Liu Ruoqiao: about the new criminal procedure law, online article many, but only in this paper has the depth and easy to make a careful and detailed analysis, thorough research, summarized in place,, of great help! Special book on this, and thanks to the author, editor: China Law Institute of the Academy of Social Sciences researcher Wang Minyuan and Liu Shaokui law.

The newThe understanding and application of Criminal Procedure Law

 

The National People's Congress on March 14, 2012 for the "people's Republic of ChinaCriminal procedure law.(hereinafter referred to as the criminal law) amendment of our country is a major event in the judicial process, which is decided by the criminal procedure law in the whole legal system status. Amendments to correctly understand the criminal procedure law, plays an important role in improving the criminal defense lawyer business level. In this paper, based on the understanding of the amendments to the criminal procedure law background, analyzes the main contents of the amendments to the criminal procedure law, and make a general description of the deficiencies of the amendments to the criminal procedure law.

One, the amendments to the Criminal Procedure Law Review

(a) the amendments to the criminal procedure law background

1, the protection of human rights consciousness enhancement, the various social strata for more civilized, scientific litigation system. With the development of social politics, economy and culture system,AndCompared with the formulation and revision of the criminal procedure law in 1979, 1996, all sectors of society placed higher expectations and requirements for the revision of the criminal procedure law. Generally speaking, the primary problem to solve in the criminal procedure law enacted in 1979 is the law, the law of criminal procedure law does not exist to solve the cultural revolution after the embarrassing situation. The 1996 criminal law solve the main criminal procedure "as a mere formality", put an end to the then prevailing criminal cases "set after the first trial," case. Accompanied by torture to extract confessions problems such as social development and judicial practice in China, we meet at the same time, the pursuit of material in a certain extent, pay more attention to the protection of human rights, more eager to law on protection of substantive rights at the same time, to further the realization of procedural justice, criminal means expectations more civilized, more standardized, more scientific. Can be said to strengthen the protection of human rights, is an important mission of the revision of the criminal procedure.

Put forward higher requirements of concrete system 2, related international conventions and China has implemented the law on criminal procedure law. Some international joined the Convention in China in recent years, put forward higher request to the criminal procedure law, has a more profound impact. The Chinese government has in 1998 October signed the "International Covenant on Civil and political rights", in 1987 China has participated in the "Convention against Torture", although the National People's Congress has not been finally approved, but some of the ideas have begun to affect China's legislation and judicial practice. The Convention gives the right to silence of the suspects, prohibition of torture to extract confessions and other provisions, have a large impact on the criminal law and society in China, the criminal procedure law of our country mustAndCoordinate. In addition, China's "constitution" provisions must respect and safeguard human rights, the content must be refined in the criminal procedure law.

3, in the judicial practice experience, lessons and summarized, as reflected in the legal level need. Our pursuit of judicial modernization at presentAndAfter the modernization of the existing contradictions and conflicts. For example, some high-tech crime, need in criminal procedure law is to provide technical investigation measures; according to the relative shortage of increasing number of the number of crime and judicial personnel, the need to further expand the scope of the summary procedure in criminal procedure law; our country nearly five years a total of two judicial reform, from for four different topics, has established more than 60 projects, nearly three years into 45 judicial explanation, such as "about some problems of exclusion of illegal evidence in handling criminal cases" and other provisions, these experiences and lessons need to be established in the legal level.

(two) the basic situation of the amendments to the Criminal Procedure Law

The revision of the criminal procedure law is actually second large-scale revision following since 1996, involving a wide range, a total of 110 amendment, has substantial modifications of the provisions relating to 142, more than the original criminal law over half the money. The total number of items from the original 225 to 290. Among them, the new added 66 items, delete the 1, finally added a new 65. To modify the contents, three basic system of criminal proceedings law, including the evidence system, defense system and the system of compulsory measures are involved, all the litigation stage throughout the investigation, prosecution and trial. Procedural changes, the revised Criminal Procedure Law on the basis of the original trial supervision, death penalty review procedure, the new added provisions of 4 special program: a minor procedure of criminal case; the parties reconciliation in cases of public prosecution procedure; the criminal suspect, defendant, escaping death cases of illegal income confiscated program; mental patients do not bear criminal responsibility according to the law of compulsory medical procedures.

