Dear sirs:

   Amendment of the criminal procedure act is directly related to the future for a long period of time, our country's human rights protection, criminal procedure development direction, the rate of criminal defense, social harmony and stability and a series of problems is beneficial to the people's livelihood. The scope and knowledge is too wide, too deep, not only need to consider and balance factor transverse present the interests of all parties, also need the vision of development of vertical thinking, make ready for the further construction of the rule of law, the rule of law development in the history of the transition mission. Therefore, how to modify the criminal procedure law is Public opinions are divergent., Tastes differ all tastes.

   In view of the various law voice chaos, disorder, it is difficult to form a system, and complete the legal opinions, the heart that one of the ideal of the rule of law, we put forward a self that is the comprehensive revision opinion, in order to set up the target, this concept, want bold criticism, my cock one's ears to listen instead, there is wrong.

   This paper not only for the NPC Law Committee released the revised criminal procedure law draft list put forward amendments, discussion on the amendment of the criminal procedure law of criminal procedure law draft made no mention of the content of modification, hope to be able to think the problem more comprehensive.

 

On the one hand, the criminal procedure law amended criminal procedure law perfect: eleventh about "defense principle"

   The criminal procedure law article eleventh: "the people's court cases, unless otherwise prescribed in this law, shall be heard in public. The accused has the right to defence, the people's courts shall have the duty to guarantee the defendant to defence". The second sentence in a separate article and revised as follows:The suspect, the defendantThe right to defense in accordance with the law.The people's court, the people's Procuratorate, the public security organHave the obligation to ensure that criminal suspects, defendantsTo exercise the right to counsel in accordance with the law.

    The reason for the modification:The criminal procedure law only stipulates: Eleventh People's courts shall have the duty to guarantee the defendant to defense, obviously the original criminal law has obvious limitations. At present, the provisions of the draft, the three stage suspect, the defendant has the right to defense.

 

 

Two, the amendment of the Criminal Procedure Act: the criminal law article thirty-second on the "defender number" of modification

   Thirty-two the provisions of the criminal law: "the suspect, the defendant in addition to exercising the right to defend himself, also may entrust one or two persons as his defenders" will "also may entrust one or two persons as his defenders" to:The number of criminal suspects, defendants hire a lawyer is not restricted, but the court shall not exceed two of lawyers.

    The reason for the modification:The defendant lawyer number restricted problem. The lawyer is the defendant's rights, public power should not be restricted; the lawyer handling process, often in the meeting, marking, case research and discussion, ask the expert link is limited to only employ two lawyers, but in practice in order to realize the full justification purposes, lawyers do need to seek help, if allowed to hire many people do defense, can make the lawyer does not have a duty of confidentiality restrictions, and let the lawyers, paralegals, professionals to understand the circumstances of the case. In fact, it is often the lawyer practice have lawyers involved in the case of defense activities, but legislation has no provision; larger, more complex cases, prosecutors can arrange more prosecutors involved in litigation (sometimes up to six people, eight people, can get more use of supplemental investigation way of preparation time), while the two defenders, often in the court preparation can not be guaranteed quality (court hearing in public prosecution, within one month after only two defenders, marking, meeting time is often not enough).

   Since a paragraph of period, many controversial cases in society, such as: the Yang Jia case, Deng Yujiao case, Guangxi Beihai case, the defendant lawyer links, including: who has the right to hire a lawyer, replacing the lawyers and other sectors have some problems, the fundamental reason in our country has stipulated the defendant can only hire one to two lawyers for defendants provisions. It is impossible to see the provisions in the legislation of other countries.

 

Three, the criminal procedure law draft article third on "obligation" and "lawyer" modification

   The draft amendment of the criminal procedure law third stipulation: "the criminal suspect is interrogated by investigation organ for the first time or to take coercive measures to date, has the right to entrust defenders. In the period of investigation, can only be entrusted lawyer. The investigation organ to take coercive measures of criminal suspects in the interrogation of a criminal suspect or the first time, shall inform the criminal suspect has the right to entrust defenders. The people's Procuratorate after receiving the case transferred for examination before prosecution within three days, should inform the suspect has the right to entrust defenders.

    The accused has the right to entrust defenders at any time. The people's court after accepting a case of private prosecution, within three days, should inform the defendant has the right to entrust defenders.

    The defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial organs."

(a) to remove the provisions of the duty of disclosure, increase the provisions about the right. The third draft last paragraph: "the defenders by criminal suspect, defendant after commissioning, it shall timely inform the cases handled by the judicial authorities" to:The suspect, the defendant commissioned lawyer, the case handling organ in making the suspects, defendants benefit program, substantive decision, notify the criminal suspects and defendants, at the same time, inform the principal counsel.

    Delete reason:Establishing a principal-agent relationship between lawyer and client are citizens to exercise their rights act, established shall have the legal effect, no need to other people, including representatives of public authority of the judiciary to fulfill the obligation of informing; this provision is not operational in practice. Criminal defense lawyers often could not find the undertaker, how to fulfill the obligation? Either by mail or lien, etc., are not a good operation. What is consistent with the "timely" to inform the condition, also not understand; do not fulfil this obligation consequences? The practice of compulsory notification will not understand, lawyer for the "approval", it is worthy of attention. The court, on the situation, the temporary replacement of defense lawyers often happens, this provision would reduce the chance of getting help.

The reason for the increase:To solve the suspects, defendants, the right to know the problem of defense. In practice, attachment, seizure, supplemental investigation, prosecution, investigation to the end of deferred trial and decision etc, to undertake the Administration (personnel) often can not inform the suspect, the defendant, but do not notice the situation of lawyers. Serious are the execution of the judgment, the defense also don't know. Often the parties understand the development of the case through private relationship after the notice of lawyers, lawyers and judicial organs passive situation to verify. So, many parties that a lawyer has no effect, because of the progress bar even cases are not understand.

