The criminal procedure law notes

 

The content of law of criminal procedure revised rich, a total of five series of 290, involving the public, prosecutors, law, company, an all judicial departments, we only relates to the public security organs to work the first, two, and five of the content of common learning. The general part of the first chapter: the aim and basic principles, the second chapter, the third chapter: Jurisdiction: avoidance, the seventh chapter: incidental civil action, the eighth chapter: other provisions, the ninth chapter served little change, with a pen, key learning to change the big fourth (defense and agent), five (evidence), six (enforcement) chapter. Second filing a case, investigation and prosecution in the first chapter of case did not change, the third chapter to initiate a public prosecution and the public security organs little contact, focus on learning the second chapter investigation. The new fifth series of special procedures are introduced.

    (a) to "respect and protect human rights" into the Criminal Procedure Law

Respect for and protection of human rights is an important principle of constitution of our country, embodies the essential requirement of the socialist system. Criminal procedure law to carry out the principle of the Constitution in the program settings and specific provisions. Criminal litigation between the personal freedom of citizens basic rights, to "respect and protect human rights" explicitly written into the law of criminal procedure, is conducive to more fully reflect the socialist nature of our judicial system, but also conducive to the judiciary in criminal procedure to follow and implement the constitution principle. Accordingly, the draft amendment of the second criminal procedure law is amended as: Criminal Procedure Law of the people's Republic of China is the task, to ensure accurate, timely find out the facts of the crime, the correct application of the law, punishment of criminals, to protect innocent people from criminal prosecution, educate citizens consciously abide by the law, actively struggle against criminal acts, safeguard the socialist legal system, respect for and protection of human rights, the protection of citizens' rights of the person, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction.

   Improve the supplementary civil action procedure. Supplementary civil action procedure to effectively resolve social conflicts and disputes, the victim get compensation in time, which plays an important role in. On the basis of summing up the judicial practices, the draft amendment made to add amendments to the supplementary civil action procedure. First, increase provisions: the victim's death or incapacity, his legal representatives, near relatives shall have the right to file an incidental civil action. Two, increase provisions: the plaintiff in incidental civil action or the people's Procuratorate may apply to the people's courts to take preventive measures. Three, increase the people's court shall: incidental civil lawsuit, mediation may be conducted according to the material loss, or judgment, ruling.

Defence and representation

Main content, modification

The current criminal procedure law (96) the first fourth chapters defended and represented a total of 10 (thirty-second to forty-first), after revision, the new Criminal Procedure Law (2012) the first fourth chapters with a total of 16 Defense Agency (New thirty-second to new forty-seventh).

(a), revised 6(now thirty-third, 96 - thirty-third, thirty-fourth - thirty-fourth, thirty-fifth - thirty-fifth, thirty-sixth, 96 - thirty-seventh, the new thirty-sixth 1, 2 - thirty-eighth, the new thirty-eighth - forty-second).

(two), increased 5(the new thirty-sixth, the new thirty-ninth, the new fortieth, the new forty-sixth, the new forty-seventh).

(three),No change in 5(now thirty-second - thirty-second, thirty-seventh - forty-first, thirty-ninth - forty-third, fortieth - forty-fourth, forty-first - 445th,)

Interpretation of the main revised contents of two, associated with the public security organs

(a), change the entrusted people's time and related parties of the obligations

Article thirty-third [entrust his time and all the related parties obligations]

The suspect since the first interrogation by the investigatory organ or coercive measures taken to date, has the right to entrust defenders; in the investigation period, can only be entrusted lawyer. The accused has the right to entrust defenders at any time.

   When the investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, it shall inform the criminal suspect has the right to entrust defenders. The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders. The people's court shall accept the case within three days, it shall inform the defendant has the right to entrust defenders. The suspect, the defendant in custody requests entrust a defender, the people's court, the people's procuratorates and the public security organs shall promptly convey the requirements.

   The suspect, the defendant in custody, also by the guardian, close relatives to entrust defenders.

   The defenders by criminal suspect, defendant after commissioning, it shall promptly inform the court authority.

1, the suspects will be entrusted a defender from the time the "case transferred for examination before prosecution date" to "be swift investigation organ for the first time to ask or to take coercive measures to date".Before the amendment of the criminal procedure law provisions "" thirty-third, "since the case is transferred for examination before prosecution, public prosecution cases, criminal suspects have the right to entrust defenders". At the same time, before the amendment of the provisions of article ninety-sixth, "the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, can hire lawyers to provide legal advice, to its appeal, accuse agent". As can be seen, in the "amendment of criminal procedure law", the criminal suspect is interrogated by investigation organ for the first time or date of coercive measures, also can hire lawyers, but its identity is not a defender, in addition, the change from "the first interrogation by the investigation organ in the" after "". From the law itself, interrogation and coercive measures are measures of investigation, computation of time method to entrust defenders should be the same; from the practice view, entrust defend people need to go through the corresponding formalities, unable to handle at the same time in the course of interrogation, interrogation and significance of first time is very important, usually also very urgent, if etc. the suspect through entrustment to interrogation, often will delay the investigation time. In the interrogation of the entrusted people can completely meet the crime person to exercise the right to counsel.

2, cancelled before the revision of "Criminal Procedure Law" stipulates that the ninety-sixth "cases involving state secrets, the criminal suspect to hire a lawyer, the provisions shall be subject to the approval of the investigation organ", all the suspects can not directly entrust authorized lawyer.

3"The defendant, the case of private prosecution shall have the right to entrust defenders at any time" to "the accused has the right to entrust defenders at any time" more clearly.

4"The time, increase the investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, it should be reported to the criminal suspect has the right to entrust defenders" and "the suspect, the defendant in custody requests entrust a defender, the people's court, the people's Procuratorate and the public security organs shall promptly convey the requirements prescribed", and "the people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders" in the "private" removed, so that the criminal suspect to better realize the entrusted people's rights.

5Increased ", criminal suspects, defendants in custody, provisions may also by the guardian, close relatives to entrust defenders".The suspect, the defendant in custody, inconvenient to entrust defenders, so the need for the guardian, close relatives to entrust defenders.

6"Defense, increases the acceptance of criminal suspects and defendants, the Commission, shall be promptly informed of the case handled by the authorities",In order to facilitate the timely understanding of the situation, do a good job with the defender.

1 mandatory measures, this article shall include detention, bail, residential surveillance detention, arrest five, compulsory measures and not only understood as the arrest, detention, arrest the three deprivation of liberty. Take the guarantor pending trial of criminal suspects, residential surveillance, criminal suspects have the right to entrust defenders.

2, the article "interrogation" refers to a kind of mandatory investigation measure investigators in accordance with legal procedures to words to suspect about the facts of the case.

The provisions of the 3 paragraph, second in the investigation organ, people's Procuratorate, the people's court to inform the suspect or the defendant has the right to entrust a defender, not limit the criminal suspects or defendants in told to entrust defenders, but to the investigation organ, people's Procuratorate, the people's court obligation, even without informing, crime the suspect accused in the indictment, trial stage also may entrust a defender.

(two), change the provisions of legal aid.

Article thirty-fourth [legal]

The suspect, the defendant due to financial difficulties or other reasons, counsel did not entrust himself and his close relatives, toLawAid agencies to apply. To meet the conditions of legal aid, legal aid agencies shall appoint lawyers to defend the.

   The suspect, the defendant is blind, deaf, mute, or is a mental patient who has not completely lost the ability to recognize or control his own conduct, not entrust a defender, the people's court, the people's procuratorates and the public security organs shall notify theLawAid organizations appoint lawyers to defend the.

   The suspect, the defendant may be sentenced to life imprisonment or death, did not entrust a defender, the people's court, the people's procuratorates and the public security organs shall notify theLawAid organizations appoint lawyers to defend the.

1Cancel ", the prosecutor and the case" limit.Regardless of whether the public prosecutor in court, to meet the conditions of legal aid, criminal suspects, defendants can apply for legal aid institutions appoint lawyers to defend them, in accordance with the lawyers assigned to conditions, people's court, people's Procuratorate and the public security organs shall inform the legal aid institutions appoint lawyers to defend the.

2, "the people's court shall designate a lawyer who provides legal aid to defend" to "the people's courts, the people's procuratorates and the public security organs shall inform the legal aid institutions appoint lawyers to defend the".This change will actually provide legal aid stage, extended by the trial stage to the whole criminal procedure including investigation, prosecution stage.

3, adds "has not completely lost the ability to recognize or control his own conduct mental patient" and "may be sentenced to life imprisonment" of the suspect, the defendant's counsel did not entrust, shall inform the legal aid institutions appoint lawyers to defend the.This provision will be designated defense of the object by the blind, deaf, dumb, minors and possible death sentence, extended to include mental patient who has not completely lost the ability to recognize or control his own conduct and be sentenced seven people to life imprisonment. As for the mental patient end to unable to recognize or control his own behavior ability, due to not bear criminal responsibility, but do not need to be specified. The revised "Criminal Procedure Law" in the fifth series of "special program" specially set up a chapter "juvenile criminal procedure, in which an element" 267th special provisions for adult legal aid fails to provide content.

4The designated defense program, "designated by undertaking the duty of legal aid lawyers for the defense" is amended as "shall inform the legal aid institutions appoint lawyers to defend the".This modification is more in line with the actual operating procedures, the people's court to appoint lawyers, should by the legal aid agencies to assign.

(three) to change the defender's responsibility

Article thirty-fifth [Responsibilities] defender

The responsibility of a defender shall according to the facts andLawMaterials and opinions, the suspect, the defendant not guilty, a mitigated punishment or exemption from criminal responsibility, criminal suspects, defendants, safeguard the litigation rights and other lawful rights and interests.

The modification of "Criminal Procedure Law" article thirty-fifth a modified. "The maintenance of criminal suspects, the accused person's legitimate rights and interests" to "protect the suspect, the defendant's litigation rights and other lawful rights and interests", highlights the significance of the litigation rights.

(four), change the investigation stage of the rights of defense counsel

Article thirty-sixth [the investigation stage the rights of defense counsel]

Defense counsel in the investigation period can provide for criminal suspectsLawHelp; complaints, charges; apply for alteration of the compulsory measures; to the investigation organ about the crime suspect guilty and case, put forward opinions.

This is a new provision. This article from the modification of "Criminal Procedure Law" article ninety-sixth, the provisions, can hire lawyers to provide legal advice, to its appeal, accuse agent. If the criminal suspect is arrested, hired a lawyer to apply for bail pending trial "repair, an authorized lawyer shall have the right to the investigation organ about the crime suspected of, and may meet with the criminal suspect in custody, the suspect information related to the case". In this article the provisions after the merger as a separate article, provides the basic practicing rights defense counsel in the investigation period, and make the following modifications:

1The lawyer, who identified as "lawyer", clearly lawyers can exercise his right of criminal suspects.

2", will provide legal advice" to "provide the legal help expand the scope of" help;

3Increase the "provisions, apply for compulsory measures" changes,With the revised "Criminal Procedure Law" stipulates that the ninety-fifth "criminal suspects, defendants and their legal representative, close relative or lawyer has the right to apply for a compulsory measures" change coordination;

4Increase the "opinions", the provisions of.The lawyers in the investigation stage is mainly for the suspect answers to legal questions, the lack of comments from the investigation organ channels, new provisions make lawyers have the right to speak in the investigation stage, help to exercise the right to counsel in the.

(five) to change the program, the content such as the right of lawyer.

Article thirty-seventh [defendants right, communication rights]

The defense lawyer may with the criminal suspect in custody, meet and correspond with the defendant. Other defenders, with permission of the people's court, the people's Procuratorate, may also with the criminal suspect in custody, meet and correspond with the defendant.

   Defense lawyers the lawyer's practicing certificate, certificate and a power of attorney or lawyerLawAid official requirements to meet with the criminal suspect, the defendant in custody, detention house shall arrange to meet, not later than forty-eight hours.

   Crimes of endangering national security, terrorism crime, crime of particularly great bribery case, in the period of investigation lawyer meets with the criminal suspect in custody, it shall obtain the permission of the investigation organ. Of these cases, the investigation organ shall notify the.

   Defense lawyers meet the suspect, the defendant, the understanding of the circumstances of the case, to provideLawConsulting; since the case is transferred for examination before prosecution date, may apply to the criminal suspects and defendants, verify the relevant evidence. Defense lawyers met the suspect, the defendant is not to be monitored.

   The defense lawyer with the criminal suspects, defendants met, communication, applies the first, third, fourth.

1"Defense lawyer, increased to a lawyer's practice certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall promptly arrange meetings, or shall not exceed forty-eight hours.",Thus the investigation by the investigating authorities to arrange the lawyer to visit the suspected criminal practice, replaced by the scheduled to meet

2Increased ", since the case is transferred for examination before prosecution date, may apply to the criminal suspects and defendants, verify the relevant evidence" rules,In the stage of review and prosecution, the lawyer to the verification of evidence right, lawyers the right and the revised "Criminal Procedure Law" provisions of article thirty-eighth of the echoes.

3Prior to the amendment, the "Criminal Procedure Law" stipulates that the ninety-sixth "cases involving state secrets, the lawyer meets with the criminal suspect in custody, shall be subject to the approval of the investigation organ" is amended as "crimes of endangering national security, terrorist crimes, cases of particularly great bribery, check the counsel meets with the criminal suspect in custody during investigation, shall with the permission of the investigation organ. Of these cases, the investigation organ shall notify the".After modification, the lawyer meets with the criminal suspect in custody shall be changed upon approval of the scope of cases, the cases involving state secrets to the crime of endangering national security, terrorist crimes, especially students in three cases of bribery crime. At the same time, whether to belong to the three category of cases, the investigation organ shall notify the three category of cases. At the same time, whether to belong to the three category of cases, the investigation organ shall notify the detention center, not only the lawyers met.

4Provisions, "defense lawyer met the suspect, the defendant is not to be monitored".Before the revision of "Criminal Procedure Law" ninety-sixth article "the lawyer meets with the criminal suspect in custody, the investigation organ according to the circumstances of the case and the need to staff at the scene," the revised provisions were cancelled, and a meeting was not listening.