The main content of two, revised the Criminal Procedure Law

(a) amendment on the system of compulsory measures

System of compulsory measures is the number of the revision of the criminal procedure law, but in the process of revising the difference is big, the defence counsel in the process according to the provisions on the protection of the criminal suspect or the defendant rights has important significance. In this note, compulsory measures (bail) in the United Nations "International Covenant on Civil and political rights" is a criminal suspect or defendant's right to look up. The establishment of compulsory measures not only aims to guarantee the smooth progress of the proceedings, and the need to protect the personal rights of citizens. But in our country, the compulsory measures (bail) is not a right, not a detention alternatives, and a unique restriction of personal freedom of the measures, even as the crime means and tools. In order to examine the provisions of our criminal law on the system of compulsory measures, will find that part of the specific provisions of Criminal Procedure LawAndCompulsory measures of spiritual existence some inconsistency, need to be revised to improve the process. The revision of the criminal procedure law on compulsory measures are mainly embodied in six aspects, as follows:

1, to further clarify the conditions of arrest (criminal law article seventy-ninth).

Very abstract 1996 criminal law and the criminal procedure law in 1979 to the arrest conditions, resulting in easy to appear in the judicial practice to understand the case of inconsistency, the amendments to the criminal procedure law to solve the problem in a certain extent. This revision, will arrest conditions into two situations: first, should be arrested; second, can arrest. The criminal law article seventy-ninth shall arrest situation made more specific provisions, these Provisions to further reduce the arrest has important significance to improve the quality, the number of arrests. However, somewhat unfortunately, criminal procedure law on what should not be arrested, was not specified. From the practice point of view, should be arrestedAndShould not arrest cases are relatively small, and therefore should be in the form of law to be clearly should not be arrested in the case, in order to reduce the uncertainty in the process of law enforcement.

2, to further standardize the arrest supervision program (Law eighty-sixth, 93).

"International Convention on Civil and political rights" ninth article third, 4 paragraph: "three, anyone arrested or detained on a criminal charge for the people, shall be brought promptly before a judge or other authorized by law to exercise judicial power officials, and has the right to trial or be released within a reasonable period of time. Persons awaiting trial prisoners should not as a general rule, but release may be subject to attend the trial should be guaranteed at any other stage of judicial proceedings, and the need to await execution times. Four, any person deprived of liberty by arrest or detention, entitled to take proceedings before a court, that court may decide without delay on his detention is legal and if the detention is not lawful commands to be released." From that, arrest procedures in general should be subject to judicial review. Provisions regarding the arrest of supervision in this revision of China's criminal procedure law, although did not reach the height of judicial review, but than ever before, progress has been made. The criminal procedure law to increase eighty-sixth, specifies two categories: first, the arrest of supervision can interrogate the criminal suspect; second shall interrogate the criminal suspect, and to make specific provisions shall interrogate the situation. In addition, the criminal procedure law to increase ninety-third, the people's Procuratorate shall examine the necessity to deal with detainees arrested. For further protection of criminal suspects is important rights, but also to a certain extent make up forAnd"Existence" International Convention on Civil and political rights gap. However, how to initiate the review procedure in practice, such as by the parties is filed, or by counsel filed, how to set up the corresponding legal relief procedures, without further provisions, shall be further improved through judicial interpretation.

3, increase on designated residence residential surveillance regulations (Law seventy-third).

