The protection of rights of the new criminal procedure law

A, increases the victim and his litigation representative litigation rights.

The new criminal law in 1996 "Criminal Procedure Law" (hereinafter referred to as the 96 CPL) basis, more to give the victim and his agent ad litem to actively participate in the lawsuit, mainly for:

1, give the legal agent right for challenge and corresponding reconsideration right.

The 96 criminal procedure law established the victim has the right to apply for withdrawal of judicial personnel involved in handling cases, prosecutors, investigators and identification of human hearing in court and translators, for withdrawal, and the right to apply for reconsideration. But these provisions only give victims the right to challenge and I have the right to review, which means that the victims' litigation agent shall not be entitled to commission on its behalf to exercise these rights. In order to make the better to exercise these rights, the new criminal procedure law increased litigation representatives shall have the right to demand avoidance, apply for reconsideration.

2, the victim's right to a statement.

According to the provisions of the 96 criminal procedure law, procuratorate to examine the case, shall heed the opinions of the victim. But in the judicial practice, whether the procuratorial organs listening is difficult to review, this provision is often a mere formality. For the protection of the rights of victims, increase the provisions of the new criminal procedure law, the procuratorial organs to the victim and his litigation representative opinions, must be documented, for the victims and their legal representatives to submit written opinions, must be attached.

3, give the victim's participation in the court trial related litigation rights.

According to the 96 Criminal Victim Procedural Law establishes a series of procedural rights in court. The new criminal procedure law also giving the victim and his agent ad litem in court have the right to request the court to be excluded to illegal methods to collect evidence, have the right to have the expertise to apply to the court for notification of the court, make comments on the appraisal opinions of experts, so as to better protect the victim's participation in the relevant rights court.

4, give the agent ad litem timely judgments of right.

According to the provisions of the 96 criminal procedure law, the court is obliged to declare the decision within five days after the decision in writing to the victim. But in the judicial practice, the victim for various reasons are unable to receive timely judgments have occurred, thus affecting the exercise of the right of claim of protest. Therefore, to increase the provisions of the new criminal procedure law, the trial verdict except to the victim, it must also serve the litigation agent.

5, give the agent ad litem for judicial organs to hinder its litigation rights of appeal, the right of complaint.

96 criminal law promulgated, in judicial practice, the judicial organs of victim repeatedly blocking agents exercise related litigation rights, this is very unfavorable for the protection of victims of the litigation rights. Therefore, the new criminal procedure law special provisions, litigation agent that judicial organs and their staff impede their exercise their litigation rights according to law, have the right to sue to the same level or on a procuratorate to file a complaint or.

 

Between the two, litigation agent and the rights of defense counsel imbalance.

1, agent ad litem intervening time lags behind the defense lawyer.

The new criminal law for the protection of the litigation rights of the criminal suspects, defense lawyers involved in the lawsuit time from the provisions of the criminal procedure law of 96 stage of review and prosecution to the stage of investigation, the suspects from the first interrogation or coercive measures taken to date have the right to appoint counsel. Defense lawyers from the investigation began to stage has the right to ask the criminal suspect, and provide legal services to the corresponding. But the new criminal procedure law for the agent ad litem intervening time did not make a corresponding adjustment, that is to say, the victim in the stage of review and prosecution has the right to entrust agents ad litem. This further imbalance between the suspect and the victim's rights and interests. For the type of property crime in the victims, as the key to the booty work is largely decided in the investigation stage, so the agent ad litem intervention time delay can cause adverse effects on the.

No access to the case file 2, the litigation representative of course right.

The new criminal law for the protection of the litigation rights of criminal suspects, the lawyer read the material rights made adjustments to the criminal procedure law, defense lawyers in the prosecution can only read technical material identification andThe legal documentModified to read all the materials. But the new criminal procedure law has not stipulated agents ad litem, whether also to have the right and the lawyer read all the materials.