5Increased, "defense lawyer with the criminal suspects, defendants, communication meeting, the first paragraph applies, section third, clause Fourth" provisions.Since the revised "Criminal Procedure Law" to residential surveillance application objects and bail with distinction, modify the conditions of arrest for criminal suspects, therefore met with in the law, the basic rights, approved by the scope of the case and the criminal suspect in custody, accused of the same.

(six), changes of rights lawyer other defenders, consult, extract, copy files materials.

Article thirty-eighth [defender marking the right]

Defense lawyers of the people's Procuratorate date, consult, extract, copy the file material. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material.

This article on the modification of "criminal procedural law" the thirty-sixth paragraph first, paragraph second of the relevant content of the merger and modify. Before the revision of thirty-sixth provisions of the first paragraph: "lawyers of the people's Procuratorate date, consult, extract, copy the file documents, technical identification of material, can meet with the criminal suspect in custody and communication. Other defenders, with permission of the people's Procuratorate, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the criminal suspect in custody". The second paragraph: "defense lawyer since the day the court handles the case, consult, extract, copy the case of the facts of the crime accused materials with the defendant in custody, can meet and communication. Other defenders, with permission of the people's court, may also consult, extract and duplicate the above-mentioned material, meet and correspond with the defendant in custody". After the merger, will be able to consult extract, copying materials from the stage of review and prosecution "litigation documents, technical materials and identification of" trial "in the case of the facts of the crime accused materials" unified "archives" in fact expanded defender scoring range.

1, the materials include: (1) the litigation documents, mainly has "warrant", "warrant", "warrant", the public security organs prosecution submissions (seizure, freezing, seizure of property list etc.). (2) the technical verification material, the means to solve specific problems in the investigation of the experts, expert opinion by the investigation organ designated or hired for special issues, such as identification, identification of mental diseases, price evaluation etc.. (3) other evidence, including evidence, documentary evidence, testimony of witness, the suspect's confession, statement of the victim, audio visual inspection, inspection records, data, the form of electronic data and other evidence.

2, the defense lawyers in the investigation stage may not consult, extract, copy the file material, can only know about the suspect alleged crimes and cases.

(seven), provides an increase of defenders, an application to the public security organs, people's Procuratorate investigation and evidence obtainment of rights.

Article thirty-ninth [a defender for authority to obtain evidence

The defender believes in the investigation, prosecution, public security organs, people's Procuratorate collected during the prove the criminal suspect, defendant not guilty evidence not submitted, shall have the right to apply for access to the people's Procuratorate, the people's court.

This is a new provision. Before the revision of "Criminal Procedure Law" only provides defenders, apply to the people's Procuratorate, the people's court to the relevant units or individuals access the relevant evidence; the new increase of the provisions of this article, the defendants have the right to apply for the relevant evidence to the public security organs, people's procuratorates. To prevent the people's Procuratorate, public security organs, not submitted to prove the criminal suspect, the defendant innocent or guilty evidence.

1During the period, should be understood correctly the defender for obtaining of evidence right exercise.In this section "in the investigation, prosecution period", is refers to the public security organ, the people's Procuratorate to collect evidence of time, rather than the defenders to apply time. From the provisions of view, only the review proceedings and trial period the people's procuratorates the public security organs, only need to submit relevant evidence, therefore, advocate for obtaining the relevant evidence should be during the prosecution or trial.

2, the public security organ, the people's Procuratorate to collect evidence on the spot, both prove the guilt or innocence of the criminal suspect, heavy or light offence crime evidence should be collected, and incorporated into the file, transferred to the people's court.

(eight), increased the defender for duty collection of criminal suspects innocence or not to bear criminal responsibility evidence rules.

Article fortieth [counsel for specific evidence of informing obligation]

The defending suspects were collected not at the scene of the crime, does not reach the age of criminal responsibility, mental patients belongs to not bear criminal responsibility in accordance with the law of evidence, it shall timely inform the public security organ, the people's procuratorate.

This is a new provision. The suspect is not at the scene of the crime, not to age, mental patients belongs to civil liability shall not bear criminal responsibility according to the law of evidence, can be used to prove the criminal suspect guilty or not to bear criminal responsibility. According to the "Criminal Procedure Law" in article fifteenth, no criminal responsibility, have been held, it shall revoke the case, or not to prosecute, or termination of the trial, or declared innocent. The lawyer shall timely inform the public security organs such evidence, the people's Procuratorate, helps to identify the facts of the case, to do with "criminal procedural law" the provisions of article fifteenth, should be timely termination of criminal proceedings, revoke the case or not to prosecute, to avoid the rights of criminal suspects cause more damage, but also save the judicial resources. If the defender deliberately hide such evidence, engage in surprise attack in court, although be taken by surprise by the public prosecutor, the court had a dramatic effect, but the procedure is upset, that is a waste of judicial resources, but also makes the early release of criminal suspects were detained or tried for longer periods of time, this kind of practice is contrary to the law the principal's interests, the revised "Criminal Procedure Law" stipulates the lawyer's obligation to inform.

(nine), defense lawyers and other defenders in criminal proceedings in the prohibited behaviors, the relevant legal responsibilities and accountability procedures.

Article forty-second [not interference action obligation, legal responsibility and the defender of the suspected criminal case investigation

Counsel or any other person, shall help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs.

   In violation of the provisions of the preceding paragraph, shall be investigated according to lawLawResponsibility, defendants suspected of a crime, the case shall be undertaken by outside counsel for the investigating authority. The defender is a lawyer, it shall timely notify the law firm or the lawyers' association.

1, "defense lawyers and other defenders" is amended as "counsel or any other person",The object of this standard expanded by a defender to any identity, status, so as to avoid the imbalance separately on defenders demand phenomenon.

2Increase the "defender, suspected of a crime, shall be provided for other cases" undertaken by handling the defender of the investigating organ,To prevent the unfair problems for defenders by case investigation organ for the case may occur.

3Increase the "defenders, lawyers, provisions shall timely notify the law firm or the lawyers' Association",For the law firm or of the bar association to keep abreast of the situation.

(ten), increased the confidentiality provisions and exceptions of rights lawyer.

Article forty-sixth [privacy rights lawyer and the specific criminal duty]

And information about the lawyer client known in practice, have the right to keep confidential. However, defense lawyers in the practice activities, aware of the client or other people, or are being implemented to endanger national security, public safety and serious endanger the personal safety of the crime, the judicial organ shall timely inform the.

This is a new provision. "Lawyers Law" thirty-eighth stipulates: "a lawyer shall state secret, trade secret aware of activities in the practice, the parties shall not disclose privacy. The principal lawyer known in practice activities and other people do not want to reveal the situation and information, shall keep confidential. However, the client or other people for or are in the process of implementation of endangering national security, public safety and other serious endanger personal and property safety, criminal facts and information except". The revised "Criminal Procedure Law" provisions of the basic law "absorption", solved the lawyer client confidentiality and safeguard the interests of the state, the contradiction between the public interests and the interests of others, also in accordance with the existing laws on the civil duty of testifying connected. Confidential duty counsel is the nature of the occupation, is a lawyer's rights are the legal obligation and contract obligations, even if the contract is not agreed confidentiality responsibility, lawyers also cannot be exempt from the duty of confidentiality. The lawyer to secure rights, because for lawyers in the defense business, will inevitably have to understand and grasp the client's information, some information may be the case of evidence required to testify, if out of this information needs to be on the judicial organ or administrative organ, damage the interests of the clients. However, the right to confidentiality of lawyers is not absolute, in the interests of clients and the state, civil society, personal security between the need to weigh, the client or any other person or being implemented to endanger national security, public safety and other serious endanger the personal safety of the crime, the revised "regulations the criminal procedure law" lawyers have the obligation to inform the judicial organs, so as to realize the balance of interests between the two.

(eleven), increased provisions the defenders and agents ad litem, complaint, accusation and complaint, accusation rights program.

Article forty-seventh [the defenders and agents ad litem, the appeal, the right of complaint

The defenders and agents ad litem, think that the public security organs, people's Procuratorate, the people's court and its personnel impede their exercise their litigation rights according to law, have the right to sue to the same level or the people's Procuratorate at a higher level to file a complaint or. The people's Procuratorate to appeal or accusation shall timely carry out the examination, is the case, notify the relevant authorities to rectify.

This is a new provision. Defense system and the litigation system is an important part of the criminal procedure, is an important safeguard the legitimate rights and interests of the parties. In practice, due to the role of ideology, part of the judicial staff on the defenders and agents ad litem, the wrong understanding, think the defender for the "bad guys" to speak, exculpatory, thus hinder the exercise of their litigation rights in accordance with the law, affect the criminal suspects and defendants, victims and other parties, the legitimate rights and interests. Therefore, the increase of the defenders and agents ad litem, may provide the perform their duties according to law behavior is blocked to the procuratorial organs complaints, charges.

              CardAccording to

A provision, changes

The current criminal procedure law (96) the first fifth chapters of evidence were 8 (now forty-second to cross forty-ninth), after revision, the new Criminal Procedure Law (2012) the first fifth chapters evidence of a total of 16 (the new forty-eighth to new sixty-third).

(a) revised 5(now forty-second - forty-eighth, forty-third - fiftieth, forty-fifth - fifty-second, forty-sixth - fifty-third, forty-seventh - fifty-ninth)

(two) increased 8(the new forty-ninth, the new fifty-fourth, the new fifty-fifth, the new fifty-sixth, the new fifty-seventh, the new fifty-eighth, the new sixty-second, the new sixty-third)

(three) did not change 3(now forty-fourth - fifty-first, forty-eighth - sixtieth, forty-ninth - sixty-first)

The main contents of the two, modified

1, revised the concept and types of evidence evidence(now forty-second - forty-eighth)

The main is to expand the scope of legal evidence:

One is theThe concept of criminal evidence from the original "all facts that prove the true circumstances of a case" is amended as "can be used to prove the facts of the case materials", to be more precise. The evidence itself is not a fact, but all kinds of materials, such as words, stolen goods, tools of physical evidence or testimony of witnesses, expert opinion evidence. Equating evidence to the fact, and it is proved the truth of the case fact, may in practice lead to not verified that easily exclude many don't think the evidence. But the evidence is defined as a material, it can be more evidence in the litigation process, after the verification of its, and then determine whether as verdict.

TwoThe original seven kinds of evidence for more than eight changes. "The evidence will have the following seven:" to "evidence consists of:" (a), and the provision of "material evidence, documentary evidence" is divided into two, as a separate category of evidence, has enumerated eight kinds of evidence. For "including" scholars have different understanding, and some thought it was only includes eight types of evidence cited, others "including but not limited to". In the "criminal law" the revision process, there have been many opinions to cancel the provisions of evidence, the concept has first kinds of evidence is sufficient, in line with the concept of evidence, it can be used as evidence, there is no limit to the necessary types of evidence, but there will be constraints on practice. But in the end, the legislature or the maintenance of the existing style. Although the revised "Criminal Procedure Law" lists eight kinds of forms of evidence, but this change does not mean that the only evidence of eight types, if new evidence discovered in the future, can explain the form of legislation, and determine its status as a legal evidence form.

ThreeIncrease the "electronic data" the new forms of evidence. In the current digital application is becoming more and more common situation, electronic data in the judicial practice has been widely accepted as a form of evidence, particularly in the implementation of the system, computer, Internet crime, electronic data is the essential form of evidence.

FourIncreased recognition, Investigative Experiment record. Before the revision of "Criminal Procedure Law" only provides an inquest or examination, two kinds of transcripts, and investigative activities in the record of many forms, the modified relaxation of the transcripts of the range, more in line with the need of practice.

FiveThe "conclusion" to "expert opinion", more scientific, standard definition. Any evidence needs to be verified before becoming the basis, and the conclusion of appraisal is easy for people without verification can be an issue to conclude the wrong impression, modified for expert opinion, identified by the expert advice on specific problems, rather than the conclusion.

2Added, "no person shall be forced to prove their crimes"(now forty-third - fiftieth)

In the current criminal procedure law article forty-third prohibition of torture to extract confessions, adding "no person shall be forced to prove their crimes". "Confirm his guilty", refers to the confession, or some other prove he committed a crime evidence.

"You have the right to remain silent, but everything you say will be the evidence", it often appears in the gangster films in Europe and america. But in our country, this catch scene never, because our country has not the right to silence rules. The criminal procedure law overhaul, the new "no person shall be forced to prove their crimes", Is it right? Implies that in the future in the face of criminal investigation, the suspect has the right to remain silent?

To this one view, many legal person is the same feeling, has the very good declaration and theoretical significance on one hand "". But in practice, if the suspect refused to answer some questions, in fact he can silence, can this against some dilemma in investigation.

But the criminal procedure law and regulations, criminal suspects to investigators interrogation shall truthfully answer. In the end be able to completely keep silent? These two provisions contradictory?

Lang Sheng, deputy director of the NPC Legislative Affairs Commission of the understanding is clear, "no person shall be forced to prove his guilt" in mind, in order to further curb possible torture to extract confessions, and truthfully answer is starting from Frank's point of view, if the criminal suspect truthfully answer questions, confessed the crime, will be lenient processing. No contradiction between the two.

3Increased administrative organs, collected in the administrative law enforcement and case handling of evidence in criminal procedure, can be used at the same time, the evidence; the scope of confidentiality involves state secrets evidence to "state secrets, commercial secrets, personal privacy"(now forty-fifth - fifty-second)

This mainly refers to the provisions of the State Council "administrative law enforcement organs to transfer suspected criminal cases of regulations", the administrative organ in the transfer of suspected criminal cases, material evidence, documentary evidence, audiovisual materials, electronic data evidence materials shall be handed over to the case can be in criminal proceedings as evidence effect. 　　　　　　　

According to the "Regulations" administrative law enforcement organs to transfer suspected criminal cases, administrative law enforcement organs in the process of investigating illegal behavior, find illegal facts the amount involved, illegal facts and circumstances, consequences of the illegal act, according to the criminal law provisions, suspected of a crime, shall be investigated for criminal responsibility according to the need, should be transferred to the public security organ in accordance with the law.