The right to know is the basis of the defendant, the defender of all rights, no right no right to defense. A draft amendment to the criminal law at present, will not solve the suspect, the defendant, the defender's right to know, to establish trust relationship needs to fulfill stipulated in the very difficult to fulfill the obligation of informing, need to modify.

    (two) the principal benefit provisions of lawyers. The criminal law amendment draft article third, added a lawyer link, in the last one paragraph is added:Criminal suspects, defendants in custody, the guardian,Relatives and friendsCriminal suspects and defendants, the designated personCan to entrust defenders; criminal suspects and defendants, entrust a defender, the people's court, the people's Procuratorate, the public security organ shall, within twelve hours to convey.

    The reason for the increase:In practice, only the suspect, the defendant family can to hire a lawyer, often is not very convenient, other people to hire lawyers often because there is no legal basis, and had to use a method. Do the rules, especially the "friends", "allow suspects, defendants designated person" to hire lawyers will broaden the suspect, the defendant lawyer channels, is conducive to the defenders in criminal procedure, improve the efficiency of criminal defense.

There are many as alien as a criminal suspect who cannot contact and close relatives in the reality, the migrant workers is the most prominent, if the family, family is not local, can not guarantee their basic rights to hire a lawyer, and provisions for "friends and the designated person" will be more useful. In fact, anyone should be able to hire a lawyer, just at the meeting by the suspect, the defendant shall be confirmed to me.

 

Four, the criminal procedure law draft article seventh "to meet", "show" file ", marking the way", "marking content" modification

   (a) of the criminal procedure law draft seventh changes: "defense lawyer to 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. Read: the defense lawyer to lawyer's practicing certificate, proof of lawyers and legal aid attorney or letterIn the statutory working hoursTo request a meeting with the suspect, the defendant in custody, detention house shall arrange the meeting.

    Added provisions:The statutory time limit;

    Delete:"At the latest provisions shall not exceed forty-eight hours".

   The reason for the modification:Working time requirements met, no need, no reason to wait until forty-eight hours later; such provisions, is actually to all cases meeting authorized detention mechanism can be delayed for forty-eight hours; in practice, lawyers are often met with finished hearing, if is arranged to meet in the forty-eight hour, lest bungle, investigation, trial lawyer marking time. This provision is to require that the lawyer to make any plans must be forty-eight hours in advance.

   (two) draft supplement to Article seventh: "defense lawyer meets with the criminal suspect in custody, the defendant, can learn about 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". The increased requirements: to the suspect, the defendantOutThe case files,Verify the relevant evidence.

    The reason for the increase:In view of the problems in the judicial practice is controversial, causing some confusion, so had to issue clear provisions in the legislation, law responsibility, obligation will produce the materials in the case for the defendant to verify. If only a simple "provisions will verify the relevant evidence" that practice is ambiguous understanding, namely "verify the relevant evidence, not equal to produce the materials", I'm afraid or not completely solve the problems in practice.

(three) the seventh draft amendment: "endangering national security crime, terrorist activities crime, bribery crime in the period of investigation, lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ. Is amended as: Crimes of endangering national security, terrorism crime cases,Must be approved by the Provincial Public Security Bureau or the public security ministry,In the period of investigation defense lawyers to meet with the criminal suspect, it shall obtain the permission of the investigation organ.

The increased requirements: must be approved by the Provincial Public Security Bureau or the public security ministry.

Delete:The original provisions of the "major bribery crime"

The reason for the modification:To improve the decision, "the public security organs that endanger national security crime, terrorism crime" two kind of crime levels, the case handling organ as an excuse to avoid random, restrictions on lawyers. Theoretically speaking, the approval organ and executive organ shall phase separation, namely the investigation organ itself shall not have the right to decide the lawyer to meet or not, the third party shall exercise the rights, judicial review of decisions by the award. In view of the present situation, the establishment of judicial review may not directly link is larger, therefore improve the decision-making organ within the investigation organ level should be transition selection. In judicial practice, such serious crimes, apparently County, city level investigation agencies also report to the public security authorities at least at the provincial level or above, so the decision entirely feasible.

The joint criminal case of major bribery crime does not have the major and the two crime can be compared, if the common crime of major bribery cases classified as meeting require the permission of the case, may in practice there will be a lot of bribery cases in the investigation stage are labeled as suspected of common crime, to limit the lawyers. No previous this provision, because there is no lawyers met the problem, there is no reason to restrict the lawyers. It is proposed to abolish the regulations.

   (four) the provisions of the draft Seventh Amendment: "thirty-eighth defense lawyers of the people's Procuratorate date, consult, extract, copying of the case material of the facts of the crime." Instead of:ThroughConsult, extract, replication,Photograph, scanning, acquiring the case all the materials.

    The reason for the modificationLawyers: solve the problems. Lawyers for the purpose of understanding the case, can choose a lawyer. In practice, the judicial authorities around the requirements are different, some provisions can only copy (charge high fees, the parties can not afford), some only electronic version or only allowed to take photographs (some lawyers do not have the electronic version of the file, not with the electronic version of the file, and some conditions) regulations can only extract, so it is necessary to be clear in the legislation. Is for the purpose of service, can be selected by lawyers, as long as it can let defense lawyer accused material can be completed to.

   "The text of the facts of the crime accused material" this statement is actually let the prosecution departments for which the materials to the lawyer, which do not give the lawyers have right to decide, the right to choose, namely only undertaker thought to be accused of material to the lawyer. Current law requires the investigation organs must comprehensive collection of evidence, including evidence in favor of the defendant, apparently innocent, crime evidence may be not of the facts of the crime accused materials, if the prosecution department show "material" of the facts of the crime accused only to lawyers, lawyers not to show any benefit the defendant's material will become a legitimate, is undoubtedly the legislation would violate, is not conducive to the comprehensive understanding of the development of defense, defense.

