judicial procedure, must adhere to accord with the actual Chinese. Our pace is to much? The privilege against self incrimination written into the draft criminal procedure law, but does not provide the right of silence. Someone says, this is to have the right to silence, because "the privilege against self incrimination including don't talk, this is the right of silence". But the reality is, after all, criminal procedural law does not expressly, the privilege against self incrimination is implied by the right to silence? This is a problem worthy of study. So not only adhere to the modern judicial standards, but also consider the actual Chinese.

 

　Procuratorial organs supervision into specific supervision Abstract

Nandu: what are the implications for the modification of criminal procedure law?
Fan Chongyi: for example, the formulation of the program to meet the qualitative and positioning, the current criminal do an antidote against the disease, hit a few, unite the majority, should fully embody the criminal policy of combining punishment with leniency, therefore it is necessary to expand the summary procedure, the criminal reconciliation program; program design should be treated differently, for example the draft criminal procedure law on compulsory measures adjustment, trial procedure, reflected.
Nandu: crime is to protect human rights. How to evaluate the criminal procedural law of the relationship between the two?
Fan Chongyi: criminal procedural law is implemented to crack down on crime in order to cope with the rising of the crime situation, and carry out the scientific hit, hit lawfully and respect and protection of human rights spirit, embodies the people-oriented, humanistic.
Nandu: power is a double-edged sword, how to ensure the public power in the criminal procedure does not hurt innocent people?
Fan Chongyi: This is called for the strengthening of the power of investigation, procuratorial and judicial authority restriction, restriction and supervision of state power. In the criminal procedural law, such as the prosecution of the criminal litigation supervision, supervision of the abstract past into specific supervision in the draft.

 

China should catch up with the trend of the modern judicial post

Nandu: the world of human rights from the perspective of development trend, the amendment of the criminal procedure law should also take into account what problem?
Fan Chongyi: according to the world human rights development trend, I think but also take into account the contradictions and conflicts between the judicial modernization and post modernization. Now the criminal trend in the world, is to expand the summary procedure, the two sides of the transaction, improve the trial efficiency, increase the conciliation proceedings, the defendant pleaded guilty to program and conditional non prosecution procedure.
Our pace to stride much? I think should catch up with this trend, the increase of non custody measures, such as community correction. These are the measures of criminal litigation of post-modernism, we should also mention schedule.

Nandu reporter Chen Baocheng from Beijing

 

[Third]To prevent the abuse of public power is the primary mission of the criminal law amendment
In an interview with the professor, Peking University law school subjects of criminal procedural law of Chen Ruihua

"In order to avoid the citizens are in arbitrary arrest, ensure the security of secret investigation of cases, balance the effectiveness and the rights of citizens, I suggest that the draft amendment to the Criminal Procedural Law cancel the crime of endangering national security, terrorist crimes, the criminal suspect to take compulsory measures not know the family practice. If not removed, can also draw back asks next, later to inform the family."
September 6, 2011, held a seminar on specialized in handling criminal cases of Beijing city is the right law firm, invite domestic scholars and practical circles, identify the draft amendment to the law on v.. The criminal procedure law, Peking University law school professor Chen Ruihua to the meeting, and express their views on related issues. The meeting space, a social concern Chen Ruihua condemned v. draft amendment to the law in question, accepted an exclusive interview with Southern Metropolis Daily reporter.

 

