The amendment of the criminal procedure law has much relation to the criminal defense?

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  • / Author: Aaron Lewis

Liu Guiming ":

   No doubt, the amendment of the criminal procedure law is the biggest thing when dismount law. However, attention is not only from the legal profession, more attention is actually from the legal bounds. Because in a certain sense, the criminal procedure law can be considered as "the second constitution".

   Since it is a constitutional law, so of course they should be all aspects of attention and care. However, the lawyer for you, most concern or defend the rights of the normal implementation. Since the Li Zhuang case, because Beihai law case, because the repeated lawyer perjury, the biggest concern so from the lawyer must be a good change of the amendment of the criminal procedure law in relation to defend the rights of.

 

 

The criminal procedural law two Amendment: the prohibition of forced close relatives may refuse to testify

          Source:Xinhuanet.comAuthor: Chen Xiao Feng Yingying
              In 2011 08 months 21 days

 

   15 years later, the criminal procedure law is celebrating its second overhaul, the NPC Standing Committee will review recent amendment to the Criminal Procedure Law (draft). Participate in the revision of the criminal procedural law of criminal procedure law, demonstrates the famous expert Professor Chen Guangzhong disclosed to reporters, modify the criminal law framework and content has been determined, relates to the amended provisions of criminal law provisions will be more than 1/4, have a greater breakthrough in many aspects.

　　

One bright spot: the privilege against self incrimination

Prohibit torture to extract confessions in Criminal Procedure Law in fact has expressly. Followed by a series of the most high, the supreme judicial interpretation of law, further defined by torture to extract confessions and other illegal means to obtain testimony and statement cannot be used as the basis for decision.

Last year, two senior department jointly issued the "provisions" evidence "and" provisions of the death penalty cases of illegal evidence exclusion is on this issue in detail. But torture to extract confessions problem has not been solved effectively.

"Not to torture to extract confessions in the provisions of this law, to the new regulations increased the privilege against self incrimination." Chen Guangzhong said.

In the opinion of some scholars, shall not be forced to testify against himself and should be "right of silence" is directly related to. But the current criminal procedure law in ninety-third "suspects of investigators question, shall be truthfully answer" whether to retain, Chen Guangzhong said, at present still controversial, I am afraid it is difficult to promote change.

In response, Chen Guangzhong said: "the law scholars advocated increasing the exclusionary rules of illegal evidence, the legislature did not accept, think ahead. Now practice departments themselves are defined, the exclusion of illegal evidence and the privilege against self incrimination list, is of considerable progress."

Illegal evidence exclusion the from all walks of life have reached a consensus, but the physical evidence of illegal acquisition is excluded, still there are a lot of controversy.

　　

Highlight two: close relatives may refuse to testify

To testify the big breakthrough, is in addition to the provisions of serious harm to national security, social and public interests outside the case, close relatives the right to refuse to testify in the general case. But close relatives only parents, children and spouses.

If this goes through, has long been advocating China's "loyalty" judicial policy will be undermined, which coincide with the idea of law in some countries of the world.

Previously had such a case: brother to raise brother University expenses and stealing roommate 40000 yuan. The police mobilization, brother to brother cheat to his lodgings, ambush where police arrested. Brother's loyalty to are condemned by society.

Department of criminal law Chinese Academy of Social Sciences director Liu Renwen at the "legislative idea of loyalty is wrong", does not meet the Chinese "concealment" of traditional.

"In some cases near relatives may refuse to testify, this is to define a 'people-oriented' reflects the spirit of." Chen Guangzhong said.

　　

Highlight three: to ensure the realization of the right to defense

In 1996, lawyers involved in advance to the procedure of investigation whether the law has experienced intense debate, although the final criminal law provisions were made, but the lawyer's identity is unknown, this phase of the attorney general as "to provide legal help people" rather than "defender".