   Five.Supplement to the seventh draft: the lawyer did not in accordance with the law during the meeting, the defendant investigation authorities made the confession was illegal evidence, should be excluded, not as a basis for decision; before the court did not produce the dossier, unless in favor of the defendant guilty, sentencing the case materials, will not be allowed to serve as basis for a final decision.

Additional reasons:Don't stop with penalties for illegal, no restrictions on the marking of punishment, no illegal cost, there is no relief rights, such rights set practice must have a problem.

 

Five, the criminal procedure law draft article eighth "the lawyers' rights of investigation", "the investigation right relief" supplement

A pairDraft article eighthDefense: "people think that in the investigation, prosecution, public security organs, people's Procuratorate collected during the prove the criminal suspect, defendant not guilty evidence not submitted, may apply to the people's Procuratorate, the people's court to obtain relevant evidence".The increased requirements: counsel submit evidence, evidence suggests in favor of the defendant evidence can not be provided, the defendant, the defenders argued in favor of their own truth and advocated the establishment of.

    Additional reasons:This is the lawyer's right of investigation and collecting evidence means of relief, no such remedies for obtaining of evidence is lip-service. Judicial practice in the past, lawyers often apply for investigation and evidence collection, but the lawyer's application often should not respond; judicial interpretation in the past, but also the provisions, however, due to the lack of in the application research can not the consequence of the provisions, make the rights basic lost.

(two) forDraft article eighthSupplementary Provisions:Attorney to investigate the evidence, with lawyers and law firms practicing certificate to prove, the evidence material to relevant units or individuals in connection with the case.

    Additional reasons:"Lawyers Law" on the lawyer's investigation has made clear, the provisions of the criminal procedure law of the witnesses agreed, and the investigation and judicial assent, so for the original criminal law article thirty-seven revision cannot increase provisions specified in the original basis, and should be adjusted synchronously with the lawyers law. Only when the defense lawyer investigation of evidence not to undertake office to apply, is consistent with the general rules in judicial practice.

 

   (three) forDraft article eighthTheSupplementary Provisions:The defendant, a defenderFor the notice of the people's court to obtain evidence, witnesses, expert witnesses, the investigators to testify in court, the people's court does not agree to the above application, shall be in written form and explain the reasons and attached. The dissatisfied with the ruling, the defendant may appeal on appeal as a separate, superior court shall first be examined, that the verdict reasons not fully, can directly order the rehearing.

    The supplemental ground:In order to ensure the lawyer investigation of evidence can be achieved, the corresponding provisions of the remedies clause.

 

Six, the criminal law amendment draft article tenth "lawyers' rights protection" delete and add

The draft stipulates that the tenth, thirty-eighth to forty-second, the first paragraph is revised as follows: "defense or to any other person, shall help the criminal suspects, defendants to conceal, destroy or falsify evidence, or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs".The proposal to delete the clause.

At the same time supplementary provisions:Lawyers in the practice activities of the personal rights are not violated. Defence lawyers in the courtroom is not subject to legal prosecution. However, publication of endangering national security, malicious slander others, seriously disrupting the order of the court except speech. Judicial organs found in the lawyers involved in criminal activities, may be suspected of crime to detention, arrest, the judicial organ shall put forward suggestions to counsel the provincial Lawyers Association, and at the same time to the provincial authorities. Provincial lawyers association that the defense lawyer serious violation of occupation moral, agreed to pursue shall issue written suggestions to the relevant judicial organs. Don't agree to pursue, the judicial organ shall not be held responsible for lawyers. Directly related to litigation defense lawyers involved in the case handling organ, shall participate in the proceedings for lawyers liability.

 

    Recommended the abolition of the original criminal law thirty-eighth reasons:In recent times, because the occupation of revenge, use the event to article three hundred and six of the criminal law against criminal defense lawyer occur frequently, especially in Guangxi occurred in Beihai criminal defense lawyer investigation of evidence for the initiator of the case, fully shows the provisions for criminal defense, and even criminal activities carried out normally, has the extremely disadvantageous influence. The criminal law article thirty-eighth is the basis of article three hundred and six of the criminal law, to amend article three hundred and six of the criminal law, you must first remove the criminal law article thirty-eight.

If the proposal was not accepted, please consider the second part of the first paragraph delete, will "or collusion, threatening, luring witnesses to give false testimony or conduct other acts of interference proceedings of the judicial organs." Delete part.

Originally had an opinion, that is: at the same time, the public prosecutor, law officers and lawyers have included the crime subject. But the fact there is a big problem. Because even if also made provisions, the public prosecutor, law personnel shall have the right to catch the lawyers, and lawyers have no right to counter, there would still be occupation retaliation problem. So it needs to be completely abolished, there is article 307 of the criminal law.

Additional reasons: in view of the current frequent outbreaks of the lawyer in the litigation activities in the process, has not yet ended, pursue the Defense Lawyers liability cases have occurred, for example, the typical Guangxi Beihai lawyer caught case, it is necessary for such cases under the jurisdiction of starting, and other aspects of specific provisions. Linked to the supplementary provisions and the "Lawyers Law", increase the accountability procedural defense lawyers, lawyers association first to practice lawyers make responsibility. Frequent outbreak of such cases, let the criminal defense lawyers have a lingering fear, to be very careful, testing the law success, progress and not the most simple logo is to look at the can will some lawyers to attract criminal defense stage, the criminal defense rate, increase of at least ten percent or higher on the existing basis, if substantial modifications and specification does not make here, not only does not increase the rate of criminal defense, may actually lower. If the criminal defense rates fall further, criminal defense will be the case in practice, it is difficult to guarantee the quality of the people's Court of criminal cases, and ultimately affect the citizen's human rights safeguard, affect the construction of the rule of law.

