The criminal procedure law case analysis over the years

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The criminal procedure law case analysis over the years

 

The core content:Criminal Procedure LawOver the years the judicial examination case analysis mainly what? The following legal express, judicial examination program for your detailed introduction related content.

2009.

Three, (C. 21)

Case: Yang unit was dismissed, unhappy with the unit leadership, vengeful. One day, yang to Dong Mou, a fan carrying daggers Chuang to director Jia Jia office, will be killed on the spot. Intermediate people's Court of first instance to intentional homicide sentenced to death penalty executed immediately, Yang, sentenced to Dong Mou of two year stay of execution, sentenced to a fan for a period of fifteen years.

The problem:

1 if, after the first instance verdict, the defendant Yang, Dong, a fan did not appeal, the procuratorial organs also did not appeal, the defendant Yang, Dong, a fan of the first trial, the intermediate court and the high court respectively, it should be how to deal with?

2 if, after the first instance verdict, the defendant Yang, Dong Moujun did not appeal, the procuratorial organs also did not protest, a fan appeal, the high court shall be what procedures for Yang, Dongmou verdict? What is the reason?

3 if, after the first instance verdict, the defendant Yang, Dong, a fan did not appeal, the procuratorial organs also did not protest, but Jia a wife on incidental civil judgment may appeal, the high court shall be what procedures for Yang, Dongmou verdict? What is the reason?

4 the defendant Yang after the Supreme Court approved the death penalty execution and issued a command, the lower court found that Yang could separate guilty of assault, Yang should be how to deal with?

Reference answer:

1 (1) of Yang, the intermediate court of appeal, in protest after the expiration of the period of three days to a higher court for review. The high court agree with the death sentence, it shall make a decision in accordance with the law, be submitted to the Supreme Court for approval; does not agree with the death sentence, shall be questioned or remand the case for retrial.

(2) the Dongmou, intermediate court shall be submitted to the High Court on appeal, appeal after the expiration of the approval. The high court agree with the death sentence suspended for two years, shall be adjudged to be approved; that the original facts unclear, insufficient evidence, shall order the original intermediate court remanded retrial; think sentencing overweight shall be commuted sentence.

(3) of a fan, the intermediate court to be executed in the appeal, appeal expires.

2 high court should according to the procedure of second instance of Yang, Dongmou decision review. The reason is: Yang and Dong, a fan of joint crime, the court of first instance of the case together with the decision, according to the "law of criminal procedure", the joint crime is only part of the defendants appeal, the court of second instance shall examine the case, together.

3 high court according to the procedure for review of death sentence on Yang, Dongmou judgment. The reason is: in criminal cases, criminal and civil part can be independent appeal, according to the interpretation by the Supreme Court, if only the civil part of the appeal, the effect does not affect the validity of the high court of criminal procedure of second instance, do not apply to Yang, Dong a death sentence, but according to the death penalty review program processing.

4 lower courts should stop the execution, and immediately report to the Supreme Court, the Supreme Court ruled.

The main reference [Law] "Criminal Procedure Law" article 186th, article 208th, article 211st, "the Supreme People's Court on the implementation of the criminal procedure law '' interpretation of several issues" 262nd, 275th first, 278th, 287th, "provisions of the Supreme People's Court on the application to stop the issues related to the implementation of the death penalty procedure"

2008.

Three, (C. 20)

Case: Zhang and Wang Mou for the hassle of wrestling, Zhang Wang seriously wounded. Prosecutors to prosecute the crime of intentional injury to the court, the victim Wang also filed a civil lawsuit.

The problem:

1 if the verdicts, Zhang on the criminal appeal, Wang Mou of the civil part of appeal, the court of second instance trial found in the criminal part and incidental civil part of the facts are not wrong, but the applicable law is wrong, how to deal with?

2 if the verdicts, procuratorate filed a protest to the criminal case, the case of incidental civil part no appeal. The second instance court in the case of civil part found in error, the court of second instance should be how to deal with the civil part?

3 if the verdicts, the criminal part not only did not appeal or protest, Wang on the case of incidental civil part in the criminal appeal, part of a legally effective cases, the court of second instance in the trial found that the criminal part is wrong, the two instance court should be how to deal with?

4 if the verdicts, Wang Mou of incidental civil part appeal increased independent litigation request, Zhang in the second instance of civil part of the counterclaim, the court of second instance should be how to deal with?

5 if in the procedure of first instance, the court review Wang mentioned collateral civil proceedings, that do not meet the conditions to file an incidental civil action, the court should be how to deal with?

6 if the court accepted the incidental civil action, according to China's "criminal law" and the judicial interpretation of the relevant provisions, the mediation of supplementary civil action in court of first instance, it should be how to deal with?

Reference answer:

1, the people's Court of second instance shall be commuted in two trial.

2 the people's Court of second instance shall according to the procedure for trial supervision of the civil part of corrected.

3 the people's Court of second instance shall in accordance with the procedure for trial supervision of criminal retrial, and the part of incidental civil lawsuit and criminal trial parts together.

4, the people's Court of second instance can the parties on a voluntary basis on the new claim or counterclaim for mediation, the mediation fails, the parties shall inform the prosecution.

Review by the people's court in the 5 that do not meet the conditions required to file an incidental civil action, the court shall prosecute.

6 (1) mediation shall be based on the voluntary and legally, if an agreement is reached through mediation, the judges shall timely mediation, the mediation by the parties shall sign the law. (2) the mediation agreement and the completion of the implementation of mediation, can not, but should be recorded in writing, the parties judges clerk signature or seal that takes legal effect. (3) through conciliation or mediation agreement cannot be reached before signing receipt of Party estoppel, incidental civil action shall be decided together with the criminal litigation.

