Song WeiZhao EnaDing Ting Liu Weitao Zhang Yang

 

In March 8th, the NPC Standing Committee two times after deliberation, the Criminal Procedure LawThe draft amendmentSubmitted to the NPC deliberation. Researched the draft amendment, people found that, in the evidence system, compulsory measures, the defense system, investigation measures and other aspects of the constitution draft principles, fully embodies the "respect and protect human rights".

Basic human rights prominent security

■ "respect and protect human rights" was first written in general, the balance between public power and private right

Gu Shengzu (Chairman of the NPC Standing Committee)

Absorb some suggestions the previous stage society proposed draft amendments, make appropriate adjustments and additions, including "respecting and guaranteeing human rights" principle into the law attract sb.'s attention.

The protection of human rights is the idea of law is very important in the constitution,The Criminal Procedure LawModified fully embodies this important concept, in the relation between punishing crime and protecting human rights work well. The draft will be "respect and protect human rights" into the criminal law general rule second, highlighting the protection of basic human rights in criminal litigation process of importance, and to carry out this principle in a number of specific provisions in the.

The provisions of the draft will prevent to some extent and curb the occurrence of torture to extract confessions, can effectively protect the innocent people from criminal prosecution, guaranteeing civil litigation rights. In addition, many contents of the draft introduced the lawyers law, in criminal proceedings, the public has been strong, private right is weak, the rules for the public took a step back, let the right one step further, "respecting and guaranteeing human rights" principle be further reflected.

"Does not notify the family" by the strict limit

Contradiction ■ maximally balanced "notification of family" and "investigation is required between"

Zhou Guangquan (Chairman of the NPC Law Committee)

To take coercive measures objectively will limit the personal freedom of citizens, promptly notify the family members ofThe suspectTo protect the legitimate rights and interests, is an important part of the protection of human rights in criminal procedure. The draft amendment deleted after the arrest would hinder the investigation does not notify the family of the situation, increase the set home residential surveillance notification of family, strictly limit the detention does not notify the family of the scope, and shall immediately notify the families would hinder the investigation situation disappeared after. This is a concrete manifestation of the protection of human rights, is a great progress in criminal legislation, this change the maximum balance the contradiction between "notification of family" and "investigation".

The crime of endangering national security, terrorism suspect suspect in custody, the relevant evidence is not yet known, for investigation is necessary, the relevant work is confidential, the noticeDefendantThe family, may indeed hinder the investigation, therefore, the amendment prescribed without informing the exceptions families.

The draft also stipulates: in addition to not notice, should be informed.

Defense lawyers involved in advance

To strengthen the protection of the rights of the accused, or suspect, enhanced control antagonism on both sides of the debate

Li Mingrong (Fujian Provincial People's Procuratorate Deputy procurator general)

The draft amendment stipulates the suspect during the investigation stage may entrustCounsel. While the current criminal procedure law provides, in the stage of investigation, the suspect can entrust a lawyer for legal assistance. "Legal assistance" and "defender" is not the same. The suspect in the investigation stage entrusted lawyer, this is the essence of legal provisions in the past in the procuratorate prosecution stage to counsel, to promote in the investigation stage may also request, strengthens the protection of defendants, the rights of suspects, strengthen the antagonism between control and double side, provides the legal according to lawyers play a role in the proceedings.

The revision of the lawyers should be approved cases only endanger national security, terrorist activities and bribery special major crime of the 3 cases, with examples the lawyers met with the approval of the parties need, enhance the operability in practice. Modifications that contribute to the public security, procuratorial organs investigation focus on the adjustment and transformation, change "from confession to permit" for "from evidence to supply", improve the detection level.

Lawyers are no longer "trilemma"

■ and lawyer law better convergence, contribute to the procuratorial organs to the next

Xu Zhihui (Beijing Dingye lawyers)

The draft amendment is fully absorb the revised results of the lawyers law, the inconsistency problem encountered in the implementation of the law and the criminal procedure law can be well solved, better protection of the rights of lawyer's occupation, embodies the spirit of the legal protection of human rights.

