The Criminal Procedure Law: how many provisions need to modify the (a)

-- "forward-looking" amendment of criminal procedural law of large forum

　　As everyone knows, the three major procedural law now has become not only a hot topic, and has become a theme. All the aspects of thinking, how to avoid the original "Criminal Procedure Law" revised "further two steps back" phenomenon? How to regulate the investigation procedure and the relationship between the procurator and the police? Torture to extract confessions and really long overdue custody? The death penalty review and three tiered really can only be empty talk? The lawyers met with difficulty and hard evidence really is more difficult to go on? The judge's independence and impartiality of the trial was to start all over again?

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The evening of November 15, 2004, the Communist Youth League school, China University of Political Science and Law, China University of Political Science and Law, China University of Political Science and Law, the Federation of associations of quasi Association of lawyers in Changping campus auditorium can accommodate more than 1000 people in large forum jointly hosted by a rich in content, form active. These words, is the essentials and close-up scene recording time. -- editor

Guest: Chen Ruihua Professor of Peking University Law School
Tian Wenchang Director of criminal affairs committee of the all China Lawyers Association
Dr. Ji XiangdeChina Law Institute of the Academy of Social Sciences postdoctoral researchers
The guest host: Liu Guiming"China lawyer" magazine editor in chief

Liu Guiming
Today is November 15, 2004, this is a very good day for me. Four years ago today, "Chinese lawyer" was born. So, please teachers, students as we applaud warmly congratulated us, "Chinese lawyer" birthday! In this beautiful night, we're going to talk about is a heavy topic with a sense of mission, that is "the re amendment of criminal procedure law" in this topic. As we all know, this is a difficult topic. We also know, China University of Political Science and Law is China research of criminal procedure law "base", so, today you are the "Al Qaeda" (laugh). Today we China University of Political Science and Law quasi Bar Association have invited a few experts, ready and all the "Al Qaeda" and discuss this problem.

The criminal procedure law should be amended, that is to say the criminal procedure law has encountered very serious, especially the key problem, especially for the lawyer community. Since the promulgation of the current criminal procedure law in 1996, looking back the eight years exposed the problem, mainly four aspects of human rights, procedure, evidence, matter of fact. First we please Tian Wenchang director with lawyers, the problem of amending the criminal procedure law of our country.

Tian Wenchang
As we all know, 1996 revision of criminal procedure law. In the amendment of the criminal procedure law, the most outstanding progress lies in the law of the early intervention. Once the lawyers in the prosecution to accept the Commission, now spans a two stages, from forty-eight hours of investigation began, the lawyer can accept the Commission, meeting with criminal suspect. Is a giant leap the move to China criminal law development history, almost close to the level of the developed countries of the world legal system. At the same time, progress too fast and brought the corresponding problems. Because of the lack of such experience Chinese, changes at the same time, bring a must control the understanding problem, obstruct the investigation of lawyers in the investigation stage, with this understanding, set up many "box" to control the lawyer. In this connection, from the beginning of lawyers, in the practical operation, also appeared a series of obstacles. What is more serious is that, in order to prevent the lawyer to obstruct the investigation, criminal procedure law to increase thirty-eighth, to prevent the lawyer seducing witness perjury. Accordingly, the criminal law increased 306th. So, the lawyer handling criminal cases of the whole situation, appeared the reality than the "promulgated before further back two.".

Because the legislative experience, deviation of concept, essentially because of the reasonable system of our litigation system has not been established, resulting in a series of problems. The revision of criminal procedure law of the strongest appeal, from lawyers and scholars, these problems are mainly embodied in what areas? The lawyer meets with problems, investigation and evidence collection problems, the stage of review and prosecution, witness evidence material file problem and so on a series of problems have not been solved. For example, the lawyer has the obligation to show the information to the defendant, and this kind of behavior is characterized as "leakage", is against the law. The deviation of understanding, the judicial personnel judicial legislation is not clear, so that all the problems are becoming more and more serious. So I say, from the legislation itself overall progress, but because it does not have the operation as well as the legislative process of hidden dangers, in a "very sad phenomenon further back two.".

Can tell you is, the re amendment to the criminal procedure law has already started preliminary, introduced the draft, we present several are also involved in the modification of the research work. Among these, arguments and problems still exist, but I think, as the legislative amendments to speed up the pace, in-depth discussions, and then modify the compared with the original will have greater progress. I hope the students can through my introduction, to learn more about the background.

Liu Guiming
Tian teacher with a very straightforward words sum up the biggest problem of criminal procedure law, "further back two". This is the very image of. The criminal procedure law revised in 1996 has won praise at home and abroad, a, progress is recognized. But happy after, is a bucket of cold water. Visible, the criminal procedure law on lawyers, a lot of questions. We want to hear professor Chen Ruihua to give us a talk about how to solve the problem.