Zhang Qingsong lawyer told reporters, in 2008 the new lawyer law enacted, including meeting, marking, is not stipulated explicitly rights monitoring in practice is still difficult to be implemented, many practitioners to lawyers rank below the criminal procedure law lawyer refused to exercise these rights.

"This revision will make the lawyer law the basic right to be implemented." Chen Guangzhong revealed. The law will clear the lawyers in the investigation stage as a defender, clearly met without monitoring includes both free technology to monitor also includes investigators are not present, except in exceptional circumstances lawyers can "three certificates" meeting with the parties.

In addition, the scope of legal aid will be further expanded, the trial stage the range can be punished by death, minors, blind deaf cases, the future may increase may be sentenced to life imprisonment in cases, and advance into the pretrial procedure.

　　

Highlight four: can be taken to monitor means

In China, eavesdropping, wiretapping secret technical reconnaissance means use right belongs to the national security and public security departments, but in judicial practice, due to the particularity of duty crime and hard to detect, procuratorate has been the use of secret surveillance technology means. However, due to the lack of existing laws and regulations support, the use of this method seems not so work in just ways, there is a legal dispute.

But the people's Procuratorate through Jizhen means secret information, and not directly to the court as evidence, which needs the interrogation or other ways into public use of evidence.

The lack of Jizhen means more serious consequences, scholars think is the main cause of torture to extract confessions.

The dilemma is resolved in the amendments to the criminal procedure law of this.

Chen Guangzhong disclosed to reporters, the revised criminal procedure law may allow anti-corruption departments Jizhen means, public security, national security can also use other secret surveillance technology means, obtained by means of technical investigation data can be used as evidence directly, without transition.

 

 

 

The amendment of criminal procedural law scholars and lawyers in solving "three"
         
              Published: 2011-08-05 source:Legal DailyAuthors: Chen Guangzhong

　　

Modify the attention of Criminal Procedure Law

China's criminal procedure law is the basic law on criminal activities. The four session of eight National People's Congress in 1996 made amendments to the criminal procedure law enacted in 1979, further improve our system of criminal procedure. Practical experience in criminal lawsuit activity summary since 1996, the implementation of the reform of central judicial system the spirit and requirements, make appropriate amendments to the criminal procedure law, to carry out the criminal policy of combining punishment with leniency, and further improve the criminal justice system, further improve the Chinese socialism legal system, speed up the building of a socialist country under the rule of law, is of great significance.

In recent years, the National People's Congress, the relevant departments, social aspects according to the practical situation, have put forward some amendments to the criminal procedure law opinions and suggestions, the legislature has done a lot of research work, making full preparation for the amendment of the criminal procedure law. Modification and will be put on the legislative agenda of the occasion in the criminal procedure law, we invited a number of well-known experts and scholars, put forward their own point of view on the problem of perfect lawsuit function organs, judicial expertise, evidence system, improving the defense system, improve the legal aid system, improve the prison execution of punishment and the community correction system, from the period began publication, please pay attention to the readers.

At present, the Standing Committee of the National People's Congress is to proceed with the revision of the criminal procedure law work. Several problems are only the writer pays attention slightly Chen oneself see, in order to build democracy and the rule of law will help to promote the criminal litigation.

　　The problem of guarantee of human rights into the law

The protection of human rights is the essence of democracy, the rule of law. Since China's reform and opening up, the national protection of human rights is strengthened day by day, the human rights cause has made considerable progress. The 2004 constitutional amendment thirty-third add a new paragraph: "the state respects and safeguards human rights." This provides the constitutional basis for the protection of human rights in the criminal justice in china.

Since China's criminal procedure law enacted in 1979 1996 from, although after modification, but the first legislative purpose retains "punishing crimes, protection of traditional expression of the people". This expression is only emphasized by crime, protect people's rights against the violation of crime, not including the protection of criminal responsibility of criminal suspects, defendants and criminal legal rights. In fact, "the protection of human rights in criminal procedure" focuses on the defendant's human rights, because they are the action in the weak.

