Note:In the black box text below is deleted, boldface part is to increase the content of

 

"Criminal Procedure Law" of the people's Republic of China and the amendment (Draft)

Revised draft

 

A modified, first (draft did not involve terms)- the objective of criminal procedure

"In order to ensure the correct implementation of criminal law, the punishment of crime,Protect the peopleThe peopleProtect the peopleRight,Safeguard national security and social public security, maintaining social order of socialism,In the criminal procedure to realize the entity justice and procedure justice,According to the constitution, this law is enacted".

The revision reasons:"In order to ensure the correct implementation of the criminal law, the punishment of the crime" is enough to show that the service of criminal procedural law in the criminal law value, should be retained. The "protecting the people, safeguarding state and public security, maintaining the socialist social order" did not reflect the law of criminal procedure to maintain the independent value of procedural justice, and has been included in the "in order to ensure the correct implementation of" criminal law, no need to set.

Will "protect the people" to "human rights", because "protect the people" is the purpose of legislation of criminal law has stipulated in the "criminal law" in first; two is because the "people" is a political concept, at the present stage is difficult to define, such as "people" is included in "the suspect, the defendant" will disagreement; three is "the state respects and safeguards human rights" has been written into the "constitution", and the criminal activities and results directly relates to the limit, deprive the citizen's personal rights, property rights and other lawful rights and interests, to "constitution" as the basis "Criminal Procedure Law" should take the "human rights" as one of the legislative purpose.

Increase the "in criminal proceedings to achieve substantive justice and procedure justice, improving the efficiency of lawsuit", expressing the special criminal procedure law is different from the criminal law, not only to the pursuit of substantive justice, but also to the pursuit of procedural justice, both lawsuit efficiency, this is to overcome the heavy entity, in judicial practice still exist in the entity light procedure, the impact of program is of great significance.

Two, eleventh (revised draft did not involve terms)The lawyer's right, the right to know -

"The people's court cases, unless otherwise prescribed in this law, shall be heard in public.Criminal suspect, the defendantHave the right to receiveEnjoy according to lawDefendRight, the people's court,The people's Procuratorate, the public security organHave the duty to guarantee the defendant to defence".

The suspect, the defendant commissioned lawyer, the case handling organ in making the suspects, defendants benefit program, substantive decision, notify the criminal suspects and defendants, at the same time, shall promptly notify the principal counsel.

 

The revision reasons:At present, the provisions of the draft, the three stage suspect, the defendant has the right to defense. The provisions of the criminal procedure law has limitations, should obviously be adjusted.

The second paragraph is to increaseTo solve the suspects, defendants, the right to know the problem of defense. In practice, in the attachment, seizure, the discovery of new crimes investigation, supplemental investigation, investigation and prosecution, the end to the prosecution to the trial stage, even the sentence served decision etc, to undertake the Administration (personnel) often can not inform the suspect, the defendant, but do not notice the situation of lawyers. The most serious is the execution of the judgment, the defense also don't know. Often the parties understand the development of the case through private relationship after the notice of lawyers, lawyers and judicial organs passive situation to verify. So, many parties that a lawyer has no effect, because of the progress bar even cases are not understand. Therefore, the law should be resolved. The right to know is the basis and premise of the defendant, the defenders to exercise all the rights, no informed exercise right seriously affect the right of defense.

 

Three, Twelfth (revised draft did not involve terms)- the principle of presumption of innocence

 "Without the approval of the people's court to sentence, no person shall be found guilty"Before anyone after the people's court judgment shall be regarded as guilty, not guilty.

The revision reasons:The principle of presumption of innocence is also of concern in the world. In 1979, the criminal procedure law, criminal suspects, defendants are regarded as "man", the court has found the defendant guilty. In 1996, the criminal procedure law of the people's court conviction principle, cancel the prosecution of the immunity from prosecution, clearly stipulates the principle of presumption of innocence, "man" as "suspect", so some people think that China has established principle of presumption of innocence. But in fact the 1996 criminal procedure law only absorbs the principle of presumption of innocence spirit, and no established principle of presumption of innocence. But from the "amendment (Draft)" of the existing provisions, in essence has established the principle of presumption of innocence.

  The principle of presumption of innocence is the cornerstone of modern criminal procedure, it is recognized as the most important principle of criminal procedure. According to the "agency" Human Rights Committee International Convention of civil and political rights in 2007 July explained in the "thirty-second views" in general, the basic requirements of the principle of presumption of innocence is "the prosecution to provide evidence of the accused, beyond all reasonable doubt proved guilty, should be considered innocent, ensure the application of the principle of presumption of innocence, and according to this principle in dealing with criminal charges are."

  In contrast, "amendment (Draft)" the relevant provisions have been fully meet the above requirements: 1, forty-eighth: "the burden of proof of defendant's guilt in the public prosecution cases shall be borne by the public prosecutor, the burden of proof the defendant guilty cases of private prosecution shall be borne by the private prosecutor in. But, except as otherwise stipulated by law." Secondly, fifty-second: "without the confession of the accused, 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)...... Two. ; (three) comprehensive evidence of the case, which recognize the real fact is beyond reasonable doubt." Third, forty-ninth: "it is strictly prohibited to torture to extract confessions and other illegal methods to collect evidence, no person shall be forced to prove himself to be guilty." Fourthly, article third paragraph 140th: "for supplementary investigation cases, the people's Procuratorate believes that the evidence is insufficient, does not meet the prosecution condition, may decide not to initiate a prosecution"; 162nd: "the evidence is insufficient, not the defendant is guilty, should make the lack of evidence, accused of crime cannot be established acquittal." Fifth, Twelfth: "without the approval of the people's court to sentence, no person shall be found guilty".

  Obviously, the above provisions has essentially consistent with the principle of presumption of innocence, the only lack is not in the text directly expresses the principle of presumption of innocence, belong to "to not return". Since it is so, why not take "deserved", establishing the principle of presumption of innocence?

 

Four, revised thirty-second (not including draft)The number of - Defense

"The suspect, the defendant in addition to exercising the right to defend himself outside,Also may entrust one or two persons as his defendersThe number of criminal suspects, defendants hire a lawyer is not restricted, but the court shall not exceed two of lawyers. The following persons may be appointed as the defender: (a)LawyerPeople's organizations; (two) recommended or criminal suspects, defendants unit; (three) the suspect, the defendant's guardian, relatives and friends. In accordance with the law are under criminal punishment or deprivation, restriction of personal freedom of the people, shall not serve as defenders"

 

The revision reasons:The defendant lawyer number restricted problem. The lawyer is the defendant's rights, public power should not be limited; the original legislation to follow the provisions of the former Soviet Union, the other countries are not restrictive provisions; the lawyer handling process, often in the meeting, marking, case research and discussion, ask the expert link is limited to the provisions can only be hired two lawyers, however in practice, in order to achieve full justification purposes, lawyers do need to seek help, if allowed to hire people to do defense, can make the lawyer does not have a duty of confidentiality restrictions, and let the lawyers, paralegals, professionals to understand the circumstances of the case. In fact, it is often the lawyer practice in a number of lawyers in the case to defend the activities, but legislation has no provision; larger, more complex cases, prosecutors can arrange more prosecutors involved in litigation (gain longer sometimes to six people, eight people, can make use of supplemental investigation way of preparation time), while the two defenders, often in the court preparation can not be guaranteed quality (court hearing in public prosecution, within one month after only two defenders, marking, meeting time is often not enough); open the restriction on the number of lawyers, for further implementation of lawyer presence provides conditions.

Since a paragraph of period, many controversial cases in society, such as: the Yang Jia case, Deng Yujiao case, Guangxi Beihai case, the defendant lawyer links, including: who has the right to hire a lawyer, replacing the lawyers and other sectors have some problems, the fundamental reason in our country has stipulated the defendant can only hire one to two lawyers for defendants provisions. It is impossible to see the provisions in the legislation of other countries.

 

Five, revised thirty-third (draft article third)- lawyer getting involved in criminal suit

"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 entrustedLawyerAs a defender. 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. The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

The defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial organs1The suspect, the defendant be taken custody of compulsory measures, the guardian, the relatives and friends, criminal suspects and accused persons designated person can provide to entrust defenders; criminal suspects and defendants, entrust a defender, the people's court, the people's Procuratorate, the investigation organ should be help②.

The revision reasons:1,This is added to lawyer duty clause, no positive significance of this increased but. In thirty years after the restoration of the lawyer system in the judicial practice, because the lawyer did not timely and the case handling organ made contact, inform the case handling organ, caused delays, wrongly, influence the action didn't happen.Establishing a principal-agent relationship between lawyer and client are citizens to exercise their rights act, established shall have the legal effect, no need to other people, including representatives of public authority of the judiciary to fulfill the obligation of informing. When the lawyer hold parties entrusted with the handling organs contact, contact, in fact has been achieved in the notice, inform the results. This provision is not operational in practice. Criminal defense lawyers often could not find the undertaker, how to fulfill the obligation? The case handling organ can assign the reception of lawyers? Either by mail or lien, etc., are not a good operation. "Timely" to inform the condition, also not understand; do not fulfil this obligation consequences? The practice of compulsory notification will not understand, lawyer for the "approval", this provision would reduce the chance of getting help.