The Supreme People's Procuratorate issued in 2012 "the people's Procuratorate criminal procedure rules (Trial)" fifty-sixth stipulates clearly, litigation agent to read the materials, must be approved by the procuratorial organs of the license. This means that the legal agent does not require reading materials in the case of rights, whether it can marking, the decision is the case handling organ. In judicial practice, requires permission to scoring, often means that will be difficult to obtain consent in general litigation representative marking request. That is to say, only the equivalent of civil defense counsel marking the right outside the agent ad litem, even less than the 96 criminal law defense lawyers have read part of the evidence material rights. Obviously, the new criminal procedure law of unilateral increase in the litigation rights of criminal suspects, but maintain the same approach to the corresponding rights and interests of the victims, and further aggravate the imbalance between the interests of both sides.

 

Attached: the main rights of victims and their legal representatives under the new criminal procedure law

Criminal procedure law.

Article sixth the people's courts, the people's procuratorates and the public security organs in conducting criminal proceedings, must rely on the masses, must take the facts as the basis, take the law as the criterion.

The fourteenth people's court, the people's procuratorates and the public security organs shall protect the suspect, the defendant and other participants in the proceedings shall have the right to counsel and other litigation rights.

Article thirty-first the law agent may request the withdrawal, apply for reconsideration in accordance with the provisions of this chapter.

The forty-fourth victim in a case of public prosecution and their legal representatives or near relatives, the party in an incidental civil action and the legal agent, since the date of the case is transferred for examination before prosecution, have the right to entrust agents ad litem. Cases of private prosecution and their legal representatives, the party in an incidental civil action and the legal agent, has the right to entrust agents ad litem.
 The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, it shall inform the victim has the right to entrust agents ad litem. The people's court after accepting a case of private prosecution, within three days, it shall inform the prosecutor and his legal representative, incidental civil action shall have the right to entrust agents ad litem.

Article forty-seventh the defenders and agents ad litem, think that the public security organs, people's Procuratorate, the people's court and its personnel impede their exercise their litigation rights according to law, have the right to sue to the same level or the people's Procuratorate at a higher level to file a complaint or. The people's Procuratorate to appeal or accusation shall timely carry out the examination, is the case, notify the relevant authorities to rectify.

The fifty-sixth 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.

Article 106th the following terms used in this Law means:

(a) "investigation" refers to the public security organs, people's procuratorates in the process of handling cases, in accordance with the laws of surveys and compulsory measures;

(two) "parties" means the plaintiff victim, private prosecutor, criminal suspects, defendants, and defendants in incidental civil actions;

(three) "legal representative" refers to an agent's parents, foster parents, guardians and bear the responsibility to protect organs, representative group;

(four) "participants in the proceedings" means the parties, legal representatives, agents, counsel, witnesses, appraisers and translators;

(five) "agent" refers to the victim in a case of public prosecution and their legal representatives or near relatives in a case of private prosecution, the prosecutor and his legal agent entrusted to participate in litigation of the people and the party in an incidental civil action and the legal agent entrusted to participate in litigation;

170th people's Procuratorate the case, shall interrogate the criminal suspect, to listen to the defendants, victims and their legal representatives, and record. The defender, the victim and his litigation representative put forward written opinions, shall be attached.

Article 182nd 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 and his counsel.

In court, prosecutors, judges may convene the parties and the defender, agent ad litem, the challenge, the witness list, exclusion of illegal evidence and trial related problems, understand the situation, listen to the views of.

The people's court shall determine the date of the hearing, the hearing time, place to summon the litigants, notify the people's Procuratorate, notify the defender, agent ad litem, witnesses, appraisers and translators, summons and notices or served in the three days before the opening of.

Article 186th the prosecutor read the bill of prosecution in court, the defendant, the victim may make statements on the indictment accused of the crime, the public prosecutor may interrogate the defendant.
 The victim, incidental civil lawsuit plaintiff and defender, agent ad litem, with the permission of the presiding judge, put questions to the accused.

Article 187th the parties or their agents ad litem to witness testimony has the objection, and the testimony of witnesses have a significant impact on the sentencing, the people's court that the witness should testify in court, witnesses should appear in court.
  The parties or their agents ad litem to expert opinion has the objection, 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.

Article 188th notified by the court, the witness did not testify in court without justified reasons, the people's court may enforce the court, but the defendant's spouse, parents, children.