The formulation of the Central Department of political science and law and judicial interpretations of China and the relevant documents have repeatedly expressed "guiding principle of punishing criminals and safeguarding human rights", such as central political authority in March 9, 2007 jointly issued the "on the further handle cases strictly in accordance with laws to ensure the quality of handling death penalty cases opinion" clear will "stick to the punishment of crime and protection of human rights as a combination of" important handling principles.

In June 13, 2010 jointly issued the "about the death penalty cases reviewed to determine the rules of evidence problems" is also clear that, must "to punish the crime, protect human rights, safeguard judicial justice". Therefore, the re amendment of the criminal procedure law, it shall be first "to punish crime, provisions to protect people" is amended as "punishing crimes, protecting human rights stipulated in the constitution", and consistent, and adapt to the trend of democracy and the rule of law progress.

　　Counsel question

Right to defense is the core right of prosecution by the people. The defendant's defense right is a measure of the degree of a country to measure the degree of protection of human rights in criminal proceedings. American famous lawyer Dershowitz said: "whether a country have real freedom, it is one of the touchstone for sinners, for the world contempt and defensive attitude."

With the increasing specialization, technology of modern criminal procedure, and the lack of legal knowledge of the accused is often the prosecution authorities to take coercive measures, is the effective exercise of right to defense and prosecution will depend on the law. The defense lawyer has been occupying an important position of rights in the protection means. Based on this, the developed countries in the world have the right to defense counsel is extended from the trial stage to the stage of investigation, and give counsel adequate procedural rights.

The criminal procedure law of China revised in 1996 has stipulated the lawyers involved in the investigation procedure and have the right to enjoy certain rights, but there are still many problems in legislation and judicial practice, mainly in the following four aspects: one is not at the stage of investigation of status and identity in the clear law; two is to meet, scoring difficult, difficult issues such as the defense lawyer investigation of evidence; the three is the lawyer's personal safety can not be guaranteed, a lawyer for the 306th article of the criminal law was accused of defender prejudice to testify or perjury; the four is the low rate of criminal defense. Because of the above problems remain unresolved for a long time, criminal defense lawyer has been declining, now less than 25%.

The author thinks, the re amendment to the criminal procedure law should be on the defense system of our country reform and perfect the following aspects:

The first stage of investigation, shall specify the counsel status. This is the important status and lawyers in the investigation stage of the proceedings as the rights of criminal suspects and the maintenance of specialized characteristics of the people participating in the investigation, but also in line with international practice. The United Nations "basic principles on the role of lawyers" first stipulates: "everyone has the right to request the assistance of a lawyer of their choice to protect and determine its rights, and in each stage of criminal procedure in its defense."

Second, effectively solve the defense lawyer in the "three difficulties". The new lawyer law revised in 2007 has lawyers "Trilemma" provides some measures to solve the problem, such as prescribed by law as long as "three certificates" have the right to meet the criminal suspect, and not to be listening, expanded the scope of lawyers, cancel the lawyer investigation of evidence will need to be approved by the relevant units, individual consent or requires procuratorial organ, the court permission, and then modify the criminal law shall be the law of absorption, the effect has more legitimacy, in order to ensure effective enforcement in judicial practice. Of course, cases involving state secrets, terrorist crimes and major cases of bribery shall, after approval of the investigation organ to meet.

Third, revised the criminal law article thirty-eighth. Current law and lawyers as the crime of perjury and obstruction of law has two, one is the criminal law thirty-eighth, two is the article 306th of the criminal law. In contrast, the former than the latter more harsh and unreasonable, it is easy to indiscriminately will counsel in the prosecution of position, must be changed.

Specifically, the lawyer constitute perjury or obstruction of witnessing the "facts", must be against the judgment that there are objective facts conclusive evidence, but not the prosecutors accused facts. Should be subjective deliberately, namely the facts of the crime accused lawyers that objectively, but deliberately threatening, luring witnesses change testimony or perjury. And enter the court proceedings, whether the witness or read the testimony of witnesses, both sides are not to have any contact with the witnesses, neither the questioning of witnesses, couldn't put any pressure on witnesses, not to take coercive measures to. The lawyer shall be the superior Procuratorate approved the arrest.

