Tong Zhiwei

A lack of understanding, we revised the Criminal Procedure Law

On the "PRC Criminal Law Amendment (Draft)" explanation says: "the current criminal procedure law was enacted in 1979 1996, the four meeting of the eight session of the National People's Congress amended. Practice has proved, in China's criminal procedure design and power allocation in general is scientific, reasonable." So far, it is only "in some areas there are not the corresponding problems, it is necessary to be good." I think, the evaluation of the present criminal procedure design and power allocation condition does not conform to the spirit of seek truth from facts, facts related failed to reflect the correct. Practice has proved, the court, the procuratorate and the public security departments for power distribution and the design of criminal procedure in criminal cases is not science, it is not reasonable, should fundamentally reform. Unfortunately, the principal mechanism of modification of the criminal procedural law did not see the major weaknesses of the current criminal procedure design and power allocation is not science, it is not reasonable. These major drawbacks include:

(a) the police power is too strong and continuous expansion beyond the limits permitted by the Constitution and the law frame of

In the constitution, the public security is the state administrative organs of a department, in the administrative area of the court and procuratorate inferior, but the reality we see how many years are, the public security department and the chief political position or party status in fact often are in court, procuratorate and the president, attorney general. This situation, almost all Chinese adult citizens are known, we have no need to specify the data to illustrate the. In addition, if the emotional, for the public security departments of the strong and is not restricted, difficult to control, we can intuitively from many revealed typical criminal cases handled see cases, can be seen from the police task force that its role through the investigation, prosecution and trial process activities, can be seen from a case for Chongqing and Beihai public security departments are staged a live in be full of sound and colour.

In today's world, I do not know what the police authority to Chinese police department this degree, also don't know what the police and supporters of strong to their China counterparts this degree. Given more time, I can find enough data to show that: 1 of China's criminal law amendments and legislative interpretation, as well as the "PRC Criminal Law Amendment (Draft)" the draft, basically all is by the police department and its representative personage guiding, mainly reflects the police department hope and requirements; 2. "practice has proved, in China's criminal procedure design and power allocation in general is scientific, reasonable." This estimate is mainly reflected in the police department's point of view.

A country under the rule of law, rule of law and the national police, the police society should be incompatible.

(two) the current criminal procedure law for more than a decade, the suspects, defendants to death a number more than this concentration showed extraordinary, illegal deprivation of the existing criminal procedure design and power allocation state is far not enough to protect the citizen's life from the public power organization

More than ten years, the crime only have found, can let the suspect, the defendant has the death penalty or have received the death penalty cases too much. This kind of many ordinary people understand the case, has in recent years particular attention "wife" She Xianglin case ", Zhao Zuohai murder case," Nie Shubin "rape murder" case, and the author a few years ago in the official media one one verified, written on charges relating to the death penalty case, such as the Liaoning Li Yongcai "murder" case, Liaoning Li Huawei "murder" case, Wuhan City Wu Hesheng "murder" case, Kunming Du Peiwu "murder" case, Henan Yao Li Jing, "murder" case, Hunan Jiang natural "Burglary murder" case, Hubei Ai Xiaodong "murder case, necrophilia" Jilin the 7 people such as Wang Hongtao "Burglary" case, the history of Heilongjiang Yansheng "intentional homicide, robbery case," Hebei Yang Zhijie "explosion" case, Hebei Chen Guoqing, He Guoqiang 4 people "robbery murder" case, Shaanxi Zhao Fenrong "poisoning murder" case.

I reserved a signed in 2010 OctoberLin ZhaoBrightA list of named "grievance" part in the last few years the media exposure of the scholars published online in the list, the original was later removed, but in September 24, 2011 I was in "joneswell blog" see this list. Most of this list are the records of criminal suspects, defendants on charges of death penalty cases can be involved, many of which case is I write the article a few years ago when we didn't have. The list of some of the years I have seen a report, some have not seen the reports, but now most easily to the related report in the online one by one to find. I check that, basically can be identified, the list of records of the case is true, but I haven't had time to study the details of the case are qualitative and reported. These errors include: Hunan 18 years old boy Teng Xingshan "Ripper" shot 10 years after the murderer appeared; Yang Hunan Mingyin "murder" to 10 years in prison by the rehabilitation; Hubei Huang Aibin "intentional homicide" was sentenced to death in custody released after 4 years; Jilin Sun Shaohua "killed 3 people before ignition burn" was released after serving a sentence of 11 years; Hebei Xu Jibin "rape" men 15 years after being acquitted; Hebei Song Baomin "rape of young women" death prison; Hebei Xu Dongchen "young men and" 8 years after the acquittal; Hebei Li Jiuming "intentional homicide" torture including yuan after 2 years was acquitted; Meng Cunming of Hebei because of "rape of female teacher" wronged 10 years after the acquittal; Henan Hao Jinan "robbery and murder" received a suspended death sentence for 10 years after the acquittal; Henan Zhang by clearing "robbery and murder" for nearly 6 years after the acquittal; Henan Xu Jingxiang "robbery, theft" 13 years later he was acquitted; Henan Qin Yanhong in custody for 4 years. Release due to "raped woman"; Jilin Wang Haijun is accused of "wife" men 19 years after the acquittal; Hainan Huang Yaquan, Huang Shengyuyin "robbery" in 10 years he is acquitted; Jiang Xi Tu Jingxin because of "corruption" was sentenced to 7 years sentence he was acquitted; Jiangxi leaf Lieyan suspected of "the crime explosion" of long-term detention after being acquitted; Shandong Chen Shijiang "intentional homicide" men 8 years later acquitted; Guangxi Qin Junhu, LAN Yong Quin "robbery homicide" custody for 4 years Chongqing Tong Limin was acquitted; "and small nanny after mutilatio" received a suspended death sentence 4 years after being acquitted; Shaanxi high on "raped by young girl" received a suspended death sentence 3 years after being acquitted; Sichuan Li Jie 4 people due to "intentional homicide" men 8 years and sentenced to no sin; Heilongjiang Yang Yunzhong "deliberately" 7 years. He was acquitted; Yunnan Sun Gang Wan "raped and murdered corpse" received a suspended death sentence for 8 years after the acquittal; Yunnan Chen Jinchang for "robbery and murder" received a suspended death sentence for 2 years after the release of a murderer arrested; Wang Shuhong of Yunnan because "raped and murdered prostitute" by electrocution is crippled after release, etc..

In general, these are mostly relates to the murder case, often in "after the discovery of a murderer" or "killed human reproduction" to be confirmed. However, these two situations likely are not high, therefore, concluded that, only in the death penalty case, case of the actual number will be very large, not to mention the other criminal case.

(three) the existing criminal procedure design and power allocation are not sufficient to restrict the police law, is not sufficient to protect against the personal safety of citizens and free from the power of the police

Many of our country's local public security departments arbitrary arrests off people, including large-scale arrests before capture, forensic, rarely restricted, and torture to extract confessions have been becoming universal. In this regard, I believe China ordinary citizens every adult has what one sees and hears a lot of stories. The far point that, when Mr. She Xianglin suffer grievance, he caught himself was given a suspended death sentence is not to say, his mother Yang Ngoc Huong appeal was closed for 9 months, his brother She Suolin as a brother to be shut for 41 days, some villagers Ni Leping conscience as she wrote a proof has also been closed 3 month. In such a case, we see 4 personal rights and freedom are illegally. The near point, such as the famous Chongqing "shit" in this case, Mr. Fang Hong was the detention a year of significant cases, according to the newspaper Chongqing on the public security departments to let the son of Fang Hong, and later his wife, daughter, "missing", to now also don't know what they were released without (normally should now. It). Now some are of concern to the international community character, also seems to be no legal basis for the case to be deprived of personal freedom. Here only said that several famous cases, in fact this kind of almost every hour of every day in the event of.

Especially the torture to extract confessions and disguised torture to extract confessions, investigation method, which has long been illegal savage in the rule of law and the area of basic extinct, popular in many areas of China has become. China is not only a torture to extract confessions by international human rights organizations concerned about the topic, but also the ordinary people in everyday conversation, including people from the official media, media can see, in almost every case, the misjudged case and popular criticism of the criminal cases are followed with one or more of the cruel torture the story. However, we see, in our criminal law is almost equal to the nominal charges of torture to extract confessions, 13 people almost rarely listen to the media about Chinese crime stories of torture to extract confessions. Our department ought to guarantee citizens' personal rights and freedoms, protect the innocent people from criminal litigation law, can not curb torture to extract confessions generally, not allowed to torture to extract confessions reported by police or prosecutors subject to criminal investigation, just from this point of view, the current criminal procedure design do not talk to go up "science", "reasonable".

(four) the existing criminal procedure design and power allocation, not from the system effectively guarantee the courts exercise judicial power independently, also cannot implement the Constitution on the court, procuratorate and the public security departments in handling criminal cases of mutual restraint

The constitution court, procuratorate and the public security departments in handling criminal cases, shall be responsible for the division of labor, with each other, mutual constraints, to ensure the correct and effective enforcement of the law, but for many years, in the process of criminal proceedings people tend to see only the conviction to the criminal suspect, the defendant with each other three, little or no restraint, do not do that court acquittal. Under the existing system, court, procuratorate and the public security departments three also engage in "big three" up in the air, in the office. In addition, the procuratorate for self investigation cases, they have the right of criminal suspects and decided to arrest, the institutional arrangements for mutual restriction violation of criminal case three party requirements. The causes of these conditions is complicated, but at least there is reason to believe that the existing system does not contain this class does not conform to the provisions of the Constitution and the spirit appeared the situation.

Because of the lack of mutual restraint, control effect in each occupation group with higher education in technical investigation means, almost everyone degree. For many years China's practices are, public security departments to take measures of technical investigation, totally self determined according to need, without court approval, also does not need the approval of procuratorate. Now people knowledge class, everyone knows that the public security, security department of our country want to remove who the letter on the demolition who letter, think of the telecommunications sector whose mobile phone short message record extraction extraction who wanted to listen, who is on the phone, mobile phone positioning who will monitor who is on the phone, mobile phone positioning who, and so on. Also because of the lack of control, when a public security department investigation of criminal suspects, defendants and almost no real end. In order to achieve to the purpose of criminal suspects and defendants, conviction, the public security departments and even the trial stage also can at any time and is not restricted to the supplementary investigation of the defendant. The lack of mutual restraint in the criminal case in our country the status is not balanced, the court, judges are accustomed to standing in the position to consider the issue of the prosecutor.

(five) other major weaknesses of the current criminal procedure design and power allocation

In addition to the major disadvantages of the above four aspects, the existing criminal procedure design and power allocation and some major shortcomings, combined with a brief description here:

1. by administrative organs in administrative behavior of long-term deprivation of personal liberty of the system of reeducation through labor, detaining for reeducation system should include not included in the adjustment range of criminal procedure law. From the point of view, this kind of long reviled, there be misfits and building the rule of law and respect for the constitutional protection of human rights, the system in our country, its itself shows the configuration of existing criminal procedure design and authority is be inopportune or inappropriate, basically follow is pre capitalist era practice. China citizens to protect the rights and freedom should be judicial procedure.

2 "double" system should also be included in the judicial process, equal protection as party citizens have the right to obtain the law of criminal procedure, but the existing criminal procedure failed to protect this part of personal rights and freedom. Whether to double this law system defenders have much cause, I'm afraid they can't deny that the system has been in the law is a major drawback of our criminal procedure design and power allocation. The world is now no one country's ruling party has restricted the Party cadres legal power of liberty and in fact the trial.

3 lawyers often unable or unwilling to criminal is to provide adequate legal help or defend the accused. Willing to do a criminal defense lawyer is less and less, seriously do a criminal defense lawyer investigation of evidence to the personal safety is not guaranteed, meeting with the parties everywhere bewilders, lawyers system does not play the functions of presupposition. This is more than ten years all circles in the society to see clearly the fact.

