The draft amendment of the criminal procedure law proposals

  "Criminal Procedure Law" can not establish legal authority, the presumption of innocence, the evidence for this, direct words principle of evidence, and the implementation of the right to defense counsel, is not a good law.

The first part: suggestions on the amendment of the Criminal Procedure Law Draft Articles

 

Article third

   The original

    Three, thirty-third shall be amended as: "the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, has the right to entrust defenders. In the period of investigation, can only be entrusted lawyer. The investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, 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 accused has the right to entrust defenders at any time. The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

  "The defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial organs."

   Suggestions for modification

  (a) to remove the provisions of the duty of disclosure, increase the provisions about the right. The third draft last paragraph: "the defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial authorities" to:"The suspect, the defendant commissioned lawyer, the case handling organ in making the suspects, defendants benefit program, substantive decision, notify the criminal suspects and defendants, at the same time, inform the principal counsel".

  (two) the principal benefit provisions of lawyers. The criminal law amendment draft article third, added a lawyer link, in the last one paragraph is added:"Criminal suspects, defendants in custody, the guardian, the relatives and friends, criminal suspects and accused persons designated person can provide to entrust defenders; criminal suspects and defendants, entrust a defender, the people's court, the people's Procuratorate, the public security organ shall, within twelve hours to promptly convey".

    Three.More lawyers "right of presence"The relevant provisions.

   Reason

   (a)Delete reason:Establishing a principal-agent relationship between lawyer and client are citizens to exercise their rights act, established shall have the legal effect, no need to other people, including representatives of public authority of the judiciary to fulfill the obligation of informing; this provision is not operational in practice. Criminal defense lawyers often could not find the undertaker, how to fulfill the obligation? Either by mail or lien, etc., are not a good operation.What is consistent with the "timely" to inform the condition, also not understand; do not fulfil this obligation consequences? The practice of compulsory notification will not understand, lawyer for the "approval", it is worthy of attention. The court, on the situation, the temporary replacement of defense lawyers often happens, this provision would reduce the chance of getting help.

   The reason for the increase:To solve the suspects, defendants, the right to know the problem of defense. In practice, attachment, seizure, supplemental investigation, prosecution, investigation to the end of deferred trial and decision etc, to undertake the Administration (personnel) often can not inform the suspect, the defendant, but do not notice the situation of lawyers. Serious are the execution of the judgment, the defense also don't know. Often the parties understand the development of the case through private relationship after the notice of lawyers, lawyers and judicial organs passive situation to verify. So, many parties that a lawyer has no effect, because of the progress bar even cases are not understand.

   The right to know is the basis of the defendant, the defender of all rights, no right no right to defense. A draft amendment to the criminal law at present, will not solve the suspect, the defendant, the defender's right to know, to establish trust relationship needs to fulfill stipulated in the very difficult to fulfill the obligation of informing, need to modify.

  (two) practice only suspect, the defendant's family can provide to hire a lawyer, often is not very convenient, other people to hire lawyers often because there is no legal basis, and had to use a method. Do the rules, especially the "friends", "allow suspects, defendants designated person" to hire lawyers will broaden the suspect, the defendant lawyer channels, is conducive to the defenders in criminal procedure, improve the efficiency of criminal defense.

   There are many as alien as a criminal suspect who cannot contact and close relatives in the reality, the migrant workers is the most prominent, if the family, family is not local, can not guarantee their basic rights to hire a lawyer, and provisions for "friends and the designated person" will be more useful. In fact, anyone should be able to hire a lawyer, just at the meeting by the suspect, the defendant shall be confirmed to me.

   Three.Lawyer presence right is one of the connotation of the suspect the right of defense of lawyers, commissioned to perform defense duties, is conducive to the protection of criminal suspects this is an important litigation right, also can prevent the occurrence of torture to extract confessions. Lawyer presence right is stipulated in America, Japan and other countries, but in our present criminal procedure law has not stipulated the presence right of lawyer

 

Article Sixth

   The original

   Six, one article is added as Article thirty-sixth,: "defense counsel in the investigation period can provide legal assistance for criminal suspects, represent appeal and accusation, may apply to the investigation organ about the crime suspect guilty and cases."

   Suggestions for modification

   Increase the investigation organ did not inform the lawyer suspects related charges and cases, lawyers can exercise the rights of the relief provisions

   Reason   Provided no safeguard measures a mere formality

 

Article seventh

   The original

   Seven, the thirty-sixth changed to two, as thirty-seventh, thirty-eighth, amended as:

  "Article thirty-seventhThe 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, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange the meeting, not later than forty-eight hours.

   Defense lawyer meets with the criminal suspect in custody, the defendant, can learn about the case, to provide legal consulting; 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.

   Joint crimes of endangering national security crime, terrorism crime, serious bribery, in investigative counsel to meet with the criminal suspect, it shall obtain the permission of the investigation organ. For these cases, the investigation organ shall notify the.

   The defense lawyer with the criminal suspects, defendants met, communication, provisions of the first paragraph of this article, paragraph third, paragraph fourth."

  "Thirty-eighth defense lawyers of the people's Procuratorate date, consult, extract, copying of the case material of the facts of the crime. Other defenders, with permission of the people's court, the people's Procuratorate, may also consult, extract, duplicate the above mentioned material."

   Suggestions for modification

   (a) the "defense lawyer to lawyer's practicing certificate, proof of lawyers and legal aid attorney or letter requesting a meeting with the suspect, the defendant in custody, detention house shall arrange to meet, not later than forty-eight hours." Instead of:"Defense lawyers the lawyer's practicing certificate, proof of lawyers and legal aid attorney or letterIn the statutory working hoursTo request a meeting with the suspect, the defendant in custody, detention house shall arrange the meeting."Increase the provisions of legal work time limit; delete:" at the latest provisions shall not exceed forty-eight hours ".

  (two) the "defense lawyer meets with the criminal suspect in custody, the defendant, can learn about the case, to provide legal consulting; since the case is transferred for examination before the date,To the criminal suspects and defendants, verify the relevant evidence". Increase provisions: "to the criminal suspect, defendantTo produce the materials,Verify the relevant evidence."

  (three) the seventh draft amendment: "endangering national security crime, terrorist activities crime, bribery crime in the period of investigation, lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ. Is amended as: "the crime of endangering national security, terrorism crime cases,Must be approved by the Provincial Public Security Bureau or the public security ministry,In the period of investigation defense lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ". The increased requirements: must be approved by the Provincial Public Security Bureau or the public security ministry; delete: the original provisions of the "major bribery crime"

  (four) the "thirty-eighth defense lawyers of the people's Procuratorate date, consult, extract, copying of the case material of the facts of the crime." Instead of:"ThroughConsult, extract, replication,Photograph, scanning, acquiring the case all the materials."

  (five) supplement on draft article seventh:The lawyer did not in accordance with the law during the meeting, the defendant investigation authorities made the confession was illegal evidence, should be excluded, not as a basis for decision; before the court did not produce the dossier, unless in favor of the defendant guilty, sentencing the case materials, shall not be used as a basis for a final decision.

   Reason

  (a) working time requirements met, no need, no reason to wait until forty-eight hours later; such provisions, is actually to all cases meeting authorized detention mechanism can be delayed for forty-eight hours; in practice, lawyers are often met with finished hearing, if is scheduled to meet in forty-eight hours, the lawyer may delay trial, investigation, checking time. This provision is to require that the lawyer to make any plans must be forty-eight hours in advance.

  Two.In view of the problems in the judicial practice is controversial, causing some confusion, so had to issue clear provisions in the legislation, law responsibility, obligation will produce the materials in the case for the defendant to verify. If only a simple "provisions will verify the relevant evidence" that practice is ambiguous understanding, namely "verify the relevant evidence, not equal to produce the materials", I'm afraid or not completely solve the problems in practice.

  (three) improve the decision, that "the public security organs to endanger national security crime, terrorism crime" two kind of crime levels, the case handling organ as an excuse to avoid random, restrictions on lawyers. Theoretically speaking, the approval organ and executive organ shall phase separation, namely the investigation organ itself shall not have the right to decide the lawyer to meet or not, the third party shall exercise the rights, judicial review of decisions by the award. In view of the present situation, the establishment of judicial review may not directly link is larger, therefore improve the decision-making organ within the investigation organ level should be transition selection. In judicial practice, such serious crimes, apparently County, city level investigation agencies also report to the public security authorities at least at the provincial level or above, so the decision entirely feasible.

    The joint criminal case of major bribery crime does not have the major and the two crime can be compared, if the common crime of major bribery cases classified as meeting require the permission of the case, may in practice there will be a lot of bribery cases in the investigation stage are labeled as suspected of common crime, to limit the lawyers. No previous this provision, because there is no lawyers met the problem, there is no reason to restrict the lawyers. It is proposed to abolish the regulations.

  (four) to solve the problems of lawyers. Lawyers for the purpose of understanding the case, can choose a lawyer. In practice, the judicial authorities around the requirements are different, some provisions can only copy (charge high fees, the parties can not afford), some only electronic version or only allowed to take photographs (some lawyers do not have the electronic version of the file, not with the electronic version of the file, and some conditions) regulations can only extract, so it is necessary to be clear in the legislation. Is for the purpose of service, can be selected by lawyers, as long as it can let defense lawyer accused material can be completed to.