In practice, because of the criminal procedure without the relevant provisions, the lawyer to visit the suspected criminal is often the investigation organ to "the case involves state secrets can't meet" refused.

The draft amendment stipulates: "the 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 48 hours." "Defense lawyer met the suspect, the defendant is not to be monitored." To solve the lawyer in criminal proceedings are to meet with the criminal suspect to review the case materials, to collect, obtain evidence difficult "Trilemma" these provisions.

The summary procedure applies to "capacity expansion"

■ summary procedure in cases of public prosecution, the prosecutor shouldSend personnel to the court

Cai Ning representative (the Henan Provincial People's Procuratorate long)

The draft amendment to the summary procedure is made 3 major changes.

One is to expand the scope of application of the summary procedure. The scope of application in accordance with the law may be sentenced to three years in prison, detention, control, single punishment in cases of public prosecution for gold, modify the basic people's court has jurisdiction, also meet the following conditions: (a) "the case facts are clear, the evidence is sufficient; (two) the accused confess their crimes, to the facts of the crime accused no objection; (three) the defendant has no objection to the application of summary procedure." It was the realization of "dividing", to save the judicial resources, there is positive significance to improve the efficiency of litigation.

Two is the right to choose whether to give the defendant the summary procedure is applicable, the more respect the choice of the parties, is conducive to the trial procedure smoothly.

Three is the bill, "the summary procedure applies to the trial of cases of public prosecution, the people's Procuratorate shall send representatives to attend the court". This will put forward new requirements to the procuratorial organs prosecution work.

Prudential Assurance of criminal reconciliation

■ helps to overcome the criminal incidental civil judgment enforcement difficult problems

Li Yuefeng members (a branch of Chongqing Municipal People's Procuratorate Deputy procurator general)

In the past, the criminal reconciliation is limited to a case of private prosecution, public prosecution case no settlement procedure. The draft amendment will "due to civil disputes suspected violations of human rights, democratic rights, infringement property crime, may be sentenced to three years in prison and some negligence crime", reconciliation procedures included in the specific scope of public prosecution cases. The scope is limited in a small range, is careful attention to the settings of this program, has the positive significance. Can solve the criminal supplementary civil action procedure in this system into the methodThe victimProblems in the execution of the judgment, is conducive to the realization of the rights of victims.

In practice, some defendants do not want to perform or through other means to circumvent the hidden property incidental civil judgment execution, the victim's interests to achieve. In the criminal reconciliation, the victim and the offender voluntarily reach a settlement agreement, the perpetrators of active compensation for the victim's loss, helps to overcome the difficult enforcement of criminal incidental civil judgment in the judicial practice. In addition, the criminal reconciliation to ensure the timely and effective compensation for victims obtain the offender to give, this system into the method for the parties to save costs and attorneys fees.

Given the special protection

■ witness to avoid high risk and "Aphasia" will endanger the justice on behalf of Xu Ruixia

(the Inner Mongolia Higher People's Court Judicial Committee full-time member)

The current criminal procedure law lacks the witness protection mechanism effectively, resulting in low ratio of bearing witness in criminal cases, has seriously affected the investigation and development. If most people avoid the high risk and "Aphasia", the impact on the system of evidence in litigation, which threatens the judicial justice and social order. The draft amendment to perfect the system of the witness appearing in court, the witness and the witness protection rules.

First draft regulations, "the crime of endangering national security, terrorism, organized crimes of the underworld crime, drugs, witnesses, victims when testifying in a lawsuit, himself or his close relatives and personal safety risk, relevant authorities shall take one or more protective measures". The draft amendment based on the identification of people into the scope of protection, and increase the provisions of "the people's court, people's Procuratorate, public security organ shall take protective measures, the relevant units and individuals shall cooperate with the". The above provisions from the legal level to give special protection to dispel concerns about the witness, witness, increase of witness, the witness problem effectively.

