Criminal Procedure Law

 

[note] to

 

Change is part of criminal procedure law in 2009 judicial exam outline. From the point view, change the content of "transfer of jurisdiction", "designated jurisdiction", "the appeal or protest, the term", "program" trial mode ", the criminal supplementary civil action case and the case of private treatment", "decision 'may have errors' situation", "stop the execution of the death penalty the program start", "to stop the death penalty review, after processing" is the core content of the knowledge points. In addition to the new "Regulations" on the application of increased stop issues related to the implementation of death penalty procedure, the study focuses on the issues of death penalty execution stops. Therefore, the new change of knowledge point of the criminal procedure law accounted for roughly 10 minutes.

The following changes to the criminal procedure law:

The new sites	Change point	The new laws and regulations
1   The first section of the eleventh chapter: the characteristics and significance of the case 2   The twelfth chapter: the detection task 3   The fourteenth chapter: the characteristics of the two final trial system, the criminal trial 4   The first section of the fifteenth chapter: the concept, the procedure of first instance classification 5   The sixteenth chapter: treatment of second instance procedure of second instance, the function and significance of the appeal and protest of the period, the procedure of second instance trial mode, the supplementary civil action in criminal cases 6   The eighteenth chapter: initiate the procedure for trial supervision materials 7   The nineteenth chapter third: Judgment "may be wrong" situation; stop execution procedure; to stop the death penalty review, after treatment 8   The first section of the twentieth chapter: the concept of juvenile criminal cases, procedural meaning 9   The twenty-first chapter: the legal basis for the criminal judicial assistance	1     The second chapter: "the main principles of the law of criminal procedure" 2     The fourteenth chapter: delete the task of criminal trial 3     The fourteenth chapter: to understand the content by the "the model of criminal trial, criminal judgment principle" changed to "all kinds of model of the criminal trial, the principle of criminal trial" 4     The twenty-first chapter: the second "foreign criminal procedure principles" to the first festival "in foreign criminal proceedings overview	1"Provisions of the Supreme People's Court on the application to stop the issues related to the implementation of the death penalty procedure"

 

[the teacher lectures]

 

Point one: characteristics and significance of the case

 

(a) the case feature

Criminal proceedings in the case is that the public security, judicial organs for his discovery of the case material and Sue, report, report, surrender the material review, in accordance with their respective jurisdiction, to determine whether the facts of the crime and whether you need to be investigated for criminal responsibility, and decide whether to carry out the investigation and litigation to trial. According to the provisions of the criminal procedure law, file has the following characteristics:

The 1 case is the law entrusts with the public security organs, people's Procuratorate, the people's court special powers and duties, any other organs and individuals have no right of file. In other words, in China, only the public security and judicial organs have the right to decide an event as a criminal case into the lawsuit, then launches the investigation or trial activities.

The 2 case is in our country criminal prosecution of an independent, must pass through the stage of the proceedings, criminal activity is a sign to start.

First, the independence of the case as follows: it with the investigation, prosecution, trial stage of the proceedings in parallel, with specific action task and achieve the task specific procedures and methods, the criminal legal relationship formed a specific subject of litigation between; 

Second, necessary file displays in: the file is the starting procedure of criminal procedure, for any criminal case judicial organs must be approved by the registration phase. Criminal procedure is divided into filing, investigation, prosecution, trial, execution and other relatively independent stage, some cases may not through one or several stages, but must be approved by the registration phase, such as criminal private prosecution cases without investigation, prosecution, but it must be the people's court shall examine the case to go to trial.

(two) for significance

The 1 case is a necessary procedure of criminal litigation, the judicial organs only in the review of that material, according to the facts of the crime occurred and need to be investigated for criminal responsibility and makes the decision of the investigation, the investigation, prosecution or trial proceedings have legal basis. Of course, in case of emergency, such as to avoid loss of evidence, the suspect fled under such circumstances, the judicial authorities can not registered to take investigation necessary or compulsory measures, but also to review immediately after taking investigation necessary and compulsory measures, in conformity with the case on file conditions, do not meet the conditions should immediately lift the mandatory measures, to terminate the investigation behavior.

