Zhang Kai: before and after the amendment through participation in the discussion 15 lawyers, six meetings, finalized. Although immature, but the draft condensed lawyers participating in the effort, we hope to help the construction of rule of law.
     

On the "PRC Criminal Law Amendment (Draft)" amendments

Friday September 30, 2011

 

Description: the amendment of the criminal procedure act is Chinese law and national welfare, is the great country, it is the law of the event, as a lawyer, can not help. We believe that the amendment of this law, has been or will be reflected as follows: the spirit of investigation and custody separation; the judge decided to arrest and search; the presumption of innocence; much less detained suspect bail; right to silence; justice, independent counsel, police, prosecutors, non political; three instance; plea bargaining, civil jury trial;...... If the fruits of human civilization, the history of the suitable for China's national conditions, and can be used for the China, national fortune is; this opinion is more than lawyers have participated in the discussions of forming opinions, their names attached. Because of the time, capacity, error should not the less, in order to facilitate the reading, the original we issued, for legislative and legal reference

The eleven session of the twenty-second session of the NPC standing first considered the "PRC Criminal Law Amendment(The draft)". The "PRC Criminal Law Amendment(The draft)"And the draft statement published in the Chinese net, open to the community to solicit opinions. The community send their written opinions of the NPC Legislative Affairs Commission(Xicheng District Qianmen West Street Beijing City1Number, zip code:100805, please indicate the amendment to the criminal procedure law on the envelope(The draft)Solicit opinions)Also, you can log in directly Chinese net(www.npc.gov.cn)To put forward opinions. The deadline for submitting opinions:2011Years9Month30Day.

                                      

        

 

 Opinion, law amendments amended Criminal Procedure Law (on)

The people's Republic of China Criminal Law Amendment(The draft)

One, delete the fourteenth section second.

Two, Twentieth shall be amended as:"The intermediate people's courts shall have jurisdiction over the following criminal cases of first instance:

("A)Cases endangering State security;

("Two)Ordinary criminal cases punishable by life imprisonment, the death penalty;

("Three)Criminal cases involving crimes committed by foreigners[1] ylmf ."

Review: considering the foreign criminal involved in inter state relations, this does not move can also.

 

Three, thirty-third shall be amended as:"The criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, has the right to entrust defenders. In the period of investigation, can only be entrusted lawyer. The investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, shall inform the criminal suspect has the right to entrust defenders. The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders.

"The accused has the right to entrust defenders at any time[2] ylmf . The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

Comment on:1."In the period of investigation, can only be entrusted lawyer" should be removed, because the accused person simply can not afford a lawyer.2.The accused has the right to entrust defenders at any time"Are advised to organizations or individuals to the defendant and any attention to the rights of defendants have the right to entrust one or more lawyers, to participate in the trial lawyers are not more than two".

 

"The defenders by criminal suspect, defendant entrusted, shall timelyInform[3] ylmf The case handled by the judicial organs."

Comment on:(1) defender when notify the entrusted the case handling organ, defended by their discretionary, the public security organs Administrative sequence, should not belong to the judicial organ.

Recommended: "The defenders by criminal suspect, defendant after commissioning, should inform the authorities handling the case at the right time, in the information about the case handling organ has not received a defender, the defendants in the case handling organ does not enjoy the right to counsel."

 

 

 

Four, thirty-fourth shall be amended as:"The suspect, the defendant due to economic difficulties counsel did not entrust, himself and his near relatives may apply to legal aid institutions. To meet the conditions of legal aid, legal aid agencies shall appoint lawyers to defend the.

Review: the legal aid institutions can be assigned to the lawyer, has no right to assign the non agency lawyer. (the other terms of the legal aid institutions shall assign lawyers words, modified with this article)

Recommended:"The suspect, the defendant due to economic difficulties counsel did not entrust, himself and his near relatives may apply to legal aid institutions. To meet the conditions of legal aid, legal aid agencies shall appoint the lawyer or lawyer to defend its.