 

Seven, on the draft amendment to the penal code article seventeenth "torture to extract confessions", "illegal evidence exclusion" supplement

   Draft article seventeenth should increase more detailed list: "using torture to extract confessions and other illegal methods to collect the suspect, defendant's confession and using violence, threats,Lure, lure, deception, corporal punishment, limited enforcement method to rest and diet and other psychological, physiological,Illegal methods to collect the testimony of witnesses, victims' statements, should be excluded. Violation of the provisions of the law collection of physical evidence, documentary evidence, seriously affecting judicial justice, the evidence should be excluded.

    Additional reasonsAfter such problems: legislation, judicial interpretation are taken as manner (though this form is not complete), which are common methods in judicial practice. Through this practice, only through the use of more clear, detailed, specific examples to express the specific forms of torture to extract confessions, it may inhibit the occurrence of torture to extract confessions within certain limits, but surprisingly, the repair method for the phenomenon of torture to extract confessions are anti decreases, so we suggest adding the provisions.

 

Eight, the criminal law amendment draft article eighteenth "supplement to the people's Procuratorate of illegal evidence exclusion"

   To draft article eighteenth: "the people's Procuratorate received a report, complaint, report or the discovery of the illegal methods to collect evidence, shall conduct investigation and verification. To do to illegal methods to collect evidence situation, should put forward rectification opinions, when necessary, may suggest the investigation organ replacement of the people. For illegal methods to collect evidence, which constitutes a crime, shall be investigated for criminal responsibility according to law."Add a new paragraph:No investigation and verification, should be in three days to issue a written reason, for no reason not to carry out the investigation, may appeal to the people's Procuratorate at a higher level.

    The reason for the increase:"It shall investigate and verify the expression" is a principle, there is no specific regulations shall not long, the verification of the results and the way of relief, it is necessary to set the time, designing the relief ways and means to ensure that the people's Procuratorate, indeed, to fulfill their obligations to fulfill its mandate.

 

Nine, the criminal law amendment draft article nineteenth "supplement to the people's court to exclude illegal evidence"

On the draft of article nineteenth: "the process of trial, judges that may exist in the fifty-third article of this law to collect evidence by illegal methods situation, should the court investigation evidence collection of legitimacy."Supplementary provisions:For there is no investigation, shall timely instructions, and shall be described separately in the judgment.

    Additional reasonsIncrease the people's Court: the exclusion of illegal evidence responsibility, emphasize the judgment reasoning, to remind the court of second instance to illegal evidence exclusion problem, as the parties through the appeal to solve the illegal evidence to provide the necessary way to exclude.

 

Ten, the criminal law amendment draft addendum twentieth "investigation of illegal evidence"

   Supplement to draft article twentieth: "the people's court may notify the relevant investigation or other personnel to appear in court to explain the situation. The notice of investigation in accordance with the law, or other personnel shall appear in court. The investigation personnel or other personnel may request the court to explain the situation."Supplementary provisions:The investigation personnel or other personnel shall appear in court and does not appear in court, should obtain evidence could not be obtained, is doubtful, should be excluded.

    The supplemental ground:Judicial practice has proved in the past, if there is no remedies, no clearly defined behavior consequence, provisions in principle, no practical significance in practice. On the expert witnesses part of this revision, clearly stipulates the appraiser shall appear to testimony without court examination of the consequences, the relevant provisions of advice here from the cross examination of expert witnesses, clearly stipulate that no court in consequence. Obtaining of evidence the same problems exist, such as not shall be obtained without giving access to the consequences, I'm afraid it is difficult to be executed, the legislative significance.

 

Eleven, the criminal law amendment draft article twenty-third "supplementary witness protection"

   Supplement to the draft article twenty-third: "for the crimes of endangering national security, terrorism, organized crimes of the underworld, drug crimeIn such casesThe victim, witness, witness in the proceedings, he himself or his close relatives of personal safety risk, should the people's court, the people's Procuratorate and the public security organsIn the Provincial Judicial Authority approval, in ensure the defendant counsel witness, perception, does not affect the examination of the case,Take the following one or multiple protective measures:

   (a) individual information is not publicly real full name, address and work units;

   (two) take not to expose the appearance, voice of such measures to testify in court;

   (three) personnel are forbidden to contact the witness, the victims and their close relatives;

   (four) to take special protective measures for personal and residential;

(five) other necessary protective measures.

Delete:"The provisions of cases ".

Delete reason:Avoid making expanding interpretation practice.

Supplementary provisions:In the Provincial Judicial Authority approval, in ensure the defendant counsel witness, perception, does not affect the examination of the case

Additional reasons:Must find the right balance between the witness protection and real evidence, not because of the need for witness protection, the defendant, the defenders can not carry out quality certificate. Such provisions refer to foreign, not considering the testimony of the witness protection measures. The present Provisions, may let the defendant, the defenders weren't sure witness real existence, may let the defendant and the defendant cannot see evidence, cannot cross examine the essence, there may be a case of many or all of the need to take measures to protect the situation, there may even be to the witness protection as an excuse, hinder get witnesses to testify in court cases. Typically, the witness protection through the judicial review of the third party, in order to avoid the ratification and implementation, belong to a display fair, but to establish the judicial review system is difficult, therefore, to improve the level of provisions should be approved by the authorities, the final transition to the court.

