Criminal Procedure Law: before the reinforcement theory and empirical research

"Procuratorial daily"2014Years01Month03Day, the3Version.Bian Jianlin, Xu Huijun

　　■The judicial interpretation and the normative documents to the important guidance for practice

　　■The exclusionary rule of illegal evidence and the reasonable doubt standard can be more applicable

　　■The legal supervision from the public powers extend to the protection of private rights

　　■To prevent the case key is to really establish suspicious innocent judicial philosophy

　　■The defense system and legal aid system has many links need to converge in place

　　■Especially the program needs to judicial practice constantly explore also needs the theory to be more attention

　　

  2013Is the first year after the implementation of the revised criminal procedure law, the criminal justice work face collision and debugging of old ideas and new system, presents a problem more productive situation. Theoretical study on the revised criminal procedure law implementation, in-depth research, in practice, strengthen the awareness of the problem, development countermeasure research, produced a large number of outstanding achievements, to promote the accurate implementation of amendment of the Criminal Procedure Act, to promote the prosperity and development of the research of criminal procedure, make great efforts and contributions.

Key word:The judicial interpretation

In order to modify and the implementation of the criminal procedure law, the Supreme People's court "on the application< of the people's Republic of China Criminal Procedure Law>Interpretation "(Hereinafter referred to as the "interpretation")The Supreme People's Procuratorate, the people's Procuratorate "rules of criminal procedure(Trial)"(Hereinafter referred to as the "rules")The Ministry of public security, public security organs, "procedures" provisions of the criminal cases and the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice, the NPC Standing Committee, "several issues concerning the implementation of the provisions of the criminal procedure law", have been released, rich in content, the number of never, this also caused the academia to the judicial interpretation of the heat.

The positioning of the judicial interpretation, scholars believe that,"Due to Chinese conditions, has China characteristics". What is the judicial interpretation of the China characteristics, someone pointed out:"Legal interpretation and application of the general sense of the law and in the process, explain our country law in general is not attached to a movable belonging to the jurisdiction, nor of a belongs to the legislative or legal enforcement rights. The explanation in the law as a separate form the general interpretation rules universal legally binding by the power of explanation, but between authorities in different countries on this power distribution, constitutes a system to explain a very Chinese local law."

Most scholars hold a positive view of the judicial interpretation, the judicial interpretation"It is not only necessary, but also has legitimacy". The so-called legitimacy,"The first is the historical experience of inheritance, the second is the objective need that implementation of the criminal procedure law, the last is a legal authorization". At the same time advocate, the judicial interpretation in the content should meet some basic requirements:First, loyal to the legislative intent;Second, to prevent self empowerment or Department authority;Thirdly, according to the actual needs of judicial practice department, meet;Fourth, strengthen the operability of the law;Fifthly, the mechanism innovation.

The judicial interpretation of the mission and task, some scholars referring to2012Years of amendment of the criminal procedure act is"The implementation of specific measures to deepen the reform of judicial system and working mechanism for"Therefore, to address the more perplexing relationship between legislation and practice, the legislation situation need to draft judicial interpretation in the objective. The above is mainly by the "rules" as the model discussed, some scholars from the Supreme People's court "interpretation" of the development process, the text content of the judicial interpretation to the high affirmation, for example a national court trial experience, reflects the social from all walks of life wisdom, stick to the rule of regulating public power may not be the principle of expansion to protect private rights, carry out the exercise of non derogable principles etc..

Of course, there are different opinions about the judicial interpretation in theory. Some scholars worry about explaining power current is"'The specific application of the law'The power of interpretation of the alienation of abstract legal interpretation set right, and continue to fill gaps in current laws, content changes, be the legislators in fact". Some scholars from the perspective of the text, with evidence as an example that the relevant judicial interpretations exist"The questions, inappropriate language anomie, case deletion". There are scholars on judicial interpretation of the procedures set definite views, it should include file, project, drafting, review, decision, announced and record the six contents. Between judicial interpretation of coordination are concerned, some scholars have pointed out, should take this as an opportunity for all kinds of specification of clear and unified a comprehensive, put an end to"Each department acting on its own","The red head file exist everywhere"Chaos, to ensure the unity and authority of law enforcement.

Key word:The Criminal Misjudged Case and presumable innocence

　　2013Years, have to disclose the corrected number of Criminal Misjudged Cases caused great concern to society, make the public credibility of the judiciary has been challenged seriously, practice department leaders wrote saying"Have time to be determined". Scholars pay attention to practical problems, the occurrence of such cases, causes, relief and prevention research is carried out deeply.

　　About the definition of Criminal Misjudged Case. Some scholars believe that the current existence of generalization tendency, our understanding of misjudged cases, claims from foreign legislative cases will be limited to cases caused by the lack of elements of crime evidence for the fact that innocent wrongly convicted.

　On the causes of misjudged cases.For non investigators deliberately or dereliction of duty caused the Criminal Misjudged Case, scholars from the understanding of the law and the proof process of understanding:The fact that only indirectly by evidence that the facts of the case, so it has the natural limitations. In a sense, any kind of legal system can not completely eliminate the occurrence of misjudged cases. For often appear in the judicial practice of our country's innocent, wrongly good phenomenon, experts believe that the reason is multifaceted, perplexing. Some scholars believe that the criminal justice system, control problems with more than three organs of public security, and criminal trial enjoy undeserved fame, litigation is essentially Investigation Center;There are reasons for litigation idea, heavy fighting crime, light First impressions are strongest guarantee of human rights, criminal suspect, defendant's guilt prone to the process of handling a case, not to listen to the suspect, defendant's defense and the defense counsel. There is also evidence that the reasons, such as to reduce the standard of proof, too credulous and relying on confessions, not in accordance with the legal procedures to collect evidence, the evidence is insufficient for leave adequate leeway judgment, etc..

　On the wrong remedy. Some scholars through the extraterritorial investigation cases relief system, put forward the Special Criminal Misjudged Case discovery mechanism, play, make full use of the role of ordinary peopleDNAThe evidence, and strengthen the role of lawyers should respect.

　A misjudged case responsibility problems. Some scholars have pointed out that the two diametrically opposite tendencies exist in judicial practice, which needs to be corrected:One is the liability generalization. The two is the collective operation mode. The judicial personnel judicial authority to undertake the specific cases, in order to make clear its responsibility way.

　Prevention of crime. It relates to update the litigation idea, strengthen the procedure control, strengthen litigation supervision, the trial function. Some scholars from the use of evidence point of view put forward five requirements:A strict standard of proof;Two to correctly treat;Three pay attention to physical evidence;Four to prohibit the illegal evidence;To implement the presumable innocence.

　Presumable innocence is procedural law circle and the judicial practical departments have ideas and principles for the most. As in recent years a frequent, scholars believe"Errors occurred mainly in the cases of suspected crime", and its roots in the case handling personnel has not really set up the judicial concept of presumption of innocence.The first is doubtful meaningScholars think"Suspected crime"The definition of the concept, and"Suspected crime"The practical context docking. Suspected crime suspect, mainly manifests for the"Things doubtful","Suspected crime","The suspect","Suspected heart","The suspect","Cut the suspect","Honesty","General questions".Secondly, the presumable innocence, some scholars trace the history origin, from theory to practice comprehensively combs. But subject to various factors, no punishment in doubt case in the judicial practice of our country implementation is not ideal, we need from the idea, strengthen the function of control, debate, the interaction of the three party, improve the ability of handling a case, the specialized agencies, perfect, perfect matching procedure rules and evidence system, strive for the presumable innocence to create a relaxed and rational atmosphere and provide a solid and reliable security.Finally, as the acquittal of presumable innocence results also drew attention. Some scholars through the"The defendant not guilty verdict in the case main body status, case and review of the evidence, and doubt acquittal acquittal and legal practice operation etc."Investigation and analysis of many factors, put forward"The criminal procedure law enforcement, criminal defense strength and court rules of evidence are the three key factors influencing China's practice whether the judgment of acquittal".

Key word:The legal supervision

Research is running and guarantee the legal supervision of the prosecution and the right of legal supervision point.

The traditional research often litigation supervision concept in check the power of investigation, judicial power, executive power and the exercise of public power,"Respect for and protection of human rights"Write the revised criminal procedure law, some scholars combine to contribute to the concept of legal supervision and adjustment:It is a single adjustment will supervise function for diversity;The second is the one-way nature of supervision for two-way adjustment;The third is to the object of supervision from the public and balances of power extended to the legal protection of private rights. In the specific system is mainly reflected in the following aspects.

　Firstly, supervision of case filing and investigation supervision encounters many difficulties in judicial practice. In order to solve the problem of monitoring and supervision of investigation in the case, some scholars put forward four security path:One is the guarantee to strengthen cohesion clues, execution;Two is the safeguard measures, improve the right of investigation and supervision of filing cases;Three is a compulsory security, perfect recommend replacing handling system;Four is the mechanism guarantee, making supervision business for reasonable evaluation system.Secondly, the supervision for the judicial activities, "rules" clearly stipulates the Procuratorate's name in the trial activities, which some scholars have raised objectionsThat should be illegal behavior, distinguish about procedure, evidence or infringement litigation rights behavior and corresponding supervision court or tribunal after. For example, for violation of jurisdiction, trial and delivery deadlines and to avoid the problem of supervision shall timely put forward opinions, to ensure the litigation activities according to law.Once again, the supervision for the implementation of activities, people put on the supervision of community correction present criminal law and procedural law legislation conflict, unclear function orientation, not straighten out, the working mechanism of supervision means limited etc..Also some people with Zhang Gaoping, Zhang Hui and nephew"In jail for ten years"The case as the background, pointed out that the current prison supervision still exist problems supervision means single and lack of control.Finally, a special procedure supervision such as mandatory medical measuresSupervision, some scholars think that this is a procedural rather than substantive supervision afterwards, as proposed, limited effectiveness, and the objects of supervision and supervision way also has many problems still need to clear.