 

"The suspect, the defendant is blind, deaf, dumb and not entrust a defender, the people's court, the people's procuratorates and the public security organs shall inform the legal aid institutions appoint lawyers to defend the.

 

"The suspect, the defendant may be sentenced to life imprisonment, death has not entrusted a defender, the people's court, the people's procuratorates and the public security organs shall inform the legal aid institutionsAssign[4] ylmf The lawyer to defend its."

Five, thirty-fifth shall be amended as:"CounselIs the responsibility of the[5] ylmf According to theFact[6] ylmf And the proposed law, materials and opinions of criminal suspects, defendants not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the litigation rights and other lawful rights and interests."

Comment on: (1) "responsibility" three words out, because in the eyes of many lawyers, lawyers for the defense of the accused was mission, honor, responsibility can not generalize.

(2) "fact" to "evidence".

Recommended:"Based on the evidence and the legal counsel, present materials and arguments the suspect, the defendant not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the litigation rights and other lawful rights and interests."

 

Six, one article is added as Article thirty-sixth:"Defense counsel in the investigation periodSure[7] ylmf To provide legal aid for criminal suspects, represent appeal, accuse,Sure[8] ylmf From the investigation organ about the crime suspect guilty and cases[9] ylmf ."

Comment on: see comments.

Recommended Article thirty-sixth: as:"To provide legal aid for criminal suspects defense counsel in the investigation period, the appeal and accusation, have the right to know about the investigation organ crime suspected of and the case, the investigation organ has the obligation to inform."

Seven, the thirty-sixth changed to two, as thirty-seventh, thirty-eighth, amended as:

"Thirty-seventh defense lawyersSure[10] ylmf With the criminal suspect in custody, meet and correspond with the defendant. Other defenders, the people's court, the people's ProcuratoratePermit[11] ylmf Also, with the criminal suspect, defendant in custody met andSignal communication[12] ylmf .

Comments: the first "can" to "right", in order to strengthen the defense lawyer's right. Add one sentence: "the place of custody shall not obstruct"

Recommended : defense lawyers are entitled to the criminal suspect in custody, meet and correspond with the defendant. Other defenders, the people's court, the people's Procuratorate also allowed with the criminal suspect in custody, meet and correspond with the defendant, places of detention shall not obstruct"

 

"Defense lawyers the lawyer's practicing certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange to meet, not later thanForty-eight hours[13] ylmf .

Review: this section should make clear some lawyers can be met; places of detention for lawyers to meet the requirements, do not need to wait for forty-eight hours.

Recommendation: one or more than one defender may meet with the suspect, the defendant.

"Defense lawyers the lawyer's practicing certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange for the meeting, no later than half a working day".

 

"Defense lawyer meets with the criminal suspect in custody, the defendant, can learn about the case, to provide legal consulting; since the case is transferred for examination before prosecution date, may apply to the criminal suspects and defendants, verify the relevant evidence. Defense lawyers met the suspect, the defendant is not to be monitored.

Review: this section of the "can" to the right; add a little: defender has the right to carry the evidence material.

Recommended:"Defense lawyers meet the suspect, the defendant, has the right to know about the case, to provide legal consulting; since the case is transferred for examination before prosecution date, have the right to carry the files and other evidence, the suspect, defendant verification. Defense lawyers met the suspect, the defendant is not to be monitored.

 

 

"Joint crimes of endangering national security crime, terrorism crime, bribery crime[14] ylmf In the period of investigation, lawyers to meet with the criminal suspect, shall be subject to the investigation organPermit[15] ylmf .For these cases, the investigation organ shall notify the.[16] ylmf 

Review: this section limits the defense lawyer's right of the suspect and the right of access to lawyers, should be very cautious. Should be modified as follows:

Recommended:"Joint crimes of endangering national security crime, terrorism crime, serious bribery, in investigative counsel to meet with the criminal suspect, the investigation organ shall inform the detention house shall timely, arrange, not later than72Hours, for the above cases, the investigation organ shall notify the.