Illegal evidence will be excluded

In evidence to change "the king", put an end to torture to extract confessions

Lv Zhongmei (president of Hubei University of Economics)

China in the 1996 amendments to the criminal procedure law, article forty-third expressly provides: prohibited torture to extract confessions and to collect evidence by threat, enticement, deceit and other illegal methods. But there is no clear illegal collection of evidence does not have the force of law, not enough to prevent some judicial personnel by case pressure or interest drive, rush into danger, using illegal means to obtain evidence, thus causing some misjudged cases, reflecting the strong society, the public credibility of the judiciary is seriously affected.

To change the situation of "confession" king of evidence on the issue, put an end to torture to extract confessions, exclusion of illegal evidence. The draft amendment provisions, to torture to extract confessions and other illegal means to collect testimony, witness's testimony, cannot be used as evidence. In the criminal procedure in the "confession", the first "supreme", "the only" situation, if relying on confessions to conviction, is strictly prohibited torture to extract confessions is not prohibited. Modify the criminal procedure law requirements to handle the relationship between the evidence and testimony, and no person shall be forced to prove their crimes may tend to change completely relying on confessions and ignore the evidence to convict.

To make clearThe second instanceThe hearing range

■ limiting rehearing, solves the problem, in this case repeatedly remanded

Luo Chunmei (Sichuan Province Panzhihua City People's Procuratorate Deputy procurator general)

The current criminal procedure law of the second instance trial is not specified, the large number of cases not hearing phenomenon in practice, the amendment of the second case to trial, the parties, the appellant to dispute the facts of the case, the procuratorate shall open a court session made the list. In addition, the second instance court because of the facts of the case is not clear from the court of first instance for retrial occurred easily in practice, the court of first instance for retrial after the court of second instance, the court of second instance is still the case facts are not clear and remand the case for retrial phenomenon, caused by the detention period party lengthens, violated the human rights, the delay of cases. The provisions of the draft, the remand judgment only once, as in the case of the first party is dissatisfied, the court of second instance no longer remand.

Criminal procedure law stipulates that the court of the second instance trial, the defendant appeal, not to increase the criminal punishment on the defendant, but exist in the "appeal" "practice. The draft amendment to increase the provision, the second instance court remanded the case, in addition to the new crime of fact's Procuratorate for supplementary prosecution, the court shall not increase the criminal punishment on the defendant, which is conducive to the protection of the defendant to exercise the right of appeal.

"Juvenile delinquency" special program

■ for juvenile delinquency providing comfortable environment and continued development

Chen Zhonglin (Professor of Chongqing University)

The draft amendment to set up special juvenile criminal proceeding procedure, for the juvenile criminal policy, principle, each procedure are designed special procedures. The draft set of conditional non prosecution system and applied to minors to juvenile crime record setting storage system, fully embodies a criminal policy of temper justice with mercy "width". The draft also stipulates, the crime lighter juvenile delinquency records are sealed, except as required by law, except the judicial organs in handling cases are not available.

Since the minor criminal subjective malignant small, has not yet formed antisocial personality, and minor plasticity, easy to return to the society, which requires the society to provide a relaxed environment and for the continued development of the delinquent minors space. "Transformation process criminals" call in juvenile offenders, often become their hearts shadow, the juvenile offenders re enrollment, employment desire is difficult to achieve. The minor crime record setting storage system, has a positive role in the prevention of juvenile crime.

(source:The people's daily)

 

 

 

Zhou Ze: the interpretation of criminal law the ten most concerned problems

 

    Recently, criminal law amendment draft submitted to the eleven session of the National People's Congress five session. How to interpret the amendment to testify in court, the death penalty review provisions? What aspects of the criminal procedure law has yet to be improved? For this, this print interviewed lawyers Zhou Ze.

Intern reporter Miao Hui

　　

　　1, the criminal procedure law was known as the "constitution", it actually means what?

