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

(Jiangsu Suyuan criminal defense lawyer Liu Shaokui Center)

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

(two) revision of defense system

Meet difficult, scoring difficult, difficult issues such as views have been adopted widely existent problems in criminal defense, how to solve these problems, we must find the answer from the legislative level. Revision of the criminal procedure law in a certain extent, to solve the problem of how to formulate provisions, but the specific effects, to be the test of practice. Overall, the amendments to the criminal procedure law on the defense system is mainly reflected in the following ten aspects:

1, increase the provisions about respect and protection of human rights (Criminal Law Article2A).

Respect for and protection of human rights as a fundamental basis, content, is the "basic requirements" International Convention on Civil and political rights and China's "constitution", but also the basis for the criminal suspect shall enjoy the other rights.

2The defender, the responsibility to make new regulation (Criminal Law Article35A).

The criminal procedure law revised in delete article35In the "show", to "put forward" two characters, is of great significance. "Forward" is given to the defenders more defense space, as long as the relevant reasons, to clarify the facts, can reduce the suspect's punishment, defense against per capita can argue, but not in accordance with the provisions of the criminal procedure law, to "prove" The suspect, the defendant not guilty, guilty. At the same time, in accordance with the provisions of this article, the defender maintenance includes not only the suspect's substantive rights, including the responsibility to maintain the other "rights", advocate responsibility or right greater range.

3Clearly, the litigation status detection stage defense counsel (Criminal Procedure Law Article33A).

China's lawyer to lawyer who involved in the criminal procedure is a gradual process, early generally, lawyers in only in court is the defender of the identity, then96Years of criminal law will defend the identity of the person in advanceThe case is transferred for examination before the date,This revision will further advance, reflects on the defense system in the cognitive level of progress. In addition, the provisions in law"The suspect, the defendant in custody, also by the guardian, close relatives to entrust defenders"This, for the effective protection of the rights of criminal suspects has certain significance.

4, in the legislative level to solve the difficult problem of the meeting (Criminal Law Article37A).

Meet the difficult is a common problem of lawyer practice exist, many lawyers to properly meet the suspect, the defendant, the case handling organ often set some internal procedures, such as should be approved, need staff meeting with lawyers. Even in the "Lawyers Law" revised, this has not been changed, some people even think, "lawyer law" provisions of the lawyers' rights is only applicable to lawyers, have nothing to do with the case handling organ. Some even allowed to meet with, will not let communication case, even not allow to provide legal service, just see people only, the suspect, the defendant's rights cannot be effectively guaranteed, the rule of law in pursuit of control, debate, the three parties rights balance it is not the purpose. The amendment of the criminal procedure law in legislation to solve the difficult problem that the lawyers met with, toCertificate, the lawyer firm evidence and the power of attorneyThree certificate that can be met. But the provisions of this article shall not completely is in progress, mainly manifested in the following aspects: first, regulate the legal detention center to arrange time for48Hours. The reception meeting time to maximum limit, perhaps lawmakers want to protect the lawyers rights, but the same rules will become the legal grounds for lawyer to meet an obstacle. Second, the lawyer shall after investigation organs permission scope is set too large. If the said regulations meet with"Crimes of endangering national security, terrorist crime"The parties need to go through the investigation authorities to approve the comparison reasonable, then"Crime of particularly great bribery"The caseThe same shall be subject to provisions in allowed range, there seems to be no good reason.

In addition, this article also solves the lawyers not to be listening, which is the International Convention provisions. This was not listening, both can not at the scene monitoring, not through equipment monitoring.

5At the legislative level, solve the difficult problem of marking (Criminal Law Article38A).