  "The text of the facts of the crime accused material" this statement is actually let the prosecution departments for which the materials to the lawyer, which do not give the lawyers have right to decide, the right to choose, namely only undertaker thought to be accused of material to the lawyer. Current law requires the investigation organs must comprehensive collection of evidence, including evidence in favor of the defendant, apparently innocent, crime evidence may be not of the facts of the crime accused materials, if the prosecution department show "material" of the facts of the crime accused only to lawyers, lawyers not to show any benefit the defendant's material will become a legitimate, is undoubtedly the legislation would violate, is not conducive to the comprehensive understanding of the development of defense, defense.

   (five) did not stop with penalties for illegal, no restrictions on the marking of punishment, no illegal cost, there is no relief rights, such rights set practice must have a problem.

 

Article eighth

   The original

   Eight, one article is added as Article thirty-ninth,: "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, may apply to the people's Procuratorate, the people's court to obtain relevant evidence."

   Suggestions for modification

   (a) to increase provisions:Counsel submitted evidence, evidence suggests in favor of the defendant evidence can not be provided, the defendant, the defenders argued in favor of their own truth and advocated the establishment of.

  (two) increase the provisions:Attorney to investigate the evidence, with lawyers and law firms practicing certificate to prove, the evidence material to relevant units or individuals in connection with the case.

  (three) increase the provisions:The defendant, counsel for notice of the people's court to obtain evidence, witnesses, expert witnesses, the investigators to testify in court, the people's court does not agree to the above application, shall be in written form and explain the reasons and attached. The dissatisfied with the ruling, the defendant may appeal on appeal as a separate, superior court shall first be examined, that the verdict reasons not fully, can directly order the rehearing.

  Reason

  (a) this is the lawyer's right of investigation and collecting evidence means of relief, no such remedies for obtaining of evidence is lip-service. Judicial practice in the past, lawyers often apply for investigation and evidence collection, but the lawyer's application often should not respond; judicial interpretation in the past, but also the provisions, however, due to the lack of in the application research can not the consequence of the provisions, make the rights basic lost.

  (two) "lawyer law" on the lawyer's investigation has made clear, the provisions of the criminal procedure law of the witnesses agreed, and the investigation and judicial assent, so for the original criminal law article thirty-seven revision cannot increase provisions specified in the original basis, and shall adjust the synchronization and the lawyers law. Only when the defense lawyer investigation of evidence not to undertake office to apply, is consistent with the general rules in judicial practice.

  (three) in order to ensure the lawyer investigation of evidence can be achieved, the corresponding provisions of the remedies clause.

 

Article tenth

   The original

   Ten, thirty-eighth to forty-second, the first paragraph is revised as follows:"Defense or to 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."

   Suggestions for modification

   The article deletedAt the same time supplementary provisions:Lawyers in the practice activities of the personal rights are not violated. Defence lawyers in the courtroom is not subject to legal prosecution. However, publication of endangering national security, malicious slander others, seriously disrupting the order of the court except speech. Judicial organs found in the lawyers involved in criminal activities, may be suspected of crime to detention, arrest, the judicial organ shall put forward suggestions to counsel the provincial Lawyers Association, and at the same time to the provincial authorities. Provincial lawyers association that the defense lawyer serious violation of occupation moral, agreed to pursue shall issue written suggestions to the relevant judicial organs. Don't agree to pursue, the judicial organ shall not be held responsible for lawyers. Directly related to litigation defense lawyers involved in the case handling organ, shall participate in the proceedings for lawyers liability.

    Reason

    In view of the current outbreak frequently in practice process, in the lawsuit activity has not yet ended, pursue the Defense Lawyers liability cases have occurred, for example, the typical Guangxi Beihai lawyer caught case, it is necessary for such cases under the jurisdiction of starting, and other aspects of specific provisions. Linked to the supplementary provisions and the "Lawyers Law", increase the accountability procedural defense lawyers, lawyers association first to practice lawyers make responsibility. Frequent outbreak of such cases, let the criminal defense lawyers have a lingering fear, to be very careful, testing the law success, progress and not the most simple logo is to look at the can will some lawyers to attract criminal defense stage, the criminal defense rate, increase of at least ten percent or higher on the existing basis, if substantial modifications and specification does not make here, not only does not increase the rate of criminal defense, may actually lower. If the criminal defense rates fall further, criminal defense will be the case in practice, it is difficult to guarantee the quality of the people's Court of criminal cases, and ultimately affect the citizen's human rights safeguard, affect the construction of the rule of law.

 

Article fourteenth

   The original

   Fourteen, the forty-third changed to forty-ninth, is amended as: "the judges, procurators and investigators must, in accordance with legal procedures, to prove the criminal suspect, defendant's guilt or innocence, crime seriousness of evidence. Prohibit torture to extract confessions and other illegal methods to collect evidence, no person shall be forced to prove himself to be guilty.Must ensure that all relevant to the case or to understand the citizen, has objectively and fully provides evidence of the conditions, except in special circumstances, and can absorb them to assist in the investigation."

   Suggestions for modification

   The draft will be the current criminal procedure law in forty-third "it is strictly prohibited to torture to extract confessions and to collect evidence by threat, enticement, deceit and other illegal methods." Is modified to "prohibit torture to extract confessions and other illegal methods to collect evidence, no person shall be forced to prove his guilt", delete"The threat, enticement, deceit, suggest to add".

   Reason

    The draft will be "threat, enticement, deceit" words are removed, is actually a backwards. These illegal means need to be clear, for example the use of criminal suspects, defendants' personal safety threatened to obtain confessions, it also against their will, as long as the suspect, the defendant "spirit and flesh in harm's way" obtain evidence is illegal, although not listed all illegal methods, but need to be detailed, clear as well. In fact, in practice the majority of illegal evidence is to take the threat, inducement, fraud means. Even if such provisions are cancelled, equal to the illegal evidence to open more.

 

Article seventeenth

   The original

   Seventeen, one article is added as article fifty-third, that: "the use of torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats and other illegal methods to collect the testimony of witnesses, victims' statements, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence, seriously affecting judicial justice, the evidence should be excluded.

    In the investigation, prosecution, trial found the evidence should be excluded, should be excluded in accordance with the law, shall not be used as prosecution, prosecution and judgment basis."

   Suggestions for modification

  (a) should increase more detailed list: "using torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats,Lure, lure, deception, corporal punishment, limited enforcement method to rest and diet and other psychological, physiological,Illegal methods to collect the testimony of witnesses, victims' statements, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence, seriously affecting judicial justice, the evidence should be excluded.

  (two) the provisions "in the investigation, prosecution, trial found the evidence should be excluded, should be excluded in accordance with the law, shall not be used as prosecution, prosecution and judgment basis." Do more stringent rules, such as excluding deal, to suspend the trial.

   Reason

  (a) had such problems related legislation, judicial interpretation are taken as manner (though this form is not complete), which are common methods in judicial practice. Through this practice, only through the use of more clear, detailed, specific examples to express the specific forms of torture to extract confessions, it may inhibit the occurrence of torture to extract confessions within certain limits, but surprisingly, the repair method for the phenomenon of torture to extract confessions are anti decreases, so we suggest adding the provisions.

  (two) to avoid the investigation process becomes a mere formality.

 

Article eighteenth

   The original

   Eighteen, one article is added as article fifty-fourth,: "the people's Procuratorate received a report, complaint, report or the discovery of the illegal methods to collect evidence, shall conduct investigation and verification. To do to illegal methods to collect evidence situation, should put forward rectification opinions, when necessary, may suggest the investigation organ replacement of the people. For illegal methods to collect evidence, which constitutes a crime, shall be investigated for criminal responsibility according to law."

   Suggestions for modification

   One paragraph is added in this article after the:"No investigation and verification, should be in three days to issue a written reason, for no reason not to carry out the investigation, may appeal to the people's Procuratorate at a higher level."

Reason

   "It shall investigate and verify the expression" is a principle, there is no specific regulations shall not long, the verification of the results and the way of relief, it is necessary to set the time, designing the relief ways and means to ensure that the people's Procuratorate, indeed, to fulfill their obligations to fulfill its mandate.

                          

Article nineteenth

   The original

   Nineteen, one article is added as Article fifty-fifth,: "the process of trial, the judges think that may exist in the fifty-third article of this law to collect evidence by illegal methods situation, should the court investigation evidence collection of legitimacy.

   The party and the defender, agent ad litem shall have the right to request the people's court to illegal methods to collect evidence shall be excluded. For the exclusion of illegal methods to collect evidence, shall provide relevant clues or evidences."

   Suggestions for modification

   In the first paragraph of the article after the supplementary provisions:For there is no investigation, shall timely instructions, and shall be described separately in the judgment.

   Reason

    Increase the people's court to exclude illegal evidence responsibility, emphasize the judgment reasoning, to remind the court of second instance to illegal evidence exclusion problem, as the parties through the appeal to solve the illegal evidence to provide the necessary way to exclude.

 

Article twentieth

   The original

    Twenty, one article is added as Article fifty-sixth,: "process in the legitimacy of the court investigation evidence collection of legitimacy, a people's Procuratorate to collect evidence to prove the.