Zhou Ze: the constitution is the fundamental law of the state. The criminal law to crack down on crime, protection of human rights for the purpose, the provisions of the state organs in the process of crime attack using his power to. Up a criminal suspect or defendant essentially are citizens of the country, which means that the criminal procedure law in essence is to adjust the relationship between the criminal suspect and the defendant and counsel and the state. In this sense, the criminal procedure law known as the "constitutional", shows its importance.

　　

　2, the amendment provides that, "notification of family within 24 hours of detention, except the range cannot notice, suspected of crimes of endangering national security, terrorism crime notification would hinder the investigation of possible, can not notify the family." So, what do you see?

Zhou Ze: this provision for judicial authority, abuse of power to the detriment of criminal suspects and accused persons and their families the right to provide a larger space. 24 hours is a long time span, may give the defendant's family panic, this notice should be emphasized. In addition, "unable to inform the" space, "may hinder the investigation" has yet to be screened.

　　

　　3, the amendment requires the obligations of witnesses to testify in court, which has much impact on the criminal litigation?

Zhou Ze: the previous provisions of criminal procedure law that case people have the obligation to testify, now amendment emphasized to testify in court, the court of justice have positive significance.

　　

　　4,Amendment stipulates: "the witness did not testify in court without justified reasons, the people's court may enforce the court." On the "justification" should be how to define?

Zhou Ze: "good reason" is not hard to define because of illness, can not appear in court and so can be regarded as a justifiable reason, the court discretion. If the amendment is passed, "justification" also needs to be defined by the court judicial interpretation.

　　

　　5, the amendment mentioned, close relatives suspect has the right to refuse to testify. What do you think?

Zhou Ze: as a matter of principle, that the people have the obligation to testify, but the law is to maintain the stability of social relations, family relations is the need to maintain stable social relationships, so give the suspect's relatives from the right to testify is very important.

　　

　　The provisions of the 6 amendment, no person shall be forced to prove himself to be guilty. This is one of the provisions of "criminal suspects to investigators asked shall truthfully answer the" contradiction?

Zhou Ze: the provisions of this little sense. To prove the defendant guilty is the responsibility of the public prosecution, not the accused person, the law also prohibits torture to extract confessions. In addition, the suspect in the inquiry process say or not to say, to say what is free.

　　

　　7, former justice minister Zhang Fusen think, "the" one "system is very difficult to avoid the torture to extract confessions. What do you think?

Zhou Ze: This is the reason. The suspect and accused person's detention facilities belongs to the public security departments, it cannot ensure the investigation department and the Department of between mutual restriction and supervision.

　　

　　8, read the draft amendment provisions, "the Supreme People's court review of death penalty cases, it shall interrogate the defendant, to listen to the opinions of the defender," two read the draft will be changed to "the Supreme People's court review of death penalty cases, may interrogate the defendant, defense lawyers claim, shall listen to the opinions of the defender". The procedure for review of death sentence "can" interrogation of a defendant, leaving the scope of discretion to the judge, would circumvent the interrogation of a defendant's problem?

Zhou Ze: a manuscript more scientific. The Supreme People's court in the review process, to listen to the defendants and their counsel opinion is to protect the defendant's right to defense is important one annulus. The provisions of the two manuscript may lead to the judicial organ to ignore the right of the defendant, resulting in unnecessary problems.

　　

　9, the death penalty review reflects the amendment to the Criminal Procedural Law control on the death penalty. The reduction of the death penalty would be the direction of future improvement of the criminal procedure law?

Zhou Ze: the reduction of the death penalty is the development trend of the world criminal law, applicable to minimize the death penalty, less application of death penalty.

 

　　10, the criminal law needs to be improved in what areas?

Zhou Ze: first of all, the criminal procedural law is inadequate in the protection of human rights. It should be possible to consider the limit of criminal prosecution power is not abused, and rights protection in a weak position of the criminal suspects and defendants. In addition, the defendant the right to a public trial is very important. No trial, limit, limit public media reports, means that the public lost control over the cases of second instance, may lead to the defendant to obtain a fair trial.

 Http://www.sina.com.cn  In 2012 03 months 16 days 14:01  Southern People Weekly