China is the world's few will file as necessary criminal proceeding, independent country, its important purpose is from the procedure to prevent the judicial organ abuse of judicial power, feel free to take investigation behavior or compulsory measures, infringes upon the lawful rights and interests of citizens. Therefore, protection of the legitimate rights and interests of citizens file is not violated, protect innocent people from criminal procedure important security measures.

The 2 case is helpful to supervise the judicial authorities timely, accurately expose, confirmed, crime.

Registration is the necessary procedure of criminal litigation, the judicial organs must comply with. The judicial organs but found that crime has been implemented, are being implemented or prepared to implement and need to be investigated for criminal responsibility, it must be accurate, timely filing, rapidly organized forces to carry out investigation behavior necessary, necessary enforcement measures, carry out investigation activities, to discover and collect evidence, and full disclosure, confirmed, the punishment of crime.

The 3 case in favor of the state and accurate evaluation of the social order situation, provide the basis for the development of criminal policy.

The right of accreditation activities, do a good job of judicial statistics, countries can commit the crime timely, grasp each period, each area of criminal cases and activity patterns, accurately different crime characteristics and development situation, and macroscopically accurate evaluation of public security situation, formulate corresponding policies.

 

Point two: the concept of the procedure of first instance

 

The procedure of first instance is the people's court in the criminal procedure law of the people's Procuratorate public prosecution, private prosecution people bring a private prosecution cases are the first trial should follow the procedures.

The procedure of first instance is the basic procedure of court trials, is a very important stage in the criminal procedure. Both the cases of public prosecution and private prosecution case, first of all to the people's Court of first instance. From the beginning of the procedure of first instance, the people's court for the trial of the entity, make the cognizance of facts, and in accordance with the relevant provisions of the law on the defendant guilty judge. The people's Court of first instance proceedings referee is the basis of the procedure of second instance, the death penalty review procedure or the trial supervision procedures, but many of the provisions of the procedure of first instance in the other trial procedure reference standards.

Criminal cases of first instance cases of public prosecution and private prosecution is divided into. In cases of public prosecution refers to the people's Procuratorate to the people's court proceedings of the case, a case of private prosecution refers to the victim or his legal representative, close relative to the people's court, handled directly by the people's court cases. Correspondingly, the procedure of first instance for a case of public prosecution, private prosecution procedure of first instance and the procedure of first instance. In addition, the criminal procedure law according to the characteristics of the case itself, the case is more simple, the evidence is sufficient, penal lighter public or private prosecution Trial Provisions of the summary procedure.

[try]

Which of the following statements about the procedure of first instance of the right is:

A. the first trial procedure is divided into ordinary procedure, simple procedure, "the confession of the defendant" program and the minor criminal procedure

B. the first trial procedure is divided into a case of public prosecution, private prosecution procedure of first instance and the procedure of first instance

C. the first trial procedure is the basic procedure of court trials

The people's Court of first instance in the D. program to the referee is the basis of the procedure of second instance, the death penalty review procedure or the trial supervision procedure

[answer]: BCD

[analysis]: the concept of the procedure of first instance is the outline of the contents of the new, although the increase is conceptual, accurately understand and grasp but remind candidates should pay more attention to the basic concept. The procedure of first instance is the basic procedure of court trials, many of which provisions are other trial procedure reference to the implementation of the standards, is a very important stage in the criminal procedure. The first procedure is divided into ordinary procedure and summary procedure, the defendant pleaded guilty to program is to simplify the procedure and make special provisions, but the essence is still the ordinary procedure, the minor proceedings in order to better protect the rights of minors and make special provisions, the essence is the ordinary procedure, so the A error.

 

Point three: the concept of juvenile criminal cases, procedural meaning

 

(a) Concept of juvenile proceedings in criminal cases

The minor criminal case refers to the full 14 years of age, with 18 years of the implementation of the provisions of the criminal law, serious violation

Social behavior. A minor procedure of criminal case, refers to the investigation, specially for the juvenile criminal prosecution, trial, execution is a kind of special criminal procedure.