 

Twelve, the amendment of the criminal procedure law of twenty-eighth "bail" draft supplement and modification

(a)The draft twenty-eighth, seventieth: "shall decide authority bail consider guarantees the litigation activities of the social risk, bail people, plot, nature of the case, may be sentenced to a punishment, is released on bail pending trial of economic situation, determine the amount of the deposit".Amended as:The decision-making organ of bail should be considered to ensure the litigation activities of the social risk, bail people, plot, nature of the case, may be sentenced to a punishment, was released on bail the people's economic situation,In seven days written notice to the applicant if released on bail to take measures, as well as the determination of the amount of the deposit. The authority of the guaranteed pending trial is not reply, reply objection or party, may raise objections to a higher authority.

The reason for the modification:The criminal procedure law, the defender can make bail application, but not specified in the receiving application decision authority in time, be how to answer. So in the judicial practice, the bail application, authorities often ignore, no news, no reply. The law, obviously the legislature from social economy, litigation economy, lower the rate of custody, pending the value of considering multiple angle, thus make favorable provisions. However, this provision does not complete, perfect. There is no clear reply in time, nor shall not reply for consequences, and remedy measures. Therefore, in the hope that further regulate.

In fact, about bail measures are adopted, shall take judicial review or ways of hearing, make decision-making authority, parties to listen to the opinions of the defender, listen to the views of the parties, but considering how set fear is difficult, so simple to regulate.

(two) the twenty-eighth draft finally a change: "seventy-first criminal suspects, defendants on bail period did not violate the provisions of article sixty-ninth, when the end of the guarantor pending trial, by notice to remove the bail to the bank to receive returned deposit." Is amended as: seventy-first a criminal suspect, the defendant in the release on bail is not in violation of the sixty-ninth article of this law,Bail at the end of the contractor to ensure timely notice, authorities issued by the lifting bail,GuarantorWith the cancellation of bail to the bank for the refund of deposit.Guarantee period of one year expires, the guarantor may hold margin payment receipt to the bank for the refund of deposit.

Additional reasons:Avoid guarantee delivery margin long term indwelling bank cannot retrieve.

 

Thirteen: the criminal law amendment draft article thirtieth "supplement to residential surveillance" and delete

   (a) to add and modify the draft of article thirtieth: "residential surveillance shall be executed in the suspect, the defendant's; no fixed residence,The consent of the suspect, the defendant, the defender,In the designated residence execution.

    Additional reasons:Allow the litigation participants have the right to choose, the right to participate in criminal proceedings, to avoid the occur frequently in the judicial practice, in the detention house by residential surveillance custody in disguised form, and even torture to extract confessions happening.

   Two.DeleteThe latter part of the first paragraph of article thirtieth of the draft: "for the alleged crimes against national security, terrorist crimes, major bribery, residence in the execution may hinder the investigation, the approval of the people's Procuratorate at the next higher level or the public security organ, also can be in the designated residence execution. But, not specified in the regulations of custody, special case handling place implementation ".

Delete reason:Treatment of suspected of such crime suspects, defendants not necessary, should not take the residential surveillance of detention. Custody much more severe than residential surveillance, why in the legislation specifically so serious crime provisions residential surveillance? Such provisions, if residential surveillance tougher measures.

The current judicial practice, torture to extract confessions generally occur in the detention center, in order to curb the occurrence be brutal and inhuman torture to extract confessions of this situation, the amendments have cudgeled one's brains. Such regulations, is tantamount to from the places of detention at the suspect, the defendant opens a law to allow passage.

    Three.Supplementary provisions:Evidence obtained in violation of the provisions of the above words during the illegal evidence, can not be used as the basis for a final decision.

    Additional reasons:This is the right to relief provisions. For the illegal use residential surveillance, disguised by residential surveillance means from the places of detention the suspect, the defendant, to obtain confessions results shall be avoided by means of residential surveillance, detention in disguised form the suspect, the defendant.

   (four) delete draft thirtieth section second first half part, namely "designated residence residential surveillance, in addition to not notice or suspected of crimes of endangering national security, terrorism crime, beyond notification would hinder the investigation situation may be, ought to residential surveillance and enforcement of the reasons, in the implementation of residential surveillance after twenty-four hours, notice under residential surveillance in the families of the people"Delete: "or suspected of crimes of endangering national security, terrorism, notification would hinder the investigation situation may be outside"

    Delete reason:Such a serious crime should not be taken to residential surveillance measures; to avoid another place of custody, prevent torture to extract confessions.

 

Fourteen, the criminal law amendment draft article thirty-fifth "supplement of arrest conditions" and delete

   To restrict conditions about the arrest of thirty-fifth draft, namely "to have evidence to prove the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the danger to the society, should be arrested:

    (a) may implement the new crime;

    (two) the real danger endanger national security, public security or public order;

    (three) may destroy, forgery, hiding evidence, witnesses or collusion of interference;

    (four) the victim, informants, may take revenge the complainant implementation;

    (five) may Dutch act or escape".

    DeleteOne of the (a) (three) (four) (five) paragraphs.

    Delete reason:Deletion of the four "may" representation of the part and the front of arrest conditions inconsistent with stated, "there is evidence on the facts of the crime, may be sentenced penalty above criminal suspects, defendants, take bail, residential surveillance methods, is still not enough to prevent the danger to the society, should be arrested". Four kinds of situations do not belong to have evidence to prove the facts of the crime. Such regulations may be malicious to expand in practice, namely, who said "may", it can be arrested.

   The present formulation, the case handling organ can expand access to arbitrary arrest, without limitation.

 

Fifteen, the criminal law amendment draft article thirty-sixth "detention notice" modification

   The draft thirty-sixth: "arrest, the detainee shall immediately send the detention center custody, not later than twenty-four hours. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should give the reasons for detention and the place, in the detention within twenty-four hours after notification, the detainee's family",DeleteAmong them: "and other serious crimes, other than notification would hinder the investigation situation may".

    Delete reasonAdd: "serious crimes such as" let the host organ had any interpretation of the law of the space, can be extended to any case does not notify the family; the same "notification would hinder the investigation of possible other situations" is also to the investigation organ unlimited expansion of rights, any interpretation of the law of space.