Key word:The defense system and legal aid

The defense system is a permanent topic in criminal procedure law. The revised criminal procedure law about the defense system with many new rules, these rules will be hundred-percent implemented in practice, is a hot issue in theoretical circles.

Many scholars have made efforts to promote the amendment of the criminal procedure law in the perfect lawyer defense system's progress, that the legislation in solving the lawyers, scoring difficult, difficult investigation difficult problem to make great efforts. But, also has differences, in some legal provisions can be understood as a contention, defense lawyers in the investigation during the right of investigation and evidence collection problems. Some people have expressed concerns and worries, think the concept of law enforcement, the law is still significant deviation between the general and other reasons, the process of criminal defense lawyers for the, still meet the difficult, hard evidence, marking difficult and lawyers are not problems. Some scholars regard the public security law enforcement and defense system together, the progress of that defense system put forward higher challenge to law enforcement, but also the good opportunity, the public security organ shall seriously, actively adapt to the public security law enforcement, normative, effectiveness and the last step. Some scholars defense system and procuratorial work together, think the criminal defense and procuratorial work is to be both opposite and complementary, the unity of opposites, mutual promoting relationship. On one hand, they argue a lawsuit, role opposite, become the fierce confrontation and defense in litigation;On the other hand, they are the existence of their own conditions, unified in structure of criminal law and criminal procedure, has the consistency in many aspects.

　　The revised Criminal Procedure Law on the criminal legal aid system in aid scope, methods, and applications to make major changes.In order to implement the revised criminal procedure law, the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of Justice jointly issued the "Regulations on legal aid in criminal action.". Scholars have highly, fully affirmed the progress made in legislation and judicial practice department efforts. However, some scholars have pointed out that the criminal legal aid cases, several times on the growth of aid funds, manpower, regulatory and judicial work cohesion challenge should not be underestimated. From the judicial practice situation, area system, the legal aid institutions development imbalance, the overall layout of the improper really has appeared and urgent. The revised criminal procedure law that legal aid is ahead of time to the investigation stage, scholars spoke highly of, that reflect the humanistic spirit, uphold the principle of minimum justice, the objective is helpful to find out the facts of the case. But the following problems in the implementation of:One is the investigation personnel is not willing to legal aid lawyers in the investigation stage in the subjective;Two is not clearly defined the investigation organ's obligation to inform;Three is the lack of supervision and legal liability;Four is the lack of relief channels;The five is the object of legal aid in the investigation stage judgment to objective problems. In this regard, the future can increase the detection hardware, software investment, increase the investigation organ's obligation to inform, to increase supervision of the investigation stage of legal aid, relief way increase the suspect, constructing the legal aid lawyer duty system to solve.

Key word:Evidence system

Evidence system has always been the focus, the research of criminal procedure has yielded fruitful results, especially the exclusionary rules of illegal evidence and the reasonable doubt standard is for many scholars.

　On the exclusionary rule of illegal evidence. Some scholars have pointed out, the illegal evidence elimination system of our country is based on China's judicial system and the judicial system and the establishment of special, very bright, mainly in the following aspects:First of all, excluding the time mainly in the trial stage, the main program at the same time in criminal procedure;Secondly, exclusion refers to the meaning of the illegal evidence exclusion may not be taken as a basis;Once again, we should exclude the illegal evidence including in conformity with the law of illegal evidence and physical evidence;Finally, our country not only pay attention to the exclusion of illegal evidence has been formed, but also pay attention to curb illegal evidence. And the three main body of illegal evidence exclusionary procedure practice, helps motivate investigators form the prosecution of crime and protection of human rights and mental consciousness and action consciousness. On illegal evidence exclusion of reference, some scholars put forward the applicable law, rules of language fuzziness in flexibility and difficult to explain, is a very good auxiliary methods through judicial precedent.

　On the reasonable doubt standard.Questioned its once as proof standard subjective exclusion and the mainstream of legislation of our academic circles, but with the reflection of theoretical research and practical experience, excluding reasonable doubt standard of proof theoretical value and practical significance to emerge gradually, and finally confirmed by the revised criminal procedure law. Some scholars have pointed out, the legislation of our country introducing beyond reasonable doubt to explain"Indeed, sufficient evidence"Standard of proof, represents the transfer legislation focused, namely change the past emphasis on"Objective"True, begun to focus on the subjective judgment process, provide more realistic guide for judges. The actual application of this standard of proof, some scholars believe that the exclusion of reasonable doubt in our country does not exist in isolation, but with the object of proof and verification methods closely;Advocates should strictly apply the criminal standard of proof beyond a reasonable doubt, the standard does not mean that the facts of the case especially determine the defendant guilty can reduce the requirements;Exclude the value orientation of reasonable doubt standard of proof is to protect innocent people from criminal prosecution, therefore in the process of handling criminal cases, must take to establish the principle of presumption of innocence.

Key word:The special procedure

A special program is a series of new criminal procedure law revised, because there is no practical experience too much for reference, therefore need to continue to explore in the judicial practice, but also needs the theory pay more attention.

　　Proceeding for the minor criminal cases. One of the key issues in academic debate is the non prosecution of additional conditions. Minor non prosecution of additional conditions to procuratorate nonprosecution many new requirements proposed, such as minor non prosecution of additional conditions to the attorney familiar with the physical and mental characteristics of juveniles to do, and the procuratorial business assessment may affect juvenile for the non prosecution of additional conditions. Scholars have suggested that, the juvenile prosecutor system and reasonable design and perfect the procuratorial business assessment mechanism. Key issues of hot two is the social survey system. The present situation of implementation of this system is not optimistic:Not only the proportion of low acceptance rate, also need to be improved. Key issues of hot three is appropriate adult system. Scholars recognized appropriate adult supervision of interrogation activities, with soothing minor tension effect, but that the selection mechanism to be perfected. Key issues of hot four is a minor criminal record storage system, scholars believe that this is really able to run and play a positive role, but also the need for storage object, condition, content, effect and start substantive requirements, query, audit and supervision of the entire process to be clear.

　　A reconciliation of the litigants of the public prosecution procedure. About the criminal reconciliation system concept, somebody thinks from restorative justice perspective"Is the traditional criminal justice from the retributive justice to restorative justice in the modern transformation of the track";There are people from the right perspective, think"Is the combination of private right of action, by public right of action and procedural authority". Specific to the criminal reconciliation procedure, scholars approved legislation on the applicable scope, applicable conditions, consequences, suitable stage and reconciliation and other content, but that there is still room for further specific and perfect. Practice investigation and criminal reconciliation, some scholars believe that the current understanding of the amount of compensation gap is an obvious fact, apology, compensation for mental damages in the understanding of not being taken seriously is often things, the deletion of third party in the criminal process of reconciliation deserves attention.

　The mental patient about not bear criminal responsibility according to the law of compulsory medical procedures.The establishment of the system, scholars believe"Not only follows the international practice, and in conformity with the basic conditions of China, contribute to the realization of justice, security, humanitarian and efficiency of multi value balance."Also study the distribution of burden of proof scholars special program, put forward the problem:On the one hand the responsibility assignment are not the same in different program proof;On the other hand, in that way and the standard of proof, because the content of different also have strict proof and free proof of discrimination.

　　About the criminal suspects and defendants, escape, death cases of illegal gains confiscated program. Properties of this program, some scholars believe that taking in legal interpretation"The security measures that"Have a stronger self consistent logic. Scope of application of this procedure, it is argued that the scope of application of death cases of the defendant not limit is inappropriate.

　　2013Years, along with the implementation of the revised criminal procedure law, the criminal procedure law has shown unprecedented prosperity. The researchers based China conditions, attention to judicial practice, strengthen empirical research, promote the benign interaction between legal theory and judicial practice. We look forward to, in the new year, criminal theory circle and practice circle to further strengthen cooperation, pioneering spirit, innovation, and work together for the prosperity of China's criminal procedure law research and improve the system of criminal procedure China characteristics.

　　(The author for the Dean, Institute of China University of Political Science and Law China procedural law of Criminal Procedure Law Association, doctoral student of China University of Political Science and Law College of Criminal Justice)

 

Zhao Bingzhi, Yuan Bin:2013Years of study of science of criminal law: immediate attention to problems

Procuratorial daily2014-01-02 06:55:00, No.3Version. 

 

■After abolishing the system of reeducation through labor,Should be based on the non penalty and security measures in place of

　　■To prevent miscarriages of Justice,We should strengthen the regulation of torture to extract confessions, favoritism

　　■Application of the crime of corruption and bribery to expand the property punishment and qualification punishment

　　■Simply using the usury idle funds,Without criminal involvement

　　

2013Years is the process of society and the rule of law construction in China is a not ordinary year. This year,Our country in the field of criminal law to actively promote the reform of the judicial system,Formally abolished the system of reeducation through labor,To strengthen the governance of corruption crime. Taking this opportunity,This year, our country criminal law educational world to strengthen research related to major theoretical and practical issues of the criminal law,And achieved fruitful results.

Study on the important theoretical issues of criminal law

　　2013The annual,The hot issue in the field of criminal law in the field of criminal law in our country,Push the research hotspot in theory of criminal law and the related department law, criminal law should abolish the reeducation through labor system, after the miscarriages of justice, against death penalty reform etc..