Two. Legal proceedings in criminal cases involving juveniles significance

1     Contribute to the education, save the delinquent minors

Because minors mental, physical and mental development is not mature, re understanding of things on the outside and the inner world of self evaluation

Price has a greater plasticity, so the move and save the education, there is still the possibility. The establishment of juvenile criminal cases special proceedings, the case handling, not open trial, simple and rapid procedures for minors special protection, education and save, return to education contribute to juvenile delinquency.

2     Help to solve the social problems the number of criminal cases of minors

For the purpose of focusing on education, minor penalty save and role, realize the education regression in judicial punishment purposes. Set

Made minor special criminal procedure, a rapid simple program, a rapid simple program, may contribute to the solution of the juvenile criminal cases increase social problems.

3     In accordance with the international development trend of juvenile legislation

At present, the international on the procedure of criminal case of minors "Convention on the standard minimum rules of the United Nations" juvenile,

"The United Nations Guidelines for the prevention of juvenile delinquency" "Convention on the rights of the child", "the United Nations protection is deprivation free rules" and other international conventions. The establishment and improvement of our legal system of protecting the rights and interests of minors, the establishment of special juvenile criminal litigation procedures, contribute to the basic principles, standards and specifications make the international convention, fully embody and effectively implemented.

4     Is conducive to the development of China's criminal procedure and perfect

Minors special criminal case procedure enriches the criminal procedure of our country content, according to the different criminal target

The procedure, the judicial idea and rules more introduced, will contribute to the development and perfection of China's criminal procedure.

 

[key] law introduction

 

Provisions of the Supreme People's Court on the application to stop the issues related to the implementation of the death penalty procedure

(2008) (Interpretation No. 16 by the Supreme People's Court on November 24, 2008, the 1455th meeting of the judicial committee)
　　
　　Article 1Law of criminal procedure 211st, 212nd provisions of the decision "may be wrong" includes the following situations:
(a) to find the criminal may have other crimes;
(two) the other suspects arrested may affect the common crime, criminal punishment;
(three) other criminals crime is to pause or stop execution, may affect the criminal sentencing;
(four) the judgment may be other error.

[interpretation] this provision is applicable to stop execution of death penalty procedures three cases "may be wrong" situation. According to the need of judicial practice, the judicial interpretation of the provisions of the original further refinement principle in the law, make it operable. This article is to start and stop execution process conditions, according to the investigation over the years on the new law, candidates should be the specific content of memorizing the entries in the exam questions, avoid flexible and confusion.

Correlation method:

"Criminal Procedure Law" article 211st lower people's court to the Supreme People's court orders of execution, shall be executed within seven days. But one of the following circumstances, should stop the execution, and immediately report to the Supreme People's court, the Supreme People's court for a ruling:

(a) Before the execution is found in the judgment may be wrong;

Two. In the implementation of the criminal exposes major criminal facts or other major meritorious service, may require revision;

Three. Criminals are pregnant.

The first, lost second to stop the execution after the reasons, must be submitted to the Supreme People's court re issue of execution of death

The command to execute punishment; because of the third reasons to stop execution, shall be submitted to the Supreme People's court shall be amended according to the law.

"Criminal Procedure Law" article 212nd the people's court in the delivery of execution, shall notify the people's Procuratorate at the same level to the spot supervision.

Shooting or injection method of execution of the death penalty.

A death sentence may be executed on the execution ground or in a designated place of custody.

The judicial personnel directing the execution shall verify the identity, the crime, interrogation has any last words, letters, and then executed for execution of the death sentence. Before the execution, if it is found that there may be an error, the execution shall be suspended, submitted to the Supreme People's court.
   The death penalty should be released, should not be publicly.
   After a death sentence is executed, the court clerk on the scene shall prepare a written record. The people's court shall deliver the execution situation report to the Supreme People's court.
   After the execution, delivery of the court enforcement shall notify the family members of the criminal.
Article second if a people's court to the Supreme People's court in the implementation of execution command, ago, found that 211st of the criminal procedure law in the first paragraph, 212nd paragraph fourth of the situation, the execution shall be suspended the death penalty, and the request immediately to stop the execution of the death penalty Report and related materials via the Supreme People's court approval.

