[note] Loudi lawyer Jia Huiping (sixteen)

    Http://blog.sina.com.cn/s/blog_8fe4bc7b0101kl2w.html

   Today, the Liu Yibai organization and leadership of Hunan Province, Loudi City Intermediate People's court to the crime syndicate, entered a seventeenth day trial.
   Hunan Shuangfeng fog this morning, the temperature dropped to once, seems to indicate that this court will be whirling accident?
   After seventeen days of trial, the author think more and more, write a high quality daily "Loudi Ji", must stand HISTEP can see far, must know yourself as well as the enemy, victorious. This requires that I must continue to think deeply about the case, and strive to multi angle to grasp of the conviction and sentencing of macroscopically.
    One, the appellant trial of Liu Linlong.
   The court announced the court, the lawyer Yang Jinzhu to ask Liu Linlong It goes without saying that the appellant, wonderful.
    Two, the appellant trial of Wu Biao.
   1, the appellant Wu Biao background 
   The appellant Wu Biao, male, the Han nationality, born in June 19, 1991, Xinhua County Mei Zhen Huang Ni ao Village 7 groups, on suspicion of the crime of disturbing social order in October 14, 2010 by the Xinhua County People's procuratorate.
   2, the original judgment that the appellant's criminal facts Wu Biao.
The 228Th page September 10, 2009 verdict that intentional injury had your case, the appellant Wu Biao has over 18 years of age.
   The judgment that in May 12, 2010 300th pages to disturb the social order of the crime, the appellant Wu Biao has over 18 years of age.
   The trial court in 2007 October 328th pages in the book that gambling crime, the appellant Wu Biao under 18 years of age.
   The trial confession from 3, the appellant Wu Biao
   The appellant Wu Biao statement of the suffering and torture to extract confessions out facts to the court, and the court the exclusion of illegal evidence application.
    Three, the coordination meeting chengcan vice president to speak out.
   10 in the morning forty points, the collegial panel announced, long presided over by the Loudi City Intermediate People's Court of Hunan province by Li Qiongting, vice president of Loudi City Intermediate People's Court of Hunan Province, deputy secretary of the party can do a keynote speech at the coordination meeting, coordination will be mainly to solve the illegal evidence counsel the exclusion procedure is carried out after the burden of proof quality certificate, or to ask after. The following is the author sorted according to Chan vice president speech content, maybe some words is not very accurate, as far as possible the main meaning is not wrong.
   Dear lawyer, prosecutor.
   The vice president of Loudi province Hunan City Intermediate People's court as I can, the first day of the trial came, I insist that every day to participate in the trial, but I did not speak, every day sit in at the bottom. Today I am going to the front from behind the scenes. This case is known as "Sike" lawyer "master" Yang Jinzhu lawyers rendering and bedding, influence. This is Yang Jinzhu lawyers act. I "Sike" lawyers are not understand many. I as a vice president in charge of criminal trial in Hunan Loudi court's duty is to do a good job. I started to pay attention to the case of a trial, but not very deeply to understand. "Sike" lawyers for the many articles and representation on the web, I have a deep feeling. I see a lot of articles on the net "Sike" lawyer, but I think most of them are only. Before I did not participate in the court hearing on Sike sending lawyers without the real feeling and judgment. Today is seeing is believing.
   I saw the court trial, there are a lot of foreign elite lawyers in court, you also show style. Of course, defense lawyers can do so careful defense, I admire your dedication. I am a loyal listener, I always listen to the questions of the court. Today we have completed the questions and ask the stage, is about to enter another link. What the next link is to carry out the proof procedure or the exclusion of illegal evidence procedure. In fact, this is a is not open around the junction. I want to remind everyone to respect the collegial panel decision here.
   You should let me finish the collegial panel arrangement.
   I see a lot of the recommendations of the article, most defense lawyer investigation of evidence suggest the legitimacy of arrangements to ask after. I think, according to the provisions on July 1, 2010 implementation of the "exclusion of the illegal evidence rule" and "China criminal procedure law", the exclusion of illegal evidence can be placed after the court testimony, the inspectors shall obey the collegial panel decisions.
   The collegial panel according to the judicial interpretation, refer to the views of all parties, combined with the case to give people advice: illegal evidence exclusion procedure should be unified in the proof process.
   I saw Yang Jinzhu lawyers said publicly, to play in the aspects of illegal evidence exclusion procedure. I am aware that. The court is welcome Sike sent lawyers such behavior, is to the facts of the case, the evidence in the case, the case procedure, sentencing to death, belongs to the normal, this is indeed a serious and responsible Sike lawyer lawyer, of course, is a good thing for the parties and the court, but I see Sike behaviors of a defender, but not so.