Administrative law enforcement organs to public security organs to transfer suspected criminal cases, shall be accompanied by a suspected criminal cases to the book, the circumstances of the case investigation report, the list of items, the inspection report or expert opinion, other documents concerning the suspected crime, but for the collection of administrative law enforcement organs materials can be used as evidence in the criminal procedure, not specified. In practice, generally require the public security organs of the relevant materials of conversion, namely into the public security organs to collect, obtaining evidence, not only time-consuming and laborious, but also some materials by objective conditions or time to convert. This amendment provisions added to solve this problem, greatly improving the efficiency of lawsuit. In the revised "Criminal Procedure Law" provisions "in the process of material evidence, documentary evidence, used as evidence of administrative organs collected in the process of administrative law enforcement, the judicial organs shall verify, can be used as evidence", namely judicial authority to verify the administrative organs collected material, can be used as evidence, and revised "criminal procedure method" eventually removed the "after the judiciary check" conditions. Administrative organs as the state organs, the exercise of administrative law enforcement in accordance with the law, the collection of evidence, and the investigation organ shall collect evidence also have evidence qualification, as such evidence can be considered as a basis for a final decision, but also with other evidence investigation and verification.

In particular, when the evidence refers to the evidence, documentary evidence, audiovisual materials, electronic data, not including verbal evidence. In addition, the public security organ for handling according to law to the administrative organ, obtain evidence can also be used as evidence.

4Clearly, the standard of criminal proof(now forty-sixth - fifty-third)

For a long time, we in the handling of criminal cases, for fear that "no punishment in doubt case" will indulge crime, accustomed to the "presumption of guilt", to doubtful cases tend to"The two basic"The facts of the case, thus appeared a lot of miscarriage of justice. "Two basic" is put forward in 1983 the "strike hard" policy of the criminal policy, i.e."The basicThe facts are clear,The basicSufficient evidence ", the two can judgment. On April 4, 2001, General Secretary Jiang Zemin put forward the law department must unify the thought, in the national public security work conference to strengthen coordination, form resultant force to be, from the crime, as long asThe basicThe facts are clear,The basicIrrefutable evidence, then faster detective v.fast sentence, don't get bogged down in all the minor details on the issue, delay time. In April 7th, the Supreme People's Procuratorate issued "on actively participate in the" strike hard "campaign and rectifying and standardizing the market economic order work opinions", the "two basic" clearly defined as"The basicThe facts are clear,The basicIrrefutable evidence. In April 13th, the highest law issued "on the implementation of the national security work conference of the notice", will"The two basic"Expressed as"The basicThe facts are clear,The basicSolid evidence"."The two basic"The intention is to in the case not cases all the minor details, prevent long, but implementation has gradually become "factThe basicClearly, evidenceThe basicFully ", if use the traditional judicial idea, judicial thinking, will reduce the evidence standard, hastily finalized, it is difficult to avoid the misjudged case, case.

In fact, the current criminal procedure law the 162nd regulation, the standard of proof of criminal cases in China is "the case facts are clear, evidence really fully". But this is only a general, overall requirements, does not contain measurable specific, operational method, and the lack of evidence in the legislation system and procedure guarantee complete, resulting in many disputes in practice. Therefore, in 2010 June three houses issued "on handling death penalty cases reviewed to determine the rules of evidence problems", to "evidence really fully" the standard of proof to be refined, in fifth specific provisions of the five standards.

But this time the amendment of criminal procedural law, not completely absorbed three houses "for death penalty cases reviewed to determine the provisions of evidence" of the provisions of article fifth, but mainly from the provisions of the preceding three paragraphs, provides evidence that, fully shall meet the conditions, which is the collection of evidence shall be the standard of proof at. Specifically, there are three aspects:

(1) the conviction and sentencing facts have evidence. According to the "Regulations on handling death penalty cases reviewed to determine the" issues of evidence of the provisions of article fifth, mainly refers to the following seven aspects: first, the facts of the crime accused the defendant; the implementation of crime in crime and the accused of time, place, means, consequences and other circumstances; status the influence of convicting defendant; the defendant has the capacity of criminal responsibility; the defendant's guilt; and whether the effect of joint crime and the accused in the crime status, the defendant shall be given a heavier punishment; in fact.

(2) according to the verdict evidence are verified by the statutory procedures. The evidence is an important principle in the criminal litigation, "about the death penalty cases reviewed to determine the rules of evidence problems" the fourth stipulation: "the exhibits, identification, quality certificate, court investigation procedures verified evidence, can be used as the basis of the conviction and sentencing." The provisions of this article and the provisions of the same spirit, embodies the evidence principle.

(3) the comprehensive evidence of the case, the fact is beyond reasonable doubt. "Beyond reasonable doubt" as a part of the standard of proof, the relevant legal provisions in criminal procedure is the first time. Although the current "Criminal Procedure Law" for what is reasonable doubt and how to achieve the "beyond reasonable doubt" no further provisions, but in practice the implementation of the standard of proof in the common law countries, "beyond reasonable doubt" standard should be lower than that of all the facts of the case are to achieve the objective truth standard. The countries of Anglo American law system claims, identify the criminal fact is impossible to achieve the objective truth degree of, guilty for the accused, should reach the degree of "beyond reasonable doubt".

In practice, how to understand the "reasonable doubt", the mainstream view, "reasonable doubt", refers to the fundamental of a normal and rational people based on their knowledge and have not sure the opinions of authenticity, sometimes described as not feel real to the extent of that charges be convinced. Determination of the standard of the crime facts and criminal behavior to certain extent, beyond reasonable doubt, from positive (positive) angle to achieve inner certainty, from negative (negative) angle to do beyond reasonable doubt that the only conclusion. Standard of "beyond reasonable doubt", is "the case facts are clear, evidence really fully," standard anti complement, make our country criminal standard of proof is more perfect, scientific, reasonable, and more operational in practice.

5The exclusion of illegal evidence system

The current criminal procedure law to prohibit torture to extract confessions and to collect evidence by other illegal methods to make some fundamental rules. In order to further curb torture to extract confessions and other illegal evidence collection behavior from the system, safeguard judicial justice and criminal lawsuit participates in a person's legitimate rights, it is necessary in the law to the exclusion of the illegal evidence make clear provisions. Accordingly, the new criminal procedure law in addition to the base in the prohibited torture to extract confessions of the increase, "no person shall be forced to prove their crimes". At the same time, the relevant content from the two part of "two rules", and on this basis made more stringent requirements: in the fifty-fourth paragraph first kinds and cases of illegal evidence should be excluded, including verbal evidence and physical evidence of two categories, respectively, have different exclusions.

(1) shall be evidence exclusion include three kinds: ① using torture to extract confessions and other illegal methods to collect the confession of the suspect, the defendant. Using violence, threats and other illegal methods to collect the testimony of witnesses. The victim stated that the collection of violence, threats and other illegal methods.

(2) the collection of physical evidence, documentary evidence does not meet the statutory procedures, may seriously affect judicial justice, the investigation organ shall make corrections to the evidence or violation of statutory procedures for collecting evidence for reasonable explanation. If no correction or although explained, but the reason is not rational, the evidence should be excluded. How to understand "seriously affected the judicial justice". For the material evidence, documentary evidence, material evidence illegally obtained whether to exclude, and there are more controversial, in judicial practice, if we exclude the physical evidence of real content, and therefore can not be for defendants convicted, may cause the victim and the social public controversy. Therefore, as is expanded explanation for "serious influence judicial justice" is not, in general should be understood as the serious violence, intimidation of witnesses or other people, a serious violation of personal rights, or have been verified to determine the illegal collection of evidence, documentary evidence false content have great influence on the justice. If only collection procedures, defects, should be resolved through correction or explain.

The second paragraph should be excluded evidence found in each stage of criminal procedure, should be excluded in accordance with the law, shall not be used as prosecution, prosecution and judgment basis. The public security organs, people's Procuratorate, the people's court shall have the duty to discover and exclusion of illegal evidence exclusion of illegal evidence, not to be in the process of trial. In the production of "the prosecution of submissions", "complaint", "the verdict", cannot adopt illegal evidence. 　

In addition, to prevent the system from the acts of torture to extract confessions, added provisions of detention, arrest promptly after 24 hours to send house of detention, interrogation and interrogation recording system in the detention center. (the new eighty-third, the new ninety-first, the new 120th)

The past is strictly prohibited provisions of torture to extract confessions execution is not good, because the illegally obtained confession as evidence. Therefore, the law focus on eliminating illegal evidence rules, but also provide strict strict, evidence collection procedure. This will be an important role in curbing torture to extract confessions from. To prevent and stop the torture to extract confessions and other illegal evidence collection behavior from the system, to safeguard judicial justice and criminal proceedings in the legitimate rights of security.

6The witness range(the new fifty-seventh, the new fifty-ninth, the new sixtieth, the new 187th, the new 188th)

Witnesses to testify in court, to verify the evidence, to find out the case, it is significant to correctly judge. According to the provisions of the new criminal procedure law article fifty-seventh, article 187th, article 188th, the witness has the following conditions:

One is theThe matter to the people's procuratorate. The existing evidence can not prove the legitimacy of evidence collection, the people's Procuratorate may petition the people's court to inform the relevant investigation or other personnel to appear in court to explain the situation.

TwoInvestigation personnel requirements. The investigation personnel or other personnel also may request the court to explain the situation.

ThreeTo appear in court for evidence. The public prosecutor, the defender, agent ad litem or on the testimony of witnesses have objections, and the testimony of witnesses have a significant impact on the sentencing, the people's court that the witness should testify in court, witnesses should appear in court.

FourThe police witness. The people's police crime witness its duty as a witness to testify in court.

FiveThe people's court shall notify. The people's court may notify the relevant investigation or other personnel to appear in court to explain the situation. After the people's court shall notify the relevant personnel shall appear in court.

SixMandatory court. The witness did not testify in court without justified reasons, the people's court may enforce the court; for if the circumstances are serious, shall be approved by the president, detained for ten days following.

Taking into account the spouse, parents, children are forced to testify against a defendant in court, not conducive to family relationship, apply mandatory court, unless the defendant "spouse, parents, children". This one is the legal profession praised as "concealment" system, almost toppled before has been advocated by the "loyalty" concept. Next of kin witness generally exists in return, surrender and other sectors, such as theft, criminal suspects stole a mobile phone, he put the mobile phone to his wife, the wife in the police investigation, admit from the husband got such a mobile phone, actually also to crime the suspect to make a testimony. In reality, starting from feelings, most of the suspects close relatives are not willing to testify. This eliminates the next of kin to the compulsory duty to testify in court, conforms to the human nature and China traditional culture. However, "concealment" where to draw the line? "Concealment" can not be understood as can be fabricated facts of helping him to escape the legal sanction, "hidden" bottom line is not against the law, such as the crime of shielding. But in the exempt from obligation to testify degree of understanding, there are some differences. Some think, should be strictly in accordance with the provisions of the criminal procedure law, exempt from just next of kin to the compulsory duty to testify in court, told investigators asked, next of kin or shall truthfully provide the. Also some thinking that, if the good understanding of the legislative intent, close relatives of the obligation to testify, the case shall be exempted from.

7To strengthen the protection of witnesses

The current criminal procedure law article forty-ninth (new article sixty-first) has been provided for protection of witnesses and their close relatives in terms of "the people's courts, the people's procuratorates and the public security organs shall guarantee the safety of witnesses and their near relatives. The threat of witnesses and their close relatives, insult, assault or take revenge, which constitutes a crime, shall be investigated for criminal responsibility according to law; not serious enough for criminal punishment, the public security administration punishment law." In addition, the "criminal law" the 306th paragraph first of the defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crime, the first paragraph 307th stipulates the crime of obstruction of evidence, 308th special provisions take revenge witnesses. In addition, the implementation of threats, insults, beatings and other behavior of witnesses and their close relatives, if the circumstances are serious, it may constitute the crime of insulting, the crime of intentional injury crime. In practice, against a witness or his near relatives the right behavior may have more serious cases, such as murder, arson, explosion, such as throwing dangerous substance, although not specifically mentioned in this article, but should be in the range of the ban, and shall be in accordance with the "criminal law" the relevant provisions of the criminal responsibility. "Public Security Management Punishment Law of the people's Republic of China" the forty-second stipulation: "one of the following acts, to five days detention or a fine of five hundred yuan; if the circumstances are relatively serious, place below for more than five days to ten days detention, and may concurrently impose a fine of five hundred yuan of the following: (a) write letters of intimidation or threats of others security by other means; (two) an affront others or fabricating facts to slander others; (three) fabricating facts to frame others, attempt to make the person subject to criminal penalty or a penalty for administration of public security; (four) the threat, insult of witnesses and their close relatives, beating or take revenge; (five) transmitted multiple times obscene, insulting, threatening or other information, disturb the normal life of another person; (six), the tapping, spread, peeping privacy." Rule forty-third: "beating others, or deliberately hurt others body, place the following more than five days to ten days detention, a fine of two hundred yuan five hundred yuan fine; if the circumstances are relatively minor, five days detention or a fine of five hundred yuan of the following. Any of the following circumstances, department for more than ten days to fifteen days detention, a fine of five hundred yuan one thousand yuan fine: (a) Gang beating, harm to others; (two) the disabled, pregnant women, beating, hurt people under fourteen years of age or over the age of sixty people; (three) repeatedly beaten, damage a person or an injury more beatings, the."

In order to further strengthen the protection of witnesses and appraisers, the victim, the new criminal procedure law sixty-second stipulation: "the crime of endangering national security, terrorism, organized crimes of the underworld crime, drugs, the witnesses and expert witnesses, victims when testifying in court, he himself or his close relatives. Personal safety risk, the people's court, the people's procuratorates and the public security organs shall take the following one or multiple protection measures: (a) the personal information is not public real full name, address and work units; (two) take not to expose the appearance, voice of such witness measures; (three) persons are prohibited from contacting witnesses, specific the expert witnesses, victims and their close relatives; (four) to take special protective measures for personal and residential; (five) other necessary protective measures."