　Detained without notifying the families and other special provisions need to prove the rationality of legitimacy
Nandu: your amendment to the Criminal Procedural Law draft for soliciting public opinion how to evaluate?
Chen Ruihua: this amendment to the Criminal Procedural Law draft for the whole society to seek the views of the legislative history, is China's criminal procedure law for the first time, of great significance. The legislative branch set a month's time, time is precious, rare opportunity. The legislative procedure democracy worthy.
Nandu: in the process of soliciting opinions, the public generally feel, the draft amendment to the Criminal Procedural Law repeatedly referred to provisions of suspected of crimes of endangering national security, terrorism crime cases and major bribery crime, triggering concerns. What do you think about it?
Chen Ruihua: according to the provisions of the draft, this three kinds of crime, the investigation stage meeting with a lawyer suspects, permission to the investigation organ; in detention, arrest procedures, suspected of crimes of endangering national security, terrorist crimes and other serious crimes, can not notify the family; in residential surveillance procedures, suspected of crimes of endangering national security, terrorist crime major, bribery crime, the approval of the superior procuratorial organ or a public security organ, can be performed in the designated residence; crimes of endangering national security, terrorist crimes, major crimes of embezzlement and bribery, can take technical means of investigation.
I think, for the crime of endangering national security, terrorism, major bribery cases, the lawyers shall be subject to the investigation organ licensing procedures, arrest, detention is not notify the family and take technical investigation means, to prove the rationality and legitimacy.
Nandu what do you suggest?
Chen Ruihua: the ideal solution is to make three procedures, special provisions mentioned above all to cancel.
The investigation stage meeting with a lawyer of the three suspects, not necessary after the approval of the investigation organ. Because if the legislative provisions to go through the approval of the investigation organ, so, the investigation organ may have the discretion not constrained, any decision not to approve of the meeting decided to, this is equivalent to depriving the lawyer's right. This point, has been proved in the 1996 amendment of the criminal procedure law in the judicial practice of the 15 years.
The three category of cases, the criminal suspect in custody after arrest, if the criminal procedure law allows the investigation organ does not inform the family, it is not a secret arrest? Now, legal consciousness, the social public rights consciousness are improved, the problem is very clear.

 

"Terrorism crime" in the judicial practice, easy to be expanded to explain

Nandu: if not cancelled, for the legislators, whether there is a better choice?
Chen Ruihua: that it is necessary to strengthen the strict restriction on the public power.
For example, if the detection stage attorney met with these types of criminal suspects to after investigation authority, the criminal procedure law should strictly define the three types of crime, otherwise it is difficult to guarantee in the judicial practice of unlimited expansion tendency.
Such as "terrorism", searched the criminal law nor the charges. In the real life murder, mayhem, knife, explosion, arson, can be interpreted as "terrorist crimes".
So I think, the connotation and extension of the draft amendment to the Criminal Procedural Law mentioned "terrorism crime" concept is not clear, easy to be expanded interpretation in the judicial practice, and even lead to violent crime, all can be referred to as the crime of terrorist activities.
If you can not cancel the special regulations of the above three types of crime, the legislature should be in the legislation of its technical explanation.

Detention notice "families would hinder the investigation" is not based on

Nandu: the types of crime suspects enforcement measures, the draft amendment to the Criminal Procedural Law made reservation rules on notification of family. This is easy to let the public worry, he Is it right? Will one day "is missing".
Chen Ruihua: one view, notify the family will influence the investigation carried out smoothly, which are not based on. His family has been residential surveillance, detention, arrest, the case handling organ will control the location and tells his family, this is It's only human, meet the most basic human requirements.
Moreover, the family learned of location. And the subject matter of the case, also can timely entrust lawyers engaged in defense activities, the investigation organ in accordance with the law is a kind of restriction. If the "told the family" as hinder the investigation of words, then, gives the suspect the right of defense, allowing the lawyer participating in litigation activities, it will be an "investigation"? This is clearly unsound conclusion.
I think, for some cases of draft lists, the investigation organ can not notify the family, but can be delayed for a few days' notice. For example, the general case to ensure that within 24 hours of notification of family, so for these three kinds of cases of criminal suspects to take compulsory measures, can the provisions in the legislation of 5 days or 7 days to notify the family? But not long time not to notice, the family of his whereabouts in a few months or even a year or more time do not know. Only in this way, the investigation of the case of secret, effectiveness and the protection of the rights of citizens to balance.
Especially important, sensitive cases, in judicial practice, to take coercive measures to the criminal suspect does not notify the family, caused extremely negative influence and even international will influence China, national image.
So I think, take compulsory measures against the suspects, but did not inform his family, such provisions should be removed, or to make reasonable adjustments.