　The relationship between a, criminal law and related departments of law

The relation between criminal law and related departments of law is a prominent problem in recent years in the application of our criminal law.2013The national criminal law academic year will count this as a theoretical issue is discussed. This year,The researchers focused on the research of the problem from the following two aspects:1.Relationship between criminal law and related departments of law. It is argued that,Cohesion in Chinese criminal law and related departments have problems of criminal law the premise and lack of standard, legal sanctions in the connection of the unreasonable, criminal conviction the foundation is not firm enough. Also it is argued that,China's criminal law in coordination with the Department of law there is too much emphasis on the national standard, comprehensive, ignore the regulation legislation over and defects of legislation.2.The coordinated development of the criminal law and the related departments of law. It is argued that,Criminal law and non criminal legal conflict should abide by the principle of rule of law and is conducive to the citizen, legal person and other organization principle,To control the criminal scale,Strengthening protection of department law,Establishing the system of legal protection coordination,Structure"Strict but not severe"Reasonable penalty structure. Without doubt,The relation between criminal law and related departments of law relates to the boundaries between different law departments,Selection and right relationship of different means of social administration security. Based on the basic position of the restraining criminal law,Criminal law should be the maximum concession in keeping good static link with the relevant departments under the.

　From the perspective of the transformation of interpretation, criminal law two

　　2013The annual,Many researchers try to position and method of criminal law interpretation from different perspectives:1.From the perspective of knowledge transformation of the interpretation of criminal law.It is argued that,Criminal law knowledge transformation promoted the construction of criminal law system and the reconstruction of discourse interpretation of criminal law,To build a platform for dialogue theory common interpretation of criminal law. Anti formalism substantive interpretation of criminal law should be the basic features and practical theory,But the more substantive consideration of external factors,Easy freedom erodes the value of criminal law, the stability of the self consistency and the law.2.The positive view of the interpretation of criminal law. It is argued that,Based on the positive standpoint,The interpretation of criminal law should be based on whether the society in general will have to explain the conclusion"Obviously towering feeling"To push for classification and expand the interpretation,In order to make the criminal law play a more important role in adjusting the social contradiction.3.Pragmatic perspective of the interpretation of criminal law. It is argued that,View of the unity of the unified, spawned legal rules and the life experience of law interpretation of criminal law and the pragmatism of Pragmatism,And unified the systemic consequences and specific consequences. The pragmatic interpretation of criminal law,Be engaged in the prevention and relief of two levels to improve,Lawful, reasonable, interpretation of results to guarantee. The author thinks that,Different perspective to help the interpretation of criminal law research,But the method of interpretation of criminal law is only a means to choose,A reasonable explanation must be built on the correct values,In conclusion the acceptability of the evaluation and interpretation of rationality as the basic.

　Location and relationship between the three, the constitution of a crime

　　2013The annual,On the constitution of crime,The researchers focused on the theoretical orientation of constitution of a crime and its relationship with proper behavior:1.Theory of crime.It is argued that,Crime is a crime standard,But the minimum standards set up a crime. The constitution of crime as the minimum standard of crime,Distorted the criminal elements of the function,Artificially compliance evaluation and crime of conformity assessment between before and after the two independent steps of convergence, constitute a crime.2.Relationship with proper behavior constitutes a crime. It is argued that,Crime constitution relationship with proper behavior is to solve the crime constitutes an important part of the system of dispute. Our country should be just act into crime constitution theory category system. There are theory based on the criminal law judicial position,Think from the perspective of judicial interpretation of the concept of crime,The object of transformation crime,"Super specification of the crime reason"Theoretical system of constitution of crime but not free,And should be fully absorbed in the crime evaluation mechanism. It should be said,The system of constitution of crime and criminal theory system in criminal law theory are two different concepts. From the system of criminal theory perspective,While the behavior is the basic category,But from the view of system of constitution of crime,Should be just act into which is worth discussing,More research needs to be.

　Four, the system of reeducation through labor criminal law should abolish the

　　2013The annual,Our country has stopped examining the reeducation through labor in China,And at the end of the year from the legislation formally abolished the system of reeducation through labor. For how to deal with the legal system of reeducation through labor abolished when the left,Theorists have been mainly discussed the following two aspects of the criminal law:1.Criminal law reform direction after the abolishment of the system of reeducation through labor. It is argued that,In the system of reeducation through labor after the abolition,Our country should achieve the security measures of the rule of law,The security measures in the form of legal position and power,The necessity and proportionality principle in essence. Also it is argued that,Should be subjected to reeducation through labor system in our country,To replace the non penalty and security measures,In accordance with the law of development of logic. And on that,The system of reeducation through labor related to the crime problem definition, problem, the structure of criminal law judicial efficiency and fairness, power configuration, the four substantive issues,Reform the system of reeducation through labor should be to criminal law and administrative law is different to join again,The object will be the current labor applicable to classification processing,Were incorporated into the administrative law and criminal law system.2.Criminal law reform after the abolishment of the system of reeducation through labor. It is argued that,Reeducation through labor in China is the punishment of the security properties of personal coercive measures,Our country should draw lessons from the theory and practice of foreign security measures,The criminal law amendment mode,The establishment of both substantive rationality and formal specification of the rationality of the system of reeducation through labor. The author thinks that,The system of reeducation through labor in the absence of law decides the inevitability of its Abolition,But the criminal law measures can have a variety of,The security measures and extension part of the criminal conviction threshold adjustment will be the two important aspects.

　Five, the miscarriages of justice of criminal prevention

2013The annual,The central government clearly put forward,The political and legal organs should strengthen the reform of the judicial system,Resolutely oppose unfair enforcement, judicial corruption,To let the people can feel the fairness and justice in each judicial cases. In this context,China carried out a wide range of cleaning the unjust action.2013The annual,The criminal law scholars to focus on two aspects:1.Unjust accountability. It is argued that,The boundaries of miscarriages accountability must first distinguish crime and non crime,According to the provisions of the criminal law to determine whether the related crime constitution,In order to determine the type of its liabilities. Secondly, according to the investigators of miscarriages of justice form the influence of size,A reasonable distinction between the criminal liability of the size,And appropriate to distinguish the leadership responsibility and direct the handling a case personnel responsibility.2.The improvement of the crime of torture to extract confessions.It is argued that,The crime of torture to extract confessions subject to judicial personnel,Does not meet the functional expectations of the legislation of crime of torture to extract confessions,It should be expanded to the national staff. Also it is argued that,To torture to extract confessions"Cause disability, death"Nature,Should adhere to treatment according to the transformed crime. Because in the objective,Inquisition by torture"Cause disability, death"Is caused by excessive behaviors of crime;In the subjective,The perpetrator of torture to extract confessions"Cause disability, death"With intent. According to their conversion processing helps strengthen our country criminal law governance behavior of torture to extract confessions. The author thinks that,Miscarriage prevention lies in judicial idea, system and system innovation,An important aspect of accountability is one of the criminal law on the miscarriages of justice, promote the,We should strengthen the crime of torture to extract confessions, crime, legislation and judicial application.

Six, the death penalty reform

Problems in the reform of the death penalty system is the key and core of the reform of penalty system in China,Issues related to the increasingly deepening.2013The annual,The researchers focused on the following three questions1.Public opinion of death penalty reform. It is argued that,The reform process Chinese death penalty system is necessarily a lead the public opinion gradually change process. The objective law of death penalty guide must follow the psychological formation, changes of the death penalty. In view of this,Should be in the public understanding of the death penalty reform based on the needs of interest,Fully mobilize the enthusiasm of all social groups and social forces to participate in the reform of the death penalty,The death penalty policy based,The death penalty as the main line,The death penalty legislation as a fundamental,Actively guide the death penalty reform.2.The problem of death penalty reform. A theory of international human rights law influence on the reform of the death penalty,That the theory and practice of international human rights law has played an important role in promoting the China death penalty reform. But the international human rights law to China death penalty reform influence Co.,The crux of the problem lies in China multiple, complex social conditions. The international community in promoting China death penalty reform,Need a deeper understanding of Chinese specific political, social history and culture conditions and the equality, flexible and soft way of communication.3.The death penalty case guidance system. It is argued that,Application of case directing system can be applied to death penalty, execution conditions, and distinguish the death sentence with a reprieve immediately commutation restrictions and the Supreme Court to guide and lead in controlling the death penalty and the role of. The author thinks that,Chinese death penalty reform has entered a rapid development of benign channel. Public factors, international factors and institutional factors are positive factors of death penalty reform,Should be given full play and the use of.

Probe the hot crime theory

With the changing of the social situation,In recent years new crimes in China emerge in an endless stream. This puts forward new requirements to the criminal law legislation and judicial.2013The annual,The researchers focused onThe crime of corruption crime, crime in cyberspace, abuse of minors crime, economic crime and other hot folkThe problem.

One, the crime of corruption

　　2013The annual,The researchers mainly from the macro and micro two aspects to strengthen the research on this problem:1.Macro perfect anti-corruption criminal law.It is argued that,To strengthen the anti-corruption criminal law,China needs to update anti-corruption criminal law idea,Appropriate to improve anti-corruption criminal law,The standard of conviction and sentencing of the timely adjustment of the crime of corruption,Until the final abolition of restrictions of corruption crime death penalty,And add the crime of Corruption Punishment and fine punishment. Also it is argued that,The crime of embezzlement and bribery,Abandon the identity and difference of property in China,Only to be convicted and punished according to the criminal acts as the,Realization of equal protection on the same benefits,At the same time will be two yuan for the charge system is modified as a unitary system of charges. And on that,China's official punishment configuration of bribery crime by take the amount as the center"The meter"Mode has obvious drawbacks,We should try to"The circumstances of the crime"The configuration mode as the center,Expand the application property punishment and qualification punishment,And timely abolish the duty crime death penalty.2.The micro improve anti-corruption criminal law. It is argued that,The definition of corruption crime amount only include amounts not including the number,And its conviction criterion by simple amount model is amended as"Summary the amount and other crimes"Pattern,At the same time take general amount standard. Also it is argued that,Should take"Theory of public affairs"Identified as the essential feature of crime subject instruction theory,Will"National staff"Amended as"Public officials".There are theory probes into problems of bribery crime,All the staff that can buy position in a state organ behavior"Goods"The object should be the crime of bribery,Our country should add"Sexual bribery crime". But there are also argued that,"Sexual bribery"There are also difficult to identify and operational problems in current practice,Should not be convicted. Objective to see,The current corruption crime of our country law faces a pair of basic contradiction,From the practical needs of punishing corruption and the loss of scientific design. This need to adhere to"Strict but not severe"The principles of criminal legislation,Further close corruption crime law at the same time,Lower the threshold for conviction and punishment,Abolished the death penalty for corruption and bribery.