One is theExpand the protection object. Expanded from the witnesses and their close relatives to identify people, advocate.

TwoThe protection measures. Measures five: (1) individual information is not publicly real full name, address and work units. This refers to the individual information in all aspects of the files of the case in the testimony of witnesses, expert opinion, interrogation record and other relevant legal documents and in the investigation, prosecution, trial, shall open the witnesses and expert witnesses, victims and their close relatives of real name, address, work units, can be taken using a false name, false false address, work units, can also use alias or mark instead of. But this special instructions, stored separately as confidential, and the case according to the need for public security organs, people's Procuratorate, the people's court, can understand the real situation of the personnel to consult. Without approval, any other irrelevant personnel must not access. (2) take not to expose the appearance, voice of such measures to testify in court. In practice, can use the technology and equipment of indirect questioning the witnesses and expert witnesses, defendants, or make it in a concealed position to accept testimony. The sound can be changed by technology and equipment. (3) prohibited personnel contact, specific identification of witnesses, victims and their close relatives. "Specific person", refers to the organized crime, criminal suspects have a certain relationship and may endanger the witnesses and expert witnesses, victims and their close relatives the personal safety of the staff. "Contact", should be understood in order to maintain the nearer distance and the witnesses and expert witnesses, victims and their close relatives. (4) to take special protective measures for personal and residential. This refers to send specialized personnel to protect the object I and residential patrol, guard, can also be used for video surveillance, prevention of organized crime, the criminal suspect or the instigation of people against the protection object or illegally entered the house. (5) other necessary protective measures. Necessary for the protection of all witnesses and expert witnesses, victims and their close relatives of the personal safety, legal license implementation measures, can take, such as changing the identity, address etc.. To change the appearance of foreign even way, but the high cost of these practices, can consider to the special major cases and particularly serious circumstance use.

ThreeThe provisions of the relevant units and individuals with obligations. The case handling organ in banning personnel contact, specific identification of witnesses, victims and their close relatives, to take special protective measures and change the identity, address and other measures for personal and residential, with the need to protect the object units, schools, residential property management departments, banks, medical treatment, social security and other departments, the relevant units and individuals shall, according to the requirement to cooperate.

FourThe scope of application is not limited to the crime of endangering national security, terrorism, organized crime, drug crime, this four kinds of crime. A range of cases in the above terms such as "", because of the protection measures need to spend a lot of manpower, material and financial resources, the general can only take in the important case. But in the case handling organ to perform its duties of protection point of view, should be understood as not limited to this four kinds of crime, usually with these four types of criminal procedure, according to the case, really need to take protective measures in the case, can be included.

8The burden of proof, the legality of evidence in the prosecution(the new forty-ninth, the new fifty-seventh)

The new criminal procedure law forty-ninth stipulation: "the burden of proof of defendant's guilt in the public prosecution cases shall be borne by the people's Procuratorate, the burden of proof of defendant guilty the case of private prosecution shall be borne by the private prosecutor." Article fifty-seventh stipulates: "the process of the court investigation in the legitimacy of evidence collection in, the people's Procuratorate shall on the legitimacy of the evidence collection proved."

The burden of proof, is a basic system of civil law and in the law of evidence, is refers to the judicial organ or the parties shall collect or provide evidence of the facts of the case or to claim responsibility; otherwise, will assume its cognizance, claims that cannot be established risk. The burden of a party, need to provide evidence of the facts of the case or claim to prove; not a party shall bear the burden of proof, not present evidence that the other party said the fact that does not exist or other claim does not hold. The burden of proof includes two meanings: one is the burden of proof; the two is not proof should bear the adverse consequences of responsibility, this is also the essence of the burden of proof. The increase of such provisions, especially to clear the prosecution to bear the burden of proof the validity of evidence, mainly in the following three reasons:

One is theIn line with the basic principles of the prosecution in criminal proceedings bear the responsibility to prove the defendant guilty. Any of a criminal case, the prosecutor must prove the defendant guilty responsibility, which in addition to prove the facts of the crime accused, should also prove that the facts of the crime evidence to prove the legitimacy. In the proceedings, the defendant present pretrial confession does not have legitimacy, which is essentially the prosecution claims of pretrial preparation oral confession legitimacy in denial, the accusing party should bear the responsibility to provide evidence, the legitimacy of evidence from unknown when the court must decided in favor of the defendant, the cannot exclude illegal evidence exclusion of evidence in the decision according to the possible addition.

TwoAccording to the practice, advocated positive action (sure) that bear the burden of proof, and negative (negative) fact into the proceedings do not have to bear the burden of proof. According to this principle, in criminal proceedings, prosecutors general as forward actively pursue the defendant guilty plea to one party, also must be sufficient facts to demonstrate, so, for that the evidence itself legitimacy, important part must belong to demonstrate active request, but the defendant presents evidence of illegal objection, which belongs to the negative (negative) fact, of course, without liability to prove the final.

ThreeAbility of proof proceedings in the stronger party should bear more of the burden of proof. In criminal proceedings, the prosecution on behalf of the state prosecution of crime, powerful capacity is far greater than the defendant, burden of proof. Control the defendant will generally in the investigation and prosecution, and defendants often lack the necessary legal knowledge and skills to obtain evidence, in comparison, the prosecution has the obvious advantage. Comparison of the power of the poor situation decided to prove the validity of their own behavior in the prosecution trial burden will.

The application of coercive measures

 

A,  Summon

 

Summon, refers to the criminal suspect, the defendant to the "law of criminal procedure" place for questioning by coercion.

[] general comments

A warrant is the compulsory measures against the restriction of personal freedom in the slightest, in this revision, summon time from the original 12 hours, extended to 24 hours, it is to strengthen the security of the power of investigation, the public security organ for handling the case will ease the tension in a certain extent, a powerful upgrade public security agencies to fight crime efforts.

[understanding]

1, this article shall summon to 24 hours of conditions: one is "the case particularly significant, complex", two is the need to take the detention, arrest. Only two available at the same time, summon to more than 12 hours. Among them, how to define "the major complex", there is no clear legal interpretation, need to relevant departments according to the actual situation of decided cases. At the same time, from the legislative spirit, extended to 24 hours of objective, is to meet the need of detention, arrest related preparation work, therefore this article "needs", should be understood as the case handling department "need", but is not required to produce the detention, arrest results. Of course, this "need" is not arbitrary, but must be based on facts and evidence, on the conditions of detention, arrest to measure the judgment.

2, the duration of detention shall not exceed 24 hours, is the longest time, rather than meet the conditions must be 24 hours before the end of. In practice, if we can complete the interrogation and the relevant legal procedures in a shorter period of time, it should be finished as soon as possible, avoid meaningless, punitive person limit, this is also a concrete manifestation of the protection of human rights.

[] execution

1,Summon the specific applicable conditions. "Criminal Procedure Law" provisions of the applicable conditions reported No. The premise of application, is for the first time in the investigation stage, apply to subpoena shall be there is evidence or clues, objects need to summon the existence of crimes suspects, but the application of coercive measures detention or arrest warrant is not enough conditions, if measures are not taken, the criminal suspect may flee, hide or destroy evidence hamper the action smoothly behavior. The second and subsequent summons, review at the stage of investigation, prosecution and trial stages warrant warrant, practice is generally based on the needs or criminal suspects, defendants are not suitable to the situation after the subpoena.

2,"Need to diet, rest time" grasp. In practice, "necessary food" are defined, but each suspect's individual characteristics, should let the suspect how long will take a rest during the period of compulsory summon, a break with "long needed rest" standard, it is difficult to define. However, in the rest, it is the most prone to problems of local practice. Long time not to rest, such as 24 hours at a time without any rest, or rest time is very short, is suspected of alleged torture, directly affect the effectiveness of the interrogation record evidence. In this respect, can consult the foreign practices, the suspects will be rest, diet records in the transcripts of interrogation, the suspect signed and confirmed by the.

 

Two,  Bail

 

Bail, is refers to the public security organ, the people's Procuratorate, the people's court shall order the suspect, the defendant to provide a guarantor or pay margin, to ensure that the suspect, the defendant will not escape or hinder the investigation, prosecution and trial and preach a mandatory method with the.

[] general commentsBail in this revision by the change of Jiaotong University link, major changes: one is to add bail provisions. The two is to increase the two bail conditions. The three is to delete the relevant provisions of residential surveillance, and the relevant aspects of the bail for the corresponding perfect. In the modify, change is the biggest increase three ban, shall enter the special place; not with specific staff meeting or communication; and shall not engage in certain activities. Is so, mainly on account of the practice of law in bail measures ineffective implementation of the status quo, referring to foreign experience, to enhance the effectiveness of guarantor pending trial, and then promote the judicial organ is more widely used bail this non custody measures.

[understanding]

1, the sixty-fifth two "release on bail will not take the place of danger to society" of understanding. From the analysis of the content of legislation, here said the "social risk", and the new criminal procedural law 79 stipulation "social risk" should be consistent. Namely: may implement the new crime; the real danger endanger national security, public security or social order; may destroy or forge evidence, witnesses or collusion of the interference; the victim, informants, may take revenge against the implementation; may Dutch act or escape these five cases. These five cases are the new legislation explicitly, the public security organs shall strictly enforced, not free to expand or shrink. Of course, if the suspect has the above five situations, should be based on the corresponding evidence, according to the nature of the crime, the alleged plot, consequences and so on, and not only with a simple personal subjective judgment, not personal feelings freely decided by the police.

2, the sixty-fifth four "at the expiration of the term of custody", the public security organ, shall include the punishment after the detention expires, arrested after the expiration of the term of custody.

3, fixed place understanding. In judicial practice, the public security organs, people's Procuratorate, the people's court that conditions in the review, often think "have a fixed residence", is to own their own homes, this understanding is too narrow, it will limit the bail, so long as has often live in place, should be understood to have a fixed domicile.

In judicial practice, the "fixed income" of the grasp, should not be confined to the guarantor has wage income in the form of. That as long as people have a relative source of income, can maintain normal living expenses, should be understood to have a fixed income. Otherwise, the guarantor range selected is too narrow, resulting in many criminal suspects, defendants are difficult to find a guarantor, can't bail.

4, the Liushibaer paragraph, will guarantee the people "not timely report", to "fails to fulfill the warranty obligations", law more stringent, punishment covers to ensure all the duties of man, to ensure that people can form a certain pressure, prompting them to conscientiously fulfill the warranty obligations, thereby enhancing the bail binding.

5, sixty-ninth make four modifications, in particular:

1, the first is the original provisions, without changes. For this "," how to understand the controversial, some people think should be the same administrative level, not a prefecture level city, city, or not in the parallel provisions. And that in the districts of the city, residence in a certain area, working in another district of the situation is very common, such as unauthorized leave, it will seriously affect the normal life of people by the guarantor pending trial. The book argues that "city, county", refers to the name of the administrative division of criminal suspects and defendants, residence, if the "city", without the authority of criminal suspects, defendants are not allowed to leave the city regional implementation; in a district with a local regional activities, not to leave the city, living county. If the "county", without the approval of the organ executing the criminal suspect, defendant, not to leave the county region.

2, article (two) is modified content. The new rules to increase "address, work units and contact information changes, in twenty-four hours to inward executive report". Aims to further enhance the social personnel flow nowadays, legislation should be adjusted timely, timely increase of the suspect binding, in order to meet the needs of the new situation. It should be noted that: the address, units and contact information changes, does not need the approval of the organ executing the.

3, the second paragraph of this article, an increase of three "injunction". From the perspective of public security law enforcement:

Specific places: refers to the nature and the suspect's criminal tendencies, mental state, may cause adverse effects on the place learning production, life or normal, such as panic, or cause to suspect because the scene stimulus again crime sites and locations. Such as the prohibition of theft crime suspects into shopping malls, stations and other densely populated places, forbidden to enter the scene of the crime may be accused of crimes related to the place or location, to prevent the destruction of the scene, destroy the evidence for such behaviors.

Specific staff: generally refers to the case victim, accomplice, witnesses, appraisers and other personnel, to prevent collusion, fraud, threat to witness the victim or witness take revenge, thus affecting the smooth progress of the proceedings.

Specific activities: generally refers to the banned its alleged crime related activities. These specific activities, or with the alleged crime is a column or similar behavior, may trigger a new crime suspects, or may cause adverse effects on the normal social production, life order. For example, to the securities crime, prohibited from engaging in securities trading.

Objectively speaking, "specific" determination, because in practice the situation is more complex, the law is difficult to make detailed provisions, the needs of the public security organs according to the nature of the case, the plot, the reason the crime and your behavior tendency, psychological state, the maintenance of social order, protect the victim from encroached again, considering factors such as the prevention of crime. Sure, there must be specific, in the premise of litigation and social order, as far as possible to the suspect, the defendant's work, life and the influence to the lowest.

Three is the regulations will confiscate the deposit refinement "confiscation of part or all of the deposit", more powerful guarantee of the rights of criminal suspects.

The four is to increase the need for the arrest of suspects may be detained in violation of the provisions, mainly to solve the reported arrest need procedures.

[Focus] execution

Decision organ and executive organ 1, bail separation problems. The decision-making organ, bail enforcement agencies to separation is one of the original provisions. This separation, is the basic requirement of due process, but also an important guarantee to bail measures to implement. In practice, many local implementation is not satisfactory. There are some local authority department interest, collection, management margin, transferring execution does not transfer, the executive department is not positive, negative execution even don't perform, was released on bail in fact become early means withdrawing, let people, with the purpose of guarantor pending trial is not consistent with the.

To the mechanism, 2 bail decision, execution. Bail by the criminal suspect, police enforcement living. But in the actual implementation, often relates to field station execution. How will the materials to the field station, how to solve the problem of field station does not accept, is currently not clear.