 

"Defense lawyers areResidential surveillance[17] ylmf The suspect, the defendant meets, communication, provisions of the first paragraph of this article, paragraph third, paragraph fourth.

Comment on: residential surveillance shall be the institutional arrangement from the protection of suspects and defendants, angle, the meeting, communication can make the necessary restrictions, but should not be the same as the detainees is tightly controlled, this seems to be the problem, delete, or modify.

Recommended:"The defense lawyer with the criminal suspects, defendants, communication meeting, shall perform the formalities".

 

"Thirty-eighth defense lawyers of the people's Procuratorate date, consult, extract, copy the caseThe facts of the crime accused materials[18] ylmf . Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material."

 

Comment: in practice, the lawyer can often get very little of the material.

Recommendation: Defense Lawyers of the people's Procuratorate date, consult, extract, this case to copy all the materials, other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material.

Eight, one article is added as Article thirty-ninth:"The defender believes in the investigation[19] ylmf The people's Procuratorate for examination and prosecution, during the public security organs, collection of prove the criminal suspect, the defendant not guilty evidence not submitted,Sure[20] ylmf Apply to a people's Procuratorate, the people's court to obtain relevant evidence."[21] ylmf 

Comments: at the beginning of the public security organs, people's procuratorates increase, should be fully transferred to the evidence. Finally add: Defender application, the people's Procuratorate, the people's court shall be take.

 

Nine, one article is added as Article fortieth:"The defending suspects were collected not at the scene of the crime, does not reach the age of criminal responsibility, mental patients do not belong to the criminal responsibility of the evidence, it shall timely inform the public security organ, the people's procuratorate."

Revision: lack of necessity, can be deleted

Ten, thirty-eighth to forty-second, the first paragraph is revised as follows:"Counsel or any other person,[22] ylmf May help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs."

Revision: remove the defense or to any other person, directly to "no person shall........."

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, the judicial organ shall timely report to."[23] ylmf 

Revision: have the right to privacy, to have the obligation to keep confidential the delete the second sentence.

Amendments: should modify article forty, the victim has the right to entrust a lawyer

Twelve, the forty-second changed to forty-seventh, amended as:"Can be used to prove the material facts of the case, is evidence.

"EvidenceInclude[24] ylmf :

("A)Material evidence, documentary evidence;

("Two)Testimony of witness;

("Three)The statement of victims;

("Four)The suspect, the defendant confession and exculpation;

("Five)Expert opinion;

("Six)The inquest, inspection, identification, Investigative Experiment record;

("Seven)Audiovisual materials,Electronic data[25] ylmf .

"Evidence must be verified[26] ylmf Can be taken as a basis."

Comments: the last sentence is amended as: "of evidence must be made legal procedures, verified can be taken as a basis."

Thirteen, one article is added as article forty-eighth:"The burden of proof of the defendant guilty in the case of public prosecution shall be borne by the public prosecutor, the burden of proof of defendant guilty the case of private prosecution shall be borne by the private prosecutor. But,Except as otherwise stipulated by law[27] ylmf ."

Comments: "but" part.

Fourteen, the forty-third changed to forty-ninth, amended as:"The judges, procurators and investigators must, in accordance with legal procedures, to prove the criminal suspect, defendant's guilt or innocence, crime seriousness of evidence. Prohibit torture to extract confessions and other illegal methods to collect evidence, no person shall be forced toTo prove his guilt[28] ylmf . Must ensure that all relevant to the case or to understand the citizen, has objectively and fully provides evidence of the conditions,Except in special circumstances, and can absorb them to assist in the investigation."[29] ylmf 

Comments: "confirmed his guilt" is ambiguous, not confirmed, that a branch? Advice to "proof" "except in special circumstances... ."Delete

Fifteen, the forty-fifth changed to fifty-first, one paragraph is added as the second paragraph:"Material evidence, documentary evidence collection in the administrative organs in the process of administrative law enforcement, the judicial organs shall verify,Can be used as evidence[30] ylmf ."