 

To avoid the three recommendations of secret investigation power abuse

 

Nandu: Amendment to the Criminal Procedural Law draft of this specific types of crime also provides technical investigation, secret investigation procedure. The public concern, the technical investigation, secret investigation power abuse, which violated the privacy of citizens.
Chen Ruihua: technical investigation, secret investigation worrying. To reassure the public concern, I have three suggestions:
First, the performer and the decision of separation. The public security organs of the crimes of endangering national security, terrorism, organized crimes of the underworld, serious drug crime or other serious harm to society of criminal cases, take the secret investigation, technical investigation measures, to be ratified by the procuratorial organs; major crime of corruption bribery cases and the use of serious violations of civil power of body the rights of the procuratorial organs, take the secret investigation, technical investigation, the court approval. This separation of powers can avoid the public security organs, procuratorial organs investigation convenient and unlimited to expand technical investigation, secret investigation.
Second, the technical investigation, secret investigation of the time, frequency, timeliness made strictly limited. Amendment to the Criminal Procedural Law draft regulations, approved a technical investigation period of validity is three months, for approval, and every time is three months. This is to allow monitoring of decades or lifetime of a citizen.
The validity of our proposition approved a technical investigation, secret investigation, up to one month; once again approved conditions should be more strict, re approval should be limited in number.
Third, to establish the right to relief mechanism. Once the public security, procuratorial organs Authority technical investigation, secret investigation power abuse, will introduce the exclusionary rules of illegal evidence, clear regulations of the public security, procuratorial organs investigation, secret investigation power abuse of technology obtained evidence may not be used as the basis of the conviction and sentencing.

 

　　In favor of the defendant evidence shall be transferred to the court

Nandu: in order to resolve the difficulty of lawyers, amendment to the Criminal Procedural Law draft regulation, defense lawyers from people
Procuratorate to examine a case for prosecution date, consult, extract, copying of the case material of the facts of the crime. What do you think about it?
Chen Ruihua: clear the prosecution lawyer can marking the date, is a major progress. But the draft will range of lawyers is limited to "the facts of the crime accused materials", this is a problem.
In judicial practice, the investigation organ, the prosecution can use state power of investigation and evidence collection, their ability to obtain evidence is far higher than the defense lawyer.
As far as I know, almost all criminal cases, most of the evidence was collected by the investigation organ. Even those favorable evidence of criminal suspects, often by the investigation organ master.
If the investigation organ shall be the defendant to prove innocence or light offence evidence, not in the case record, if the prosecution in the prosecution to the evidence in court, then, the lawyer can not access to the evidence, the lawyer's effective defense is very disadvantageous.
Nandu: in the judicial practice, the criminal suspect, defendant evidence collected by the investigation organ to go, and the lawyer investigation office, the investigation organ does not give the situation is not uncommon. This time how to do?
Chen Ruihua: I advocate the criminal procedure law should be clear, all the evidence, both as according to the accused crime evidence, or evidence in favor of the defendant, should be transferred to the court.
If the prosecution is not transferred to the suspect, the defendant favorable evidence, the lawyer should apply for court according to law. If still be not, according to the (current) criminal law the 191st regulation, that this behavior is a serious deprivation of the right of the defendant's behavior, the court may rescind the original judgment, the remand.

 