The people's court may notify the relevant investigation or other personnel to appear in court to explain the situation. The notice of investigation in accordance with the law, or other personnel shall appear in court. The investigation personnel or other personnel may request the court to explain the situation."

   Suggestions for modification

   Supplementary provisions in the second paragraph of this article: "after investigation or other personnel shall appear in court and does not appear in court, should be called evidence hasn't called, is doubtful, should be excluded."

   Reason

   Judicial practice has proved in the past, if there is no remedies, no clearly defined behavior consequence, provisions in principle, no practical significance in practice. On the expert witnesses part of this revision, clearly stipulates the appraiser shall appear to testimony without court examination of the consequences, the relevant provisions of advice here from the cross examination of expert witnesses, clearly stipulate that no court in consequence. Obtaining of evidence the same problems exist, such as not shall be obtained without giving access to the consequences, I'm afraid it is difficult to be executed, the legislative significance.

                          

Article twenty-third

   The original

   Twenty-three, one article is added as Article sixty-first,: "for the crimes of endangering national security, terrorism, organized crimes of the underworld crime, drugs, witnesses, victims when testifying in a lawsuit, himself or his close relatives of the personal safety to face the danger, the people's court, the people's procuratorates and the public security organs we should take the following one or multiple protective measures:

   (a) individual information is not publicly real full name, address and work units;

   (two) take not to expose the appearance, voice of such measures to testify in court;

   (three) personnel are forbidden to contact the witness, the victims and their close relatives;

   (four) to take special protective measures for personal and residential;

   (five) other necessary protective measures.

   Witnesses, victims believe that witness in lawsuit, himself or his close relatives and personal safety risk, can put forward to apply to the judicial organ protection."

   Suggestions for modification

   The provisions of the first paragraph of this article is amended as: "the crime of endangering national security, terrorism, organized crimes of the underworld, drug-related crime, witnesses, victims when testifying in a lawsuit, himself or his close relatives and personal safety risk, should the people's court, the people's Procuratorate and the public security organsIn the Provincial Judicial Authority approval, in ensure the defendant counsel witness, perception, does not affect the examination of the case,Take the following one or multiple protective measures:

   (a) individual information is not publicly real full name, address and work units;

   (two) take not to expose the appearance, voice of such measures to testify in court;

   (three) personnel are forbidden to contact the witness, the victims and their close relatives;

   (four) to take special protective measures for personal and residential;

   (five) other necessary protective measures.

   The supplementary provisions:In the Provincial Judicial Authority approval, in ensure the defendant counsel witness, perception, does not affect the examination of the case. AndDelete:"In such cases"Regulations.

   Reason

   Additional reasons: must find the right balance between the witness protection and real evidence, not because of the need for witness protection, the defendant, the defenders can not carry out quality certificate. Such provisions refer to foreign, not considering the testimony of the witness protection measures. The present Provisions, may let the defendant, the defenders weren't sure witness real existence, may let the defendant and the defendant cannot see evidence, cannot cross examine the essence, there may be a case of many or all of the need to take measures to protect the situation, there may even be to the witness protection as an excuse, hinder get witnesses to testify in court cases. Typically, the witness protection through the judicial review of the third party, in order to avoid the ratification and implementation, belong to a display fair, but to establish the judicial review system is difficult, therefore, to improve the level of provisions should be approved by the authorities, the final transition to the court.

Delete reason: avoid making expanding interpretation practice.

 

Article twenty-eighth

   The original

   Twenty-eight, the fifty-sixth changed to three, as sixty-ninth, seventieth, seventy-first, amended as:

   "Article sixty-ninthBy the criminal suspect, defendant bail shall observe the following provisions:

   (a) without the approval of the organ executing shall not leave the living city, county;

   (two) address, work units and contact information changes, in twenty-four hours ago report to the executing organ;

   (three) in the time to;

   (four) not to interfere in any form of witness;

   (five) shall not destroy or falsify evidence, or collusion.

   The people's court, the people's procuratorates and the public security organ may according to the circumstances of the case, shall be ordered to be criminal suspects, defendants on bail the following one or more:

   (a) shall not be allowed to enter the specific place;

   (two) with no specific staff meeting or communication;

   (three) shall not engage in certain activities;

   (four) the travel documents, documents, the executing organ preservation driving.

   By the criminal suspect, the defendant on bail in violation of the provisions of the preceding two paragraphs, have to pay a deposit, the confiscation of part or all of the deposit, and the difference between the situation, the suspect, the defendant shall be ordered to sign a statement of repentance, to pay margin, the guarantor, or be arrested.

   For breach of bail provisions, need to be arrested, the suspect, defendant custody."

   "It shall decide authority seventieth bail consider guarantees the litigation activities of the social risk, bail people, plot, nature of the case, may be sentenced to a punishment, is released on bail pending trial of economic situation, to ensure the payment in the amount of.

   The bail bond amount is determined, providing margin shall be deposited into the margin account executive specialized organs designated bank."

   "Article seventy-first of criminal suspects, defendants on bail period did not violate the provisions of article sixty-ninth, when the end of the guarantor pending trial, by notice to remove the bail to the bank for the refund of deposit."

   Suggestions for modification

   (a) the draft article seventieth "authorities bail should be considered to ensure the normal activity of the lawsuit, be social danger bail people, plot, nature of the case, may be sentenced to a punishment, was released on bail the people's economic status and so on, to determine the amount of the deposit". Is amended as: "the organs shall decide the bail consider guarantees the litigation activities of the social risk, bail people, plot, nature of the case, may be sentenced to a punishment, was released on bail the people's economic situation,In seven days written notice to the applicant if released on bail to take measures, as well as the determination of the amount of the deposit. The authority of the guaranteed pending trial is not reply, reply objection or party, may raise objections to a higher authority."

   (two) the draft "seventy-first criminal suspects, defendants on bail period did not violate the provisions of article sixty-ninth, when the end of the guarantor pending trial, by notice to remove the bail to the bank for the refund of deposit." Is amended as: "the seventy-first criminal suspects, defendants in the release on bail is not in violation of the sixty-ninth article of this law,Bail at the end of the contractor to ensure timely notice, authorities issued by the lifting bail,GuarantorWith the cancellation of bail to the bank for the refund of deposit.Guarantee period of one year expires, the guarantor may hold margin payment receipt to the bank for the refund of deposit."

    Reason

   (a) the original criminal law the parties, defenders can make bail application, but not specified in the receiving application decision authority in time, be how to answer. So in the judicial practice, the bail application, authorities often ignore, no news, no reply. The law, obviously the legislature from social economy, litigation economy, lower the rate of custody, pending the value of considering multiple angle, thus make favorable provisions. However, this provision does not complete, perfect. There is no clear reply in time, nor shall not reply for consequences, and remedy measures. Therefore, in the hope that further regulate.

In fact, about bail measures are adopted, shall take judicial review or ways of hearing, make decision-making authority, parties to listen to the opinions of the defender, listen to the views of the parties, but considering how set fear is difficult, so simple to regulate.

   (two) avoid guarantee delivery margin long term indwelling bank cannot retrieve.

 

Article thirtieth

   The original

   Thirty, one article is added as article seventy-third,: "residential surveillance shall execute the criminal suspects, defendants in place; no fixed residence, can be specified in the residence of execution. For the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the place of custody, special case handling place execution.

The specified home residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the premises, in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people.

   The specified home residential surveillance, criminal suspects, defendants to entrust defenders, this Law shall apply to the thirty-third.

   The supervision of people's Procuratorate to specify the decision and implementation of residential surveillance is legal residence."

   Suggestions for modification

   (a) the draft "residential surveillance shall be executed in the suspect, the defendant's; no fixed residence, can be specified in the residence of execution."ModifyFor the "residential surveillance shall execute the criminal suspects, defendants in place; no fixed residence,The consent of the suspect, the defendant, the defender,In the designated residence execution."

   Two.DeleteThe draft "for the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the regulations of custody, special case handling place implementation ".

   Three.Supplementary provisions:"Evidence obtained in violation of the provisions of the above words during the illegal evidence, can not be used as the basis for a final decision."

   Four.DeleteThe draft article "designated residence residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the premises, in the implementation of residential surveillance within twenty-four hours after notification under residential surveillance, the families of the people""Or suspected of crimes of endangering national security, terrorism, notification would hinder the investigation situation may be outside"

   Reason

   (a) allow litigation participants have the right to choose, the right to participate in criminal proceedings, to avoid the occur frequently in the judicial practice, in the detention house by residential surveillance custody in disguised form, and even torture to extract confessions happening.

   (two) with suspected of such a crime suspect, the defendant is not necessary, should not take the residential surveillance of detention. Custody much more severe than residential surveillance, why in the legislation specifically so serious crime provisions residential surveillance? Such provisions, if residential surveillance tougher measures.

The current judicial practice, torture to extract confessions generally occur in the detention center, in order to curb the occurrence be brutal and inhuman torture to extract confessions of this situation, the amendments have cudgeled one's brains. Such regulations, is tantamount to from the places of detention at the suspect, the defendant opens a law to allow passage.

   (three) this is the right to relief provisions. For the illegal use residential surveillance, disguised by residential surveillance means from the places of detention the suspect, the defendant, to obtain confessions results shall be avoided by means of residential surveillance, detention in disguised form the suspect, the defendant.