2, in accordance with the provisions of existing laws, only the suspect, the defendant can relatives to hire a lawyer, with limitations. Other people to hire lawyers often because there is no legal basis, and had to use a method. Do the rules, especially the "friends", "allow suspects, defendants designated person" to hire lawyers will broaden the suspect, the defendant lawyer channels, is conducive to the defenders in criminal procedure, improve the efficiency of criminal defense.

In reality, a lot of floating population is suspect, the defendant cannot and near relatives, or be able to contact also because journey is distant can not be timely entrust a lawyer. The migrant workers are the most outstanding, if the family, family is not local, can not guarantee their basic rights to hire a lawyer, and provisions will be more practical significance for "friends and the designated person". In fact, anyone should be able to hire a lawyer, just at the meeting by the suspect, the defendant shall be confirmed to me.

 

Six, revised thirty-fourth (draft article fourth)- to expand the scope of legal aid

"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. The suspect, the defendant is blind, deaf, dumbAnd other disabled peopleWhile 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 institutions appoint lawyers to defend the."

 

The revision reasons:To expand the scope of legal aid, consideration should be given to the social vulnerable groups, particularly the disabled people, social care, very important. This amendment shall be blind, deaf, dumb outside the scope of the disabled in legal aid. The original scheme considers only the defendant will be sentenced to life imprisonment in the legal aid scope, only consider the social assistance and care to impose severe punishment may be the door of the defendant, does not take into account the deaf person outside of the employment of the disabled is difficult, the difficult living conditions, discrimination and other social phenomena.

 

Seven, revised thirty-seventh (draft article seventh)- lawyers and relief

"The defense lawyer may with the criminal suspect in custody, meet and correspond with the defendant. Other defenders, with permission of the people's court, the people's Procuratorate, may also with the criminal suspect in custody, meet and correspond with 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 shallTimelyImmediateArranging a meeting,Not later than forty-eight hours1.

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, to the suspect, the defendantTo produce the materials②, verify the relevant evidence. Defense lawyers met the suspect, the defendant is not to be monitored.The counsel for the defence safety inspection shall be with investigators to perform the same standard③. The defense lawyer may consent by audio and video recording the meeting process④.

Provincial Public Security, security departments in the investigation ofThe crime of endangering national security, terrorism crime casesA case of joint crime, the great crime of bribery⑥In the period of investigation, lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ.House of detention to lawyers formalities, no later than five days license with⑦.For these cases, the investigation organ shall notify the.

The defense lawyer with the criminal suspects, defendants met, communication, provisions of the first paragraph of this article, paragraph third, paragraph fourth."

During the meeting was not permitted to apply for the defense lawyer, the defendant investigation authorities made the confession was illegal evidence, should be excluded, can not be used as the basis for a final decision⑧.

 

The revision reasons:1,Lawyers in the legalWorking time requirements met, no need, no reason to wait until forty-eight hours later. The original six ministries on the lawyers met with the provisions, simply because the case involves state secrets, investigators should accompany, provides forty-eight hour period in the investigation stage. The current regulations have forty-eight hours to meet,In fact may form authorized detention mechanism can be delayed for forty-eight hours, and extended to the stage of review and prosecution and trial stages. This provision is clearly evident retrogression. Defense attorneys timely, barrier free meet the client is the universal principle of legislation in the world, our legislation should also be the case. In practice, lawyers often and marking, investigation, court preparation are closely linked, if you are meeting in forty-eight hours arrangements, lest bungle, investigation, trial lawyer marking etc..

2, the lawyer have responsibility, obligation will produce the materials in the case for the defendant to verify. If only a simple "provisions will verify the relevant evidence" that practice is ambiguous understanding, namely "verify the relevant evidence, not equal to produce the materials", I'm afraid or not completely solve the problems in practice.So it must be the issue clear provisions in the legislation, law responsibility, obligation will get the materials show the defendant verification, identification, ensure the quality and efficiency of the trial activities.

3, the current judicial practice, the emergence of individual detention standards expand search to meet with a lawyer, search not only for contraband, impede the safety of dangerous goods, but also for the lawyers to computer, recording meeting process recording equipment, no dangerous goods are blocked, and even to check, copy the lawyer transcripts of the meeting, the draft statement of defense should be between lawyer and client's secret files, so it is necessary to be stipulated in the legislation.

4, the draft law to solve it have cudgeled one's brains torture to extract confessions, including video recording of the whole intact, inform the witnesses to appear in court proceedings, etc.. If the specified defenders can recording during the meeting time, helps to find torture to extract confessions situation, conducive to the preservation of evidence in favor of fixed, at any time to the relevant authorities report, complaint, timely stop torture to extract confessions, more conducive to the trial case, more conducive to the realization of the purpose of legislation phenomenon to torture to extract confessions of.

In addition, the lawyers met with time, at a record demand using audio and video equipment, and help to improve work efficiency.

5,For the above the provincial public security, security relates to endanger national security crime, terrorism crime, has the certain particularity, limiting the lawyers can understand. However, if the legislation is not to be clear, the lower levels of the agency will use this as an excuse to other cases are also included in the scope of limited lawyers, thus increasing the supplementary provisions of the restrictive. Theoretically speaking, the approval organ and executive organ shall phase separation, namely the investigation organ itself shall not have the right to decide the lawyer to meet or not, the third party shall exercise the rights, judicial review of decisions by the award. In view of the present situation, the establishment of judicial review may not directly link is larger, thus limiting the case handling organ level should be the transition selection. In judicial practice, such serious crimes, apparently County, city level investigation agencies also report to the public security authorities at least at the provincial level or above, so the decision entirely feasible.

6, "major bribery crime" case not with these two kinds of crime of comparable severity, if the common crime of major bribery cases classified as meeting require the permission of the case, may in practice there will be a lot of bribery cases in the investigation stage is branded with the name of the common crime, to limit lawyers, stop. What is "significant" case is not available for the implementation of standards. No previous this provision, because there is no lawyers met with the problem occurs, there is no reason to restrict the lawyers. It is proposed to abolish the regulations.

7, although some special cases can limit the lawyer to meet, but this restriction should not limit, should provide clear deadlines.

8, set up relief terms, provisions of the legislation is illegal, ensure correct implementation. Most of the previous legislation "should", "right", "may" of language to describe authorization rules, through practice, we find that, such a provision, because there are no rules and remedies clause, it is easy to fail in practice. The legislation should learn from previous legislation in terms of inadequate relief lesson.

 

Eight, revised thirty-eighth (draft article seventh)- lawyers and relief

"The defense of the people's Procuratorate date,Consult, extract, replicationConsult, extract the case all the materials, can be copied for Xerox, photograph, scanning and other electronic data1Charged with the material of the facts of the crimeIn this case all the materials②.Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material."

ProsecutionBefore the court did not produce the dossier, unless in favor of the defendant guilty, sentencing the case materials, shall not be used as a basis③.

 

The revision reasons:1,To solve the problems of lawyers. Lawyers for the purpose of understanding the case, to achieve equality of arms of both sides, ready to fully carry out the trial. In practice, the judicial authorities around the requirements are different, some provisions can only copy (charge high fees, the parties can not afford), some only electronic version or only allowed to take photographs (some lawyers do not have the electronic version of the file, not with the electronic version of the file, and some conditions) regulations can only extract, so it is necessary to be clear in the legislation.Is for the purpose of service, can be selected by lawyers, as long as it can let defense lawyer accused material can be completed to.

2,In practice, the procuratorate has the procedure all the case materials are classified as "recorded material" and "complaint".These words actually let the prosecution departments for which the materials to the lawyer, which do not give the lawyers have right to decide, the right to choose, namely only undertaker thought to be accused of material to the lawyer. The law requires the investigation organs must comprehensive collection of evidence, including evidence in favor of the defendant, apparently innocent, crime evidence, is not of the facts of the crime accused materials, if the prosecution department show "of the facts of the crime accused materials" only to lawyers, lawyers will not to show any benefit to the defendant materials,Concealment of evidenceLegalization,Violation of the trial is fair, just principle, the impact of the court to find out the truth of the matter, it should be corrected by the amendment of the criminal procedure law.

3,The lawyers relief provisions.The legislation should learn from previous legislation deficiency, relief provisions in practice, not without consequences and lessons.

 

Nine, revised thirty-ninth (draft article eighth)- the lawyers' rights of investigation and relief

Defense attorney to investigate the evidence, with lawyers and law firms practicing certificate to prove, the evidence material to relevant units or individuals in connection with the case1.

"The defender believes in the investigation, prosecution, public security organs, people's Procuratorate collected during the prove the criminal suspect, defendant not guilty evidence not submitted, may apply to the people's Procuratorate, the people's court to obtain relevant evidence."

The people's Procuratorate, the people's court after receiving a defender after application, it shall timely.Counsel submitted evidence, evidence provedThe case handling organ to collect relevant evidence submitted, but not in the application, in favor of the defendant's principle, that the defenderArgued in favor of the defendant and advocated the establishment of the facts②.

