The criminal protest

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  • / Author: Aaron Lewis
   The criminal protest, is the people's Procuratorate of the people's Court of criminal judgement is wrong or rulings in accordance with the protest produced documents.
The criminal protest is one of second instance and retrial by the people's court statutory instrument.
According to the provisions of China's "criminal law" article 181st, article 205th paragraph third, local people's procuratorates such as that the people's Court of the first instance judgment, ruling mistake, within the statutory time limit, shall put forward anti appeal to a higher people's court. This is usually referred to asThe procedure of second instance of the protest. The Supreme People's Procuratorate of a legally effective judgment of the people's courts at all levels and the ruling, a superior people's Procuratorate against the legally effective judgment or ruling, if mistakes are found, have the right in accordance with the procedure for trial supervision to the people's court at the same level of a protest. This is usually referred to as a protest procedure for trial supervision. The protest to the procedure of second instance trial supervision procedure and protest, the protest is different in structure, content, should distinguish the application.
The criminal protest as described in the text type documents. The second instance procedure using the criminal protest, a header, body (the original judgment or ruling, procuratorate review and appeal reason, concluding observations), tail, note. The procedure for trial supervision using the criminal protest, the first (the basic situation of the defendant of the original instance), text (effective judgment or ruling, the effective judgment or ruling of the examination opinions, protest, protest, reason decided) tail, note.
(1) the first. The people's Procuratorate name, write the full name; if the foreign-related cases, school name prefixed with "the people's Republic of China".
The second instance procedure applicable criminal protest, basic situation does not write the defendants. Application of the procedure for trial supervision of criminal protest, should write the defendants. The defendants "prison", refers to the custody or prison where, what time you release, parole or take bail, residential surveillance measures.
The original judgment or ruling status:
The problem for the court, procuratorate, charges inconsistent, should be respectively.
For the investigation, prosecution, trial stage did not exceed the time limit the illegal phenomenon of the procedure, do not have to specify the process of handling the public security, procuratorate, court, court only briefly stated the original judgment (ruling) results.
Application of the procedure for trial supervision of Criminal Protest: write a procedure, you should clearly indicate the lift procedure for trial supervision protest reasons: written verdicts (ruling) situation, if is the first instance of a legally effective judgment or ruling, not only to specify a judgment and ruling of the main content, also what judgment and ruling effect of time. If the second trial final judgments and rulings, should the main content that first and second instance judgments and rulings.
(2) text.
In fact, the plot, the evidence by authorities. This is the procuratorial organs confirm the court (ruling) errors and to lodge a protest in accordance with. The protest the prosecution facts, circumstances, should be the facts are clear, evidence really fully. Should be in the legal and factual elements on intact.
The criminal protest proof writing: if the protest submissions and court found no differences on facts, evidence, in the criminal protest only general statement that evidence can be. However, if the people's Procuratorate, the people's court in the determination of facts, evidence of differences, the protest should be aimed at the court in ascertaining the facts, circumstances and evidence of the error, targeted to elucidate, cited evidence. If it is for the court "insufficient evidence, accused of the crime was not" a not guilty verdict, the relevant departments should demonstrate validity, divided in the case of sufficient evidence of guilt.
The examination opinions to the distinctive point of view, be concise and to the point. First of all to the nature of the protest organization crime facts and circumstances, give a general review, pointed out that the defendant behavior of social harmfulness degree; then pointed out that the original judgment (ruling) error, indicating the protest points. Pointed out the mistake, to recap, say without mincing words, language specification. We need to use specific facts and evidence, clearly pointed out that the original judgment or ruling error.
The reason for the judgment of the first instance should protest (or order) errors are demonstrated. Accurate to argument, argument is sufficient, reasonable argument. According to the legal provisions and the appeal of work experience, the main reason to protest the following questions organization demonstration:
A, the original judgment or ruling to find the facts wrong, including the omission crime, criminals should be determined according to law, omission crimes no recognition of the situation. This is one of the main reasons to lodge a protest. The fact is foundation of the applicable law, qualitative, sentencing, the facts are wrong, will inevitably lead to errors in qualitative, sentencing or applicable laws. Therefore in the written appeal reason, to specify the original judgment error, then analyzes the procuratorial organs facts and evidence really fully.