Two, crime in Cyberspace

The crime of the network is more prominent problem in current criminal justice in our country.2013The annual,The researchers focused on the following two network crime1.Criminal law governance network of environmental crime. It is argued that,Network rumors behavior to stir up trouble crime to tougher sanctions increasingly spread,There will be a traditional pocket crime"The bag"To the network space again opened or expanded."Double Society"The traditional system of criminal charges to the network space extended application,Through the interpretation of facts,The judicial interpretations issued network crime,Standard system for establishing the network crime novel.2.The criminal prevention and control network technology crime.Some scholars discussed in network game"Plug in"And"PW"The qualitative behavior problems,Think about and making, communication"Plug in"Behavior,Visual respectively constitute the crime of copyright infringement, the crime of destroying computer information system and the crime of illegal business operation. In the network environment"PW"Actions should be convicted and punished the crime of infringement of copyright,If the acts of making and selling"PW"The program is the establishment of the crime of infringing trade secrets and the crime of copyright infringement of the imaginative joinder of offenses,After the crime;Behavior of erection, operation"PW"Situation,In nature"Reproducing and distributing",Shall be determined as the crime of infringement of copyright. There are theorists of criminalization network deepness link,That deep linking behavior help the type of indirect information network dissemination behavior,Belongs to the indirect infringement of the right of information network dissemination,Rising to the infringement of copyright crime. The author thinks that,Network environment protection is a new problem in the current criminal law of our country face,Need to make new adjustments and deal with criminal law. But the difference between network technology crime and traditional crime is only the means of different,This should be the behavior essentially types to grasp.

　Three, sex crimes by minors

Sexual assault of minors is of concern and controversy in China's current judicial practice problems. To strengthen the protection of minors' rights2013Years10Month"Two high"The Ministry of public security and the Ministry of justice, jointly issued the "law on the punishment of violations of minor crime opinion".2013The annual,The researchers discussed the issue of relations given statutory crime and carnal knowledge of a child rape crime. It is argued that,The relationship between the young young girl and having sexual intercourse with a minor controversy is whether reasonable competition two. From the point of view of criminal evaluation framework,The constituent elements and illegal, explain the relationship between crime and punishment of crime:Given a young girl with different degree of carnal knowledge of a child is not illegal,But the charge difference;Elements of the part of the young young girl crime beyond,Should be based on other crime masterpiece assessment,To meet the policy requirement. Also it is argued that,Given a statutory crime and carnal knowledge of a child rape crime is the overlap of articles of law,Keep young young girl crime does not cause partial light of criminal punishment. A sexual relationship with a young girl,In accordance with the different circumstances:Given a young girl and do not have aggravated assault,To be given a statutory offense;Given a precocious and aggravated with rape when,In order to rape aggravating circumstances of conviction and punishment14To16Minors under the age of the young young girl,To rape conviction and punishment. The author thinks that,Given a precocious and fornication with an underage girl legislation have different emphasis,There is a certain gap,Take the form of justice and make up the difference,Method is feasible, but space is limited,Legislation adjustment is the key to solve the problem.

　Four, private economic crime

Private economic crime is a new crime prone in the judicial practice of our country in recent years.2013The annual,The researchers focused on the following two questions(1.Application of illegal fund-raising criminal law.It is argued that,The prosecution of illegal absorbing public savings behavior should be based on the folk financing activities positive value to the economic development,Distinguish between legal and illegal private financing activities,Based on the honest credit principle, the full disclosure of business information and the financing behavior of interest rate agreed upon with the enterprise profit matched into folk loan category,Only by fraud or more than corporate profit margins and does not have the purpose of illegal possession of large amounts of capital behavior as the crime of illegal absorbing public deposits. Also it is argued that,Illegal fund-raising crime perpetrator include funding for himself and the perpetrator and the funds through various forms of collusion and money allocated. Let the result of crime belongs to the crime of fraud of the line staff help offender,I do not know who to obtaining funds exist fraud deliberately illegal absorption of public deposit lending to the fraud referral behavior,Should be based on the crime of illegally absorbing public deposits.2.Application of usury law. It is argued that,To the specific individual usury behavior,It should be defined as normal folk lending,In order to free value and efficiency value of funds,Fully respect the autonomy of the parties;To not specific to the social public usury and serious behaviour,Can the illegal business crime,In order to strengthen and improve the management of the folk financing,The private lending legal norms, efficient and orderly. Also it is argued that,Judging whether civil lending constitutes a crime,We must examine whether a serious violation of financial supervision order. If the folk usury violated the criminal law to protect the legal interests,Can the illegal business crime conviction and sentencing. The simple use of idle funds one-way operation of usury,There is no need to criminal law. Say objectively,The key to solve the problem of economic crime lies in the different folk function how to treat the folk capital and financial capital,If we must emphasize the social economic function of financial monopoly capital,Must be compressed private capital, which then lead to increased private economic crime,Otherwise lead to civil economic crime limit. The long term,Through adjusting the market rather than criminal law to guide the private capital rational function is the key to solve civil economic crime lies.

In a word,Criminal law is a combination of theory and practice. Bidirectional research focusing on the theory and the practice question is2013The important characteristics of the year of science of criminal law. Future,China should further strengthen the study of criminal law in the theory innovation and the practice application,In order to promote the construction of China's criminal law development and progress.

　　(The author respectively Chinese criminal law research President Professor, Beijing Normal University Institute of Criminal Science;Associate professor of Beijing Normal University Institute of Criminal Science)

 

Han Dayuan, Meng Fanzhuang:2013Years of constitutional positive progress has been made in legal research

Procuratorial daily2014-1-1, No.3Version.

    Editor's note:2013Years, academic research and practice of the rule of law legal area is very active, constitution, criminal law, criminal procedure law, civil procedure law and the procuratorial theory research have achieved fruitful results. Starting from today, this newspaper launched"2013Theory of Law Review"Column, with you to review the academic achievement, hoping the new year legal research to provide more intelligence support for the realization of China dream. 

    ▶ stick"China consciousness","Practical consciousness"

    ▶ in-depth study of basic constitutional category and method

    ▶ a return to constitutional text, implement the spirit of the rule of law

    ▶ the Constitution and the laws should be coordinated development

 

    2013Years, Chinese constitution research stick"China consciousness","Practical consciousness"To solve the problem, the constitution of social practice, to explain the theory of the constitutional law, has made positive progress. 

With the method of constitutional basic categories

    Attention and in-depth study of the basic category Chinese constitution and methods is an important characteristic of constitutional law research over the past year. The Constitution and constitutional government, human rights and fundamental rights, basic legal and non legal, socialist constitutional issues, scholars have conducted academic discussion. Scholars believe that, in the process of social development in the future, the principle, system and operating procedures should be strictly in accordance with the constitution of the establishment, with the constitution as the core of national governance mechanism, set the constitutional limit of reform, reform of the dividend release by constitution and law authority, adhere to reform and constitutional foundation of constitutionalism, with strong constitution. 

    On the basis of the analysis of constitutionalism and constitutional concepts, scholars emphasized the significance and value of the supremacy of constitution, should actively explore those already condensed specification spirit in the constitution of the development trend of the current constitution, look at in the transitional period. We should not only be the constitution as"The town of magic weapon"The constitution, but also as"State ceremony". This is the proper meaning of the title China constitutional development. 

    We think, the three basic elements of constitutionalism is democratic, rule of law, human rights. Among them, democracy is the premise of rule of law, the rule of law is the premise and guarantee of human rights, the protection of human rights, democracy and the rule of law, its core is the supremacy of constitution, set up the constitutional authority. Of course, due to the nature of our state and specific conditions, different in the theoretical basis, the three basic elements of constitutionalism, the specific content of the concrete system design and the western countries, but also with other socialist countries have differences, formed the socialist constitutionalism with Chinese characteristics. 

    In the study, researchers think,"According to the Constitution","Ruling by constitution"Is a basic goal of building the rule of law China, we want to realize the rule of law, we must adhere to have China socialist constitutional theory and principles. 

System and function of basic rights

    Some achievements have been made in research on constitutional basic rights system and function of citizen. A scholar of the basic rights of the system, it is considered from the view of people, community, the three logic relation and interaction, the constitutional rights are the people involved in the community of all kinds of social relationships to get qualifications and interests, according to who won the possibility of survival and development. Constitutional rights system provides a human law of survival and development of a comprehensive system based on. To follow this law, constitutional rights system can be regarded as"The value of constitutional rights system","Constitution system","Constitutional obligation system"And"Constitutional rights system"The organic composition of the four. 

    In addition, constitutional scholars for the property rights of citizens, the right of freedom of movement and the right of labor rights specific to attention and discussion. For example, some scholars carried out on constitution private property, that the private property right is a basic right of citizens, should from the text of the constitution, the reality and the function of the angle of research to the system of private property rights, the establishment of security mechanism and realizing process sequence. The eighteen along with the spirit and the "CPC Central Committee on deepening reform of certain major issue decision"(Hereinafter referred to as the "decision")Implementation, private property rights will become an important constitutional issue of widespread concern in the development of society. 