Comments: Comments: this clause

          Two views: finally add: "but need to comply with the provisions of this Law on the evidence of forty-seventh."

Sixteen, the forty-sixth changed to fifty-second, amended as:"Of all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the accused confessed, no other evidence, not the defendant is found guilty and sentenced to a criminal punishment without the defendantConfession[31] ylmf , the evidence is reliable and sufficient, can the defendant is found guilty and sentenced to a criminal punishment.

"The evidence is reliable and sufficient, the applicant shall meet the following conditions:

("A)The conviction and sentencing facts have evidence;

("Two)According to the verdict evidence are verified by the statutory procedures;

("Three)Integrated all the evidence,The facts have been beyond reasonable doubt[32] ylmf ."

Review: confession, confession is suspect, the accused compelled to testify against himself saying, inconsistent with the spirit of the legislation, to be study, defendant statement is appropriate.

 

Seventeen, one article is added as article fifty-third:"UseInquisition by torture[33] ylmf And other illegal methods to collect the suspect, defendant's confession and using violence, threats,And other illegal methods to collect the testimony of witnesses[34] ylmf , victims' statements, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence, seriously affecting judicial justice, the evidence should be excluded.

Comments: the last sentence is: material evidence, documentary evidence collected in violation of legal procedure should be excluded.

Recommended:"The collection of torture and other illegal methods of criminal suspects, defendants confession, testimony of witnesses, victims' statements, should be excluded. Material evidence, documentary evidence in violation of legal procedures to collect, should be excluded.

 

 

"In the investigation, prosecution, trial found the evidence should be excluded,[35] ylmf Should be excluded in accordance with the law, shall not be used as prosecution, prosecution and judgment basis."

Suggestions: add: excluded evidence, should also be transferred along with the case.

Eighteen, one article is added as article fifty-fourth:"The people's Procuratorate received a report, complaint, report or the discovery of the illegal methods to collect evidence, shall conduct investigation and verification. To do to illegal methods to collect evidence situation, should put forward correctiveOpinion[36] ylmf When necessary, can suggest the investigation organ replacement of the people. For illegal methods to collect evidence, which constitutes a crime, shall be investigated for criminal responsibility according to law."

Revision: "to do to illegal methods to collect evidence situation, should put forward rectification opinions, when necessary, may suggest the investigation organ replacement of the people." To "to do to illegal methods to collect evidence situation, should put forward corrective requirements, when necessary, may suggest the investigation organ replacement of the people, and will correct the written notice of the defendant, criminal suspects, defendants."

Nineteen, one article is added as Article fifty-fifth:"The process of trial, judges that may exist in the fifty-third article of this law to collect evidence by illegal methods situation, should the court investigation evidence collection of legitimacy.

 "The party and the defender, agent ad litem shall have the right to request the people's court to illegal methods to collect evidence shall be excluded. For the exclusion of illegal methods to collect evidence,Shall provide relevant clues or evidences[37] ylmf ."

Amendments: in paragraph second the last sentence "application exclusion of illegal methods to collect evidence and provides relevant clue or evidence, the court should carry on the legitimacy of the court investigation evidence collection"

Twenty, one article is added as Article fifty-sixth:"The process of the court investigation evidence collection in the legitimacy of the legitimacy, a people's Procuratorate to collect evidence to prove.

"The people's court may notify the relevant investigation or other personnel to appear in court to explain the situation. The notice of investigation in accordance with the law, or other personnel shall appear in court. The investigation personnel or other personnel may request the court to explain the situation."