The 189th witness testimony, the judges shall inform him to faithfully provide legal testimony and intentionally giving false testimony or conceal evidence to negative. The public prosecutor, the parties and the defenders and agents ad litem, with the permission of the presiding judge, may question the witnesses, authenticators. The presiding judge considers any questioning irrelevant to the case, shall stop.

192nd 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 notification of the court, put forward the views of expert opinion to identify person.

The 193rd party and the agents ad litem may comment on the evidence and the case and may debate with each other.

The people's Court of second instance decided not to court, to listen to the other party and agent ad litem opinion.

196th declaratory judgment, are open to.

The court judgment, shall within five days of the judgment to the parties and the people's Procuratorate; regular declaratory judgment, shall be declared immediately after the verdict will be served to the parties and the people's procuratorate. Judgment shall be delivered simultaneously to the defender, agent ad litem.

218th victims and their legal agents against the decision of first instance of a local people's courts at various levels, within five days after receiving the written judgment, have the right to request the people's procuratorate. Within five days after receipt of the victim and the people's Procuratorate legal agent request, shall make a decision whether to appeal and give him a reply.

"Interpretation of the Supreme People's Court on the application of people's Republic of China Criminal Procedure Law >"

Interpretation (2012) No. 21

Article thirty-fourth the law agent may request the withdrawal, apply for reconsideration in accordance with the relevant provisions of this chapter.

Article fifty-fourth the people's court shall within three days of the private prosecution, shall inform the prosecutor and his legal representative, incidental civil litigation parties and their legal representatives, have the right to entrust agents ad litem.

Article fifty-fifthParty entrusts an agent ad litem, with reference to the provisions applicable law of criminal procedure and the thirty-second to explain the.

Article fifty-sixthAgents ad litem shall have the right according to the facts and the law, safeguard the victim, private prosecutor or incidental civil litigation rights and other lawful rights and interests.

Article fifty-seventhWith permission of the people's court, agents ad litem may consult, extract, copy the file material.

The lawyer serves as an agent ad litem, need to collect, obtain evidence relevant to the case materials, the interpretation of the provisions of fifty-first to fifty-third for reference.

Article fifty-eighthAn agent ad litem accept party entrusts or assigned legal aid agencies, shall within three days will entrust formalities or legal assistance procedures submitted to the people's court.

Article fifty-ninthThe defenders and agents ad litem, copy materials in the case, the people's court only charge a fee; legal aid lawyer copying the necessary files material, shall waive or reduce the cost.

Article ninety-ninth before the hearing, the parties and their counsel, litigation agent for the exclusion of illegally obtained evidence, the people's court after examination, have doubts about the legitimacy of evidence collection shall be in accordance with the provisions of article second, paragraph 182nd of the criminal procedure law called before the court session, on the exclusion of illegal evidence to understand the situation, listen to the views of. The people's procuratorates can produce relevant evidence materials, explained to the legitimacy of evidence collection.

 

182nd before a court session, the people's court shall proceed with the following work: (three) notify the parties, legal representative, the defenders and agents ad litem, five days before the hearing of witness, provide identification lists, and quasi court evidence; for the witnesses and expert witnesses, with specialized knowledge appearing in court, shall list the relevant personnel name, sex, age, occupation, address, contact method; (five) three days before the hearing will summon the litigants summons and notify the defender, agent ad litem, legal representative, witnesses, appraisers to appear in court notice;

183rd cases with one of the following circumstances, judges can be called before the court session: (a) the parties and their counsel, litigation agent for application of the exclusion of illegal evidence;

Article 193rd the presiding judge shall inform the parties and their legal representatives, the defenders and agents ad litem, shall enjoy the following rights in the process of trial:

(a) may apply for the members of the collegial panel, the court clerk, the public prosecutor, judge and translators to avoid;

(two) may present evidence, witnesses, take notice of application of new evidence, to apply for re identification or inspection, inspection;

(three) the defendant can defend oneself;

(four) the defendant may be the last statement in court debate end.

Article 194th the presiding judge shall ask the parties and their legal representatives, the defenders and agents ad litem, if apply for withdrawal, for whom the avoidance and grounds for a challenge.