(2008, Sichuan)

Three, (C. 20)

Case: a procurator for embezzlement Treasury units a case, criminal suspects Yang (legal representative) said the money unit hospitality, invoices not in its office in the drawer. Investigators in the Yang office drawer search to payment unit for criminal suspects the original unit 11 invoices, the value of 50000 yuan. In order to find out whether the invoice from the unit to submit an expense account transfer, investigators suspect Lee (the original unit accounting), Xu (cashier) at the same time to paste a piece of paper 11 invoices for identification, two people identified the 11 invoices from the unit small exchequer account reimbursement. The attached page investigators then let the two people in the paste identified invoice signed identify opinions, the holders of the invoice to the detention center for criminal suspects Yang identification. Yang denies to have from the original units of reimbursement, investigators pointed to paste on the attached sheet Lee, a written comments and signature recognition said "accounting, cashier have proved so stubborn, you ain't good!", Yang Mousui Li and Xu identification and signature below signed "the bill has been from the unit small exchequer account reimbursement" opinion.

Yang wife entrusted lawyers from the investigation organ proposed meeting with Yang Chen, investigators to authorize no Yang signature book and refuse to.

The county's Procuratorate prosecution allegations, Yang, Li, Xu common corruption unit funds 50000 yuan. In court, found that Yang is bribery facts, the court decided to hear the cases at the same time. The court debate, Yang counsel except that accused Yang the crime of embezzlement, bribery of insufficient evidence, the prosecution indictment against the three defendants did not distinguish between the principal and accessory, and published in the words said Yang for the principal objections. After the adjournment, the judge Wang to Yang Mouyuan units obtaining some new evidence, notify the public prosecutor and defense to the office, listen to their views on the new evidence.

County court verdict think, prosecution authorities charged three defendants guilty of corruption crime, Yang Department of principal, sentenced to 5 years in prison; Li and Xu is an accessory, were each sentenced 1 years imprisonment, suspended for 2 years. Yang Mou is suspected of taking bribes for lack of evidence shall not be recognized.

Yang City Intermediate Court of appeal, that the case facts are not clear, revocation, remand the case for retrial.

The county court appointed court president Zhao who serves as the presiding judge and the people's jurors Mao Mou, Miao a collegiate bench trial, to think, although the evidence in the evidence qualification flaws, but does not affect the identification of the facts of the case, be the same with the first instance judgment.

The problem:

Please according to the criminal procedure law and judicial interpretation concerned and the theory of criminal procedure, this case analysis procedure which is wrong?

Reference answer:

1 investigators organization Li and Xu also identify specific identification, in violation of the rules.

2 investigation personnel organization three suspects to identify only the bill, in violation of the hybrid identification rules.

3 investigators organization Yang identification, take verbal threats, in violation of the law.

4 investigators to accredit a power of attorney signed no Yang refused to lawyers is wrong. According to the six departments, at the stage of investigation, criminal suspects to hire a lawyer, can hire, also can by their families to hire.

Yang found that a suspected of accepting bribes 5 court, procuratorate prosecution should be added, and should not be direct trial.

6 the word can only be added to explain to the indictment, not beyond the indictment charges.

The new evidence in the 7 trial in the long after the adjournment obtained was not in court cases as evidence, in violation of the evidence must be produced in court, identification, quality certificate, court investigation procedure verified to be finalized according to the.

8 County People's court appointed court president Zhao who serves as the presiding judge and the jury Mao Mou, Miao a collegiate bench to reopen the case, the people's court for violation of the case remanded shall form a new collegial panel trial regulations.

 