Twenty-one, one article is added as Article fifty-seventh:"For after the court, that is to collect evidence by illegal methods, or there are serious doubts, to collect evidence by illegal means the possibility cannot be ruled out, the evidence shall be dealt with in accordance with the provisions of this article fifty-third."

Twenty-two, the forty-seventh changed to fifty-eighth, amended as:"The testimony of witnesses in court by the public prosecutor, the victim and the defendant, the defenders both evidence and found later, can be used as a basis. The court witness has intentionally given false testimony or conceal evidence,Shall be dealt with according to law[38] ylmf ."

Revision: front increase "witnesses should appear in court"... Can be taken as a basis, adding: "the witness not appearing in court testimony, the defendant, the defense objection, the testimony excluded."

Recommended:"The witness should appear in court as a witness, witness testimony in court by the public prosecutor, the victim and the defendant, the defenders both evidence and found later, can be used as a basis,The witness not appearing in court testimony, the defendant, the defense objection, the testimony excluded.. The court witness has intentionally given false testimony or conceal evidence, shall be dealt with according to law".

 

Twenty-three, one article is added as Article sixty-first:"For the crimes of endangering national security, terrorism, organized crimes of the underworld, drug crime,[39] ylmf The witness testimony, the victim in the litigation, himself or his close relatives and personal safety risk, the people's court, the people's procuratorates and the public security organs shall take the following one or multiple protective measures:

("A)Personal information is not public real full name, address and work units;

("Two)Take not to expose the appearance, voice of such measures to testify in court;[40] ylmf 

("Three)Persons are prohibited from contacting witnesses, specific victims and their close relatives;

("Four)To take special protective measures for personal and residential;

("Five)Other necessary protective measures.

"Witnesses, victims believe that witness in lawsuit, himself or his close relatives and personal safety risk, can put forward to apply to the judicial organ protection."[41] ylmf 

Amendment: delete(A()Two)Paragraph, add clause: the people's court, the people's Procuratorate, the public security organs have not received the application, shall take protective measures to. The parties may request the lifting of protection measures at any time.

Recommended:"The witness testimony, the victim in the litigation, himself or his close relatives and personal safety risk, I request protection, people's court, people's Procuratorate and the public security organs shall take the following one or multiple protective measures:

("A)Persons are prohibited from contacting witnesses, specific victims and their close relatives;

("Two)To take special protective measures for personal and residential;

("Three)Other necessary protective measures.

"Witnesses, victims believe that witness in lawsuit, himself or his close relatives and personal safety risk, can put forward to protect the application to the judicial organ, judicial authority has not received the application, shall not take the measures, and the parties shall have the right to request the lifting of protection measures at any time".

 

Twenty-four, one article is added as Article sixty-second:"Witnesses had testified to fulfill the obligation and expenditure of transportation, accommodation, meals and other expenses and loss, should grant. The witness subsidies, included in the judiciary operation expenses, byAt the same levelGovernment financial guarantees.

Review: the government at the same level of financial guarantee whether the court with the local government to death, increase the local government interference in justice?

 

"Work units and witness, where the units are not deduct explicitly or implicitly wages, bonuses and other benefits."

Twenty-five, the fifty-first changed to sixty-fourth, amended as:"The people's court, the people's procuratorates and the public security organ for any of the following circumstances of criminal suspects, defendants,Sure[42] ylmf Bail:

("A)May be sentenced to public surveillance, detention or independent additional penal apply;

("Two)Be sentenced penalty above, release on bail will not take the danger to the society;

("Three)Detention period expires, the case has not yet completed,Need to take recognizance measures[43] ylmf .

"Bail enforcement by the public security organs."

Revision: add a sentence in the first paragraph: "to provide effective security, should bail."

Recommended:"The people's court, the people's procuratorates and the public security organ for any of the following circumstances of criminal suspects, defendants,Sure[44] ylmf Bail,To provide effective security, should bail.