   (four) such serious crimes should not be taken to residential surveillance measures; to avoid another place of custody, prevent torture to extract confessions.

Article thirty-fifth

   The original

   Thirty-five, the sixtieth changed to eightieth, is amended as: "to have evidence to prove the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the danger to the society, should be arrested:

   (a) may implement the new crime;

   (two) the real danger endanger national security, public security or public order;

   (three) may destroy, forgery, hiding evidence, witnesses or collusion of interference;

   (four) the victim, informants, may take revenge the complainant implementation;

   (five) may Dutch act or escape.

   To have evidence to prove the facts of the crime, may be sentenced to more than ten years of punishment, or may be sentenced penalty above, once an intentional crime or unidentified suspects, the accused, should be arrested.

A guarantor pending trial, the criminal suspect, defendant under residential surveillance violates bail, residential surveillance shall, if the circumstances are serious, can be arrested.

   Suggestions for modification

   To restrict conditions about the arrest of the draft, delete the (a) (three) (four) (five) paragraphs.

   Reason

   Deletion of the four "may" representation of the part and the front of arrest conditions inconsistent with stated, "there is evidence on the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the danger to the society, should be arrested". Four kinds of situations do not belong to have evidence to prove the facts of the crime. Such regulations may be malicious to expand in practice, namely, who said "may", it can be arrested.

   The present formulation, the case handling organ can expand access to arbitrary arrest, without limitation.

                

       Article thirty-sixth

   The original

   Thirty-six, the sixty-fourth to the eighty-fourth, the second paragraph is revised as follows: "arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should give the reasons for detention and the place, in the detention within twenty-four hours after notification, the detainee's family."

   Suggestions for modification

   DeleteThe draft"Serious crime, notification would hinder the investigation situation may be outside".

   Reason

   With "serious crimes such as" let the host organ had any interpretation of the law of the space, can be extended to any case does not notify the family; the same "notification would hinder the investigation of possible other situations" is also to the investigation organ unlimited expansion of rights, any interpretation of the law of space.

                              Article thirty-ninth

   The original

   Thirty-nine, the seventy-first to the ninety-second, the second paragraph is revised as follows: "after the arrest, it shall immediately be arrested for custody. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should be arrested and custody premises, within twenty-four hours after the arrest, notify the family of the arrested person."

   Suggestions for modification

   DeleteThe draft"Serious crime, notification would hinder the investigation situation may be outside".

   ReasonDitto

 

Article forty-third

   The original

   Forty-three, the seventy-ninth changed to 101st, one paragraph is added as the fourth paragraph: ", the last day of the period for the holiday, the first day after the holiday for the expiration date. But during the criminal suspect, defendant or criminal in custody, should to the expiration date, shall not be extended because of the holidays."

Suggestions for modification

   In the last day "during the holiday, the first day after the holiday for the expiration date. But during the criminal suspect, defendant or criminal in custody, should to the expiration date, shall not be extended after the holidays "Added provisionsBut: "CalculationThe suspects, defendants and convictsTimeTo date, it shall expire, shall not be extended because of the holidays."

   Reason

   Easy to misread to the suspect, defendant or criminal appeal, appeal period until the deadline for holidays.

                            

Article forty-fourth

   The original

   Forty-four, one article is added as article 113rd,: "for the public security organ for investigation of the murder and other major cases, the people's Procuratorate may put forward opinions and suggestions on the investigation activities."

    Suggestions for modification Delete

   Reason

   The current legislation: "and other major cases" allows the investigation organ, the procuratorial organs to make interpretation of arbitrary expansion; seriously violate the basic principles of criminal investigation and prosecution, separation, mutual supervision, mutual restriction.

                          

 Article forty-fifth

   The original

   Forty-five, one article is added as article 114th,: "the parties and the defender, agent ad litem, interested party considers that the judicial organs and their staff in any of the following acts, infringe upon their legitimate rights and interests, the right to sue to the judicial organ to file a complaint or:

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

   (two) shall refund the bail deposit not to return;

   (three), seizure, seizure of illegal raids, freezing and other investigative measures;

   (four) shall terminate the seizure, seizure, freezing not to release;

   (five) prevents the defenders and agents ad litem, shall perform their duties according to law.

   The admissibility of the complaint or accusation shall be timely treatment. To handle the appeal, can be to the same level or the people's Procuratorate at a higher level appeal. The people's Procuratorate shall timely examine the complaint, it may be necessary to carry out investigation to verify the relevant situation; for the case, be corrected according to law."

   Suggestions for modification

   The draft articles in "the admissibility of the complaint or accusation shall be timely processing of" Supplementary Provisions "the admissibility of the complaint or accusation organsShall issue written opinions within three days"

   Reason

   To increase the operational practice, avoid "timely" into not long-term, is not conducive to the continued, immediately report to the higher authorities to appeal to start.

 

Article forty-seventh

   The original

   Forty-seven, the ninety-second to the 116th, the second paragraph is revised as follows: "call, summon duration shall not exceed twelve hours; major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours.

   Not to continuous summons, subpoena criminal suspects into custody in disguised forms. Call, summon the suspect, shall ensure that the suspect necessary food, rest time."

   Suggestions for modification

   DeleteThe provisions"Major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hoursPart.

   Reason

   The expression of contradictions. "The need to take the detention, arrest measures" provisions ", there is no need to summon summons for time shall not exceed twenty-four hours", directly to the detention, arrest can; from the judicial practice of the past, twelve hours is enough, no need to further increase. Restrictions and deprivation of personal freedom is related to the immediate interests of every citizen thing, should be treated with caution, not by the host authorities to decide.

                           

 Article forty-eighth

   The original

   Forty-eight, the ninety-third changed to 117th, one paragraph is added as the second paragraph: "when, the investigators suspectLegal provisions, shall inform the criminal suspect confess to leniency."

   Suggestions for modification

   DeleteAt the same time; and the law of criminal procedure ninety-third "when the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him. The suspect of investigators question, shall truthfully answer. But irrelevant to the case, have the right to refuse to answer".ModifyFor: "the suspect of investigators question,VoluntaryAnswer,Not to be forced. Irrelevant to the case, have the right to refuse to answer."

   Reason

   The criminal law article ninety-three and the draft of the specified herein and draft fourteenth "no person shall be forced to prove their crimes" contradictions. This is the value orientation of the criminal law amendment. When we look at the long continuous outbreak caused by torture to extract confessions grievance, it is not difficult to find because of provisions in China's criminal procedure law, the accused has the suspects "confession" obligations, to cause the case handling organ to torture to extract confessions way to obtain the suspect, the defendant's confession. Conform to the development trend of the world from the rule of law, strengthen the protection of human rights, the rule of law to curb torture to extract confessions, thirty years of public legal culture and so on many considerations, our legislation should be "no person shall be forced to prove his guilt" as the principle of legislation, abandon leave adequate leeway "confession", is the right choice.

 

Article fifty-third

   The original

   Fifty-three, the 114th changed to 138th, is amended as: "found in investigative activities may be used to prove the guilt or innocence of the criminal suspect's property and documents, shall be seized, seizure of property; irrelevant to a case, file, shall not be seized, seizure.

   For the attachment, seizure of property, documents, shall be properly kept or sealed up, shall not use, exchanged or damaged."

   Suggestions for modification

   Supplementary provisions: "suspects, defendants and their families, the defenders, other interested parties, for the detection of seizure, seizure of property and file objections, including: no timely seizure list, ownership, scope, affect the normal production and life, there is no problem to complete, have the right to put forward objection the investigation organ shall listen to the opinions of, related to, give a written reply within three days. The investigation organ to accept advice, can appeal to the superior procuratorial organs. For use, exchange or damage shall be compensated."

   Reason

   For a long time, a lot of problems in this part of the investigation organ, and they did not consider the issue of criminal procedure law, the original route, design of relief channels, which makes the judiciary in law enforcement for the above documents and property lack the necessary attention, and even the emergence of loss, damage, depreciation, influence the production and living conditions, seriously affected the judicial organ law enforcement credibility.

 

Article fifty-sixth

   The original

   Fifty-six, in the second part second chapter seventh section after the increase, as in section eighth:

   "Section eighth investigation

   Article 147thThe 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 the technical investigation measures.

   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.

   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.

Technical investigation measures shall be executed by a public security organ.

   Article 148thThe approval decision should be based on the need for crime investigation, determine the species to take measures of technical investigation and application objects. The decision of approval issued since the date is valid for 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.

   Article 149thAdopt the measures of technical investigation, should be strictly in accordance with the approved measures types, objects and for the implementation.

   Investigators for the state secrets, to take measures of technical investigation process of commercial secrets and personal privacy shall be kept confidential, to take measures of technical investigation; the case had nothing to do with information and facts and materials, shall be destroyed without delay.

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.

   Article 150thIn order to find out the truth, when necessary, by the public security organ at the county level or above the person responsible for the decision, by specific personnel to carry out the secret investigation.

   The implementation of secret investigation, may induce others to 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.

   Article 151stIn accordance with the provisions of this section shall take the measures collected materials can be used as evidence in criminal proceedings.

   Through the implementation of secret investigation to collect evidence, if the use of such evidence may endanger the personal safety of specific personnel, or may have other serious consequences, shall take not to expose the true identity of specific personnel protection measures, when necessary, by the judge in the court to verify evidence."

