The afternoon of March 31, 2012, the criminal procedure law scholar Prof. Dr. Chen Guangzhong disciple, Beijing Wei Heng law firm Tan Miao lawyers came to Beijing Jing Yue law firm multi-function hall, the "amendment to the criminal procedure law and the practice of lawyer", as the theme for all lawyers the salon, speaker Tan Miao lawyers of the old and new laws, the contrastive analysis of punishment procedure law, criminal procedure law revised the background part of the microscopic case analysis form sections, discusses the regularity and significance of the amendment of the criminal procedure law, has an important guiding significance for the specific work in a certain period of time in the lawyer's criminal defense services.

The specific content:

Host Chen Bo lawyers: I am very honored to go to the criminal law scholar Professor Chen Guangzhong disciple, Beijing Wei Heng Law Firm senior criminal defense lawyer Tan Miao came to the scene the salon, for everyone to "modify" criminal procedural law and the practice of lawyer's lecture, we welcome!

Mr. Tan Miao: Thank you, the first time I attend the salon became speaker, is honored very much. I have been in Hainan4Years of police experience, and then to Beijing Haidian District people's Procuratorate do prosecutors. During the study, I master, PhD is the criminal procedure law. Recently, every week in learning the amendment of the Criminal Procedure Act, for this amendment, have different views, different me, will have their own unique experience to introduce. I don't like talk too grand words, such as the change in the meaning of human rights safeguard aspect and so on, I like small but complete research, starting from the microscopic aspect. Scholars in the study of human rights, the rule of law significance. I, as a practicing lawyer, is technically, up from practice about.

Tan: my teacher Chen Guangzhong, Chen teacher to teach us, always with a law. So we learn to interpret law ability strong. I first talk about how to interpret the law today. The amendment of the Criminal Procedure Act, a certain part of the recent judicial interpretation into the criminal law provisions.

Tan: this change, some people think that progress, some people think back, in fact, the amendment of the criminal procedure law is difficult. When I made the police (96Years), to amend the criminal procedure law, many police don't care. This revision111A, increase86Article. The amendment of the criminal procedure law is very sensitive, he is the little constitution, like a ship's mast, any fibrillation, top obviously.

Tan: modify the criminal law is the need to deepen the reform of judicial system and working mechanism.

First, adhere to the basic national conditions of our country, in any case, under the current conditions, amendment of the criminal procedure act can not be too radical, such as a comprehensive introduction of the silence right system, so personally think that this amendment still has certain progressive significance.

Two, the criminal procedure law of language change

1The old law (1996Years) article38Article,Defense lawyers and other defenders, not help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to change their testimony or conduct other acts to disturb the proceedings of the judicial organs.

New law.2012Years) article42Article,Counsel or any other person,Must not.

This revision, make the body more clear, no one can have more behavior, rather than the old method, give a person the lawyer impression.

 

2The old law36A, defense lawyers of the people's Procuratorate date,Consult, extract, copy the file documents, technical identification of materials,To meet with the criminal suspect in custody and communication. Other defenders, with permission of the people's Procuratorate, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the criminal suspect in custody.

The new law article38Article,......Consult, extract, copy the materials......

This change reflects the expansion of the right to counsel

 

3The old law, evidence42Article,All facts that prove the true circumstances of a case is evidence. There are the following seven kinds of evidence:Evidence includes:
(a) evidence;
(two) documentary evidence;
(three) the testimony of a witness;
(four) statement of the victim;
(five) the suspect, the defendant confession and exculpation;
(six) the expert opinion;
(seven) the inquest, inspection, identification, Investigative Experiment record;
(eight) the audio-visual, electronic data.
Evidence must be verified before it can be taken as a basis.. This is the theory of truth, the evidence is true.

The new law article48Article,Can be used to prove the material facts of the case,All the evidence.The carrier said, evidence is no longer the case, but the materials, materials constitute evidence, some of the rules of evidence to identify. Fifth identification conclusion to expert opinion, the legitimacy of the evidence, no longer limited to the form of evidence, the cancellation of the original evidence includes only7Forms. In addition, evidence is sufficient and reliable representation into evidence, fully. Originally well, evidence must first have to see is true, can be used as evidence, then the evidence is sufficient, to form chain to prove the existence of crimes.

 

4The old law105Article,In order to determine the victim, criminal suspects, some characteristics of the injury or physiological condition, can check on the human body.