    The scholar has carried on the analysis to the freedom of migration, that the current research on the freedom of migration problems, more is to be as one of the basic human rights are concerned, the real factors and the freedom of movement to achieve and reasons. The impact of the freedom of migration implementation factors, to solve this problem, the first to have a correct analysis problem, problem-solving ideas in theory, an objective look at the effects of various practical factors to realize freedom of migration, the path of seeking a crack problems and on the basis of the. 

    There is also the issue of protection of scholars devoted to custody of labor rights, that the pending custody of the labor right is the meaning of the constitution of the right of labor and non labor law labor rights;Pending custody of the labor right is different from the ordinary social workers, but also different from the convicted prisoners, is very special. Effective measures shall be taken to perfect the system of pretrial detention, the protection of labor rights, to improve the overall level of rights protection. 

    In the study of the fundamental rights system, also have the problem of special protection of special rights of scholars, such as some scholars have explored the"The lost only"The protection of basic rights of this special group, think"The lost only"Has become a new"Special groups"The endowment, poverty, disease, and psychology are the main problems facing them."The lost only"Because the state obligations and, so, as the subject of human rights, the government must have the appropriate legal policy to protect them. The government will also be social maintenance fee as fulfilling the obligation of Planned Parenthood"The lost only"Pension cost.

The Constitution and reeducation through labor

    Value consensus based on human rights, constitutional scholars have been concerned about the research of reeducation through labor. In the constitutionality, legality and legitimacy of the mutual value balance, the scholar thinks, the system of reeducation through labor as the norms of restriction of personal freedom, shall be stipulated by the administrative regulations of the State Council is wrong, that conflict with the legislative law, the law on administrative punishments. To construct the position from the legislative system of reeducation through labor and constitution, demonstrates the legitimacy of other similar system, must be built on this premise that the constitution of the overarching legislation system. Only strictly in every constitution set the legislative system under the framework of the study, we can make the different periods of specification accurately identity. To deal with conflict, from the core value of the protection of human rights of return to abolish the re education through labor system, the text of the constitution, to implement the spirit of the rule of law. 

    It is gratifying,2013Years12Month28Day, the twelve session of the sixth meeting of the NPC Standing Committee on the abolition of the relevant provisions of the law of reeducation through labor decision, lasted for more than half a century of the system of reeducation through labor has come to an end. From the Central Committee decided to propose abolishing the system of reeducation through labor, to today's standing committee of National People's Congress formally abolished the system, only a month's time, the central re practice reform and reflects on the social public opinion, respect for human rights, judicial protection system of our country progress. 

The relationship between the Constitution and the law department

    Over the past year, academic relations for the Constitution and the laws also has a lot of discussion. Scholars have discussed the problem of coordinated development of economic law and the constitution, that the structure adjustment and institutional development of economic law is the legal system changes, requires the coordination of development and the Constitution and other department law."Economic Constitution"Provides the constitutional basis for important to the development of economic law, economic law is not only the requirements of the development of constitution, and is necessary, the implementation of the constitution. At the same time, also has the perfect and contributed to the development of the constitutional development of economic law. The economic law and the constitution of the common economic and normative based on, through judicial judgment and non judicial judgment, improve consistency and coordination between the two, comprehensively promote the coordinated development. 

    Some scholars on the basis of the system of punitive damages America constitutional arguments that, due to China and American different legal traditions and systems, our multiple damages and punitive damages system should not simply copy, but can obtain a lot of reference:Should be used and reflected value constitution in concrete system, strengthen the concern department law of the constitution, should give full consideration to the breadth and strength of our penalty system. 

    A constitutional trend scholars of international law to discuss, think constitutional transition of contemporary international law shows in practice of international law and international relations, the rule of law and democracy. At the same time, the global constitution is conditional and there is path dependent, the international law constitutionalization there are still many challenges. 

    Some scholars in China to explore the constitutional protection of human rights legislation and the development of the system of punishment that longitudinal study progress, implementation process from the penalty in our penalty system, in the system of punishment, sentencing and execution of three aspects in the implementation of the constitution to strengthen the protection of human rights requirements;From the substantive law and the procedural law two yuan divided the lateral view, China's criminal law amendment(Eight)And many provisions of the revised criminal procedure law involves the penalty and the program design embodies the basic idea of the protection of human rights, the penalty system's progress. 

The text of the Constitution and constitutional interpretation

    Constitutional scholars have gained many achievements in the study of the text of the Constitution and constitutional interpretation theory. Some scholars made a sketch style finishing basic position of constitutional dogmatics and path, although Chinese on existing constitutional dogmatics operation exists some legitimacy and technical difficulties, but if we face the real problem of development of rule of law China, both in the written constitution, the various conflicts of interests and ideology limited in the field of standard, various value disputes technology into normative dispute, can fully realize the Constitution and conflicts of interest, social consensus function. The basic approach Chinese should establish the constitutional dogmatics of law. 

    Some scholars believe that the constitution of our country to"State ownership"Natural resources ownership model as the core should be explained by technology development"State regulation"As the core of the property rights model. The natural resources in the constitution of our country,"All countries"Not simply that the country through the possession of natural resources and direct access to the interests. But first of all should be understood as the country must fully play a decisive role in the foundation market, through the use of responsible regulation means, including the establishment of state ownership to prevent monopoly as the core of the measures, to ensure that social members persistent shared natural resources. 

    Some scholars discussed the social integration of constitutional interpretation, that the period of social transformation, the Constitution and the constitutional reality often appear inconsistent, therefore need to face the constitutional change, but also for constitutional change constitutional challenges, namely how to maintain the Constitution and social reality"Structural compatibility", but not lose its stability characteristics. Deal with constitutional change, the most important means of than the constitutional interpretation, transformation and contemporary value pluralism background also asked the constitutional interpretation task, that is no longer in an objective and"The only correct"As the goal, but the integration is committed to the pursuit of the social value, namely in the constitution value premise to ensure unity under the unified value conflicts in the Constitution can coexist in the constitution. 

Research on modern science and technology and foreign constitutional issues

    The new trend of new issues, constitutional scholars to the development of constitutions of many countries in the world has given attention. For example, some scholars in the case in Britain as an example to discuss the legal and practical issues of transgender rights protection, the law usually only admit that biological sex, resulting in the transgender identity and status is not recognized by the law, leading to the rights and interests of transgender not protected by law. Recognize transgender identity and position with respect for their dignity and protection of gender equality in human rights requirements, but also to implement the constitutional protection of fundamental rights of transgender people, and some countries have formulated the acknowledge and laws to protect transgender rights. The special rights of transgender people usually and personality and identity, through litigation cases in UK can be summed up the special field of transgender rights. 

    Scholars have explored the weak British parliamentary sovereignty constitutional review, that the UK through1998Compromise mechanism to review the constitutionality "weak established human rights law" in the maintenance of the sovereignty of Parliament to reconcile this contradiction and the judicial protection of human rights. Must face the problem of British constitutional reforms and other parliamentary sovereignty established the system of constitutional review. National system and the principle of the weak type of constitutional review for other pursue parliamentary supremacy principle is established to provide a reference template mechanism to review the constitutionality. 

    Some scholars of constitutional development in five Asian countries were studied. That Asia does not seem to have a special"Asian style"The mode of constitutional government or political system, there is not enough evidence that the Asian culture and value concept and constitutionalism incompatible. On the contrary, constitutionalism can be implemented in a particular country or region, seems to depend more on political factors, should fully consider the impact of traditional culture, and other factors on the development of Asian constitutionalism, constitutional development mechanism established in asia. 

    Reform and practice of the French constitutional review system has attracted extensive attention of scholars. Scholars have explored the reform and practice of the French Constitutional Review, pointed out that the French to overcome the limitations of prior review mode, in2008On the constitutional review system for major reforms, introduced the mechanism after the examination, a mixed model with French characteristics. This system has been put into practice, and achieved certain results, but also exposed some problems. New trends of French unconstitutional review is an important field of international constitution"Test"With comparison method, the reference, help us deepen complexity, development of the constitutional system of the understanding of the special permanent. 

Future prospects and new topic

    2014Years of China constitution is of great significance for a year and constitutional development. We will celebrate1954Years of the Constitution60Anniversary of the establishment, the system of people's Congress60Anniversary. At the same time, and comprehensively implement the spirit of the big eighteen and "decision" key year. Under the guidance of the theory of social issues in the reform and development need of constitutional jurisprudence. Research topic of concern include60Years of development of social reform and the constitution Chinese experience;Social reform and constitutional governance;National governance how to play the role of the constitution as the fundamental law;The reform of the justice and constitutional foundation;The core interest of a country and the constitution value;Perfecting the legal system with the Constitution;The rational allocation of the Constitution and judicial power;The Constitution and the reform of the land system;The implementation of the basic law of the Constitution;The establishment and perfection of constitutional supervision procedures;The Constitution and the reform of the fiscal and taxation system;The Constitution and the defense system of the rule of law;The Constitution and judicial protection of human rights, constitution theory localization. 