("A)May be sentenced to public surveillance, detention or independent additional penal apply;

("Two)Be sentenced penalty above, release on bail will not take the danger to the society;

("Three)Detention period expires, the case has not yet completed, need to take recognizance measures;

"Bail enforcement by the public security organs."

 

 

Twenty-six, the fifty-second changed to sixty-fifth, amended as:"The arrested suspects, defendants and their legal representative, close relative, the defender has the right to apply for alteration of the compulsory measures. Receive request the people's court, people's Procuratorate and the public security organs, it shall make a decision within three days; does not agree to the change of compulsory measures,It shall inform the applicant[45] ylmf And explain the reasons for disapproval."

Comments: the last paragraph is revised as follows: it shall inform the applicant in writing

Twenty-seven, the fifty-fifth changed to sixty-eighth, amended as:"The guarantor shall perform the following obligations:

("A)Supervision is the guarantee to comply with the provisions of article sixty-ninth of this law;

("Two)Discovery is that people may occur or has occurred in violation of this law the provisions of article sixty-ninth of the act, shall promptly report to the executing organ.

"Be surety for violation of the law sixty-ninth stipulation behavior, the guarantor fails to perform the obligation of guarantee, the guarantor shall be fined, which constitutes a crime, shall be investigated for criminal responsibility according to law."

Twenty-eight, the fifty-sixth changed to three, as sixty-ninth, seventieth, seventy-first, amended as:

"Article sixty-ninth by the criminal suspect, defendant bail shall observe the following provisions:

("A)Without the approval of the organ executing shall not leave the living city, county;

("Two)Address, work units and contact information changes, in twenty-four hours ago report to the executing organ;

("Three)In the time to;

("Four)Not to interfere in any form of witness;

("Five)Not to destroy or falsify evidence, or collusion.

"The people's court, the people's procuratorates and the public security organ may according to the circumstances of the case, shall be ordered to be criminal suspects, defendants on bail the following one or more:

("A)Not enterSpecific[46] ylmf Place;

("Two)Not withSpecific personnel[47] ylmf Meeting or communication;

("Three)Shall not engage in certain activities;

("Four)The travel documents, driving license to executive organ preservation.

Comments: one, the provisions of criminal suspects and defendants, has been ordered to bail the following one or more after partial deleted

          Two, the definition of a particular, specific refers to the case related personnel and facilities.

"By the criminal suspect, the defendant on bail in violation of the provisions of the preceding two paragraphs, have to pay a deposit, the confiscation of part or all of the deposit, and the difference between the situation, the suspect, the defendant shall be ordered to sign a statement of repentance, to pay margin, the guarantor, or be arrested.

"For breach of bail provisions, need to be arrested, the suspect, defendant custody.

 

 

"The decision-making organ seventieth bail should be considered to ensure the normal activity of the lawsuit, be social danger bail people, plot, nature of the case, may be sentenced to a punishment, was released on bail the people's economic situation,To determine the amount of the deposit[48] ylmf .

Review: add a paragraph, as the first paragraph of this article: the decision to bail authority shall not at the same time as the executing organ bail.

"The bail bond amount is determined, providing margin shall be deposited into the margin account executive specialized organs designated bank.

"Article seventy-first of criminal suspects, defendants on bail period did not violate the provisions of article sixty-ninth, when the end of the release on bail,With the cancellation of bail to the bank for the refund of deposit[49] ylmf ."

Revision: seventy-first shall be modified as "the suspect, the defendant in the release on bail is not in violation of this law the provisions of article sixty-ninth, when the end of the guarantor pending trial, by notice to remove the bail to the bank for the refund of deposit and its fruits."

Twenty-nine, one article is added as article seventy-second:"The people's court, the people's procuratorates and the public security organs in accordance with the conditions of arrest, in any of the following circumstances of criminal suspects, defendants, to residential surveillance:

("A)Affected with a serious disease, the life cannot provide for oneself;

("Two)Pregnant or breast-feeding her baby;

("Three)Because of the need for the special circumstances of the case or the handling of cases, take measures are more suitable for residential surveillance;

("Four)Detention period expires, the case has not yet completed, need to residential surveillance measures.