Chen Ruihua
Very pleased to participate in this forum, also thanks to large quasi Lawyers Association for inviting me! Just now Mr. Tian standing in a lawyer's point of view, the macroscopic states the amendment of the criminal procedure law background. He talked more about the changes in the biggest problem facing the defense system of the criminal procedure law.

You are interested can think of such a problem: the revised criminal procedure law caused great repercussions in the world, many Western leaders have praised China made a great progress in some aspects of the criminal procedure law "". But like the criminal procedural law major legal, but seven or eight years have exposed so many questions, worthy of our reflection: why? Nine six years is the amendment of the criminal procedure law in advance? Backward? Or it does not solve the problem China?

Remember that in 2000 when the National People's Congress, judicial examination in criminal procedure law, to seek the views of scholars, four questions in the Criminal Procedure Law: the first is the problem of torture to extract confessions. The second is extended custody. Until last year, extended detention has reached a peak, Guangxi Yulin Xie Hongwu case, was arrested in 1974, and has been closed for 28 years. SARS after the end of last year, the Supreme People's court started the governance of extended custody movement, by the end of last year the problem is considered solved. But over the past two months and a stirring among the dry bones. The third is Mr. Tian said the lawyer rights protection, according to the all China Lawyers Association well documented data, from nine six years up to now, more than three hundred lawyers for various activities to be chained and thrown into prison, one of the most attract sb.'s attention is article 306th of the criminal law. Call three hundred and six for a sword hanging over the bar head, it becomes legal means a few public security organs, procuratorial organs any trace law responsibility. The fourth is for in the process of implementation of the commutation, parole, medical problems. Commutation, parole, medical parole, suggested by the prison, court ruling, without trial, no hearing, no basic defense, is a secret of the black box operation process, which the number of hidden judicial corruption. Why so many people want the damned man immediately method? There are many reasons, the most basic one, Chinese no stage no prison on real significance!

Now that the amendment of the criminal procedure law a big background is what? Since the implementation of the criminal procedure law, many problems and solve. Legal construction process Chinese of more than 20 years, the emergence of the "bottleneck", has been to the most critical moment.

We are interested can understand the trend of judicial reform in recent Chinese. The second half of last year, once appeared the judicial reform. A hot discussion was is whether to build three tiered system, the Supreme People's court shall set up six branch in the country, whether the detention center from the public security organs in stripping out etc.. There is a problem of reeducation through labor. The reeducation through labor is not a crime of the plot of penalty, the penalty term could reach three years. In the recent five years, academic mainstream view, we should cancel the reeducation through labor or for correction of minor offenses, but this year the draft law on Public Security Administration Punishments new is said to still listed as one of the public security organs through legitimate means of punishment. So this year we found, judicial reform has not go, the distribution of power move slightly will touch the Department of public security organs and other organs. Really go now judicial reform can schedule is the death penalty review by the Supreme court.

The judicial system is not reformed today, the amendment of criminal procedural law can't do anything. I give a few examples, just Mr. Tian said lawyer defense system. Today China lawyers in the investigation stage scoring difficult, meet the difficult, difficult, difficult in where? One of the biggest problems is not a neutral third party before the trial, lawyers only to the public security organ, the procuratorial organ is the application meets with marking. You let the lawyers to apply for and his opposite the prosecution, not ask a tiger for its skin? Without judicial review mechanism to maintain the rights of lawyers? Then look at second examples, 1989 administrative litigation law by, is the greatest significance of the administrative punishment behavior can be incorporated into the orbit of judicial review, which is a great progress. Today, administrative action no matter how said of an aged person, after all, a means of judicial relief. The public security organs to the executive, the detention, arrest, detention behavior than administrative behavior depriving people's power is more serious, but no judicial review mechanism. So I said that judicial review of one of the biggest problem today Chinese criminal procedural law is the public prosecution investigation is facing the bottleneck effect. I said the whole criminal procedure law into criminal procedure law cannot be sued, because it does not exist in a way, the act of investigation, procuratorial behavior into the scope of judicial review of the field. The judicial review a few steps forward is unconstitutional review, if there is no special judicial review mechanism, a state organ violates the constitution would have no consequence! Let me give you an example, Chinese now two instance system, basic appraisement is two points: first, cease to exist except in name of first instance! Too horrible to look at. Abstract type read files and notes, ninety-nine percent witnesses do not appear in court, CO defendant does not appear, the victim does not appear in court pronouncing transcripts, one morning to kill a person! Can't open a court session, the second of ninety percent above China meet the defendant, hearing it, read the papers, is solved! The trial is a continuation of the investigation and confirmation, public security organs completely to the interests of the community, but in this case what the retrial system reform? If the first trial did not complete review on real significance, the large number of miscarriages of justice until the second instance court, not to drag the retrial, how to modify the retrial system is of no use. The world provides the retrial is an exception, may not be the procedures and general principles.