In case a defendant Wang Ming, state-owned Hongyuan Limited by Share Ltd manager. In 1998 the city's Procuratorate received a letter of accusation, to expose the company 1000000 yuan in tax evasion. Procuratorate investigation, that the company is tax evasion fact, shall be investigated for criminal responsibility according to law, and with the approval of the chief procurator of investigation on the company register. July 2, 1998's Procuratorate approved the arrest of Wang Ming, and sent the procuratorate investigators arrested them. In July 8th, the suspect Wang Ming lawyers proposed bail application to the procuratorate procurator, need to pay 50000 yuan deposit, and provide a guarantee. In July 9th the lawyer to pay a deposit of 50000 yuan to the procuratorate, and to provide a guarantee, Wang Ming was released on bail. After the investigation discovery, the company since 1996 to l998, a total of 500000 yuan of tax evasion, the procuratorate to freeze the company account, and will be 500000 yuan as taxes turned over to the state treasury. The case in l999 year in August 1 to the District People's court proceedings, the court, that the company's behavior has constituted the crime of tax evasion, sentenced the defendant Wang Ming to 3 years in prison, corrosion law; education n whole J of a sentence of 3 years, the company sentenced to 2000000 yuan fine. Procuratorate believes that the court of first instance to the defendant Wang Ming sentencing underweight, submitted a protest form directly to the court of second instance, lodge a protest. The protest after the expiration of the company, the court of First Instance sentenced to fines is executed. The court of second instance without trial, that a trial court finds that the facts are correct, but the penalty is too light, rescind the original judgment, changed at the defendant Wang Ming to 7 years in prison. We ask: (2002 four papers of third questions, the 10 points)
The people's Procuratorate 1 in the case of what the program illegal?
[answer] procuratorate not legitimate procedure:
(1) the procuratorate for state-owned Hongyuan Limited by Share Ltd tax related case on file for investigation in violation of the relevant provisions. "The provisions of article L:" six authority for tax related cases shall be under the jurisdiction of the public security organs, the public security organ shall place the case on file for investigation, the people's Procuratorate will no longer accept. Therefore, the procuratorate is the wrong approach.
(2) the procuratorate sends procurators directly the arrest of the suspect's behavior is illegal. "Criminal Procedure Law" provisions of article fifty-ninth, the arrest of the suspect, the defendant, the people's Procuratorate approval must pass or the people's court decision, shall be executed by a public security organ. Therefore, the procuratorate send procurators directly the arrest of the suspect's behavior is illegal. In addition, placed on file for investigation the case by the people's procuratorates, need to arrest suspects, should be the people's Procuratorate approved the arrest decision of arrest and non.
(3) the procuratorate requirements at the same time to provide 50000 yuan security and guarantee in violation of the provisions of the criminal procedure law. "Criminal Procedure Law" the fifty-third stipulation: the people's court, the people's procuratorates and the public security organs decision pending trial of criminal suspects, defendants on bail, shall order the suspect, the defendant to provide a guarantor or pay margin. "Six authority" twenty-first clear not provide guarantee and pay a deposit. That's required to provide 50000 yuan security and guarantee in violation of the above provisions.
(4) the people's Procuratorate in the people's court has not made an effective judgment on the frozen deposits turned over to the state treasury in violation of the criminal procedure law and interpretation.
(5) after the people's court prosecutor's office did not directly to the people's court at the next higher level protest is illegal. "Criminal Procedure Law" provisions of article 185th, local people's procuratorates of the people's courts at the same level of the first trial, ruled that the protest, should (through the people's court to protest, and the level of the people on a send a copy of the written protest. The people's court shall protest together with the case file, the evidence to the people's Court level, and the duplicates of the written protest to the party. That's not after the people's court directly to the people's court at the next higher level protest is illegal.
(6) the people's Procuratorate to collect margin is wrong, the public security organ shall be the organ executing the namely unified collection management.
[] A. analytical test have jurisdiction, arrest, bail, execution, lodge a protest.
(1) "the provisions of article L:" six authority in accordance with the law of criminal procedure in criminal cases under the jurisdiction of the division of labor, the people's Procuratorate jurisdiction "of corruption and bribery, national staff malfeasance crime, the violation of civil illegal detention, extortion by torture, illegal search, the revenge against the State functionary carry the rights of crime and criminal violations of the democratic rights of citizens". For tax and other cases shall be under the jurisdiction of the public security organs, the public security organ shall place the case on file for investigation, the people's Procuratorate will no longer accept. Any non-compliance with the file criminal procedure law on the jurisdiction division provisions shall be invalid.
(2) "criminal procedural law" the sixty-ninth stipulation: the people's Procuratorate shall, after receiving the request for approval of arrest from a public security organ within 7 days, to approve or disapprove the arrest decision. Rule fifty-ninth: the arrest of the suspect, the defendant, must be approved by a people's Procuratorate or by decision of a people's court, shall be executed by a public security organ.
(3) the provisions of article twenty-first "six authority": fifty-third of the criminal procedural law stipulates: "the trial of criminal suspects, defendants on bail, shall order the criminal suspect, the defendant to provide a guarantor or pay money." According to this provision, not at the same time provide a guarantee and pay the deposit.
(4) "criminal procedural interpretation of" the 292nd regulation, the people's court accepts a case for investigation organs, frozen in the deposits of financial institutions, financial institutions shall examine whether a certificate issued by the original, made by the people's court verdicts, notify the financial institution turned over to the state treasury, and the judgment served on the finance authority. "Criminal Procedure Law" provisions of article l98: the public security organs, people's Procuratorate and the people's court for property and interests of criminal suspects and defendants, seizure, freezing, shall be properly kept, for verification. Any unit or individual shall not be misappropriated or dispose of. The lawful property of the victim shall be returned without delay. Prohibited articles and perishable goods, shall be disposed of in accordance with the relevant provisions of the state. To use as evidence of the material shall be transferred together with the case, to be transferred, it shall be lists, photos and other documents of certification with the case. After the people's Court of the verdict, the stolen money was seized, frozen and its fruits, besides, to be returned to the victim shall be confiscated, turned over to the state treasury. Proceeds of crime judicial personnel corruption, misappropriation or privately processing was seized, frozen and the fruits thereof, shall be investigated for criminal responsibility; does not constitute a crime, shall be given sanctions. "Six authority" of article forty-eighth (2): the investigation organ to freeze in the provision of financial institutions shall be issued for money, to the people's court transferred together with the case of the financial institutions of the documents, to the people's court to make effective judgment, the people's court shall notify the financial institution shall be turned over to the Treasury, the financial institution shall submit to the people's court shall be sent to the execution. Therefore, the people's Procuratorate in this case in the people's court has not made an effective judgment on the frozen deposits turned over to the State Treasury is illegal.
(5) "Criminal Procedure Law" provisions of article L85 L: local people's procuratorates of the people's courts at the same level the first judgment, ruling appeal, it shall lodge a protest letter through the people's court, and the people's Procuratorate level a copy of the written protest. The people's court shall protest together with the case file, the evidence to the people's Court level, and the duplicates of the written protest to the party. Therefore, in this case the people's Procuratorate not by the trial court to protest is wrong.
(6) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security "rules" about some problems of bail provisions of article sixth: bail bond at or above the county level unified collection and management executive. Therefore, the public security organ should collect margin.
2 in the case of the people's Court of second instance procedures illegal?
[answer] the court of second instance not legitimate procedure:
(1) the people's Court of second instance for the procuratorate the case not hearing is illegal. Case protested by a people's Procuratorate, the people's Court of second instance shall open the court session. Therefore, the people's Court of second instance cases in the procuratorate not hearing is illegal.
(2) the protest after the expiration of the period, the people's Court of first instance will be the company's fine executed is wrong. The procedure of second instance shall, after the end of delivery.
[] A. analytical test: the procedure of second instance, the execution.
(1) "criminal procedural law" the provisions of article l87: a case protested by a people's Procuratorate, the people's Court of second instance shall open the court session. In the people's Court of second instance for the procuratorate of case not trial in violation of the provisions of the criminal procedure law "".
(2) "criminal procedural law" the 208th stipulation: the judgment and decision of legal effect after the implementation of difficult. The verdict is a legally effective judgment and ruling: ① had the statutory time limit not appeal, appeal judgments and rulings; the final judgments and rulings; the approval of the Supreme People's court judgments of the death penalty and the higher people's court approved two year stay of execution of the sentence. Due to the people's Procuratorate protest, so the decision is not in force.