The provisions of this article, whether in law or in other ordinary members of society have aroused a strong reaction. The criminal procedural law seventy-third or even be conceptualized: 73 = secret arrest, secret arrest = National Police, police state = the common enemy of mankind. The amendments to the criminal procedure law has been rising for the so-called justiceAndEvil, freedomAndThe oppression of the life and death struggle. Officials worry is not without reason, because the designated home residential surveillance itself effect, has already reachedAndRestricting the personal freedom of a considerable degree, but this measures only need to decide can be executed by a department investigation organ. Litigation in our decision to compulsory measures do not have, it can only be to remedy through the appeal and accusation cases, this power is easily abused. At the same time, the provisions of view, provides only what place does not specify residential surveillance, but did not specify what places to residential surveillance. From the theory to say, if the provisions of what place can monitor lived seems easier to protect their rights. If the provisions of this article shall make people feel lucky, maybe this rule will be designated residence residential surveillanceApplicableLimited in a certain range.

4, to residential surveillance and the bail conditions make the separation (criminal law article seventy-second, Article 65)

 

The provisions of article two reflects the severity of the two law enforcement measures shall be determined and the specificApplicableConditions provided, further enhance the operability.

5, to take further residential surveillance and bail shall follow the specific norms and so on to make specific provisions (criminal law article sixty-ninth, Article 75).

 

Especially the provisions "shall not be allowed to enter the specific place, notAndSpecific staff meeting or communication, not to engage in certain activities, such as the passport and immigration documents, driver's license to executing organ preservation, has certain practical significance.

6, to summon and its extension of time to increase provisions (article 117th).

This increased the main content is: "the case particularly heavy, complicated, need to take the measure of arrest, detention, subpoena, summons for time not exceeding twenty-four hours." The provisions of this article shall also be controversial, because this provision seems more consideration to the needs of the case handling organ, rather than the need to protect the rights of the parties. Although some restrictive conditions specified in this article, how to perform the test but in practice remains to be time. Many people will have the following questions, if the summons, subpoena time reached 24 hours, then 24 hours, how to protect the suspect's diet and the necessary rest time? If the investigating authorities within 24 hours do not allow the suspect to rest or eating, can be treated as torture to extract confessions? In the social public strongly opposes torture to extract confessions circumstances, this provision is different departments of power game results.

(two) revision of defense system

Meet difficult, scoring difficult, difficult issues such as views have been adopted widely existent problems in criminal defense, how to solve these problems, we must find the answer from the legislative level. Revision of the criminal procedure law in a certain extent, to solve the problem of how to formulate provisions, but the specific effects, to be the test of practice. Overall, the amendments to the criminal procedure law on the defense system is mainly reflected in the following ten aspects:

1, increase the provisions about respect and protection of human rights (criminal law article second).

Respect for and protection of human rights as a fundamental basis, content, is the "basic requirements" International Convention on Civil and political rights and China's "constitution", but also the basis for the criminal suspect shall enjoy the other rights.

2, the defender's responsibility to make the new regulations (Law thirty-fifth).

The criminal procedure law revised in remove thirty-fifth of "proof", to "put forward" two characters, is of great significance. "Forward" is given to the defenders more defense space, as long as the relevant reasons, to clarify the facts, can reduce the suspect's punishment, defense against per capita can argue, but not in accordance with the provisions of the criminal procedure law, to "prove" suspect, the defendant not guilty, guilty. At the same time, in accordance with the provisions of this article, the defender maintenance includes not only the suspect's substantive rights, including the responsibility to maintain the other "rights", advocate responsibility or right greater range.

3, a clear legal status detection stage attorney (Criminal Law Article thirty-third).

China's lawyer to lawyer who involved in the criminal procedure is a gradual process, early generally, lawyers in only in court is the defender of the identity, then 96 years of criminal law will defend the identity of the person in advance to the case for the prosecution to date, this revision will be further ahead of time, reflected on the defense system in the cognitive level of progress. In addition, this article also law "provisions of criminal suspects, defendants in custody, also by the guardian, close relatives to entrust defenders", the effective protection of the rights of criminal suspects has certain significance.