   Suggestions for modification

   (a) on the provisions of the draftArticle 147th the delete, is amended as: "the crime of endangering national security, terrorism crime, by the Ministry of public security, security department approval, can adopt the measures of technical investigation".

   (two) 150th of the provisions of the draft: "in order to find out the truth, when necessary, by the public security organ at the county level or above the person responsible for the decision, by specific personnel to carry out the secret investigation".Is amended as: "when necessary, by the public security organ at the provincial level or above the person responsible for the decision, by specific personnel in accordance with the approved methods, means, measures for the implementation of secret investigation. The secret investigation for the longest period of not more than one month".

   (three) 151st of the provisions of the draft in accordance with the provisions of this section; "take investigation measures collected materials can be used as evidence in criminal proceedings".Is amended as: "the crime of endangering national security, terrorism crime, take investigation measures collected materials can be used as evidence in criminal proceedings. Other cases may not use".

   Reason

   (a) delete reason:

   1, the provisions of the draft of the premise of "case", in the judicial practice for arbitrarily large. We can often see a sentence like filing shows that: "the masses report, a person suspected of a crime, I decided to place the case on file for investigation, plus contractors signature". Therefore, at present the draft "case", in judicial practice is not to limit the effect.

   2, the provisions of the draft "or other serious social crimes" can also initiate a technical investigation measures arbitrarily large. This provision is in fact all criminal reconnaissance were designated to take technical measures in criminal category.

   3, the provisions of the draft "after approval" strict, is actually set the law does not comply with the legislative specification language. "Strict" a word itself no standards, no boundaries, no operation.

   4, there is no basis for establishing the third party or judicial review, various investigative organs can be determined using technical investigation measures, will obviously difficult to control, resulting in confusion.

In the judicial practice of countries around the world, most countries adopt effective measures of technical investigation on some serious violations of national sovereignty, territorial integrity, the crime of terrorism, but any country between, safeguarding national security and privacy of national security and the security of citizens to carefully choose. Therefore, in addition to the set of judicial review links, sometimes need a higher level decisions. There are no strict rules, control, will be on the technical investigation measures ordinary crime start, will cause all the citizens in a state of unrest.

   (two) the reason for the modification: the implementation of secret investigation is directly related to the common citizen's privacy, life, should use caution, strictly control. As an ordinary criminal cases, there is no need to take the secret investigation means, law enforcement to the public or excessive damage is far more than the crime itself of the damage, The loss outweighs the gain.

Here a month time limit. The draft does not stipulate the secret investigation period, this will make the secret investigation power long-term in the state.

In the absence of third party review, without judicial review under the condition, improve the decision-making organ level, may avoid the abuse of power within certain limits.

   (three) the reason for the modification: to take investigation measures is to obtain evidence of the way, it can help the investigation authorities to obtain evidence, but if not the limit allowed by this method gets all of the material can be used as evidence, will undoubtedly encourage the investigation organ to give up investigation on it to take a lot of evidence, investigation measures means evidence.

                           

  Article fifty-seventh

   The original

   Fifty-seven, 128th to 157th, the first paragraph is revised as follows: "in the period of investigation, found the suspect another major crimes, with the approval of the investigation organ level, in accordance with the provisions of law 153rd re calculation of investigative detention period."

   Suggestions for modification

   "In the period of investigation, found the suspect another major crimes, with the approval of the investigation organ level, in accordance with the provisions of article 153rd of the re calculation of investigation detain deadline."ModifyFor the:By the provincialThe investigation organ for approval, in accordance with the provisions of article 153rd of the re calculation of investigation detain deadline.

   Reason

   In judicial practice, the investigation organ often to find new crime extend the detention period name. At present, such as in accordance with the provisions of the draft, the equivalent of easily recalculated detention period, open convenient ways to re calculate the detention period legalization. Before modifying the nine seven criminal law, our judicial practice is common in low has extended the backlog problem, the whole society to cherish an undying, nine seven years later, this phenomenon is somewhat better, so the legislation may cause retrogression. No third party review, judicial review cases, improve the examination and approval organ level, it is possible to extend the detention period control.

                         

Article sixty-fourth

   The original

   Sixty-four, the 151st changed to 181st, is amended as: "the people's court has decided to open a court session, it shall determine the members of the collegial panel, the people's Procuratorate indictment copy in ten days before the opening on the defendant. If the defendant has not appointed a defender, inform the defendant may entrust a defender, or to inform the legal aid institutions appoint lawyers to defend the.

   In court, prosecutors, judges may convene the parties and the defender, agent ad litem, the challenge, the witness list, exclusion of illegal evidence and trial related problems, understand the situation, listen to the views of.

   The people's court shall determine the date of the hearing, the hearing in three days before the opening of the time, the place to summon the litigants, notify the people's Procuratorate, notify the defender, agent ad litem, witnesses, appraisers and translators. For the open trial case, shall announce the, name of the defendant, time and location of the court session three days before opening of the court session.

   These activities shall be entered in the records, by the judges and the court clerk signature."

   Suggestions for modification

   "In the court before the trial personnel, can be called the public prosecutor, the parties and the defender, agent ad litem, the challenge, the witness list, exclusion of illegal evidence and trial related problems, understand the situation, listen to the views of".Amended as:"In court, prosecutors, judges may convene the parties and the defender, agent ad litem, on(1) cases under the jurisdiction; (2) avoidance; (3) the illegal evidence; (4) obtaining of evidence; (5) whether to apply summary procedure; (6) whether or not a public hearing; (7) selection, determine the time of the session; (8) to inform the witnesses, expert witnesses in court; (9) whether or not to identification, inspection; (10) whether to postpone the hearingAnd trial related problems, understand the situation, listen to the views of,Make a decision".

   Reason

   These problems are often encountered in the judicial practice often controversial issues, is the court later this evening, no meaning, or the court can not solve the problem. Therefore, it is necessary to carry on research and Discussion on these problems in order to improve the efficiency of the trial before the court, the trial, let go smoothly.

   The criminal procedure law to solve the problem is not standardized, resulting in many problems in judicial practice, the method is defined, but it matters not comprehensive enough, therefore proposed to increase provisions.

                     

  Article sixty-seventh

   The original

   Sixty-seven, one article is added as article 186th:"The testimony of a witness has a significant impact on the sentencing, and the public prosecution has objection, parties concerned or defender, agent ad litem, or the people's court that the witness should testify in court, witnesses should appear in court.

   The people's police crime witness its duty as a witness to testify in court, to the provisions of the preceding paragraph.

   The public prosecutor, the parties concerned or the defenders and agents ad litem, the expert opinion of objections, or the people's court that his testimony necessary, the appraiser shall appear in the court. After the people's court shall notify, identification of refusing to testify in court, expert opinion shall not be taken as a basis."

   Suggestions for modification

   In "the testimony of a witness has a significant impact on the sentencing, and the public prosecution has objection, parties concerned or defender, agent ad litem, or the people's court that the witness should testify in court, witnesses should appear in court".Supplementary:"The notice of the people's court, subpoena witnesses should appear in court, but not before court testimony can not use, can not be used as evidence as the basis of a decision in favor of the defendant, and in accordance with the principles, decided in favor of the defendant, advocated the establishment of the facts, evidence".

   Reason

   The repair method attempts to solve the problem of the witness appearing in court, but the present legislation stipulation is difficult to realize this goal. The draft clearly no provisions shall appear in court without what is the consequence, this let legislation became like a slogan oath. In practice, the witness does not appear, the reason for many reasons, including: do not want to appear in court, not to appear in court, do not want to appear, not to appear in court, if not specified does not appear in court the consequences, namely, qualification of evidence, testimony testimony to lose lose proof ability, will have a large number of witness not appearing in court.

   From the perspective of the unified legislation should not bias. The provisions of the draft, when the identification of people can not appear in court, expert opinion can not be used as a basis for a final decision, apparently legislation defines not court in consequence. So why the draft witness to leave adequate leeway?

   Recommended to specify the consequences can not appear in court, put an end to the witness does not appear phenomenon.

                            

Article sixty-ninth

   The original

   Sixty-nine, the 159th changed to 191st, one paragraph is added as the second paragraph: ", the public prosecutor, the parties and the defenders and agents ad litem, can have the expertise to apply to the court for an informed person to appear in court as a witness, expert opinion to the identification of the proposed opinions."

   Suggestions for modification

   In "the public prosecutor, the parties and the defenders and agents ad litem, can have the expertise to apply to the court for an informed person to appear in court as a witness, expert opinion to put forward opinions on the identification of the." AfterAdded: "quality certificate party and the defender, agent ad litem may entrust a specialized knowledge in expert opinion to identification of human".

   Reason

   Draft the legislation also does not consider the relief way. If the application notifies the expert witnesses in court testimony without approval, or expert reluctant to testify how to do? This is the problem that must be considered. Legislation to deal with professional knowledge not evidence, cannot equal cross examination questions, but only by such a simple rule is difficult to realize. The parties, defenders to hire professionals to participate in the examination, is the exercise of private rights, should not be banned, that employ more conducive to court ascertaining the facts of a case, but no harm.

                            

Article seventy-first

   The original

   Seventy-one, the 162nd changed to 194th, one paragraph is added as the second paragraph: ", the people's courts, treatment should be seized, seizure of property and fruits, frozen decisions."

