The criminal procedure law of a powerful and unconstrained style

  • Created:
  • / Author: Aaron Lewis
The concept of the Criminal Procedure Law
　　
　　The concept and features of criminal litigation
Action is the plaintiff to the defendant by the referee told, to solve the dispute between the parties activities. According to the properties of the solution of disputes are different, the modern lawsuit can be divided into criminal, civil and administrative litigation.
China's criminal procedure is refers to the people's court, the people's procuratorates and the public security organs (including the state security organs and other investigative agencies) in the parties and other participants in the proceedings of the next, in accordance with procedures prescribed by law, to solve the problem of criminal responsibility of prosecution by human activities.
1 subjects of criminal litigation
Specialized state organs, the public security organ, the state security organs, the security departments of the army, prison, for the investigation of smuggling crime department, the people's Procuratorate, the people's court.
The criminal suit subject are all involved in criminal activities, the national special organs and litigation rights, in criminal proceedings to assume certain obligations of participants.
The 2 participants in the proceedings
"Criminal Procedure Law" provisions of article eighty-second, the following terms used in this Law means:
(four) "participants in the proceedings" means the parties, legal representatives, agents, counsel, witnesses, appraisers and translators.
(two) "parties" means the plaintiff victim, private prosecutor, criminal suspects, defendants, and defendants in incidental civil actions;
3 Criminal Procedure
Provisions on the procedures in the criminal procedure law of criminal procedure law, the people's Republic of Chinese divided into four series:
General part (Jiu Zhang)
Is the main provisions about the system and basic principles
Second filing a case, investigation and prosecution
Third series of trials
The procedure of first instance, the second instance procedure, the death penalty review, judicial supervision degree (4)
Fourth Executive
4 criminal procedure has the following characteristics:
(1) was hosted by the people's court, the people's procuratorates and the public security organs.
(2) is to realize national criminal jurisdiction activities.
The specific content of criminal litigation is to find out the facts of a crime has occurred, who carried out the crime and the relevant circumstances, and through the application of the criminal law shall be punished.
(3) in accordance with the procedures prescribed by law.
(4) were in the parties and other participants in the proceedings.
Any criminal proceedings must have criminal suspects, defendants in. Also need to have the victim, the defender, agent and the witness, expert witnesses in litigation.

　　Two, the concept and origin of the Criminal Procedure Law
The criminal procedure law is formulated by the state to standardize people's court, people's Procuratorate or public security organ in conducting criminal proceedings, the parties and other participants in the proceedings in criminal procedure law.
The criminal procedure law in narrow sense only means the code of criminal procedure. The criminal procedure law of generalized refers to all the law on criminal procedure.
Including the origin of the criminal procedure law of our country:
The 1 constitution.
2 of the code of criminal procedure. The current criminal code 225.
3 other laws. Both the basic law (such as criminal law), including the general law (such as the prison law, judges, prosecutors, lawyers law method).
4 relevant legal interpretation. Legislative interpretation and judicial interpretation two.
