Jia Huiping lawyers: Loudi (nine)

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 Today is December 6, 2013, the Hunan province Loudi City Intermediate People's Court of appeal Liu Yibai accused of organization and leadership in the organization with underworld society crime trial in eighth days.
   The author in this case as the appellant Liu Weichang defense lawyers participate in today's hearing, the court hearing today which is by the appellant's lawyer on the appellant Liu Yong (old Yong), to ask Liu Liping's defense lawyer, today the court trial is striking one snag after another, quite dramatic, so that each one legal person we have to think deeply the legal problems that occur during the.
   The following is my thinking on the law problems encountered in the process of today's hearing and on the part of the trial process.
   One, before the court
   At eight thirty in the morning, the Hunan Shuangfeng court. When the court announced the start of Liu Yibai accused of organization and leadership in the organization with underworld society crime continues to sit when, motioned to court hands as Yang Jinzhu lawyer first defense lawyers the appellant Liu Yibai, asked to speak. The judge allowed to speak, Yang Jinzhu lawyer told the court solemnly put forward three requests:
First, the collegial panel shall be requested Loudi city Hunan Provincial Commission for Discipline Inspection of the double investigation in the process of "interrogation" and synchronous recording data of the appellant in Liu Yibai, and that the evidence is very important for the appellant Liu Yibai's conviction. After a collegiate court, make the interpretation to Yang Jinzhu counsel. The court: the Court Reply in court after the then inform the results.
   Related materials, second Yang Jinzhu lawyers asked the court to allow it to Loudi city of Hunan province Loudi City Commission for Discipline Inspection Commission for Discipline Inspection. The formation of the appellant Liu Yibai double gauge during. The collegiate court allowed Yang Jinzhu to withdraw from big lawyer investigation.
   Third, Yang Jinzhu counsel then told the court that, given the existence of severe torture to extract confessions behavior, the court did not appeal is not all defendants to appear in court the pretrial confession to ascertain the facts of the case is very important, in particular to the appellant Liu Yibai was wrong as the organizational leadership organization with underworld society crime cases in fact, Yang Jinzhu lawyers asked the court of appeal will not absent defendants summoned to court for lawyers, prosecutors, court questioning and interrogation, proof and examination in order to find out the facts of the case. For this problem, the court after agreeing, reply to the afternoon.
   For the third question Yang Jinzhu lawyer proposed, has explicitly stipulated in the present criminal procedure law in Chinese.
   "Criminal Procedure Law of the people's Republic of China" the 222nd stipulation: "the people's Court of second instance shall conduct a comprehensive review on the first trial of facts and the application of the law, not subject to appeal or protest range limits. Joint crime is only part of the defendants appeal, shall examine the case, together." "The Supreme Court on the application of criminal law interpretation" 323rd third clearly stipulates: "hearing a case of appeal or protest, can focus on the judgment of the first instance, ruling controversial or questionable parts. According to the circumstances of the case, can be heard in accordance with under way. (three) the defendant does not appeal to people in the trial of cases, has not been applied in court or the people's court that there is no need to appear in court, can no longer be summoned to appear in court." The Yang Jinzhu lawyer as first the first defender in court to the court, asking the court to appeal for not absent defendants to appear in court has been identified in the case of the facts of the case, the appellant Liu Yibai snow was planted grievances.
   I think, not without appeal to the defendant of the original judgment as to be identified as important personnel to participate in the crime syndicate, it has not been the second instance court after hearing procedures identify verification of pretrial confession and the confession, not facts as the two validation cases in principle, and therefore not appeal not if the defendants should be the second instance court summons to appear in court for trial.
   For example, in this case, is the verdict award in sixth place at the defendant Liao Yuexiang, the defendant Liao Yuexiang was the verdict in judgment which constitutes the crime syndicate, the crime of misappropriation of funds, the crime of false capital contribution, withdrawing capital crime, crime of the crime series bid five, merge the implementation of the eight years, which participate in the underworld crime for five years, the judgement that the defendant Liao Yuexiang "in Liu Yibai arrangements, to take over all the affairs of a company in 2005, who charge a company management fees, newspaper building fees, for Liu Yibai and for their own use, Liu Yibai Management Engineering construction and construction, as Liu Yibai and other organizations engaged in a large number of colluding in the bidding, illegal and criminal activities, as Liu Yibai and other members of the organization to seek illegal economic interests and illegal control of the local construction industry has played an important role, the criminal underworld organization specific department in charge of construction project transaction, which belongs to the active participant."
The current law about the composition of Chinese organization and leadership in the crime syndicate in the first (two) stipulates clearly "to obtain economic benefits through illegal and criminal activities or other means, has a certain economic strength"; (four) the provisions "in a certain area or a range of industries, using violence, threats, harassment and other means, wantonly blackmail and impose exactions on, dominate the market, affray, defiance and affray, intentional injury and other illegal and criminal activities, serious damage to the economic, social life order." Visible, one of the key factors of organizational leadership in the organization with underworld society nature is economic characteristics, without appeal not to appear in court the defendant Liao Yuexiang have been identified as an important figure in the trial court No. fifth in the organization with underworld society crime, in order to find out the facts of the case, to suffer an unjust grievance grievances of the white in the world Yang Jinzhu, the barrister of the application, the court shall be ratified.