B, the original judgment or the law applicable to the error, including qualitative, conviction, not punishment or penalty improper etc.. If the original judgment is because the facts wrong and lead to erroneous application of the law, should be first procuratorial organs ascertain facts and evidence that, then it points out that the original judgment in the application of the law of error, then illustrate how the case should be how to correctly apply the law; if the original judgment is only the law wrong, should be noted the specific error, focuses on the nature around the fact and legal meaning, and demonstrates how to apply the law correctly.
C, the original judgment or ruling sentencing of misconduct, including crimes do not adapt to the penalty is too light, too, with the statutory mitigating circumstances, mitigating circumstances and fails to accurately sentencing, probation, and improper. For reasons to inappropriate, the protest grounds.
D, the original judgment or ruling violating the legal procedure, influence the correct judgment, to write the facts show please the court violates the procedure, including time, place, person or a collegial panel trial violations etc.. And write down the correct judgment of the actual performance impact. Then it expounds correct procedure prescribed by law.
There is ample E, clear evidence of facts in the original judgment, the case mistakenly identified as a lack of evidence, and found not guilty, to focus, to make full use of criminal facts and evidence, proof of this case by statutory specifications, is sufficient to recognize the truth. Among them, demonstrate evidence really, good reason, for a new supplementary evidence, explain its probative force; that the mistakes, mistakes pointed out that evidence, it correctly identified "insufficient evidence for the truth; indeed, fully" standard, specification of understanding of differences, combined with the specific case, clarify the standards, specification for understanding protest organs according to law.
In judicial practice, the specific structure of the written protest grounds:
A, subsection lists. The protest arguments, arguments and reasons in the serial number, divided into several sections of the natural. The characteristic of this method is: the argument is clear, argument is clear, consecution sex is strong. It is used for appeal reason more cases.
B, comprehensive analysis. The protest grounds hierarchical narrative in a natural period. The characteristic of this method are: the structure is compact, centralized view summary. It is used for the reason, the argument is less appeal cases.
C, the. That is at the same time have protested case multiple defendants, with reference to the above method for each defendant case discusses appeal reason.
F, referencing the legal basis. Belongs to the substantive issues, such as qualitative, conviction, sentencing and other references to the laws of our country, "criminal law" and other entities to corresponding terms; belongs to procedural issues, such as the violation of legal procedures, references to the provisions of China's "criminal law" and other corresponding procedure.
(3) the tail. The Department's name with school seal.
 
 The criminal protest
     (for trial supervision procedure)
                                                              Check penalty against []
The defendant of the original instance...... (the names, gender, date of birth, nationality, occupation, place of birth, units and positions, address, prison conditions. There are several defendants, according to the facts of the crime plot from heavy to light the order list).
X X X X X X, the people's court in criminal judgment (ruling) on the X X X X X X (name) (of) a decision (decision)...... (indicating a trial force must, first and two order or judgment, ruling the case). Upon examination according to law (if the defendant and his legal representatives or local people's courts at all levels of the effective judgment and ruling, and request the people's Procuratorate, the people's Procuratorate or to protest, shall specify the program, and then write "upon examination according to law"), the facts of the case are as follows:
...... Describes the procuratorial organs (facts, plot. According to the specific facts of the case, shall be evidence on criminal law, the crime of particularly controversial issues be concise and to the point, the facts of the case, the plot. General should have the time, place, motive, purpose, key behavior plot, amount, harm result, after committing the crime of conviction and sentencing facts show, plot elements. A case of crime, the crime of several crime shall, from heavy to light, or chronological narrative. )
The opinion of this court, the judgment (ruling) is wrong (including the facts wrong, improper application of the law, judicial procedure serious illegal), for the following reasons:
...... (according to the situation, reason can be several errors, improper application of the law and the facts of serious illegal and discusses the trial procedure. )
To sum up...... (all above reasons), for the maintenance of justice, accurate punishment of crimes, in accordance with the provisions of the third paragraph of "Criminal Procedure Law" of the people's Republic of China on 205th, X X X X X X, the court of criminal judgement (ruling) book, protest, please sentenced to.
Yours sincerely
X X X people's court
Date
　　 X X X the people's Procuratorate (Institute of printing)
Attached: 1 the defendant X X X X X X (serving or lives in X X X).
2 new list of witnesses or evidence directory.
The criminal protest format description
Application of the procedure for trial supervision of criminal protest by the header, the defendant of the basic situation, effective judgment or ruling of the effective judgment or ruling, review comments (including facts, protest, protest) for decision, tail, note.
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