The criminal law article38The provisions:Defense lawyers of the people's Procuratorate date, consult, extract, copy the file material.Marking difficult also is a common problem in law practice, and even some lawyers in court before have seen the materials or just seen some procedural materials, right to defense lawyers and the rights of the parties are unable to obtain guarantee. To solve these problems, not only in terms of legislation, more need to change the law enforcement idea. Law enforcement should first the suspect, the defendant as a litigation subject view, he should have a person should enjoy the most basic rights; secondly, the law enforcement should be the public prosecutor and the defender against as ascertaining the necessary conditions for the misjudged case fact, law itself is not good, lawyers involved in the case in order to give the facts to the truth, rather than obstruct judicial organs in handling cases; thirdly, law enforcement should have enough self-confidence, believe that after investigation, prosecution, trial, etc. many of the cases handled themselves, the result is able to withstand the test of history. If no such confidence, only that the law enforcers themselves lack of confidence, the level of law enforcement co..

6Moving forward, to a certain extent, the lawyer forensics method (Criminal Law Article41,39,187A).

The difficult problem of lawyer forensics problem involves not only, more related to the lawyer personal security problems. Therefore, many criminal defense lawyers did not dare in the process of handling cases of evidence, only depend on the material and the prosecution file in the existing confrontation, it is far from enough in many cases. The criminal law article41,39,187Although the provisions of lawyer forensics, but this revision is not a fundamental breakthrough, lawyer forensics problems even in the legislative level has not been solved. First, does not fundamentally solve the problem of appearing in court as a witness. The judicial practice over the years that we have sufficient reason to believe that, in many cases, if the witness, the outcome of the case is likely to change. However, the amendments to the criminal procedure law only to witness to testify in the court to limit the scope of within very narrow. Second, although the Criminal Procedure LawCounselThe procuratorate, the court shall have the right to apply for to the investigation organ mayThe evidence of material in light of criminal suspects, defendants innocence or guiltHowever, if the investigation, refused to provide legal, without a remedy measures or the corresponding legal consequences. In this regard, the criminal law article187On the identification of requirements is reasonable, its provisions"After the people's court shall notify, identification of refusing to testify in court, expert opinion shall not be taken as a basis, "but this only identification of personnel.

7, establish the defender is not illegal for perjury investigation organ procedural safeguards (Criminal Procedure Law42A).

The criminal law article306ArticleRegulationsThe defenders and agents ad litem, destruction of evidence, false evidence, prejudice to testify the crimeLike hanging in the lawyer's head"Damour Damocles"In recent years, this article is used to all the criminal defense lawyer shiver all over though not cold. Indeed, the lawyer perjury for any country does not allow, but how to pursueLawyerThePerjury(we would not discuss the criminal law article306Whether reasonable),The law must be thinking of problem. Because of perjury crime andGeneral criminal has the very big difference,TheMajor isLawyerAs a defender to engage in litigation and detective agencies against process,Easy to take on some complex. If the case against the side of the case handling organ by direct investigation,It is very difficult to avoid the abuse of prosecution.In the criminal law306Article has not repealed or amended case,By modifying the Criminal Procedure LawAll avoidYesLawyerUnsuitable prosecution for perjury,It has a certain practical significance. The provisions of this law"The defender is suspected of committing a crime, the case shall be undertaken by outside counsel for the investigating authority, "has certain rationality. But this provision is not specific, such as: first, the lawyer alleged perjury case start organs to determine,Yuan ZhenCheckOrganTo start?Russian Criminal LawAll provisionsOnly the judges have the right toStart, perhaps the criminal procedural law in China can learn from the next revision. Also, the provisions of the Criminal Procedure Law "In different places"How to determine the scope, if the "remote" authority is within the county, the city and even the province, the law may not much practical significance.

8Increased provisions, to transfer the case to inform the defence counsel (Criminal Procedure Law Article160 ).

　　The provisions of article two has certain practical significance in operation. Due to the development of the basic procedure of criminal case by case handling organ master, so the investigation, prosecution, trial, different stages of conversion, lawyer to know. In practice, lawyers can only keep contact with the investigators, if lucky encounter good attitude the case handling personnel, may know the case in the procedure in progress; in case of general, don't tell the lawyer. A famous lawyer Chen have a complaint, there is a case, the client called to ask him what happened to our case. Chen lawyer told him, the case is being dealt with. The entrusted people shout abuse, on the phone fraud, court notify the family to bring the ashes, still cheat me cases in management. The criminal procedure law, the investigation organ shallTo transfer the case to inform the criminal suspects and their counsel, has certain practical significance.