"In accordance with the bail conditions, but the suspect, the defendant cannot provide a guarantor, do not pay the deposit, or residential surveillance.

"Residential surveillance shall be executed by a public security organ."

Comments: the compulsory measures against the bail, residential surveillance shall not be repeated use.

Thirty, one article is added as article seventy-third:"Residential surveillance shall be carried out in the criminal suspect, the defendant's; no fixed residence, inAppoint[50] ylmf Home execution. For the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the place of custody, special case handling place execution.

"The specified home residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the premises, in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people.[51] ylmf 

"The specified home residential surveillance, criminal suspects, defendants to entrust defenders, this Law shall apply to the thirty-third.

"The supervision of people's Procuratorate to specify the decision and implementation of residential surveillance is legal residence."

Amendments:This entire paragraphs were removed, retained the original criminal law about the fixed place, for there is no fixed residence shall be borne by the residential surveillance who choose.

Li Jinxing: no fixed abode by the parties to the selected domicile.

Thirty-one, one article is added as article seventy-fourth:"The specified period residence residential surveillance shall be offset. Criminals sentenced to public surveillance, surveillance, the term is to be shortened by a day; sentenced to criminal detention, fixed-term, residential surveillance for two days to be shortened by one day."

Comments: one, the delete

          Two, amended as"He selected residence residential surveillance shall to be shortened. The suspect, the defendant is sentenced to control, surveillance, the term is to be shortened by a day; sentenced to criminal detention, fixed-term, residential surveillance for two days to be shortened by one day."

Thirty-two, the fifty-seventh changed to seventy-fifth, amended as:"By the criminal suspect, defendant residential surveillance shall observe the following provisions:

("A)Without the approval of the organ executing the implementation of residential surveillance shall not be allowed to leave the premises;

("Two)Without the approval of the organ executing the communication or others may not be met;[52] ylmf 

("Three)In the time to;

("Four)Not to interfere in any form of witness;

("Five)Not to destroy or falsify evidence, or collusion;

("Six)The identity documents, travel documents, documents, the executing organ preservation driving.

"By the criminal suspect, defendant under residential surveillance violates the provisions of the preceding paragraph, if the circumstances are serious, can be arrested; need to be arrested, the suspect, defendant custody."

 

Amendments: (a) (two) of paragraph two delete.

 

Thirty-three, one article is added as article seventy-sixth:"The executing organ for criminal suspects, defendants, can adopt the electronic monitoring, not regular inspection monitoring method for monitoring compliance with the provisions of the residential surveillance; in the period of investigation, can monitor communication of criminal suspects."

Comments: This is unconstitutional, pending, this significant.

Thirty-four, one article is added as article seventy-seventh:"The public security organ for residential surveillance, the bail decision, it shall be executed immediately. Law enforcement officers to residential surveillance, the bail decision,Not strictly enforced[53] ylmf ,Delay the case handling, shall be investigated for responsibility according to law."[54] ylmf 

Amendments:Law enforcement officers to residential surveillance, the bail decision, some deleted after, plus "should be in accordance with the law enforcement"

Recommended :"The public security organ for residential surveillance, the bail decision, it shall be executed immediately. Law enforcement officers to residential surveillance, the bail decision, should be in accordance with the law enforcement".

Thirty-five, the sixtieth changed to eightieth, amended as:"To have evidence to prove the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the danger to the society, should be arrested:

("A)May be the implementation of the new crime;

("Two)The real danger endanger national security, public security or public order;

("Three)May destroy, forgery, hiding evidence, witnesses or collusion of interference;

("Four)May the victim, informants, who take revenge against the implementation of;

("Five)May Dutch act or escape.