Suggestions for modification

   Supplementary provisions:The people's court shall, during the court trial, the party put forward on the attachment, seizure, freezing the property and fruits and other aspects of the question, according to the survey of defence

   Reason

   The basic premise is to identify the property involved in the disposition of property ownership status, scope, procedure legitimacy, not to find out not general provisions.

                       

 Article seventy-fourth

   The original

   Seventy-four, the 174th changed to 207th, is amended as: "the jurisdiction of the basic people's court case, also meet the following conditions, the people's court may apply summary procedure for trial:

   (a) the case facts are clear, the evidence sufficient;

   (two) the accused confess their crimes, the indictment alleged criminal facts without objection;

   (three) the defendant has no objection to the application of summary procedure.

   The people's Procuratorate in the prosecution, the people's court apply summary procedure can be recommended."

   Suggestions for modification

   Supplementary provisions:The defendant has the right to put forward the summary procedure applies to the trial of the case, may apply summary procedure for the accused, in the sentence can be considered.

   Reason

   The defendant for trial in his own way, procedure should have the right to choose certain provisions, not only the accused party has right of suggestion. At the same time, because the defendant apply summary procedure, will undoubtedly save litigation costs, to save the taxpayers' expense, should be considered in the sentencing procedure, encouraging the defendant to actively cooperate with the judicial organs, the summary procedure.

 

Article eighty-first

   The original

   Eighty-one, 187th to 222nd, the first paragraph is revised as follows: "the people's Court of second instance to the following cases, shall form a collegial panel, trial:

   (a) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence of objection, the people's Court of second instance that may affect the appeal the conviction and sentencing;

   (two) cases of appeal against the defendants were sentenced to death;

   (three) case protested by a people's procuratorate;

   (four) the people's Court of second instance shall hold a hearing that other cases.

   The people's Court of second instance decided not to hold a hearing, it shall interrogate the defendant, to listen to the other parties, the defenders and agents ad litem, opinions."

   Suggestions for modification

   Delete"(a) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence of objection, the people's Court of second instance cases that may affect the conviction and sentencing in appeal""The people's Court of second instance that".

   Reason

   Our country although the provisions of the second instance as the final, but at present a large number of cases of second instance in the judicial practice not to trial, which is actually in the judicial process will most of the cases of first instance being the final. The defender, the defendant in some cases of second instance court application, hope, but such requests are often not supported. On the contrary, it should be with the defendant equal the complaining party, protested cases, the law stipulates that should be hearing. Criminal cases related to the defendant's personal freedom, life and property, even to the harmony and stability of the family, family, so it is very necessary to implement the second instance being the final instance. The intention is to increase the number of amending the law of second instance court case, but once with "the people's Court of second instance that" may affect the conviction expressed, I'm afraid will ever not court trial into a legitimate illegal situation, can not achieve the legislative intent.

 

Article eighty-sixth

   The original

   Eighty-six, one article is added as article 239th,: "the Supreme People's court review of death penalty cases, it shall interrogate the defendant, to listen to the opinions of the defender.

   In the process of death penalty cases, the Supreme People's procuratorate can give advice to the Supreme People's court."

   Suggestions for modification

   "The Supreme People's court review of death penalty cases, it shall interrogate the defendant, to listen to the opinions of the defender",Amended as:"The people's court review of death penalty cases, there should be a lawyer to defend the accused, it shall interrogate the defendant, to listen to the opinions of the defender.

    Since the date of review of death penalty cases accepted by the people's court, the defense lawyer may consult, extract all the files or shooting, by copying, scanning copy submitted.

    Defense lawyers are entitled to according to the provisions of this law, meet the defendant in the death penalty review period.

   Defense lawyers in the death penalty review period, has the right to reflect the opinions and requirements or to submit the evidence, the people's court for the collegial panel shall receive during work time and office space, and making a record attached. The written defence counsel submitted shall be attached.

   Procedural, entities of the people's court made the ruling in the death penalty review period according to the provisions of this law, it shall promptly notify the attorney."

   Reason

   The lawyer handling death penalty cases of serious lack of legal basis, and play a positive role in practice lawyers can not, this is not conducive to the realization of the basic principles of the rule of law and less killing and cautious.

 

Article ninety-fifth

   The original

   Ninety-five, add a chapter, as the fifth series of the first chapter:

   "The first chapter of juvenile delinquency proceedings

   Article 263rdThe juvenile delinquency, the implementation of education, probation, save policy, giving priority to education, supplemented by the principle of punishment.

   The people's court, the people's procuratorates and the public security organs to handle criminal cases of minors, should guarantee minors to exercise their litigation rights, protection of minors legal help, and by the judges, with minor physical and psychological characteristics of the prosecutors, investigators.

   Article 264thThe juvenile criminal suspects, the accused does not entrust a defender, the people's court, the people's Procuratorate, the public security organ shall inform the legal aid institutions appointed a lawyer for the defence.

   Article 265thFor the juvenile criminal suspects, defendants, should strictly limit the application of arrest. The people's court decision of arrest and the people's procuratorates examination and approval of the arrest, it shall interrogate juvenile criminal suspects, defendants.

The detention, arrest and execution of the criminal punishment of minors and adults should be held, respectively, respectively, education management.

Article 266thFor cases involving crimes committed by minors, at the time of interrogation and trial, it shall notify the suspect, the defendant's legal agent at. Unable to inform, legal agent cannot be present or legal representative is the accomplice, other adult relatives can also inform the suspect, the defendant, on behalf of the school, unit or place of residence of the village committee, residents' committees, the minors protecting organizations of the scene, and relevant information shall be marked in the transcripts of interrogation. Present legal representative may exercise the criminal suspect, 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.

   Trial of juvenile crime, juvenile last statement by defendant, his legal representative may be supplementary statement.

   Ask the underage victim, witness shall apply, first, second, third.

   Article 267thFor minors suspected of criminal law the fourth chapter, the fifth chapter, the sixth chapter provisions of the 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 may decide not to prosecute the conditional decision. The people's Procuratorate before making a decision of conditional non prosecution, the victim shall listen to the views of the public security organ.

   The juvenile criminal suspects and their legal representatives shall decide on the people's Procuratorate of the non prosecution of additional conditions have objection, the people's Procuratorate shall make a decision of prosecution.

   Article 268thIn the non prosecution of additional conditions of the testing period, the conditional not to prosecute suspects for supervision by the people's procuratorate. The suspect's guardian, shall strengthen the discipline of criminal suspects, with the people's Procuratorate to the supervision and inspection work.

   The non prosecution of additional conditions test for a period of six months or more for less than a year, the calculation of conditional non prosecution decision from the people's Procuratorate date.

   Is the conditional not to prosecute the suspect, shall comply with the following provisions:

   (a) to abide by the laws, administrative regulations, submit to supervision;

   (two) reporting his activities in accordance with the provisions of the observing organ;

   (three) leave live in city, county, or relocating, organ for approval before;

   (four) accept education and correction according to the observing organ requirements.

   Article 269thBy the conditional non prosecution of criminal suspects, found in any of the following circumstances during the test period, the people's Procuratorate shall revoke the decision of conditional non prosecution, prosecution:

   (a) the implementation of the new crime or the discovery of decision of non prosecution of additional conditions before other crime prosecution;

   (two) in violation of public security administration regulations or provisions on the supervision and administration of the inspection authorities relating to the non prosecution of additional conditions, if the circumstances are serious.

   By the conditional non prosecution of criminal suspects, no such situation in the test period, the test period, the people's Procuratorate shall make a decision not to initiate a prosecution.

   Article 270thThe defendant when the trial under the age of eighteen cases, not a public hearing.

   Article 271st in the court investigation, the people's court shall for the upbringing of the juvenile defendant, the causes of crime, the education transformation conditions were know.

   When the 272nd crimes under the age of eighteen, was sentenced to the punishment of five years, the judicial organs and the relevant departments shall seal up the relevant criminal record.

   Criminal records are sealed, not to any units and individuals, but the judicial organ for handling the need or the relevant units according to the provisions of laws and regulations for query except. Query units according to law, shall be sealed criminal record be kept confidential.

   Article 273rd for minor criminal cases, unless otherwise stipulated in this chapter, in accordance with the other provisions of this law."

   Suggestions for modification

   Article 266th the provisions of the draft: "for minor crimes, at the time of interrogation and trial, it shall notify the suspect, the defendant's legal agent at. Unable to inform, legal agent cannot be present or legal representative is the accomplice, other adult relatives can also inform the suspect, the defendant, on behalf of the school, unit or place of residence of the village committee, residents' committees, the minors protecting organizations of the scene, and relevant information shall be marked in the transcripts of interrogation. Present legal representative may exercise the criminal suspect, the defendant's litigation rights."Supplementary Provisions:"In the interrogation of minors, appointed defense lawyers or hire a lawyer shall be present. The defense argued that the interrogation violated the interests of minors, can give advice, and have the power to indicate in the record".

   Reason

   Juvenile crime has its particularity, the protection of minors shall be complete, complete. Interrogate the defendant lawyer is present, it is widely recognized by the international community, effective measures to protect the rights of suspects and defendants, accept the. In our country, because of the history, culture, tradition, the idea of rule of law, the level of law enforcement, measures and regulations etc., still does not solve the problem, so the full realization of lawyers may have difficulties present. However, for a juvenile crime cases, we have no reason not to practice, not to protect.