    

The supplemental ground:1,"Lawyers Law" has been made on the lawyer's investigation makes clear a regulation, the provisions of the criminal procedure law of the witnesses agreed, and the investigation and judicial assent, so for the original criminal law article thirty-seven modification is not specified in the original basis added provisions, and shall adjust the synchronization and lawyer method. Only when the defense lawyer investigation of evidence not to undertake office to apply, is consistent with the general rules in judicial practice.

2,This is the lawyers right of investigation and evidence collection means of relief, not specified such relief, for obtaining of evidence is lip-service. In judicial practice, lawyers often apply for investigation and evidence collection, but the lawyer's application often should not respond, neither shall be identified in the trial, are also given to illustrate the not in judgment, let rights basic lost.

 

Ten, revised forty-second (draft article tenth)- hold Lawyers liability

"Counsel or any other person, shall 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. In violation of the provisions of the preceding paragraph, shall be investigated for legal responsibility according to law.1 "

The judicial authorities think lawyers violations in criminal lawsuit activity process, should be to the lawyer industry competent authority or authorities report, complaint, the industry competent authority or the competent administrative authority shall investigate and verify. For indeed in illegal acts, shall propose corrective advice, when necessary, may suggest replacing the defense lawyer. That is suspected of a crime, transferred to judicial organs for treatment②.

 

The revision reasons:1,In recent times, because the occupation of revenge, use the event to article three hundred and six of the criminal law against criminal defense lawyer occur frequently, especially in Guangxi occurred in Beihai criminal defense lawyer investigation of evidence for the initiator of the case, fully shows the provisions for criminal defense, and even criminal activities carried out normally, has the extremely disadvantageous influence. The existing criminal law article thirty-eighth is the basis of article three hundred and six of the criminal law, to amend article three hundred and six of the criminal law, criminal procedure law must first remove the bar.

Originally had an opinion, that is: at the same time, the public prosecutor, law officers and lawyers have included the crime subject. But the fact there is a big problem. Because even if also made provisions, the public prosecutor, law personnel shall have the right to catch the lawyers, and lawyers have no right to counter, there would still be occupation retaliation problem. So it needs to be completely abolished, there is article three hundred and seven of the criminal law.

Frequent outbreak of such cases, let the criminal defense lawyers have a lingering fear, to be very careful, testing the law success, progress and not the most simple logo is to look at the can will some lawyers to attract criminal defense stage, the criminal defense rate, increase of at least ten percent or higher on the existing basis, if substantial modifications and specification does not make here, not only does not increase the rate of criminal defense, may actually lower. If the criminal defense rates fall further, criminal defense will be the case in practice, it is difficult to guarantee the quality of the people's Court of criminal cases, and ultimately affect the citizen's human rights safeguard, affect the construction of the rule of law.

2, the amendment, the illegal acts of the lawyers should be illegal in forensics and investigators in forensics's compared treatment. The lawyer can eliminate discrimination, in the legislation also embodies the principle of equality before the law.

According to the amended article fifty-fourth (eighteen Amendment) regulations, investigation personnel handling process for handling illegal advance investigation -- correct substitutions -- for processing pattern -- crime take, also applies to the law in handling criminal cases of illegal behavior in the process of.

If possible, even in such cases, the start and other aspects of specific provisions under the jurisdiction.

 

Eleven, revised forty-ninth (draft article fourteenth)- to stop the torture to extract confessions

"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 toOther illegal methodsThreat,Enticement, deception, corporal punishment, limited enforcement method to rest and diet and other psychological, physiologicalCollect evidence, no person shall be forced to prove himself to be guilty. 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."

Torture to extract confessions refers to the torture and other cruel, inhuman or degrading method to obtain the confession and testimony behavior.

This means the torture judicial officer or the instigation, consent of personnel to obtain evidence and deliberate the suspect, defendant or witness suffer severe pain or suffering of any act or omission of the behavior in the physical or mental.

 

The revision reasons:Nine six years since the criminal procedural law,The legislation, judicial interpretation are taken as manner, including: threat,Inducement, fraud, corporal punishment (descriptionAlthough this form is not complete), which are common methods in judicial practice. Through this practice, only through the use of more clear, detailed, specific examples to express the specific forms of torture to extract confessions, it may inhibit the occurrence of torture to extract confessions within certain limits, but surprisingly, the repair method for the phenomenon of torture to extract confessions are rather less, isIts legalizationThis mode of operation, or acquiescence, such regulationsLeads to poor guidance in the judicial system,This is legislative setback.

In comparison, the provisions for the defense lawyer, also is the forty-second draft amendment, together with the defense has still retained shall be "threat, inducement" witness to give false testimony. On the one hand, the most important are deleted in the provisions prohibiting torture to extract confessions; on the other hand, in the provisions for the defense lawyer, determined to retain all, this is not equal.The public opinion and the international influence of the trigger will also be great,It is suggested that the provisions.

According to the "civil and Political Rights Convention" and "Convention against Torture" to the definition of "torture" and "torture to extract confessions", and should be clearly defined in the criminal law, in line with international practice.

 

Twelve, revised fifty-first (draft article fifteenth)- the evidence

"The people's courts, the people's procuratorate,Public SecurityInvestigation of crimesOrganAnd defense attorneyThe relevant entities and individuals shall collect, obtain evidence according to law. The relevant units and individuals shall provide truthful evidence.

Material evidence, documentary evidence collection in the administrative organs in the process of administrative law enforcement,Through the judicial authorities to verify, can be used as evidenceAfter the court verified, can be used as the basis for a final decision.

Evidence involving state secrets shall be kept confidential. Those who forge evidence, hiding evidence or destroy evidence, no matter where, must be investigated under the law.

 

The revision reasons:Should confirm the investigation right defender, to increase the continuous weak defense, to promote the balance development goals, but also conducive to find out the truth.

Problems about administrative evidence, the original description is too general, which the judicial authorities to verify? Whether through cross examination? As evidence Is it right? Directly as the basis for a final decision? These problems will cause confusion in judicial practice. After modification, the usually. 

 

Thirteen, revised fifty-second (draft article sixteenth)--- Evidence Rules

"Of all cases are to be sentenced to the weight of evidence, investigation and study, not credulous. Only the confession of the accused, no otherDirect proof of the facts of the caseThe evidence, not the defendant is found guilty and sentenced to a criminal punishment; without the confession of the accused, 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) the comprehensive evidence of the case, the fact is beyond reasonable doubt."

 

The revision reasons:In many cases the practice files, in addition to the defendant's confession, there are other evidence, and even many. But the evidence is basically the periphery, indirect materials to make up the numbers, so, in addition to direct statement must have direct evidence the defendant committed a crime, shall be convicted.

 

Fourteen, revised fifty-third (draft article seventeenth)Discharge - illegal words evidence and documentary evidence

"Using torture to extract confessions 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, victims' statementsAnd after being convicted of illegally obtaining evidence for repeated verbal evidence1, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence,Seriously affect judicial justiceViolations of the rights of the citizens②, the evidence should be excluded.

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

 

The revision reasons:1, in the judicial practice, the suspect, the defendant after the first torture to extract confessions made against his own confession, often follow the wrong statement, although has not been torture to extract confessions. The judicial authorities often use this after the interrogation without torture to extract confessions from the content, basic repetitive statement is not excluded, this is obviously not good enforcement of the law, therefore it is necessary to be clear.

2, the material evidence, documentary evidence of illegal evidence exclusion, setting conditions is usually illegal acts and consequences. The act itself illegal collection of evidence, the illegal behavior caused some consequences, we can rule out the material evidence, documentary evidence. Obviously, this is extremely strict exclusion criteria. In the draft of the consequences of the conditions set for "justice", the result is almost any illegal gain can not be formed on the consequences of. This condition is not excluded, is not ruled out the possible conditions. Because any Judicial Forensics purpose is to find out the facts of the case, is to prove the facts of the crime, the objective and the results can be described as "the pursuit of justice". The reason to exclude illegal evidence, and not because of its illegal behavior is not the pursuit of justice, but because of the illegal acts of violation of the legitimate rights of citizens, which is the abuse of public power, to expand the utilization, excessive use of. Illegal evidence is to a certain "evil" behavior to pursue another possible "evil", it will destroy the maintain legal social order, and trampling on the law. Therefore, the "civil rights violations" as illegal material evidence, documentary evidence excluded from the results of the condition, it conforms to the legislative purpose.

    

FifteenAfter revising, fifty-fourth (draft article eighteen)That's the exclusion of illegal evidence obligation

"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 rectification opinions, when necessary, may 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."No investigation and verification, shall issue written opinions within three days to explain the reason, for no reason not to carry out the investigation, may appeal to the people's Procuratorate at a higher level.

 

    Additional reasons:"It shall investigate and verify the expression" is a principle, there is no specific regulations shall not long, the verification of the results and the way of relief, it is necessary to set the time, designing the relief ways and means to ensure that the people's Procuratorate, indeed, to fulfill their obligations to fulfill its mandate.

