The public security organs to particularly great bribery crime is a legal opinion limit lawyer meet (non full version)

 

According to Li Yaohui:2012 "Criminal Procedure Law" provisions of article thirty-seventh, in the case of crime of particularly great bribery, the lawyers in the investigation period meeting suspect license required by the investigation organ. However, in judicial practice, the investigation organ especially the public security organs in the implementation of the new criminal procedure law often restrict the lawyer to meet, in theK lawyer for someone suspected of non national staff bribery case, lawyers and assistant K L lawyers to a detention center, met with a suspect, the public security organ in non national staff bribery cases and suspected of belonging to the crime of particularly great bribery refused to lawyers. This is the case, a certain suspicion of non national staff bribery case to the public security organ limited lawyers legal opinions issued, in the legal opinions in writing, I rack sth., so as to use all one's skill, if a legal opinion to the public security organs to lawyers, the public security organs most worried about once a lawyer in the investigation stage to intervene in the proceedings for the suspects to provide legal help, will bring than it is now more difficult problems of the investigation work, clearly not realistic, if can't provide a rational has according to the strong legal opinion convincing to the public security organ to embrace, lawyer defense before trial especially investigation the legal help would be invalid, in this case, the lawyer to meet the suspect, to understand the charge and the case is butt down defense work is very important. The argument now uses the legal opinions, arguments the public security organs limit lawyers in violation of the provisions of laws, restrictions on lawyers to abuse, it is expected to provide help in limiting cases related to public security organs lawyers met with the problem.

 

 

   At present, in a suspected non national staff bribery case, the public security organ to perform the new criminal procedure law grounds and no lawyers, it seems the law, rule-based, not knowing they violate the law, is a misreading of the new criminal law on public security organs to control the lawyers met with the relevant provisions of the present law and theory, combination, from the following four aspects: the following legal advice:

   A, Non national staff bribery crime does not belong to the people's Procuratorate of crimes of embezzlement and bribery, but does not belong to the case particularly great bribery crime, the public security organ is not for the case of crime of particularly great bribery investigation organs, therefore, the public security organ shall not be entitled to limit the lawyer to meet

   "High" criminal procedure rule forty-fifth stipulates clearly, for the case of crime of particularly great bribery, in investigative counsel to meet with the criminal suspect, shall be subject to approval by the people's procuratorate. According to the law and theory investigation, who who permission principle, if permitted by the people's Procuratorate, then infer the case particularly great bribery crime by the people's Procuratorate is responsible for.

  1, non national staff bribery crime does not belong to the people's Procuratorate shall be responsible for the crime of corruption and bribery

The constitutional principles of criminal procedure division of labor according to the public security organs and the people's Procuratorate, the people's Procuratorate is responsible for investigating cases of corruption and bribery, "range second eighth high criminal rules" on the crime of bribery and corruption made clear definition, namely, corruption and bribery crime refers to the criminal LawClearly defined relevant provisions be convicted and punished in accordance with the provisions of chapter eighth special provisions of criminal cases of the eighth chapter of crimes of embezzlement and bribery and other chapter. But in this case a suspected non national staff bribery crime belongs to the criminal law third chapter of crimes of embezzlement and bribery crimes, does not belong to the people's Procuratorate, shall belong to the jurisdiction of the public security organ.

  2, non national staff bribery crime does not belong to case of crime of particularly great bribery people's Procuratorate is responsible for

According to the "Regulations" forty-fifth high criminal rules, 46, clearly pointed out that the people's Procuratorate is responsible for handling the case particularly great bribery crime, the investigation organ shall therefore particularly great bribery case to the people's Procuratorate, and handle the bribery of non national staff of the investigation organs to public security organs, so the public security organs not handling major cases of bribery crime the investigation organ, non national staff bribery crime does not belong to crime of particularly great bribery.

    Two, the public security organ and the people's Procuratorate to the lawyers met with the required three cases permit each division, this case does not belong to the approval of the public security organ with the case, not to need with permission of the people's Procuratorate meets with cases, therefore, met with the public security organs shall not be entitled to limit on this case

   According to the criminal procedure law of thirty-seventh provisions of the second paragraph: "the crime of endangering national security, terrorism crime, crime of particularly great bribery case, in the period of investigation lawyer meets with the criminal suspect in custody, it shall obtain the permission of the investigation organ." According to the principle of the constitution of the public security organ and the people's Procuratorate is responsible for, "the public security case provisions" and "high" criminal procedure rules respectively on the lawyers in the investigation period met the crime of endangering national security cases, terrorist activities crime and crime of particularly great bribery case made by the investigation organ licensing provisions in criminal procedure law.

   "The public security case" for the protection of the public security organ shall correct implementation of "Criminal Procedure Law" and the performance of the duties, regulate the procedures established procedures, "the provisions of article forty-ninth provisions" security cases, lawyers in the investigation period demanded to see the crime of endangering national security cases, crime of terrorist activities, the suspect in the case application, report the public security organs upon approval of the person in charge shall make a licensing decision. Therefore it can be learned, "the public security case provisions" has pointed out that it is only the crime of endangering national security and terrorism crime cases shall be under the jurisdiction of the public security organ, the lawyer to meet the above two kinds of cases should be approved by public security organs.