Correlation method:

The fourth interpretation of the Supreme People's court in execution command issued before, after, found that 211st of the criminal procedure law in the first paragraph, 212nd paragraph fourth of the situation, should immediately ruled that if the people's court to stop the death penalty, and the relevant materials to the people's court at a lower level. If the people's court jointly with the relevant departments, after investigation and verification, should be timely investigation and examination results and comments via the Supreme People's court.

[interpretation] the two provisions regulate the start stop execution: first, if the people's court for startup (second); second, the Supreme People's court to start (fourth).
Third Supreme People's court, upon examination, that does not affect the conviction and sentencing of offenders, shall order the people's court at a lower level to continue execution; that may affect the criminal conviction and sentencing, shall order the lower people's court to stop the death penalty. If the people's court to stop the execution, shall, jointly with the relevant departments to investigate and verify, and timely investigation and audit results and opinions of the Supreme People's court approval.

[interpretation] this standard to stop the death penalty review.
Article fifth the people's court at a lower level submit request to stop the execution report and related materials, by the Supreme People's court approved the death penalty judgment original a collegial panel shall be responsible for the examination, when necessary, shall form a new collegial panel to review.
Article sixth the Supreme People's court in accordance with the law to have to stop the death penalty cases, respectively according to the following circumstances:
(a) confirm that criminals are pregnant, should be in accordance with the law revision;
(two) confirm the original judgment is wrong, or criminals have significant meritorious service needs to change, should not be ruled by the death penalty, revocation, remand the case for retrial;
(three) confirm the original judgment without error, or a criminal without major meritorious service, or major meritorious service does not affect the original judgment execution, shall decide to continue to implement the original approved the death penalty judgment, and by the president to issue the command execution.
[interpretation] the two provisions for the handler to stop execution procedure. Candidates should be of particular concern is: first, review by the supreme law subject: to approve death penalty judgment original collegiate bench shall be responsible for the examination, when necessary, shall form a new collegial panel for review; second, treatment after review of: (a) confirmation is pregnant, should be in accordance with the law to confirm the original judgment (two); there are errors, or criminals have significant meritorious service needs to change, should not be ruled by the death penalty, revocation, remand the case for trial; (three) confirm the original judgment without error, or a criminal without major meritorious service, or major meritorious service does not affect the original judgment execution, shall decide to continue to implement the original approved the death penalty judgment, by the president to issue the command execution.

To remind candidates note is: if the judgment without error or major meritorious service does not exist or does not affect the original judgment execution, the Supreme Court shall re issue the command execution. For pregnant prisoners, you do not need to subordinate hospital review, the court directly according to.

[try]

In accordance with the "Regulations" Supreme People's Court on the application to stop the issues related to the implementation of death penalty procedure, the following statement is correct:

A. to stop the execution program can only be executed by the lower court to start, but the review and processing can only be carried out by the Supreme People's Court of the collegial panel

B. to stop the execution procedure can be made by the Supreme People's court to start, but the review and processing can only be carried out by the Supreme People's court re formed a collegiate bench

C. ahead of the execution, that the criminals are pregnant women, verified, the Supreme People's court to re issue command execution

D. ahead of the execution, the criminals with a major bank robbery clues, found false, the Supreme People's court need not again issued the command execution

[answer]: D

[analysis]: what the master degree of new laws and regulations, "the Supreme People's Court on the application of stop issues related to the implementation of death penalty procedure regulations", according to the provisions of the regulations, to stop the death penalty proceedings have two situations: first, if the people's court found that should stop the execution of the situation, should be immediately reported to the Supreme People's Court of justice; second, the Supreme People's court in the executed command is issued, before execution, found that should stop the execution of the case, ruled that the people's court at a lower level shall immediately stop execution. Secondly, according to the provisions of article fifth, submitted to the people's court at a lower level to request execution report and related materials, by the Supreme People's court approved the death penalty judgment original a collegial panel shall be responsible for the examination, when necessary, shall form a new collegial panel to review. Thus, AB error. CD is executed before the study found shall stop the execution situation, after examination, according to different circumstances investigation, the court made different treatment methods. Confirmation is pregnant, it shall be revised, must not again issued a death warrant, C error after review found the criminal clues not true, can not be established major meritorious services, shall decide to continue to implement the original approved the death penalty judgment, and by the president to issue the command execution.