4, in the legislative level to solve the difficult problem of the meeting (Criminal Law Article thirty-seventh).

Meet the difficult is a common problem of lawyer practice exist, many lawyers to properly meet the suspect, the defendant, the case handling organ often set some internal procedures, such as should be approved, need staff meeting with lawyers. Even in the "Lawyers Law" revised, this has not been changed, some people even think, "lawyer law" provisions of the lawyers' rights is only applicable to lawyers, have nothing to do with the case handling organ. Some even allowed to meet with, will not let communication case, even not allow to provide legal service, just see people only, the suspect, the defendant's rights cannot be effectively guaranteed, the rule of law in pursuit of control, debate, the three parties rights balance it is not the purpose. The amendment of the criminal procedure law in legislation to solve the difficult problem that the lawyers met, a lawyer's practicing certificate, proof of lawyers and such orders three certificates that can be met. But the provisions of this article shall not completely is in progress, mainly manifested in the following aspects: first, regulate the legal detention center to arrange time for 48 hours. The reception meeting time to maximum limit, perhaps lawmakers want to protect the lawyers rights, but the same rules will become the legal grounds for lawyer to meet an obstacle. Second, the lawyer shall after investigation organs permission scope is set too large. If the said regulations meet with "crimes of endangering national security, terrorist crime" the parties need to go through the investigation organ for approval more reasonable, so the "crime of particularly great bribery case also stipulated in" shall be permitted within the scope, there seems to be no good reason.

In addition, this article also solves the lawyers not to be listening, which is the International Convention provisions. This was not listening, both can not at the scene monitoring, not through equipment monitoring.

5, in the legislative level to solve the difficult problem of the marking (Law thirty-eighth).

The criminal law thirty-eighth stipulation: Defense Lawyers of the people's Procuratorate date, consult, extract, copy the file material. Marking difficult also is a common problem in law practice, and even some lawyers in court before have seen the materials or just seen some procedural materials, right to defense lawyers and the rights of the parties are unable to obtain guarantee. To solve these problems, not only in terms of legislation, more need to change the law enforcement idea. Law enforcement should first the suspect, the defendant as a litigation subject view, he should have a person should enjoy the most basic rights; secondly, the law enforcement should be the public prosecutor and the defender against as ascertaining the necessary conditions for the misjudged case fact, law itself is not good, lawyers involved in the case in order to give the facts to the truth, rather than obstruct judicial organs in handling cases; thirdly, law enforcement should have enough self-confidence, believe that after investigation, prosecution, trial, etc. many of the cases handled themselves, the result is able to withstand the test of history. If no such confidence, only that the law enforcers themselves lack of confidence, the level of law enforcement co..

The advance of 6, to a certain extent, the lawyer forensics method (Criminal Procedure Law of forty-first, 39, 187).

The difficult problem of lawyer forensics problem involves not only, more related to the lawyer personal security problems. Therefore, many criminal defense lawyers did not dare in the process of handling cases of evidence, only depend on the material and the prosecution file in the existing confrontation, it is far from enough in many cases. Criminal procedure law of forty-first, 39, 187 although stipulate the lawyer forensics, but this revision is not a fundamental breakthrough, lawyer forensics problems even in the legislative level has not been solved. First, does not fundamentally solve the problem of appearing in court as a witness. The judicial practice over the years that we have sufficient reason to believe that, in many cases, if the witness, the outcome of the case is likely to change. However, the amendments to the criminal procedure law only to witness to testify in the court to limit the scope of within very narrow. Second, although the provisions of the criminal law defense shall have the right to apply for Procuratorate, court may from the investigation organ obtained prove the criminal suspect, the defendant not guilty evidence, however, if the investigation refused to provide legal relief, not the establishment of the legal consequences of the measure or the corresponding. In this regard, the provisions in article 187th of the criminal law appraisal personnel is quite reasonable, "the provisions of the notice of the people's court, identification of refusing to testify in court, expert opinion shall not be taken as a basis," but the only identification of personnel.