4 public trial, the lack of specific security, more attention is the general public and the society, the more major cases, is not really a public trial. Public trial is one of the most powerful way of supervision on the court, the procuratorate and the public security departments in handling criminal cases, but in the past 10 years of practice, in fact is to make constitution stipulates this system exists in name only.

In short, the dominant "criminal law amendment (Draft)" the drafting of the agencies and officials on the assessment of our criminal procedure design and power allocation status violates the spirit of seek truth from facts, a serious departure from the actual. Only the courage to face up to problems, is likely to overcome disadvantages. Only the first to achieve realistic evaluation of the existing criminal procedure design and power allocation, and then we may modify the Criminal Procedure Law

 

Two, the criminal law to protect personal freedom when first

(a), personal freedom has always been the primary human rights constitutional protection

On the personal freedom of the content, the provisions of the constitution are not identical, but one thing is the same, that is, the freedom of person from the date of the Constitution Constitution, is the most attention to protection of basic rights.

Here is a quote a few representative constitution or compared with Chinese constitution relationship rules closely constitution, help the reader understand the personal freedom in the basic rights of constitution and the basic position and a freedom of the meaning of words:

British constitutional law, 1215 "Great Charter" in restricting public power, safeguarding the freedom of person opened. "The Great Charter" the thirty-ninth stipulation: "no free man, without his peers judge in accordance with the law, or by the legal judgment, all shall not be liable to arrest, imprisonment, confiscation of property, the legal protection of the right to deprive, exiled, or in any other damage." Britain's 1676 "habeas corpus" provisions, if any person detained, can by themselves or others asked the court to review the legality of the detention, and quickly obtain a ruling, issued a writ of habeas corpus. Habeas corpus is issued under the common law judges warrant, the order will be detained person sent to court, to decide the legality of the detention. Review and issue the writ of habeas corpus is not day and night, no holidays. Officials in defiance of habeas corpus will be from different class is very heavy gold forever deprived public with varying degrees of punishment. Habeas corpus is the common law countries according to legal procedures to safeguard the personal freedom of constitutional system.

In 1789 the French Declaration of the rights of citizens "and" fifth, seventh respectively stipulates: "the right to prohibit the law only harmful to social behavior. Nothing that is not forbidden by law may be hindered ";" unless stipulated in the legal case and in accordance with the instructions of legal procedures, may be accused, arrested or detained anyone. Every move, release, executive or a execution of arbitrary orders must be punished; but according to law and be summoned or detained citizens shall immediately obey resistance constitutes a crime."

In 1919 the Weimar constitution of 114th stipulates that: "freedom of person shall not be violated. Where the use of public power to prejudice or deprivation of freedom ', but in accordance with the law before the. Where is the deprivation of freedom, later in the notify, by what authority, on what grounds or ordered it to be free, and shall be made to the person with the opportunity, make the deprivation of freedom plea."

In the first paragraph of article twenty-second of the constitution of Russia in 1993 and forty-seventh respectively stipulates: "everyone has the right to freedom and personal inviolability of rights"; "only according to the decided to court arrest, detention and custody content measures. In the court to make a decision before the arrests, shall not exceed 48 hours ";" no one can be deprived of its case by law shall be subject to the jurisdiction of the court and the judge hearing right."

The 1946 constitution of the Republic of the provisions of article 8 : "freedom should be people's physical security. In case of flagrante delicto arrest by the law on the other, the procedure prescribed by the judicial police agency or non according to law, no person shall be arrested or detained. Not by the court in accordance with legal procedures, shall not be questioned punishment. Penalties for non legal procedure, detention, arrest, interrogation, to reject. The suspect is arrested or detained, the arrest or detention authority should be arrested or detained reason, to inform himself and his designated relatives and friends, and shall, within 24 hours to the competent court for trial. I or others also may apply to the court for trial organ pipe, within 24 hours of the arrest. The court to please, the preceding paragraph shall not refuse the sound, and shall not be arrested or detained by the investigation organ. The authorities arrested or detained, the court trial, and shall not refuse or delay. People illegally arrested or detained by any organ, its oneself or others should request the court to investigate, the court shall not refuse, and should be in within 24 hours of the arrest or detention authority for investigation, in accordance with the law."

Freedom has always been the primary human rights protected by the constitution, this is more than 200 years world constitutional history shows clearly that, for people who engage in the constitution is self-evident sense.

Looked from the world scope, all countries or regions of the personal freedom of constitutional guarantee content has the following three points:

1 it is mainly to prevent the public power sector abuse of power restriction or deprivation of personal liberty.

One of the 2 the spirit of it, is that any organization or individual outside the court, the judge has no right to decide to limit or deprive the personal freedom of citizens, so it must be ordered by the court to civil custody, even have no alternative against one's will advance limit the personal freedom of citizens, public institutions should also be submitted to the court the legality quickly the review, more reasonable, the general should not exceed 24 hours or 48 hours.

The 3 restriction or deprivation of personal liberty must be in accordance with the law, not according to law rules and normative documents.

4 deprivation of liberty or limitation of law must comply with the constitution, otherwise they will be null and void as unconstitutional.

(two), the current criminal law amendment (Draft) and its legislative objective confirmation of the deviated from the Constitution

The current constitution of our country is the constitution of 1982 through history lessons in the "Cultural Revolution" and the period before the cultural revolution of public power act recklessly and care for nobody violations of civil liberty and other basic rights of the background, and then after the amendment, which guarantees the personal freedom of citizens. The present article thirty-seventh of the Constitution stipulates: "citizens of the people's Republic of personal freedom and inviolability. Any citizen, except with the approval or by decision of a people's Procuratorate or by decision of a people's court, and executed by the public security organ, shall not be liable to arrest. Unlawful detention or deprivation or restriction of citizens in other illegal ways of personal freedom, unlawful search of the body of citizens." By March 14, 2004 Tenth National People's Congress of the second meeting of the twenty-fourth amendment to the constitution, and in article thirty-third of the constitution increased "the state respects and safeguards human rights" rules.

According to the basic rights and the general principles of China's "legislative law" eighth on Fifth "deprivation of the political rights of citizens, restriction of personal freedom of the mandatory measures and penalties" matters "can only make the law" provisions of the existing constitution, article thirty-seventh related terminology understanding should be: "don't be arrested" the meaning of the freedom of person is not restricted; "illegal" refers to no legal basis or in violation of the provisions of laws, the "law" means the normative documents have general binding force formulated the National People's Congress or its Standing Committee of the law, not including the documents such as administrative regulations, local regulations and so on. Here also should see, our country constitution in protecting personal freedom, no emphasis on public institutions to advance limit the personal freedom of citizens of the case, should be in the limited time (usually in hours) will rapidly in the legitimacy of its behavior to the judicial review obligations or restriction of personal free citizens and stakeholders request immediate judicial legitimacy custody mechanism acts by rights and judicial review must be ruled obligations in how many hours. This is a drawback existing in the personal freedom protection of our constitution. According to the constitution principle, and public enforcement of the personal freedom of citizens by the constitution directly, should clearly protected, and should not be left to the criminal law protection.

The criminal procedure law in any country under the rule of law or constitutional state, should be the protection of personal freedom of citizens as the fundamental purpose. No matter from the constitutional view or from the construction of the requirements of rule of law, which is self-evident, the other on legislative purpose are not justified. Some people say that China's criminal procedural law punishing criminals and safeguarding human rights, the lack of human rights safeguard consciousness not only, also have no constitutional basis. That the criminal law legislation should be based on the protection of personal freedom of citizens as the fundamental purpose, is based on the constitutional protection of personal freedom and human rights clause. But imagine, the punishment of crime and protection of human rights put put put on a par with at the same level, the constitution it where? Which country under the rule of law is to do? The constitution is the legal validity of the highest ranking, jurists to talk on the basis of the constitution, should not be defended from or violation of constitution or the spirit of the law.

The protection of human rights and the fight against crime should not be put on a par with, equate, which is the relationship between ends and means. If you do not understand this point, we would not be able to understand why the law, so-called conservation efforts to fight crime, synonym is restrict the personal freedom of a citizen strength, is the same thing two different face.

The current "Criminal Procedure Law" in 1996 first, originally from the personal freedom rights and the human rights safeguard provisions, criminal law amendment (Draft) first a word does not change with the current criminal procedure law the first regulation, in fact is to continue to maintain the criminal procedure law of our country from the current constitution the situation. In this way, the criminal procedure law of first and the modified the criminal law legislative purpose will do the following statement: "in order to ensure the correct implementation of the criminal law, punishing crimes, protecting the people, safeguarding state and public security, maintaining the socialist social order, according to the constitution, this law is enacted." I think, the legislation purpose of criminal law provisions that deviate from the basic constitutional rights and protection of human rights and the spirit:

1 the purpose of legislation of criminal procedure law is set to fight crime, protection of state power. This reminds me of the 1979 "Criminal Procedure Law" provisions of article first: "the criminal procedure law of the people's Republic of China, Mao Zedong Thought in Marx Lenin's hands, with the constitution as the basis, the people's democratic dictatorship with the people of all ethnic groups in our country to implement the leadership of the proletariat, and based on the worker peasant alliance is the dictatorship of the proletariat and the specific experience and blow the enemy, protecting the people's actual needs." Here, the law of criminal procedure legislation to protect the state for the purpose of the image stand vividly revealed on the paper. The criminal procedure law of China in 1996 first dilution protection provisions of national political power, but to protect key does not change the actual, is the state power, not the personal freedom rights and human rights. Criminal procedure amendment (Draft) is now completely the original formulation, puzzling.

2 in fact, the criminal procedure law and criminal procedure now published amendment (Draft) no mention of the basic rights of citizens or it should focus on the protection of the personal freedom of a citizen. See, "in order to ensure the correct implementation of the criminal law, punishing crimes, protecting the people, safeguarding state and public security, maintaining the socialist social order, according to the constitution, this law is formulated, in which citizens" where there are two words, where the citizens' basic rights or personal freedom, human rights and other words? Maybe someone will say, not "Regulations on the protection of the people"? Protect people don't include the protection of personal freedom of citizens basic rights and basic human rights content? No, not this understanding completely mistaken!! Chinese constitution history though there have put "people" as synonyms of citizens. A statement such as "free" people's body, but it is contrary to the constitution principle, now in the mainland of China completely given up to the word "people" as the "citizen" is a word used, moreover, the criminal procedure law and the amendment to the Criminal Procedural Law (Draft) "in the protection of" people in people is by no means refers to the individual citizen. Here I ask the reader to note two points: (1) is a collection of people, political look people in China or any other country is composed of ruling party, state, government representatives, therefore, the protection of the exact meaning of people is the protection of the party's ruling status, rights protection, protection of the state government. (2) a strong rebuttal of the understanding, is the former Eastern European socialist countries in the event of a political upheaval, the "people's Republic of China" name, "people's" two words have been swift to erase, such as "the people's Republic of Poland" to "Republic of Poland", "the Hungarian People Republic of China" into "the Republic of Hungary" etc.. Why to erase the "people" two characters, reasons as stated above, the "people" to become "the ruling party", "state", "the government" a synonym or synonyms. The text aims to limit, here left evidence and proof.

3 "people" is a political concept, is compared to the "enemy" is concerned, only protect "people" rules will make our citizens of "enemy" rejection beyond the scope of protection of criminal procedure. So, "protect the people" in direct full range of conflict with the provisions of our constitution article thirty-third. The full text of article thirty-third of the constitution is: "where has the nationality of the people's Republic of people are citizens of the people's Republic of china. Citizens of the people's Republic of China are equal before the law. The state respects and safeguards human rights. Every citizen is entitled to rights under the Constitution and the law, at the same time must perform the duties prescribed by the Constitution and the law." Here, I still insist on the following opinions expressed in a constitution in the textbook: "legal openly bright it protects the national political belongs to the 'people' category, which logically to other people 'enemies' name excluded from the scope of legal protection. This is a very outdated, not very civilized law idea." [1]

To make the purpose of legislation in our country's criminal procedure law in accordance with the provisions of the constitution protect the basic rights of citizens and the spirit, you must modify "Criminal Procedure Law" article first, otherwise they will continue in a disjointed or contradictory state. The purpose of legislation of criminal procedure law deviates from the basic constitutional rights and guarantee of human rights legislation, is the root of Chinese current criminal procedure law in the implementation process can not effectively protect the personal freedom of a citizen, the root modifications in the criminal procedure law should be eliminated. Consider the "criminal procedural law" the first shall be amended as: "to safeguard the citizen's personal freedom rights and other basic human rights, safeguarding state and public security, maintaining the socialist social order, according to the constitution, this law is enacted."