9Provisions, increase stage of review and prosecution shall listen to the opinion of counsel (Criminal Procedure Law Article170A).

In different stages of litigation, lawyer's obligation and function is different, the law should support, encourage lawyers actively to the investigation organ, the prosecution organ to provide advice, so as to the maximum extent to ensure the legalization of cases results even save social cost. The provisions of this law:"The people's Procuratorate to examine the case, shall interrogate the criminal suspect, to listen to the defendants, victims and their legal representatives, and record. The defender, the victim and his litigation representative put forward written opinions, shall be attached"The lawyer, is not only the respect, but to reflect the quality of case responsible.

10Other amendments

Revision of the defense system, in addition to the above content, and some other aspects, this is no longer in detail. Mainly include: the scope of legal aid to further expand (Criminal Law Article34A); provides that the defender of case handling units, personnel illegal acts against the provisions of the exercise of the right. (47Article,115A);The Supreme People's court review of death penalty cases, it shall interrogate the defendant, defense lawyers request shall listen to the opinions, defense lawyer(Criminal Law Article240A); counsel shall timely will be beneficial to the suspect evidence submitted the case handling organ (Criminal Procedure Law Article40A lawyer shall keep secret); to obtain the information of the process, the specific circumstances shall promptly inform the judicial organ (Criminal Law Article46A).

(three) revision of evidence system

1The definition of evidence, Revised (Criminal Law Article48A).

The criminal procedure law of evidence is defined as"Can be used to prove the material facts of the case", no longer apply96Provisions of Criminal Procedure Law"All facts that prove the true circumstances of the case, is evidence"Here, the revision reflects the legislators to improve the cognitive level of evidence. The revised definition is more able to show evidence of function, the purpose is to prove the facts of the case, not the fact itself. The evidenceOnly after the examination, can be used as a basis of fact.

2Added provisions of evidence, in the form of (Criminal Law Article48A).

This revision increased"Identification of Investigative Experiment record, etc.","Electronic data", will"AppraisalConclusion "renamed" identificationOpinion". Two types of evidence increases is the product of social development, the"AppraisalConclusion "renamed" identificationOpinion"Has the rationality. Because"Expert conclusion", understanding the meaning from the text, is a conclusion, the conclusion is generally unable to change. Renamed"Expert opinion"After understanding, meaning from the text, such opinion is questionable, not an end, the results of the change and the judicial practice match.

3About the question of burden of proof, criminal law (article49A).

This article is a defendant may not reflect the spirit of the proof, if the prosecution can not prove that the defendant is guilty, the public prosecutor should bear the burden of the consequences of not, this is the international legislation.

4He admits his guilt, shall not be forced (Criminal Law Article50A).

The right to silence is our country criminal law educational world has been discussed for a long time, the amendments to the criminal procedure law doesn't establish the criminal suspect, the defendant's right to silence, just to promote to the silence right in direction, consistent with international treaty."International Convention on Civil and political rights" fourteenthThe provisions of the third item:"In the determination of any criminal charge against him, everyone equal, shall be entitled to the following minimum guarantee of: (g) not to be compelled to make against his own testimony or to confess guilt."

5The provisions on evidence, obtained in the process of administrative law enforcement (Criminal Law Article52A).

Administrative law enforcement and criminal justice has certain connection, but if all the confusion between the two evidence effect, is also not advisable. The objective of administrative law enforcement have relatively strong evidence, identified as the criminal evidence, has certain rationality. Therefore, the criminal law the evidence is limited in certain range, such as "Material evidence, documentary evidence, audiovisual materials, electronic data evidence"The objectivity of evidence, the relatively strong, for administrative enforcement of law in the process of verbal evidence, evidence of greater flexibility, the general should not be used as evidence in the criminal procedure.