 

Sixteen, revised fifty-fifth (draft article nineteenth)- the exclusion of illegal evidence starting and relief

"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."For the exclusion of illegal evidence and the prosecution cannot provide uninterrupted, complete synchronized video; the defendant provides clues or evidence; judicial personnel to found a torture to extract confessions may be, shall suspend the original trial, the trial was torture to extract confessions, and make a ruling.

For there is no investigation, shall timely instructions, and shall be described separately in the judgment.

 

The revision reasons:The original text of the draft is not illegal evidence exclusion criteria specific to start, "the judges think may" operation difficulty is too big, the defense, the prosecution cannot grasp.

The establishment of a separate trial, as the case to trial, and the judicial circle of our country in the "on the exclusion of illegal evidence in several provisions" consensus. This is the most effective method of the exclusion of illegal evidence.

 Increase the people's court to exclude illegal evidence responsibility, emphasize the judgment reasoning, to remind the court of second instance to illegal evidence exclusion problem, as the parties through the appeal to solve the illegal evidence to provide the necessary way to exclude.

 

Seventeen, revised fifty-sixth (draft article twentieth)Witness and relief, the investigators in the court

"The process of court investigation in the legitimacy of evidence collection in, by theThe people's ProcuratorateProsecutionOn the legitimacy of the evidence collection proved.

The people's court may notify the relevant investigation or other personnelTo appear in court to explain the situationTo testify in court. The notice of investigation in accordance with the law, or other personnel shall appear in court. The investigation personnel or other personnel can requestTo appear in court to explain the situationTo testify in court."

The investigation personnel or other personnel shall appear in court and does not appear in court, should obtain evidence could not be obtained, there are serious doubts about the validity of evidence, should be excluded.

 

The revision reasons:In particular, the court's special responsibilities, the special status, completely destroyed the whole framework of criminal litigation participants. Therefore, the investigators should appear in court as a witness. The court should not have the superior "to explain the situation of the people". The identity of the witness and the duty to testify in court, has been in the "regulations concerning the exclusion of illegal evidence" to reach a consensus, should not retreat.

Judicial practice has proved in the past, if there is no remedies, no clearly defined behavior consequence, provisions in principle, no practical significance in practice. In this draft, a part of the expert witness, clearly stipulates the appraiser shall appear to testimony without court examination of the consequences, the relevant provisions of advice here from the cross examination of expert witnesses, clearly stipulate that no court in consequences, not the same is the expert witnesses and investigators distinction. Obtaining of evidence the same problems exist, such as not shall be obtained without giving access to the consequences, I'm afraid it is difficult to be executed, the legislation of little significance, the same suggestion.

 

Eighteen, revised fifty-seventh (draft article twenty-first)--- to illegal evidence of proof and standard

"For after the court,That is to collect evidence by illegal methodsThe public prosecutor does not provide evidence to prove its legitimacy to collect evidence, or evidence are not reliable enough, sufficientThere are serious doubts, or, 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."

 

The revision reasons:Fifty-sixth determine the legitimacy of the public prosecutor to collect evidence of burden of proof, but the fifty-seventh does not directly regulate the public prosecutor does not bear the legal consequences of the burden of proof, the burden of proof to dismount the prosecutor. Now to the draft, the burden of proof burden and standard of proof dislocation, never appear illegal evidence excluded cases. The direct provision of burden of proof of legitimacy of the public prosecutor to collect evidence, not up to the standard of proof in the case, the legal consequences of burden of proof is not complete.

 

Nineteen, revised sixty-first amendments (draft article twenty-third)- witness

"For the crimes of endangering national security, terrorism, organized crimes of the underworld, drug crimeIn such casesFirstly, the victim, witness testifying in a lawsuit, himself or his close relatives and personal safety risk, the people's court, the people's procuratorates andPublic SecurityInvestigation of crimesOrganShouldApproved by the provincial people's court approval,In theDoes not affect the examination of the case②,Take the following one or multiple protection measures: (a) the personal information is not public real full name, address and work units; (two) take not to expose the appearance, voice of such witness measures; (three) persons are prohibited from contacting witnesses, specific victims and their close relatives; (four) to take special protective measures for the person and residence; (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."

 

The revision reasons:1,Delete "cases", prevent to expand the interpretation practice any. The current judicial practice, the rate of appearance of witnesses is low, serious influence judicial justice, prone to miscarriage of justice. The repair method attempts to solve the problem of witness appearing in court, but the provisions herein will make the amendments of the relevant provisions of the guarantee witness at.

2, must find the right balance between the witness protection and real evidence, not because of the need for witness protection, the defendant, the defenders can not carry out quality certificate. Such provisions refer to foreign, not considering the testimony of the witness protection measures. The present Provisions, may let the defendant, the defenders weren't sure witness real existence, may let the defendant and the defendant cannot see evidence, cannot cross examine the essence, there may be a case of many or all of the need to take measures to protect the situation, there may even be to the witness protection as an excuse, hinder get witnesses to testify in court cases. Typically, the witness protection through the judicial review of the third party, in order to avoid the ratification and implementation, belong to a display fair, but to establish the judicial review system is difficult, therefore, to improve the level of provisions should be approved by the authorities, the final transition to the court.

 

Twenty, revised sixty-fourth (draft article twenty-fifth)Rules - bail

"The people's court, the people's procuratorates and the public security organ for any of the following circumstances of criminal suspects, defendants,SureShouldBail:

(a) may be sentenced to public surveillance, detention or independent additional penal apply;

(two) may 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."

 

The revision reasons: "Can" provisions in the past practice is often performed to "no", it should be prescribed as "shall be".

 

Twenty-one, revised sixty-fifth (draft article twenty-sixth)Relief - bail application

"The criminal suspect in custody, the defendant and his legal representative, close relatives, the defender has the right to apply for alteration of the compulsory measures. The people's court, the people's procuratorates andPoliceThe investigation organAfter receiving the application, it shall make a decision within three daysAnd inform the applicant; does not agree to the change of coercive measures, it shall inform the applicant, andWrittenThat the reasons for disapproval.Fails to respond within the specified time, or the applicant has to decide questions, can put forward to a higher authority."

 

The reason for the modification:The criminal procedure law, the defender can make bail application, but not specified in the receiving application decision authority in time, be how to answer. So in the judicial practice, the bail application, authorities often ignore, no news, no reply. The law, obviously the legislature from social economy, litigation economy, lower the rate of custody, pending the value of considering multiple angle, thus make favorable provisions. However, this provision does not complete, perfect. There is no clear reply in time, nor shall not reply for consequences, and remedy measures. Therefore, in the hope that further regulate.

In fact, about bail measures are adopted, shall take judicial review or ways of hearing, make decision-making authority, parties to listen to the opinions of the defender, listen to the views of the parties, but considering how set fear is difficult, so simple to regulate.

 

Twenty-two, revised seventy-first (draft article twenty-eighth)The bail - Specification for margin management

"The bail decision shall specify the bail period.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 bailThe written decision or expiration of the guarantor pending trialTo the bank for the refund of deposit."

 

Additional reasons:Avoid guarantee delivery margin long term indwelling bank cannot retrieve.

 

Twenty-three,The revised article seventy-third (draft article thirtieth)And relief - Specifications for residential surveillance

"Residential surveillance shall be carried out in the criminal suspect, the defendant's; no fixed residence, can be specified in the residence of 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 people1.

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."

Evidence obtained in violation of the provisions of the above words during the illegal evidence, can not be used as the basis for a final decision②.

 

The revision reasons:1,Residential surveillance is crime than the detention, arrest more light weak, endangering the social harm of crime and the suspects are far below the arrested suspect. This applies to endanger national security, terrorist crimes, major bribery apparently disguised secret detention, avoid twenty-four hours on the relevant provisions of the detention center.

Notify the family would hinder the investigation is give up eating for fear of choking practices. The absolute sense, in the investigation of any information disclosure are not in absolute secrecy condition. Including the investigation organ internal approval relates to insiders, car relates to drivers, even eating, cleaning personnel all may influence the absolute secret investigation.

Our criminal investigation is conducted in the normal human life order, our country still adhere to the principle of presumption of innocence, this investigation, secret level can not be in the absolute is not "interfere" with the. The suspect's right to know the family suspects litigation rights should be unconditional security, which is one of the purpose of legislation of criminal procedure law.

2,This is the right to relief provisions. The current judicial practice, torture to extract confessions generally occur in the detention center, in order to curb the occurrence be brutal and inhuman torture to extract confessions of this situation, the amendments have cudgeled one's brains. There is no such provision, is tantamount to from the places of detention at the suspect, the defendant opens a law to allow passage. For the illegal use residential surveillance, disguised by residential surveillance means from the places of detention the suspect, the defendant, to obtain confessions results shall be avoided by means of residential surveillance, detention in disguised form the suspect, the defendant.

 

Twenty-four,The revised article eightieth (draft article thirty-fifth)- the conditions of arrest

"To have evidence to prove the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance method, it is not enough to prevent the occurrence ofFollowingDanger to the society, should be arrested:.

(a) may implement the new crime; (two) the real danger endanger national security, public security or social order; (three) may destroy, forgery, hiding evidence, witnesses or collusion of the interference; (four) to the victims, informants, may take revenge against the implementation; (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."

