Criminal action:Refers to the state organs, attending parties and participants in proceedings, in accordance with legal procedures, all the activities in the handling of criminal cases.

Criminal Procedure Law: formulated by the state, the adjustment of public security organs in the parties and other participants in the proceedings to solve the problem, the legal basis for the prosecution of criminal activity.

Standard: according to the participants in the proceedings in the litigation, the litigation status and to deal with the case has no interest in different.

Party:In the prosecution or prosecution position in criminal proceedings, execution of prosecution and defense function, and the outcome of the trial is of direct interest to the participants in the proceedings. (the victim, private prosecutor, criminal suspects, defendants, incidental civil action litigant parties, unit)

The basic principles of criminal procedure

The basic principles of criminal procedure embodies 1 criminal activities. 2 basic principles of criminal procedure is the legal principle is stipulated by the criminal procedure law. 3 basic principles of criminal procedure generally run through the whole process of criminal procedure, has the universal guiding significance. The basic principles of criminal procedure 4 legally binding. The basic principles are more abstract and general, but the specific legal system and procedures must be consistent with the.

Responsible for the division of laborThe meaning is, the public security organs, people's Procuratorate and the people's court shall be responsible in accordance with the law in the criminal procedure, each its duty. The division responsible for the requirements of public security and judicial organs exercise their functions and powers in legal scope, can not replace each other, nor mutually making excuses."Cooperate with each other"Is the meaning, basic public security organs, people's Procuratorate and the people's court shall be responsible for mutual support and cooperation, coordinate with each other, so that the criminal procedure smooth convergence, together expose crime, that crime, punishing crimes task, protect the innocent people from criminal prosecution. "Restrict each other"The meaning is, the public security organs, people's Procuratorate and the people's court in criminal proceedings should supervise each other, mutual restraint, to prevent the occurrence of errors and correct errors in a timely manner, the correct enforcement of the law. division of responsibilities, cooperate with each other, mutual constraints, are closely related, are indispensable. Among them, division of labor is the premise, coordination and control are the three organs exercise their functions and powers according to law, the criminal procedure to ensure smooth. Implementation of this principle, the correct treatment to ensure the case, to get accurate and effective enforcement of the law.

Have jurisdiction over, refers to the division of authority directly handle criminal cases on the inside of the trial division of authority and the people's court system of criminal cases of first instance of the public security organs, people's Procuratorate and the people's court.

Filing jurisdiction: also known as jurisdiction under the jurisdiction of the department or function, is refers to between the public security organs, people's Procuratorate and the people's court and other organs in criminal cases directly accepted into the permissions.

Trial jurisdictionDivision of functions: internal system of justice of criminal cases of first instance in the people's court. Jurisdiction includes ordinary jurisdiction and trial of criminal cases of first instance on the division of labor. (general jurisdiction and exclusive jurisdiction)

General jurisdiction and jurisdiction by level, area and designation of jurisdiction

The grade jurisdictionRefers to the division of labor rights in the trial of criminal cases of first instance in the people's courts at all levels.

Area jurisdictionRefers to the division of jurisdiction in the trial of criminal cases of first instance in the people's courts at the same level.

The designation of jurisdiction: when the jurisdiction is unclear or the exercise of jurisdiction of the jurisdiction of the court should not, jurisdiction is determined by the superior court in the way specified.

AvoidanceTo avoid the criminal lawsuit, refers to the investigators, prosecutors, judges, as with the case or cases the parties have some interest or other special relationship, which may affect the impartial handling of criminal cases, and shall not participate in the handling of a litigation system of the case.

Avoid significance1: to ensure that criminal cases are processing objective 2 to ensure that the parties in criminal proceedings by justice 3. ensure the legal system and the implementation process is widely respected by the parties and the public

The cause of avoidance: 1 is a party to the case or in violation of regulations 4 has an interest in a near relative of the Party 2 himself or his close relatives and the 3. served as the case of the witnesses, authenticators, defender or agent ad litem of meeting with the parties and the principal or accept it please guests gifts 5. in this stage of the proceedings previously involved with the case of 6 and this case the parties have other relations, may affect the impartial handling of the case.

 

Avoidance decision:

1 public security, judicial personnel in an accusation, report, report or the process of handling cases, found to be avoided the situation, should be allowed to challenge. No self withdrawal, the parties and their legal representatives shall have the right to apply for his withdrawal. The parties and their legal agents to apply for withdrawal of the judicial personnel, can be oral or written, and explain the reasons.