   The lawyer said Yang Jinzhu, regarding the illegal evidence, the lawyer said Yang Jinzhu to call to the Loudi intermediate people's court to reflect, to the Hunan High Court reflect problems, to the irrational against court. This is our afternoon, I heard in the trial scene, I think evil is hiding. I think, I don't need you to Yang Jinzhu to appeal to the Loudi intermediate people's court, today I come to court to directly face the you're right, I to dialogue and your patience and rational.
   Illegal evidence exclusion program start time, about the law. The legitimacy of evidence collection program start time, of three houses of "illegal evidence exclusion rules" has been Chinese "Criminal Procedure Law" fifty-sixth absorption, this is only the exclusionary rules of illegal evidence of the content, but here is not specified start time. Criminal procedure law is the law.
   Six ministries of the "code of criminal procedure law interpretation" formulated in December 26, 2012, January 1, 2013. The "judicial interpretation" the eleventh stipulation: illegal evidence if the application, the court to investigate and collect the legitimacy of the court with evidence. The court order is determined by the court according to the trial of the case.
   Therefore, the law and the judicial interpretation gives the court power. The implementation of the provisions of the six ministries promulgated, judicial interpretation of the provisions of article 100th, illegal evidence exclusion procedure before the court investigation ends can be. This is a right of free decision. In view of the case number, the fact that more charges, more facts, both sides of the debate. The evidence collection legal differences, combined with the actual situation, the collegial panel can arrange the trial procedure.
   The lawyer on the exclusion of illegal evidence suggests not law, it is also a responsibility of the defense lawyer, but the court decision also accord with the provisions of the law.
   In this case the lawsuit participates in a person shall have the right of suggestion, the collegial panel has the right of final decision.
   I am here to carefully remind lawyer to do the next step in the proof quality certification work.
   In order to make my statement confirmed, I will refer to the Supreme Court vice president Dai Changlin's theory to explain the courts throughout the country, we are in the light of this statement of operation. The Supreme Court's 2013 core journals -- Ninth "people's justice", "judicial" people in the guidance to the courts at all levels, including an article about the specific operation procedures guiding the exclusion of illegal evidence. Research on problems of illegal evidence exclusion in the program, devoted to.
   This paper points out that the illegal evidence exclusion, program schedule in the court investigation stage, but did not specify a specific time investigation program. In 2010 three of the "provisions on the exclusion of illegal evidence regulations", the defendant before the trial confession illegally obtained, shall make investigation. On the application of the first survey, consistent with the spirit of. Have the objection, the right to appeal to the parties respect. Secondly, to solve problems, involving the evidence qualification, can be used as evidence. After a review of think, should be excluded in accordance with the law, without a formal court investigation.
   The following is a description of the logical conclusion: under special circumstances, be dealt with in court investigation before the end of. The efficiency of the trial, the court order based on when necessary, involving some exceptions. On the application, not be the first survey. Judicial interpretation, investigation and collection of the legitimacy of the illegal evidence according to the actual situation in the parties, lawyers, were participants in the proceedings after the application, can also be at the end of the court investigations are more than before, especially the application of. In such cases, strict enforcement of existing investigation cannot ensure the smoothly, influence the quality and efficiency, the review and investigation. To ensure that the trial court, the illegal evidence exclusion starting with judicial practice in the burden of proof after. This method completely legitimate.
   I this several days pondering a question: arrangement of the illegal evidence exclusion start time. Legal and judicial interpretation of the provisions of the clear, generally should start first principle. The collegial panel can be decided before the end of the court investigation.
   I understand the concept of cause lawyers shall have the following 1, the provisions of the law to understand unfamiliar, excluding the contents changes program comprehension is not comprehensive to the illegal evidence, there is that, before the court for advance; division of application was held in the end, I think it is a tangled. Our full-time criminal trial, defense lawyer may not necessarily, for criminal procedure known as we know. Defense lawyers but also for civil and commercial cases, but also as a legal adviser. I welcome the defense attorneys have a better suggestion on legal provisions, offer advice and suggestions.