3, not bail problem. "The public security organs shall handle criminal cases" sixty-fourth stipulation: the principal of the recidivist, crime, criminal suspects to escape detection, self injury, crime of endangering national security, violent crime, and other serious criminal suspects, not bail. In the previous provisions, bail, monitoring the living conditions are the same, so the rule is not a big problem, in practice, some compliance situation but also temporarily unable to suit the suspect, banning bail, but can take residential surveillance measures. But the new criminal procedure law will monitor the living conditions for clear "conforms to the conditions of arrest", resulting in some circumstances, will practice, conform to the provisions, but because of the lack of evidence, such as accomplices escaped situation, temporarily do not meet the conditions for arrest, if still allowed bail, you should take what measures.

4, the provisions of this article. The guarantor, pay a deposit two guarantee form is not applicable at the same time, the application can only choose one. Because, the law is "to provide a guarantor or pay money" two selected one, rather than "to provide a guarantor and deposit" and have.

 

Three,  Residential surveillance

 

Residential surveillance, is refers to the public security organ, the people's Procuratorate and the people's court shall order the suspect, the defendant shall leave the house or designated residence in a certain period of time without approval, coercive methods and to monitor the action.

[] general comments

Residential surveillance is the compulsory measures the biggest change the criminal law to send in. To amend the provisions of "Criminal Procedure Law" article fifty-first, the applicable conditions of bail and residential surveillance of exactly the same. Theoretically speaking, the strength should be coercive measures of criminal suspects and defendants, personal danger is directly proportional to the size of the compulsory measures, and should not be selective and random, the applicable conditions of the two coercive measures there is no difference in the same part of the provisions of the legislation, in itself a violation of this rule. As a result of such a the most direct consequence is that the judicial organs apply these two kinds of different severity of the compulsory measures of randomness, easy to damage the rights of the accused. Therefore, in this revision, the legislature for the reconstruction of residential surveillance, which is identified as the alternative measures to arrest.

[understanding]

(a). Seventy-second is the new provisions, the main provisions of the applicable conditions of surveillance of residence. In accordance with the provisions of the new criminal procedure law, applicable to residential surveillance conditions there are two, one is in accordance with the conditions of arrest, but a special case is not suitable for detention. The two is unable to provide a guarantee, also cannot pay margin.

(1) on the first paragraph comprehension. First, "comply with the conditions of arrest", is the prerequisite for residential surveillance measures. The so-called "comply with the conditions of arrest", is refers to the severity of crime suspects, defendants, should have the conditions of arrest. The conditions of arrest here, refers to the new criminal law article seventy-ninth provisions of the arrest conditions. Note: the conditions of arrest here, refers to the conditions of arrest provisions of Article 79 of the new criminal procedure law. Here the "meet the conditions for arrest" means: the public security organ according to the standard provisions of Article 79, an objective assessment of severity of facts, evidence and existing behavior of compliance with the conditions of arrest made, not only for the custody, or made to punish objective subjective assumptions. This was continued for 24 hours in the standard "the need to detention or arrest," the implementation of standards of different. This is different from the two legislative language expression can be seen in the middle of the. Second, in accordance with the conditions of arrest, why not apply the arrest, because the crime suspect, accused person have the special case is not suitable for detention, which is applicable to residential surveillance measures the fact condition. These special cases include five kinds: (a) suffering from a serious illness, life can not take care of themselves; (two) pregnant or breast-feeding her baby; (three) the only supporter, life can not take care of the person; (four) because of the need for the special circumstances of the case or the handling of cases, to residential surveillance measures as appropriate; (five) detention period expires, the case has not yet completed, need to residential surveillance measures".

(2) on the second understanding. The provisions of second residential surveillance is actually exists as a guarantor pending trial of alternative measures, in pending trial of criminal suspects, defendants on bail, without the necessity of detention, if the suspect, the defendant cannot provide a guarantor, do not pay the deposit, to residential surveillance.

(two) seventy-third is the new provisions, mainly the relevant provisions of residential surveillance places, specific content is divided into four paragraphs. Among them:

1, the first is the implementing regulations of places. The law is divided into two levels, the first level is the first choice of "permanent residence", not "permanent residence" to "designated residence". This is the 96 years stipulated in the criminal procedure law. This sequence, is a basic requirement for law enforcement, change is not allowed, not allowed in the fixed residence case designated residence, this principle should be the primary consideration for public security organs to residential surveillance enforcement measures, resolutely correct abuse case designated residence.

2, paragraph second shall notify the family of the is about. The specified home residential surveillance with custody of property, in order to guarantee the legitimate rights of criminal suspects, the provisions of the new criminal procedure law stipulates: "in addition to" can not notice, all should be designated residence residential surveillance in the "residential surveillance within twenty-four hours after notification" under residential surveillance, the families of the people. The so-called "no notice", refers to the criminal suspect has no family or even a family but their habitation indefinite, and not real name, address and their families, leading to notify the residential surveillance cannot be delivered.

3, paragraph third is a suspect in the regulations during the residential surveillance entrusted a defender. . by the criminal suspect, defendant residential surveillance activities in their place of residence or limit the scope of designated place, therefore, applicable "Criminal Procedure Law" in article thirty-third, I was unable to contact a lawyer, but by the guardian, close relatives to entrust defenders.

4, paragraph fourth is about the procuratorial organs to residential surveillance law enforcement supervision. This is one of the prosecutorial supervision power increase of the new criminal procedure law. For residential surveillance for legal supervision, the specific mode of supervision and monitoring content is still not clearly defined, but the public security organs shall have the initiative to accept the supervision consciousness, and consciously accept the legal supervision of the prosecution.

(three) seventy-fourth is the new provisions, is the main provisions about surveillance of residence to be shortened. Note that in understanding: first, the term is to be shortened by the case only in designated place for residential surveillance, surveillance of residence in their place of residence, residential surveillance the deadline not to be shortened. Second, the allowance method "is sentenced to control, surveillance, the term is to be shortened by a day; sentenced to criminal detention, fixed-term, residential surveillance for two days to be shortened by one day". The allowance method, mainly considers the relationship specified home residential surveillance and the severity of the penalty.

(four) seventy-fourth is a residential surveillance shall observe the provisions of, this is based on the original terms of modification.

The first paragraph of Article 1 (a) is amended as: "without the approval of the organ executing the implementation of residential surveillance shall not leave the place", this and additional seventy-third content, make the provisions more scientific.

2 in the original article (two) foundation item added "or communication", namely "without the approval of the organ executing shall meet communication" or others, the suspect, the defendant behavior constraints to expand communication, the purpose is to prevent the communication interference witness by witness or collusion. Here the "communication", in addition to the general correspondence, including new methods of communication, such as telephone, fax, e-mail, mobile phone short message, QQ, MSN communication etc.. "without the approval of the organ executing the communication meeting, not or others" refers to residential surveillance without approval of the public security organ, not other meeting except with their living together in family members of the defense and employ people outside or.

A 3 increase in the article (six) content, namely "the passport and other travel documents, identity documents, documents, the executing organ preservation drive", prevent under residential surveillance of people to escape or to engage in risky activities. The ID rules, regulations and the resident identity card law are consistent.

4 second changes in the preceding paragraph is added on the basis of the arrest of detention procedures, namely "by the criminal suspect, defendant under residential surveillance violates the provisions of the preceding paragraph, if the circumstances are serious, can be arrested; need to be arrested, the suspect, defendant custody".

   (five) the seventy-sixth one is about residential surveillance implementation rules, is the new provisions. In practice, these measures and implementation of residential surveillance will guarantee strong. But these measures require facilities and equipment, working mechanism, especially the system guarantee, or excessive use is easy to violations of human rights, dare not use is useless. This work involves a very wide, need special study and solve.

[Focus] execution

1, to prevent the abuse (designated residence) residential surveillance measures. Especially the abuse of the specified home residential surveillance, detention period to solve the problem. The abuse can manifest in two aspects, one is the scope of understanding "fixed residence". Beyond the understanding of "crime of endangering national security, terrorist crime". Two is to take technical measures. For example, the "designated place" in the form of legal treatment as "permanent residence", or will have a fixed residence strictly restricted to understand (a fixed residence, guarantee condition part has discussed). Even the case shall be under the jurisdiction of the public security organs assigned to other suspect has no fixed abode. Also, for example, in some cases that draw after the arrest procuratorial organs not approved the arrest, in order to solve the problem of custody period, deliberately not to arrest, in accordance with the "other special circumstances" to residential surveillance measures. From the practice of public security operation, a wide range of abuse does not occur. But also to see, even if only to abuse, will also be a strong social repercussions, the public security organ shall, or as a major event study.

2, clear criteria for identification of "suspected of crimes of endangering national security," the crime of terrorism. The specified home monitoring which relates to the public security organ is the crime of endangering national security, terrorist crime. Literally, the criminal law, and the relevant amendment to the crime of endangering national security, terrorism crime is clear, there is no dispute. But in actual operation, there is a kind of judgment standard, is based on the actual situation as a standard, or to file legal documents that charges for standard?. In practice, many members of the case, terrorism cases, are based on ordinary crime crackdown, this is also the country law enforcement policy requirements, needs related system interpretation.

3, about the electronic monitoring, communication and monitoring the nature of the problem. We should first clear, here the "electronic monitoring", "communication monitoring" measures such as the new criminal procedure law in the new "technical investigation measures" are essentially different, the two do not be confused. Measures of technical investigation is a kind of means of investigation, "according to the need for crime investigation, after approval" strict; while the electronic monitoring, communication monitoring is implementation of residential surveillance of the compulsory measure, the objective is to be monitored living people abide by the residential surveillance to monitor the situation. From the power of speaking, electronic monitoring, communication monitoring power belongs to the public security organs at the county level is responsible for the implementation of, and shall not. While the technical investigation is the decision of the authority of the organization. But in the practice, adopted the "electronic monitoring shall perform the formalities of examination and approval to. Technical investigation, how to set communication monitoring "and the new criminal procedural law, whether the same thing, or what is the difference between, whether through monitoring obtained can be used as evidence, the need for further system clearly, for the grass-roots implementation, also prevent grassroots accordingly abuse technical investigation measures.

 

Five, the detention

 

Detention in criminal procedure isPolice,The people's ProcuratorateIn a case directly accepted by, in the course of the investigation, met the statutory emergency situation, for theActive criminalsTo take or major suspects temporary deprivation of their liberty coercive method.

[] general comments due to 96 years of detention provisions of criminal law more perfect, problems in judicial practice are not many. Therefore, criminal detention in the modification terms in little change, mainly is the notification of family in detention after a strict limit, fully embodies the rights protection of criminal suspects.

[understanding]

(a) eighty-third this article before the amendment of the criminal procedure law "to" sixty-fourth make three changes. A 1 increase in the detention of criminal suspects, send it to the house of detention regulations, namely "arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours". This increase in content, regulate the suspects were detained after the place of detention, to prevent the detained suspects were torture to extract confessions. 2 would hinder the investigation will not detention notify the family of the scope of the case to be clear, namely "suspected of crimes of endangering national security, terrorist crime". After the 3 increase "would hinder the investigation situation disappeared, detained people notice shall leave immediately families". 3 "except not notice or suspected of crimes of endangering national security, terrorist activity crime notification would hinder the investigation of possible situation, should be in detention within twenty-four hours after notification, the detainee's family." Should pay attention to in the understanding: Here "not notice", refers to the criminal suspect has no family or even family members because of their habitation indefinite, and does not speak the real full name, address and their families, to inform the detained undeliverable. An "investigation", mainly refers to the person detained belongs to the crime group, or with the crime, gangs involved, because other people have not yet been brought to justice, the detained the news to spread, may cause the occurrence of other accomplices escape, Dutch act, destroyed or made false evidence, prejudice the investigation the smooth progress of the work. In order to prevent the "impede the investigation" expand the interpretation of applicable situations, the revised "Criminal Procedure Law" be defined in the "suspected of crimes of endangering national security, terrorist crime" range, suspected of the crime, if notification would hinder the investigation of the case may be, can not inform the family. In addition to the criminal cases, should be in 24 hours to inform the detainee's family, because the criminal suspect is detained, the family unknowingly is very anxious about, and asked his whereabouts, great mental pressure to the criminal suspect's family. When would hinder the investigation situation disappear, it shall immediately notify the detainee's family.

[Focus] execution

(a) the correct understanding of article 83. The new Criminal Law Article 83 is another focus in terms of social talk, because the provisions of this article: in addition to not notice or suspected of crimes of endangering national security, terrorist activity crime notification would hinder the investigation of possible situation, should be in detention within twenty-four hours after notification, the detainee's family. The idea will be called the secret arrest clause. The terms of the terms and technical investigation before monitoring living conditions, later, was synthesized for the secret investigation, secret arrest, secret detention, and takes it as an important basis for judging the new criminal procedure law. Practice, mandatory measures to limit the right of the person concerned, the public is normal, but this kind of judgment is a kind of misreading, provisions on the new criminal law is a very substantial progress.

(two) whether the reasons and premises in the notification of family problems when. Take notice of compulsory measures is the judicial organs shall fulfill the obligation, and a right but also the parties, but in practice, the circumstances of the case is very complex, the situation is very complex. Notice of the content is very much, each case is different, can't be in the legal provisions in one one. In order to meet all kinds of complicated situations, laws made the provisions of principle. The judicial authorities left a discretionary space, that is to choose the reasons and premises, can also choose not to inform. In the full use of the discretionary power at the same time, the public security organs should strictly abide by the kindness, justice principles, should not abuse this discretion. In this regard, there should be some system refinement.

(three) about 24 hours of notification of family problems. In judicial practice, the detainee's family is not in the local post office, notice of detention shall be delivered within 24 hours, no matter the families of detainees when received do not belong to more than 24 hours, according to the revised "criminal law" the provisions of article 103rd, the statutory time period shall not include travelling time. But if the suspect family telephone, can call at the same time. At the same time, this notice is applicable to Hong Kong and Macao, foreigners

 

Five, arrest

 

The arrest is the judicial organs of the state in order to prevent the criminal suspect or defendant impede the implementation of Criminal Procedure Act, evade detection, prosecution, trial or danger to the society, a kind of coercive measures according to the temporary deprivation of their liberty.

[] general commentsThe arrest measure in this revision also has some changes, mainly reflected the conditions of arrest and the examination and approval procedure further. The public security organs, this modification has certain promoting effect on to enhance the level of law enforcement, law enforcement idea of public security organs in addition to push, will also reduce the procuratorial organs on the formation of public security organs in the arrest measure applied pressure, provide strong support for the investigation of the public security organ.