 Two, whether the investigators can attend the problem.
   (a) study investigators could not attend the court.
   In the case of the trial, the trial lawyer Chen Guangwu to long pointed out that, according to family members to identify, in the court of the gallery is the case investigation agency interrogators to attend, and the investigators lawyer to apply to the court for a court has on the appellant behavior of torture to extract confessions of investigators. The inspectors raised protest, state law has not stipulated the investigation organ shall not be allowed to attend, be allowed to attend. At this time, Chen Guangwu's lawyer protested, all defense lawyers were raised in protest. The court verdict: instant court does not welcome the investigators attended the court hearing, announced a temporary recess to end the debate between the dispute.
   For this problem, the author thinks, the defense lawyers to the court for the court statements once for the investigation of the case shall be tried in court personnel.
   Legal basis: first, on the basis of the Constitution and the criminal procedure law Chinese China, Chinese criminal procedure is the implementation of the public security organs, people's Procuratorate, the people's Court Division of responsibilities, cooperate with each other, each other's work principle, figuratively speaking, the three house organ is the assembly line procedures. The court is hearing the case to the public security organ as a member of the criminal proceedings, there is no legal interests and not with the court is hearing the case (the fact and law), especially the direct interrogators have direct relation to legal interests, perhaps was the torture torture the criminal responsibility. Auditors should be without any legal interest in the case of personnel, only to judicial openness and easy to supervise, it is the basic principle, but also the basic legal principle. Thus see, once in charge of the case investigation personnel shall not sit in court.
Second, have to undertake the case investigators can be used as the court Gallery, belong to the scope of public law, because had to undertake the investigation personnel identity belongs to civil servants, their behavior when the public law restrictions, this is adjusted for the procedure, when the "law without explicitly stipulates that must not be" principle. When the law is not had to undertake the investigation personnel can sit in the case, especially in the case whether can act people suspected of torture to extract confessions when the trial regulations, undertake the investigation personnel should according to this Law shall not sit in.
   Legal basis: first, the June 13, 2010 law (2010) No. 20 by three houses "about some problems of exclusion of illegal evidence in handling criminal cases seventh regulations" clearly stipulates: "after examination, the court has doubts about the legitimacy of the defendant confession made before the trial, the public prosecutor shall provide the transcripts of interrogation, interrogation the process of recording the original or other evidence to the court, the court notice to interrogation personnel or other witnesses, still can not rule out the suspicion of torture to extract confessions, submitted to the court told interrogators to testify in court, to prove the legitimacy of the confession made. In accordance with the law to inform, interrogation or other personnel shall appear in court to testify." Investigators now testify, its identity should be considered as a witness is "quasi witness", of course, the current effective laws not to "witness" to carry out the provisions. The legal perspective, the rights and obligations of the "quasi witness" the identity of the person should be consistent with the rights and obligations of witnesses, from this point of view, to undertake the investigation personnel is not actively attend the court, only to be told the court can only passively to participate in the trial, of course not to attend the trial of the case the author does not agree with the identity, the investigators as a witness.
   Secondly, on the basis of China "criminal law" 247th stipulates: "the judicial personnel of criminal suspects, defendants by torture to extract confessions or the use of force to extract testimony, is less than three years imprisonment or criminal detention, death, disability, in accordance with the provisions of this article 234Th (intentional), 232nd (intentional homicide) be convicted and given a heavier punishment." China "Criminal Procedure Law" fifty-fifth and "provisions of the Supreme People's Procuratorate on malfeasance crime cases on file standards", "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, it shall put forward rectification opinions, which constitutes a crime, shall be investigated for criminal responsibility according to law." Therefore, the implementation of torture to extract confessions of investigators was a defense lawyer shall apply to the court to explain the situation to inform the parties, interrogation investigators behavior is to may have been suspected of violating criminal law, will become the crime suspect to torture to extract confessions, may become suspect interrogation personnel, the court could allow it to participate in the courtroom? Do not give a series the investigators and faked evidence of chance, the court should avoid suspicion.
   Thirdly, on the basis of Chinese "Criminal Procedure Law" the 101st stipulation: "the court decided to investigate the legality of evidence collection, by the public prosecutor, read by showing the interrogation record or other evidence, to play the interrogation process of recording, to the court notice or other personnel to the investigation methods such as, prove the validity of evidence collection." By the law of criminal procedure, the visible, at this point, although the investigators to court "witness" to "explain", but as the investigation stage to the interrogation of the behavior person already by the time of the public power -- law enforcement transposition for the court examine and verify object, such as the object, review how can the court of audit?
   (two) the Supreme People's court should be clear as soon as the investigators in the court process identity as well as its rights and obligations.