   Second may be lawyers heart strong concern and apprehension. Fear of the collegial panel adducing evidences not start after the illegal evidence, or false row non. The deep concern in the current judicial system, in my opinion, this is to entertain imaginary or groundless fears. Unnecessary: A, I am in favor of Yang Jinzhu Lawyers Act is of positive significance to the China progress of the rule of law, now the judiciary on "Sike" law opinion mixed. I frankly, "Sike" lawyer is more positive significance to the construction of legal system, we do not dislike not fear, so many national "Sike" lawyers to participate in the Loudi court hearing is a great honor for our city court judge in Loudi, we encountered such a trial is not easy in their in life;
   B, I have to torture to extract confessions and illegal evidence has great anger, our criminal court without trial and torture to extract confessions of this case, we don't need to work hand in glove with the judge, we will judge the world in innocence. Wang Fu lawyers said, behind the courts and procuratorates have a gun in the top. I want to tell you, the trial leadership without intervention, leading to our independent judgment, not shield torture to extract confessions behavior. I do hate the most competent of torture to extract confessions, torture to extract confessions has produced numerous miscarriages of justice, wronged innocent people, undermining public prosecutor, judge acts implicated. The Loudi intermediate people's court does not have the rule of law, the flag flying high, I strongly support the exclusion of illegal evidence.
   C, after sixteenth court, everyone can see the presiding judge in good faith and pursuit of value, impulse and expectations, we also express, must put the case into court trial demonstration. Will strictly implement the spirit of the rule of law, the court into a classic court. To this end, we carried out hitherto unknown preparation. We held a meeting before trial, we decided not by issuing court hearing, take the initiative to seek counsel opinion, audit ID can, although this is a simple change, but we bear the pressure, increases the difficulty of our organization. Our courts in trial stage actively removing defendant prison uniform vest, although the cause of the inconvenience, but we cancelled. This work has great difficulty, we have been trying to overcome. Our full-time members of Sulu court, in order to complete comprehensive record of the speeches, two full-time every 1000 yuan, the bag eats encase. The trial area, the first instance court of old court, the use of the new court trial, on site a lot of transformation, Shuangfeng court usually reluctant to use. We are ready to supply socket, convenient lawyer with notebook. Evidence demonstration instrument projector, we can overcome the problem of the shortage of funds of the court. We summoned before the court session, for comments, adequate preparation, before the meeting chamber of high quality, delivery people, opinion, we did not hide, no lawyers as the enemy, showing a collegial panel trust on lawyers, broad mind we should move the counsel. Security and access, and the public prosecutor. The past can not. A dedicated channel, hitherto unknown. Mr. Yang Jinzhu left the court to other places to participate in other cases, the rest is what treatment? The original trial time arrangement is in view of the influence of the pressure, the noon recess one hour rest time, more pressure. The lawyer reflect the noon time is too short, we adopt the opinion, will rest at noon time two hours, increase our organizational work harder everyday morning and afternoon, we try to meet your requirements. We often strengthen contact and communication and lawyers, we created a mobile phone communication platform. Yang Jinzhu lawyers, to bring the clerk record, we give to satisfy. The problem of police and witnesses, we face the pressure of big, extremely difficult, we are actively seeking coordination, this is a hitherto unknown work. We do to ensure that both sides are equal, open and fair equality center. Defense lawyers shall be in good conscience basis of fully aware of our reason to do so. We in the courtroom inquiry process does not limit the defender's speech, not to give too much to stop. This is due respect we give, the court asked the 16 day, which is hitherto unknown problems. We made a huge investment. The presiding judge Li Qiong gives you dignity. Judge Li Qiong is a strong personality, but showed equal gentle attitude in this trial, to win the trust. Unfortunately, I see some lawyers are hostile to the collegiate bench. Said judge Li Qiong is an outwardly kind but inwardly cruel person, with a false smile in return for not discharging non, non false row. I think, we make great efforts, if not row non, non false row, we are cop-out worth, it will have a good.
   D, our criminal justice innovation, is to resolutely to row non program. Hunan province Loudi City Intermediate People's Court of criminal trial chamber I is the outstanding political unit the satisfaction of the people, the national and provincial outstanding collective and individual. Now work bottleneck -- in the new historical period, performance and brilliant creativity. We are carrying on illegal evidence exclusion program of exploration, much less the court formally row non program, we gain experience in actively attempt, the national court, in earnest attention attention.
   In court the judge did not ask questions, we limit or restrict the defense lawyers, lawyers for the external audit and details process question the parties in great detail, I admire the defense attorneys dedication.
   Some lawyers on illegal evidence exclusion objects in your program doesn't really seriously, some lawyers are not professional. To the exclusion of the illegal evidence, to achieve a good effect, the real row non, we made the exclusion of illegal evidence model, guiding you, until now has not yet completed. After we receive the template, the collegial panel shall seriously review, a review, not simply start. When we judge to work overtime every day 12, day sitting here for 8 hours, work overtime.