In addition, the criminal procedure law of a country under the rule of law today, is generally not the purpose of legislation to clear out, but are in fact in order to protect the personal freedom of citizens and other basic human rights for the purpose of legislation. However, there are clear in the criminal procedure law stated in purpose of legislation, such as the 1948 "Japanese Criminal Procedure Law" first stipulates: "the purpose of this law, in criminal cases is to maintain the public welfare, to protect the basic human rights of individuals, finding out the case truth, correct Punishment Act quickly."

(three), the current criminal procedure law and the amendment (Draft) the task set also deviate from the Constitution

The criminal procedure law in terms of its task set, and also the constitution relationship is in terms of close.

1979 "Criminal Procedure Law" article second of this law the provisions of this mission is: "the criminal procedure law of the people's Republic of China is the task, to ensure accurate, timely find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution, to educate citizens to consciously abide by the law, actively with combat crime, to uphold the socialist legal system, to protect the citizens' personal rights, democratic rights and other rights, safeguard the socialist revolution and socialist construction smoothly." Look, this provides reference and absorb the 1958 "the Soviet Union and the Republic of the second criminal procedure outline" provisions, but also inherits the advantages and disadvantages of this article. The former Soviet Union criminal proceedings to outline second text is: "the task of the criminal litigation, is rapidly and completely expose criminal acts, expose crime, ensure the correct application of the law, so that every criminal who received a just punishment, so that every man will not be investigated for criminal responsibility and the sentence."

Amended in 1996, "Criminal Procedure Law", the second word has not changed, the terms are still in use. The autumn of 2011 criminal law amendment (Draft) still maintain "Criminal Procedure Law" the second original invariant. In 32 years the task of criminal procedural law have not changed a bit, this change is still the same, what this fact explains? I thought, it at least shows as follows:

1.1979 years of "Criminal Procedure Law" promulgated and implemented, the current constitution has not yet been born, so, it is self defined task may not be on the current constitution according to, it is the only legislative according to the constitution of 1978.

The constitution promulgated in 2004 2.1982 years and about "the state respects and safeguards human rights" in the constitution amendment, compared to the 1978 constitution, strengthen the fundamental rights of citizens and the protection of human rights, but this increased emphasis on "criminal procedural law" the task of no effect. The task of the criminal procedure law setting and but effective constitution completely out of line.

Set 3 of the current "Criminal Procedure Law" although the task including the "protection of citizens' personal rights, democratic rights and other rights" provisions, but protection of personal freedom of citizens basic rights or in the relative position of the secondary, primary task "Criminal Procedure Law" is still finding out facts of crime, punishment of criminals, therefore, the set of criminal procedure law and the first task is to fight against crime is to adapt to the.

4 "identify criminal facts" is not the same and the identification of "ascertainment of the truth" was, "to find out the facts of the crime" is the idea of the presumption of guilt, a file that already exists crime fact waiting for investigators to check. At least the corrections in the "the state respects and safeguards human rights" by constitutional case, this method should be replaced by "finding out the case truth".

I think, set the task of the criminal procedural law provisions can put it like this: the criminal procedure law of the people's Republic of China is the first task, the provisions of this Law shall be based on objective (protection of personal freedom of citizens basic rights and other basic human rights), to protect innocent people don't torture thing held, ensure timely find out the case truth, quickly and the correct and effective enforcement of the criminal law. Here the "executive" not "suitable", as is corresponding with the provisions of the constitution article 135.

(four), the criminal procedure law should be in accordance with the provisions of the constitution the comprehensive protection of citizens' personal freedom

As mentioned before, the protection of the Constitution for the thirty-seventh article of the personal freedom of a citizen is comprehensive, and not to any part of the personal freedom of citizens out of legal protection and judicial protection. Therefore, the constitution, deficiencies in the protection of personal rights of the public power organization, mainly just detention or restriction of personal liberty in the absence of regulations should be in several hours the legitimacy of their arrest behavior to have the right to organize the examination on the control of the.

However, compared to the constitution, has been implemented in China for 32 years of "Criminal Procedure Law" and the announcement of the amendment to the Criminal Procedural Law (Draft), is to narrow the scope subject the protection of personal freedom. Specifically, is the "criminal law" and the draft amendment to the public security department actually limit the use of administrative means or deprivation of personal liberty left a lot of space, but also to the ruling party discipline inspection departments to limit the use of "double" and other ways to hold public office party's personal freedom to limit and interrogate them leave a lot of space.

The current "criminal law" in violation of the provisions of the Constitution and the spirit, narrowed substantially free enjoy the subject scope of the body should protect people, mainly reflects the change range in the not included in the "criminal law" article third and article twelfth of the relevant provisions. "Criminal Procedure Law" third stipulates: "in criminal cases investigation, detention, arrest, pre-trial, public security organs shall be responsible for. Approval of arrest, prosecution, procuratorial organs investigation of cases directly accepted by the prosecution, the people's Procuratorate, responsible for. The trial by the people's court shall be responsible for the. Except as otherwise provided by law, any other organs, organizations and individuals have no right to exercise such powers." Is that defects of this provision, it is in fact the will eventually lead to the parties are long-term deprivation of personal liberty in the case of logically divided into "criminal" and non criminal case two, for the judicial practice, a considerable portion will eventually lead to any party concerned be months or even years of deprivation of Liberty cases to be excluded from the scope of the court trial jurisdiction, make their personal freedom and lose the protection of criminal procedure. Defects in this area, not only is the "cause" of the criminal procedure law, but "Criminal Procedure Law" should bear the main responsibility.

Similarly, "Criminal Procedure Law" article twelfth, also in violation of constitutional provisions and spirit substantially narrowed the scope of the subject should be a clause to protect personal freedom. This stipulation: "without the approval of the people's court to sentence, no person shall be found guilty." This article looks positive seems to be in the role of basic rights and protection of human rights, but is in fact very negative. The world today is freedom penalty punishment, criminal punishment is the basic form of deprivation of liberty, therefore, the penalty essence for deprivation of personal liberty, social more modern, more so. However, China's "criminal law" article twelfth to many citizens of wrongdoing nominally excluded from "crime", but the citizens suffer punishment in the essence of sanctions, but was not affected by the court trial or protected by criminal procedure rights.

Such a system, such as labor and detaining for reeducation, is clearly in violation of the Constitution and the spiritual, should be from the "Criminal Procedure Law" of change. China's criminal procedural law is not affected by the criminal procedure law of great effect, if today we would deny detaining for reeducation camp, the constitutionality and legality, then, from 1923 "Criminal Procedure Law" provisions of article fifth of the Soviet Union, the twelfth shall be modified as "the people's court according to law without judgment, for any person shall be found guilty and deprived of their liberty", that the amendment of the criminal procedure law can be said to have real progress. In 1923 the "code of criminal procedure," the Soviet Union the provisions of article fifth: "any person who is not required and the law firm occasions prescribed formalities, shall not be deprived of their liberty and custody."

In this sense, the current "criminal procedural law" the third and twelfth can be said to have great and hidden defects, but also a serious violation of the fundamental rights and human rights of citizens. In particular, these regulations often makes the juvenile adults than in personal freedom in a more disadvantageous position, which is one reason I was highly concerned about the Beijing Lee hit. Can say, "criminal procedural law" the third and twelfth are actually for reeducation through labor, institutionalization, dual gauge deprivation or restriction of personal freedom, legal system of unconstitutional provisions do not reserved space.

As for the Constitution itself some shortcomings, such as the constitution of the public security departments, the procuratorial organs on the suspect, the defendant criminal compulsory measures lack of time limitation, "criminal procedural law" and the amendment to the Criminal Procedural Law (Draft) does not seem to be in the spirit of the rule of law to reduce or eliminate the Constitution itself defects, but further use and expand its illegal components tendencies. "Criminal Procedure Law" revision and implementation of the past is such, this change also apparently still follow this trend continues to decline. What extend its time, remote surveillance, what secret arrest, is the illegal treatment direction decline, legislation constitution original defects on the personal freedom of citizens of a concrete manifestation of the expansion of the injury. The National People's Congress and its Standing Committee and all the other is committed to building a socialist country ruled by law and strength, should be resolutely curb and reverse the legislative process to the illegal direction down trend.

The amendment of the criminal procedure law can the provisions of the constitution protection of personal freedom of citizens basic rights and other rights and spirit, range depends on whether or not to have the power to make the police power regression of the constitution, the power structure in restoring the balance. This balance is fundamentally a balance of power and right structure, namely between investigative, procuratorial power and the citizen basic right balance, but also include the balance of power - power structure content, such as court, procuratorate and the public security departments should not only form according to the provisions of the constitution of science, and to rationalize the relation between force true, is conducive to the independence of the judiciary arrangement.

Three, ensure the freedom of person focus should be on the control of investigation right

[Note: the whole society should continue to focus on "Criminal Procedure Law" amendment. From now on to the review of the National People's Congress, voting "criminal law amendment" and about 4 months time, the NPC Standing Committee on agency draft time although has passed, but the law, law on "study cannot stop the amended Criminal Procedure Law", the social from all walks of life content modification of "Criminal Procedure Law" concerned cannot stop. All of these research and attention, still can influence the law changes affected by the National People's Congress, the National People's Congress Standing Committee and the State Party and government leading bodies. Only if we continue to work hard, "Criminal Procedure Law" to amend the results may be slightly ideal point. ]

"According to the constitution, this law is enacted," not a liar. The amendment of our criminal procedure law, in the final analysis, is a can carry out to the implementation of the relevant provisions of the Constitution and how much of the problem of. Amendment of the criminal procedure law according to the provisions of the constitution, should first of all is to ensure the freedom of person, the right to private property rights, the State shall respect and ensure human rights, provisions of the construction of the rule of law, and the court, the procuratorate and the departments of public security organs to handle criminal cases "should be responsible for the division of labor, with each other, mutual constraints, in order to ensure the correct and effective enforcement of the provisions of the laws". All these facts indicate that, the main problems of our criminal procedure system, mainly is the power of investigation is too large and restricted by the few. So, the basic direction of modification of criminal procedure law should be to strengthen the control of the investigation right. Our investigation is the main public security department, a lesser degree, the procuratorial organs and state security departments.

(a), the power of investigation in China, the restriction of little nowadays have no equal in this world

From the point of view, the public security department is a common Department of state administrative organs, but it gives the current "Criminal Procedure Law" authority is unusual large, or even make it size and range far beyond to guarantee the basic rights of citizens and the need to maintain law and order. It is not easy to recognize that people working in the investigation department or organ of power, because the person will always be their power is not enough, will require extended power, this is Montesquieu a few years ago revealed law. But we specialize in comparative constitutional law and comparative political system, and the on-the-spot investigation of some countries and regions of the people, is a very simple to understand the facts. China's "Criminal Procedure Law" awarded the subject of investigation power, restricting little have no equal in this world situation, is reflected in two aspects:

1 the law to the public security departments in the administrative organs set aside without judicial procedure, not from other state organs which exercise alone, deprivation or restriction of adult and juvenile male and female citizens freedom of the person of up to several years in terms of space. Public security departments can decide deprivation or restriction of personal freedom of citizens in various ways, including deprivation or restriction of citizens' personal freedom time up to January, months, years of reeducation through labor, institutionalization, bail, residential surveillance, detention etc.. I had already discussed the. Literally, our criminal law is not directly to the public security departments of these terms of reference, but the makers of laws carefully arranged, is always the default, conniving, admits the public security departments of these terms of reference.