Legal interpretation make joint such as six organs, commonly referred to as "six authority"; and in June 29, 1998 the Supreme People's court "on the implementation of the" PRC Criminal Law "interpretation of several issues", the Supreme People's Procuratorate of the people's procuratorates "rules of criminal procedure", the Ministry of public security "public security organs to handle criminal cases rules of procedure". The details are as follows:
(1) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security, the Ministry of justice, Law Committee of the NPC Standing Committee on the implementation of the Criminal Procedure Law (released in January 19, 1998)
(2) interpretation of the Supreme People's Court on some problems in the implementation of "the people's Republic of China Law of criminal procedure" (by September 2, 1998 the announcement of the Supreme People's Court promulgated by the Supreme People's court since September 8, 1998 June 29, 1998, the 989th meeting of the judicial committee act release No. [1998]23)
(3) the people's Procuratorate rules of criminal procedure (through January 15, 1997 eighth, the Supreme People's Procuratorate Procuratorial Committee of the sixty-ninth meeting of the revised 1998 L2 month L6 ninth, the Supreme People's Procuratorate procuratorial committee twenty-first Conference) high hair release [1999]1 words
(4) Notice of the Supreme People's Procuratorate on revising "the people's Procuratorate rules of criminal procedure" 405th and 407th bar (September 21, 1999) and [1999]9 (high research provisions on appeal)
(5) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of public security, the Ministry of state security issues about bail provisions (released in August 4, 1999) the public and pass the word no. [1999]39
(6) the Supreme People's Court on the provisions of the criminal incidental civil action range of problems (through the December 13, 2000 announcement of the Supreme People's Court promulgated by the Supreme People's court since December 19, 2000 December 4, 2000, the 1148th meeting of the Judicial Committee Act release No. [2000]47)
(7) the Supreme People's Procuratorate on directly accepted by the people's procuratorates shall the case on file for investigation range (the Supreme People's Procuratorate Procuratorial Committee of the second meeting of the ninth session of the May 11, 1998 release)
(8) the specific provisions of the Supreme People's Court on the trial of criminal retrial procedure (Trial Implementation) (through December 26, 2001 promulgated since January 1, 2002 October 18, 2001, the Supreme People's court, the 1196th meeting of the Judicial Committee Act release No. [2001]31)
(9) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of justice on the application of ordinary procedure "defendant confession cases" views (for Trial Implementation) (March 14, 2003)
(10) the Supreme People's court, the Supreme People's Procuratorate, the Ministry of justice about application of simple procedure in public prosecution case several opinions (March 14, 2003)
(11) decision of the Standing Committee of the National People's Congress on improving the people's jury system (through August 28, 2004 tenth session of the National People's Congress Standing Committee of the eleventh meeting)
(12) decision of the Standing Committee of the National People's Congress on the administration of judicial authentication (through February 28, 2005 tenth session of the National People's Congress Standing Committee of the fourteenth meeting)
(13) the Supreme People's court, the Supreme People's Procuratorate on the death penalty in second instance court rules of procedure (Trial) (the Supreme People's Court on August 28, 2006 the 1398th meeting of the judicial committee announced in September 21, 2006 since September 25, 2006 on September 11, 2006 by the Supreme People's Procuratorate procuratorial committee tenth session sixtieth enforcement) act release [2006]8
(14) decision of the Supreme People's Court on exercising the right to approve death penalty cases related issues (through December 28, 2006 promulgated by the Supreme People's court since January 1, 2007 December 13, 2006, the 1409th meeting of the Judicial Committee Act release No. [2006]12)
(15) provisions of the Supreme People's Court on Several Issues concerning the review of death penalty cases (through February 27, 2007 promulgated since February 28, 2007 January 22, 2007, the Supreme People's court, the 1414th meeting of the Judicial Committee Act release No. [2007]4)
16.Provisions of the Supreme People's Court on the application to stop the issues related to the implementation of the death penalty procedure(through December 24, 2008 promulgated since December 26, 2008 November 24, 2008, the Supreme People's court, the 1455th meeting of the Judicial Committee Act release No. [2008]16)
(17) several provisions of the Supreme People's Court on the trial of juvenile criminal cases (through April 4, 2001 promulgated since April 12, 2001 November 15, 2000, the Supreme People's court, the 1139th meeting of the Judicial Committee Act release No. [2001]9)
(18) the provisions of the people's Procuratorate handling minor criminal cases (through March 25, 2002 ninth, the Supreme People's Procuratorate Procuratorial Committee of the 105th meeting in 2006 28 in December tenth the Supreme People's Procuratorate Procuratorial Committee of the sixty-eighth meeting of amendment shall enter into force as of December 28, 2006)
5 local laws and regulations.
The 6 International Convention, treaty of.
Our country signed, ratified the "United Nations Convention against Transnational Organized Crime" and "United Nations Anti-corruption Convention", also involves a lot of criminal procedure and evidence of the problem.

　　Three, the relationship between the criminal procedure law and criminal law
(a) the criminal procedure law has the guarantee of criminal law correct implementation effect, also has its own independent value.