   On the exclusion of illegal evidence in the police to court, this is a new problem. Check the record, and which record. This is not a touch and can solve the problem. In the trial practice is before the end of the trial the unity of. Subjective wishes us to improve, this is our good intentions. Some lawyers obstinate obstruction, we don't know what their true intentions? Is it right? Has put things mixed, have an ulterior motive, in the purpose of the hype? Our court in this case is always has the performance reflected, to create the environment, fully display. If some defense lawyers insist, persist in wilfully and arbitrarily, will complete the trial mixing yellow, have real sense? Don't want to draw a conclusion -- "Sike" lawyers to where, where the court cannot run smoothly? "Sike" law itself, we admire really "Sike" law realm, professionalism and professional ethics. I don't agree to act art to the court unless the pressure, can be regarded as a measure of last resort, but in this case you should reach the acme of perfection of lawyer defense protection, procedural arrangement please meet, we arrange proper and lawful, we should fully respect the legitimate, the overall arrangement for the coincidence on court. Interpretation.
   I sincerely hope that you understand, to maintain the dignity of the law and perfect, safeguard the litigation rights of the parties.
    Four, in my speech outline coordinate.
   At two thirty on the afternoon of February 19, 2013, Hunan Province, Loudi City Intermediate People's court held coordination meetings in the trial court in Shuangfeng, mainly by the defense lawyer exclusionary procedure when to start.

   As one of the defense attorneys, raise their hands to speak, the following is my speech outline in court.
   Dear president, Li Tingchang:
   I'm Jia Huiping from Shanxi lawyer, is writing "the lawyer of Loudi" on the internet. I want to talk about five points, be concise and to the point.
    First, the very things need very man.
   My first point is about the very things need very man.
   The illegal evidence in criminal cases in the process of hearing shall be held at the time, the law and the judicial interpretation is not clearly defined, the courts throughout the country there is no precedent. In view of the fact that in the case of questioning stage, we have found this case there may be serious acts of torture to extract confessions, the case is likely to be an unjust cases. The actions we Hunan Loudi intermediate court should establish a national model. I believe, we respect the president, Li Tingchang had the courage to start a new program, this behavior is too big for the impact of the country, to prevent miscarriages of justice. Your shoulders the burden is very heavy, you must create a new procedure of exclusion of illegal evidence. Of course, this need your appliances Hongyuan, I sincerely hope that the collegial panel and created the judicial measures in the dean to sit, we hope to Hunan Loudi court, the national court are watching you.
   Just as the dean said, the procedure of excluding illegal evidence after questioning or proof is an ambiguous problem, are legitimate, no errors, however, we think, illegal evidence exclusion does not hold in question? In the event of a conflict between public power and private rights, we should protect the legitimate rights of the parties in the first place, also is the restraining principle of criminal law. When evidence of illegal discharge program can start to ask, why not to put in evidence after?
   Look far ahead from a high plane, you have many tall decide how far you can go.
    The second point, who did not compromise the question of who, is to create a new situation of the problem.
   I discuss second points, illegal evidence in the case to exclude program start time is not who compromise who have problems, we can not say, illegal evidence exclusion procedure start to ask, is the authoritative compromise court gave Sike sending lawyers, this is a false proposition. The illegal evidence elimination program in the proof, is a matter of the rule of law progress China things, is a maximum limit reduces miscarriages of justice procedure.
   I believe, this window paper shall pierce, I prefer a collegial panel and defense lawyers can be based on rational and calm for the initiation of proceedings to properly resolve.
    Third, illegal evidence exclusion rules, symbol of Chinese rule by law to progress.
   I discuss third points, excluding illegal evidence procedures from 2010 up to now, the illegal evidence exclusion procedure symbolizes Chinese criminal rule of law progress, Just Gold Grand lawyer talked about the illegal evidence exclusion program evolution, and here also I do not speak.
   I was devoted to the study of Western evidence law of Anglo American law system, I think the procedure of excluding illegal evidence is introduced from the countries of Anglo American law system and advanced the idea of rule of law. We discuss the procedure of excluding illegal evidence here, not on the legislative background of illegal evidence exclusion procedure.
   Anglo American jury is responsible for the trial of fact, the judge is responsible for the trial of the law, the illegal evidence exclusion procedure of Anglo American law system countries in the jury, as they had been before start and end, illegal evidence is generally excluded from the known as the "motion" of pretrial procedure, illegal evidence does not affect the jury the trial.
    Fourth, adhere to review existing together, carve on gunwale of a moving boat.
   I speak fourth point, if the collegial panel to be proof in court after the exclusion of illegal evidence, pure is a serious mistake a carve on gunwale of a moving boat.