2 in the investigation, the law gives the public security departments to exercise independent many should follow the principle of human rights and the rule of law principle should be after the court approval to or under the command of exercise of powers, these powers include: in order to collect criminal evidence, the crime, the criminal suspect and may hide criminals or criminal evidence of human the body, articles, residence and other relevant places in search; investigators think when you need to detain suspects mail, telegraph, notify the post and telecommunications offices to mail, telegraph inspection to seizure; query, freeze the suspect deposit, remittance; for the escaped criminal suspects arrest warrant issued, etc..

As far as I know, like China's "Criminal Procedure Law" acquiescence or grant power of investigation subjects above two super power, all the countries in the world have nearly extinct, in China's Hong Kong and Macao area does not exist already. Even in less developed countries, the two aspects of the practice in the system that is extremely rare. Perhaps it is because with very limited knowledge and scanty information, the authors of this paper have not know the world in addition to the three or four wide by the negative appraisal of international society of the country, any country in the administration of police departments can now also have to do so, do not accept the judicial review power.

Can say, in our country in 30 years of "Criminal Procedure Law" to help China make a and its constitution and legal status disproportionate, in fact has the super power of public security department. Here the "helped to create" this statement, because the abnormal power allocation form, by taking class struggle as the effect of gang, as "regime" to "suppress the rights" of the specific historical background and other factors, should not be the responsibility of all attributed to the enactment of this Law who.

Amendment to the criminal procedure law from the Standing Committee of National People's Congress promulgated relevant working organs "(Draft)" of the text, it not only failed to reduce and limit the subject of investigation in our country authority, but gives it more power. Indeed, the draft amendment to the criminal procedure law is to do some meaningful new regulations, including lawyers met with the suspect, the defendant, effect of evidence, witness testimony and witness, standardized the Supreme People's court review of death penalty procedure, further regulate the summary procedure and adding a special program, etc.. However, these proposed changes did not make the current criminal procedure system obviously close to the guarantee of human rights and the rule of law, it is some other modifications proposed in our litigation system was further opened the distance and the protection of human rights and the rule of law. These proposed changes, mainly has the following draft amendment of the Criminal Procedure Law: about can be specified in the implementation of residential surveillance residence, and the provisions of the secret to residential surveillance; provisions about the secret arrest and secret detention; about will be summoned, summon duration from 12 hours extended to 24 provisions of the provisions on the; procuratorate arrest custody in a case directly accepted by the people of the time from 10 days to 14 days; on the investigation department decide to apply the provisions on measures of technical investigation; by specific personnel in the implementation of secret investigation, etc.. These are all very excellent alienation guarantee of human rights and the rule of law content.

The relevant state authorities of these proposed changes to the public power behavior, are the relevant departments or organizations can use, internal control, no other state organs for approval and is not restricted by the other state organs. This change if the exercise of authority, will significantly expand further to the public security department investigation power which subject to go against the spirit of human rights and the rule of law principle means of space, but also bound to the personal freedom of citizens basic rights such as the greater threat.

Can say, the current criminal procedure law "and" criminal law amendment draft basically belong to the first for the convenience of the public security departments, the procuratorial, judicial and convenient security authorities exercise authority through, then the power is limited, how much of a legal document is somewhat protective effect of personal freedom of citizens the basic rights or draft legal documents. The method of normative documents to the public security public authority or authorities are real, they restricted the activities are often look impressive but lack real worth, many of which the subject of public powers such as "not", "must", "no", "strict", " should be held accountable" provisions, are nowhere to be found in the China legal system by the specific punishment in violation of. Of course, the behavior of torture to extract confessions in criminal law stipulates the crime of torture to extract confessions, this may be an exception, but the charges never get a decent application, some areas in a few years time is continuously exposed a lot of torture to extract confessions, but people never see a report of torture to extract confessions suspects according to law investigation, no or a few more people be convicted.

The historical tradition and the behavior of public institutions China decades the exercise of public power is always: statutory powers to maximize the expansion of its own, until the top grid or more lattice, fundamental rights and human rights at the same time the maximum compression of citizens, until the statutory minimum, or even compressed to minimum the following. In this regard, the public security departments in China and the performance of the historical record, in public institutions is perhaps the most representative. China's public security department remit, formed in the class struggle as the key link, advocating "regime is its right" s, at that time they seized the state power in the total share of the extraordinary and the absolute amount. Until after the reform and opening up, because of a lag of the construction of rule of law and democracy, "维稳" needs, they are basic to successfully defend "their" power to share, in recent years that they not only do the "hedging" or even "value-added".

Perhaps is the result of power law revealed by Montesquieu, China's Public Security Department of code of conduct, not only to make every attempt to make is always the total power and share hands does not reduce, also managed to make its value. It follows the logic, according to some scholars said: "from the ability to combat crime, since it took some investigative authority, it is necessary to make some compensatory provisions".[1][1]So we can see that, in the opinion of the idea of people: first, public security departments have the inherent power of their own, this power must not with the deepening of democracy, rule of law and the corresponding shrinkage process. Second, it seems that the so-called "ability" crime and "restrictions on civil rights and freedom, the ability of" two kinds of argument is not the same thing or two different sides; they do not know their own, in the form of death insurance "ability to tackle crime", is actually a little also unwilling to give up "restrictions on civil rights and the free capacity", doesn't let the new code of criminal procedure law litigation than progress.

In this case, to make the revision of criminal procedure law progress is difficult, because it not only relates to the balance of forces, change, but also the rational degree of the heavy hand of the right treatment and disposal related problems.

(two), the amendment of the criminal procedure code and depends on the success or failure control investigation right

Civil rights and public power should form and maintain balance. The basic characteristics of China's legislative power configuration, has for decades been too small to civil rights, state power as the external manifestation of the public power is too large, serious unbalance between them. In recent months, law circle, many people are talking about the criminal law amendment is progress or retrogression problems, Different people, different views., unable to agree on which is right. In fact, the amendment of the criminal procedure law to measure progress, relatively simple, it is to see to the public security departments as subject of investigation power loss, loss of less is more backward, less loss of much progress, but progress and regress degree, is the total and the gain and loss of the corresponding. Because, the constant in the other related factors, legal right is a constant, the public security subject investigation power too large will compress the personal freedom of citizens basic rights.

That 30 years of judicial practice, the implementation of the Constitution on the court, procuratorate, public security three party in handling criminal cases of "division of labor with individual responsibility, mutual cooperation, mutual restraint, in order to ensure the correct and effective enforcement of the key provisions of the law", is the accurate understanding of "interaction" and strictly implement the "mutual restraint". Always show this understanding bias, "cooperation", is to test the three often ignore its aim is "to ensure the correct and effective enforcement of the law", the constitution tend to "cooperate" the objective, according to their own imagination up "crime";As for the "mutual restraint", it is often downplayed, ignore. Countless facts (such as the crime accused to obtain the death penalty for large case) shows that, for criminal case processing three party relationship in the method of inspection, the implementation of the criminal procedure law for 32 years the biggest lesson is the lack of mutual restraint, especially the control trial on the right. From the point of view, the amendment of criminal procedural law to solicit opinions, the situation is still so.

Changes in the law of criminal procedure, our macro pattern of the face has three characteristics: (1) in all right (legal rights), the powers and rights of the imbalance, the power is too strong, the right not to control or balance of power; (2) in the internal structure of power, investigation power volume and coverage of large, judicial status is too low, the coverage is too small, the procuratorial power of small economies, but in specific areas than jurisdiction more strong; (3) the organization of investigation power and embodies the strong power of investigation, to include the modification process have decisive effects on the criminal procedure law.

In the power structure, while the comprehensive and accurate implementation of relevant clause of the constitution to strengthen the criminal procedural law restricting the power of investigation, but we can do this, but also depends on three factors: (1) reflect the investigation power politics or public organization rational, this factor can directly and effectively effect of the amendment of the criminal procedure law; (2) the relative investigation power is the whole citizen's awareness of human rights the superiority and directly reflect the size and quality of human rights investigation power relative requirements calls. The factors mainly manifested as individual deputies to the National People's Congress, the Standing Committee, legal experts, legal experts of the occupation and the populace (especially the netizen) voice; if high quality voice, have certain effect; (3) the ruling party based on the party's ruling responsibility, ruling interests, modify the orientation effect process applied to the criminal procedure law, the impact will not be such as the power of investigation organization so direct, but once it is to play the role, will be effective, can make a decisive choice when different controversial.

To promote empathy, need more parties with reason and wisdom to resolve the political factors hamper empathy. A legal profession to modify the controversy in the review of criminal procedure law says: "sometimes, many key problems, don't stand in the parochial prejudice on the question. If you can think, a lot of things can be a consensus."_[1][2]This is very reasonable, but we also can not forget the transposition thinking is to have a political basis, but in our country there is no political basis how much of this. In today's China, due to the political resources completely centralized control and plan arrangement, any space almost no political market resources allocation. One of its results, is the top grade less poor things, no family, the ruling class and the ruled class status has been immobilized. In this context, once a person enters the ruling class, he / legal status she would never again to return to the ordinary citizen, not from the investigation power relative position to consider the issue of the social environment, although the potential relative person they are the right of investigation from the objective; while others have a right of investigation relative position, never had a real chance to participate in the management of public affairs, do not have from the investigation power control problem considering the perspective of social environment. Therefore, our country with the exception of a few social status has change radically, rich experience and extremely Renming wise people outside, people from all walks of life to amend the problem is unlikely to be empathy in criminal procedure law, to say the transposition thinking, people are also often only in different positions in the ruling body of empathy, unlikely to control and the investigation right in investigation power between the relative transposition thinking.

These conditions exist, whether it means that the amendment of the criminal procedure law can not focus on the implementation of check the power of investigation on? No, not at all. To check the power of investigation, partly in the hope of National People's Congress, the National People's Congress Standing Committee Office activities and legal experts, legal experts and the occupation activity, partly in the hope that the ruling party in the ruling party, the ruling is based on consideration of the interests of the responsibility, to adapt to the people and the trend of the times, in the protection of human rights, rule the rule of law, strengthen the investigation power control direction influence, the organization may also partly in the hope of representing the power of investigation shows sufficient reason.

(three), the investigative subject to compulsory measures taken into mutually restricted range

The investigation organ shall not have the right to decide on the enforcement of criminal suspects and defendants, take, take compulsory measures must be decided by the court, the judge to review -- this is the rule of law country in the world to restrict the right of investigation practice, in our country should be the implementation of the Constitution on the protection of human rights, the construction of a country under the rule of law and criminal case court, procuratorate and the public security three the mutual constraints and other aspects of the provisions of the absolutely necessary procedures.

The amendment of the criminal procedure law how to check the power of investigation? Don't talk about the ideal scheme, to mention only a few points in our country has entirely possible amendments. Originally, taken to the compulsory measures against public security departments, the procuratorial organs approved can also embody the mutual restriction, but it's not a fair judgment organization, it is customary to rule the country by law by the court for examination and approval is better. Based on this consideration, I suggest the "criminal law amendment (Draft)" (hereinafter generally referred to as "the draft") on the relevant provisions of the investigation subject to compulsory measures are taken, to the following contents:

About 1 of people's Procuratorate and the public security departments to monitor suspect bail, residential surveillance shall be accepted. "Draft" sixty-third text ": the people's court, the people's procuratorates and the public security organs shall, according to the circumstances of the case, the suspect, the defendant can summon, bail or residential surveillance."

"Draft" sixty-third may be amended as: "the people's court, the people's procuratorates and the public security department according to the circumstances of the case, the suspect, the defendant can summon, bail or residential surveillance. But the people's Procuratorate, the Public Security Department of the suspect, the defendant to obtain a guarantor pending trial or for residential surveillance shall be approved by the people's court review. If the criminal suspect, the defendant argued the need not take a guarantor pending trial or residential surveillance of coercive measures, can sue to the court, the court shall trial, timely decisions. A trial against the ruling, the people's Procuratorate, the public security departments can protest or appeal, criminal suspects, defendants can appeal."

