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

(Jiangsu Suyuan criminal defense lawyer Liu Shaokui Center)

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

6Further, the standard of proof of Criminal Procedure Law (article53A).

Refinement of the standard of proof is an important link to ensure the quality of trial. This article from the entity standard, procedure and other aspects of the standard of proof standard of refinement: first, the facts are the facts and evidence of conviction sentencing evidence. Second, all the evidence are through legal procedures verified, examining the evidence more emphasis on procedural justice. Third, the establishment of reasonable doubt exclusion principle. Relative to the three point standard96In the criminal procedure law, more specific, more easy to operate and decision.

8In the form of legislation, the establishment of illegal evidence exclusion system (Criminal Law Article54-58A).

The relevant provisions of the provisions of this article and the judicial system to form a specific exclusion of illegal evidence system, including illegal evidence exclusion criteria, determining method, rule out the procedures. The content has been stipulated in the Supreme People's Court promulgated "on the several problems of exclusion of illegal evidence in handling criminal cases" in the provisions, only the Supreme Court judicial interpretation up to the height of the law. Provisions of the provisions of the content is very comprehensive, specific, but whether the implementation in practice are as follows, need to be further tested.

9, perfection of the witness system (Criminal Procedure Law Article58-63A).

Witness to ensure the legitimacy of the evidence itself, so as to ensure the objectivity and authenticity of facts. The criminal procedure law on the witness has two significant changes: first, strengthen the protection of witness.For organized crimes of the underworldSpecific casesThe witness, Jian DingrenAnd so on, can takePersonal information is not public real full name, address and work unitsSpecial protective measures. Second, to the provisions of the compensation.

10The new provisions, judicial identification (Criminal Law Article192Article2Paragraph).

Because of the judicial identification involves a number of professional and technical issues, and the attorney general is not expert in some professional technology, so for some professional problems, by the public prosecutor, the defender, application specific expert, the expert opinion, the formation of "expert to expert" pattern, will be more advantageous to ascertain the facts.

11Increased provisions, audio and video in the investigation process (Criminal Law Article121A).

This article:"When the investigators suspect, can the audio or video recording of the interrogation process; there may be sentenced to life imprisonment, the death penalty cases or other serious crimes, shall carry out the sound recording or video recording of the interrogation process. Audio or video recordings shall be full, maintain integrity."This provision to ensure certain legitimacy investigation process. Especially for some major cases, such as may be sentenced to life imprisonment, the death penalty cases, must be carried outAudio or video recordings. Audio and video for proof of investigation does not exist during the torture to extract confessions and other illegal behavior has a certain effect, but the specific how to practically implement still needed to test in practice. Before the rise to the legal level in the foregoing, the Supreme People's Procuratorate has made similar provisions, but in the implementation will still be video recording, video not only discontinuous recording, the provisions on the recording in the implementation of a mere formality. The provisions of this article, and does not apply if the violation of this provision of the legal consequences, if violate provisions of the regulations of the evidence may not be used as evidence of the facts of the case, perhaps more effective regulations.

12A judge in court, shall verify the evidence of the criminal law (article152A).

Also this article caused great repercussions, many people think that this may lead to "secret trials", this concern has certain rationality. The reason is that, the evidence without testimony related lawsuit participates in a person, right to defense is ignored, only by the judge unilateral verification, it is difficult to guarantee the authenticity, legality of evidence. Therefore, the rules should be used with caution in practice, it should be through the judicial interpretation of this article will apply the case made strictly limited, otherwise it will seriously violate the basic principles of the rule of law.

(four) revision of investigation, prosecution and trial procedure

Because of the length limitation, this paper revised the procedure system is no longer in detail, the main node modification list, please see the criminal procedure law.

1, the special section provides technical investigation procedure. See the specific criminal law second chapter second section eighth148-152Article.

2, the court during the trial of criminal procedure law amendment (No.202,206,232A). During the trial of the court of first instance will be extended to two months, no later than three months; special cases such as may be sentenced to death penalty cases, approved by the court at the next higher level, be extended for three months; because of special circumstances need to also extend the court approval, report. For instance, should be concluded within two months, may be sentenced to punishment for criminal cases and other special cases; approved by the provincial people's court approved or determined, can be extended to two months; because of special circumstances need to extend, be approved by the Supreme People's court.

In 3 cases, the scope of application of the summary procedure to make new regulation (Criminal Law Article208-214A). This amendment will be the scope of application of summary procedure cases are divided into two categories: the first category: cases in which summary procedure is applied, including (1)The case facts are clear, the evidence sufficient;(2)The accused confess their crimes, the facts of the crime accused without objection (3) the defendant has no objection to the application of summary procedure.Second: do not be cases in which summary procedure is applied, including(1) if the defendant is blind, deaf, mute, or is a mental patient who has not completely lost the ability to recognize or control his own conduct; (2) have significant social impacts (3) in a case of joint crime of the defendant not guilty or has any objection to the application of summary procedure (4) other summary procedure is not appropriate for the trial. At the same time, the simple procedure. The constitution of judicial organization, trial procedure, the trial period, to make provisions.

