The newThe understanding and application of Criminal Procedure Law (a)

(Jiangsu Suyuan criminal defense lawyer Liu Shaokui Center)

(for more information please visit Jiangsu Suyuan Criminal Defense Center official website www.jsxb365.com

The National People's Congress on2012Years3Month14On the "people's Republic of China Criminal Procedure Law" (hereinafter referred to as the "Criminal Law Amendment) of our country is a major event in the judicial process, which is decided by the criminal procedure law in the whole legal system status. Amendments to correctly understand the criminal procedure law, plays an important role in improving the criminal defense lawyer business level. In this paper, based on the understanding of the amendments to the criminal procedure law background, analyzes the main contents of the amendments to the criminal procedure law, and make a general description of the deficiencies of the amendments to the criminal procedure law.

One, the amendments to the Criminal Procedure Law Review

(a) the amendments to the criminal procedure law background

1, the protection of human rights consciousness enhancement, the various social strata for more civilized, scientific litigation system. With the development of social politics, economy and culture system, and1979Years,1996Compared with the formulation and revision of the criminal procedure law of the year, all sectors of society placed higher expectations and requirements for the revision of the criminal procedure law. Generally speaking,1979The primary problem to solve in the criminal procedure law for is the law, through the development of law to solve the criminal law does not exist after the cultural revolution the embarrassing situation.1996In criminal procedure law solve the main criminal procedure"As a mere formality"Problem, put an end to the then prevailing criminal cases"Set after the first trial"Situation. Accompanied by torture to extract confessions problems such as social development and judicial practice in China, we meet at the same time, the pursuit of material in a certain extent, pay more attention to the protection of human rights, more eager to law on protection of substantive rights at the same time, to further the realization of procedural justice, criminal means expectations more civilized, more standardized, more scientific. Can be said to strengthen the protection of human rights, is an important mission of the revision of the criminal procedure.

2Put forward higher requirements, specific system related international conventions and China has been the implementation of the law on criminal procedure law. Some international joined the Convention in China in recent years, put forward higher request to the criminal procedure law, has a more profound impact. The Chinese government has to1998Years10Month signed"International Covenant on Civil and political rights",1987China has participated in the "Convention against Torture", although the National People's Congress has not been finally approved, but some of the ideas already started to affect the legislation and judicial practice. The ConventionGivenGiveThe suspectTheThe silenceRights, prohibition of torture to extract confessionsEtc.Regulations, have a large impact on the criminal law and society in ChinaThe criminal procedure law of our country, must be in harmony with. In addition, China's "constitution" provisions must respect and safeguard human rights, the content must be refined in the criminal procedure law.

3In judicial practice, experience, lessons and summarized, as reflected in the legal level need. In China's current judicial pursuit of modernization and Post Modernization measures there are contradictions and conflicts. For example, some high-tech crime, need in criminal procedure law is to provide technical investigation measures; according to the relative shortage of increasing number of the number of crime and judicial personnel, the need to further expand the scope of the summary procedure in criminal procedure law; our country nearly five years a total of two judicial reform, from for four different topics, established60A number of projects, nearly three years form45A judicial interpretation, such as "about some problems of exclusion of illegal evidence in handling criminal cases" and other provisions, these experiences and lessons need to be established in the legal level.

(two) the basic situation of the amendments to the Criminal Procedure Law

The revision of the criminal procedure law in fact is the1996Since the amendment of second large-scale, involving a wide range, a total of amendment110Article, relates to a substantial modification of the articles of142The criminal procedure law, more than half, too. The total number of items from the original225To290Article. Among them, the new added provisions66A, deleted1A new, eventually increase65Article. To modify the contents, three basic system of criminal proceedings law, including the evidence system, defense system and the system of compulsory measures are involved, all the litigation stage throughout the investigation, prosecution and trial. Procedural changes, the revised Criminal Procedure Law on the basis of the original trial supervision, death penalty review procedure, the new added provisions4A special program: a minor procedure of criminal case; the parties reconciliation in cases of public prosecution procedure; the criminal suspect, defendant, escaping death cases of illegal income confiscated program; mental patients do not bear criminal responsibility according to the law of compulsory medical procedures.

The main content of two, revised the Criminal Procedure Law

(a) amendment on the system of compulsory measures

System of compulsory measures is the number of the revision of the criminal procedure law, but in the process of revising the difference is big, the defence counsel in the process according to the provisions on the protection of the criminal suspect or the defendant rights has important significance. In this note, compulsory measures (bail) in the United Nations "International Covenant on Civil and political rights" is a criminal suspect or defendant's right to look up. The establishment of compulsory measures not only aims to guarantee the smooth progress of the proceedings, and the need to protect the personal rights of citizens. But in our country, the compulsory measures (bail) is not a right, not a detention alternatives, and a unique restriction of personal freedom of the measures, even as the crime means and tools. In order to examine the provisions of our criminal law on the system of compulsory measures, will find that part of the specific provisions of criminal law and enforcement measures of spiritual existence some inconsistency, need to be revised to improve the process. The revision of the criminal procedure law on compulsory measures are mainly embodied in six aspects, as follows:

1, to further clarify the conditions of arrest (Criminal Law Article79A).

