The Nie Shubin case appeal to

   
   2013Years since the start of the year, the history accumulation of miscarriages of justice began to trudge correction. Like Zhejiang will case, case of Wu Changlong in Fujian, Henan Li Huailiang case, the court declared that the defendant acquittals. This undoubtedly stimulate nerves of many people, especially scholars and lawyers. People who for years have been for Nie Shubin case, it seems all of a sudden in the black holes were found in a ray of light. While the Hebei Provincial Higher People's court, also seems to mind. Although the progress on the Nie Shubin case review has been closed Jinkou, but loose teeth to Wang Shujin case all public hearing process.

    At the same time, Sike sending lawyers involved in the case of Nie Shubin timely shot, petition work. This does not, Yang Jinzhu, Chen Guangwu, Wu Lei, Zhu Mingyong and myself, to jointly with the original complaint agent Liu Bojin lawyer, to jointly promote the appeals process.

Various signs, Nie Shubin case appeal to stride. Some people are optimistic, the correct point the day and await for it. Here, I want to touch to pour some cold water, to give you a shot: the correct absolute is not an easy thing, even in the case Is it right? Eventually able to correct, still unknown! So far, the lawyer is not capable of scoring. Volume what shock the common customs things, still need time to be able to open the.

Here, I can't help recalling my party Huang Liyi. Huang Liyi is in "the bills defraud crime" in1999Years to catch up, after a trial, trial and appeal, was eventually into the Xinjiang desert prison, life imprisonment!2004Year, I entrusted to him to appeal. After seven years of unremitting efforts of the extremely hard and bitter (now called Sike), and finally in the2010Huang Liyi11Years later, be acquitted. After two years, won the state compensation85Million yuan.

Huang Liyi is lucky, he alive out of the prison; mentioned Zhejiang nephew, Wu Changlong, Li Henan Fujian Huailiang, are living out of prison; the defendant Beihai case, the defense lawyer Sike, live also returned home. Nie Shubin is unhappy, he could not see the results. If in the future to work, only to his grave, burning a verdict of innocence.

However, the road is long.

A, appeal

Nie Shubin is dead, does not affect the Nie Shubin case of appeal. According to the "law of criminal procedure" in article 241st: "the party or his legal representative, close relative, ruled against a legally effective judgment,, can appeal to the people's court or the people's procuratorate,  But can't stop judgment, the execution of the ruling." We can see from the above provisions, Nie Shubin's father, mother and sister can its case, as the complainant complaint.

Appeal cases can entrust a lawyer? Certainly. However, the lawyer entrusted, in a second stage, called the defender. In the appeal stage entrusted agent, called. "Criminal Procedure Law" to explain the 371st paragraph third: "the complaint may entrust a lawyer for." That is to say, whether Nie Shubin's father, mother or sister filed a complaint, can entrust a lawyer as agent. As for the number of lawyers entrusted, in criminal law does not stipulate. But according to the relevant provisions of the "Civil Procedure Law" about the agent, can entrust1To2Agents ad litem, then, on behalf of Complaints Commission1To2Lawyers, should be in line with the spirit of the law.

Also, some relatives can appeal? There are no restrictions. That is to say, if Nie Shubin's father, mother and sister were lodged, and every complainant to entrust two lawyers as agents, does not violate the law.

Two, the retrial

Must understand, appeal and retrial, is a qualitative difference. Effect of criminal cases appealed to appeal, although the defendants and their close relatives the right, but only by decision of a people's Court of appeal or the Procuratorate's source material. And the result of complaints, not necessarily can obtain the retrial, even in the most complaints are unable to obtain a retrial. Most of the appeal case results, is to obtain a copy of the notice of appeal "rejected". I have seen "rejected the appeal notice", basically only a piece of paper, never tell the truth. A piece of paper how to speak the truth?

To appeal to retrial, there must be strict requirements. Five kinds of situations this is China's "criminal law" the provisions of article 242nd. As long as the parties and their legal representatives, close relatives of the complaint accord with these five cases, the people's court shall start the retrial procedure. Namely: "there is new evidence to prove that the original decision, ruled that the fact that there are errors, may affect the conviction and sentencing; according to conviction and sentencing evidence does not really, not fully in accordance with the law, should be excluded, or proof by contradiction between the main facts of the case evidence exists; the original decision, that there is some error in the application of the law; violate the legal procedure, which may affect the fair trial; the judges in the trial of the case, take bribes, play favouritism and commit irregularities, perverted the law behavior."

"Criminal procedure law interpretation" 375TH to explain further, enumerates nine kinds of circumstances, shall decide to re trial, namely: "(a) there is new evidence to prove that the original decision, ruled that the fact that there are errors, may affect the conviction and sentencing; (two) according to the conviction and sentencing evidence, not really inadequate, should be excluded in accordance with the law; (three) the proof by contradiction between the main facts of the case evidence exists; (four) the main facts were to change or cancel; (five) identified crime wrong; (six) the sentencing is obviously inappropriate; (seven) in violation of provisions of the law concerning the retroactivity; (eight) violating the legal procedure, may affect the impartiality of judges; (nine) the trial in the case when there is corruption, play favouritism and commit irregularities, perverted the law behavior."