 (The author as a doctoral Renmin University of China law school professor, Renmin University of China School of law)

Wang Shouan: procuratorial theory research to the depth of fine promote

Procuratorial daily2014-1-5(3)

    The two major procedural law to improve the prosecutorial system and the scientific development of procuratorial work 

    The reform should be to achieve judicial justice and the elimination of judicial corruption as the main direction of reform 

    To strengthen the administrative supervision, promote administrative procuratorial function perfect 

    Procuratorial organs should hold the miscarriages of justice line, enlarges to the relief of criminal victims

 

    2013For the procuratorial system is very critical year, the revised criminal procedure law, civil procedure law, "the people's Procuratorate rules of criminal procedure(Trial)"(Hereinafter referred to as the "rules")In the2013Years1Month1The formal implementation date. The party's Third Plenary Session of the eighteen opened a new round of judicial reform, judicial reform in the review and exploration of new historical juncture outlook. Strictly regulate the law enforcement, improve the function of procuratorial supervision, promoting the management to a higher level, the prosecution standard exercise put forward higher requirements, but also greatly boosted the procuratorial personnel and theorists engaged in enthusiastic procuratorial theory research, the research results of the theory are numerous, fine news. 

    2013Prominent features of annual procuratorial theory is to promote to the depth and meticulous. From the published results, mainly from the following aspects:

The development of legislation and system:

The implementation of two major procedural laws and procuratorial work

    As the organ of legal supervision, in the two major procedural law in the implementation process to earnestly perform their duties, correctly grasp"Methods"The new laws modified the creation of a new litigation system, provided a mechanism for their implementation, and comprehensively promote the scientific development of procuratorial work, also provides new material for the research of procuratorial theory. 

A revised criminal procedure law, and the procuratorial work propulsion

    How to modify the criminal procedure law enforcement effect, still has some problems, and how to solve, how to play the role of procuratorial organs, is more concerned about the theory problem.2013Year, researchers will be more focus on the microscopic understanding of the revised criminal procedure law the concrete system assurance, and combined with the "rules", put forward the concrete suggestion to promote the future procuratorial work. 

    1On the litigation supervision. For a long time, the procuratorial organs perform the litigation supervision according to law, to ensure the justice of litigation plays an important role in. The solicitor high school long Zhu Xiaoqing thinks, the procuratorial organs to strengthen supervision of case filing and investigation, it focuses on the following aspects:Strengthen the supervision of case filing, deepening the early intervention investigation, exploration of criminal execution supervision, supervision of local police station resolutely corrective action, illegal evidence exclusion of illegal evidence in a timely manner, earnestly fulfill their legal responsibilities, perfecting supervision mechanism. It is argued that, had an important influence on the revised criminal procedure law of investigation supervision work idea and the working pattern, investigation and supervision departments should seize the opportunities, face the challenges, the improvement of the case quality examination of arrest, further strengthen and standardize the supervision of investigation. There are scholars, can be developed for information sources, make full use of the existing supervision function, strengthen cooperation and personnel transfers the integration of procuratorial organs of internal departments and other ways, out of the plight of the criminal case filing supervision work faces. 

    2Work on the crime investigation.The correct application of the revised Criminal Procedure Law on the relevant provisions of review of arrest, ensure the duty crime arrested right exercise effectively, is an important task faced by procuratorial organs. It is argued that, procuratorial organs should change the concept of law enforcement, strengthen the arrest necessity to enhance the action review, review of arrest procedures, clear the exclusionary rules of illegal evidence, deepening the detention review the necessity. Also argued that the new requirements of the work of criminal procedure law revised on duty crime investigation, procuratorial organs must actively promote the investigative idea transformation, effectively strengthen law enforcement strategy, and further promote the quality construction investigation team. 

    3On the public prosecution work.Some commentators have pointed out, the establishment of the power of sentencing suggestion, the illegal income confiscated and compulsory medical procedure start right, given the procuratorial organs prosecution new connotation. Establish the review prosecution procedure illegal evidence exclusion program, will enhance the operation quality of the system of examination and prosecution. The establishment of non prosecution of additional conditions, enriches the system of non prosecution cases, and simple procedure to clear responsibilities, has enriched the connotation to court to support the public prosecution system. There are key issues on the prosecution of "rules" to the detailed explanation, and the public prosecution department how to understand and apply the provisions of the countermeasures. 

    4On the procuratorial supervision work. It is argued that the "rules" to implement"Three maintenance"(Maintenance of penalty execution and the supervision of fairness and justice, maintain the supervision order and stability, safeguard the legitimate rights and interests by supervision)The organic unity of the procuratorial supervision work idea and criminal execution supervision concept, should be a unified supervisory responsibilities undertaken by the procuratorial supervision departments of criminal execution, including the specified home residential surveillance, detention execution supervision is necessary, the death penalty review, on-site supervision over the execution of supervision penalty changes, compulsory medical supervision etc.. And the researchers point out the three ways for the revised criminal procedure law under the background of the procuratorial supervision departments to improve and perfect their own work:One is to strengthen the function of supervision, promote justice and supervision punishment activities according to law civilization management. The two is to promote the construction of community correction system. Three is to strengthen the social contradiction, promoting the person held in custody to safeguard the legitimate rights and interests of mechanism construction. 

    5About the criminal appeal procuratorial work.Some scholars have suggested, amendment of the criminal procedure act the legal attribute of the criminal appeal procuratorial work more prominent, further strengthen the internal control function, protection of rights, contradiction of the responsibility is more clear, the task is more onerous. The criminal appeal procuratorial departments and personnel under the idea of law enforcement, evidence examination and judgment ability, working ability of the masses, the strength and ability as the challenge. We must enhance the supervision consciousness, strengthen the appeal, compensation management, strengthen the system construction, the implementation of security measures, to promote the innovation and development of the criminal appeal procuratorial work. Also on the proposed construction of procuratorial integration of criminal appeal cases handled mechanism, its specific path is the procuratorial departments subordinate hospital implementation of criminal cases linkage, upper and lower school collaboration with the authority responsibility according to rational division of labor and the handling process, and to promote the integration of information technology. 

    6A special procedure in criminal prosecutions. On the juvenile criminal prosecution system, it is argued that the procuratorial organs should be the establishment of juvenile procuratorial work professional integration mode, promote the judicial protection and social protection of integration, promote the crime involving minor non criminal, non imprisonment, the non penalty processing implementation of the concept. On the illegal income confiscated program, it is argued that the procuratorial organs in the confiscation of property proposed application, shall provide evidence from the crime evidence, evidence, evidence of properties involved in judicial proceedings. To better fulfill its procuratorial function in the program, the procuratorial organs should focus on strengthening the protection of human rights consciousness, consciousness of the booty, legal supervision consciousness awareness and international cooperation. A forced medical procedures, it is argued that the legal supervision of the procuratorial organ of compulsory medical treatment program is a program of supervised and unsupervised entity, through the clear subject compulsory medical institutions, strengthen the effectiveness of the legal supervision of the prosecution, improve the delivery of cohesive mechanism implementation stage of legal supervision, to strengthen the procuratorial organs legal supervision and care. 

Two, revised civil procedure law enforcement and prosecutorial work

    Implementation and procuratorial work of civil procedure law revision of procuratorial theory research, is an important issue in this year. The scope of discussion in theoretical and practical sectors including issues of civil procuratorial supervision theory, but also covers the procuratorial organs filed public interest litigation and other practical issues. 

    About the civil prosecutorial supervision. Some commentators have pointed out, the revised civil procedure law concerning the content of procuratorial supervision embodies the overall supervision of the principle of combining with limited supervision, to ensure the procuratorial supervision degree of relaxation. We should further perfect the supervision legislation, will infringe upon the legitimate rights and interests of the third party mediation should be included in the scope of procuratorial supervision. Some scholars have suggested, should be clear about the procuratorial suggestions procedural rules, to make it more procedural characteristics. In order to ensure the stability of judgment, should be strictly limited"If the second judgment, ruling have obvious errors"The scope of application for the protest, and for the parties to apply for appeal deadline. Study the positioning of the macro, meso and micro three level and on the modified under the background of the civil procuratorial supervision system. The macro positioning reveal the judicial rules of civil procuratorial supervision system, middle orientation of litigation law of civil procuratorial supervision system, and micro positioning of supervision and regulation of the civil procuratorial supervision system. 

    On the procuratorial organs filed public interest litigation.On the one after the change55Strip as the breakthrough point, discusses the related problems in the procuratorial organs of the environmental public interest litigation. The theory that the modified procedure, a relief system of China's environmental public interest legal precedent, breaks through the traditional theory of parties, the procuratorial organs can directly support prosecution, prosecution and criminal incidental civil litigation mode, to participate in environmental public interest litigation procedure. According to the provisions, and commentators have pointed out, the constitution, law of the people's Procuratorate of the spirit of the legislation and judicial practice based on, it is necessary to procuratorate public interest litigation function to be sure. The problem of public interest litigation in procuratorial organs of the qualification of the plaintiff, the scope of accepting cases, environmental damage assessment and burden of proof, legal proceedings, litigation expenses and so on, it is necessary to improve legislation, detailed provisions. Also argued that the procuratorial organ, public interest litigation shall determine the scope of legislative interpretation, the specific rules of procedure and the procuratorial organs of public interest litigation shall be constructed of judicial interpretation. 

Strengthen supervision and function improvement:

Strengthen the administrative procuratorial supervision

    Strengthen the administrative supervision, promote the perfection of administrative procuratorial function, specification of the functional role of the procuratorial organ in the administrative litigation, is a key issue of the procuratorial theory. Deputy Attorney General Sun Qian clearly put forward the high school, must from the importance of the rule of law perspective the prosecutorial supervision of administrative litigation. We should establish the administrative public prosecution system, but the prosecution of administrative public prosecution, the starting point is not necessarily the public relief, but binding administrative power. Although the private right in the administrative public prosecution process may also be guaranteed, but the fundamental starting point or let the public of procuratorial supervision restriction. 