To avoid the 2 judges, prosecutors, investigators, shall be respectively by the president of the court, prosecutor, the head of a public security organ; the withdrawal of the president, decided by the court's Judicial Committee; the prosecutor and the head of a public security organ avoidance, decided by a people's Procuratorate at the same level of procuratorial committee.

3 judges, prosecutors, investigators or clerk, identification, translators should also be challenged, respectively by a review organization or individual evade decision, and make a decision.

4 the parties and their legal representatives to prosecutors, court clerk to apply for withdrawal, the people's court shall notify the procuratorial personnel assigned to the people's Procuratorate, decided by the hospital or the procuratorial committee procurator.

Avoid the effect: avoid the decision was made, the law, the public security and judicial personnel should immediately withdraw the criminal activities. Considering the urgency and particularity of the criminal investigation, but also to prevent the review investigation activities in a timely manner to avoid affecting thirtieth criminal procedure law, the provisions of the second paragraph: avoidance of investigators before making a decision, the investigators could not stop the investigation of a case.

Defend: refers to the criminal suspect, defendant and counsel to refute the charges, according to the facts and the law, put forward in favor of the defendant's evidence and reason, that the defendant is not guilty, guilty or to reduce, exempt from litigation activities punishment.

 

Criminal agent, was commissioned by the litigation agent accept the victim in a case of public prosecution and their legal representatives or near relatives, the party in an incidental civil action and the legal representative of private prosecution, the prosecutor and his legal representative, in the name of the principal, the agent is authorized scope, proceedings to safeguard their legitimate rights and interests of the.

The defense system: legal provisions about the right to defence, defence, defence, types of defender, Defender responsibility scope

 

The difference between criminal and criminal agent:

1     Defender and agent of different applicable objects. Applicable object of defense is suspect and accused person, namely under criminal accusation; suitable object and agent is the requirement of criminal prosecution of the people.

2     Defender and agent generated according to different. The defense can be generated according to the principal of criminal suspects and the accused, but also according to the specified property of the people's court; and acting only on the basis of the party or his legal representative, close relatives of the Commission, authorized, the people's court cannot be specified.

3     The different status in litigation counsel and agent. The defender has the independent status of litigation, can not be the suspect and accused person constraints; while the agent in litigation is attached to the principal, do not have independent legal status, only in the proceedings in accordance with the principal's will of agency activities.

4     Different defenders and agent function. The defender execution in criminal proceedings is the defense function; agent most is the implementation of the functions of prosecution.

5     Nominal defender and agent scope and activities of different. Defense right is legally, in its own name; and the scope of authority based on agent is the agent is authorized, conduct activities in the name of the principal.

Criminal evidence: refers to the legal provisions of the form to all facts that prove the true circumstances of a case.

Features: 1 2 3 the legitimacy of objectivity relevance

Classification of criminal evidence: A, according to sources of material evidence is different, can be divided into the original evidence and hearsay testimonyTwo, according to the evidence evidence is positive or negative crime suspect, the defendant committed a crime, the evidence as evidence of guilt or innocence evidenceThree, according to the form of evidence, the evidence can be divided into verbal evidence and physical evidence, according to the four main facts of evidence and prove the relationship between evidence, can be divided into direct and indirect evidences

Statutory classificationThe types of evidence: various external form refers to show evidence of content, there are the following seven kinds of evidence: (1) material evidence, documentary evidence; (2) the testimony of witnesses; (3) the statement of victims; (4) the suspect, the defendant confession and exculpation; (5) the appraisal conclusion; (6) the inquest, inspection the record; (7) audio-visual materials

Summon:The public security organs, people's Procuratorate, the people's court for compulsory the custody of the interrogation of a coercive methods to the suspect, the defendant is not in custody. 　　

Bail:The people's court, the people's Procuratorate or the public security organ shall order it to some suspect, the defendant to provide a guarantor or pay margin, ensure becking call a compulsory measure. Executed by a public security organ. 　　

Residential surveillance: the people's court, people's Procuratorate, the public security organs in the criminal lawsuit limitation of criminal suspects and defendants, within the prescribed time limit shall not leave the place or the designated residence, a compulsory measure and monitor, the limits of their liberty. 　　

DetentionThe public security organ or the people's Procuratorate: in criminal investigation, active criminals or suspects, temporarily take compulsory measures. 　　

Arrest: a people's Procuratorate, the people's court decision, a public security organ, coercive measures of criminal suspects of personal freedom and solution to some place in custody deprivation in a certain period of time.

The suspension of criminal procedureRefers to the process in criminal proceedings, due to the occurrence of some of the normal conduct of the proceedings and the proceedings to be suspended temporarily stop, disappear after the situation, to restore the litigation system.