7, establish the defender is not illegal for perjury investigation organ procedural safeguards (Criminal Law Article 42).

Article 306th of the criminal law of the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime like hanging in the lawyer's head "Damour Damocles", this article in recent years being used so much so that all criminal defense lawyer shiver all over though not cold. Indeed, the lawyer perjury for any country does not allow, but how to pursueLawyerPerjury (we would not discuss the article 306th of the criminal law is reasonable or not), is a legal must consider the problem. The reason lies in the perjury crime has great difference from general criminal, which isLawyerAs a defender to engage in litigation and detective agencies resist process, easy to take on some complex. If the case against the side of the case handling organ by the direct investigation, it is very difficult to avoid the abuse of prosecution. In Article 306 of the criminal law has not been repealed or amended case, by amending the criminal procedure law is to avoid toLawyerUnsuitable prosecution for perjury, undoubtedly has certain practical significance. The criminal procedure law "defendants suspected of a crime, shall be undertaken by other than the case for a defender the investigating authority," has certain rationality. But this provision is not specific, such as: first, the lawyer alleged perjury case how to determine the original start organ, the investigation organ to start? Russian Criminal Law stipulate only judges have the right to start, perhaps the criminal procedural law in China can learn from the next revision. Also, how to determine the scope of the provisions of the criminal procedure law of "different", if the "remote" authority is within the county, the city and even the province, the law may not much practical significance.

8, increase the regulations about the case to inform the defence counsel (Criminal Procedure Law 160th).

The provisions of article two has certain practical significance in operation. Due to the development of the basic procedure of criminal case by case handling organ master, so the investigation, prosecution, trial, different stages of conversion, lawyer to know. In practice, lawyers can only keep contact with the investigators, if lucky encounter good attitude the case handling personnel, may know the case in the procedure in progress; in case of general, don't tell the lawyer. A famous lawyer Chen have a complaint, there is a case, the client called to ask him what happened to our case. Chen lawyer told him, the case is being dealt with. The entrusted people shout abuse, on the phone fraud, court notify the family to bring the ashes, still cheat me cases in management. The criminal procedure law, the investigation organ shall transfer the case to inform the suspect and the lawyer, has certain practical significance.

9, increase the provisions on the stage of review and prosecution shall listen to the opinions of counsel (Criminal Procedure Law Article 170th).

In different stages of litigation, lawyer's obligation and function is different, the law should support, encourage lawyers actively to the investigation organ, the prosecution organ to provide advice, so as to the maximum extent to ensure the legalization of cases results even save social cost. The criminal procedure law stipulates: "the people's Procuratorate the case, shall interrogate the criminal suspect, to listen to the defender, the victim and his litigation representative opinions, and record. The defender, the victim and his litigation representative put forward written opinions, shall be attached with the volume ", is not only to the lawyer's respect, but to reflect the quality of case responsible.

10, other amendments

Revision of the defense system, in addition to the above content, and some other aspects, this is no longer in detail. Mainly include: the scope of legal aid to further expand (criminal procedure law; thirty-fourth) provides that the defender of case handling units, personnel illegal acts against the provisions of the exercise of the right. (47, 115); the Supreme People's court review of death penalty cases, it shall interrogate the defendant, defense lawyers request shall listen to the opinions, counsel (Criminal Procedure Law Article 240th); the defenders shall timely will be beneficial to the suspect evidence submitted the case handling organ (Criminal Procedure Law Article fortieth); a lawyer to to obtain confidential information in the process of handling the case, the specific circumstances shall timely inform the judicial organs (Criminal Law Article forty-sixth).

(three) revision of evidence system

Amendment 1, the definition of evidence (Law forty-eighth).

The criminal procedure law of evidence is defined as "can be used to prove the facts of the case materials", "96 years is no longer applicable provisions of criminal law all facts that prove the true circumstances of the case, is the evidence", this revision reflects the legislators to improve the cognitive level of evidence. The revised definition is more able to show evidence of function, the purpose is to prove the facts of the case, not the fact itself. The evidence only after the examination, can be used as a basis of fact.