[understanding]

(a) is the seventy-ninth revision clause, provisions of the conditions of arrest, and this article before the amendment of the criminal procedure law "to" sixtieth make three changes. One is the. First in the "residential surveillance" removed, but also increase the five should be arrested. Two is to increase the measure of arrest conditions shall apply. From the legislative language, it is absolutely the conditions of arrest. Three is the increase of arrest conditions. In accordance with the"Law on the provisions of the" measures for the arrest,Need to pay attention to understand:

1, "there is evidence to prove the facts of the crime" refers to also have the following three cases: 1 there is evidence of any criminal facts; 2 there is evidence to prove the facts of a crime is the criminal suspect implementation; 3 prove the criminal suspect crime evidence has been verified.

There is evidence to prove the facts of the crime ", is not required to determine all the facts of the crime. The "crime" can be a single crime fact, can also be a number of criminal acts in any criminal facts.

2, "breach of bail provisions, if the circumstances are serious:" refers to Dutch act, escape, escape detection, prosecution; implementation of destroy or falsify evidence, or collusion, disrupting the witnesses behavior, enough to affect the investigation, review and prosecution work normally; without approval, unauthorized leave live in city, county, cause serious consequences, or two times without approval, unauthorized leave live in city, county; the communication does not appear, resulting in serious consequences, or by the two communications does not appear. To intentionally new crimes in the release on bail of criminal suspects, should be arrested.

3, "residential surveillance shall, if the circumstances are serious violation" refers to: intentionally new crimes; Dutch act, trying to escape, escape detection, prosecution; implementation of destroy or falsify evidence, or collusion, disrupting the witnesses behavior, enough to affect the investigation, review and prosecution work normally; without approval, unauthorized leave the residence or the designated residence, resulting in serious consequences, or two times without approval, without shelter or designated residence; without approval, arbitrarily to meet with others, resulting in serious consequences, or two times without approval, arbitrarily to meet with others; the communication does not appear, resulting in serious consequences, or after two times cited default.

(two) ninety-first is the new provisions, this article on the modification of "Criminal Procedure Law" article seventy-first two changes.

1 of the second paragraph of this article has increased after the arrest, will be immediately arrested people to send the provisions of house of detention, namely "after the arrest, shall immediately be arrested for custody". Mainly in order to prevent torture to extract confessions. Due to the construction of the interrogation room standardization, reduce or even eliminate the possibility of torture to extract confessions of the case handling organ of criminal suspects. In addition, the "immediate" was announced the arrest of immediately arrested people sent to detention center, should not have residence time. Arrest and detention, arrest is the most suspect was detained in the circumstances, therefore, the law does not authorize the public security organ may delay the time.

Remove the 2 specific content to inform arrested people family, except the provisions "can not notice, shall within twenty-four hours after the arrest, notify the family of the arrested person". Understand has been discussed in the punishment part.

 (three) is the ninety-third new clauses. The necessity that detention. Should be combined with the conditions of arrest for that, if after investigation, the existing situation of the crime suspect, were not consistent with the arrest of three conditions, it should not remain in custody, in line with the conditions, can be changed to bail, residential surveillance.

[Focus] execution

(a) for breach of bail, residential surveillance shall arrest problem. Although the new criminal procedural law in order to become more prominent in the form of a clear will determine its conditions of arrest, but by the "State Compensation Law", to truly ensure that standards in place, also need to push to revise the state compensation law, or by the highest check to make clear the requirements.

(two) about the arrest of review mechanism. This is a new increase of procuratorial power, will have a direct influence on the public security law enforcement, public security organs should have a positive response. One is to see, the procuratorial organs is recommended, the decision in the public security organs, therefore, the public security organ must make decisions based on their judgments on the basis. The two is to see the procuratorial organ is the legal supervision organ, the proposal should pay great attention to public security organs, must be based on the suspects responsible spirit carefully review, but also to explain the reason for. Therefore, the public security organs need to establish a standard of review, in order to achieve the law, standardize law enforcement.

 

Application of investigation measures

A, revision

"Decision of the National People's Congress on the revision of criminal procedure law '' of the people's Republic of China" (the people's Republic of the Eleventh National People's Congress fifth conference through in March 14, 2012, since January 1, 2013 will come into effect. Hereinafter referred to as the "decision") will be the original second parts with second chapters "investigation" in the 10 quarter of 47 (89 to 135) modified for the 11 Festival 54. The increased 7, revised 20. The details are as follows:

(a) increased 1 day (technical investigation) 7 (113 to 166).

To increase 1 1, the first section "General Provisions", 115 (parties to illegal acts of criminal investigation complaint, accusation).

To increase 1 2, the second section "the interrogation of criminal suspects", 121 (the interrogation of criminal suspects during recording, video).

3, section eighth, "technical investigation" increased 5, 148 to 152.

4, section tenth "investigation" increased 1, 159 (listen to the counsel opinion).

(two) revised 18.

1, section second, "the interrogation of criminal suspects" revised 3, 116 (formerly 91), 117 (formerly 92), 118 (formerly 93).

2, section third, "witness" Article 2, Article 122 (former 97), 123 (formerly 98)

3, section fourth, "an inquest or examination," revised 2, 130 (formerly 105), 133 (formerly 108).

4, section fifth, "search" in the revised 1, 135 (formerly 110).

5, section sixth, "attachment, seizure of material evidence, documentary evidence" in the revised 4, 139 (formerly 114), 140 (formerly 115), 142 (formerly 117), 143 (formerly 118).

6, the seventh section "identification" in the revised 2, 145 (formerly 120), 146 (formerly 121).

7, section tenth "investigation" in the revised 2, 158 (formerly 128), 160 (formerly 129).

8, section eleventh, "the people's Procuratorate investigation of cases directly accepted by the" revised 2, 164 (formerly 133), 165 (formerly 134).

(three) the provisions of Article 2 adjustment.

Article 124 (formerly 99); delete the original 96, adjusting the dispersion in the thirty-third, 36, 37.

Interpretation of the main revised contents of two, associated with the public security organs

(a) increased provisions for appeal, accuse the judicial organ and its staff illegal to take coercive measures and measures of investigation and handling procedures. The provisions of article 115th, the parties and the defender, agent ad litem, interested party has one of the following acts for the judicial organs and their staff, have the right to accuse the authorities to appeal or: (a) to take coercive measures to the statutory period, not to be released, dissolution or change; (two) shall refund the bail bond not refund; (three) to have nothing to do with the case of property seizure, seizure, freezing measures; (four) shall terminate the seizure, seizure, freezing does not release; (five) the corruption, embezzlement, privately divide, change, against the rules using the seizure, seizure, freezing the property. The admissibility of the complaint or accusation shall be timely treatment. To handle the appeal, it may appeal to the people's Procuratorate at the same level; the people's Procuratorate cases directly accepted, it may appeal to the upper level people's procuratorate. The people's Procuratorate shall timely examine on the appeal, the case, notify the relevant authorities to rectify.

[Understanding and Application:

Subject 1, complaints, charges: Party and the defender, agent ad litem, stakeholders. Article 106th the parties, agents ad litem explained ("party": refers to the victim, private prosecutor, criminal suspects, defendants in incidental civil action, the plaintiff and the defendant. "An agent ad litem": refer to the victim in a case of public prosecution and their legal representatives or near relatives in a case of private prosecution, the prosecutor and his legal agent entrusted to participate in litigation of the people and the party in an incidental civil action and the legal agent entrusted to participate in litigation.) "Interested parties": refers to the case and are interested person, here mainly refers to the property (and related seizure, freezing, seizure of property) are interested person.

The 5 Act 2, complaint, accusation.

(1) to take coercive measures to the statutory period, not to be released, dissolution or change;

(2) shall refund the deposit is not refundable bail;

"Shall refund the bail bond no refund" does not include the party refuses to accept the decision to confiscate the deposit of this kind of situation, the parties may apply for review. According to the "public security organs to handle criminal cases procedures" provisions of article eighty-first, the public security authorities to suspect read "confiscate the deposit decision" at the same time, should inform the forfeiture of margin decision disaffected, can be within 5 days to a higher public security organs to apply for a review. A higher public security authority should be in receipt of the application for review within 7 days from the date of decision. The public security organ at a higher level to cancel or change the forfeiture of margin decision, the public security organ at a lower level shall perform.

(3) to have nothing to do with the case of property seizure, seizure, freezing measures;

(4) shall terminate the seizure, seizure, freezing not released;

(5) the corruption, embezzlement, privately divide, exchange, in violation of the provisions of the use of attachment, seizure, freezing of property.

3, authorities on the appeal, accuse and processing program. (1) the admissibility of the complaint or accusation organs for handling cases of organ. The authority shall timely treatment (the provisions of comparison principle, in order to prevent it, should be in the "procedures" in the prescribed time limit, the form, shall be in written conclusion principle.). Research is, as to when the superior public security organs. Organs of the appeal and accusation, superior public security organs to deal with, have the right to handle. We believe that, according to "people's police law" article forty-third (organ at the higher level people's police supervision, the law enforcement activities of subordinate authorities found the settlement or decision made is wrong, it shall be revoked or altered.) And "the supervision work regulations" and other relevant provisions, the superior public security organs may order the organs to correct, when necessary, can direct correction. Suggestions to be clear in the "procedures".

(2) to handle the appeal, it may appeal to the people's Procuratorate at the same level. Understand from literal, should be understood as when dealing with things of public security organs is pre procedure procuratorial organs supervision, which make things only when deal with the public security organs after the decision, to the people's Procuratorate at the same level people's Procuratorate accepted to appeal to. If the public security organ prevarication, not to make a decision, the people's procuratorate can directly accept? Recommended by the judicial interpretation should be clear.

(3) the people's Procuratorate shall timely examine on the appeal, the case, notify the relevant authorities to rectify. The "procedures" should be supporting regulations, the public security organ shall perform the procuratorate and the public security organs to correct views, such as that the procuratorate to correct views are wrong, whether can review, review, research is needed to be clear, the best in the "procedures".

(two) the investigation measures.

1, improve the provisions interrogating a criminal suspect.

(1) increased provisions summoned verbally.Article 117th (formerly 92) the provisions of the first paragraph, to found at the scene of the crime suspect, by working to produce documents, can be summoned verbally, but shall be marked in the transcripts of interrogation.

[Understanding and application:The reference to "the public security organs for provisions" procedure of administrative cases of oral security summons, to be detailed in the "procedures". Including: (1) in the transcripts of interrogation of suspects in custody shall be indicated in the past, and from time to time; (2) the public security organs shall inform the reason and evidence of summoned summoned; (3) of justification does not accept the summons may summon, etc..

(2) extended the summons (summon) time. Article 117th (formerly 92) specified in the second paragraph, subpoena, summons for time shall not exceed twelve hours; the case particularly heavy, complicated, need to take the measure of arrest, detention, subpoena, summons for time not exceeding twenty-four hours.

[Understanding and Application: to extend to 24 hours, should have 2 conditions: (1) the case particularly heavy, complex. (2) the detention, arrest measures need to be taken. In addition, the examination and approval procedures, through the "procedures" provisions of the relevant departments responsible for the approval of the person.

 (3) to strengthen the protection of the rights of criminal suspects. Article 117th (formerly 92) specified in the third paragraph, shall not in continuous summons, subpoena criminal suspects into custody in disguised forms. Call, summon the suspect, shall ensure that the suspect's diet and the necessary rest time."

[Understanding and application:For the purpose of legislation to implement the protection of human rights, it is necessary to "procedures" clearly two problems: (1) the public security organ should provide free diet, three meals a day. (2) the necessary rest time to be defined, such as continuous interrogation shall not exceed a certain amount of time, should at least ensure that suspects rest the long time every day.

(4) defining a criminal suspect in custody after the interrogation place. Article 116th (formerly 91) specified in the second paragraph, criminal suspects were sent to the detention center custody, investigators questioned its, should be in detention center.

[Understanding and application:The main purpose is to prevent torture to extract confessions, in practice, should prevent to identify, recognize, clear identification, such as an excuse to criminal suspects from the places of detention for questioning. Through the "procedures" clearly the responsibility of supervision, such as the inlet, the staff physical examination, found that the criminal suspect body surface wound, overtime not to report to the local public security organ abnormalities leading or supervision department of the obligations. At the same time, to prohibit the concentration the place in the. The public security organ for interrogation for has not yet sent to detention center custody of the suspect, except in emergency situations for questioning at the scene, law enforcement should be in place of the public security organs in the interrogation room.

(5) the provisions of the investigation personnel informed right obligation. Article 118th (formerly 93) specified in the second paragraph, when the investigators suspect, should the law to inform the suspect confess to leniency. Article thirty-third (formerly ninety-sixth) specified in the second paragraph, when the investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, it shall inform the criminal suspect has the right to entrust defenders.

[Understanding and application:"PRC Criminal Law Amendment (eight)" in the "criminal law" article sixty-seventh added "although suspects do not have the provisions of the preceding two paragraphs plot, but confess, may be given a lighter punishment; for his truthful confession, avoid the consequences serious occurrence, regulation can reduce punishment". The amended, consistent with "the relevant provisions of the criminal law", and provide the conditions for the implementation of the provisions. As for the "answer", the legislature and that "no person shall be forced to prove his guilt" is not a contradiction. The practice, by modifying the "suspect the rights and obligations of this book" you can resolve the inform.

(6) the provisions of the interrogation of criminal suspects during recording, video recording system. The provisions of article 121st, when the investigators suspect, can the audio or video recording of the interrogation process; there may be sentenced to life imprisonment, the death penalty cases or other serious crimes, shall carry out the sound recording or video recording of the interrogation process. Audio or video recordings shall be full, maintain integrity.