"To have evidence to prove the facts of the crime, may be sentenced to more than ten years of punishment, or may be sentenced penalty above, once an intentional crime or unidentified suspects, the accused, should be arrested.

"A guarantor pending trial, the criminal suspect, defendant under residential surveillance violates bail, residential surveillance shall, if the circumstances are serious, can be arrested."

Thirty-six, the sixty-fourth to the eighty-fourth, the second paragraph is revised as follows:"Arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours.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,[55] ylmf Should put the reasons for detention and the place of detention, in twenty-four hours after notification, the detainee's family."

Revision: A, Li Heping's lawyer thinks "detained" in violation of the constitution, should be banned.

          Two, Wang Cheng lawyers believe that the Constitution does not be arrested is a narrow interpretation of the detention of the public security organs, administrative organs, does not belong to the illegal detention, should be retained.

         Three, delete "suspected of crimes of endangering national security, terrorist crimes and other serious crimes, notice may impede the investigation"

Four, twenty-four hours to twelve hours.

 

Recommended:"Arrest, the detainee shall immediately send the detention center custody, not later than twelve hours. In addition to not notice, when the reasons for detention and the place of detention, in twenty-four hours after notification, the detainee's family."

 

Thirty-seven, the sixty-fifth changed to eighty-fifth, amended as:"The public security organ for detainee shall, after the detentionTwenty-four[56] ylmf Hours of interrogation. In that time shall not be detained, must immediately release, issued a release certificate."

Revision: A: ask, Wu Shuyuan immediately after the detention.

          Two, Wang Cheng: twelve hours

          Three, Zhang Kai: twenty-four hours

 

Revision: twelve hours of interrogation.

 Recommended :"The public security organ for detainee shall, within twelve hours after completion of interrogation and detention. In that time shall not be detained, must immediately release, issued a release certificate."

Thirty-eight, one article is added as article eighty-seventh:"The people's Procuratorate for examination and approval of arrest, can ask the criminal suspect; in any of the following circumstances, it shall interrogate the criminal suspect:

("A)There are questions about whether it meets the conditions for arrest;

("Two)The suspect asked prosecutors to statement;

("Three)The investigation may have serious illegal act.

"The people's Procuratorate for examination and approval of arrest, may question the witnesses and other participants in the proceedings, to listen to the views of the defense lawyer; lawyer requested shall listen to the opinions, defense lawyer."

Thirty-nine, the seventy-first to the ninety-second, the second paragraph is revised as follows:"After the arrest, it shall immediately be arrested for custody.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,[57] ylmf The reason and the detention shall be arrested in the premises, within twenty-four hours after the arrest, notify the family of the arrested person."

 

Recommended:"After the arrest, it shall immediately be arrested for custody. In addition to other situations not notice, should put the reason and detain arrested the premises, within twenty-four hours after the arrest, notify the family of the arrested person."

 

Forty, one article is added as article ninety-fourth:"The suspect, the defendant was arrested, the people's Procuratorate shall still the necessity of the detention review. For the detention is not necessary, should be recommended to be released or alteration of the compulsory measures."

Forty-one, the seventy-fourth changed to ninety-sixth, amended as:"The suspect, the defendant in custody cases, not in custody, in the investigation of the provisions of this law, a trial period of review and prosecution, trial Banjie, the suspect, the defendant shall release the need to verify,; trial, the suspect, defendant on bail or residential surveillance."

Forty-two, the seventy-fifth changed to ninety-seventh, amended as:"The people's court, people's Procuratorate or public security organs to be taken of criminal suspects and defendants, compulsory measures shall release the statutory period expires, lifting bail, residential surveillance or alteration of the compulsory measures according to law. The suspect, the defendant or his legal representative, close relative or lawyer to the people's court, the people's Procuratorate or public security organs to take coercive measures to the statutory period expires, the right to request the lifting of compulsory measures."