The new law article130Article,...... You can check on the human body, can extract fingerprint information, collection of blood, urine and other biological samples. I personally think that this is actually a kind of authorization, the consciousness of human rights progress, because with the awakening of the awareness of human rights, will find that to extract information, whether expressly authorized, sample behavior if not, we will not be able to perform this search results.

 

5The old law217A, for was sentenced to probation,Delivered by the public security organ shall examine the unit or the basic level organization.For a parolee, during the probation period,The public security organ shall supervise.

The new law article258A, the...... The probation of offenders,In accordance with the law of community correction, community correction agencies responsible for the implementation of.

This change is reflected the socialization of penalty, the social management innovation.

 

6The old law74A, the suspect, the accused in custody cases, not specified in this LawInvestigative detention, prosecution, trial, appeal deadline Banjie, require continued investigation, trial,The suspect, the defendant can bail or residential surveillance.

The new law article96Article,...... Completed, the suspect, the defendant shall release the need to verify,; hearing, can...... Bail pending trial or for residential surveillance......

In order to reduce the detention, but also on the issue of human rights progress.

 

7The old law97The investigators asked the witness,Can be carried out at his unit's or residence,But they must produce a people's Procuratorate or public security organ documents.When necessary, they may also notify the witness to the people's Procuratorate or public security organ to provide testimony.Witnesses shall be questioned individually.

The new law article122Article,...... Asked the witness,Can be carried out in the field, also can be the unit, residence or the place......

Understanding this is to safeguard the authenticity of witness, to witness a good environment and atmosphere, so it is more true testimony at least.Lawyers can witness location for the breakthrough in practice, as long as they can provide sufficient reason, of course, can doubt the authenticity of witness testimony.

 

8The old law150The people's court case, the prosecution review, for the indictment with clear criminal factsAnd with the list of evidence, witness list and photocopies or photographs of major evidenceThe trial, it shall decide.

The new law article181Article,...... In all cases the files the case......

Personal understanding in order to facilitate the judicial efficiency, but also the rights of lawyers and prosecutors have other programs such as exchange, pretrial judge and exchange.

 

Background amendment three, the Criminal Procedure Law

Impact of the international human rights convention...... Such as in the ConventionEvery stage has the right to defence...... The arrest, detention or imprisonment, opportunity, time...... Don't be monitored and attorney, lawyers receive visitors......

Effect of lawyer law revision......2005Years of the National People's Congress Standing Committee5,6Inspection implementation working group of the lawyers law, found a lot of problems.

 

The defense system is an important system of criminal procedure in the criminal suspects accused person to exercise his right according to law. This amendment:

1, may entrust a defender clear criminal suspects in the investigation stage

2Lawyers, improvement program

3, to expand the scope of legal aid

4To strengthen the information communication, defense lawyers and the public security and judicial organs......

Such as33Article4Paragraph, the defenders entrusted...... Inform the authorities handling the case...... ;160A, conclusion of investigation, to transfer the case to inform the criminal suspects and their counsel...... ;196Article,...... Judgment shall be delivered simultaneously to counsel...... ;240Article...... Death penalty cases, it shall interrogate the defendant, the defense lawyer asked, shall listen to the opinions of counsel

 

 I have read

The old96Article...... After the first interrogation, or to take coercive measures to date, you can hire a lawyer......

New law33Article...... Take the first interrogation or...... Have the right to appoint a defender...... New law36Article,...... To put forward opinions...... The investigation stage can also put forward views. This is the embodiment of the right of defense to expand.

 

The existing judicial interpretation to legal part

Method (release2006 )8, (No.2006)12, (No.2007) 4Method (,2008)14No.;

 

The criminal procedure law breaking is generally made of death penalty cases and cases of minors, especially the criminal procedure law of capital case procedure breakthrough all modifications are such, because these two places are more likely to attract public attention and question.

 

Illegal evidence exclusion of judicial interpretation to modify part of the law 

Method (2010 )20"No....... A death penalty case examination and judgment of evidence "provisions on some issues

 

A simple procedure to modify the part of judicial interpretation of the law

"Two high and one on the use of ordinary procedure several opinions defendant confession cases (for Trial Implementation)"

(2003)6No. "Several opinions about application of simple procedure in attack speed case"

 

Summary procedure

New law208The basic people's court, the jurisdiction of the case, in accordance with the following conditions, you can use the simple procedure trial:

One, the case facts are clear, the evidence sufficient

Two, the accused confess their crimes, the facts of the crime accused no objection;

Three, the defendant has no objection to the use of summary procedure.