 

Article ninety-sixth

   The original

   Ninety-six, add a chapter, as the fifth parts with second chapters:

   "The second chapter mediation in cases of public prosecution procedure

   Article 274thFor the case of public prosecution, criminal suspects, defendants willing sincere repentance, obtain the forgiveness of the victims through compensation, apology and so on, the parties may reach a reconciliation agreement:

   (a) caused by civil disputes, suspected of criminal law the fourth chapter, the fifth chapter stipulated crime, may be sentenced to three years in prison following the penalty;

   (two) in addition to outside of the malfeasance crime may be sentenced to seven years in prison under penalty of criminal negligence cases.

The suspect, the defendant within five years had intentionally the crime, not the provisions of this chapter shall apply program.

   Article 275thFor the parties to the settlement, the public security organs, people's Procuratorate, the people's court shall listen to the opinions of the parties and other relevant staff views, to review the settlement agreement voluntary, legitimacy, and presided over the production settlement agreement.

   Article 276thTo reach a settlement agreement case, the public security organ may make suggestions to the people's Procuratorate leniency. The people's Procuratorate may recommend lenient penalties to the people's court; for minor crimes, without penalty, may decide not to initiate a prosecution. The people's court may, according to law, the defendant leniency."

   Suggestions for modification

   Article 276th the provisions of the draft: "to reach a settlement agreement case, the public security organ may make suggestions to the people's Procuratorate leniency. The people's Procuratorate may recommend lenient penalties to the people's court; for minor crimes, without penalty, may decide not to initiate a prosecution. The people's court may, according to law, the defendant leniency."Amended as:"The people's courtShouldIn the paper according to the public security organ or the people's ProcuratorateRecommends the followingThe defendant, leniency".

   Reason

   Reconciliation is the best means to resolve the contradictions, in accordance with the construction of the harmonious society policy; at the same time, the parties reconciliation also helps victims receive timely compensation, compensation, avoid civil criminal trial part without the embarrassment, which effectively avoid the law, to avoid the risk of lower part of the civil judicial credibility. So, in order to encourage, promote reconciliation of the litigants, reduce and resolve social conflicts, the people's court should not be "can" leniency, but should be "shall" leniency. If the "can" lenient rather leniently, the defendant may have the feeling of being cheated, to the credibility of the law question.

 

Article ninety-seventh

   The original

   Ninety-seven, add a chapter, as the fifth parts with third chapters:

   "The third chapter of criminal suspects and defendants, escape, death cases of illegal gains confiscated program

   Article 277thFor the crime of corruption and bribery, crime of terrorist activities and other major crime, criminal suspects, defendants absconded, appear in the wanted not a year later, or criminal suspects, defendants die, in accordance with the provisions of the criminal law shall be recovered and the illegal income and other properties involved in case, the people's procuratorate can put forward to the confiscation of illegal income shall apply to the people's court.

   The application shall confiscate the illegal income listed property types, number, location and attachment, seizure, freezing conditions, and with the relevant evidential materials.

   The people's court when necessary, seizure, seizure, freezing can apply for the confiscation of property.

   Article 278thThe confiscation of illegal income and other properties involved in case application, by the criminal suspect, the defendant or the place of residence of the intermediate people's court formed a collegiate bench trial.

   The people's court shall confiscate the illegal income after the application, shall be issued a notice. The announcement during a period of six months.

   The people's court at the expiry of the notice to the confiscation of illegal income for trial. People near relatives or any other interested the suspect, the defendant has the right to apply to participate in the litigation, or may entrust an agent to participate in the proceedings proceedings. Interested party has objection to the confiscation of illegal income of an application, the people's court shall trial.

   Article 279th the people's court, for the cards belonging to the illegal income property, except to be returned to the victim, shall make a ruling shall be confiscated; for that is not illegal income, shall make a ruling lifting attachment, seizure, freezing measures.

   The people's court in accordance with the provisions of the preceding paragraph decision, can put forward to appeal, appeal.

   280th during the trial, criminal suspects, defendants, surrendered or captured, the people's court shall terminate the trial.

   For the confiscation of criminal suspects, defendants property is wrong, he shall return."

 

   Suggestions for modification

   (a) the provisions of this draft article 277th "for the crime of corruption and bribery, crime of terrorist activities and other major crime, criminal suspects, defendants absconded, appear in the wanted not a year later, or criminal suspects, defendants die, in accordance with the provisions of the criminal law shall be recovered and the illegal income and other properties involved in case, the people's procuratorate can put forward to confiscate the illegal income to apply to the people's court.""Other major crime":Delete;Add a paragraph: "by the higher people's Court of review decisions can initiate confiscation procedure".

   (two) the provisions of this draft article 278th paragraph: "the confiscation of illegal income and other properties involved in case application, by the criminal suspect, the defendant or the place of residence of the intermediate people's court formed a collegiate bench trial" "The crimeOr "Delete.

   (three) 278th of the third paragraph of the provisions of the draft: "the people's court at the expiry of the notice to the confiscation of illegal income for trial. People near relatives or any other interested the suspect, the defendant has the right to apply to participate in the litigation, or may entrust an agent to participate in the proceedings proceedings. Interested party has objection to the confiscation of illegal income of an application, the people's court shall trial."Is amended as: "the suspect, the defendant's close relatives andInterested party has objection to the confiscation of illegal income of an application, the people's court shall trial".

   (four) the provisions in article 280th of the draft: "in the process of trial, criminal suspects, defendants, surrendered or captured, the people's court shall terminate the trial. For the confiscation of criminal suspects, defendants property is wrong, he shall return." AfterSupplementary provisions:"Losses should be compensated".

   Reason

   (a)The provisions of this chapter is a kind of special procedures, should be the case in the judicial practice. If the intermediate people's decision to start, arbitrarily large, is not conducive to ensure judicial impartiality.

   (two) in the judicial practice, the criminal trial of cases where the property to ascertain the property scope, nature, attribution, dispute and so on, easy to understand the criminal of the social environment and background, fully assess and predict the social consequences for the disposal of property caused, does not affect the society around, people's production, life. If a criminal court, interference may protect local interests, departmental interests, local, not conducive to creating a harmonious and stable social environment. In the judicial practice in different places, different witnesses are suspected of a crime, after a year as a fugitive wanted by the pre condition, you can start the disposal of property procedures, lest cause random start the disposal of suspects, witnesses and property in practice.

   (three) a person interested in the confiscation of the property dispute is just one example, generally close relatives of criminal suspects, defendants have objection to dispose of the property. But the draft only where the interested party raises objection hearing procedure regulations, obviously exists limitation.

   (four) to the penalty of property should be cautious.

 

Article ninety-eighth

   The original

   Ninety-eight, add a chapter, as the fifth parts with fourth chapters:

   The fourth chapter of "mental patient violence forced medical procedures

   Article 281stThe mental patient violence endangers public security or cause death, serious injury, upon verification and confirmation through legal procedure, do not bear criminal responsibility according to law, continue to harm society possible, the people's court may decide to compulsory medical.

   Article 282ndThe mental patient to the violence of the compulsory medical treatment, by the people's Procuratorate applying to the people's court. The people's court shall form a collegial panel to conduct the trial for the respondent, comply with the compulsory medical conditions, can make the compulsory medical decisions. The people's court in the case was found during the defendant comply with the compulsory medical conditions, can be directly to make mandatory medical decision.

   The people's court compulsory medical case, it shall notify the applicant or the legal representative of the defendant at.

In the decision of a people's court compulsory medical treatment, can be the applicant or the defendant to take protective measures to restrain.

   Article 283rdCompulsory medical institution shall regularly to be compulsory medical person for diagnostic assessment. To have nothing to do with the personal danger, no need to compulsory medical treatment, shall timely termination of opinion, reportedly decided to the approval of the people's court for compulsory treatment. Be forced to medical men and their near relatives shall have the right to apply for cancellation of the compulsory medical.

   Article 284thThe people's Procuratorate of the mandatory enforcement activities of medical institutions are legitimate implementation supervision."

   Suggestions for modification

   Article 281st the provisions of the draft: "the mental patient violence endangers public security or cause death, serious injury, upon verification and confirmation through legal procedure, do not bear criminal responsibility according to law, continue to harm society possible, the people's court may decide to compulsory medical".Amended as:"The people's court may decide to start the mandatory review procedures. In the reconstruction of identification, assessment of risk on the basis of, listen to the community representatives, unit representative, agent, the guardian, the defenders and the related personnel's opinion, whether the compulsory treatment".

   Reason Avoid starting compulsory treatment program at.

   

The second part: the articles in the criminal procedure law draft not related to the modification of the building

 

Article 1

   The original provisions

    In order 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.

   Suggestions for modification

   To "in order to safeguard the correct implementation of criminal law, the punishment of crime,Standardize law enforcement, safeguarding state and public security, maintenanceThe normal social orderThis law is formulated, in accordance with the constitution."

   Reason

   "Punishment" is to "protect the people", need not say, to "law enforcement" can better embody the "protect the people".