[Understanding and Application: to interrogate the criminal suspect the whole video recording function: one is the standard investigation activities, to prevent torture to extract confessions as evidence of illegal behavior; the two is fixed to prevent criminal suspects confession evidence. The practice, should grasp the two:

The scope of the interrogation of criminal suspects recording."May be sentenced to life imprisonment, the death penalty cases" is not equal to the maximum statutory penalty is life imprisonment, the death penalty cases, nor is the case according to the specific circumstances to life imprisonment, the death penalty cases. Should the legal punishment and the specific circumstances of the case are combined, according to the criminal behavior, initial investigation results determined by the specific grade sentencing of criminal suspects may be applicable in the maximum statutory penalty charges, the grade is life imprisonment or death, can be identified as "may be sentenced to life imprisonment, the death penalty cases". Through the "procedures" to define the "other serious crimes", can be considered from three aspects: (1) the crime serious nature, such as the crime of endangering national security, violent crime, drug crime; (2) could be sentenced to a punishment is higher, such as 10 years in prison; (3) the social impact of crime, a high degree of social concern. For these crimes, the legitimacy of evidence requirements may be higher during the trial, the defense opinions put forward criminal suspects and defendants may be more, recording, in these cases the suspect interrogation tapes, can be better fixed evidence, strongly suggesting the legitimacy to collect evidence.

(7) provides special protection to the juvenile suspect. The law does not to the juvenile offenders special provisions, but "the public security organs shall apply" program 182nd criminal cases the provisions of the first paragraph"The interrogation of juvenile criminal suspects, should according to the physical and mental characteristics of minors, take different from adults manner; in addition to impede the investigation or not notice, shall notify the parents, guardian or the teacher arrived; interrogation can be carried out in the public security organs, can also go to the minor dwelling units, schools, or other appropriate place."Series" special program "the first chapter" the minor proceedings "criminal case 270th provisions in fifth, the interrogation of juvenile criminal suspects, it shall notify its legal agent here. Unable to inform, legal agent cannot be present or legal representative is the accomplice, other adult relatives may also notify the juvenile criminal suspects, defendants, on behalf of the local schools, units, place of residence or juvenile protection organizations of the scene, and the relevant record. Present legal representative may exercise the juvenile criminal suspects, the defendant's litigation rights. The present legal representative or other personnel that investigators violations of the legitimate rights of minors in the interrogation, trial, can give advice. The interrogation record, the court record shall be delivered to the present legal representative or other personnel to read or read to him. Interrogation of female juvenile criminal suspects, there should be a female staff is present.

[Understanding and Application: (1) the interrogation of juvenile criminal suspects, shall notify the right to adults. (2) through the "procedures" or jointly with other departments to the way adults, qualified the selection, rights and obligations, priority (mainly is the legal guardian) etc..

2Witnesses, perfect the provisions of.

(1) increased about places. The provisions of article ninety-seventh witnesses to witness unit, residence and the investigation organ to ask. The provisions of article 122nd, the investigators asked the witness, can be carried out in the field, also can be the witness unit, residence and witness this place, when necessary, may also notify the witness to the people's Procuratorate or public security organ to provide testimony. At the same time, provided to show that the investigation personnel identity, "the examination of witnesses at the scene, they shall show their work certificates, to witness the unit, residence and witness the location of questioning the witness, the people's Procuratorate or the public security organ shall present the documents."

[Understanding and application:1, the questioning of witnesses, only need to show their work certificates. 2, according to the provisions of Article 63, witnesses had testified to fulfill the obligation and expenditure of transportation, accommodation, meals and other expenses, shall grant. Witnesses in the judicial organ business funds subsidies shall be guaranteed by the government.

(2) the provisions of minors to ask. Delete the original ninety-eighth second "ask the witness under the age of eighteen, his legal representative may be notified to". "Special program" the first chapter "the minor proceedings" criminal case 270th provisions in fifth, ask the juvenile victims, witnesses, shall apply to the interrogation of juvenile suspects.

[Understanding and application:With the examination of juvenile suspects.

3The measures, improve the inquest, inspection.

(1) give the investigation organ extraction the fingerprint information, biological sample power. Article 130th (formerly 108th) specified in the second paragraph, in order to determine the victim, criminal suspects, some characteristics of the injury or physiological condition, can check on the human body, can extract fingerprint information, collection of blood, urine and other biological samples.

[Understanding and Application: personal examination and the personal search different: (1) different purpose, personal check to determine the victim, criminal suspects, some characteristics of the injury or physiological condition; and the search is to collect evidence of a crime may be hidden in the human body. (2) in different subjects, personal inspection may be conducted by investigators or agency, employ doctors, and can only be carried out by investigators. (3) physical examination record may be directly used as evidence, but in the personal search, record and document record just investigation personnel perform their duties according to law, it is not used to prove the facts of a case, and obtain in search of evidence, documentary evidence, can be used as the case related evidence. The practice, should grasp the following points: (1) can be extracted from the biological sample is not limited to laws listed in blood, urine, in the investigation, in order to determine the victim, criminal suspects, some characteristics of the injury or physiological condition, extraction of saliva, hair and other related biological samples can be. (2) extracting fingerprint information, collection of blood, urine and other biological samples, physical examination records shall be producer. (3) of the criminal suspect may be forced extraction, but the victim cannot be forced extraction, there shall be no insult personality and other damage the legitimate rights and interests of citizens. (4) for women's personal check, shall be carried out by female officers or doctors. (5) on the extraction of biological samples shall be properly kept, prevent pollution, deterioration, can not be used as evidence.

(2) specification of Investigative Experiment. Article 133rd (formerly 108th) specified in the second paragraph, investigative experiments should be written transcripts, sealed by the participants signed or. At the same time, the provisions of the first paragraph of Investigative Experiment to the "Public Security Bureau approval," is amended as: "the principal of the public security organ for approval".

[Understanding and Application: "procedures" have made specific provisions.

4In section fifth, "search", expanding the civil obligation of providing evidence.Article 135th (formerly 110th) regulations, any units and individuals have the obligation, in accordance with the people's procuratorates and the public security organs requirements, material evidence, documentary evidence, surrender may prove audio-visual material evidence, the suspect's guilt or innocence. "No evidence" the original provisions, can't satisfy the need of investigation.

[Understanding and application:1, as long as they are able to identify the facts of the case evidence, the investigation organ may request the relevant units and individuals to provide. 2, to refuse to provide or concealed, units and individuals destroyed evidence behavior, can be investigated for legal responsibility.

5Attachment, seizure, improvement measures.

(1) extends the application scope of seizure, detainment measure. Article 139th (formerly 140th) regulations, "found in the investigation activities may be used to prove a property, the suspect's guilt or innocence shall file, seizure, seizure; irrelevant to a case of property, documents, shall not be seized, seizure. The attachment, seizure of property, documents, shall be properly kept or sealed up, shall not use, exchanged or damaged." One is the original "in the exploration, search found" is amended as "found in investigative activities". The two is based on the original measure of seizure, increased regulation can take attachment; the original seizure "articles, documents" modified to be seized, seizure of property, documents "".

[Understanding and Application: (1) the seizure, detainment measures can be adopted in all investigation, no longer limited to exploration, search activities. (2) the seizure, seizure of objects can be property, documents, including real estate, real estate and property rights certificate.

(2) to expand the query object, frozen. Article 140th (formerly 117) provisions, the people's Procuratorate, the public security organ according to the investigation of a crime, you can query, freeze criminal suspects in accordance with the provisions of the deposit, remittance, bond, stock, fund and other property. The units and individuals concerned shall cooperate with the. The suspect deposit, remittance, bond, stock, fund and other property that has been frozen, it may not be frozen again. Can increase the bond, stock, fund share inquiries, freezing, and specifies the units and individuals concerned with obligations.

[Understanding and application:Because the stock, the fund share investment equity or equity has certain risk, take measures to freeze the investigation, should be strictly in accordance with the applicable legal requirements and procedures, use caution, the investigation and protection of the rights and interests of the criminal suspect balance. Through the "procedures" on the query refinement, freezing bond, stock, fund operation regulations.May 9, 2010 "people's Procuratorate seized, frozen money and property involved in work rules" for reference. Rule thirty-second: the right to apply for selling the seized, frozen stocks, bonds, funds, warrants, futures, warehouse receipts, gold, does not damage the interests of the state, the interests of victims, does not affect the normal proceedings, with the approval of the chief procurator or the procuratorial committee decided to sell it, as before the end, the proceeds shall be kept by the management department.

6, improve the identification rules.

(1) the appraisal conclusion to expert opinion. Article 145th (formerly 120) the provisions of the first paragraph, after verification, should write the appraisal opinions, and signature.

[Understanding and ApplicationTen February 28, 2005: fourteenth meeting of the NPC Standing Committee passed "decision on the management of judicial expertise" provisions, the "conclusion" is amended as "expert opinion". Mainly use the "expert opinion" expression is more scientific, accurate, nature is more in line with the identification of activities. Expert opinion as understanding and judgment of identification of individuals, only the identification of human opinion expression, on the whole case, expert opinion is a lot of evidence evidence, shall all the evidence with the case, to a comprehensive examination and judgment, and thus the correct case facts, not passively "conclusion" as the verdict basis. The appraisal conclusion is amended as expert opinions, helps to put this kind of evidence in the proceedings of the case handling personnel position, change idea, in order to play the investigators judgment and initiative identification of opinion in the review, improve the quality of handling cases.

(2) adjusted and expanded the identification of injury medical identification and identification of mental diseases. Article 120 paragraph second delete the original identification of personal injury to medical identification, identification of mental diseases can be designated by the people's government at the provincial level hospital regulations.

[Understanding and ApplicationTen February 28, 2005: fourteenth meeting of the NPC Standing Committee passed "decision on the management of judicial expertise" provisions,"The State practices a registration system for the identification of people engaged in the judicial authentication and authentication institutions: (a) the forensic identification; (two) material evidence identification; (three) audio-visual data identification; (four) according to the procedure required by other judicial administrative department of the State Council shall consult with the supreme people's court, the Supreme People's Procuratorate identified the authenticators and authentication institutions to implement authentication registration management."At the same time"The judicial administration department under the State Council in charge of national register of authenticators and authentication institutions management. The administrative departments of the people's government at the provincial level in accordance with the provisions of the judicial decision, is responsible for registering the authenticators and authentication institutions, roster and announcement.""For individuals, legal persons or other organizations engaging in judicial authentication, audit by the judicial administrative department of the people's government at the provincial level, to meet the conditions of registration, into the roster of authenticators and authentication institutions and announcement. The administrative department of the people's government at the provincial level shall, according to the judicial appraiser or appraisal institution increases and the cancellation of registration, identification of people regularly update the compilation and identification of body roll and announcement.""Identification of institutions to set up the investigation organ according to the need of investigation, shall not accept the entrustment of the general public to engage in judicial authentication. The people's courts and judicial administrative department shall establish authentication mechanism."According to the above provisions, currently engaged in" decision "the first paragraph of article second provisions of identification and authentication institutions matters should apply for judicial administrative department to the people's government at the provincial level, to meet the conditions, through the review, the judicial administrative department of the provincial people's Government shall be registered, incorporated into the identification and authentication institutions register and announcement. Connect with "decision" provisions, the criminal law amendment to delete the original 120 paragraph second.

7, increased the provision of technical investigation measure (section eighth)

This amendment will technical investigation measures as a separate section regulations, (the current procedural law has no stipulation, "public security organs for criminal cases procedure") made in technical means of investigation, the public security organ shall use technical investigation measures obtained evidence can be used directly, no longer need to be transformed, the public security organs to a favorable provisions. There is a need to explain, for legislative technical considerations, the provisions of this section of the technical investigation, secret investigation, controlled delivery of three kinds of investigative measures rather than a separate provisions.                

(1), the detection conditions, procedures, scope of application.

Article 148th: the public security organs in the case, for the crime of endangering national security, terrorism, organized crimes of the underworld, serious drug crime or other serious harm to society of criminal cases, according to the need for crime investigation, through strict approval procedures, can take measures of technical investigation.

   The people's Procuratorate in the case, the major crime of embezzlement, bribery crimes and serious violations of civil power of body right use, according to the need for crime investigation, through strict approval procedures, can adopt the measures of technical investigation, in accordance with the regulations to relevant authorities.

   Hunt was wanted, or approval and decided to arrest the escaped criminal suspects, defendants, approved, technical investigation measures can be taken to hunt the necessary.

   [Understanding and ApplicationThis article is divided into three sections.

The provisions of the first paragraph of the technical investigation measures taken by public security organs conditions, scope, procedures for approval. (1) technical investigation measures taken by public security organs conditions, should be in the file, file is the beginning of the criminal investigation, the close relationship between measures of technical investigation and civil rights, must be in the case to apply. (2) can be applied to measures of technical investigation cases, including the crime of endangering national security, terrorism, organized crimes of the underworld, major drug crime or other serious harm to society of criminal cases. For "other serious social crimes" should be cautious to determine, neither too broad in scope, effect of civil rights, can not be too narrow, too limited investigation activities. Social harmfulness from the general statutory penalty and criminal behavior analyses. (3) adopt the measures of technical investigation, according to the needs of investigation of crimes, through strict approval procedures.

The provisions of the second paragraph of the people's Procuratorate take the technical detection measures shall follow the procedures. (1) the people's Procuratorate takes measures of technical investigation conditions, should also be the case. (2) the people's Procuratorate takes measures of technical investigation cases, including major crime and the serious violations of civil power of the personal rights of embezzlement, bribery crime. (3) the people's Procuratorate takes measures of technical investigation, according to the needs of investigation of crimes, through strict approval procedures. (4) the people's procuratorates do not technical investigation measures to implement, but should be in accordance with the relevant authorities. The relevant departments "refers to the public security organ or other authorized to implement measures of technical investigation agency.

   The provisions of the third paragraph of the pursuit of the escaped criminal technical investigation measures taken in the program. Hunt is wanted or approved, and decided to arrest the escaped criminal suspects, defendants, approved, technical investigation measures can be taken to hunt the necessary. Is approved, and decided to arrest the escaped criminal suspects, defendants in wanted or approval, decided to arrest has been approved by the arrest or being, so its approval procedure is relatively simple.

(2), the decision of approval of technical investigation measure and its validity.