The people's Procuratorate, the people's court apply summary procedure can be recommended.

First, the facts are clear, the evidence is sufficient, the key to see whether the procuratorate and the court that they meet the conditions, is the main body of the procuratorate and the court.

Second, the defendant has the right to choose the procedure, the old method can avoid the suspect denied crime summary procedure is applied, but the loss of leniency to confessors, truthfully metasomatism crimes substantive rights.

Third, give the defendant the right selection procedures at the same time, but also can get the substantive rights, without denying the crime, as long as the consent procedure is still no problem.

 New law171A, insufficient evidence, does not meet the conditions of prosecution,ShouldDecide not to initiate a prosecution......

This modification in conformity with the law, but the premise is after two supplementary investigation......

 176A, for the victims, decided not to prosecute, the people's Procuratorate shall make a decision not to initiate a prosecution in writing to the victim......

In case as the object or to the case as a unit. Because I do prosecutors, encountered this problem, at the same time stole a suspect3A similar thing, only one of the stolen items a victim can be determined and the suspects the conviction and sentencing. The other two victims, the decision not to initiate a prosecution whether to serve, not served in general practice, so the victim's right of appeal can not be guaranteed, but also the loss of a reconsideration opportunity.

 72A, residential surveillance, according to international convention, pretrial detention is the exception, bail is the principle, but the status quo in Chinese contrary. The intent is to reduce the detention. Consistent with the conditions of arrest, but with the following conditions...... To residential surveillance:1Affected with a serious disease......2, pregnancy......3Department of, the life cannot provide for oneself......4Because of the need for the special circumstances of the case, or for handling the cases, take measures are more suitable for residential surveillance.

Personally think that the fourth paragraph is to give the suspect a program of choice, because in some cases, the parties believe that arrest may have to make the best of their own, whether a certain sense can choose compulsory measures.

 79A, arrested, and there is evidence that, may be sentenced to...... Should be arrested:

1The implementation of the new crime, may;

2, endanger State security......

3, may destroy or falsify evidence......

4The victim, may...... Take revenge.

5Dutch act, or attempt to escape......

The article with the detention conditions, I make a procedural rule, China arrest is currently exist penalty, arrest necessity of logic, the object to take personal protective measures is not ultimately found guilty, then contrary to the principle of presumption of innocence. The arrest and detention of similar conditions, is because of the fact of detention, whether there is a need for compulsory measures. Personally think that the escape of criminal responsibility should be held, a felony to custody, misdemeanor but escape should be in custody. The arrest is not because crime was in custody, because it is necessary to arrest custody.

 223One, the people's Court of second instance of the following cases, shall form a collegial panel, trial.

Problems, only solution way choice, appeal to the trial court, or not, it is not reasonable, not in conformity with the law.223Will conform to the rules and modify.

1, the defendant, private prosecutor...... Objection, may affect the appeal the conviction and sentencing; (procedural rules)

2The appeal, the defendant was sentenced to death (Criminal Policy)

3, case protested by a people's procuratorate;

4, other......

Don't hold a hearing, it shall interrogate the defendant, shall listen to the opinions of other parties, defenders...... Opinion.

 

The procedure for review of death sentence

235One, the death penalty approval by the Supreme People's court.

239One, the Supreme People's court in accordance with the death penalty cases, approval or disapproval shall make a decision on disapproval, the death penalty, the Supreme People's court may remand or reheard. This is modified, more logically correct.

 

The parties reconciliation in cases of public prosecution procedure

Criminal reconciliation, do not enter the judicial mediation, not.

277A, sincere repentance, compensation, apology, this is the new provisions, to a certain extent prevent and give the public a money to buy the punishment view

1, by civil disputes, suspected of criminal law4,5Chapter stipulated crime, may......3Years of the following......

2In addition to outside, malfeasance crime...... Probably7Years of the following...... The case of negligent crime......

In this way, can the reconciliation in cases of public prosecution scope is big

278A review of the public security organs, voluntary reconciliation, legitimacy, presided over the production settlement agreement

 The three organs of Public Security Division with the facts, have certain distinction, the court only to procuratorate fact reduce, not increase. But for the legal level, the three organs are can increase and decrease.

 

   As a lawyer, I think we must go deep into the micro level, in order to have a more solid logicalstarting point.

   Thank you!

 

Dr. Tan Miao law