    2013Year, have on scope of administrative supervision of the procuratorial organ is discussed, and put forward the define of procuratorial organs in administrative public prosecution authority, will help to clear the procuratorial supervision duties. Can also be taken into account before instituting public prosecution, procuratorial suggestion the prepositive procedure set. It is argued that, in the administrative litigation law revision process, it is necessary to define the procuratorial organ function in administrative litigation. Procuratorial organs function, depends on the nature of Procuratorate and the administrative litigation function. With the transition from relief of administrative litigation function method to organizational law, procuratorial organs should not only continue to play the function of litigation supervision and relief method, but also should undertake the function of legal supervision organization law, on behalf of the state through the administrative litigation to realize the legal control of the administrative organization and its operation. There are critics pointed out that, as a legal supervision organ to exercise legal supervision over administrative litigation, we must clarify the administrative power, judicial, procuratorial power relations in administrative litigation. There are many on the procuratorial organ to exercise legal supervision over administrative litigation principles, modification of administrative procedure law, whether to adjust the scope of administrative procuratorial supervision and supervision to amend the administrative procedure law should stipulate the procuratorial organ, the procuratorial organs in protest of the important issues in what position in the system of administrative public interest litigation, to extensive discussions.

Historical review and Approach Exploration:

The procuratorial reform entered a new historical period

    Eighteen of the Third Plenary Session clearly put forward to deepen the reform of the judiciary requirements. The procuratorial reform is an important part of the judicial reform, how to design the procuratorial reform over the next few years in the new starting point in the new historical period, the station, is an important topic worthy of serious consideration. 

    That is on the basis of reviewing the historical stage of China's procuratorial reform, will the procuratorial reform in the new period moves forward in the past reform achievement, which determine the new round of the reform, to reflect the reinforcement and expansion, with the combination of law, improve the credibility of the law enforcement etc. the principle, the concrete around the procuratorial organs of the organization structure, the organization, the procuratorial personnel classification management and the occupation safeguard reform and expansion. Through the reform, enhance the scientific level set procuratorial organs of internal institutions, judicial attributes to display the procuratorial power, the establishment of prosecutors, judicial status, features prominent procuratorial integration, strengthening the independence and impartiality of the prosecutorial enforcement. Also argued that, as the central and overall national judicial reform of procuratorial reform should be part of the composition, in order to realize the judicial justice and the elimination of judicial corruption as the main direction of the reform, and focuses on the following topic:One is the necessary reform of procuratorial power has no continue to promote large-scale, the two is how to ensure that independently exercise procuratorial authority according to law, the three is to improve the internal operation mechanism of procuratorial power and the prosecutor's responsibility system, the four is the prosecutor occupation reform. 

    To strengthen the construction of law enforcement standardization, to ensure that the correct exercise of prosecutorial power standard, is a critical problem of procuratorial reform.2013Years2Month, the gaojianyuan formulation issued the "basic norms of law enforcement of procuratorial organs2013Year Edition)", the law enforcement process further refined, more operational, norms for the procuratorial organs and the general procuratorial personnel of law enforcement, improve work quality and efficiency in handling the case, has significant and the profound significance. 

    To strengthen the management, promoting the management to a new high level, is the inevitable requirement of advancing the procuratorial reform. In this field, researchers focus on procuratorial work management, organization management and personnel management and so on. It is argued that, with the further development of the procuratorial reform, management effect of procuratorial work gradually into the management field, and gradually from the independence in the mixed state efficiency of procuratorial work, the procuratorial work management, quality management, and they become one of the three major goals of procuratorial management. Three aspects of management mechanism and the effect of the overall effect of procuratorial work management management mechanism, should be the case the effect of the assessment mechanism, management mechanism to construct the procuratorial work effect. Procuratorial organs of the internal organization is the organization carrier procuratorial power movement, is also the organization management procuratorial agencies. There are critics pointed out, prosecutors classified management is the premise to promote and deepen the reform of prosecutor, attorney occupation development ladder should be determined according to the prosecutors occupation characteristics, determine the prosecutor quantity according to the need to exercise procuratorial power, in accordance with the appropriate to reduce the wage gap, setting a minimum starting point design prosecutors wage system, in accordance with prosecutors dedication of the design requirements of prosecutor selection and promotion of standards and rules.

Tamp the foundation and focus:

Continue to deepen the research on the basic theory

    2013Research on the basic theory of the year, the procuratorial supervision, procuratorial power, procuratorial policy, procuratorial culture, ethics, and continue to deepen the reform of procuratorial. It is worth mentioning that, in a series of discussions to prevent miscarriages of justice, the researchers were also involved, especially from the prosecution of how to guard against the unjust bottom line view of interpretation.

    On the procuratorial supervision. Some commentators have pointed out, the traditional procuratorial supervision idea is to emphasize the legal supervisory authority, independent, aloof, one-way, and thus gradually formed by the supervisory authority of procuratorial organs and the great"Estrangement"On both sides, and the subconscious counter based on vertical supervision mode. But this confrontation has been difficult to meet the national social objective demand of China's procuratorial system. Therefore,"Interaction mechanism"To build a vivid and real bridge for the procuratorial supervision practice, provides the analysis approach for the procuratorial supervision system China characteristic innovation. 

    On procuratorial power.Commentators have pointed out that in our country"The National People's Congress"System architecture, the procuratorial power constitutional position is much higher than in western countries, independent of the executive and the judicial power of legal supervision of the procuratorial power type. However, the reality of our prosecutorial power and legal status of the procuratorial power gap, partial to the exercise of public prosecution and criminal trial surveillance function and delayed in administrative litigation supervision, and the executive power of the procuratorial supervision vacancy, is an important cause leading to the spread of corruption. Must meet the needs of social transformation and development of the expansion and improvement of procuratorial function in administrative litigation supervision and public interest litigation. 

    On the prosecution policy. The person in the evolution and practice of prosecutorial policy based on the analysis, put forward reasonable and accord with the overall work of the party and country, actively respond to the new requirements and new expectations of the people, to achieve the standard of prosecutorial power operation of the prosecution policy, the policy concept, differences rooted procuratorial prosecution policy the application path, to regulate the adjustment prosecution policy, and establish and improve the promotion effect of the policy evaluation system. 

    On the procuratorial culture. Some scholars pointed out that China's recent representative procuratorial culture views are more or less defects. From the consideration of further research and practical point of view, can be defined within the procuratorial culture spiritual achievement category, prominent attorney occupation essence characteristic. The researchers suggest that the content can be divided into three levels of procuratorial culture concept, the procuratorial theory and image, thus provides the framework and basis for the path of procuratorial culture construction and theory research. There are theorists, construction of procuratorial culture has condensed role, guiding role, incentive and restraint, and foster the idea culture, highlight the core value culture, construct the procuratorial culture carrier, prominent procuratorial culture characteristic, should become the direction and path of procuratorial culture construction. 

    On the procuratorial ethics. The person in the occupation ethics of the public prosecutor in China and international practice for detailed comparison, the prosecutor occupation ethics construction should be given a"Internal perspective"According to characteristics of the prosecutor, occupation itself, and should not be confused with the public ethics ethics or ordinary. By standardizing the occupation ethics prosecutors perfect setting and practice, highlight the characteristics of attorney occupation occupation ethics, promote the prosecutor to perform their duties according to law, protect human rights, safeguard the occupation status and occupation dignity, should become the direction of construction occupation ethics of the public prosecutor in china. 

    Stick to the bottom line is to prevent miscarriages of justice, safeguard social fairness and justice is an important aspect of the.2013Annual, preventing criminal miscarriages of justice, enlarges to the relief of criminal victims, is a hot topic of theory circles and practice circles. Zhu Xiaoqing specially wrote, clearly pointed out that to ensure the quality of handling cases, to prevent miscarriages of justice line, is a lifelong pursuit of every law enforcement personnel and responsibility. To make clear the connotation of the case quality, grasp"The miscarriages of Justice"Recognized standards. The indictment and arrest of two perspectives, discusses the procuratorial organs to prevent the concrete working standard of miscarriages of justice the bottom line. 

    In short, with the gradually stereotypes in full swing the procuratorial system and the academic circle and the legal system of our country procuratorial theory research, the theory study in the future to continue to deepen the study on the basic theory and at the same time, will focus on the judicial reform and the law in the implementation of the new proposition, the procuratorial authority how to more scientific and standardized exercise and so on, research on the application of the closely related to the procuratorial practice will be more thorough. 

    (The Supreme People's Procuratorate procuratorial theory research institute)

 

Zhang Weiping, Cao Yunji: Civil Procedure Law: research focuses on understanding and Application

Procuratorial daily2014Years1Month4Day, the3Version

    ■Public interest litigation should lock is not specific subject 

    ■Small claims to reflect the legislative intent 

    ■Time limit should be combined with the pretrial procedure and the evidence exchange system design 

    ■The false action in forgery behavior when the criminal law

 

    2013Years1Month1Date, the implementation of the revised. Research on the understanding of civil procedure law amended and application, is the focus of civil law study.

The principle of good faith in civil litigation

    After modifying the13Article1Clearly stipulated in paragraph, in civil litigation shall follow the principle of honesty and credit. The principle of honesty and credit should be how to understand and apply, scholars have conducted extensive and in-depth discussion. Mainly involves the following two questions. 

    The scope of the subject of the principle of honesty and credit. The honest credit principle should apply to the controversial, some scholars believe that, as the basic principles of civil litigation, the principle is not only applicable to the parties, also applies to the judge. But some scholars have pointed out, because the judge is the subject of this principle, so it is difficult to apply to the judge. From the implementation situation abroad, the judge is difficult to obtain actual effect. Also the scholar thinks, as a rule, the principle of honesty and credit can be constrained to the trial judge and the trial judge through the trial on appeal and retrial. 