The revision reasons: the necessity for such changes is: long term of restriction of freedom of person, should be decided by the court; to avoid unnecessary taken coercive measures; there was no legal basis for the arrest itself, bail or residential surveillance in essence has been transformed into the procuratorates and the public security departments of criminal suspects for punishment situation, even turn to cover up the procuratorate, public security departments to catch the wrong way; in accordance with the constitution, "security" can be called the authority, also known as the Department, to straighten out the constitutional order, here called "the public security departments unified".

2About surveillance of residence. "Draft" seventy-third Original: "residential surveillance shall execute the criminal suspects, defendants in place; no fixed residence, can be specified in the residence of execution. For the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the place of custody, special case handling place execution. The specified home residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the premises, in the implementation of residential surveillance within 24 hours after notification under residential surveillance, the families of the people. The specified home residential surveillance, criminal suspects, defendants to entrust defenders, this Law shall apply to the thirty-third. The supervision of people's Procuratorate to specify the decision and implementation of residential surveillance is legal residence."

"Draft" seventy-third can consider to make the following changes: (1) the "draft" seventy-third first item is amended as follows:"Residential surveillance shall be carried out in the criminal suspect, the defendant's; no fixed residence, should as far as possible in their relatives and friends Home Furnishing live; do no friends willing to take, can be executed in the designated residence, but their relatives can often visit." So the reason for the modification, is necessary to prevent residential surveillance was transformed into de facto imprisonment. (2) abolished "draft" seventy-third on the designated home residential surveillance of other provisions.

The revision reasons: the specified home residential surveillance from residential surveillance of the original meaning, a de facto imprisonment, and may not notify the family of the secret detention; the people's Procuratorate or public security departments to make this provision may bypass the trial procedure, and is not restricted by the other state organs, since the time limit or is in fact long-term deprivation of citizens freedom of the person, this is not in conformity with the provisions of our constitution about the construction of a country under the rule of law and respect, the protection of human rights.

3 on bail, surveillance of residence time. "Draft" Seventy-eighth first words: "the people's court, the people's procuratorates and the public security organs of criminal suspects, defendants bail shall not exceed 12 months, residential surveillance shall not exceed 6 months."

"Draft" Seventy-eighth first can be amended as: "the people's court, the people's procuratorates and the public security departments in accordance with the provisions of this Law on the procedures of criminal suspects, defendants bail shall not exceed 6 months, residential surveillance shall not exceed 3 months."

The revision reasons: the suspect, the defendant in the compulsory measures actually and sentenced to public surveillance is, in practice, it is often disguised as a penalty in the use, the time should not be too long.

About 4 of the procuratorate the arrest of a criminal suspect reported court approval. "Draft" 162nd words: "the people's Procuratorate in a case directly accepted in accordance with the law eightieth, eighty-first and fourth, the provisions of the fifth case, need to arrest, detention of criminal suspects, decisions made by the people's Procuratorate, shall be executed by a public security organ."

"Draft" 162nd may consider appropriate is amended as: "the people's Procuratorate in a case directly accepted in accordance with the law eightieth, eighty-first and fourth, the provisions of the fifth case, need the detention of criminal suspects, decisions made by the people's Procuratorate, shall be executed by the public security department. In the same situation need to arrest a criminal suspect, approved by the people's Procuratorate reported to the people's court for review, approval by the public security departments to implement."

The revision reasons: to respect, protect human rights principles and spirit of the rule of law, any exercise the power of investigation organs or departments should not have the discretion to arrest a criminal suspect authority; constitutional provisions on three party inspection company in handling criminal cases of mutual restraint, also does not allow the investigation departments or organs have the discretion to arrest a criminal suspect authority.

5A detainee shall report to the examination and approval of the arrest of the court. "Draft" 164th words: "the people's procuratorates custody in a case directly accepted by the people, deems it necessary to arrest, it shall make a decision within 14 days. In exceptional circumstances, decide the time of arrest can be extended by 1 days to 3 days. The arrest is not necessary, he shall be released immediately; if further investigation is necessary, and in line with the bail, monitoring living conditions, in accordance with the law of bail or residential surveillance."

"Draft" 164th can consider is amended as: "the people's Procuratorate custody in a case directly accepted by the people, deems it necessary to arrest shall, within 3 days, reported to the people's court for examination and approval. In special cases, reported to the people's court time could be extended by 1 days to 4 days. The arrest is not necessary, he shall be released immediately; if further investigation is necessary, and in line with the bail, monitoring the living conditions, in accordance with laws and regulations, reported to the people's court for review, approval of bail or residential surveillance, without approval shall be released immediately."

The revision reasons: the people's procuratorates exercise the powers of arrest should be restricted by the people's procuratorates and the public security departments; the nature of the work are not the same, enjoy to decide the detention of criminal suspects reason had no public security departments as fully, and detention is deprived of personal freedom of citizens, in accordance with the guarantee of human rights and the rule of law spirit, the people's procuratorate should not have to deprive citizens free 14 day long terms; it is necessary to prevent the first held, after the evidence.

About 6 were arrested the detainee. "Draft" ninetieth words: "the public security organs of the detainees, deems it necessary to arrest shall, within 3 days after the detention, submitted to the examination and approval of the people's procuratorate. Under special circumstances, the time limit for submission and approval may be extended by 1 days to 4 days. For major suspects flee hither and thither, repeatedly committing the crime, gang crime, the time limit for submission and approval may be extended to 30 days. The people's Procuratorate shall, after receiving the request for approval of arrest from a public security organ within 7 days, to approve or disapprove the arrest decision. The people's Procuratorate does not approve the arrest, the public security organ shall be released immediately after receiving the notice, and the implementation of timely notify the people's procuratorate. If further investigation is necessary, and in line with the bail, monitoring living conditions, in accordance with the law of bail or residential surveillance."

"Draft" ninetieth may consider appropriate is amended as: "the public security departments of the detainees, deems it necessary to arrest shall, within 3 days after the detention, apply to the people's court for examination and approval. Under special circumstances, the time limit for submission and approval may be extended by one to 2 days. For major suspects flee hither and thither, repeatedly committing the crime, gang crime, the time limit for submission and approval may be extended to 10 days. The people's court shall, after receiving the request for approval of arrest from the police department within 7 days, to approve or disapprove the arrest decision. The people's court shall not approve the arrest, the public security department shall be released immediately after receiving the notice, and the implementation of timely notice of the people's court."

The revision reasons: the police arrested the suspect approved by the court, the judge to review, more in line with the protection of human rights and the rule of law spirit; the police decide the suspects will be detained for 30 days, not in conformity with the protection of human rights and the rule of law.

(four), will be an important subject of investigation in the investigation activities and interaction range

In the course of the investigation, the investigation subject to serious violations of citizens' freedom of the person, property rights and other basic rights. Our criminal justice process of serious violations of the fundamental rights of citizens and the human rights situation, mainly occurred in the investigation stage, the most important cause of criminal law, is not in accordance with the provisions of the Constitution and the full implementation of the principle of rule of law and the spirit of mutual restriction principle, the lack of restriction on the investigation main body. In this regard, no criminal procedure law any modern country under the rule of law as the investigation activities in our country's criminal procedure law so indulgent investigation right. I should like all modern rule of law countries and regions, will be the main subject of investigation into the scope of investigation is restricted by the court or other state organs.

1 search. "Draft" 133rd words: "in order to collect the evidence of the crime, the crime, the criminal suspect and the investigators may might be hiding a criminal or criminal evidence, the human body, articles, residence and other relevant places."

"Draft" 133rd may consider appropriate is amended as: "to collect the evidence of the crime, the crime, the criminal suspect and the investigators may might be hiding a criminal or criminal evidence, the human body, articles, residence and other relevant places were searched in the approval of the people's court."

2 on the detain suspects mail, telegraph. "Draft" 140th words: "the investigators think need to detain suspects mail, telegraph, approval of the public security organ or the people's Procuratorate, notify the post and telecommunications offices to mail, telegraph inspection to seizure. Do not need to continue to detain, shall immediately notify the post and telecommunications offices."

"Draft" 140th may consider appropriate is amended as: "the investigators think need to detain suspects mail, telegraph, approved by the people's court review, approval documents issued by the court simply notify the post and Telecommunications Department, post and telecommunications departments should be approved by the document specified mode and time execution."

3 on the frozen suspect deposit, remittance. "Draft" 141st words: "the people's Procuratorate, the public security organ according to the investigation of a crime, you can query, freeze criminal suspects in accordance with the provisions of the deposit, remittance. The suspect's deposits, remittances have been frozen, it may not be frozen again."

"Draft" 141st can consider is amended as: "the people's Procuratorate, the public security organ according to the need for crime investigation, approved by the people's court to review, in accordance with the law, criminal suspects query frozen deposit, remittance. The suspect's deposits, remittances have been frozen, it may not be frozen again."

4 on the technical investigation. "Draft" in the current regulations based on the increase in Section 1, a total of 5 (147-151), highlight the shortcomings of these terms, is to give the relevant investigative subject to decide the implementation of technical investigation power, without other state organs or departments control. This problem will continue the discussion in the follow-up single study.

5 on the most wanted. "Draft" 152nd words: "criminal suspect who should be arrested a fugitive, a public security organ may issue a warrant, take effective measures, hunt him down. The public security organs at all levels within the area under its jurisdiction, arrest warrant can be issued; areas beyond their jurisdiction, shall be reported to higher authorities the right to decide the release."

"Draft" 152nd may consider appropriate is amended as: "a criminal suspect who should be arrested at large, the public security organ of the people's court for examination and approval, may issue a warrant, take effective measures, hunt him down. The public security organs at all levels within the area under its jurisdiction, subject to the approval of the regional people's court review, can be directly issued arrest warrants; areas beyond their jurisdiction, shall be approved by the people's court at the corresponding level shall have the right to decide after the Department issued."

Chinese socialism, in the criminal justice system, it should absorb the advanced achievements of human civilization, the effective protection of the personal freedom of citizens basic rights and human rights. In this regard, the effect is the sole criterion for testing truth. In any case, in the field of criminal justice China characteristics of socialism, should not show particularly large, especially the investigation organ of power is not restricted, the basic rights and human rights or can easily infringe.

Four, the amendment of the criminal procedure law should earnestly implement the democracy and human rights, the principle of the rule of law

In late December 2011, the eleventh session of the National People's Congress Standing Committee of the twenty-fourth session of the new draft criminal procedure law in mid December by the relevant institutions to absorb all comments out of the draft amendment. From the latest draft manuscript and the disclosure of the review, legal opinions and other private opinion somewhat produced some positive effects on the amendment to the Criminal Procedural Law draft. Now from the amendment to the Criminal Procedural Law draft submitted for more than a month of time in 2012 the National People's Congress meeting for consideration, care to modify the criminal procedure law jurists should make persistent efforts, using this last period of time, as much as possible to promote the amendment to the Criminal Procedural Law constitutional democracy, rule of law and human rights protection requirements. Of course, not the constitution supervision system of effective (or constitutional review system), the relevant provisions of the constitution is very difficult to implement. But we also should see, the constitution as the supreme law of the evaluation basis and legislative quality scale, reality could play in the promotion of democracy, rule of law and the protection of human rights in the process and the potential efficiency is still very large. Based on this understanding, this paper will discuss the basic principles of the Constitution and other provisions to implement the problem in the process of criminal procedural law, not only focused on the modification of criminal procedure law of the current, is also looking to the future changes. [1]

(a), there are all the rights related to modify ignore the constitutional principle the implementation of the country belongs to the people, respect for and protection of human rights, the rule of law from the formulation to the criminal procedure law, the provisions of the constitution of our country not only, also learn basic principles of the constitution recognized the constitution. We can simply be called democracy and human rights, the rule of law principle, three. The legislative constitution or modify any law, primary obligations are the basic principles of the constitution. From the unified rule of law and legal point of view, a criminal law or, depending on its formulation, amendment and interpretation can effectively carry out the basic principles of the constitution. Our country from 1979 through the entry into force of the criminal law to the latest draft revised criminal procedure law draft, in carrying out the basic principles of the constitution, seem to be not without regret. The criminal procedure law in this aspect of the problem, only from the form, on the surface, they stick out a mile. The existing data show that, the formulation and revision of China's criminal procedural law, from 1979 to the present, the legislative organ and its personnel in the basic principles of the Constitution and the relevant regulations, did not seem to have been studied and discussed the husband, and the criminal procedure law and the constitution, historically is always two skins. The criminal procedure law of China is 1979 through 1980 July, went into effect in January, while the current constitution promulgated in 1982 December. The 1979 Criminal Law is to cut out the constitution of 1978 we leave it for the time being, but the criminal procedure law of the relevant provisions of the constitution of 1982 did not carry out is the fact that stick out a mile. Since 1979, the criminal procedure law of first stated "this law is enacted in accordance with the constitution," in the "constitution", is the 1978 constitution, not the constitution of 1982. The criminal procedure law should be the protection of personal freedom of citizens basic rights such as the most important law. Compared with the 1978 constitution, the constitution of 1982 in democracy, safeguard the fundamental rights of citizens and carry out the spirit of the rule of law and fundamental aspect is the significant progress, but after the promulgation of the constitution of 1982, the criminal procedure law passed in 1979 didn't do anything to modify a little bit.