2, increase the provisions of evidence in the form of (criminal law article forty-eighth).

This revision has added "identification, Investigative Experiment record", "electronic data", the "conclusion" renamed "expert opinion". Two types of evidence increase is the product of social development, the "conclusion" renamed "expert opinion" is reasonable. Because the "conclusion", understanding the meaning from the text, is a conclusion, the conclusion is generally unable to change. Renamed the "expert opinion", understanding the meaning from the text, such opinion is questionable, not an end, the results of the change and the judicial practice match.

3, about the question of burden of proof (Criminal Law Article forty-ninth).

This article is a defendant may not reflect the spirit of the proof, if the prosecution can not prove that the defendant is guilty, the public prosecutor should bear the burden of the consequences of not, this is the international legislation.

4, shall not be forced confession crime (Law fiftieth).

The right to silence is our country criminal law educational world has been discussed for a long time, the amendments to the criminal procedure law doesn't establish the criminal suspect, the defendant's right to silence, just to promote to the silence right in direction, consistent with international treaty. "International Convention on Civil and political rights" fourteenth of the third States: "in the determination of any criminal charge against him, everyone equal, shall be entitled to the following minimum guarantee of: (g) not to be compelled to make against his own testimony or forced to confess to crimes."

5, the provisions on obtaining evidence effect in the process of administrative law enforcement (criminal law article fifty-second).

Administrative law enforcement and criminal justice has certain connection, but if all the confusion between the two evidence effect, is also not advisable. The objective of administrative law enforcement have relatively strong evidence, identified as the criminal evidence, has certain rationality. Therefore, the criminal law the evidence is limited in certain range, such as "material evidence, documentary evidence, audiovisual materials, electronic data evidence, these evidence" objectivity is relatively strong, for administrative enforcement of law in the process of verbal evidence, evidence of a greater flexibility, not in the criminal proceedings as evidence the use of.

6, to further refine the proof standard (Law fifty-third).

Refinement of the standard of proof is an important link to ensure the quality of trial. This article from the entity standard, procedure and other aspects of the standard of proof standard of refinement: first, the facts are the facts and evidence of conviction sentencing evidence. Second, all the evidence are through legal procedures verified, examining the evidence more emphasis on procedural justice. Third, the establishment of reasonable doubt exclusion principle. The three point relative to the 96 years of the criminal procedure law, more specific, more easy to operate and decision.

8, in the form of legislation to establish illegal evidence exclusion rules (article 54-58 of the criminal procedure law).

The relevant provisions of the provisions of this article and the judicial system to form a specific exclusion of illegal evidence system, including illegal evidence exclusion criteria, determining method, rule out the procedures. The content has been stipulated in the Supreme People's Court promulgated "on the several problems of exclusion of illegal evidence in handling criminal cases" in the provisions, only the Supreme Court judicial interpretation up to the height of the law. Provisions of the provisions of the content is very comprehensive, specific, but whether the implementation in practice are as follows, need to be further tested.

9, perfect the system of the witness appearing in court (article 58-63 of the criminal procedure law).

Witness to ensure the legitimacy of the evidence itself, so as to ensure the objectivity and authenticity of facts. The criminal procedure law on the witness has two significant changes: first, strengthen the protection of witness. For organized crimes of the underworld and other specific cases, such witness identification, protection measures can be taken without public real full name, address and work units and other personal information and other special. Second, to the provisions of the compensation.

10, the new provisions on judicial identification (section second criminal law 192nd).

Because of the judicial identification involves a number of professional and technical issues, and the attorney general is not expert in some professional technology, so for some professional problems, by the public prosecutor, the defender, application specific expert, the expert opinion, the formation of "expert to expert" pattern, will be more advantageous to ascertain the facts.

11, increase the provisions of audio and video in the investigation process (criminal law article 121st).