 

The difference between criminal termination and suspension

1, the application of different conditions: termination of action for according to the law is not necessary to continue or not should proceed with litigation, litigation suspend for a lawsuit due but unable to continue the situation;

Results 2, produce different, termination of action is that the criminal suspect or the defendant need not or should not be investigated for criminal responsibility, so as to end cases, no prosecution, suspension of litigation, litigation activities just pause, continue to go to action to eliminate the normal proceedings after the situation.

3, applicable procedures, termination of action, the decision on cancelling the case made by the authorities according to the specific circumstances of the case, the decision not to prosecute, suspension of hearing the verdict, delivered the suspect, defendant and their families and units; suspension of litigation, only need to decide attached, notify the relevant units or individuals, generally do not make a formal legal document;

Case materialRefers to the facts of the crime or the criminal suspect material, it is the public security and judicial review, and decide whether or not according to the.

Source: 1, the public security organ or the people's Procuratorate directly found and acquisition of materials; 2, units or individuals to report or report; 3, the report or accusation, crime; surrender 4 people; 5, other sources of materials.

The case conditionAlso called case: the reason or the case according to the, is refers to the criminal case must have the legal basic elements, is to determine whether the right decision basis for filing, registration must have two conditions: one is the facts of the crime, the two is the need to be investigated for criminal responsibility.

The decision to initiateIt is found that the public security organs: the facts of the crime or the criminal suspect, decide to initiate investigation decision class of legal instruments used.

The conclusion of the investigation, is refers to the public security organ or the people's Procuratorate investigation activities of a series of criminal cases, on the basis of the established facts, evidence and the relevant legal provisions, sufficient to make the crime suspect whether crime, crime, crime committing what circumstances and whether the criminal responsibility should be investigated conclusion, decided to end the investigation and litigation activities make the decision of the case.

The supervision of investigation,Refer to the people's Procuratorate supervision of the investigating activities of the legality of. According to the provisions of the criminal procedure law, the investigation organ shall include the public security organ, the state security organs, as in some cases to exercise the investigation power prison, the security departments of the army and the people's Procuratorate investigation department.

The difference between public prosecution and private prosecution: 1 body suit different. The public prosecution by public authority on behalf of the state criminal suspects litigation request, the court shall be prosecuted for criminal responsibility. Private prosecution by the parties themselves asking the court prosecution, shall be investigated for criminal responsibility of criminal suspects. 2 public prosecution can not be revoked, private prosecution may be revoked.

Appeal not infliction principle

Refers to the people's Court of second instance trial the accused party appeal, not a trial principle for any reason to increase the defendant punishment. Its purpose is to protect the defendant's right of appeal.

The specific meaning: 1 the appeal is the defendant's legal rights, regardless of the grounds of appeal is proper, cannot with the accused appealed against the judgment or bad attitude in the two trial aggravated the original penalty. 2 only the defendant party appeal, trial court confirmation should be carried out according to the second paragraph of Article 189 revision of the criminal procedure law, even if the original light sentencing, nor increase the defendant punishment. 3 only the defendant party appeal, trial court should be confirmed according to the criminal procedure law of 189 specified in article third or directly to the remand, in fact finding, if no alteration facts, nor should increase the criminal punishment on the defendant.

Scope of applicationA: by the defendant, independent institute, or his agent, counsel filed, or the prosecutor for the interest of the accused to appeal the case ; two, implement the two-tier trial system, refers to the. The implementation of three tiered system, including the trial of second instance and third; three, the second or third trial, ruling the case remanded ; four, not the CO defendant.

Specific application: 1 case of joint crime, only part of the appeal, the defendant appealed neither aggravated punishment, also cannot aggravate other co accused penalty. 2 of the combined punishment for several crimes, neither aggravated decided to carry out the penalty, is not constant in maintaining determines execution of penalty circumstances, a crime or several crimes in the punishment of the crime of aggravated. 3 of the defendants sentenced to criminal detention or fixed-term probation, or revocation of the original sentence declared probation, or extend the probation period. 4 common criminal cases, the people's Procuratorate protest on the part of the accused only of judgment, the other defendants shall not increase the punishment. 5 for facts unclear, insufficient evidence and the case remanded, the court of first instance after re hearing change, if only because the defendant a party appeals to cause the second case, court of first instance shall not increase the punishment. 6 the fact that no mistakes, only qualitative not convict, improper, the adjudged to determine the charges, should not increase the criminal punishment on the defendant.