Two cases of City Public Security Bureau in January 4, 1999 to Liu Mou (male, 24 years old), Zhang Mou (male, 21 years old) the knife wounded a case on file for investigation. The investigation found, Liu, Zhang robbery criminal facts are clear, shall be investigated for criminal responsibility according to law. Liu, Zhang robbery case in March 30, 1999, the conclusion of the investigation, to the people's Procuratorate for examination and prosecution. City People's Procuratorate review, that the case facts, evidence requires supplementary investigation, he returned to the City Public Security Bureau of investigation. Supplementary investigation is completed, once again to the city people's procuratorate. City People's Procuratorate think the facts are clear, the evidence, the prosecution urged the city people's court.
Court trial, the defendant LiuMou court refused to court for its designated defense law; education network, the whole. The nurse defended, request to appoint a defender; Zhang refused to entrust defense defended, asking the court to appoint a defender. The collegial panel by the research, agreed that the two request of the defendant, and announced the postponement of the hearing. The re trial, the Zhang in the final statement, its involvement in the robbery because Liu Mou's stress, afraid of Liu of revenge, had not said, and put forward that be coerced into participating in a robbery witness name, hope the court sentenced lightly.
The court concluded that, the defendant Zhang, Liu Mou constitute the crime of robbery, serious consequences. According to the relevant provisions of the criminal law, the death penalty sentenced Liu, suspended for 2 years; Zhang sentenced to 10 years in prison. After the verdict, Liu refuses to accept, to the heavy sentence on the grounds to appeal to a higher court; Zhang did not appeal, city people's Procuratorate also did not protest. (IV on 2004 fifth, the 12 points)
The problem:
In the 1's Procuratorate prosecution during the supplemental investigation cases, the public security organ shall complete the supplementary investigation in how long?
[answer] 1 months.
[] A. analytical test is the supplementary investigation. Supplementary investigation, is refers to the public security organ or the people's Procuratorate in accordance with the law as a litigation activity further investigation, additional evidence on the basis of the original investigation. "Criminal Procedure Law" 140th paragraph third: for supplementary investigation cases, shall complete the supplementary investigation within one month. Supplementary investigation is limited to two times. Supplementary investigation is completed and transferred to the people's Procuratorate, the people's Procuratorate to calculate the time limit for examination and prosecution. In this case, procuratorate in the prosecution during the supplemental investigation cases, the public security organ shall complete the supplementary investigation in 1 months.
In the 2's Procuratorate prosecution cases should be added during the investigation, can not be returned for supplementary investigation by procuratorate, conduct the investigation itself?
[answer] can.
[] A. analytical test is the supplementary investigation. "Criminal Procedure Law" 140th paragraph second, the people's Procuratorate examining a case, the need for supplementary investigation, the public security organ may be returned for supplementary investigation, or conduct the investigation itself. Because, procuratorate in the prosecution during the case requires supplementary investigation, can not be returned for supplementary investigation, but by the procuratorate investigation itself.
3 - after the hearing, if Liu again refused to entrust defense defended, the collegial panel should be how to deal with?
[answer] shall not be permitted to. Because the defendant's criminal conduct serious, may be sentenced to death.
[] A. analytical test is to refuse to defend. "Criminal procedural interpretation of" the 165th regulation: the accused person court refused to defend defended requirements, entrust another defender, ought to agree, and announced the postponement of the hearing. The defendant to request the people's court shall appoint lawyers, the collegial panel agreed, shall announce the postponement of the hearing. The re trial, the defendant in court again refused to entrust defenders or the people's court appointed defense lawyer, the collegial panel shall respectively dealt with: (1) the defendant is an adult, can permit. But the defendant shall not entrust another defender, the people's court has no separate defense lawyer, the defendant can change their own; (2) the defendant does not with the interpretation of the provisions of article thirty-sixth of the circumstances, shall not be permitted to.
According to the 164th interpretation, the article first, 2 paragraph entrust, specify the counsel or attorney, postponing the hearing within tenth days from the date of check since the case announced, to defend the time not included in the time limit.
"Criminal procedural interpretation of" the thirty-sixth regulation: the accused person's counsel did not entrust with one of the following cases, the people's court shall appoint one for him: (1) the blind, deaf, dumb or a person with limited ability of people; (2) trial of minors under 18 years of age; (3) may sentenced to death.
In this case, Liu belongs to may be sentenced to death, the re trial, the court rejected again re commissioned the defender or the people's court appointed defense lawyer, shall not be permitted to.
4 - after the hearing, if Zhang rejected the court to the defender designated by the collegial panel, should be how to deal with?
[answer] allowed. But the defendant shall not entrust another defender, the people's court shall specify no lawyer, the defendant may defend oneself.
[] A. analytical test is to refuse to defend. According to the "criminal procedural interpretation" provisions of article thirty-sixth and article 165th, the re trial, the defendant in court again refused to entrust defenders or the people's court appointed defense lawyer, if the defendant is an adult and not blind, deaf or mute, or a person with limited ability of people may be sentenced to death man, can permit. But the defendant shall not entrust another defender, the people's court shall specify no lawyer, the defendant can defend oneself.
5 for Zhang in the final statement puts its stress the fact, the collegial panel should be how to deal with?
Answer.It shall resume the court investigation.
[] A. analytical test is the court investigation. "Criminal procedural interpretation of" the provisions of article L68: the defendant presents new evidence of fact, in the final statement, the collegial panel that may influence the correct judgment, shall restore the court investigation; if the defendant to provide justification for new, the collegial panel deems it necessary, can restore the court debate. Zhang in this case the defendant in the final statement puts its stress facts, this fact may influence the correct judgment, the collegial panel shall restore the court investigation.
6 Liu directly to the second instance court of appeal, the court of second instance should be how to deal with?
[answer] will appeal within 3 days of the original court to the people's Procuratorate at the same level.
[] A. analytical test is appeal. "Criminal Procedure Law" provisions of the second paragraph of article l84: the defendant, private prosecutor, incidental civil litigation the plaintiff and the defendant files an appeal directly to the people's Court of second instance, the second instance method; law teaching J education network h all G people's court shall within 3 days of the petition of appeal to the people's court the trial to the people's Procuratorate at the same level and to the other party. "Criminal procedural interpretation of" 237th further clear: the defendant, private prosecutor, incidental civil litigation the plaintiff and the defendant files an appeal directly to the people's Court of second instance, the people's Court of second instance shall within 3 days after receiving the appeal to the petition of appeal to the people's Court of first instance. The people's Court of first instance shall review the appeal for compliance with the law. In accordance with the law, shall within 3 days after receiving the appeal will appeal together with the case file, the evidence to the people's Court level, at the same time, a copy of the appeal petition to the people's Procuratorate at the same level and to the other party. In this case, Liu directly to the second instance court of appeal, the court of second instance shall within 3 days to appeal to the trial court to the people's Procuratorate at the same level.
7 if Liu in the appeal period to withdraw his appeal, a judgment from the commencement date?
[answer] shall come into force on the date of the expiration of the appeal.
[] A. analytical test is a judgment of effect. "Criminal procedural interpretation of" the 238th regulation: the accused person, private prosecutor, incidental civil litigation the plaintiff and the defendant or his legal representative requests to withdraw the appeal on appeal within the time limit, shall be permitted to. In this case the defendant Liu in the appeal period demand the withdrawal of appeal, he shall be permitted to. "Criminal procedural interpretation of" 244th stipulates: "the appeal, appeal before the expiry of the withdrawal of the appeal, appeal cases, the judgment of first instance, ruling shall take effect on the date of the expiration of the appeal, appeal; in the appeal, appeal after the expiration of the period of demand the withdrawal of appeal, appeal, the people's Court of second instance ruled to permit, the judgment of first instance, the people's Court of second instance verdict should be self ruling is served raw appeal or protest procuratorial organs of the date of." "Criminal procedural interpretation of" 337th article: judgments and orders shall be executed after they become legally effective. The following judgments and orders are legally effective judgments and orders: (I) has been the legal time limit not appeal, appeal law; Education M network \ the whole [physical judgments and rulings; (2) final judgments and rulings; (3) the higher people's court approved two year stay of execution of the judgment, according to the Supreme People's court verdict and authority approved the death penalty verdict; (4) the Supreme People's court approved the death penalty verdict. In this case a trial on appeal the expiration effect.
8 if the victims of a judgement of the appeal, should request the people's Procuratorate in how long?
[answer] shall receive judgment within 5 days after the request the people's procuratorate. The people's Procuratorate 5 days from the date of receiving the request shall be made after, whether the protest and decided to give him a reply.
[] A. analytical test is the protest filed. This test is the victims to the first instance judgment against the relevant content, request the people's Procuratorate. "Criminal Procedure Law" the 182nd stipulation: the victim and his legal representatives judgment of first instance of a local people's court, within 5 days after receiving the written judgment, have the right to request the people's procuratorate. Within 5 days after receipt of the victim and the people's Procuratorate legal agent request, shall make a decision whether to appeal and give him a reply.