If the people's court case, will decide to retrial on appeal cases. The Hebei high court is hearing the case of Wang Shujin, is to detect a significant facts related with the Nie Shubin case: what Is it right? Wang Shujin do? Many of the correct case Nie Shubin anxious people pay close attention to the Wang Shujin case, even putting the pressure in Wang Shujinshen. I want to give everybody here: even though Wang Shujin didn't get down on the Nie Shubin case appeal favorable evidence, also do not affect the case of Nie Shubin continue to appeal. As if to Nie Shubin case for the existence of legal provisions for the nine conditions, the same must be corrected.

The retrial, as the name suggests is a trial again. It is different from the second, is also different from the back to the superior court of retrial. Retrial is the original trial has ended, but the case has the statutory conditions of some kind, need to overthrow the, start a trial program again. In judicial practice, the legal document legal instruments and the appeal retrial is not the same. The handling of complaints, generally with the "notice", and decided to use "retrial decision".

After the retrial cases, to have two possibilities: one is by the retrial court trial verdict, there is a ruling remanded for a new trial. The Huang Liyi case is from Guangdong court after the retrial, the Guangzhou intermediate people's court ruling remanded retrial, and finally by the Guangzhou intermediate people's Court of self denial11Years ago the verdict, sentenced Huang Liyi is innocent.

Therefore, from the appeal to retrial to remand to the closing, the legal document is the "notice", "decision", "order", "decision", this process may be a year, two years or seven, or even ten years. But the defendant many complaint case have been served out the punishment, the results also elusive.

Of course, correct the wrong not only complaint is correct. No appeal cases do wrong, how to do? "Criminal Procedure Law" 243rd stipulates that: "the president of the people's court at all levels to the hospital in a legally effective judgment or ruling, if found in the determination of facts or law is wrong, must be submitted to the judicial committee. The Supreme People's court has a legally effective judgment of the people's courts at all levels and the ruling People's court at a higher level, a legally effective judgment of the lower court and ruled that, if mistakes are found, have the right to examine or order an inferior people's court for retrial. The Supreme People's Procuratorate of a legally effective judgment of the people's courts at all levels and the ruled, the higher people's Procuratorate a legally effective judgment of the lower court and ruled that, if mistakes are found, have the right in accordance with the procedure for trial supervision to the people's court at the same level of a protest."

Visible, the case of Nie Shubin, even Nie Shubin had died not appeal, even relatives of Nie Shubin for some reason not to appeal, if you do wrong, our law also provides error correction approach. After all, the legal characteristics of China with socialist characteristics, is Mistakes must be corrected whenever discovered! (this sentence I don't lie, is really ah).

Three, the court

According to "explain" the criminal law provisions in the third paragraph 384th: "to the defendant of the original instance, the prosecutor has the death or incapacity of retrial cases, can not hearing." Nie Shubin has been executed, with no trial condition. However, the above provisions is in the "can" no trial, rather than the "should be" no trial, this to the waiting people in Nie Shubin court, left a suspense and hope.

Four, the litigation status of Nie Shubin in this case

In accordance with the "specific provisions of the Supreme People's Court on criminal court trial procedures of retrial cases (for Trial Implementation)"2002Years1Month1DayImplementation)(hereinafter referred to as the "Regulations" in the retrial) expression and judicial practice, in the retrial case in the trial, the plaintiff need to specify. A general complaint cases, the complainant and the "defendants" or "appellant of the original instance" is repeated, but with the complainant stated.

But in the case of Nie Shubin, because of the dead, is their close relatives to file a complaint, then, the complainant can only be specified as their close relatives. In the retrial, as defendants in the process, should be listed in the "defendants" or "appellant of the original instance" identity. As dead "defendants" or "appellant of the original instance", the right of appeal exercised by their close relatives, his near relatives may exercise their rights according to law, entrust an agent to comment.

According to "explain" the criminal law 388th stipulation: "the trial of the case of retrial, the people's court retrial, the members of the collegial panel read book retrial; Department of people's Procuratorate, the procuratorial personnel read out the protest; Department of the complainant complaint, by the complainant or the defender, agent ad litem statement of the grounds for the appeal." Here defined by "the complainant" or "defender", "agent" state the grounds for the appeal, and Nie Shu Bin has died not stated, its corresponding defense right also means can not exercise. In order to guarantee "the defendant (appellant of the original instance)" rights are not because of their death and loss of its close relatives, as the complainant can state the grounds for the appeal, and may entrust an agent to state the grounds for the appeal procedure. In a sense, as "the defendant (appellant of the original instance)" talk, also is the extension of the defense. But on the other hand, since the defenders can independently exercise the right to counsel, in the circumstances, the complainant to entrust defenders are "independent" defense should not violate the provisions of the law. It belongs to the legal close relative complete right of appeal.

Today, there is a great relevance to the Wang Shujin case and Nie Shubin case in Handan intermediate people's Court of appeal, the court again. Regardless of the outcome, the case of Nie Shubin, is the appeal of.