4For instance, open a court session to make new regulation (Criminal Law Article223,224A).

The criminal law article223The scope of the provisions shall open a court session to:(a) the defendant, private prosecutor and his legal representatives on the first instance of facts, evidence objection, 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) other when open a court session.At the same time,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.

5For instance, the outcome of the court to make new regulation (Criminal Law Article225,226A).

The new provisions of the main points: first, the provisions shall not be remanded case, i.e."The people's court ruling in accordance with the provisions of the third items of the case remanded, the defendant appealed or protested by the people's Procuratorate, the people's Court of second instance shall make a judgment or ruling according to law, shall not be remanded by the people's court for retrial."Second, to further clarify the appeal not infliction of provisions. That is"The people's Court of second instance remanded by the people's court to the trial of the case, in addition to the new facts of the crime, the people's Procuratorate for supplementary outside the lawsuit, the people's court shall not increase the criminal punishment on the defendant."

6Special provisions, increase the procedure of criminal case of minors (Criminal Law Article266-276A).

7Special provisions, increase the parties reconciliation in cases of public prosecution proceedings (Criminal Procedure Law Article277-279A).

8Special provisions, increase of criminal suspects and defendants, escape, death cases of illegal gains confiscated program (Criminal Law Article280-283A).

9The mental patient, special increase shall not bear criminal responsibility according to the law of compulsory medical procedures (Criminal Law Article284-289A).

Three, about the amendments to the Criminal Procedure Law

The amendments to the criminal procedure law of the content is very wide, but relates to amendments to the substantive progress of less is more, some operational rules, some basic principles, the basic system, the basic idea of not larger reform, which therefore the revision of the criminal procedure law of our country under the rule of law is a progressive development. This situation led, the criminal procedure amendment has some shortcomings, need to be further perfect the legislation.

(a) is not clearly established the principle of presumption of innocence.

The principle of presumption of innocence is the basic principle of the International Convention and the rule of law of criminal procedure provisions. UN"International Covenant on Civil and political rights"Article14Article2Paragraph:"Everyone charged with a criminal offence, before proved guilty according to law, shall have the right to be presumed innocent."In the presumption of innocence, the suspects (defendants) before after trial that constitute a crime, shall be regarded as guilty. Based on this idea, a person can not be criminal suspects (defendants) as criminals to look at; only as the accused person (lawsuit) to look at, he should enjoy a series of rights, in this concept derived from a series of concrete systems, these are the inevitable requirement of presumption of innocence. China's criminal procedure law, although the criminal law article12The provisions:"Without the approval of the people's court to sentence, no person shall be found guilty"The provisions of this article, but can not completely reflect the basic spirit of the principle of presumption of innocence and requirements,

(two) did not clearly establish the right of silence.

The right of silence since1688The British "bill of rights" established, has136The following countries. "" International Covenant on Civil and political rights, the Convention14Provides: "subject to criminal prosecution shall be forced to do something against his own testimony or coerced guilty." The main content is to, criminal suspects (defendants) in an interrogation or trial, there is silence and refused to answer right. Generally includes three meanings: first, not to be forced confession crime; second, have the right to refuse the statement of their negative case; third, do not worry about rejection statement to be made legal presumption against. The suspect (defendant) enjoys the right of silence, an important manifestation is the protection of human rights progress, is an important standard of judging a country under the rule of law. China's recent emergence of some malignant cases, which are all with the nature of torture to extract confessions, these suspects (defendants) does not enjoy silence right has important relationship. The amendments to the criminal procedure law, it is only limited to establish the right of silence, need to be further improved.

(three) the respect and protection of human rights are not included in the criminal procedure law.

To respect and to strengthen the protection of human rights is an inevitable requirement of the development of modern society, but also the amendments to the criminal procedure law should bear the important mission. The amendments to the criminal procedure law, added provisions"Respect for and protection of human rights",The cheers for many media. However, this revision will"Respect for and protection of human rights"The provisions in Article2The criminal procedure law of the task, rather than the provisions in Article1The purpose of the criminal procedure law, reflected still needs to further strengthen the protection of human rights. The specific system of any law is the concrete embodiment of its purpose, principle, purpose, principle, the concept is not a fundamental change of circumstances, the system may not have a fundamental breakthrough.

The amendments to the criminal procedure law is a gradually evolving process, cannot accomplish at one stroke. However, no matter how law enforcement is still perfect, one of the most important judicial strict link. How to ensure that the work of investigation, prosecution and judicial organs in accordance with the law, it will be more important subject faced in the criminal procedure law.

(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)