    The specific implementation of the principle of honesty and credit. Some scholars have pointed out, the positive significance of the principle of good faith not only in that it is some specific legal basis, is that it can be applied according to the specific situation. Because the non honest behavior can not be standardized, can only according to the specific situation of application. Because according to the specific situation of the application of this principle, so the judge has a higher authority and quality. The judge's authority and improving the quality of all need through the reform of the judicial system to realize, therefore, in the present circumstances, the concrete application of the principle of good faith is not optimistic, but the courts at all levels to guide the correct understanding and application of the guiding cases. Through such a learning mechanism, ensure correct implementation of the principle of honesty and credit. 

The system of public interest litigation principle

    System and the implementation of public interest litigation principles mainly involve the following aspects: 

    The scope of public interest litigation.After modifying the55Specific provision, pollution of the environment, many of the legitimate rights and interests of consumers against the damage of public interests, the law of the relevant organs and organizations may bring a lawsuit to the court. This is the principle of public interest litigation, but the specific range to the public interest litigation, scholars still have different opinions, a kind of understanding is the scope of public interest litigation is not only limited to the above two kinds of cases, but should be based on specific subjects not jointly owned by the public interest. However, should the public disputes relating to specific subjects excluded. That is to say, even if the number of disputes involving many interests, if the subject is specific, also should not apply to public interest litigation. This is due to the provisions of the civil procedure law, public interest litigation plaintiff is beyond the direct interest. If a mass tort litigation interest subject is specific, such as a product or service to many consumers, it should be through joint action and the common litigation representative action to achieve. 

    The subject of public interest litigation. The scholar thinks, the civil procedure law has been the subject of public interest litigation limitation as the law of the relevant agencies and organizations, the plaintiff qualification of the law has not stipulated the organs and organizations and individuals do not enjoy the public interest litigation. Some scholars think, should be open to the subject of public interest litigation, to avoid the formation of plaintiff qualification of monopoly, cause of rent-seeking behavior. The plaintiff qualification in public interest litigation prosecution whether need through a specific law to stipulate, controversial. Some scholars argue that, since in the constitution has stipulated the procuratorial organ as the state legal supervision organ, without detailed provisions. 

    Types of litigation request. If the subject of public interest litigation locking is not specific subject, type request public interest litigation should be eliminated according to the specific damage to the claim for damages. In the law can set up a fund to compensate without specific subject, can initiate. Common types are not as or restitution as litigation request. 

    The program analysis.Some scholars think, public interest litigation procedure has its own characteristics, should make different provisions. For example, for mediation, reconciliation, no inversion of burden of proof, the cost of litigation relief, should make the corresponding provisions. While some scholars believe that, except for public interest litigation, plaintiff qualification and litigation request type, no special provisions. Even if there are specific provisions, but also by the specific laws in the corresponding areas of litigation to clarify. For example, environmental pollution lawsuit proof responsibility inversion problem can be specified in the environmental protection law. 

    The effective implementation of public interest litigation and judicial system reform.The implementation of public interest litigation related to the reform of the judicial system. The main judicial administration and local, to break local protectionism. If you can't promote the reform of the judicial system, scholars generally believe that the effectiveness of public interest litigation is not optimistic. 

Appropriate legal system

    After modifying the162A new small claims system. The characteristics of small claims system for a certain amount of civil disputes of first instance being the final. Implementation issues concerning the small claims litigation system, scholars mainly focus on the following points are discussed:

    The scope of small claims. The focus of the dispute is limited to a certain amount, in addition to outside(The Civil Procedure Law Article162The provisions of the amount of standard is the provinces, autonomous regions, municipalities directly under the central government last year's annual average wage of employees below thirty percent)You also need to type on the limit case. Some scholars think, the fact finding more complex cases, for example the need to identify cases, need to examine cases can not be applied on the small claims procedure. 

    The effectiveness of small claims. From the academic and practical circles most people think, the revised civil procedure law since the implementation, the application rate of small claims procedure is very low, many grassroots courts have little applied procedure, and a far cry from the people for small claims expectations. Scholars think that led to this situation, the main reasons: 

    1Because the small sum litigation execute a court, judges worry because no instance, will cause the application for retrial rate. Application for retrial rate evaluation to the court and judges of the direct effect. 

    2Because of small claims disputes subject belongs to the low income groups, if there is no appeal procedure, may make the quantity increases, will also lead to negative evaluation of court. In addition, some scholars believe that the program design of small claims is too simple, and some contradictions exist in the value orientation:For example, if the pursuit of the efficiency of litigation, but also recognized the retrial, in fact will make the orientation of lawsuit efficiency value is negative. 

To explore the withdraw of the third person

    The withdraw of the third person is to modify a system after the Civil Procedure Law added, for the current academic and practical circles the most concern, also the most controversial. In this system, the focus of controversy mainly concentrated in the following areas: 

    The withdraw of the third person and res Judicata. From the establishment of the withdraw of the third person to see, the main is to prevent false litigation between others to violate the legitimate rights and interests of the third person. Some scholars believe that, I set up the withdraw of the third person system is mainly based on no res judicata system, thus the establishment of third revocation system must be rooted in Chinese no res judicata system or res judicata system not perfect such a specific background. Some scholars think that, even if the law does not stipulate the res judicata principle of relativity, res judicata effect and res judicata principle of relativity also exist. Only the mass awareness and social publicity is not just, it is a popularization of legal knowledge and improve the judicial level. There are scholars believe that, only in the res judicata effect of expansion of the circumstances, it is necessary to apply. Therefore the withdraw of the third person should be defined in the relevant law, there is no need to explicitly in the civil procedure law. 

    The scope of plaintiff withdraw of the third person. From the provisions of the revised civil procedure law, the plaintiff withdraw of the third person limited to the56The provisions of the third party with independent claim and the third party without independent claim. Some scholars believe that, there are third people in fact is without the application of the system of independent claim. Because of its right of claim is independent, so it can achieve their rights through litigation. And the third party without independent claim only the defendant third party(Bear civil liability on third party in litigation)It may just be the plaintiff. But in fact, in judicial practice, the withdraw of the third person is not necessarily limited to the provisions of the third party with independent right of claims and the third party without independent claim, as long as the legitimate rights and interests of the third party infringement, can apply the system. 

    Coordinated action and review the withdraw of the third person relief. The scholar thinks, the withdraw of the third person and the application for retrial is aimed at the effective judgment and mediation agreement is, in nature, belong to the special relief procedure, therefore two kinds of remedies have cross, also differences. The difference is that, the withdraw of the third person is still an ordinary procedure, may to the first, second instance. But with the retrial remedy procedure is different, the withdraw of the third person in some cases only change the effective judgment, but not completely negative judgment. For the two kind of relief procedure integration and coordination problems, some scholars think, the parties can only choose one kind of procedure, can not also choose. The biggest controversy is whether has applicable. Some scholars think, can only apply to one. 

Yet the civil evidence system

    The revised law of evidence system, the original has been adjusted. These adjustments to absorb the "Supreme People's court" several regulations about the civil action evidence part, also according to the practice of civil procedure has been adjusted. Mainly involves the following several aspects of the problem: 

    About the relations between the new electronic data with audio and video materials. In the past, the concept of audio-visual material covers the electronic data. The revised law will electronic data as an independent type of evidence. This involves the need to re define the audio-visual problem. Some scholars think, audio-visual materials and electronic data divided according to the presence of cross in logic, in some cases will appear ambiguity problem. 

    Legal status of expert auxiliary. The problem of the debate focused on the nature, the expert assistant range. In the respect of nature is the main difference between it and the witness. Is generally believed that the expert assistant is only used to identification of human inquiry. Neither the agent, also not a witness. 

    On the proof limitation system.After modifying the65The emphasis on the parties shall promptly provide evidence, but also stipulates the if not promptly provide evidence, shall take corresponding legal countermeasures. For this provision, the scholars disputed. The scholar thinks, the time limit for adducing evidence is too abstract, lost its practical significance. Should specific procedures and evidence exchange system of pretrial matching design. Scholars especially for more than the time limit for adducing evidence, but the reason is still the system design should be adopted in doubt. How to apply the punitive measures, there is also a problem of quantifying. Scholars think, is difficult to implement specific quantification, which will affect the effectiveness of the proof limitation system. 

    On the witness system. Witness the controversy focuses on the punishment of perjury. Scholars think that no rules on the witness perjured penalty evidence system, is still a defect. 

    On the cost burden. Some scholars think, witness expenses including transportation, accommodation, meals, the standard should be unified. Allowance subsidies shall be included in the witness, so that it can be consistent with the witnesses' obligation. 

Study on Countermeasures of false litigation

    Scholars think, false litigation has become a common litigation in China, because China's lawsuit system as well as the entity law also has the flaw. About the false litigation response, not only from the angle of procedure law, also need from the substantive law, for example, from the perspective of tort law to solve. Not just rely on the withdraw of the third person to solve, it needs to be perfected in the evidence system, strengthen the evidence system is mainly reflected in the severely punish acts of perjury. 

    False action all cannot do without the acts of perjury, could not exist without perjury as false litigation. For the specific response of acts of perjury, one is to implement the principle of honesty and credit, standardize the statements of the parties;Two is the punishment to the acts of perjury;Three is the forgery act resolutely fight. In the criminal law, although there are forged or altered, the sale of organs of state documents, certificates, seals, forged, altered documents but to act in the civil procedure without any sanctions, is only and shall not be adopted. Scholars have suggested, should be on the civil litigation forgery behavior also be severe penalties, including criminal sanctions. To prevent the parties from the acts of perjury, witness evidence system, can effectively curb the false action, fundamentally eliminate the false litigation. False action reduces, the withdraw of the third person's case is naturally a corresponding reduction.  (The author was professor of Tsinghua University law school, China civil litigation law research, doctoral student of Tsinghua University Law School)