 Reason for deletion:Deletion of the four "may" representation of the part and the front of arrest conditions inconsistent with stated, "there is evidence on 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". Four kinds of situations do not belong to have evidence to prove the facts of the crime. Such regulations may be malicious to expand in practice, namely, who said "may", it can be arrested.

The present formulation, the case handling organ can expand access to arbitrary arrest, without limitation.

The provisions of the second paragraph of the situation should be included in the provisions of the first paragraph, there is no need to separately.

 

Twenty-five, revised eighty-fourth (draft article thirty-sixth)- detention notification of family

"When the person detained by public security organs, must produce a warrant.

Arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours.In addition to not noticeExcept for not verify the identity and not noticeOr suspected of crimes of endangering national security, terrorist crimeSerious crime, notification would hinder the investigation situation may be outside,Outside, should give the reasons for detention and the place of detention, in twenty-four hours after a person has been detained, noticeAppointTheFamily membersRelatives and friends."

 

The revision reasons:In the modern information society, unable to inform the situation almost No. Just ask the suspect, contact the relatives and friends of the mobile phone, fixed phone, or friends, send the information conveyed, mail, a few minutes can be done. In practice there are no notice, notice to ordinary mail delays, some years ago ID address, not effectively notice. It should be notified to expand the scope of relatives and friends. The result is caused by the suspect was detained, arrested, families everywhere support the judicial organ interior personnel about judicial chaos. About whether the "impede the investigation" reason, please refer to the twenty-second revision opinions.

Timely notification of relatives and friends can start to hire a lawyer, can realize the detainee's right to defense, not notice is actually violated the citizen's right to defense this constitutional right.

 

Twenty-six,The revised article ninety-second (draft article thirty-ninth)- arrest notification of family

"When a public security organ to arrest people, must produce an arrest warrant.

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 mayExcept for not verify the identity and not notice,The reason and the detention shall be arrested in the premises, within twenty-four hours after the arrest, notify the person arrestedFamily membersRelatives and friends."

 

The revision reasons:See a revision reasons.

 

Twenty-seven,The revised article 114th (draft article forty-fifth)Procuratorial organs relief way -

"The party and the defender, agent ad litem, interested party considers that the judicial organs and their staff in any of the following acts, protecting the lawful rights and interests of the,The judicial organs and their staff in any of the following circumstances, violation of the parties and the defender, agent ad litem, the lawful rights and interests shall be investigated for legal responsibility. The party and the defender, agent ad litem, stakeholdersThe right to sue to the judicial organ to file a complaint or:

(a) to take coercive measures to the statutory period, not to be released, dissolution or change of compulsory measures;

(two) shall refund the bail deposit not to return;

(three), seizure, seizure of illegal raids, freezing and other investigative measures;

(four) shall terminate the seizure, seizure, freezing not to release;

(five) prevents the defenders and agents ad litem, shall perform their duties according to law.

The admissibility of the complaint or accusation shall beTimely treatmentAcceptance within three days,Give a written reply within seven days after acceptance.To handle the appeal, can be to the same level or the people's Procuratorate at a higher level appeal. The people's Procuratorate of the appeal shall beTimely examineAcceptance within three days, a reply within seven days after acceptance,When necessaryThe people's Procuratorate shallTo carry out investigation to verify the relevant situation; for the case, be corrected according to law."

 

    The revision reasons:This article is the highlight of this bill, it provides relief rights. The legislative and judicial practice, common in violation of the law of no consequence, no relief, the law pays attention to such problems, and tries to solve. But it is a pity that this stipulation obviously not operable. No provisions of examination time limit, no urgency, no clearly defined legal responsibility.

 

Twenty-eight, revised 116th (draft article forty-seventh)- limit summoned, detained

"Does not need to be arrested, detained the suspect, the suspect may be summoned to a designated place city, county lies within or interrogation to his place, but the people's Procuratorate or public security organs shall present the documents. Call, summon duration shall not exceed twelve hours; major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours.Not to continuous summons, subpoena criminal suspects into custody in disguised forms. Call, summon the suspect, shall ensure that the criminal suspectThe necessaryNormalDiet, rest time."

 

The revision reasons:The expression of contradictions. "The need to take the detention, arrest measures" provisions ", there is no need to summon summons for time shall not exceed twenty-four hours", directly to the detention, arrest can; from the judicial practice of the past, twelve hours is enough, no need to further increase. Restrictions and deprivation of personal freedom is related to the immediate interests of every citizen thing, should be treated with caution, not by the host authorities to decide.

"Necessary" how to understand? In physiology, three days without water will not die, seven days do not eat do not die. So, in the course of interrogation, three days for a drink of water, seven days for a meal, is in line with the requirements of the "necessary". But as everyone knows, this is more serious than the torture torture, our country law never in criminal law provisions on public allowed to do so.

"Normal" accord with human life habits can easily grasp. Three meals a day, eight hours for sleep, drinking water, toilet in the normal people, should be allowed to. This is a basic requirement of legal evidence.

 

Twenty-nine, revised 117th (draft article forty-eighth)- the privilege against self incrimination

"When the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him. The suspect of investigators question,Shall truthfully answer. ButIf voluntary, can answer.Irrelevant to the case, have the right to refuse to answer.

When the investigators suspect,ShouldSureTo inform the suspect confess to the law leniency."

 

The reason for the modification:The criminal procedure law and the provisions of the fourteenth amendment"No person shall be forced to prove their crimes "contradictions. This is the value orientation of the criminal law amendment. When we look at the long continuous outbreak caused by torture to extract confessions grievance, it is not difficult to find because of provisions in China's criminal procedure law, the accused has the suspects "confession" obligations, to cause the case handling organ to torture to extract confessions way to obtain the suspect, the defendant's confession. Conform to the development trend of the world from the rule of law, strengthen the protection of human rights, the rule of law to curb torture to extract confessions, thirty years of public legal culture and so on many considerations, our legislation should be "no person shall be forced to prove his guilt" as the principle of legislation, abandon leave adequate leeway "confession", is the right choice.

 

Thirty, revised 138th (draft article fifty-third)- attachment, seizure of property file

 

"Found in investigative activities may be used to prove the guilt or innocence of the criminal suspect's property and documents, shall be seized, seizure of property; irrelevant to a case, file, shall not be seized, seizure.

For the attachment, seizure of property, documents, shall be properly kept or sealed up, shall not use, exchanged or damaged."

The suspect, the defendant and his family, the defenders, other stakeholders, objection to procedures and scope of the investigation organ attachment, seizure of property and of the documents, the investigation organ shall listen to the opinions of relevant, give a written reply within three days. The investigation organ to accept advice, can appeal to the superior procuratorial organs. The investigation organ has been used, change or damage shall be compensated.

 

The revision reasons:For a long time, a lot of problems in this part of the investigation organ, and the problems of the original criminal law does not consider the channel design, relief, which makes the investigation organ preservation in law enforcement for the file for custody of property and lack of necessary attention, and even lost, damaged, depreciation, influence the production and living conditions, seriously affected the judicial organ law enforcement credibility.

 

Thirty-one, revised 143rd (not including draft)- both sides equal start identification right

"In order to find out the truth,The judicial organs, parties, defendersWhen you need some specific problems to solve in the case,ShouldSureAssignEntrustWith specialized knowledge, hire people identification."

 

The revision reasons:Recently, stripping out the judicial authentication institution shall belong to return to society, the voice is high, and some judicial authorities have identified its institutions to the society, is widely praised. Therefore, the law should be changed in the past by the case handling organ a control appraisal right situation, gives both sides have equal rights to start the identification procedures, to ensure that the expert opinion is objective and neutral.

 

Thirty-two,Revised 147th, one hundred and forty-eight, one hundred and forty-nine, one hundred and fifty, and one hundred and fifty-one amendments (draft article fifty-sixth)- Technical Investigation

 

A revised proposal:The technical investigation whole section, which comprises five, delete all.

The revision reasons:Technical investigation is carried out in what way, what kind of technology, by the investigation object, and other unrelated people have what kind of impact, no disclosure.

In the discussion of legislation, simple literally, and no negative meaning, is the use of new technology achievement performance. But the use of the technology, if can or might infringe the constitutional rights of citizens, then please proposed legislation to increase this festival at the same time to various means citizens demonstration of technical investigation, to evaluate its effect on civil rights deprived of or involvement.

If the technology used in the investigation relates to constitutional rights, it should be in the public technical investigation measures, demonstration, evaluation of evidence collection process violations of civil rights, the first amendment to the constitution. In the adoption of the constitution, namely citizen to reach all voluntary consent rights can in this way be violations of the premise, and then modify the criminal procedure law.

If the criminal law without the constitution, to establish civil rights violations by means of investigation, they violate the constitution.

 

Amendment scheme two:

(a)The revised article 147th (draft article fifty-sixth)- limited technical investigation

"The public security organs in the case, for the crime of endangering national security, terrorism, organized crimes of the underworld, major drug crimeOr otherSerious danger to society of criminal cases, according to the need for crime investigation, afterStrict approval proceduresThe Ministry of public security, security department for approval,Can adopt the measures of technical investigation.