"The file transfer of doctrine" restore very dangerous

Nandu: Amendment to the Criminal Procedural Law draft provisions of article 171st, procuratorate to the court proceedings, to "bring the case file and evidence, to the people's court"; the draft stipulates that the 180th cases of public prosecution, the court review, the indictment is explicitly accused of criminal facts and with the "evidence", it shall decide the trial. This compared with last modification of criminal procedure law seems to be back, what do you think about it?
Chen Ruihua: if the rule was passed, it would be very dangerous. This means that the amendment to the Criminal Procedural Law directly back to the 1979 rules, the criminal procedure law amendment was completely abandoned in 1996. Can say, this is "to restore the files transfer".
Provisions 1996 criminal law, procuratorate prosecution to the court, only to the "list of evidence, the witness list and the main evidence or copies of photos", this is after years of reform testing, academic research and legislative game to achieve, is regarded as the premise and basis of adversary system litigation mode.
The design of this system is to keep the court look ahead roll, prevent the generation of prejudgment even set after the first trial. Of course, because of the reform was not complete, prohibit the judges law in full access to files at the same time, it does not solve the problem of lawyers, the lawyers "marking difficult" problems in judicial practice.
The criminal procedural law stipulation procuratorate put all the materials submitted to the court, benefit is to protect the lawyers, but the consequences are so that judges can before the court case marking. This will not cause the judge First impressions are strongest produce prejudge even set after the first trial? No draft judgment to organize the hearing problem in judicial practice? Is very common in judicial practice that before 1996.
We really don't want this set after the first trial, the court form again the problem appears generally. Because this situation once again, the judge will take prejudgment, prejudice to trial, the defense opinion and evidence will be more difficult to listen to, the future lawyers will find, court opponent except prosecutors sat the table, and the formation of prejudgment prejudice and judge. In this case, counsel to persuade the judge to accept our defense point of view, will become more difficult.
I think, guarantee the lawyer doesn't have to mean that the procuratorial organ the case file materials can not be. This is not the only way. The criminal law provisions of the draft of a pretrial preparatory procedure, judges to solve avoidance, exclusion of illegal evidence, witness list procedures in the presence of the two parties. This is a progress. In the process, the prosecution in all the files for lawyers under the auspices of the judge and the judge will, I need not say. In this way, not only solves the problem of lawyers, but also avoids the judge first marking, so as to cause First impressions are strongest. This is not a system designed to satisfy both sides?

 

　The sentencing activities must not be arbitrary simplified procedures

Nandu: Amendment to the Criminal Procedural Law draft and a major change, the summary procedure is adjusted, the summary procedure applies to the defendant confession cases. This adjustment will bring what kind of consequences?
Chen Ruihua: Amendment to the Criminal Procedural Law draft made significant extensions to the summary procedure, the law may be sentenced to three years in prison and in accordance with the summary procedure may be sentenced to three years in prison with the ordinary procedure. Summary procedure applies to such, judges, prosecutors are, because the defendant pleads guilty, so there is no innocent defense; judicial practice in the trial of the case, the summary procedure applies to almost no verdict of "not guilty", "summary" is equal to the defendant guilty.
In judicial practice, the summary procedure applies to many grass-roots court near the 2/3 case. However, if the defendant is a voluntary confession? There is no force, be tempted, be cheated? If this cannot be guaranteed, the simple procedure will be not a guarantee of procedure justice. Given the large proportion of its range, the high, broad, from all walks of life should be paid attention to.
I think, summary procedure applies to the trial of cases, the defendant lawyer, we must ensure that the rights of lawyers participating in the hearing; the defendant did not hire a lawyer, or the granting of legal aid, the legal professionals to provide legal advice to the defendant, the legal consequences for easy program to inform, to ask the defendant apply summary procedure if forced, luring, coercion, intimidation, to protect his summary procedure applies to voluntary, authenticity.
If there is no legal professional help, to the summary procedure to choose the defendant will be very difficult to guarantee the voluntary and wisdom. Theoretically speaking, the defendant has no lawyer help, in the lawsuit activity will be a person without capacity.
According to my observation, in judicial practice, no lawyer trial is a mere formality of the trial, the defendant pleaded no contest ability, hearing completely backward procuratorial organs.
Nandu: apply summary procedure, whether to mean in the conviction and sentencing of two links are to simplify the program?
Chen Ruihua: trying a case in which summary procedure is simplified, the only conviction and sentencing procedures, activities must not be arbitrary simplified procedures. In some cases even though the defendant pleaded guilty, but the problem still controversial.
The amendment to the Criminal Procedural Law draft for the defendant confession cases no conviction and sentencing procedure differently, in the simplified criminal procedures at the same time, the lack of relatively independent sentencing procedure establishment, which makes suggestions of sentencing in judicial practice, create views on sentencing, sentencing reasoning of sentencing verdict, the achievement of the reform, cannot be the absorption into the draft legislation.
You know, whether it is the Supreme Court, Supreme Procuratorate, or the highest judicial authority ", to establish a relatively independent sentencing procedure", "will be included in the court sentencing hearing" a consensus has been reached. All levels of court, the procuratorate has years of exploration on the reform of sentencing procedure.
Therefore, I suggest that the legislature should treat the sentencing procedure seriously, only the establishment of relatively independent sentencing procedures, can effectively regulate the discretion of judges, to ensure the openness, transparency, effectively guarantee the right of sentencing defense lawyer.
 