The criminal procedure law on the guarantee of criminal law:
First, by explicitly on criminal cases and exercise the right of investigation, prosecution, adjudication of specialized agencies, provided the organizational safeguard for investigation and the case fact, criminal substantive law.
Second, the criminal procedure law, exercise the right of investigation, through the clear power and responsibilities and litigation rights of jurisdiction, the participation of the main people's rights and obligations, for the investigation and the case fact and the applicable substantive criminal law provides the basic framework of activities; at the same time, due to the clear activities and procedures, in order for criminal apply the substantive law has provided a guarantee.
Third, rules and use the method of collection of evidence rules of evidence, both for the obtaining of evidence, the case fact provides the means to collect evidence, and, using evidence provides standard procedures.
Fourth, design of the procedure system, can avoid, reduce the error case entity in a considerable extent.
Fifth, for different cases or different design different targeted program, make the case it has not, to ensure efficient handling of the case.
The independent value of the criminal procedure law, the provisions on the open trial, the defense system, is to embody the spirit of democracy, rule of law. The formulation and implementation of the criminal procedure law, is the realization of human value in democracy and the rule of law, to safeguard its own implication.
In view of the relationship between criminal law and criminal law, so from the bar exam. Exams, often in the topic contains both criminal law and criminal law contains.
[example, the case analysis topic]: a case in 2003 afternoon in October 15 day a roadside van unlocked, the car, go to A city. The road, pedestrian B license requirements aboard, a consent. A common second bag with huge amounts of cash, and his wealth. Travels to a remote place, a lied to malfunction, please get off the cart B help. B the handbag in the van on the seat, and then get off. A opportunity to launch the van to escape. B detected a intention, gripped the door not to put, was dragged 10 meters van. A see B is still not let go and run with the vehicle, is accelerated rapidly, so that B fell to the ground, causing serious injuries. B after the alarm, the public security organ according to the vehicle license plate armour seized. The interrogation process, although B identify and seize the spoils, but a refused to explain. The investigators C, in this case, was furious, for a beat, caused by a minor injuries. A statement of the facts of the crime, but also confessed all his crimes: in B, the 2003 day in June, a primary school for the occasion, in front of the school to intercept a the first grade boys, be cheated, and the boys to the individual shop to buy, shop owner more than 5000 yuan worth of high-grade wine and tobacco. In payment, a claim that not enough money, the boy in the shop, back money payment after the boys. The store owner thought that boys are a son agreed. A portable alcohol decamp, the public security organs to identify, a side there are some and a cheat to tobacco and alcohol of the same name, but failed to find the owner of the shop and the boys. The case to the procuratorial organs prosecution, Jia called guilty confession are C, Ding investigators to him by torture to extract confessions, overturned the guilty confession before all. The procuratorial personnel after investigation and verification, confirmed investigators C, Ding on the fact that a torture to extract confessions.
Question: please according to the relevant provisions of China's criminal law and criminal procedure law, the case of a, C, D behavior and relevant facts were analyzed, and put forward opinions. 2006.
[example, multiple-choice] a illegal detention of ethylene in A City area, and B area of the city, the car through the C area, will b transferred to the D zone to detention. For a case involving illegal detention, which the court has jurisdiction in accordance with the law (?) (2006)
A.A District Court
B.B District Court
C.C District Court
D.D District Court
　　[Q & a number 911010101: the title question]
[answer] ABCD
[D] territorial jurisdiction
[explain] "Criminal Procedure Law" provisions of article twenty-fourth, the criminal court cases people by the criminal. If the defendant resides to the people's court is more appropriate, can be under the jurisdiction of the people's court to the defendant habitat. Because of illegal detention
Is to continue to commit, so a and B after A, B, C, D four can be regarded as a crime. The D District A. District, is the main criminal. B area, C area for the crime, so the four courts have jurisdiction. Therefore, the correct answer is ABCD.