The people's Procuratorate in the case, the major crime of embezzlement, bribery crimes and serious violations of civil power of body right use, according to the investigation of a crime,Through strict approval procedures, Approved by the provincial people's ProcuratorateCan adopt the measures of technical investigation.

Hunt is wanted or approved, and decided to arrest the escaped criminal suspects, defendants, approved, technical investigation measures can be taken to hunt the necessary. Technical investigation measures shall be executed by a public security organ."

 

The revision reasons:"The draft regulations prerequisite case", in the judicial practice for arbitrarily large. We often can see a word file description: "the masses to report, a person suspected of a crime, I decided to place the case on file for investigation, plus contractors signature". Therefore, at present the draft "case", in judicial practice is not to limit the effect.

The provisions of the draft "or other serious social crimes" can also initiate a technical investigation measures arbitrarily large. This provision is in fact all criminal reconnaissance were designated to take technical measures in criminal category.

The draft stipulates "after approval" strict, is actually set the law does not comply with the legislative specification language. "Strict" a word itself no standards, no boundaries, no operation.

The above three kinds of restrictions on the surface is the technical investigation program restrictions, but virtually no limit. There is no basis for establishing the third party or judicial review, investigation organs at all levels can be determined using technical investigation measures, it will be difficult to control, resulting in confusion.

In the judicial practice of countries around the world, most countries adopt effective measures of technical investigation on some serious violations of national sovereignty, territorial integrity, the crime of terrorism, but any country between, safeguarding national security and privacy of national security and the security of citizens to carefully choose. Therefore, in addition to the set of judicial review links, sometimes need a higher level decisions. There are no strict rules, control, will be on the technical investigation measures ordinary crime start, will cause all the citizens in a state of unrest.

 

Two.The revised article 150th (draft article fifty-sixth)- restriction of secret investigation

"In order to find out the truth, when necessary, byCountyProvinceThe public security organs at or above the level of the person responsible for the decision, by specific personnelIn accordance with the approved way, means, measuresThe implementation of secret investigation.The secret investigation for the longest period of not more than one month.The implementation of secret investigation, may induce others to crime, not methods may endanger public safety or serious personal danger. The payment of goods prohibited drugs or property crime, the public security organ according to the investigation of a crime, in accordance with the provisions of the implementation can be controlled delivery."

 

The revision reasons:The implementation of secret investigation is directly related to the common citizen's privacy, life, should use caution, strictly control. As an ordinary criminal cases, there is no need to take the secret investigation means, law enforcement to the public or excessive damage is far more than the crime itself of the damage, The loss outweighs the gain.

Here a month time limit. The draft does not stipulate the secret investigation period, which makes the power of secret investigation in the state for a long time.

In the absence of third party review, without judicial review under the condition, improve the decision-making organ level, may avoid the abuse of power within certain limits.

 

Three.The revised article 151st (draft article fifty-sixth)- to obtain evidence use restrictions

"In accordance with the provisions of this sectionFor the crime of endangering national security,Crime of terrorist activities, serious drug crimeCase,Take the investigation measures collected materials inIn this caseThe criminalLitigationActivitiesCan be used as evidence. Through the implementation of secret investigation to collect evidence, if the use of such evidence may endanger the personal safety of specific personnel, or may have other serious consequences, shall takeThe witnessDo not expose the true identity of specific personnelProtection measures, but shall not affect the hearing testimony.When necessary, by the judge in the court to verify evidence."

 

 The revision reasons:Adopt the measures of technical investigation to obtain evidence shall strictly control the use of range. Approval of specific cases to use in a particular case, the technical investigation measures and means, the obtained evidence should also be action can only be used in the case. The evidence cannot be used without conditions to expand.

Any method of collecting evidence, admissibility principles must be consistent with the evidence, shall be in accordance with the law in court testimony, to protect the defendant's right to defense.

 

Thirty-three,The revised article 157th (draft article fifty-seventh)- limit of recounting detention time

"In the period of investigation, found the suspect another major crimes, theOn the levelThe provincial levelThe investigation organ for approval, in accordance with the provisions of article 153rd of the re calculation of investigation detain deadline."

 The revision reasons:In judicial practice, the investigation organ often to find new crime extend the detention period name. At present, such as in accordance with the provisions of the draft, it is easy to re calculate the period of detention, open convenient ways to re calculate the detention period legalization. Before modifying the nine seven criminal law, our judicial practice, common extended the backlog problem, the whole society to cherish an undying, nine seven years later, this phenomenon is somewhat better, so the legislation may cause retrogression. No third party review, judicial review cases, improve the examination and approval organ level, to extend the period of detention could effectively control.

 

Thirty-four,Revised 181st amendments (draft article sixty-fourth)

"The people's court has decided to open a court session, it shall determine the members of the collegial panel, the people's Procuratorate indictment copy in ten days before the opening on the defendant. If the defendant has not appointed a defender, inform the defendant may entrust a defender, or to inform the legal aid institutions assignedLawyerProvide justification for the. In court, prosecutors, judges may convene the parties and the defender, agent ad litem,To avoid, the witness list, exclusion of illegal evidenceThe following and trial related problems, understand the situation, listen to the views of:(1) cases under the jurisdiction; (2) application for withdrawal; (3) application of illegal evidence; (4) for obtaining of evidence; (5) whether to apply summary procedure; (6) whether or not a public hearing; (7) determine the time of the session; (8) apply to notify the witness, expert witness (9;) to apply for re identification, inspection; (10) whether to postpone the hearing.

The people's courtThe public prosecutor, the defender, joint consultationDetermine the date of the hearing,If the public prosecutor, the defender has justified reasons not to appear in court, shall be separately negotiated session. Trial to determine the timeLater, should be in the three days before the opening of the session time, place to summon the litigants, notify the people's Procuratorate, notify the defender, agent ad litem, witnesses, appraisers and translators. For the open trial case, shall announce the, name of the defendant, time and location of the court session three days before opening of the court session.

These activities shall be entered in the records, by the judges and the court clerk signature."

 

The revision reasons:We should solve the pretrial conference of these problems are often encountered in the judicial practice often controversial issue, if the court later this evening, no meaning, or the court can not solve the problem. For example, the lawyer of court time conflict. In judicial practice, the judge, the prosecutor in court time or other things the time conflict, never what obstacles, solve. However, the defender in court time conflict, but seldom solve, do not even address. That most lawyers are temporary, replaced instead of hearing, or absent trial. The other problem is the same, a criminal defense lawyer for the above problems often have no chance to express their opinion, or expressed no significance of.

It is necessary to carry on research and Discussion on these problems in order to improve the efficiency of the trial before the court, the trial, let go smoothly. The criminal procedure law to solve the problem is not standardized, resulting in many problems in judicial practice, the method is defined, but it matters not comprehensive enough, therefore proposed to increase provisions.

 

Thirty-five, revised 182nd (not including draft)Supplementary provisions, public trial

"The people's Court of first instance shall be heard in public. But involving state secrets or personal privacy case, not a public hearing. For non public hearing of the case, shall not be heard in public reason announced in court."

Public hearing of the case, the people's court shall provide sufficient space for the defendant, the victim's family, friends and social the public. The people's court shall not take no seats, no space, no audit certificate is restricted to attend, or by the directional issuance of tickets, directional issuance auditing certificate quotas, restrictions on the way. The people's court shall not difficult to security, security, safeguarding the stability limit of difficulties in excuse of.

 

The revision reasons:A public hearing is the general rules of the world court cases, Chinese criminal procedure law has long pursued. But in practice, this principle has been seriously distorted in various parts of the execution. Even if the defendant relatives, audit has become a difficult thing, in the case of the so-called "sensitive", it is difficult to attend.

The court is the last line of defense of social disputes, the pursuit of justice. People look forward to seek justice path is through the court public hearing to. In recent years, the use of taxpayer money to sit in court, the threshold of repair is more and more high, the gate is becoming more and more tight, open to the public on fewer opportunities.

The court about group events can occur in court mood to understand, but the people's court should also on their fair procedures, public trial, judgment of confidence. Shut the door made in public more do not know the truth, the more excessive speculation, the more excessive association. An open court is to clarify the facts, what is the best place for non. Shut the door while court to prevent mass incidents in the court may occur, but the people are full of doubt to the army, to other government agencies the door.

A public hearing on the The defence is iron-clad. court, to have a well-equipped, numerous bailiff court, the people's court, to spend taxpayer money belonged to the citizen is not difficult, just a bit of trouble. The problem lies in the people's Court of whether or not we believe our people! The problem lies in the people's court we are willing to accept the supervision of our people!

 

Thirty-six,The revised article 186th (draft article sixty-seventh)- the witness does not appear consequences

"The 186th witness testimony has a significant impact on the sentencing, and the public prosecution has objection, parties concerned or defender, agent ad litem, or the people's court that the witness should testify in court, witnesses should appear in court.The witness should appear in court and did not appear before court testimony can not be used as the basis for a final decision.