   "High" is the criminal rules according to the "criminal law" to the judicial process to the specific application of the law of universal legally judicial interpretation, according to the provisions of the criminal procedure rules "high" forty-fifth, 46, for the case of crime of particularly great bribery in investigative counsel met the suspect, shall be subject to the permission the people's procuratorate. Therefore it can be learned, the case particularly great bribery crime belongs to the people's Procuratorate under the jurisdiction of the investigation organ, people's Procuratorate, the lawyer to meet the need of such cases with permission of the people's procuratorate.

   To sum up, about the provisions of the criminal law of the crime of endangering national security, terrorism crime cases, lawyers should be approved by the public security organs; and the case particularly great bribery crime needs with permission of the people's Procuratorate, in this case, the non state staff Moumou suspected bribery not to need the approval of the public security organs case, more is not required with permission of the people's Procuratorate meets the case.

   Three, the Ministry of Public Security Bureau Director Sun Maoli published an article pointed out that it is only the crime of endangering national security and terrorism crime two cases, lawyers need to license by the public security organs, the public security organs to non national staff bribery crime belongs to the crime of particularly great bribery is no lawyers in violation of the provisions of the law

  Currently the director of the legal department of the Ministry of public security Sun Maoli in the "Legal Daily" (February 20, 2013 law school edition) published " depth interpretation"[1]One article, specifically made for the authoritative interpretation of defense counsel to fully protect the right question, ":

  "Further defined the crime of endangering national security cases, terrorism crime, a lawyer for the meeting with the criminal suspect program. We consider, defense lawyers in the investigation phase meeting with the suspect in custody is a fundamental right, for these two kinds of cases are also possible to be lawyers, so in the "base" of the provisions of the criminal procedure law clearly further 'in addition to hinder the investigation or may disclose state secrets cases, shall make a licensing decision' ', would hinder the investigation or may disclose state secrets cases disappeared after the public security organ shall permit, meet'."

   Sun Wen is the "depth interpretation of public security organs to handle criminal cases procedure", clearly pointed out that only the crime of endangering national security cases and terrorist crimes, defense lawyers meeting suspect need an application to the public security organs, while the case particularly great bribery crime does not include this, so in this case the public security organ to a suspected non state staff bribery crime belongs to the crime of particularly great bribery is not met, violating the provisions on "Criminal Procedure Law" and "rules" of public security case.

   Four, from a legal point of view, with the public security organs shall not be entitled to limit on this case

   As one of the basic human rights of the suspects, but also as a lawyer to defend the foundation of rights, the criminal defense work, right between lawyers and suspects is an important part of the right of criminal defense lawyer, also a prerequisite to understand the case, defense and the maintenance of the criminal suspect, defendant's litigation rights. Establish "in China in the new criminal law respecting and guaranteeing human rights" is an important principle, China's current criminal procedure law in addition to crimes against national security, terrorism crime, crime of particularly great bribery case, in the period of investigation lawyer meets with the criminal suspect in custody, without permission by the investigation organ, "three certificates" will be no impediment to meeting suspect; China's 2008 "lawyer law" also stipulates that, in any case, the lawyers in the investigation period met the suspect without examination and approval of the investigation organ. Therefore it can be learned, lawyers without investigation authority met with general principles, and need the investigation authority met is the exception.

   According to the "Regulations" provisions of article forty-ninth security cases, lawyers met with the application, in addition to impede the investigation or may disclose state secrets of the cases, the public security organ shall make a decision of approval. According to the "high" forty-fifth criminal rules, the provisions of Article 46, the people's Procuratorate of particularly great bribery cases and impede the investigation situation exists, lawyers shall be subject to approval by the people's procuratorate. Second section forty-fifth points in any of the following circumstances, belongs to the crime of particularly great Bribery: suspected of bribery crime in the amount of five hundred thousand yuan, the circumstances of the crime of the poor; a significant social impact; involves the vital interests of the national. It can be drawn from the above law, would hinder the investigation, involving state secrets, suspected of bribery amount is particularly huge, has great social influence, involves the vital interests of countries belonging to the causes that restrict the lawyers met with the investigation organs in cases where the limit; met with lawyers case type, endanger national security crime, terrorism crime, especially major bribery crimes, which was given to the exceptions for special investigation activities and the above three cases, the common three kinds of cases are harm to the interests of the state, which is harmful to the society is very big. Rather than the object of bribery crime is the duty activity state of the company, enterprises and non state-owned institutions, other organizations staff management system. In contrast, the social harmfulness of bribery of non national staff is far less than that caused by the crime of endangering national security, terrorist crimes and the crime of particularly great bribery crimes against national and the degree of social harmfulness, not possible with three class equate the harmfulness of crime, according to the original intention of legislation system of lawyers, lawyers in the investigation during the meeting without permission is the principle of limited exceptions, meeting, non national staff bribery once included in the scope of the investigation organ restrictions on lawyers, there is abuse, distorting the legislative intent, expanded interpretation of criminal procedure law suspected unauthorized.