This provision: "the investigators suspect, can the audio or video recording of the interrogation process; there may be sentenced to life imprisonment, the death penalty cases or other serious crimes, shall carry out the sound recording or video recording of the interrogation process. Audio or video recordings shall be full, maintain integrity." This provision to ensure certain legitimacy investigation process. Especially for some major cases, such as may be sentenced to life imprisonment, the death penalty cases, must carry on audio or video recordings. Audio and video for proof of investigation does not exist during the torture to extract confessions and other illegal behavior has a certain effect, but the specific how to practically implement still needed to test in practice. Before the rise to the legal level in the foregoing, the Supreme People's Procuratorate has made similar provisions, but in the implementation will still be video recording, video not only discontinuous recording, the provisions on the recording in the implementation of a mere formality. The provisions of this article, and does not apply if the violation of this provision of the legal consequences, if violate provisions of the regulations of the evidence may not be used as evidence of the facts of the case, perhaps more effective regulations.

12, about the judge in court to verify evidence regulations (Law 152nd).

Also this article caused great repercussions, many people think that this may lead to "secret trials", this concern has certain rationality. The reason is that, the evidence without testimony related lawsuit participates in a person, right to defense is ignored, only by the judge unilateral verification, it is difficult to guarantee the authenticity, legality of evidence. Therefore, the rules should be used with caution in practice, it should be through the judicial interpretation of this article will apply the case made strictly limited, otherwise it will seriously violate the basic principles of the rule of law.

(four) revision of investigation, prosecution and trial procedure

Because of the length limitation, this paper revised the procedure system is no longer in detail, the main node modification list, please see the criminal procedure law.

1, the special section provides technical investigation procedure. See the specific criminal law second chapter second section eighth of article 148-152.

2, the court trial period (Revised Criminal Procedure Law of 202nd, 206, 232). During the trial of the court of first instance will be extended to two months, no later than three months; special cases such as may be sentenced to death penalty cases, approved by the court at the next higher level, be extended for three months; because of special circumstances need to also extend the court approval, report. For instance, should be concluded within two months, may be sentenced to punishment for criminal cases and other special cases; approved by the provincial people's court approved or determined, can be extended to two months; because of special circumstances need to extend, be approved by the Supreme People's court.

In 3 cases, the scope of application of the summary procedure made new provisions (article 208-214 of the criminal procedure law). This amendment will be the scope of application of summary procedure cases are divided into two categories: the first category: cases in which summary procedure is applied, including (1) the case facts are clear, the evidence is sufficient; (2) the accused confess their crimes, the facts of the crime accused no objection; (3) the defendant no objection on the application of summary procedure. Second: do not be cases in which summary procedure is applied, including (1) the defendant is blind, deaf, mute, or is a mental patient who has not completely lost the ability to recognize or control his own conduct; (2) have a significant social impact; (3) cases of common crime in the part of the defendant not guilty or the objection to the application of summary procedure; (4) other summary procedure is not appropriate for the trial. At the same time, the simple procedure. The constitution of judicial organization, trial procedure, the trial period, to make provisions.

4, on the second instance trial cases make the new regulations (Law 223rd, 224).

The criminal law article 223rd shall open a court session scope is defined as: (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) an appeal case the defendant was sentenced to the death penalty; (three) the people's Procuratorate the case; (four) other shall open a court session. At the same time, 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.

5, the court of second instance verdict to make new regulation (Law 225th, 226).

The new provisions of the main points: first, the provisions shall not be remanded case, the people's court that "in accordance with the above third requirements of the case remanded to the verdict, the defendant appealed or protested by the people's Procuratorate, the people's court shall make the second instance judgment or ruling according to law, shall not send people court trial to trial." Second, to further clarify the appeal not infliction of provisions. "The people's Court of second instance remanded by the people's court to the trial of the case, in addition to the new facts of the crime, the people's Procuratorate for supplementary outside the lawsuit, the people's court shall not increase the criminal punishment on the defendant."