   "A regular speech is not suitable, the words will not ring is impossible", for investigation of cases of interrogators during the trial has not yet been defined by legislation status. In criminal proceedings, the parties have been implementing the behavior of torture to extract confessions of personnel, its identity to identity, investigators suspect, a witness, witness the four argument. The State shall immediately legislation to clear their identity, to determine the rights and obligations.
First, I do not agree to investigators as a witness and inform its legitimacy to attend court investigation evidence.
   China criminal procedural law forty-eighth stipulated the meaning and types of evidence is not stipulated in the investigators, investigation personnel to appear in court for "note" from the theory of direct evidence and indirect evidence, more like an indirect evidence passed. Proof evidence to directly whether or western countries law of evidence the law of evidence in the Chinese, unable to verify its authenticity, generally do not recognize its probative force. If the provisions for the witness, in the future will have a contradiction for legal criminal responsibility of the crime of torture to extract confessions when.
   Second, the author does not agree with the identity of the suspect as, for this identity, do not need to do too much to explain. Determination of crime suspects torture to extract confessions is the exclusion of illegal evidence in court, the Interrogator's torture to extract confessions behavior as well as the consequence of the results, there is No.
   Thirdly, the author does not agree to be called quasi witness. Investigators in the court case in court in the process, still should be regarded as the public power, is only to explain the situation, how is the "witness" identity?
The author thinks, should determine the investigators at the trial stage still have investigators identity.
   The reasons are as follows: first, the current criminal procedure law explicitly illegal evidence exclusion rules of three houses in the "witness" to "explain", shows that the state law has to investigators in the court in the course of the subject identity defined clearly. Second, the investigators in the court to explain the situation, that Chinese criminal the progress of the rule of law, strengthen the respect and protection of human rights of the parties. Third, by the investigators to attend court legitimacy of investigation behavior to explain and accept the plea vet three questions, in order to achieve the rule of the illegal evidence the reactionary, investigation behavior with secrecy public sun judicial review, judicial jurisdiction prominent authority, greatly to avoid the incidence of miscarriages of justice, it can be seen China judicial power further independent, further strengthen the judicial authority, but still need to be made by the Supreme People's Court issued a judicial interpretation to be relevant to further clear.
   

 The court of appeal, court of the three people Liu Liping.
    (a) the appellant Liu Liping background
   The appellant Liu Liping, born in November 20, 1977, culture of junior high school, Xinhua County Mei Zhen Huang Ni Ao village 13 groups, for the crime of intentional injury in 2000 March by the Xinhua court sentenced to five years in prison; in 2007 by the Xinhua court sentenced to two years in prison for illegal possession of firearms, ammunition; January 13, 2011 due to stir up trouble crime arrest. The verdict of judgment, the appellant Liu Liping participate in the underworld nature organization crime, the crime of intentional injury, assembling a crowd to disturb social order, crime of the crime of opening casinos, with implementation of a nineteen year term of six months, of which the appellant Liu Liping participate in the organization with underworld society crime of sentencing for five years. The original judgment "directly under the defendant Liu Zhibin has accused Yuan Xiongbin, Liu Liping, Xiao Weihua, Liu Wu, Ceng Shaoming, Liu Haichang et al." "The defendant Liu Liping affray crime since 6, the crime of disturbing social order 1 times, 1 times the casino."
   (two) the process of trial, the defense lawyer Zhang Danjie, famous cross questioning, the appellant Liu Liping cry and shed bitter tears to court accused the investigators to be brutal and inhuman torture to extract confessions of the implementation of the act, the court statement the confession made in the investigation stage are not true.
   The Liu Liping statement, the investigation organ illegal torture to extract confessions behavior on the appellant Liu Liping cause severe damage. When Zhang Danjie asked the lawyer to torture to extract confessions, you no to the relevant departments in charge and reflect? The appellant Liu Liping to the court of the place of custody custody during told prosecutors in the prison of the investigation organ torture to extract confessions in the plot, the prosecutors said, this is a political case, he did not dare tube, also don't tube.
   Due to the current our country to torture to extract confessions behavior investigation organs still tolerate certain, illegal evidence exclusion program started just passable effect of excluding illegal evidence.
   Our country the rule of law and human rights construction it is necessary to further strengthen the matter of fact, prove that our investigation organ of state which has serious problems, one is the investigation organ is necessary to change the concept, should the number of cases to be converted to the quality management on the case, "Ning on the longitudinal one not wronged One", the modern idea of rule of law it is necessary to popularize; the second is the investigation of the investigation organ measures need to be improved, in this case, we don't see the use of technical investigation measure the investigation organ, accused the appellant Liu Yibai as well as other appellant organization and leadership in the organization with underworld society nature of evidence is almost the testimony of witnesses and the pretrial confession, so therefore, the investigation of the investigation organ level is questionable. The third is the implementation of the "zero confession principle" immediately read on various criminal cases investigation should the investigation organ in the current technology allows the case, especially if the case was accused of organization and leadership in the organization with underworld society nature, only in this way, can appear the investigation organ for handling level, in fact, "the implementation of zero confession principle" should be a reflection of investigative organs handling cases of high level and high quality overall.
   The above is the today's hearing summary record, please advice given.