The people's police crime witness its duty as a witness to testify in court, to the provisions of the preceding paragraph. The public prosecutor, the parties concerned or the defenders and agents ad litem, the expert opinion of objections, or the people's court that his testimony necessary, the appraiser shall appear in the court. After the people's court shall notify, identification of refusing to testify in court, expert opinion shall not be taken as a basis."

 

The revision reasons:The law tries to solve the problem of the witness appearing in court, but the present legislation stipulation is difficult to realize this goal. Although the draft in large space requirements of witness protection measures, however, is that there is no provisions of the most to the key witness does not appear in court the consequences. This is the law about the system of witness appearance of relevant provisions, most confusing, obscure, regrettable.

The draft is obviously not specified what should appear in court and no legal consequences appear in court, which makes legislation became like a slogan oath. In practice, the witness does not appear, the reason for many reasons, including: not to appear in court, do not want to appear, not to appear in court, and the case handling organ (don't let the witnesses to appear in court witness in court is not to appear in court cases often occur) and so on, if not specified does not appear in court the consequences, namely pre-trial testimony lost evidence court testimony, lose the ability to prove, there will be a lot of witness not appearing in court, can not solve the fundamental problem of the witness does not appear in court.

 

Thirty-seven, revised 191st (draft article sixty-ninth)The expert witness testimony - Supplement

"During a court hearing, the parties and the defenders and agents ad litem, shall have the right to request new witnesses, obtain new material evidence, to apply for re identification or inspection.

The public prosecutor, the parties and the defenders and agents ad litem, can have the expertise to apply to the court for an informed person to appear in court as a witness, expert opinion to put forward opinions on the identification of the.

The court for the above application, shall make a decision whether to consent.

The parties and the defenders and agents ad litem, also may entrust a specialized knowledge of court testimony in expert opinion to identify person."

 

The revision reasons:The amendments to solve in cross examination link legal professional quality certificate ability, is undoubtedly bencixiufa progress. However, this provision in practice can not completely achieve the above purpose, when the application is not allowed to relief, the draft is not specified.

Allow the parties, defenders to hire professionals involved in interrogation activities, not only reduces the burden of the people's court, and to thoroughly investigate the case. The parties should be allowed to defend themselves, hire, the people with specialized knowledge and participate in litigation activities, attend the hearing testimony.

 

Thirty-eight, revised 190th (not including draft)- added court punishment involved property

"During the court hearing, if the collegial panel has doubts about the evidence, it may announce an adjournment, carry out investigation to verify the evidence.

The people's court investigation to verify the evidence, conduct inquest, inspection, seizure, seizure, freezing, identification and query."

During a court hearing, the case handling organ shall be the litigation in the seizure, seizure, freezing financial as the conviction and sentencing facts included in the scope of the court investigation.

 

The revision reasons:Treatment of the property involved, this time in the 194th draft (seventy-first Amendment) to be clearly defined, and make up the criminal justice issue deficiency treatment. However, the grass, this part involves the umpire possessions but not included in the scope of trial. If the direct judgment according to the draft of 194th words, there will be no trial to make a judgment of the problem.

The property involved in the problem are more sensitive in the trial activities of the past, the parties concerned. If the court does not have a legitimate trial procedure. Affect judicial public faith, should be resolved by the law.

 

Thirty-nine,The revised article 207th (draft article seventy-fourth)- summary procedure restriction

"For the jurisdiction of the basic level people's court cases, also meet the following conditions, the people's court may apply summary procedure: (a) the case facts are clear, the evidence is sufficient; (two) the accused confess their crimes, the indictment alleged crime fact no objection; (three) the defendantAnd the defenderHave no objection to the application of summary procedure;(four) the defendant may be sentenced to five years in prison, detention, control, a single fine.The people's Procuratorate in the prosecution, the people's court apply summary procedure can be recommended."

 

The revision reasons:At present the draft provisions apply summary procedure is too wide, even all the case base into court were incorporated into the summary procedure.The criminal defendant cannot clearly, accurately know the summary of the content, the legal significance, more do not know the essence of the summary procedure is to give up part of the right to defense and the defense. In order to make the defendant abandon part of right of defense more legitimacy, the condition is set to: defendants and their per capita is not opposed to apply summary procedure, shall apply. Therefore, suggested in the article (three) behind a "defendant" join "and lawyer".

The simple procedure can improve the efficiency of the proceedings, but it is at the expense of justice, this is from the lawsuit theory and objective phenomenon level; on the concrete level, in the judicial practice of our country, then simple criminal case in twenty minutes or even less time concluded, are very hard to do irrefutable evidence clearly in fact, not to speak of, fully exercise the right to defense; if the said over the years, the court continued to expand, expand the expenditure amount, still can not meet the current criminal trial task, may consider appropriate to expand the scope of summary procedure, but should control in may be sentenced to five years in prison the following case range. May be sentenced to five years (including five years) above a heavier penalty cases should not be the simple procedure.

 

Forty,The revised article 211st (draft article Seventy-eighth)Safeguard of the right to defense -- the summary procedure

"Application of summary trial procedure, the defendantSureHave the right toIndictment alleged crimeAnd the suggestion of sentencingTo make a statement and defense. With permission of the judges, the defendant and his counselSureHave the right toDebate with the public prosecutor, the prosecutor and his agents ad litem."

 

The revision reasons:The range of state, defense should be carried out in two aspects including the alleged crime sentencing and punishment.

If the Licensor may debate, the defendant is not under the condition undoubtedly most debate right. The "can" to "right" to restore the defendant in court on the defense rights.

 

Forty-one,The revised article 212nd (draft article seventy-ninth)The defendant -- Summary of the rights

"Summary procedure applies to the trial of cases,Without the first section of this chapter on the deadline, interrogate the defendant, questioning the witnesses, authenticators, show under the court debate procedure evidence, limitation.HearOn the sentencing facts, circumstances and the application of criminal law, shall comply with the first section of this chapter on the interrogation of a defendant, questioning the witnesses, authenticators, produce evidence, the court debate Procedure Provisions.ButWe should listen to before the judgment is pronounced, the final statement of the defendant."

 

The revision reasons:According to the October 1, 2010 entry into force of the "guiding opinions on the sentencing procedures", the court should include two parts, one part is the conviction of the proceedings, the other part is the sentencing hearing procedures. To plead guilty, in the conviction procedure weakened after the sentencing hearing procedures, there is no reason can be simplified, should guarantee the defendant by the integrity and security of sentencing procedure rights.

 

Forty-two, 214th (revised draft involves)Rotary - Summary Procedure

"The people's court in the trial process, foundFollowingThe summary procedure is not appropriate for the trial, should anew in accordance with the provisions in Section 1 of this chapter or section second:

(a) the defendant in the trial before the end of the denial or part that control crime;

(two) the judicial officers found that all or part of the conviction facts unclear, insufficient evidence;

(three) counsel pleaded not guilty by reason and materials;

(four) other summary procedure is not appropriate for the case."

 

The revision reasons:The provisions of the present summary procedure in judicial practice to ordinary procedure is too crude, and even appears in practice no matter what the situation will not change the situation. Should not because of program coarser and deprive the defendant's right to defense, therefore need to list should be back to ordinary procedure case, increase maneuverability.

 

Forty-three,The revised article 222nd (draft article eighty-first)- second hearing system

"The people's Court of second instance to the following cases, shall form a collegial panel, trial: (a) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence objection, the people's Court of second instance that may affect the conviction and sentencingCourt of Appeals; (two) the defendant sentenced to death; (three) case protested by a people's procuratorate;(four) was sentenced to five years in prison in the case; (five) defence of the accused and their families, people request to open a court session②;(FourSix) the people's Court of second instance should consider other oral hearings. The people's Court of second instance decided not to hold a hearing, it shall interrogate the defendant, to listen to the other parties, the defenders and agents ad litem, opinions. The people's Court of second instance court hearing a case of appeal or protest, to the case or the place of the trial court."

 

The revision reasons:1,From the current draft provisions, the court of second instance is still of the second instance trial has the right to decide whether the rather arbitrary. This and other legislation bencixiufa is trying to expand the scope of the second instance court is contradictory, such provisions made for court really want to expand the trial of second instance scope question.

Once with "the people's Court of second instance that" may affect the conviction expressed, meansThe court of second instance without hearing before the first instance judgment, to the existence of conviction, sentencing, the judge. Actually, it's out of the question.The result is not illegal trial court will ever become legality,So, here should be revised.

2, the second instance being the final instance is in our country's criminal procedure law principles. This is one of the "two time trial" is a complete legal significance of the trial, and no simplification. The defendant are deprived of personal freedom and other rights, get open, fair trial is their right, but not the obligation. As long as they require the second instance trial, should unconditionally trial. For a case in which the death penalty cases to trial range is too small, in accordance with respect for the rights of the accused, hearing is comply with the principle of criminal procedure law. If you must reduce the hearing range, then a trial of more than five years felony incorporated into the scope of hearing, five years of the following (not including five years) without trial, should have been greatly reduces the number of court cases.

The defender, the defendant in some cases of second instance court application, hope, but this request because there is no legal basis and is not supported. On the contrary, it should be with the defendant equal the complaining party, protested cases, the law stipulates that should be hearing. This is also evident from the legislation, allowing the inequality between.