 

Duan Feng (born in 1997 August 1981 December) and Li Lin (born 1980 October) established acquaintance, less than two months after the relationship, two people in Duan Feng's factory dormitory. After living together, two people often because of trivial quarrels. The evening of November 14, 1997, Lee and the segment and quarrel. To avoid being out period, Li pull not to put. Two people quarrel, live next door to the Zhao, Han Mou, Wang Mousan people to sort. Section due to Li does not let go, become shame, threat Li don't let go, it pulls light clothes. Lee is still not let go, while her nightgown and underwear Li wearing all off, Zhao Li sees threw a coat. Li Yin dress and hand, a segment that is out of the dormitory. Later, two people continue to live together, and still chores often quarrel. In May 27, 1998, two people quarrel, some wounded lee. Li went to hospital for treatment, the county hospital diagnosis for minor injuries. Li Wei spent more than 2000 yuan for medical expenses. Li Yin felt and can no longer continue to maintain the relationship, in 1998 June 13 to the county civil court. The claims a total of two, which requires a front for all medical expenses, cohabitation termination and segment. The main reason for the request, a is a frontal system injury liability, medical expenses should be borne by their; two is two people often quarrel, and had been publicly pulled insult light clothes, two cohabitation cannot maintain. County Court review of that insult, defendant Duan Feng hit Li Lin and publicly pulled light women's clothes, have constituted a crime, therefore decided the case to court processing. Court think, the case is a case of private prosecution, therefore decided to adopt the sole judge, the judge told Li Lin as a criminal prosecution, and it is the civil petition as criminal book. At the same time, inform the section shall have the right to hire lawyers. But some said not a lawyer. The court decided in July 20, 1998 to a public hearing in the case. The day before the hearing, Li Lin told the court she didn't want to accuse section, crime, still want to cohabitation by the court to terminate and section and get compensation for medical expenses. Because the trial date has been set, the county court court decision on hearing. During the hearing, Duan Feng was the only one who appear in court. The court, only to the segment was questioned. After the interrogation, the facts are clear, Long Feng also all admit, it did not let Duan Feng make their final statements, then make an immediate decision, to its harm and insult crime were sentenced to imprisonment for one year and two years, with the execution of two years in prison for zero six months, and let Duan Feng have the right of appeal and appeal the term, but on the part of incidental civil lawsuit does not make processing. Please point out the county court in the admissibility of the case, the court and the decision stage, which violates the provisions of the criminal procedure law.
Reference answer and score

1 to claim the plaintiff Li Lin, county court after examining the behavior is wrong. Because of the request of civil litigation, the court should prosecute review, and then decide whether to accept. (1 points)

2 County Court accepted the case is not correct. Because the plaintiff is one of Li Lin's claims is the requirement of cohabitation termination and boyfriend, it does not fall within the acceptance of civil lawsuits. (1 points)

3 the court decided to the case to court processing approach is wrong, because the crime of insult belongs to the criminal cases of private prosecution, not private prosecution behavior of the victim, the court can not directly be dealt. (1 points)

4 by the judge told Li Lin as a private prosecutor in criminal procedure is the wrong approach. For the case of private prosecution, judicial organs can only be processed according to the victim to, and not notice the private prosecutor. (1 points)

The 5 court civil complaint as criminal book is the wrong approach. Should inform Li Lin shall have the right to file an incidental civil to criminal procedure law. (1 points)

The 6 part not requested a lawyer, the court attempt nothing and accomplish nothing attitude is not correct. Because the period of under 18 years of age, is a minor, the court shall assign counsel. (1 points)

The court decided in July 20, 1998 7 public hearing of the case is the wrong approach. Because the court hearing the case is decided by a single system, which uses the simple procedure, while trying a case in which the summary procedure, the people's court shall conclude the trial of the case within twenty days after receiving. (1 points)

8 the court decided not to correct the open trial practice, because of the minor crime case, generally should not be heard in public. (1 points)