   In the current law of criminal cases, the trial of second instance procedure and the exclusion of illegal evidence exclusionary rules of procedure is very clear.
   According to the "Criminal Procedure Law of the people's Republic of China" the 223rd stipulation: "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 instance of facts, evidence objection, may affect the appeal the conviction and sentencing. (two) cases of appeal against the defendant sentenced to death, (three) case protested by a people's Procuratorate; (four) other shall open a court session."
   "Regulations concerning the application of the people's Republic of China criminal procedure law interpretation of the Supreme People's court" article 103rd: "any of the following circumstances, the people's Court of second instance shall examine the legality of evidence collection, and in accordance with the relevant provisions of the criminal procedure law and the interpretation for treatment: (a) the people's Court of first instance ruled out illegal evidence to the parties concerned and the defenders and agents ad litem, the application has not been examined, and as the evidence according to the. (two) the investigation conclusion of a people's Procuratorate or the defendant, private prosecutor and his legal representatives or the people's Court of first instance to make relevant evidence collection of legitimacy, protest, appeal; (three) the parties concerned and the defenders and agents ad litem, found clues or materials in the first trial ended, apply to the people's court for the exclusion of illegal evidence the."
   The reason of criminal cases of second instance court started in death penalty cases were due to illegal evidence exclusion caused, visible, the core of criminal cases of second instance court procedure should be the exclusion of illegal evidence in criminal cases, the court of second instance trial of second instance procedure shall be the illegal evidence exclusionary procedure in the first place to consider.
   Ordinary criminal cases of second instance court procedure is not a criminal trial, and the exclusion of illegal evidence in the court of first instance program has been trial shall be given full attention, therefore, the illegal evidence exclusion of criminal cases of second instance procedure for lawmakers, are measures shall not be to re-examine the evidence and had to start in order to prevent miscarriages of justice has of course, to the exclusion of the illegal evidence should be put in the first place to consider.
   A case of illegal evidence is to start first, to prevent the illegal evidence into court. According to the procedure of first instance trial can. Illegal evidence exclusion program is the introduction of a legal system in the western country under the rule of law, spirit is the exclusion of the program as a separate procedure illegal evidence. Since the individual program, it should be organized, or will not to its importance. Order -- the illegal evidence importance.
    Fifth, big joke.
   I speak fifth point, if the collegial panel should adhere to the illegal evidence exclusion in the burden of proof, can not be sneer at one, is a joke.
   Exclusion of illegal evidence, according to the current criminal procedure law clearly stipulates, the prosecution stage, the trial stage in the investigation stage, the review must be read to exclude illegally obtained evidence.
   We can't hope to the investigation organ can exclude the illegal evidence will be, just as we can't hope to the production of fake and shoddy products factory automatic destruction and shoddy products manufactured by them.
   From the provisions of the criminal procedure law, the exclusion of illegal evidence in investigation stage, the prosecution stage, the trial stage are specified must be excluded, however, we regret to see, this case belongs to the second instance court, illegal evidence is still exist in a large number of second instance court at the time, are we still talking about when to start the exclusion of illegal evidence the program not only now, absurd, and naive!
   The original intention of the legislators to illegal evidence to remove from the investigation stage just appeared, this is the legislator's original intention; if allowed to illegal evidence has been present throughout the proceedings can not be ruled out, also can tell, this is the legislators of the procedure of excluding illegal evidence of failure.
   The process of the court cases is to rely on evidence to restore the facts of the case, the difference between the existing facts and objective facts. The object of criminal evidence nature -- legitimacy, objectivity, authenticity in the litigation process is the need to review the exclusion of illegal evidence, and the purpose is to solve the problem of the qualification of evidence.
If the illegal evidence which is full, the court will not get a more accurate facts, imperceptibly will create more miscarriages of justice. Break First impressions are strongest. The second to do not adhere to the exclusion of illegal evidence in court to ask, is really a backwards.
   In criminal trial of second instance procedure will be illegal evidence exclusion proceedings before the burden of evidence. In so doing, can completely avoid the public prosecutor as the trial process will be the wrong way, illegal evidence parties and counsel the illegal evidence to court, illegal evidence exclusionary procedure illegal evidence that points to the parties and counsel cannot again to the court by the inspector.
   If we insist on a collegial panel advocated in the burden of proof after exclusion of illegally obtained evidence, is entirely in the repeated work done without any meaning, the efficiency of Chinese criminal justice and justice cause real damage!

   Jia Huiping lawyers twenty-one fifty on December 19, 2013 in Hunan Shuangfeng