   But, even in 1996 revised the criminal procedure law, the Law Committee of the NPC Standing Committee Chairman Gu Angran in March 12th at the four meeting of the eight session of the National People's Congress on amendment to the Criminal Procedural Law (Draft) to consider the situation illustrated and published by the NPC Standing Committee, no member or institution in the revision process the method of attention and consider its "according to the" constitution of this important situation is not the same constitution.

   Revisions to the 1996 criminal law, the constitution of our country after the 1999 March and 2004 March two important amendments, which include writing "the rule of law, building a socialist country ruled by law" and "the state respects and safeguards human rights" two provisions, so as to clear, direct writing, that originally only implied basic principles in 1982 the constitutional safeguard of human rights in the Constitution and the rule of law two. Clear the two basic principles of the constitution, the criminal law can not put forward new requirements. However, since China's legislature did not seem to consider the related constitutional amendment stipulates the principle of criminal law perfect. This is the important reason and manifestation of our criminal procedure law and the constitutional separation.

   In August 30, 2011, the NPC Standing Committee on agency announced the draft amendment to the criminal procedure law and the explanation of the draft amendment to the Criminal Procedural Law, in consultation and made improvement and review. I seriously study, read you can find the criminal law revised draft text, I feel, the criminal procedure law in 2011 December, the NPC Standing Committee to consider the draft amendment to a new release on the whole is good, but still failed to consciously implement the relevant provisions of the constitution, the draft amendment to the criminal procedure law and the new draft constitution that still looks "two pieces of skins", "according to the constitution" words are still just words. In this situation, the National People's Congress or its Standing Committee members have the responsibility to pay attention and try to improve.

 (two), the amendment of the criminal procedure law when changes in the procedure more fully embodies the democracy

   The Constitution stipulates: "all state power belongs to the people"; the people passed by the National People's Congress and local people's congresses exercise state power. But, needless to say, our plan is implemented as a political, political resources, the National People's Congress and the Standing Committee of National People's Congress position basically above are concentrated and top-down to distribute according to a plan, arrangement. The National People's Congress election mainly are indicative only, do not have the political market resources allocation function. Therefore, the Democratic base law making in China include the criminal procedure law and modify, very weak.

   People "some scholars or legal real right in the discussion of the amendment of the criminal procedure law, earnestly exhorted the National People's Congress or the Standing Committee of National People's Congress and the political and legal institutions and other public authority in empathy", which is not actually too naive, is to ask a tiger for its skin. In the decades unchanged plan under the political system of our society, the ruling class and the ruled class, character is basically fixed: people of the ruling class, almost always in the ruling position role, they only generalized the role division in the identity, as well as the similarities and differences of authority or department. As long as no crime or without gross negligence, members of the ruling class will never return to the ordinary citizen, the ordinary position. The original people in the ruling class position even in retirement, or indirectly ruling function, maintain vested interest, including car, the Secretary and the right to speak, but from the first relegated to second-line. This situation makes people ruling class in determining policy or participation, legislation, without position thinking, did not need to stand in the common people or the ruled class weigh the pros and cons.

   Because of the lack of competitive election, our country social stratum structure is rigid, the people in the ruler class is usually not possible "Empathy", but in general people rulers status cannot be "transposition thinking". Because, for the latter, they in the system basically do not have the subjective efforts, with their knowledge and ability to rise to the ruling class and the ruled class, also not included from the ruling class normal regression ordinary citizen. This situation makes the ruled class people may not have the "Empathy", experience and understanding as a ruler on the objective social conditions. So, as long as the dominant role and ruled role cannot form the fluidity has been on translocation through competitive election, there can be no "Empathy" or "transposition thinking". In a large population of the country, representative democracy is democracy foundation, the highest organ of state power lack of representative democracy, democratic legislation, should is the premise of normal function must never speak.

   Of course, the construction of democratic legislation necessary representative is not based on the amendment of the criminal procedure law can solve the problem, but we should see the evils which lack sufficient representative democracy and trying to make up for its shortcomings based. The main methods to make up can be as far as possible the transparent, fully discussed, the advantages and disadvantages of weighing different options, strive for the widest possible consensus in the social stratum. In this process, the legislature for special attention and critical scholar communication, because democracy is not perfect, the historical conditions in ch, objectively, is this part of people greatly concentrated expression and the ruled class wishes or appeal.

   Unfortunately, the public authority to modify the criminal procedure law leading lack understanding of the truth, in the relevant aspects do very does not reach the designated position, so is unlikely to representative democracy foundation weak institutional weak be reinforcing. Fill arguably, the draft amendment to the Criminal Procedural Law each presented, discussed and finalized, every detail should be open and transparent, but is actually not so. Amendment to the Criminal Procedural Law draft has been drafted in strict confidentiality of ordinary citizens and the vast majority of legal scholars case, and first in the police and procurator system closed to solicit the opinions of the. The mechanism of the reason to do so, said the reason is that some participants if people or scholars criticize. In our country, mainly from or on behalf of the police and prosecution department interests of participants feel so important, so that the public authority to take care of so few, up to dozens of personal feelings, all the people will prefer the one of the 13 people power feel ignored, engage in secret drafting, and secret for "the person on one's own" opinion, let the first meet the "own" taste. These practices makes China's criminal procedure law drafting amendments to the draft even work style democracy and how many are not.

As for the public authority when it comes to leading to modify the criminal procedure law value criticism, that is impossible. For many years, the public power organization in our country has formed a fixed reflection mode: they do what thing, no matter what the problem is to solicit opinions, are looking for their claims or plan approver, praise, not looking for critics; hold different opinions more intense, more fully human, and more is it must be excluded from the scope of people to listen to the views of the. Our public life, full of strong sunset atmosphere.

   From the criminal procedure law drafting process and draft amendments to draft gives investigation department is not affected by the great power of other state organs (this article also deals with the subsequent) characteristics of the content of, say it is a mainly reflects the police prosecution department interests and requirements of the draft, should say is to a proper extent. This type of clause of the draft amendment to the Criminal Procedural Law, if the advice is sure that most of the citizens support, you are afraid that the drafters and need few critics? To get the majority of the people support the terms must be able to according to provisions to convince the majority of the people and rational. If a man keep the public interest in mind to participate in legislation, whether he / she is the NPC, the NPC Standing Committee, and other officials or scholars, national will not be regarded as personal enemy (unless the individual mind mad people), on the contrary, he / she will win the corresponding social reputation and honor. Your advice only dare to express in the chamber of secrets, dare not face the public, can explain you through participation in changes in the law profit, for their respective departments, their own social class.

    Of course, the draft amendment to the Criminal Procedural Law after all published and ask for advice, this is worthy of recognition, but it appears to be very reluctant to do too much, too many restrictions remain. First of all, the formation process of the draft amendment of the opaque, what disputes and participants who hold any opinion, on what grounds did not completely open. Secondly, amendment to the Criminal Procedural Law draft is limited to a month, 30 days after the relevant agencies and media almost never to mention the amendment of the criminal procedure law, they seem to be sending a message to the world: the amendment of the criminal procedure law of it, not to mention the. But in fact, from the comments by the National People's Congress considered the vote the draft amendment, there are at least 4 months time, this should encourage citizens to reflect the opinions of deputies to the National People's Congress and the Standing Committee of National People's Congress are in various forms, but it is a pity, all relevant organizations of the Standing Committee of the people did not do.

   Similarly, in 2011 December, the NPC Standing Committee meeting to consider the new draft criminal law amendment, but this draft has not publicly, not only to the public, not to care about the amendment of the criminal procedure law, published many legal experts serious criticism of the public. I think, this amendment to the Criminal Procedural Law draft a new draft should be open to the society, because, all citizens for the amendment of the criminal procedure law put tens of thousands of revision opinions, the drafting body recovery absorption what didn't absorb what content, should be accountable to the public to announce the new draft mode.

Look, the two amendment to the amendment of the criminal procedure law and criminal procedure law making and the like, the dominant political and legal system, the police as the main performance is very obvious. To change this situation, basically have to advance reform in the political system, strengthen the public opinion basis and representative of the NPC and its Standing Committee, give our country social stratum structure in liquidity. I do not deny that, in the criminal procedure law embodies the democracy, human rights and the rule of law, public opinion, the quality of academic research and political super rational, useful factors are still much to play some positive impact. Now only to elements of these non institutional placed some hope.

 

 (three), in terms of basic criminal procedure law should be directly reflected the protection of human rights and the rule of law for the

   Our country citizen's personal freedom rights protection status today faces a severe situation: in recent years, in the dimensional stability under the banner, public power department has no legal basis to limit or deprive the personal freedom of a citizen seems to have heard, and even the impact of mass psychological shocks wide; reeducation through labor has constitutional defect, administrative punishment according to law without occur from time to time with people beyond the psychological bottom line; torture to extract confessions in some areas, some organ or department is unchecked, even local authorities condone the situation; public security departments leading cases, court, procuratorate and the public security three party often only coordination and cooperation, don't restrict each other, and even individual local re embarked on the "big three" set after the first trial, to undermine the established legal system of old, etc..

   There are many reasons for the situation, but the criminal procedure law exists serious defects in the rules of human rights protection and the implementation of the rule of law, it is one of the important reasons. If the highest organ of state power to recognize the existence of these problems and make up as soon as possible will, they can modify some basic terms to compensate for the amendment to the Criminal Procedural Law draft. I am in the "criminal law amendment to the constitution of the two" demonstration, it is necessary to modify the criminal procedure law "to highlight the terms" and declared the protection of human rights, by modifying the "mission statement" clearly stipulates the principle of presumption of innocence, etc.. I still insist on this view, but also want to supplement and emphasize two points:

   1, the criminal law should protect innocent people suffer or disguised suffer punishment, without court trial are not deprived of personal freedom and other basic rights. The current criminal procedure law and the draft amendment to the provisions of article second, "to protect innocent people from criminal prosecution", the provisions of article twelfth, "without the approval of the people's court to sentence, no person shall be found guilty". These Provisions separately, are very good, very necessary, but other relevant provisions in these terms and legal system in our country together, to form a technical arrangements, at the legislative level to give the public security administrative departments and independent decision deprivation and restriction of personal freedom and other basic rights reserved "back door". This backdoor the to plug.

   From the legal perspective, the above provisions of the criminal procedure law should be on labor, institutionalization, without court trial deprivation of liberty for a considerable part of the protection of human rights and the rule of law liability against the requirements of the system. This is because: (1). These terms elements and other related system together, the deprivation of personal liberty in the fact of the penalty, in part out of the penalty legal definitions outside, and will be out in the "epitaxy the administrative punishment", make certain level the administrative organ can independently for citizens to in fact punishment. (2). The "technical" arrangement makes "protect innocent people from criminal prosecution" in "from criminal prosecution" cannot contain "deprivation of personal freedom" and "long-term restriction of personal freedom" content. (3). The "technical" arranged so that citizens are not "by the people's court to sentence", not be "guilty", was in fact suffered by administrative department to deprivation of liberty or long-term restriction of personal freedom penalty.