9 in the victim's reluctance to bring a private prosecution case, court decision on hearing of the approach is not correct. Because the private prosecution to tell just processing, the victim has the right to withdraw the prosecution. (1 points)

The 10 trial, the defendant to appear in court only one person is not correct. Because the private prosecution case in the trial, the prosecutor after two times without a valid reason legal summons, refuses to appear in court, by withdrawing treatment. (1 points)

11 the court, only to segment were incorrect interrogation practices, should be an indictment was read, with permission of the judges, the defendant and lawyer with the private prosecutor and litigation agent debate with each other. (1 points)

12 not to let Duan Feng make a final statement is wrong. Because the final presentation to the defendant, is an indispensable legal procedures, must guarantee the final statement of the rights of the accused. (1 points)

13 the court criminal judgments, the untreated part of incidental civil lawsuit is the wrong approach. Because the incidental civil action shall be heard together with the criminal case. (1 points)

A caseDefendant Wang Ming, state-owned Hongyuan Limited by Share Ltd manager. In 1998 the city's Procuratorate received a letter of accusation, to expose the company 1000000 yuan in tax evasion. Procuratorate investigation, that the company is tax evasion fact, shall be investigated for criminal responsibility according to law, and with the approval of the chief procurator of investigation on the company register. July 2, 1998's Procuratorate approved the arrest of Wang Ming, and sent the procuratorate investigators arrested them. In July 8th, the suspect Wang Ming hiredLawyerThe bail application to the procuratorate procurator, need to pay 50000 yuan deposit, and provide a guarantee. In July 9th the lawyer to pay a deposit of 50000 yuan to the procuratorate, and to provide a guarantee, Wang Ming was released on bail. After the investigation discovery, the company since 1996 to l998, a total of 500000 yuan of tax evasion, the procuratorate to freeze the company account, and will be 500000 yuan as taxes turned over to the state treasury. The case in l999 on 1 August DistrictCivil lawInstitute a public prosecution, the court, that the company's behavior has constituted the crime of tax evasion, sentenced the defendant Wang Ming to 3 years in prison, corrosion | law; education n network of J | a sentence of 3 years, to fine the company sentenced to 2000000 yuan. Procuratorate believes that the court of first instance to the defendant Wang Ming sentencing underweight, submitted a protest form directly to the court of second instance, lodge a protest. The protest after the expiration of the company, the court of First Instance sentenced to fines is executed. The court of second instance without trial, that a trial court finds that the facts are correct, but the penalty is too light, rescind the original judgment, changed at the defendant Wang Ming to 7 years in prison. We ask: (2002 four papers of third questions, the 10 points)

The people's Procuratorate 1 in the case of what the program illegal?

[answer] procuratorate not legitimate procedure:

(1) the procuratorate for state-owned Hongyuan Limited by Share Ltd tax related case on file for investigation in violation of the relevant provisions. "The provisions of article L:" six authority for tax related cases shall be under the jurisdiction of the public security organs, the public security organ shall place the case on file for investigation, the people's Procuratorate will no longer accept. Therefore, the procuratorate is the wrong approach.

(2) the procuratorate sends procurators directly the arrest of the suspect's behavior is illegal. "Criminal Procedure Law"The fifty-ninth regulation, the arrest of the suspect, the defendant, the people's Procuratorate approval must pass or the people's court decision, shall be executed by a public security organ. Therefore, the procuratorate send procurators directly the arrest of the suspect's behavior is illegal. In addition, placed on file for investigation the case by the people's procuratorates, need to arrest suspects, should be the people's Procuratorate approved the arrest decision of arrest and non.

(3) the procuratorate requirements at the same time to provide 50000 yuan security and guarantee in violation of the provisions of the criminal procedure law. "Criminal Procedure Law" the fifty-third stipulation: the people's court, the people's procuratorates and the public security organs decision pending trial of criminal suspects, defendants on bail, shall order the suspect, the defendant to provide a guarantor or pay margin. "Six authority" twenty-first clear not provide guarantee and pay a deposit. That's required to provide 50000 yuan security and guarantee in violation of the above provisions.

(4) the people's Procuratorate in the people's court has not made an effective judgment on the frozen deposits turned over to the state treasury in violation of the criminal procedure law and interpretation.

(5) after the people's court prosecutor's office did not directly to the people's court at the next higher level protest is illegal. "Criminal Procedure Law" provisions of article 185th, local people's procuratorates of the people's courts at the same level of the first trial, ruled that the protest, should (through the people's court to protest, and the level of the people on a send a copy of the written protest. The people's court shall protest together with the case file, the evidence to the people's Court level, and the duplicates of the written protest to the party. That's not after the people's court directly to the people's court at the next higher level protest is illegal.

(6) the people's Procuratorate to collect margin is wrong, the public security organ shall be the organ executing the namely unified collection management.

[] A. analytical test have jurisdiction, arrest, bail, execution, lodge a protest.

(1) "the provisions of article L:" six authority in accordance with the law of criminal procedure in criminal cases under the jurisdiction of the division of labor, the people's Procuratorate jurisdiction "of corruption and bribery, national staff malfeasance crime, the violation of civil illegal detention, extortion by torture, illegal search, the revenge against the State functionary carry the rights of crime and criminal violations of the democratic rights of citizens". For tax and other cases shall be under the jurisdiction of the public security organs, the public security organ shall place the case on file for investigation, the people's Procuratorate will no longer accept. Any non-compliance with the file criminal procedure law on the jurisdiction division provisions shall be invalid.

(2) "criminal procedural law" the sixty-ninth stipulation: the people's Procuratorate shall, after receiving the request for approval of arrest from a public security organ within 7 days, to approve or disapprove the arrest decision. Rule fifty-ninth: the arrest of the suspect, the defendant, must be approved by a people's Procuratorate or by decision of a people's court, shall be executed by a public security organ.

(3) the provisions of article twenty-first "six authority": fifty-third of the criminal procedural law stipulates: "the trial of criminal suspects, defendants on bail, shall order the criminal suspect, the defendant to provide a guarantor or pay money." According to this provision, not at the same time provide a guarantee and pay the deposit.