Chapter 6, increase the provisions of the criminal litigation procedure of minors (article 266-276 of the criminal procedure law).

Chapter 7, increase stipulated the litigant reconciliation in cases of public prosecution proceedings (article 277-279 of the criminal procedure law).

Chapter 8, increase the provisions of criminal suspects and defendants, escape, death cases of illegal gains confiscated procedure (article 280-283 of the criminal procedure law).

The 9 chapter of mental patients, increase shall not bear criminal responsibility according to the law of compulsory medical procedures (article 284-289 of the criminal procedure law).

Three, about the amendments to the Criminal Procedure Law

The amendments to the criminal procedure law of the content is very wide, but relates to amendments to the substantive progress of less is more, some operational rules, some basic principles, the basic system, the basic idea of not larger reform, which therefore the revision of the criminal procedure law of our country under the rule of law is a progressive development. This situation led, the criminal procedure amendment has some shortcomings, need to be further perfect the legislation.

(a) is not clearly established the principle of presumption of innocence.

The principle of presumption of innocence is the basic principle of the International Convention and the rule of law of criminal procedure provisions. Provisions of the second United Nations "International Covenant on Civil and political rights" fourteenth: "Everyone charged with a criminal offence, before proved guilty according to law, shall have the right to be presumed innocent." In the presumption of innocence, the suspects (defendants) before after trial that constitute a crime, shall be regarded as guilty. Based on this idea, a person can not be criminal suspects (defendants) as criminals to look at; only as the accused person (lawsuit) to look at, he should enjoy a series of rights, in this concept derived from a series of concrete systems, these are the inevitable requirement of presumption of innocence. China's criminal procedure law, although the criminal law twelfth stipulation: "without the approval of the people's court to sentence, no person shall be found guilty", but the provisions of this section does not fully reflect the principle of presumption of innocence, the basic spirit and requirements,

(two) did not clearly establish the right of silence.

The right of silence in Britain since 1688 after the establishment of "bill of rights", has been to 136 countries. "" International Covenant on Civil and political rights, the Convention stipulates that the 14: "subject to criminal prosecution shall be forced to do something against his own testimony or coerced guilty." The main content is to, criminal suspects (defendants) in an interrogation or trial, there is silence and refused to answer right. Generally includes three meanings: first, not to be forced confession crime; second, have the right to refuse the statement of their negative case; third, do not worry about rejection statement to be made legal presumption against. The suspect (defendant) enjoys the right of silence, an important manifestation is the protection of human rights progress, is an important standard of judging a country under the rule of law. China's recent emergence of some malignant cases, which are all with the nature of torture to extract confessions, these suspects (defendants) does not enjoy silence right has important relationship. The amendments to the criminal procedure law, it is only limited to establish the right of silence, need to be further improved.

(three) the respect and protection of human rights are not included in the criminal procedure law.

To respect and to strengthen the protection of human rights is an inevitable requirement of the development of modern society, but also the amendments to the criminal procedure law should bear the important mission. The amendments to the criminal procedure law, added provisions of "respect and ensure human rights", the cheers for many media. However, this revision will "respect and protect human rights" provisions in article second of the criminal procedure law of the task, rather than the provisions in article first of the criminal procedure law of the purpose, how many shows still needs to further strengthen the protection of human rights. The specific system of any law is the concrete embodiment of its purpose, principle, purpose, principle, the concept is not a fundamental change of circumstances, the system may not have a fundamental breakthrough.

The amendments to the criminal procedure law is a gradually evolving process, cannot accomplish at one stroke. However, no matter how law enforcement is still perfect, one of the most important judicial strict link. How to ensure that the work of investigation, prosecution and judicial organs in accordance with the law, it will be more important subject faced in the criminal procedure law.

(editor's note: This article in the compilation process, with reference to the China Academy of Social Sciences researcher Wang Minyuan research, just as the lawyers of internal communication, learning to use)