Criminal cases related to the defendant's personal freedom, life and property, even to the harmony and stability of the family, family, trial of second instance shall strictly execute the.

 

Forty-four,Revised 239th amendments (draft article eighty-sixth)- the death penalty review defense

"The Supreme People's court review of death penalty cases, it shall interrogate the defendant,The defendants and their relatives shall have the right to entrust defenders. The defender can meet the defendant, to copy the materials, collect new evidence1. The collegial panel shallListen to the opinions of the defender.

In the process of death penalty cases, the Supreme People's procuratorate can give advice to the Supreme People's court.②"

Procedural, entities of the people's court made the ruling in the death penalty review period according to the provisions of this law, it shall promptly notify the defendant③.

 

The revision reasons:1,Although the death penalty review procedure is not three, but in the death penalty review procedure, the defendant has the right to defense. Give the accused in the death penalty review stage right is to prevent wrong to kill, kill, kill carefully adhere to the less principle should have meaning, also is the inevitable product of the establishment of the procedure for review of death sentence.

In the death penalty, on the one hand to give the defendant the right to defense, on the other hand only in its own defence force to exercise the right to counsel, contrary to the basic principles of the procedure law allows it to get professional help, so it enjoys the right to entrust a lawyer.

The defense lawyer is basic facts, master. Only the comprehensive marking, to understand the evidence, can in fact be based on ideas presented. Otherwise, the defense attorney's opinion can only listen to the defendant's family also one-sided.

2, the death penalty review procedure is a judicial humanization progress of our results, the purpose of its establishment is on death penalty cautiously, reduce or prevent wrong to kill. Defense lawyers involved in the program, shall comply with the intention of setting up. If the prosecutor's kill, kill the opinion, it is not in accordance with the procedure for review of death sentence is set up.

3, guarantee the lawyer shall have the right to know.

 

Forty-five,The revised article 263rd (draft article ninety-fifth)- the protection of minors

"The crime of minors, the implementation of education, probation, save policy, giving priority to education, supplemented by punishmentPrinciple; in the criminal activities of minors enjoy the right of silence; the interrogation of minors shall have a guardian, legal agent or defender present; litigation activities for minors in custody shall not be normal, with the exception of detention principle.

The people's court, the people's procuratorates and the public security organs to handle criminal cases of minors, should guarantee minors to exercise their litigation rights, protection of minors legal help, and by the judges, with minor physical and psychological characteristics of the prosecutors, investigators."

 

Additional reasons:On the procedural rights of the juvenile should guarantee the basic principles of the corresponding procedure, all the countries in the world to minors suspected criminal cases to take special procedures to handle. Among them, must highlight the silence right, right of presence to protect minors in obtaining evidence of personal rights are not violated. In order to education, reform the alleged crime minors, minimize the detention principle should also attach great importance to.

 

Forty-six, revised 276th (draft article ninety-sixth)- settlement system

"To reach a settlement agreement case, the public security organ may apply to a people's Procuratorate fromWideLightAtPenaltyAdvice. The people's ProcuratorateSureShouldTo the people's court fromWideLightAtPenaltyAdvice; for minor crimes, without penalty, may decide not to initiate a prosecution. The people's courtSureAccording to the people's Procuratorate, the public security organ shall, suggestion,According to the defendant leniency"

 

The reason for the modification:Reconciliation is the best means to resolve the contradictions, in accordance with the construction of the harmonious society policy; at the same time, the parties reconciliation also helps victims receive timely compensation, compensation, avoid civil criminal trial part without the embarrassment, which effectively avoid the law, to avoid the risk of lower part of the civil judicial credibility. So, in order to encourage, promote reconciliation of the litigants, reduce and resolve social conflicts, the people's court should not be "can" leniency, but should be "shall" leniency.

The "Leniency" instead of "lenient punishment", consistent with the criminal sentencing provisions, consistent with the principles of law.

 

Forty-seven,The revised article 277th (draft article ninety-seventh)-- limit the confiscation of property procedures

"For the crime of corruption and bribery, crime of terrorist activitiesOther majorThe crime, criminal suspects, defendants escaped, appear in wanted not a year later, or criminal suspects, defendants die, in accordance with theThe criminal lawThe illegal proceeds shall be recovered and the other involving property, the people's procuratorate can put forward to the confiscation of illegal income shall apply to the people's court. The application shall confiscate the illegal income listed property types, number, location and attachment, seizure, freezing conditions, and with the relevant evidential materials. The people's court when necessary, seizure, seizure, freezing can apply for the confiscation of property."

The higher people's court to review the decision to start Foreclosure②.

 

The revision reasons:1,This should take detailed examples, not allowed to expand the explanation.

2, the provisions of this chapter is a kind of special procedures, should be the case in the judicial practice. If the intermediate people's decision to start, arbitrarily large, is not conducive to ensure judicial impartiality.

 

Forty-eight,The revised article 278th (draft article ninety-eighth)- relief of confiscation of property

"The confiscation of illegal income and other properties related to the application, byCrime orThe suspect, the defendant resides to the intermediate people's courtForm a collegial panel to conduct the trialHave jurisdiction over,Start by the higher people's court to review the decision after.

The people's court shall confiscate the illegal income after the application, shall be issued a notice. The announcement during a period of six months.

The people's court at the expiry of the notice to the confiscation of illegal income for trial. People near relatives or any other interested the suspect, the defendant has the right to apply to participate in the litigation, or may entrust an agent to participate in the proceedings proceedings.Interested party has objection to the confiscation of illegal income of an application, the people's court shall trial.

The people's courts to confiscate the illegal income for the cases, should be the court trial in public. Hearing people near relatives or any other interested seven days shall inform the criminal suspect, defendant court date, location. People near relatives or any other interested the suspect, the defendant may entrust an agent ad litem in litigation."

 

The revision reasons:In judicial practice, the criminal trial of cases where the property to ascertain the property scope, nature, attribution, dispute and so on, easy to understand the criminal of the social environment and background, fully evaluated and predicted social consequences for disposal of property caused, does not affect the society, people around the production life. If the "crime" of court jurisdiction, first error terms of unaudited crime, interference may be followed to protect local interests, departmental interests, local, not conducive to creating a harmonious and stable social environment. In the judicial practice in different places, different witnesses are suspected of a crime, after a year as a fugitive wanted by the pre condition, you can start the disposal of property procedures, lest cause random start the disposal of suspects, witnesses and property in practice.

The confiscation of illegal income case, is a new program, the purpose is for corruption, bribery case the parties after the escape, even fled the country. In view of this situation, a public hearing is clearly on the legal system publicity, the corruption of deterrence, therefore, put up a pageantry open trial is consistent with the legislative intent, should not be tried in secret. This kind of case is special, because the parties do not appear in court, the property belongs to the possible existence of multiple dispute. If you don't give the suspect, the defendant's near relatives, interested persons to defense the opportunity to deprive them of their property, is not only unjust, also has the black box operation too. Therefore, only the open trial, allowing it to hire professionals to participate in the trial, the testimony, according to the law, after the debate, to be open, fair, penalty without according to, can maximize the social contradiction, the grievances. Avoid secret trial, rapacious too.

 

Forty-nine,The revised article 281st (draft article ninety-eighth)- limit compulsory medical program

"The mental patient violence endangers public security or cause death, serious injury, upon verification and confirmation through legal procedure, do not bear criminal responsibility according to law, continue to harm society possible, the people's court mayIn accordance with the provisions of this chapter programDecision of compulsory medical."

 

The reason for the modification:Without appropriate procedures, cannot directly decide the compulsory medical. Coupled with restrictions,Avoid starting compulsory treatment, decided to compulsory treatment at.

 

Fifty,The revised article 282nd (draft article ninety-eighth)- compulsory medical relief program

"The mental patient to the violence of the compulsory medical treatment, by the people's Procuratorate applying to the people's court. The people's court shall form a collegial panelTo hold courtTrial, for the respondent comply with the compulsory medical conditions, can make the compulsory medical decisions. The people's court in the case was found during the defendant comply with the compulsory medical conditions, can be directly to make mandatory medical decision.

The people's court compulsory medical case, it shall notify the applicant or the legal representative of the defendant at.

The defendant or respondent is entitled to a defender or agent ad litem at trial. The defender or agent ad litem may apply to the court for notification, also can hire their own, have specialized knowledge may appear as a witness, on whether it should be made compulsory medical advice.

In the decision of a people's court compulsory medical treatment, can be the applicant or the defendant to take protective measures to restrain."

 

The revision reasons:The procedure involves the respondent or defendant are deprived of their liberty and freedom from major issues of criminal responsibility, it shall hold a hearing, should not be tried in secret.

Relates to the respondent, the defendant are deprived of the problem, it should have the right to hire professional lawyers to defend, agent of its exercise, the trial defense of justification, to participate in the litigation rights activists. The procedure involves specialized mental illness science, should be introduced into the system of expert witness, so as not to force judge whether to belong to mental illness medical professional judgment. The expert witness in the trial, the final decision has more credibility.