 

Sixteen, the criminal law amendment draft article thirty-ninth "arrest notice" modification

    The draft article thirty-ninth: "after the arrest, it shall immediately be arrested for custody. In addition to not notice or suspected of crimes of endangering national security, terrorism and other serious crimes, other than the notification would hinder the investigation situation may be, should be arrested and custody premises, within twenty-four hours after the arrest, notify the family of the arrested person."Delete theSerious crime ", outside the notification would hinder the investigation situation may"

Delete reason:With the same seventeenth.

 

Seventeen, the criminal law amendment draft article forty-third "calculated" supplement and modification

   On the draft of article forty-third: "the last day of the period for the holiday, the first day after the holiday for the expiration date. But during the criminal suspect, defendant or criminal in custody, should to the expiration date, shall not be extended because of the holidays".Added provisions: butCalculationThe suspects, defendants and convictsTimeTo date, it shall expire, shall not be extended because of the holidays.

    The reason for the modification:Easy to misread to the suspect, defendant or criminal appeal, appeal period until the deadline for holidays.

 

Eighteen, the criminal law amendment draft article forty-fourth "the procuratorate supervision" modification

   The draft article forty-fourth: "for the public security organ for investigation of the murder and other major cases, the people's Procuratorate may put forward opinions and suggestions on the investigation activities",The proposal to delete.

    Reason for deletion:The current legislation: "and other major cases" allows the investigation organ, the procuratorial organs to make interpretation of arbitrary expansion; seriously violate the basic principles of criminal investigation and prosecution, separation, mutual supervision, mutual restriction.

 

Nineteen, the criminal law amendment draft article forty-fifth "appeal and accusation relief" supplement and modification

   The draft article forty-fifth: "the parties and the defender, agent ad litem, interested party considers that the judicial organs and their staff in any of the following acts, infringe upon their legitimate rights and interests, the right to sue to the judicial organ to file a complaint or:

   (a) to take coercive measures to the statutory period, not to be released, dissolution or change of compulsory measures;

   (two) shall refund the bail deposit not to return;

   (three), seizure, seizure of illegal raids, freezing and other investigative measures;

   (four) shall terminate the seizure, seizure, freezing not to release;

   (five) prevents the defenders and agents ad litem, shall perform their duties according to law.

The admissibility of the complaint or accusation shall be timely treatment. To handle the appeal, can be to the same level or the people's Procuratorate at a higher level appeal. The people's Procuratorate shall timely examine the complaint, it may be necessary to carry out investigation to verify the relevant situation; for the case, be corrected according to law."

The last paragraphSupplementary ProvisionsFor the admissibility of the complaint or accusation shallShall issue written opinions within three days.

    The reason for the modification:To increase the operational practice, avoid "timely" into not long-term, is not conducive to the continued, immediately report to the higher authorities to appeal to start.

 

Twenty, the criminal law amendment draft article forty-seventh "compulsory summon time" to modify

   On the draft of forty-seventh: "call, summon duration shall not exceed twelve hours; major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours".Delete the second part: "major case, complex, detention, arrest measures need to be taken, summons, subpoena duration shall not exceed twenty-four hours".

    Delete reason:The expression of contradictions. "The need to take the detention, arrest measures" provisions ", there is no need to summon summons for time shall not exceed twenty-four hours", directly to the detention, arrest can; from the judicial practice of the past, twelve hours is enough, no need to further increase. Restrictions and deprivation of personal freedom is related to the immediate interests of every citizen thing, should be treated with caution, not by the host authorities to decide.

 

Twenty-one, the amendment of the criminal procedure law, criminal procedure law draft article forty-eighth "confession" modification

   On the draft of article forty-eighth, the criminal law article ninety-third read: "when the investigators suspect, shall first ask the criminal suspect whether a crime, let him state the circumstances of his guilt or innocence excuse, then put a question to him. The suspect of investigators question, shall truthfully answer. But irrelevant to the case, have the right to refuse to answer".ModifyFor: suspect of investigators question,VoluntaryAnswer,Not to be forced. Irrelevant to the case, have the right to refuse to answer.

    The reason for the modification:The criminal procedure law and the provisions of the Fourteenth Amendment "no person shall be forced to prove their crimes" contradictions. This is the value orientation of the criminal law amendment. When we look at the long continuous outbreak caused by torture to extract confessions grievance, it is not difficult to find because of provisions in China's criminal procedure law, the accused has the suspects "confession" obligations, to cause the case handling organ to torture to extract confessions way to obtain the suspect, the defendant's confession. Conform to the development trend of the world from the rule of law, strengthen the protection of human rights, the rule of law to curb torture to extract confessions, thirty years of public legal culture and so on many considerations, our legislation should be "no person shall be forced to prove his guilt" as the principle of legislation, abandon leave adequate leeway "confession", is the right choice.

Twenty-two, the criminal law amendment draft article fifty-third "seizure" supplement

   The draft article fifty-third: "found in investigative activities may be used to prove the guilt or innocence of the criminal suspect's property and documents, shall be seized, seizure of property; irrelevant to a case, file, shall not be seized, seizure".

For the attachment, seizure of property, documents, shall be properly kept or sealed up, shall not use, exchanged or damaged."

    Supplementary provisions: suspects, defendants and their families, the defenders, other interested parties, for the detection of seizure, seizure of property and file objections, including: no timely seizure list, ownership, scope, affect the normal production and life, there is no problem to complete, have the right to dissent, the investigation organ shall listen to the opinions of relevant, give a written reply within three days. The investigation organ to accept advice, can appeal to the superior procuratorial organs. For use, exchange or damage shall be compensated.