1996In the criminal procedure law and1979Very abstract years criminal procedure law on the conditions of arrest provisions, resulting in easy to appear in the judicial practice to understand the case of inconsistency, the amendments to the criminal procedure law to solve the problem in a certain extent. This revision, will arrest conditions into two situations: first, should be arrested; second, can arrest. The criminal law article79One should be arrested situation made more specific provisions, these Provisions to further reduce the arrest has important significance to improve the quality, the number of arrests. However, somewhat unfortunately, criminal procedure law on what should not be arrested, was not specified. From the practice point of view, should be arrested and should not arrest cases are relatively small, and therefore should be in the form of law to be clearly should not be arrested in the case, in order to reduce the uncertainty in the process of law enforcement.

2To further standardize the supervision program, arrest (Criminal Law Article86,93A).

"International Convention on Civil and political rights article"9Article3,4Rule three: ",Anyone arrested or detained on a criminal charge for the people, shall be brought promptly before a judge or other authorized by law to exercise judicial power officials, and has the right to trial or be released within a reasonable period of time. Persons awaiting trial prisoners should not as a general rule, but release may be subject to attend the trial should be guaranteed at any other stage of judicial proceedings, and the need to await execution times. Four, any person deprived of liberty by arrest or detention, entitled to take proceedings before a court, that court may decide without delay on his detention is legal and if the detention is not lawful commands to be released."From that, arrest procedures in general should be subject to judicial review. Provisions regarding the arrest of supervision in this revision of China's criminal procedure law, although did not reach the height of judicial review, but than ever before, progress has been made. Criminal procedure law increases the86The provisions of the two kinds of situations, the arrest of Supervision: first, you can ask the criminal suspect; second shall interrogate the criminal suspect, and to make specific provisions shall interrogate the situation. In addition, the criminal procedure law to increase the93A review of the provisions, the necessity of people's Procuratorate to the detainees arrested. For further protection of criminal suspects rights is of great significance, but also to some extent make up for the "existence" and the International Convention on Civil and political rights gap. However, how to initiate the review procedure in practice, such as by the parties is filed, or by counsel filed, how to set up the corresponding legal relief procedures, without further provisions, shall be further improved through judicial interpretation.

3Adds a specified place, residential surveillanceThe criminal procedure law provisions (article73A).

The provisions of this article, whether in law or in other ordinary members of society have aroused a strong reaction. The criminal law article73Or even be conceptualized:73A = secret arrest, secret arrest = National Police, police state = the common enemy of mankind. The amendments to the criminal procedure law has been rising for the justice and evil, freedom and oppression of the life and death struggle. Officials worry is not without reason, because the designated home residential surveillance itself effect, has already reached a considerable degree freedom and restriction of personal, but this measures only need to decide can be executed by a department investigation organ. Litigation in our decision to compulsory measures do not have, it can only be to remedy through the appeal and accusation cases, this power is easily abused. At the same time, the provisions of view, provides only what place does not specify residential surveillance, but did not specify what places to residential surveillance. From the theory to say, if the provisions of what place can monitor lived seems easier to protect their rights. If the provisions of this article shall make people feel lucky, perhaps this article will specify the scope of home residential surveillance restricted within a certain range.

4, specific conditions for residential surveillance and bail to separation (Criminal Law Article72Article,65A)

The provisions of article two reflects the severity of the two law enforcement measures shall be determined and made provisions for specific conditions, further enhance the operability.

5Further, the residential surveillance and bail shall follow the specific norms and so on to make specific provisions (Criminal Law Article69Article,75A).

Especially the provisions"Shall not be allowed to enter the specific place,With no specific staff meeting or communication,Shall not engage in certain activities,The passports and other travel documents, driver's license to executing organ preservationAnd so on, has the certain practical significance.

6To summon, and its extension of time to increase provisions (article117A).

This increased the main content:"The case particularly heavy, complicated, need to take the measure of arrest, detention, subpoena, summons for time not exceeding twenty-four hours."The provisions of this article shall also be controversial, because this provision seems more consideration to the needs of the case handling organ, rather than the need to protect the rights of the parties. Although some restrictive conditions specified in this article, how to perform the test but in practice remains to be time. Many people will have the following questions, if the summons, its time to reach24Hours, then24Hours, how to protect the suspect's diet and the necessary rest time? If the investigation organ at24Do not allow the suspect to rest or eating hours, can be treated as torture to extract confessions? In the social public strongly opposes torture to extract confessions circumstances, this provision is different departments of power game results. (to be continued)

(editor's note: This paper reference in the preparation processResearch results China Law Institute of the Academy of Social Sciences researcher Wang Minyuan, just as the lawyers of internal communication, learning to use)