   "Socialist" argument for decades, was the "primary stage", "China features" concept coverage, today still use "socialist" formulation, not keeping pace with the times, not with the international legal system.

 

Article second

   The original

   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, in order to safeguard the socialist legal system, the protection of citizens' rights of the person, property rights, democratic rights and other rights, guarantee the smooth progress of socialist construction.

    Suggestions for modification

   Instead of "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, toTo promote the national legal system construction, protect citizen's personal rights, property rights, democratic rights and other rights,Maintaining social stability."

   Reason

   "To promote the national legal construction" instead of "upholding the socialist legal system", "maintaining social stability" instead of "guarantee the smooth progress of socialist construction". More sense of the times, also can reflect the characteristics of the socialist China.

Article tenth

   The original

   The people's court cases, the two-tier trial system.

   Suggestions for modification

   To "the people's court cases, implementThree tiered system."

   Reason

   At present, law enforcement, judicial level needs to be increased, in order to fully protect the legitimate rights and interests of every citizen, the maximum to avoid miscarriages of justice.

 

Article eleventh

   Plan a:

   The original

   The people's court cases, unless otherwise prescribed in this law, shall be heard in public. The accused has the right to defence, the people's courts shall have the duty to guarantee the defendant to defence.

Suggestions for modification

   To "the people's court cases, unless otherwise prescribed in this law, shall be heard in public.Citizens with valid proof of identity to participate in the meeting. The accused has the right to defence, the people's courts shall have the duty to guarantee the defendant to defence."

   Reason

   Clear to sit on the way, will the public trial implemented, will all show in the sun, can avoid the black box operation,

   Scheme two:

   The original

   The people's court cases, unless otherwise prescribed in this law, shall be heard in public. The accused has the right to defence, the people's courts shall have the duty to guarantee the defendant to defence.

Suggestions for modification

   The original second words in a separate article and revised as follows:The suspect, the defendantThe right to defense in accordance with the law.The people's court, the people's Procuratorate, the public security organHave the obligation to ensure that criminal suspects, defendantsTo exercise the right to counsel in accordance with the law.

   Reason

   The criminal procedure law only stipulates: Eleventh People's courts shall have the duty to guarantee the defendant to defense, apparently have obvious limitations. Should provide three stages suspect, the defendant has the right to defense.

Article twelfth

   The original

   Without the approval of the people's court to sentence, no person shall be found guilty.

   Suggestions for modification

   Advice to "without the approval of the people's court to sentence, no person shall be found guilty,Prohibit any organization or individual in any form on the nature of the case and the defendant was not the first sentence."

   Reason

   In judicial practice, a lot of case trial was a mere formality, as a mere formality. The police will case detection, inspection, law both transfer files, because the occupation habits, can produce a kind of thinking inertia, subconsciously with the box, to review the prosecution.

    What is more, the lower courts in adjudicating cases, often active or passive to a higher court report qualitative case and sentencing scale. Thus, the defense is futile, the appeal is in vain. If the objective to provide the evidence to the contrary powerful, will break the case handling units of the original frame and the established policy, will cause serious conflicts of occupation, the risk of conflicts will be passed on to the most, this kind of phenomenon, is a violation of the right of defense of the great.

Article thirteenth

   The original

   The people's court cases, in accordance with the implementation of the jury jury of this Law system.

   Suggestions for modification

   Should be detailed what nature of the case, what sentence the defendant, what level of trial jurisdiction, please with what kind of people's assessors. At the same time, clear the people's jury rights, obligations, treatment. If the law which can't specific provisions, shall be explained in the relevant legislation or judicial interpretation as soon as possible, in order to enhance the operability of the courts.

   Reason

   The people's jury system practiced for decades, is actually empty slogans for decades, the judicial practice hasn't been carried out, especially in criminal cases, the people's jury is completely Tuyongxuming, I also served as a juror, but did not speak of machine, not to speak of rights. The people's jury system, it is an advanced judicial ideas, he can learn the legal literacy public, make the decision of social acceptance is greatly improved. It is an effective way to establish the image of justice, justice, hope that the revised criminal procedure law, can it be right and proper, implement.

 

Article thirty-second

   The original

   The suspect, the defendant in addition to exercising the right to defend himself, also may entrust one or two persons as his defenders".

Suggestions for modification

   Will "also may entrust one or two persons as his defenders" to"The number of criminal suspects, defendants hire a lawyer is not restricted, but the court shall not exceed two of lawyers."

   Reason

   The lawyer is the defendant's rights, public power should not be restricted; the lawyer handling process, often in the meeting, marking, case research and discussion, ask the expert link is limited to only employ two lawyers, but in practice in order to realize the full justification purposes, lawyers do need to seek help, if allowed to hire many people do defense, can make the lawyer does not have a duty of confidentiality restrictions, and let the lawyers, paralegals, professionals to understand the circumstances of the case. In fact, it is often the lawyer practice in a number of lawyers in the case to defend the activities, but legislation has no provision; larger, more complex cases, prosecutors can arrange more prosecutors involved in litigation (gain longer sometimes to six people, eight people, can make use of supplemental investigation way of preparation time), while the two defenders, often in the court preparation can not be guaranteed quality (court hearing in public prosecution, within one month after only two defenders, marking, meeting time is often not enough).

   Since a paragraph of period, many controversial cases in society, such as: the Yang Jia case, Deng Yujiao case, Guangxi Beihai case, the defendant lawyer links, including: who has the right to hire a lawyer, replacing the lawyers and other sectors have some problems, the fundamental reason in our country has stipulated the defendant can only hire one to two lawyers for defendants provisions. It is impossible to see the provisions in the legislation of other countries.

 

Article thirty-eighth

   The original

    Defense lawyers and other defenders may not help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to change their testimony or conduct other acts to disturb the proceedings of the judicial organs. In violation of the provisions of the preceding paragraph shall be investigated for legal responsibility according to law.

   Suggestions for modification Delete the clause

   Reason

   In recent times, because the occupation of revenge, use the event to article three hundred and six of the criminal law against criminal defense lawyer occur frequently, especially in Guangxi occurred in Beihai criminal defense lawyer investigation of evidence for the initiator of the case, fully shows the provisions for criminal defense, and even criminal activities carried out normally, has the extremely disadvantageous influence. The criminal law article thirty-eighth and article three hundred and six of the criminal law. Similar provisions of the lawyer's perjury lawyer occupation discrimination suspicion. The criminal law article thirty-eighth is the basis of article three hundred and six of the criminal law, to amend article three hundred and six of the criminal law, you must first remove the criminal law article thirty-eight.

   If the proposal was not accepted, please consider the second part of the first paragraph delete, will "or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs." Delete part.

    Originally had an opinion, that is: at the same time, the public prosecutor, law officers and lawyers have included the crime subject. But the fact there is a big problem. Because even if also made provisions, the public prosecutor, law personnel shall have the right to catch the lawyers, and lawyers have no right to counter, there would still be occupation retaliation problem. So it needs to be completely abolished, there is article three hundred and seven of the criminal law.

 

Article ninety-third

   The original

   When the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him.The suspect of investigators question, shall truthfully answer.But irrelevant to the case, have the right to refuse to answer.

   Suggestions for modification

   This is amended as "the suspect of investigators question,VoluntaryAnswer,Not to be forced. Irrelevant to the case, have the right to refuse to answer."

   Reason

   The criminal law provisions of the draft with the fourteenth "no person shall be forced to prove their crimes" contradictions. This is the value orientation of the criminal law amendment. When we look at the long continuous outbreak caused by torture to extract confessions grievance, it is not difficult to find because of provisions in China's criminal procedure law, the accused has the suspects "confession" obligations, to cause the case handling organ to torture to extract confessions way to obtain the suspect, the defendant's confession. Conform to the development trend of the world from the rule of law, strengthen the protection of human rights, the rule of law to curb torture to extract confessions, thirty years of public legal culture and so on many considerations, our legislation should be "no person shall be forced to prove his guilt" as the principle of legislation, abandon leave adequate leeway "confession", is the right choice.

 

Article 119th

   The original

   In order to find out the case, when the need for some specific problems to solve in the case, shall appoint, hire an expert who was identified.

   Suggestions for modification

   Supplementary provisions:The suspect, defendant that cases have special problems need to start the identification procedure, has the right to entrust a qualified appraiser or the appraisal institutions to carry out identification, handling organ shall cooperate, provide materials has been sealed up, detained.

   Reason

   Identification, appraisal institution shall be responsible for the people, by the identification of independent social unit, not responsible appraiser, the case handling organ own appraisal institutions. For a long time, the identification mechanism of judicial institutions at all levels are restricted by the Department, often can not only produce expert opinion from technical angle, so by the community widely questioned.

    Recently, stripping out the judicial authentication institution shall belong to return to society, the voice is high, and some judicial authorities have identified its institutions to the society, is widely praised. Therefore, the law should be changed in the past by the case handling organ a control appraisal right situation, gives both sides have equal rights to start the identification procedures, to ensure that the expert opinion is objective and neutral.

 

 

 

                                    Anhui Provincial People's Congress judicial Supervisor

                                    Director of the Anhui provincial committee member of the criminal law

                                    Anhui golden Asia Pacific law firm lawyers   Wang Yalin

                                     2011-9-13In the provincial people's Congress Standing Committee Legislative Conference