Additional reasons: for a long time, a lot of problems in this part of the investigation organ, and they did not consider the issue of criminal procedure law, the original route, design of relief channels, which makes the judiciary in law enforcement for the above documents and property lack the necessary attention, and even the emergence of loss, damage, depreciation, influence the production and living conditions, seriously affected the judicial organ law enforcement credibility.

 

Twenty-three, the criminal procedure law of 119th "supplement the initiation right"

   The criminal procedure law 119th: in order to find out the case, when the need for some specific problems to solve in the case, shall appoint, hire an expert who was identified.Supplementary provisions: the suspect, the defender believes in a case specific problems need to start the identification procedure, has the right to entrust a qualified appraiser or the appraisal institutions to carry out identification, handling organ shall cooperate, provide materials has been sealed up, detained.

Additional reasons:Identification, appraisal institution shall be responsible for the people, by the identification of independent social unit, not responsible appraiser, the case handling organ own appraisal institutions. For a long time, the identification mechanism of judicial institutions at all levels are restricted by the Department, often can not only produce expert opinion from technical angle, so by the community widely questioned.

Recently, stripping out the judicial authentication institution shall belong to return to society, the voice is high, and some judicial authorities have identified its institutions to the society, is widely praised. Therefore, the law should be changed in the past by the case handling organ a control appraisal right situation, gives both sides have equal rights to start the identification procedures, to ensure that the expert opinion is objective and neutral.

 

Twenty-four, the criminal procedure amendment draft article fifty-sixth "technical investigation" modification

   (a) 147th of the fifty-sixth draft regulationsThe deleteDelete: "the public security organs, i.e.In the case, for crimes against national security, terrorism, organized crimes of the underworld, serious drug crime orOther serious harm to society of criminal cases,According to the investigation of a crime,Through strict approval procedures,Can adopt the measures of technical investigation.

   The people's ProcuratorateIn the caseFor major crimes, embezzlement, bribery crimes and serious violations of civil power of body right use, according to the investigation of a crime,Through strict approval procedures, can adopt the measures of technical investigation.

   Hunt is wanted or approved, and decided to arrest the escaped criminal suspects, defendants,After approvalTechnical investigation measures can be taken to hunt, necessary.

Technical investigation measures shall be executed by a public security organ".

Is amended as: for the crimes of endangering national security, terrorism crime, by the Ministry of public security, security department approval, can adopt the measures of technical investigation.

    Delete reason:

1, the provisions of the draft of the premise of "case", in the judicial practice for arbitrarily large. We can often see a sentence like filing shows that: "the masses report, a person suspected of a crime, I decided to place the case on file for investigation, plus contractors signature". Therefore, at present the draft "case", in judicial practice is not to limit the effect.

2, the provisions of the draft "or other serious social crimes" can also initiate a technical investigation measures arbitrarily large. This provision is in fact all criminal reconnaissance were designated to take technical measures in criminal category.

3, the provisions of the draft "after approval" strict, is actually set the law does not comply with the legislative specification language. "Strict" a word itself no standards, no boundaries, no operation.

4, there is no basis for establishing the third party or judicial review, various investigative organs can be determined using technical investigation measures, will obviously difficult to control, resulting in confusion.

   In the judicial practice of countries around the world, most countries adopt effective measures of technical investigation on some serious violations of national sovereignty, territorial integrity, the crime of terrorism, but any country between, safeguarding national security and privacy of national security and the security of citizens to carefully choose. Therefore, in addition to the set of judicial review links, sometimes need a higher level decisions. There are no strict rules, control, will be on the technical investigation measures ordinary crime start, will cause all the citizens in a state of unrest.

   (two) of the fifty-six draft stipulates: "article 150th in order to find out the truth, when necessary, by the public security organ at the county level or above the person responsible for the decision, by specific personnel to carry out the secret investigation".Is amended as: when necessary, by the public security organ at the provincial level or above the person responsible for the decision, by specific personnel in accordance with the approved methods, means, measures for the implementation of secret investigation. The secret investigation for the longest period of not more than one month".

The reason for the modification:The implementation of secret investigation is directly related to the common citizen's privacy, life, should use caution, strictly control. As an ordinary criminal cases, there is no need to take the secret investigation means, law enforcement to the public or excessive damage is far more than the crime itself of the damage, The loss outweighs the gain.

Here a month time limit. The draft does not stipulate the secret investigation period, this will make the secret investigation power long-term in the state.

In the absence of third party review, without judicial review under the condition, improve the decision-making organ level, may avoid the abuse of power within certain limits.

   (three) to the draft fifty-six provisions: "article 151st in accordance with the provisions of this section to investigative measures collected materials can be used as evidence in criminal proceedings". Amended as:For the crimes of endangering national security, terrorism crime, take investigation measures collected materials can be used as evidence in criminal proceedings. Other cases may not use.

    The reason for the modification:Take measures of investigation is to obtain evidence of the way, it can help the investigation authorities to obtain evidence, but if not the limit allowed by this method gets all of the material can be used as evidence, will undoubtedly encourage the investigation organ to investigate and collect evidence to other evidence, a lot to take measures to obtain evidence investigation.

 

Twenty-five, the criminal procedure amendment draft article fifty-seventh "the term" modification

   On the draft of fifty-seventh, about 128th to 157th, the first paragraph is revised as follows: "in the period of investigation, found the suspect another important crimes,The level of investigationCheck the authority for approval, in accordance with the provisions of article 153rd of the re calculation of investigation detain deadline." Amended as:By the provincialThe investigation organ for approval, in accordance with the provisions of article 153rd of the re calculation of investigation detain deadline.