    In addition, according to the nature of the right of speaking, the lawyers met with the right belongs to the private right, to the private right, no no can be for "public security case, since the provisions did not specify the" non national staff of public security organs responsible for the investigation of the crime of bribery belongs to case of crime of particularly great bribery and restriction of lawyers, the lawyers in the investigation met during the alleged Non-governmental Staff Bribery crime suspect should be allowed, but not required by the public security organs permit meeting. The public security organs of the authority belongs to the public, the public power, need to clear the authorization of the law, without authorization is forbidden, since the "Regulations" provisions of the public security case is endangering national security crime and terrorism crime, the public security organ to lawyers for permission, so the public security organs to case of crime of particularly great bribery there is no lawyer met with permission, otherwise, "Regulations" provisions of the public security case no public security organs have the lawyers met with the permission to case of crime of particularly great bribery, so the public security organ has no right to a suspected non national staff bribery case restrictions on lawyers.

 

 

 

Attached: the relevant legal provisions

"Criminal Procedure Law of the people's Republic of China"

Article thirty-seventh  The 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 to meet, not later than forty-eight hours.

Crimes of endangering national security, terrorism crime, crime of particularly great bribery case, in the period of investigation lawyer meets with the criminal suspect in custody, it shall obtain the permission of the investigation organ. Of these cases, the investigation organ shall notify the.

Defense lawyers meet the suspect, the defendant, the understanding of the circumstances of 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.

The defense lawyer with the criminal suspects, defendants met, communication, applies the first, third, fourth.

"The public security organs for the procedures of criminal cases"

Article forty-eighthThe defense lawyer may in custody or criminal suspects, communication meeting.

Article forty-ninthThe crime of endangering national security, terrorism crime cases, the departments shall send the criminal suspect in custody during the written notice of detention; the criminal suspect under residential surveillance, should be in the implementation of written notice sent to the execution organ.

Defense counsel in the investigation period asked to meet the provisions of the preceding paragraph the custody cases or criminal suspects, shall apply.

The defence lawyers to meet the application, shall within forty-eight hours after receiving the application, report to the public security organ at or above the county level shall be responsible for the approval of people, make a decision of approval or denial. In addition to impede the investigation or may disclose state secrets of the circumstances, shall make a licensing decision.

The public security organs do not permit meeting, shall notify in writing the defense lawyer, and explain the reasons. Impede the investigation or may disclose state secrets cases disappeared after the public security organ shall permit meet.

Any of the following circumstances, belonging to the provisions of this article would hinder the investigation "":

(a) may destroy or forge evidence, witnesses or collusion of interference;

(two) may cause the suspect himself, Dutch act or escape;

(three) may cause the accomplice, obstruct the investigation of escape;

(four) have been implicated in the crime suspect's family and.

Article fiftiethDefense lawyer asked to meet with the criminal suspect in custody, detention house shall examine the lawyer's practice certificate, certificate of his law firm and a power of attorney or legal aid official, arranged to have the lawyers will meet the suspects in forty-eight hours, and to inform the relevant departments.

During the investigation, lawyers met with the crime of endangering national security cases, terrorist activities crime, crime of particularly great bribery in custody cases or criminal suspects, the executing organ or residential surveillance shall also be checked the investigation organ approval documents.

"The people's Procuratorate rules of criminal procedure (Trial)"

Article forty-fifthFor the case of crime of particularly great bribery, crime suspect is detained or residential surveillance, criminal investigation department of the people's Procuratorate shall in the suspects will be sent to prison or to the public security organs executed written notice of detention or public security organs in the investigation period, defense lawyer who meets a criminal suspect, it shall obtain the permission of the people's procuratorate.

Any of the following circumstances, belongs to the crime of particularly great bribery:

(a) suspected of bribery crime in the amount of five hundred thousand yuan, the circumstances of the crime of bad;

(two) have a significant social impact;

(three) involves the vital interests of the national.

Article forty-sixthFor the case of crime of particularly great bribery, proposed to meet detainees or criminal suspects defense counsel in the investigation period, the investigation department of the people's Procuratorate shall put forward the opinion that whether permits, within three days the chief procurator decides and answer counsel.

The people's Procuratorate crime of particularly great bribery, would hinder the investigation situation in disappear, shall notify the public security organ or the implementation of residential surveillance and defense lawyers, lawyers can not permission to meet with the criminal suspect.

For the case of crime of particularly great bribery, should permit lawyers to meet with the criminal suspect investigation before the end of the people's Procuratorate at

"Lawyers Law of the people's Republic"

Article thirty-thirdThe suspect first interrogation by the investigatory organ or coercive measures taken to date, the lawyer commissioned by a lawyer's practice certificate, certificate of his law firm and a power of attorney or legal aid official letter, have the right to meet the criminal suspect, defendant and understanding about the case. The lawyer to meet the criminal suspect, defendant, not monitored.

 

Sun Maoli: " depth interpretation", contained in the "Legal Daily", February 20, 2013, law school edition