Article 149th the approval decision should be based on the need for crime investigation, determine the species to take measures of technical investigation and application objects. Since the date of issue of the approval decision within three months. Does not need to continue to take the measures of technical investigation, shall promptly release; for complex, difficult cases, the expiration of the time limit is still necessary to continue to adopt the measures of technical investigation, after approval, the validity period may be extended, each time shall not exceed three months.

     [Understanding and Application: This article is about the technical investigation measures approved by the provisions and the term of validity.

   (1) on the specific content of the decision of approval. Not only should the granting of technical investigation measures to make the decision, also should be based on the need for crime investigation, determine the species to take measures of technical investigation and application objects. Species classified, not reading, the applicable object must be a specific person suspects or crime related. (2) the validity of the decision of approval. The decision of approval issued since the date is valid for 3 months. The expiration of the period, does not need to continue to take the measures of technical investigation, shall promptly release, can no longer continue to take, such as investigation is necessary, after approval, the validity period may be extended several times, each time not exceeding 3 months.

(3), the technical investigation measures, confidentiality and use.

Article 150th to take measures of technical investigation, should be strictly in accordance with the approved measures, applicable objects and limit types.

   The investigators state secrets, to know to take measures of technical investigation process of commercial secrets and personal privacy shall be kept confidential, to take measures of technical investigation; get nothing to do with the case materials, must be destroyed.

   Adopt the measures of technical investigation to obtain material, can only be used for crime investigation, prosecution and trial, shall not be used for other purposes.

   Public security organs to take measures of technical investigation according to law, the relevant units and individuals shall cooperate with the relevant information, and shall keep secret.

[Understanding and ApplicationThis article is divided into four sections. The provisions of the first paragraph of the technical investigation measures, the concrete implementation must be in strict accordance with the decision of approval of listed species, the object of application and the measures for the implementation, the unit can not be arbitrarily expanded the applicable types and object scope or more than the deadline, otherwise it will belong to collect evidence in violation of the law program.

The provisions of the second paragraph of the investigation personnel duty of secrecy in the technical investigation measures taken. Need to include the state secrets, commercial secrets and individual privacy. In taking measures of technical investigation, only in connection with the case, need to use as evidence of the materials, if the case had nothing to do with materials, must be destroyed.

Through the use of the provisions of the third paragraph of technical investigation measures obtained material. Adopt the measures of technical investigation is the investigation of serious, acquisition of materials can be used to provide evidence of investigation, prosecution, trial, cannot be used for other purposes, or may lead to abuse.

The provisions of the fourth paragraph of the obligations of the relevant units and individuals. Public security organs to take measures of technical investigation in accordance with the law, can inform the relevant units and individuals shall be matched, the units or individuals shall cooperate. Informed of relevant units and individuals in the match situation, including technical methods of investigation, take measures of technical investigation to obtain materials, no matter whether to belong to the state secrets, commercial secrets and personal privacy, all shall keep confidential.

4. The secret investigation and controlled delivery

151st in order to find out the truth, when necessary, by the public security organs of the person responsible for the decision, by the relevant personnel to conceal its identity of the implementation of the investigation. However, not tempt others to commit a crime, not methods may endanger public safety or serious personal danger.

   The payment of goods prohibited drugs or property crime, the public security organ according to the investigation of a crime, in accordance with the provisions of the implementation can be controlled delivery.

   [Understanding and application:This article is divided into two sections. The provisions of the first paragraph of the secret investigation procedures and requirements. Secret investigation, also often referred to as the undercover investigation, refers to the specially selected investigation personnel or other personnel to hide their identities, lurking in the desired investigation criminal organization or environment, within the limits prescribed by law, an investigation to collect criminal evidence or information. Long term use of undercover investigation in the criminal investigation practice in our country, the general is specific to certain covert, group, often organized crime and the use of. The organized crime concealment and strong anti investigation ability, the investigation organ on the traditional investigation, forensics difficult to solve. The implementation of secret investigation, first of all is to find out the truth, in order to investigation work needs, and should be in when necessary. "When necessary" to take other measures to find out the truth, the secret investigative measures must be take. Secondly, before implementation, to go through the approval of the person in charge of the public security organ. Finally, may induce others to commit a crime, and shall take method may endanger public safety or serious personal danger.

   Section second provides for the controlled delivery program. Controlled delivery, generally refers to the drug investigation department found that the drug trafficking leads or seized drugs and in security under the premise, will closely monitor the drug in the police under the control of drug traffickers, according to plan in advance or conventional drug trafficking route, direction, place and manner, not immediately arrested the suspect, but by the drug the final delivery to the consignee, the drug investigation department, the whole process control of drug trafficking, found from the drug trafficking organizations network and eventually will catch all in one draft investigation measures. Drug crime hidden strong, often take the single track connection way, if it is found that the drug or criminal suspects, immediately arrested the suspect, will act rashly and alert the enemy, resulting in only captured "messenger", and unable to solve the whole network. To take delivery under control measures shall meet the following conditions: (1) is aimed at involving illicit payment drug product or property crime. (2) should be for the investigation of a crime. (3) must be in accordance with the provisions of the implementation of controlled delivery. Delivery under control the implementation of difficult, the secrecy requirement is very high, there is a slight mistake may be criminal organizations found, leading to failure of action. Once the failure, will not be able to capture more criminals, it may cause more harmful consequences for drug control.

    (5), the use of technical investigation evidence obtained

Article 152nd in accordance with the provisions of this section to investigative measures collected materials can be used as evidence in criminal proceedings. If you use this evidence may endanger the personal safety, or have other serious consequences, shall take not to expose the identity, technology and other relevant personnel protection measures, when necessary, can by the judge in the court to verify evidence.

[Understanding and application:This article is about the investigation of material collected in criminal proceedings as evidence for the use of. Investigation measures collected materials can be used as evidence in the criminal procedure, for a long time without legal provision, the practice can not be directly used as evidence. Some need to change, such as the recording materials into character, others cannot be converted. Even if can be transformed, transformed in the form of proof has been lacking compared with the original form. A total of two aspects of the provisions.

1, in accordance with the provisions of the provisions of this section to investigative measures collected materials can be used as evidence in criminal proceedings. Take the investigation measures obtained material evidence, documentary evidence, testimony of witness, the suspect's confession, audio-visual materials, electronic data, such as access to the testimony of witnesses through electronic monitoring, through secret photographing, video acquisition audio-visual materials etc.. If adopt the measures of technical investigation in accordance with the provisions of this section of the program, the collection of evidence can be used as evidence in the criminal procedure.

2, set to verify evidence procedural requirements. Technical investigation is very high to the confidentiality requirements, if the use of such evidence may endanger the personal safety, or may generate exposure technology investigation methods and other serious consequences, shall take not to expose the identity, technology and other relevant personnel protection measures. For the technical methods of investigation shall be kept confidential, if leaked, criminals might find anti investigation measures, increase the difficulty of detection. "When necessary", refers to the difficulty in court to take identity, technology and methods relevant personnel do not expose the way to verify the evidence. "The judges in the court to verify evidence" refers to both sides, not through the examination of the way in a court of law, but by the judicial personnel of people's courts in court on evidence obtained way, program, verify the authenticity, the criminal suspect and defendant cannot participate in the verification.

"Not to expose the identity, technology and other relevant personnel protection measures", mainly in occult investigators do not provide true identity, in alias, code, or to the relevant personnel of recording, video testimony and change the sound, image and other ways to protect the personnel involved; for the protection of technical methods, requirements verification of evidence in court, can not provide the specific techniques and implementation process.

8Improve the provisions, investigative termination.

(1) the identification survey responsibility investigation organ of unidentified suspects. Article 158th (formerly 128th) specified in the second paragraph, the criminal suspect does not tell his true name, address, the identity is unidentified, shall be investigated for their identity, investigation detain deadline checking computation since the day of its identity, but do not stop the crime investigation. The criminal facts are clear, the evidence is, well, really can not be identified, also by the name of prosecution, trial."

[Understanding and Application: to amend the provisions of main considerations: first, in order to prevent the practice appears to suspect that intentionally unidentified, arbitrary extend investigation detain deadline problem. Clearly defined "should carry out a survey on their identity". Two is the word modified regulations ", also by the name of prosecution, trial," the more strict laws and regulations. The practice, the public security organ for unidentified suspects, there are two kinds of treatment methods. 1, investigation detain deadline checking computation since the day of its identity. According to this method, should pay attention to: (1) must be responsible for the public security organs at or above the county level for approval; (2) shall make investigation detain deadline date of inform detention; (3) the identification prior to the period for prosecution, shall not stop investigation. 2, in accordance with the suspect's identity self reported to the people's Procuratorate for examination and prosecution. The public security organ shall not because the suspect does not tell his true name, address, identity is unknown, investigation and evidence collection and stop on the identity of the suspect and the crime, the case of long-term use. If, after investigation, the suspect's identity is found out, it is necessary to recalculate the investigation detain deadline. The criminal facts are clear, the evidence is, well, really can not be identified, can by the name is transferred for examination before prosecution. The suspect did not own name, the public security organ may also use the code of public security organs for examination and prosecution.

(2) Rules increase the investigation organ shall listen to the opinions of the attorney. The provisions of article 159th, in the case of investigation, lawyers request, the investigation organ shall listen to the opinions of counsel, and record. Defense lawyers put forward written opinions, shall be attached."

[Understanding and Application: the criminal law amendment to criminal suspects have the right to entrust defenders ahead of time to the investigation stage (33), and the provisions of the defense counsel in the investigation period can provide legal assistance for criminal suspects; complaints, charges; apply for alteration of the compulsory measures; to the investigation organ about the crime suspect crime and the case, put forward opinions (thirty-sixth). This article is mainly to protect the lawyers in the investigation stage of the role, and earnestly safeguard the legitimate rights and interests of the criminal suspect. We should grasp the practice: (1) the investigation organ to facilitate the work of lawyers in criminal cases in time before the end, any time can end investigation in the case, an unlimited number of times. (2) listen to the counsel opinion, should counsel's request. Do not rule out the investigation organ considers it necessary, to listen to the opinions of the attorney. But if the lawyer proposed requirements, the investigation organ must heed the counsel. (3) the investigation organ shall record the opinions put forward by the lawyer, lawyer put forward written opinions, the investigation organ shall be written comments attached.

(3) increased the investigation organ shall inform the suspect transferred for examination before prosecution timely defense lawyers obligation. Article 160th (formerly 129th) regulations, the public security organ shall be the end of the investigation, the criminal facts are clear, evidence really, fully, and write the prosecution of submissions, together with the case file and evidence, to the people's procuratorate together with the review decision; at the same time to transfer the case to inform the criminal suspects and their counsel."

[Understanding and ApplicationThe conclusion of the investigation: the investigation organ, the case is transferred for examination before prosecution, inform the criminal suspect shall be transferred to and counsel. The practice, should be through the "procedures" clearly inform the form, in principle should be communicated in writing, so well documented, can be taken to making a record or standard instrument approach.

 

The special procedure

According to the actual situation of criminal activity and in recent years, actively explore the good experience, it is necessary for the minor criminal cases and other specific cases and in some special cases, provisions of special procedures. Draft amendments to the increase in a series of "special program", made special provisions for the relevant procedures.

1 the provisions of minor criminal procedure. To better protect minors litigation rights and other lawful rights and interests, the draft amendments on the basis of practical experience, according to the characteristics of juvenile criminal cases, special procedures for handling cases guiding principle, litigation link make provisions. Among them, the non prosecution of additional conditions, provisions for minors who alleged violations of human rights and democratic rights, infringement of property, prejudice and social management order, crime, may be sentenced to the penalty for a year, in line with the conditions for prosecution, but there is repentance, the people's procuratorate can make decision of conditional non prosecution. At the same time, in order to make minor return to society better, set up a criminal record storage system.

Reconciliation procedure 2 set specific scope of public prosecution cases. Reconciliation of criminal procedure law in a case of private prosecution has been specified. As the dispute in favor of resolving conflicts, the scope of application appropriate expansion of reconciliation procedures, will be part of public prosecution cases into reconciliation procedure. At the same time, in view of the seriousness of public prosecution in the state prosecution and punishment, to prevent the emergence of new injustice, on the establishment of such a new litigation system should be carefully grasp the scope of reconciliation procedures, can not be too big. The draft amendment provisions, scope of reconciliation procedures applicable in cases of public prosecution is caused by civil disputes, alleged violations of human rights and democratic rights, infringement property crime, may be sentenced to the punishment of crime cases three years, as well as the addition of malfeasance crime may be sentenced outside prison punishment of criminal negligence cases below seven years. However, the suspect, the defendant within five years had intentionally the crime, do not apply for this program. And the provisions of the parties reached a settlement agreement case, can according to the defendant lenient punishment.

The 3 set of criminal suspects and defendants, escape, death cases of illegal gains confiscated program. Severely punishing the crime of corruption, crime of terrorist activities, the United Nations and the connection has joined with China's Anti-Corruption Convention and the relevant anti terrorist problem resolution requirements, the need for the proceeds of crime to take timely measures to freeze. The draft amendment to increase provisions: for the crime of corruption and bribery, crime of terrorist activities and other major crime, criminal suspects, defendants wanted to escape, not in a year, or criminal suspects, defendants to death, in accordance with the criminal law shall be recovered and the illegal income and other properties involved in case, the people's Procuratorate may propose the confiscation of illegal income an application to the people's court. And set up the public security organs to the people's Procuratorate procedure and trial procedures of the people's court.

The mental patient 4 settings will not be liable for the crime of forced medical procedures. The criminal law eighteenth stipulation: the mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family or guardian shall be ordered to put in the custody and care; when necessary, by the government of compulsory medical. For public security, maintaining social order, the draft amendment to increase provisions: violence, endangers public security or serious harm to personal safety, the mental patient through legal procedures shall not bear criminal responsibility identification, continue to harm society possible, by the public security organs to the people's Procuratorate, the people's Procuratorate compulsory medical an application to the people's court, be decided by the people's court. And the trial procedure, legal aid and legal relief, compulsory medical relief and the supervision of the people's Procuratorate provisions.