[example, multiple-choice] city people's Procuratorate received a report, bribery to Zhang the investigation, after investigation and prosecution on charges of bribery, found insufficient evidence. But the procuratorate Zhang has a small one villa, private BMW car a, otherwise nearly one million yuan of bank deposits, the criminal suspect a large. If the procuratorial organs shall be investigated for criminal responsibility in Zhang, prosecution of Zhang, need to prove the following items? 2003.
A. Zhang is the staff of state organs
B. Zhang is a national staff
Between C. Zhang legitimate income, the actual number of property and the difference of the two to 300000 yuan
D. item C above mentioned in the gap part of the source
　　[Q & a number 911010102: the title question]
[answer] BC
[knowledge] object of proof; the burden of proof
[a] that the object is in the lawsuit, need to use evidence to prove the issue. In general, the criminal litigation proof object including substantive facts and procedures in two aspects: one is the fact that the substantive law. The fact is the main entity elements about the crime, specifically: the facts of a crime or whether, for the crime suspect, the accused, the implementation of crime, the consequences of behavior, criminal responsibility, subjective fault; whether it is legal or discretionary heavier, lighter, reduced, exempted from criminal punishment fact; and behavior's individual conditions and after the crime. Two is the procedure facts. For solving the problem of legal proceedings in. Mainly includes: the relevant fact about delay; litigation term if there are reasons can not resist and other legitimate reasons that influence the coercive measures; in fact; violation of legal procedure, etc.. Visible, the object of proof has the following characteristics: one is a must and criminal suspects and defendants, conviction and sentencing and ensure justice of procedure, which must be matters of procedural meaning; two must be matters necessary evidence, if the matter is the conviction and sentencing and litigation justice, but there is no need to be proved by the evidence, as everyone knows but belongs to the fact or law is confirmed, does not belong to the scope of the object of proof. Therefore, BC is the correct answer.
Section second of the criminal procedure law making objective and task
　　
　　One, the law of criminal procedure purposes
"Criminal Procedure Law" provisions of article first of the its development objective: to ensure the correct implementation of the criminal law, punishing crimes, protecting the people, safeguarding state and public security, maintaining the socialist social order, according to the constitution, this law is enacted.
　　
　　Two, the task of criminal procedural law
"Criminal Procedure Law" second stipulates: "the 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, to educate citizens to consciously abide by the law, actively struggle against criminal acts, to uphold the socialist the legal protection of citizens' rights of the person,Property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction." Note that some rights of the provisions, once on the amendment of the criminal procedure law has increased the protection of property rights.
　　
The basic idea of section third of criminal procedure
　　
　　One, the punishment of crime and protection of human rights
The punishment of crime and protection of human rights is the relation of unity of opposites. The so-called human rights, refers to the process by criminal punishment, safeguard the legitimate rights and interests of citizens are not violated. Specific include: 1 innocent people were not prosecuted; 2 the guilty man has been punished justly; 3 litigation rights are fully protected and exercise.
　　
　　Two, the entity justice and procedure justice
Justice is the primary value goal of human society.
(a) the entity justice, namely the result fair, the processing results of the substantive which reflects justice.
Specific requirements:
1 according to the cognizance to conviction and sentencing of the facts of the crime, should be sufficient evidence;
2 the correct application of the criminal law, accurately identified the suspect, the defendant is guilty and charges;
3 in accordance with the principle of suiting punishment to crime, according to the appropriate decision of punishment;
4 for error handling of the case, take remedies timely correct, timely compensation.
(two) the procedure justice refers to the process of justice.
Specific requirements:
1 strictly abide by the provisions of the criminal procedure law;
2 to guarantee the litigants and other litigant participants, especially the suspect, the defendant and the victim's right of action;
3 prohibited torture to extract confessions and other illegal means to forensics;
4 judicial organs shall exercise their functions and powers independently;
Openness and transparency of 5 Security procedure;
In 6 cases, according to the deadline closed.