(4) "criminal procedural interpretation of" the 292nd regulation, the people's court accepts a case for investigation organs, frozen in the deposits of financial institutions, financial institutions shall examine whether a certificate issued by the original, made by the people's court verdicts, notify the financial institution turned over to the state treasury, and the judgment served on the finance authority. "Criminal Procedure Law" provisions of article l98: the public security organs, people's Procuratorate and the people's court for property and interests of criminal suspects and defendants, seizure, freezing, shall be properly kept, for verification. Any unit or individual shall not be misappropriated or dispose of. The lawful property of the victim shall be returned without delay. Prohibited articles and perishable goods, shall be disposed of in accordance with the relevant provisions of the state. To use as evidence of the material shall be transferred together with the case, to be transferred, it shall be lists, photos and other documents of certification with the case. After the people's Court of the verdict, the stolen money was seized, frozen and its fruits, besides, to be returned to the victim shall be confiscated, turned over to the state treasury. Proceeds of crime judicial personnel corruption, misappropriation or privately processing was seized, frozen and the fruits thereof, shall be investigated for criminal responsibility; does not constitute a crime, shall be given sanctions. "Six authority" of article forty-eighth (2): the investigation organ to freeze in the provision of financial institutions shall be issued for money, to the people's court transferred together with the case of the financial institutions of the documents, to the people's court to make effective judgment, the people's court shall notify the financial institution shall be turned over to the Treasury, the financial institution shall submit to the people's court shall be sent to the execution. Therefore, the people's Procuratorate in this case in the people's court has not made an effective judgment on the frozen deposits turned over to the State Treasury is illegal.

(5) "Criminal Procedure Law" provisions of article L85 L: local people's procuratorates of the people's courts at the same level the first judgment, ruling appeal, it shall lodge a protest letter through the people's court, and the people's Procuratorate level a copy of the written protest. The people's court shall protest together with the case file, the evidence to the people's Court level, and the duplicates of the written protest to the party. Therefore, in this case the people's Procuratorate not by the trial court to protest is wrong.

(6) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security "rules" about some problems of bail provisions of article sixth: bail bond at or above the county level unified collection and management executive. Therefore, the public security organ should collect margin.

2 in the case of the people's Court of second instance procedures illegal?

[answer] the court of second instance not legitimate procedure:

(1) the people's Court of second instance for the procuratorate the case not hearing is illegal. Case protested by a people's Procuratorate, the people's Court of second instance shall open the court session. Therefore, the people's Court of second instance cases in the procuratorate not hearing is illegal.

(2) the protest after the expiration of the period, the people's Court of first instance will be the company's fine executed is wrong. The procedure of second instance shall, after the end of delivery.

[] A. analytical test: the procedure of second instance, the execution.

(1) "criminal procedural law" the provisions of article l87: a case protested by a people's Procuratorate, the people's Court of second instance shall open the court session. In the people's Court of second instance for the procuratorate of case not trial in violation of the provisions of the criminal procedure law "".

(2) "criminal procedural law" the 208th stipulation: the judgment and decision of legal effect after the implementation of difficult. The verdict is a legally effective judgment and ruling: ① had the statutory time limit not appeal, appeal judgments and rulings; the final judgments and rulings; the approval of the Supreme People's court judgments of the death penalty and the higher people's court approved two year stay of execution of the sentence. Due to the people's Procuratorate protest, so the decision is not in force.

　　Case twoCity Public Security Bureau in January 4, 1999 to Liu Mou (male, 24 years old), Zhang Mou (male, 21 years old) the knife wounded a case on file for investigation. The investigation found, Liu, Zhang robbery criminal facts are clear, shall be investigated for criminal responsibility according to law. Liu, Zhang robbery case in March 30, 1999, the conclusion of the investigation, to the people's Procuratorate for examination and prosecution. City People's Procuratorate review, that the case facts, evidence requires supplementary investigation, he returned to the City Public Security Bureau of investigation. Supplementary investigation is completed, once again to the city people's procuratorate. City People's Procuratorate think the facts are clear, the evidence, the prosecution urged the city people's court.

Court trial, the defendant LiuMou court refused to court for the specified argument | law; education network, the physical protection. | defended, request to appoint a defender; Zhang refused to entrust defense defended, asking the court to appoint a defender. The collegial panel by the research, agreed that the two request of the defendant, and announced the postponement of the hearing. The re trial, the Zhang in the final statement, its involvement in the robbery because Liu Mou's stress, afraid of Liu of revenge, had not said, and put forward that be coerced into participating in a robbery witness name, hope the court sentenced lightly.

The court concluded that, the defendant Zhang, Liu Mou constitute the crime of robbery, serious consequences. According to theThe criminal lawThe relevant provisions of Liu, sentenced to death, suspended for 2 years; Zhang sentenced to 10 years in prison. After the verdict, Liu refuses to accept, to the heavy sentence on the grounds to appeal to a higher court; Zhang did not appeal, city people's Procuratorate also did not protest. (IV on 2004 fifth, the 12 points)

The problem:

In the 1's Procuratorate prosecution during the supplemental investigation cases, the public security organ shall complete the supplementary investigation in how long?

[answer] 1 months.

[] A. analytical test is the supplementary investigation. Supplementary investigation, is refers to the public security organ or the people's Procuratorate in accordance with the law as a litigation activity further investigation, additional evidence on the basis of the original investigation. "Criminal Procedure Law" 140th paragraph third: for supplementary investigation cases, shall complete the supplementary investigation within one month. Supplementary investigation is limited to two times. Supplementary investigation is completed and transferred to the people's Procuratorate, the people's Procuratorate to calculate the time limit for examination and prosecution. In this case, procuratorate in the prosecution during the supplemental investigation cases, the public security organ shall complete the supplementary investigation in 1 months.

In the 2's Procuratorate prosecution cases should be added during the investigation, can not be returned for supplementary investigation by procuratorate, conduct the investigation itself?

[answer] can.

[] A. analytical test is the supplementary investigation. "Criminal Procedure Law" 140th paragraph second, the people's Procuratorate examining a case, the need for supplementary investigation, the public security organ may be returned for supplementary investigation, or conduct the investigation itself. Because, procuratorate in the prosecution during the case requires supplementary investigation, can not be returned for supplementary investigation, but by the procuratorate investigation itself.