Significance: 1 appeal not infliction, conducive to the protection of the defendant to fully exercise the right to defense, the defendant's right to defense 2. conducive to the maintenance of the appeal system, guarantee the right to exercise jurisdiction court. 3 helps the judges of the court of first instance to strengthen the sense of responsibility, and strive to improve the quality of the trial work; also can make the procuratorate conscientiously perform their duties, improve the procuratorial organs prosecution and appeal level.

 

The principle of the comprehensive review

The people's Court of second instance shall conduct a comprehensive review on the first trial of facts and the application of the law, not subject to appeal or protest range limits. Joint crime is only part of the defendants appeal, shall examine the case.

Content: 1, must be identified on the trial court fact is correct for review, and is applicable to the correct law review. 2, both to the appeal or protest on the part of the review, and to review is not part of the appeal or protest. 3, in the common crime case, only the part of the defendants appeal, or the people's Procuratorate only to the people's Court of First Instance judgement on the part of the defendant protest, the people's Court of second instance shall examine the case, together. That is for a defendant who has appealed a review of the issues, but also to review the defendant does not appeal; both to the defendants who had been filed an appeal or protest problems are reviewed, and problems are reviewed for defendants are not filed an appeal or protest. 4, for the case of incidental civil action, shall examine the case, which not only review the part of incidental civil lawsuit, but also review the criminal part, in order to correctly identify civil liability.

Legal non prosecution: refers to the people's Procuratorate to the public security organs investigation to prosecution or concluded its investigation of a case for review, that the suspect's conduct did not constitute a crime according to law or criminal responsibility should not be investigated, in order to make not will decide a suspect to the people's court trial.

Situation: 1 plot remarkable slight, little harm, not deemed as a crime; 2 criminal prosecution deadline has passed; 3 the amnesty punishment; 4 in accordance with the criminal law that crime, tell or withdraw told no; 5 criminal suspects, defendants to death; 6 other laws provide an exemption from criminal responsibility.

The procedure of first instanceGeneral: People's court to the people's Procuratorate public prosecution and private prosecution brought a case of private prosecution of the first trial should follow the way, method, steps and procedures.

Task: to the people's Procuratorate filed public or private prosecution bring a private prosecution cases, in the public prosecutor, the parties and other participants in the proceedings of the next, in accordance with legal procedures, objective, a comprehensive review and verify the evidence, identify the facts of the case, then according to the provisions of the criminal law, for the defendant is guilty, guilty of any crime, whether a sentence and what punishment, make correct judgment, to make criminal law sanctions deserved, innocent people from criminal prosecution in error, and the spectators by legal education.

Significance1: the procedure of first instance is the people's court in basic and necessary procedure.

     2 the first trial procedure embodies the basic principles and system of criminal procedure law.

     3 the first trial procedure operation, is the key link to complete the task of the criminal procedure law.

     The correct operation of the 4 procedure of first instance, can improve the efficiency of lawsuit.

Summary procedureThe basic people's Court: refers to some simple minor criminal cases of first instance, the relative procedure more simplified trial procedure.

Features: the 1 is only applicable to the courts at the grassroots level. 2 is only applicable to the procedure of first instance. 3 is only applicable to simple, mild, clear facts, evidence of criminal cases. 4 the hearing has the advantages of simple and convenient. 5 the application of modifiability.

Scope of application: 1 may be sentenced to 3 years in prison, detention, control, single punishment in cases of public prosecution, gold facts are clear, the evidence in accordance with the law, the people's Procuratorate suggestions or to apply summary procedure. 2 tell it to deal with the case of 3 prosecution has evidence to prove that they are minor criminal cases.

The procedure of second instance:A higher people's court, the people's Court of first instance trial again due to the parties or the people's Procuratorate or made by the court of first instance judgment or ruling made an appeal or protest proceedings.

TaskTo the people's Court of first instance: has not the referee's case to conduct a comprehensive review, check the trial judges that whether the facts are clear, the evidence is true enough, applicable law is correct, the sentencing is proper, procedure is legitimate, and according to the Richamin situation, made the final judgment, with the correct the referee made to maintain the people's Court of first instance, correct the wrong judgment.

Significance: 1, the second instance procedure, correct judgment of first instance error; 2, the second instance judgment of first instance, maintain correct judgment; 3, through the procedure of second instance, the people's court at a higher level to the lower level people's court guidance and supervision tasks.

Appeal: refers to enjoy the right to appeal against the first instance without the legally effective judgment, ruling, in accordance with legal procedures and time limit, to re trial cases require a higher people's court act.

Protest: refers to a local people's Procuratorate believes that the first trial court decision or ruling shall not take effect when the action is wrong, within the statutory time limit shall request the people's court at a higher level for re trial cases.