Therefore, based on our country's actual situation, the relevant provisions of the criminal procedure law than or the draft amendment of the criminal procedure law, the more important task or function, is the protection of the innocent, without court trial did not suffer deprivation of personal freedom or long-term restriction of personal freedom and other forms of facts on the penalty. The so-called punishment, its basic form in today's world, is deprived of personal freedom or long-term restriction of personal freedom.

   2. Through the amendment of the criminal procedure law, double negation of reeducation through labor is equal to without according to law, but also the guarantee of human rights and the rule of law in violation of the basic principles of the constitution. The protection of human rights, one of the most basic requirements of the rule of law, in addition to the judicial organ, any other organization shall not be denied or long-term restrictions on personal freedom rights. Based on this truth, amendment to the Criminal Procedural Law should deny inmates, double be inopportune or inappropriate system etc..

   The key to understanding this problem, is to understand the essence of penalty of our time together. The modern penalty usually have the freedom penalty, property penalty, life penalty, the right punishment, history and health punishment, punishment and so on personality, but in twenty-first Century, in the US this day and age, the free punishment has become the most basic and the most general form, the implementation of the penalty is preferred, the punishment has been out of sequence or are exit the penalty method. Can say, the basic characteristic of modern penalty is deprivation of personal liberty (to a certain extent, and the long-term restriction of freedom of person), any public authority deprivation or long-term restrict the personal freedom of a citizen behavior, are in fact of citizen science with penalty. So, long-term deprivation or restriction of personal liberty and the deprivation of excluded from the definition of the penalty, is a violation of human rights and the rule of law requires legislative arrangements. The public power organization deprivation or long-term restrict the personal freedom of a citizen behavior into the punishment scope, may not change the essence of the deprivation of punishment. Chinese scholars to discuss the changes of criminal procedure law, or the highest organ of state power the drafting and review of the draft amendment to the Criminal Procedural Law or, should have some knowledge of the situation.

   Based on the above reasons, the draft amendment to the Criminal Procedural Law second should be added as follows: "protect innocent people from criminal punishment, not deprived of or long-term restriction of freedom of person"; accordingly, article twelfth should be modified accordingly: "without the approval of the people's court to sentence, shall not be deprived of or restriction of citizens freedom of the person, also be deprived of the property rights of citizens, to vote and to stand for election and other basic rights." As for the so-called "long-term" restriction of freedom of person, from the country under the rule of law system, "long-term" certainly should not be longer than 15 days, as far as the legislation should set the number of days fit, worthy of further discussion.

(four), subtotal

   We should see, the current reeducation through labor, double, broadly speaking in violation of constitutional protection of human rights and the rule of law, specifically the lack of legal basis practice, regardless of its source in the Soviet Union, or the old tradition of China based on their own to "innovation", in the history is the socialism or discredit and undemocratic, disregard for human rights, superstitious practices the socialist rule lose popular support. These things are clearly specified and the current constitution of our country and run counter to the spirit, our country should stop these bad things. We often say that to learn from the Soviet and Eastern lessons, but quite a few of us are not only reflections don't give up and so on are not enjoy popular support system, but from the authorities should not allow citizens enjoy too much freedom, rights of citizens, suppress the activity is not strong enough plugging closely enough, to sum up the lessons of history, for to consolidate the socialist system, and so on thinking is different. In democracy, human rights, rule of law, it is necessary to change the way of thinking, from the attention to focus on blocking sparse, this conversion to the amendment of the criminal procedure law as the experimental garden.

The common requirements of the criminal procedure law, human rights, rule of law and the restriction of the five power

[2011 held in late December, the National People's Congress Standing Committee of the twenty-fourth session of the criminal law amendment second draft is the first draft of a little progress, the basic requirements of procedural justice principle in the constitution but did not reflect the protection of human rights, the rule of law and criminal case three main restrict each other. 2012 "NPC and CPPCC" held the day is approaching, criminal law amendment draft will soon be in the National People's Congress meeting to review a vote. At this critical moment, I strongly appeal to "NPC and CPPCC" representatives and members concerned about this issue, to promote the further modification of criminal procedure law. If the existing draft amendment to the Criminal Procedural Law deviates from the constitutional principle too far, National People's Congress this meeting is not considered, consideration of the National People's Congress for the next. ]

The principle of human rights in our constitution to respect the rules and the protection of human rights and spirit, is one of the basic principles of our constitution. One of the basic principles of the rule of law and the constitution of our country, mainly reflected in the fifth constitution in China last preambular paragraph and text in. The subject of criminal cases interaction principle the content recorded in the constitution of China in 135th, mutual restriction is not the basic principles of the constitution, but the Constitution provides for the power allocation principles of criminal cases three parties must follow, is a concrete manifestation of the principle of constitution in China of restricting the modern constitutional power.

From the constitutional practice of the world, human rights, rule of law and power constraints on legislation, law enforcement, judicial requirements have become increasingly difficult to distinguish between, of course, can also be said to be common for three more. Based on the theory and reality, China's criminal law amendment shall be as follows the common requirement is very strict to implement these constitutional principles:

(a) the investigation subject to the accused to be coercive measures more stringent restrictions

On this issue, I had already been discussed. [1] here to further explain, detention, bail, residential surveillance, detention, arrest five kinds of compulsory measures, originally should be only in order to ensure the investigation, prosecution, trial activities carried out smoothly and the method to a certain extent the accused to limit their personal freedom, but released on bail pending trial, monitoring the living, because of the restriction of personal freedom of the accused for longer periods of time, actually has to the nature of the punishment, and often in fact by relevant organs as pressing citizens to exercise some basic rights of punishment in the independent use. A case I saw in the micro-blog recently seems to to prove this view. The basic situation of the case, a teacher in Hunan province Xinhua County Luo Meihua wrote 4 critical article, by the Xinhua police for "inciting subversion of state power" on the 15 day after criminal detention, bail, "home 3 days later, Luo Meihua bail to watch live." This is the investigation organ shall be the criminal compulsory measures as a typical case of application of punishment. From the disclosure of information, Luo Meihua teacher behavior does not accord with "inciting subversion of state power" elements, are unlikely to be convicted. [2] so, all coercive measures to he taken by Xinhua police, the purpose is afraid is to collect the teacher in torture. In fact, so far, China has a large number of bail, residential surveillance without investigation, finally no prosecution and trial of the case. The case itself, is released on bail pending trial, surveillance and other compulsory measures is disguised as a penalty in not convicted citizen body of evidence.

In this case we can see, even the deprivation or restriction of freedom of person time detained shorter, sometimes is the investigation department as a punitive measure in use. The Luo Meihua criminal detention for 15 days, is actually more like a punishment, rather than the criminal compulsory measures, because the necessary investigation the case clearly not detained.

Therefore, in the existing all kinds of compulsory measures, only the public security department to arrest a criminal suspect need to be submitted to the examination and approval of other organs is not enough, the investigative subject to the accused bail, residential surveillance and arrest, should be approved by the other state organs review. The examination and approval authorities in general should be the court, the court should open in custody on whether they should take mandatory measures controversial trial and make a decision when necessary.

In addition, the investigation department does not respond to citizens were close to catching, also should not engage in secret detention. The draft amendment to the original provisions in the specified place close to catching and secret surveillance of residence such two aspects of the criminal procedure law, a new release in mid December through 2011 was up close to catching the terms, but still keep in designated locations secret surveillance terms. Due to the designated place to residential surveillance is not to arrest for the premise condition, therefore, secret surveillance actually contains the secret capture content. So, for the criminal law second drafts to do publicity, said to be removed provisions close to catching, I think it is not consistent with the actual situation of the advertising language. The secret to residential surveillance provisions should be resolutely removed, because it does not meet the basic requirements of the Constitution on the protection of human rights and the rule of law, also do not meet the corresponding standards of international human rights law confirmation.

(two) any public authority to take may seriously endanger the citizen basic right investigation measures shall be approved by the other state organs review

Human rights, rule of law, power control three principles are not allow criminal investigation is not approved by the court, the judge to review, we decide to adopt the following measures of investigation on Citizen: non emergency room searches and other relevant premises; mail, Telegraph and arrest suspects; freeze criminal suspects deposit, remittance of; telephone monitoring, tracking, recording the secret telegraph warrant criminal suspects.

Investigative power is a public power threat and danger to the personal freedom of citizens and other basic rights, as long as there is no strong constraints, it will almost certainly serious infringement of citizens' personal rights. Without effective control of the investigation right, there is no human rights, no rule of Law -- this is the numerous historical experience and the fact proved repeatedly. Therefore, all countries and regions in Europe and America law, whether old or new, including Chinese Taiwan and Hong Kong and Macao, do not allow the investigation subject without court, judge the examination and approval directly adopt the investigation measures. Separate authority decides to mainland China criminal procedure legislation should also categorically will take the measures of investigation and enforcement authorities.

In China, a serious threat to the investigative subject decide investigative measures system of the basic rights of citizens, fully demonstrated in some provincial administrative region has. Fishing and abuse, torture to extract confessions, arbitrary searches, arbitrary technical investigation, according to their own interests the seizure and disposal of criminal suspects property, act recklessly and care for nobody to warrant -- the investigation subject to take corresponding investigation measures without external constraints caused serious consequences in Chongqing unconstitutional, a process has a very serious here, [3] will not repeat.

(three) the investigation department of technical investigation especially by other state organs for examination and approval

For the technical investigation, amendment to the Criminal Procedural Law released after the first draft of law and legal affairs, many people expressed criticism, but the second is basically is the same. The technical investigation was always there into the legal norm is a good thing, but according to the spirit of the constitution, key investigation department of technical investigation, should be based on case units one by one through the other state organs for examination and approval, and strictly monitor. Technical investigation relates to the protection of fundamental rights of citizens, many countries by the constitution or constitutional law norms.

By the investigation organ or department of our country on the technical methods of investigation, there has always been seriously out of control, wanton violation of the fundamental rights of citizens, [4] amendment to the Criminal Procedural Law draft since to regulate the technical investigation behavior, it should be put on the track of law.

A runaway Jizhen means issue, we might discuss. Have a look first law, jurisprudence nearly as everyone knows Henan Zhoukou police collective murder. In the recently disclosed the investigation in the case, the suspect's Public Security Bureau has been using these tactics for illegal purposes, direct violation of the fundamental rights of citizens: the victim's family "to run Zhengzhou case, the car just high-speed received leadership call, ask him to go to Zhengzhou and get Is it right? He immediately returns. Li Yanhong said that used to carry 4 of the mobile phone, a few telephone card back with." 4 telephone card back with apparently to prevent the public security departments Jizhen, but impossible to guard against. "Li Yanhong's despair when an old leadership to the Zhoukou city call reflect the situation", but the old leadership immediately told her: "your phone by the public security monitoring, home to." [5]

Look at a memory attention of the whole nation and vice director of the Chongqing Public Security Bureau Wen Qiang lawyer originally, we can realize our citizens' legal rights by police Jizhen means not subject to the constraints of the great threat. The lawyer writes: "the reception of Zhou Xiaoya (Wen Qiang's wife -- cited) client that day, both sides talk before the 'bizarre behaviour', let every time I recall, still feel both funny and helpless. At that time, I lived in a hotel in Chongqing. The client into the room, the battery plate pull their hands 3 of the mobile phone, put into Restroom, and towel cover. I also according to this "program" ready. Subsequently, the conversation began." [6] what are they afraid of? Of course is any fear of public security is not limited to engage in technical investigation, and a lot of the truth that the investigation departments Jizhen no bottom line, citizen completely unpredictable.