　　
　　Three, the efficiency of litigation
The litigation efficiency means the proceedings in the judicial resources (including human, financial, equipment etc.) processing quantity and cases. On the litigation efficiency requirements into judicial resources as much as possible cases. The pursuit of the efficiency of litigation, means should reduce litigation costs, accelerate the litigation action, reduce the delay and backlog of cases. In criminal proceedings, efficiency is the justice realized based on meaningful. Therefore, the relationship between justice and efficiency, is just the first, efficiency second. So can not simply to abandon the fair efficiency.
　　
The fourth basic category of criminal litigation section
　　
　　One, the objective of criminal procedure
The fundamental purpose of the criminal procedure law, the general objective and the law is consistent. In conducting criminal proceedings in any country, will be expected to maintain social order.
The direct purpose of criminal procedure law shows in two aspects: on the one hand, the country through the criminal lawsuit activity, should be accurate, timely find out the facts of the case on the basis of the crime the defendant correctly apply the substantive law, the punishment of the crime, the realization of national penalty power; on the other hand, the state in criminal proceedings safeguard the interests of participants in the proceedings are not violated, especially security and have a direct interest in the case of the criminal suspect, the defendant and the victim's litigation rights are fully exercise. The realization depends on the direct purpose of the criminal litigation aims.
　　
　　Two, the value of the criminal procedure
The value of criminal procedure includes order, justice, benefit of the item.
Criminal procedure law value includes two aspects: one is to punish crime, maintaining social order, restore the quilt crime of disrupting social order and prevent social order is destroyed by the crime; the second is investigated for criminal activities is ordered.
The core value of justice in criminal proceedings.
Benefit of the values of criminal litigation including efficiency, also includes the social security benefits in production.
　　
　　Three, the subject of criminal procedure
The criminal suit subject are all involved in criminal activities, the national special organs and litigation rights, in criminal proceedings to assume certain obligations of participants.
The participants in the proceedings, the parties are the main subject of litigation, other participants in the proceedings is the main general procedure.
　　
　　Four, the criminal procedure structure
The criminal procedure structure refers to the basic pattern of criminal procedure established by the criminal procedure law, litigation and specialized agencies in the legal relationship formed in criminal proceedings.
The criminal procedure structure reflectsAccusation, defense, the refereeStatus of the three party in criminal procedure and the legal relationship between.
　　
　　Five, the functions of criminal procedure
According to the traditional theory of litigation, criminal litigation has three basic functions, namely the accusation, defense and trial.
The complaint function to the court and court prosecution, criminal responsibility demands for the defendant because of the crime should bear, exercised by the national prosecution authorities and the victim.
The defense function with respect to the accusation function, put forward to the accused person refers to the facts and reasons favorable, safeguard the legitimate rights and interests of the accused, the exercise of criminal suspects, defendants, counsel to assist its exercise.
The judicial function refers to the trial to determine whether the defendant is guilty of the crime charged and should be sentenced and punished by the penalty, the court to exercise, is a neutral function, it must be detached from both sides, magistrates, bear the judicial function is the court.
The investigation is the necessary preparation for the prosecution, prosecution is part of activities, so the investigation can be regarded as the exercise of the functions of prosecution.

　　Six, stage of criminal proceedings
The stage is classified according to certain standards into several relative independent unit, for example, filing, investigation, prosecution, trial and execution.
Criminal litigation stage division standard:
The 1 tasks. For example, direct task of investigation procedure is to collect evidence, find the facts of the crime; direct task prosecution stage is made through the review prosecution and decided not to prosecute; the task of the trial stage is the conviction and sentencing.
2 to participate in the litigation agency and personal. The authorities in the investigation stage is mainly litigation investigation organ or department, examination prosecution stage is mainly the procuratorial organs, and the trial stage is mainly the court.
3 action way. Investigation procedures are carried out in secret in most cases. Pretrial procedure is relatively poor openness and transparency. The trial procedure is carried out in public and in most cases.
4 legal relationship. Different stages of litigation legal relationship of different.
Summary of the 5 litigation documents. For example, the prosecution stage summary document for the indictment, the decision not to prosecute, and summary documents judicial activities for judgments, rulings.