Fourth, to expand the scope of legal aid. The current law on the scope of legal aid is limited to the trial stage of the blind, deaf, dumb, minors and the defendant may be sentenced to death. The author thinks, should be legal aid to the stage of review and prosecution, to expand the scope of could be sentenced to life imprisonment or expanded to be sentenced to 10 years in prison for the defendant, the limiting behavior and mental retardation, mental patients and other abilities, for the economic difficulties of legal aid conditions to relax. Countries should increase financial support to ensure that the expansion of the scope of legal aid.

　　The problem of community correction

An important measure of community correction as a criminal in the community of social transformation, to implement the criminal policy of combining punishment with leniency, promote social contradiction effectively resolve, the lower the crime rate and alleviate the pressure of criminals in prison, all has the vital significance.

Our country began to actively promote the pilot work of community correction from 2003, 2005 to expand community correction pilot provinces in the country, in 2009 to further the implementation of community correction work, accumulated rich experience, has achieved good effect.

By February 25, 2011 eleventh session of the National People's Congress Standing Committee of the nineteenth meeting of the criminal law amendment (eight) "clear provisions shall be subject to community correction". This marks the first time the community correction system in our country, the substantive law is established, will help to improve the level of China's criminal law.

However, from the program execution point of view, criminal law amendment (eight) on the relevant provisions of community correction is still flawed, needs to be revised again in the criminal procedure law. To make up and perfect.

First, the scope of application of community correction is narrow. According to the criminal law amendment (eight) the provisions, article thirteenth and article seventeenth second, the application of community correction is limited to the scope of regulation, was sentenced to probation and parole criminals are three kinds of people. This and "the United Nations Standard Minimum Rules for non custodial measures" under article 2.7 "non custodial measures should be adopted to non criminal and non criminal judicial criterion is part of the United Nations gap" direction of the larger. Application scope effectively solve this problem must expand community correction.

Taking into account of China's vast territory, the development status of unbalanced east-west, and community correction system was written into law, should maintain a cautious attitude, the author thinks that the revision of the criminal procedure law can correct eight years of trial practice and criminal law amendment in the community (eight) on the basis of the provisions, will be the temporary execution outside prison (including a serious need for medical treatment, pregnant or breast-feeding her baby, the life cannot provide for oneself, for the temporary execution outside prison would not endanger the community) and deprived of political rights and serving in the community within the scope of the criminals into the community correction.

Secondly, the executive body of the community correction is not clear. The criminal law amendment (eight) removed the regulations of the public security organs as the control execution, parole and probation inspection supervision main body, but not made of executive body of community correction makes clear a regulation, the executive body of the community correction in the "blank" state.

According to this understanding, the work of community correction by the judicial administrative department in charge of the unified community correctional institutions implementation is most countries choose. As in the American, federal community correction by the Federal Ministry of justice of the correction Bureau director. In Japan, the community correction is responsible by the rehabitation Protection Bureau under the jurisdiction of justice, and the mechanism. Judging from the practice in China, the community correction pilot from the pilot to full implementation, but also by the judicial administrative organs lead organization, and is responsible for the implementation of the.

Pilot experience shows that, by the judicial administration department is responsible for the implementation of community correction mode is feasible. Therefore, the author thinks, revision of the criminal procedure law should be clearly defined by the judicial administrative organ shall be responsible for the implementation of community correction. Needs to be pointed out is, the criminals under community correction is the biggest characteristic of community correction system, therefore, the implementation of community correction, should emphasize the social participation, provision of community inmates residence of grass-roots organizations, units and their guardians, friends and other social forces to help supervision, the responsibility of education. (Chen Guangzhong China University of Political Science and Law Professor)