Review the history, the terrible Jizhen means even once let the country's top leaders have felt threatened, and the danger is still very real. If the readers read and so on description of the smashing of the "Gang of four" on the eve of the reception in the Xishan Ye Shuai home visitors plot: "Nie Rongzhen heard Ye Shuai already on the Western Hills, to find an excuse to have the 'summer'. The 1st floor live Ye Shuai west. Two, after the meeting, treat a person with sincerity, in-depth study of good against the 'gang of four'. When it comes to confidential, in order to prevent 'beware of eavesdroppers!', they turn on the radio, and open the faucet, borrow ensemble music and water to interference 'bugs' ears." Modify the [7] of the criminal procedure law, even Chinese military leaders can't watch anymore. "According to the Hongkong Morning Post forum news: the auspices of the Central Military Commission the daily work of the Commission leaders listened to the Bureau of legislative affairs of the CMC report that the relevant legislation, the socialist Chinese to guarantee human rights, disapprove of secret arrests and random monitoring. He was commissioned by the Bureau of legislative affairs of the CMC will be reported to the National People's Congress opinion Military Committee and the PLA representative, thought must express justice, not to secretly arrested vote support. [8]

I believe, the most senior state and the ruling party is not clear the subject of investigation is not affected by the technical investigation control authorities in other countries or secret investigation, in our social middle class and intellectual stratum caused much panic. According to my observation, our middle class and intellectual stratum basically are convinced that public power agencies, technical investigation or secret investigation is not restricted to any one, can be included in the scope of the monitoring object. I am a ordinary citizens and scholars, many experienced social middle class and intellectuals, state of extreme nervousness. of fear. In China there is a huge crowd to doubt their own telephone, email and the whereabouts of the monitored, eavesdropping, were secretly videotaped recordings. In this regard, there may provide several examples, please readers taste: 1 over the past year I met many senior intellectuals, may be the right point according to the usual standards of their position, but I don't think too much, but they had told me, their communications by public security security monitoring, so they in any by electron transfer tool express or speak of the occasion, are carried out under the assumption that they have been recording the next; I was told many people many times: "your telecommunications have certainly been monitor!" 2 I have personally experienced numerous and so on occasion: General talking about the legal issues of political or some regional topic, he was asked to turn off the mobile phone each other or others, or the mobile phone to put in place far away from the conversation. 3 even the ordinary drinking talk, will have to advance to the restaurant reservation room clean room equipment, if there is a public door placed recording device. Get the degree, we want to deny the society is now a police society is very difficult.

Some people may say, we are afraid, we have our own when monitoring object, is not unique to social stability? I'm afraid I can't do. Notice, if things go on like this, people emotionally or mentally, may be rejected this system, and rejected is abandoned to emotion. Therefore, we must not ignore the subject of investigation is not restricted to decide to take investigation measures on civil practices on human rights and China's social and political system huge damage effect. China's rulers should legislation mode determined by changing the Jizhen means of effective supervision, make people feel the freedom of communication, privacy rights, are politically the basic sense of security.

(four) should be restricted and prohibited the supplementary investigation and repeated rehearing

From the angle of constitution, at present our country in the criminal investigation has such a can be called "strange phenomenon investigation without end", this kind of phenomenon is serious violation of the Constitution on the protection of human rights, the rule of law and the handling of criminal cases three body interaction principle. "The investigation without end" refers to the investigation department in handling criminal cases, look in the delivery of the prosecutor has been investigating the form, but the investigation activities in fact does not end, will extend to the defendant is convicted. The "Cultural Revolution" era of the one big characteristic, called "indefinite", the specific approach is, write articles, constantly according to the new requirement and modification, without a certain version. Accordingly, we Chinese many local investigation department, in the process of conducting criminal cases also learned without teacher inherited the "Cultural Revolution" legacy, in case investigation, prosecution and trial stages to turn, the group or project group has not disbanded. They are often in must let someone sentenced to jail time invariant, in the stage of review and prosecution at any time in accordance with the established objective of the accused for supplementary investigation, even to the court phase, also frequently out of detention, interrogation (sometimes torture) the defendant, make supplementary investigation. If the accused of a crime can not be established, then find a crime to investigate, must let the jail. In this process, not only the procuratorate usually cooperate actively, the court also tend to actively cooperate with the. This we can have publicly disclosed in the media cases find plenty of evidence, there is no specific lists, in order to avoid.

"The investigation without end" phenomenon typically reflect the process of our country's criminal fact in fact under the presumption of guilt logic. "The practice investigation without end", show that for the case of three bodies are serious violation of the Constitution on the protection of human rights, the rule of law and the handling of criminal cases three body interaction principle. In order to curb this phenomenon, the criminal law should at least limit times on the stage of review and prosecution returned the investigation department of supplementary investigation (such as limited to one), to the court phase should be completely banned the supplementary investigation.

According to the protection of human rights, the rule of law and the handling of criminal cases three body interaction requirements, the case to the court trial stage, the court should make the judgment according to the indictment and relevant evidence, not only should prohibit the supplementary investigation, also should prohibit the court and the procuratorate through consultation way let's withdrawal, of course, the procuratorate active withdrawal can be.

In addition, according to the above principle, the superior court case remanded for a number of retrial should be limited. The lower court of appeal or appeals to a higher court is a superior court repeated rehearing of the situation is not rare. I remember years ago the people of Hebei, Xu Dongchen has been regarded as a murder murderer, the 8 trial, 4 were sentenced to death (including two death), detained 8 years had been acquitted, to China legal history left a sad story. [9]

(five) major criminal cases or some special types of cases should implement three trial

The criminal justice should be the state judicial, but final makes local officials high level to almost all criminal cases in local place "digestion". It makes our country's criminal justice appeared in the local tendency serious, is not conducive to the unity of the state legal system. In addition, the criminal case two final trial system, makes the local retained and even the development of Deng Xiaoping put forward some serious drawbacks to get rid of "reform" in the system of Party and state leadership in an article, such as the over concentration of power in the party, the party's power was too focused on the party secretary, etc..

Of course, criminal cases are two direct consequences of the final, or in the decision has taken effect in criminal cases, the injustices and misjudged cases too much. Don't you see, only 10 years, has been publicly disclosed by the prosecutor charges can cause the death penalty cases there are ten, constitutes a long list! [10] that put three instance is necessary. At least, the defendant is sentenced to death penalty cases, should put three instance.

I study the constitution, the criminal procedure law do not much, but I passed many specific cases of concern, see now the two-tier trial system of serious drawbacks. I looked in the case of a typical two. The first case is the case of Fan Qihang, the video display, the defendant suffered make one's hair stand on end, be brutal and inhuman torture to extract confessions of a network, the means that the police committed "inhuman torture to extract confessions of guilt", to prove that the defendant criminal evidence, Its loopholes appeared one after another. stultify oneself, but the death penalty fan Qi hang in the Supreme Court to review, even from the approval to the execution, all without access to lawyers, not to mention the public trial. [11] second specific cases is the death penalty has just been completed the execution of Zhu Liyan case. I have long been concerned about the facts of a crime are not clear and Zhu Liyan was torture to extract confessions of. I noticed, the lawyer has to find the prison doctor secret video evidence, and in the hospital to find Zhu Liyan leg be discounted, sternal discounted evidence, but the lawyer "court play video, showing the evidence, the shock, was the presiding judge rejected: without permission, shall not be used as evidence to steal took February 24, 2012!" I saw Mr. Zhu Liyan, Li Zhuang's lawyer micro-blog wrote: "just, to news assistant: We 08 years agent of the case of Zhu Liyan in Liaoning, this morning was secretly executed, Zhu, now turned into ashes. But Zhu's family did not know. Call the high court of Liaoning, told before the Spring Festival has been review completed. Why not let loved ones' to 'see the last side! Why' illegal 'executed in secret! What method can let the human nature!! "[12] the case, if the implementation of the three tiered system, the Supreme Court held a public hearing, the verdict may be more fair, at least so as not to give the impression that the defendant was found kill the impression -- a death penalty case, give the impression, is the great failure of our criminal justice system!

(six) shall prepare the clause expressly forbidden to accept outside intervention in handling the specific case

The Constitution stipulates that the 135th ", the people's court, the people's procuratorates and the public security organs shall, in handling criminal cases, division of responsibilities, cooperate with each other, mutual constraints, to ensure the correct and effective enforcement of the law." Comprehensive and accurate understanding of article 135th of the constitution must understand: (1) the three parties responsible for handling criminal cases, is "to cooperate with each other, the premise of which restrict each other", "division of labor" is the division of powers, "responsible" refers to the responsibility. (2) the three parties "division of responsibilities, cooperate with each other, to restrict each other" is "to ensure the correct and effective enforcement of the law", rather than fighting crime. "To ensure the correct and effective enforcement of the law" and the fight against crime, is both a contact, more differences.

In handling criminal cases of the three parties to the "division of labor" as the premise, and the three party "with each other" to "ensure the correct and effective enforcement of the law" rather than fighting crime for the purpose of these two points, the three parties "cooperate" content, only refers to the investigation, examination and prosecution and trial of three stage according to the cohesion and coordination, can not give up control to coordination and consensus to conviction, sentencing defendant. So, in our country's criminal procedure law no, nor can there be in handling criminal cases of the three parties to coordinate or consensus to the accused and conviction, sentencing provisions or legislative intent. Any organization or individual court, procuratorate and investigation department coordination of three party unity for specific cases of violations, there is no legal basis and violates the Constitution's activities. In accordance with the provisions of the Constitution and the spirit, court, procuratorate and investigation department, the three party to any organization or individual to their coordinated, unified to the accused guilty, sentencing case, have the obligation to be resisted.

However, in judicial practice, just look at some of the attention of the nation's criminal case, whether it is She Xianglin, Zhao Zuohai case, Li Zhuang case, often have problems such as the public security department heads or former heads of the leading "three meeting" groups like unconstitutional and illegal disguised offices do case phenomenon. Perhaps people modify the criminal procedure law have noticed recently, headquartered in New York, "Human Rights Watch" published "global annual report (2012)" blame our criminal justice process dominated by the public security departments, courts are not independent, the people's Daily published an article criticizing their arguments. [13] criticism is necessary, but for us, it is all the more important to criminal procedure law of our country changed, and more stringent requirements according to our constitution, criminal procedure law and the spirit, and not too much a handle.

Therefore, I suggest, criminal law amendment draft added a "general" section: "the people's courts, the people's Procuratorate and investigation department in the process of handling criminal cases, and shall not accept no legal according to instructions, shall not in any form is convicted, the Prosecution Sentencing issues across the organization for instructions, communication or negotiation."

These aspects, not only the criminal law should make the corresponding provisions of the Constitution and other normative documents, the ruling party should make the corresponding revision.

(seven) to eliminate chronic illness torture to extract confessions, should avoid the subject to investigation department to control

Torture to extract confessions is a chronic illness in our criminal justice system, barbaric, backward, by domestic and foreign criticism. The current situation in this respect of our country is: on the one hand, torture to extract confessions, torture, manufacturing errors caused by the detainee or bizarre details emerge in an endless stream to death was revealed in the guard; on the other side, the investigation department of the various suspected of torture to extract confessions, some local officials tend to make people feel the basic attitude is related to the crimes tried cover up, even to the public to indulge in a strong impression. Torture to extract confessions are real root is the judicature is not independent, but as a stopgap measure, the detention and investigation department from the management system separately, have prevent significance. The National People's Congress professor Liang Huixing for years that the detention center from the investigation department, [14] but this apparently reasonable suggestions will not to adopt. Why refuse to adopt this proposal? The public it is difficult not to wonder about the investigation department of the move is to worry about normal contacts engage in various forms of "Tu Shen" is not convenient, blocking the lawyer and the prosecution of persons is not convenient, etc.. They didn't see, free of duty crime from the point of view, the investigation personnel is also a kind of protection.

The amendment to the Criminal Procedural Law should break through the power of investigation organ or department of the obstruction, the detention and investigation department separation in writing.

　　

Six, the court hearing the case must be disclosed as provided in the Constitution