Execution of sentence outside prison, the medical parole not self and self execution

 

Nandu: in recent years, in the period of execution of punishment, probation, the abuse of medical parole phenomena occur. Amendment to the Criminal Procedural Law draft clear, executed, the temporary execution outside prison written opinions put forward by prison or jail, approved by the provincial prison administration or the public security organs; medical treatment hospital diagnosis and certified documents to be designated by the provincial government. Such provisions can solve the problem?
Chen Ruihua: execution outside prison, released on medical parole, due to the highly centralized authority in the hands of the prison authorities, and examination and approval procedures do not have the openness, transparency is poor, so prone to abuse and corruption problems in power.
The draft stipulates the execution outside prison, for medical treatment, is by the prison prison management departments to submit the application, examination and approval authority for approval, is the essence of self, self executing. This internal closed operation, I am afraid it is difficult to effectively solve the problems in practice.
I think, the only way is to the right of approval over to the court, the court hearing by way of ruling. Since the court can make execution outside prison, released on medical parole decision, in the trial process, are still in the process of implementation by the court to exercise this power will have what problem?
You know, on the court verdicts of executive power is the executive power, and the right to change the penalty (such as commutation, parole) and the right to change the execution of punishment (such as probation), belong to the jurisdiction scope. Punishment execution mode change, must be handed over to the judicial power.
So I suggest, the competent departments shall apply to prison, the court held the approval process for execution outside prison, released on medical parole to open hearings mode. In this procedure, the court shall invite the expert neutral, detached to determine criminal condition, compliance with medical parole conditions.

 

　　The mental patient forced medical procedures still need to be perfect

 

Nandu: at the end of the draft amendment to the Criminal Procedural Law, provides four special procedures. In which case, illegal income confiscated and the violence of mental patients died of criminal suspects, defendants absconded, forced medical procedures, raises questions many public.
Chen Ruihua: you said the suspect, the defendant, escaping death cases of illegal income confiscated program. This is the property rights of citizens depriving procedure. People die, escape, no court convict him, how to confiscate his "proceeds of crime"? This is an illegal complex problem.
In accordance with the provisions of the draft, the prosecutor's confiscation of illegal income of application, the intermediate court formed a collegiate bench trial, six months after the announcement, if the parties have no objection, the court will not hearing.
There are at least three system failed to establish. First, not all the hearing the case? In judicial practice, apply this procedure cases, confiscation of criminal suspects and defendants, the amount of property, often so millions, billions of. To seize such a huge amount of property, I argue that all cases are to be tried, but not in the legislation for the court to set preconditions.
Second, whether to have special property valuation procedures? For example, the confiscation of property valuation, how much? Would you like a public auction procedures? Would you like to stakeholders and the common people living in the property, the legal income and illegal income divided clearly?
Third, going to parties and the stakeholders of the right of appeal?
Besides the violence behavior of mental patients forced medical procedures. "Mental illness" normal people do a relief way normal?
Even if the establishment of compulsory medical procedures, should also ensure a fair trial. During the trial, the prosecution may hire a psychiatrist, to prove that the defendant has a mental illness, but this is absolutely not only identification, otherwise, the court took the expert conclusion, that will be all the defendants sentenced to mental patients.
Due to the complexity and sensitivity of this one problem, can consider building identification procedure an adversarial, is also allows identification of forensic psychiatry one defendant, defenders, commissioned by the party, to provide a second opinion identification, appraisal conclusion and the prosecution of a program on the confrontation.
This can make the contact to different or even opposite expert opinion, at the same time to the next, to avoid unfair decision.
Another is to give those judged "mental patient" defendants appeal opportunity, for further judicial relief. This seems to be a how to deal with the mental patients, but in fact relates to civil liberties deprivation, is a constitutional question.
If we allow for a citizen by random, rough program judged as "mental patient", and carries on the compulsory medical treatment, the deprivation of liberty under the situation then, each of US citizens freedom of the person will not get legal protection.
 
Nandu reporter Chen Baocheng from Beijing