Article 195th the presiding judge announced that the investigation after the start, should the prosecutor read the indictment; have the incidental civil action, the plaintiff of the supplementary civil action or his legal representative, agent ad litem read with the civil complaint.

Article 198th the agents ad litem may have public prosecutor interrogating criminal facts supplementary questions; plaintiff of the supplementary civil action and the legal agent, the agents ad litem may have incidental civil part of the facts to question the defendant.

Article 202nd the public prosecutor may appeal to the judge to inform the witnesses, testimony, or produce evidence. The victim and his legal representatives, agents ad litem, plaintiffs of the supplementary civil action and the agents ad litem may also apply.

In the prosecution evidence, the defendant and his legal representatives, the defender may request the judge to inform the witnesses, testimony, or produce evidence.

Article 205th the public prosecutor, the defender, agent ad litem or on the testimony of witnesses have objections, and the testimony of witnesses have significant effect on the conviction and sentencing, or has any objection to the expert opinion, filed for court to inform the witnesses, expert witnesses in court, the people's court considers necessary, shall notify the witness, the appraiser cannot notice; or the witnesses, authenticators refuses to appear in court, it shall timely notify the applicant.

Article 217th the public prosecutor, the parties concerned and the defenders and agents ad litem, apply to the court for notification of a specialized knowledge appearing in court, puts forward the suggestion of expert opinion, the reasons shall be explained. The court considers necessary, shall notify the specialized knowledge appearing in court.

222nd a court hearing, the parties and the defenders and agents ad litem, apply to summon new witnesses, collect new evidence, to apply for re identification or inspection, shall provide the witness's name, location of the evidence, explain to prove the facts of the case, the request to the identification or inspection reason. The court considers necessary, shall agree, and announced the postponement of the hearing; do not agree, it shall explain the reasons and continue the trial.

Article 239th the court record shall be read to by the parties, legal agent after the trial.

324th the second instance shall not hold a hearing, the other parties, agents ad litem shall listen to the opinions of.

The 388th court of retrial cases, the complainant complaint system, by the complainant or the defenders and agents ad litem, stating the grounds for the appeal.

473rd minor victims and their legal agents due to financial difficulties or other reasons not to entrust agents ad litem, the people's court shall help the application for legal aid.

 The Supreme People's Procuratorate criminal rules "(Trial)"

 "The people's Procuratorate rules of criminal procedure (Trial)" has been adopted by the Supreme People's Procuratorate Procuratorial Committee of the eightieth meeting of the eleventh session on October 16, 2012, is hereby promulgated, shall enter into force as of January 1, 2013.

Article thirty-third the law agent may request the withdrawal, apply for reconsideration.

Article fifty-fifth the procuratorate after receiving the case transferred for examination before prosecution within three days, it shall inform the victim and his legal representatives or their close relatives, the party in an incidental civil action and their legal representatives shall have the right to entrust agents ad litem.

Fifty-sixth the permission of the people's Procuratorate, agent ad litem consulting, extract, copy the case file materials.

Article fifty-seventh agent ad litem thinks the public prosecution, and its staff has the following impede their exercise their litigation rights in accordance with the law, can sue to the same level or the people's Procuratorate at a higher level to file a complaint or.

Article 253rd expert opinion, the case handling department of the people's Procuratorate shall notify the victim. The victim to apply, with the approval of the chief procurator, can complement the identification or re identification, identification of costs borne by the requesting party, but the original identification in violation of legal procedures, shall be borne by the people's procuratorate.

364th people's Procuratorate shall hear cases, the victim and his litigation representative opinions, and making a record attached.

Article 413rd the decision not to initiate a prosecution shall be served on the victims or their close relatives and his agent ad litem. On arrival, shall inform victims or their close relatives and his agent ad litem, if not satisfied with the decision sorry v., after receipt of the decision not to initiate a prosecution to the people's Procuratorate within seven days after an appeal, can also be without complaint, directly to the people's court; inform the person who is not to be prosecuted, if not satisfied with the decision sorry v., self seven days after the receipt of the decision not to initiate a prosecution petition to the people's Procuratorate within.