3 - after the hearing, if Liu again refused to entrust defense defended, the collegial panel should be how to deal with?

[answer] shall not be permitted to. Because the defendant's criminal conduct serious, may be sentenced to death.

[] A. analytical test is to refuse to defend. "Criminal procedural interpretation of" the 165th regulation: the accused person court refused to defend defended requirements, entrust another defender, ought to agree, and announced the postponement of the hearing. The defendant to request the people's court shall appoint lawyers, the collegial panel agreed, shall announce the postponement of the hearing. The re trial, the defendant in court again refused to entrust defenders or the people's court appointed defense lawyer, the collegial panel shall respectively dealt with: (1) the defendant is an adult, can permit. But the defendant shall not entrust another defender, the people's court has no separate defense lawyer, the defendant can change their own; (2) the defendant does not with the interpretation of the provisions of article thirty-sixth of the circumstances, shall not be permitted to.

According to the 164th interpretation, the article first, 2 paragraph entrust, specify the counsel or attorney, postponing the hearing within tenth days from the date of check since the case announced, to defend the time not included in the time limit.

"Criminal procedural interpretation of" the thirty-sixth regulation: the accused person's counsel did not entrust with one of the following cases, the people's court shall appoint one for him: (1) the blind, deaf, dumb or a person with limited ability of people; (2) trial of minors under 18 years of age; (3) may sentenced to death.

In this case, Liu belongs to may be sentenced to death, the re trial, the court rejected again re commissioned the defender or the people's court appointed defense lawyer, shall not be permitted to.

4 - after the hearing, if Zhang rejected the court to the defender designated by the collegial panel, should be how to deal with?

[answer] allowed. But the defendant shall not entrust another defender, the people's court shall specify no lawyer, the defendant may defend oneself.

[] A. analytical test is to refuse to defend. According to the "criminal procedural interpretation" provisions of article thirty-sixth and article 165th, the re trial, the defendant in court again refused to entrust defenders or the people's court appointed defense lawyer, if the defendant is an adult and not blind, deaf or mute, or a person with limited ability of people may be sentenced to death man, can permit. But the defendant shall not entrust another defender, the people's court shall specify no lawyer, the defendant can defend oneself.

5 for Zhang in the final statement puts its stress the fact, the collegial panel should be how to deal with?

Answer.It shall resume the court investigation.

[] A. analytical test is the court investigation. "Criminal procedural interpretation of" the provisions of article L68: the defendant presents new evidence of fact, in the final statement, the collegial panel that may influence the correct judgment, shall restore the court investigation; if the defendant to provide justification for new, the collegial panel deems it necessary, can restore the court debate. Zhang in this case the defendant in the final statement puts its stress facts, this fact may influence the correct judgment, the collegial panel shall restore the court investigation.

6 Liu directly to the second instance court of appeal, the court of second instance should be how to deal with?

[answer] will appeal within 3 days of the original court to the people's Procuratorate at the same level.

[] A. analytical test is appeal. "Criminal Procedure Law" provisions of the second paragraph of article l84: the defendant, private prosecutor, incidental civil litigation the plaintiff and the defendant files an appeal directly to the people's Court of second instance, the second people | method; law teaching J education network h whole g | people court shall within 3 days to the petition of appeal the people's court to the people's Procuratorate at the same level and to the other party. "Criminal procedural interpretation of" 237th further clear: the defendant, private prosecutor, incidental civil litigation the plaintiff and the defendant files an appeal directly to the people's Court of second instance, the people's Court of second instance shall within 3 days after receiving the appeal to the petition of appeal to the people's Court of first instance. The people's Court of first instance shall review the appeal for compliance with the law. In accordance with the law, shall within 3 days after receiving the appeal will appeal together with the case file, the evidence to the people's Court level, at the same time, a copy of the appeal petition to the people's Procuratorate at the same level and to the other party. In this case, Liu directly to the second instance court of appeal, the court of second instance shall within 3 days to appeal to the trial court to the people's Procuratorate at the same level.

7 if Liu in the appeal period to withdraw his appeal, a judgment from the commencement date?

[answer] shall come into force on the date of the expiration of the appeal.

[] A. analytical test is a judgment of effect. "Criminal procedural interpretation of" the 238th regulation: the accused person, private prosecutor, incidental civil litigation the plaintiff and the defendant or his legal representative requests to withdraw the appeal on appeal within the time limit, shall be permitted to. In this case the defendant Liu in the appeal period demand the withdrawal of appeal, he shall be permitted to. "Criminal procedural interpretation of" 244th stipulates: "the appeal, appeal before the expiry of the withdrawal of the appeal, appeal cases, the judgment of first instance, ruling shall take effect on the date of the expiration of the appeal, appeal; in the appeal, appeal after the expiration of the period of demand the withdrawal of appeal, appeal, the people's Court of second instance ruled to permit, the judgment of first instance, the people's Court of second instance verdict should be self ruling is served raw appeal or protest procuratorial organs of the date of." "Criminal procedural interpretation of" 337th article: judgments and orders shall be executed after they become legally effective. The following judgments and orders are legally effective judgments and orders: (I) has been the legal time limit not appeal, appeal | law; Education M network \ the whole [science | judgments and rulings; (2) final judgments and rulings; (3) the higher people's court approved two year stay of execution of the sentence ruling and, according to the authorization of the Supreme People's court approved the death penalty verdict; (4) the Supreme People's court approved the death penalty verdict. In this case a trial on appeal the expiration effect.

8 if the victims of a judgement of the appeal, should request the people's Procuratorate in how long?

[answer] shall receive judgment within 5 days after the request the people's procuratorate. The people's Procuratorate 5 days from the date of receiving the request shall be made after, whether the protest and decided to give him a reply.

[] A. analytical test is the protest filed. This test is the victims to the first instance judgment against the relevant content, request the people's Procuratorate. "Criminal Procedure Law" the 182nd stipulation: the victim and his legal representatives judgment of first instance of a local people's court, within 5 days after receiving the written judgment, have the right to request the people's procuratorate. Within 5 days after receipt of the victim and the people's Procuratorate legal agent request, shall make a decision whether to appeal and give him a reply