    The reason for the modification:In judicial practice, the investigation organ often to find new crime extend the detention period name. At present, such as in accordance with the provisions of the draft, the equivalent of easily recalculated detention period, open convenient ways to re calculate the detention period legalization. Before modifying the nine seven criminal law, our judicial practice is common in low has extended the backlog problem, the whole society to cherish an undying, nine seven years later, this phenomenon is somewhat better, so the legislation may cause retrogression. No third party review, judicial review cases, improve the examination and approval organ level, it is possible to extend the detention period control.

 

Twenty-six, the criminal procedure amendment draft article sixty-fourth "program" before the court of revision

   The second paragraph: "the court before the sixty-fourth draft, the judges may convene the prosecution, the parties and the defender, agent ad litem, the challenge, the witness list, exclusion of illegal evidence and trial related problems, understand the situation, listen to the views of".Amended as:In court, prosecutors, judges may convene the parties and the defender, agent ad litem, on(1) cases under the jurisdiction; (2) avoidance; (3) the illegal evidence; (4) obtaining of evidence; (5) whether to apply summary procedure; (6) whether or not a public hearing; (7) selection, determine the time of the session; (8) to inform the witnesses, expert witnesses in court; (9) whether or not to identification, inspection; (10) whether to postpone the hearingAnd trial related problems, understand the situation, listen to the views of,Make a decision.

The reason for the modification:These problems are often encountered in the judicial practice often controversial issues, is the court later this evening, no meaning, or the court can not solve the problem. Therefore, it is necessary to carry on research and Discussion on these problems in order to improve the efficiency of the trial before the court, the trial, let go smoothly.

The criminal procedure law to solve the problem is not standardized, resulting in many problems in judicial practice, the method is defined, but it matters not comprehensive enough, therefore proposed to increase provisions.

 

Twenty-seven, the criminal procedure amendment draft article sixty-seventh "does not appear in court testimony effect" supplement

   The draft article sixty-seventh: "the testimony of a witness has a significant impact on the sentencing, and the public prosecution has objection, parties concerned or defender, agent ad litem, or the people's court that the witness should testify in court, witnesses should appear in court".Added: notified by the court, to summon witnesses should appear in court, but not before court testimony can not use, can not be used as evidence as the basis of a decision in favor of the defendant, and in accordance with the principles, decided in favor of the defendant, advocated the establishment of the facts, evidence.

    Additional reasons:The repair method attempts to solve the problem of the witness appearing in court, but the present legislation stipulation is difficult to realize this goal. The draft clearly no provisions shall appear in court without what is the consequence, this let legislation became like a slogan oath. In practice, the witness does not appear, the reason for many reasons, including: do not want to appear in court, not to appear in court, do not want to appear, not to appear in court, if not specified does not appear in court the consequences, namely, qualification of evidence, testimony testimony to lose lose proof ability, will have a large number of witness not appearing in court.

   From the perspective of the unified legislation should not bias. The provisions of the draft, when the identification of people can not appear in court, expert opinion can not be used as a basis for a final decision, apparently legislation defines not court in consequence. So why the draft witness to leave adequate leeway?

   Recommended to specify the consequences can not appear in court, put an end to the witness does not appear phenomenon.

    

Twenty-eight, the criminal procedure amendment draft article sixty-ninth "supplementary expert witness"

   The draft article sixty-ninth: "the prosecution, the parties and the defenders and agents ad litem, can have the expertise to apply to the court for an informed person to appear in court as a witness, expert opinion to put forward opinions on the identification of the."Added: evidence of the parties and the defender, agent ad litem may entrust a specialized knowledge in expert opinion to identification of human.

    Additional reasons:Draft the legislation also does not consider the relief way. If the application notifies the expert witnesses in court testimony without approval, or expert reluctant to testify how to do? This is the problem that must be considered. Legislation to deal with professional knowledge not evidence, cannot equal cross examination questions, but only by such a simple rule is difficult to realize. The parties, defenders to hire professionals to participate in the examination, is the exercise of private rights, should not be banned, that employ more conducive to court ascertaining the facts of a case, but no harm.

 

Twenty-nine, the criminal procedure amendment draft article seventy-first "added court disposition of property"

   On the draft of article seventy-first: "the people's courts, treatment should be seized, seizure of property and fruits, frozen decisions." Supplementary provisions:The people's court shall, during the court trial, the party put forward on the attachment, seizure, freezing the property and fruits and other aspects of the question, according to the survey of defence.

Additional reasons:The basic premise is to identify the property involved in the disposition of property ownership status, scope, procedure legitimacy, not to find out not general provisions.

 

Thirty, the criminal procedure amendment draft article seventy-fourth "summary procedure start right" supplement

   On the draft of article seventy-fourth: "the jurisdiction of the basic people's court case, also meet the following conditions, the people's court may apply summary procedure for trial:

   (a) the case facts are clear, the evidence sufficient;

   (two) the accused confess their crimes, the indictment alleged criminal facts without objection;

   (three) the defendant has no objection to the application of summary procedure.

   The people's Procuratorate in the prosecution, the people's court apply summary procedure can be recommended."

    Supplementary provisions:The defendant has the right to put forward the summary procedure applies to the trial of the case, may apply summary procedure for the accused, in the sentence can be considered.

    Additional reasons:The defendant for trial in his own way, procedure should have the right to choose certain provisions, not only the accused party has right of suggestion. At the same time, because the defendant apply summary procedure, will undoubtedly save litigation costs, to save the taxpayers' expense, should be considered in the sentencing procedure, encouraging the defendant to actively cooperate with the judicial organs, the summary procedure.

 

Thirty-one, the criminal procedure amendment draft article eighty-first "second hearing principle" modification

   On the draft of article eighty-first: "the people's Court of second instance to the following cases, shall form a collegial panel, trial:

   (a) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence of objection, the people's Court of second instance that 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) the people's Court of second instance shall hold a hearing that other cases.

    Amended as:(a) the defendant, private prosecutor and his legal representatives on the first trial of facts, evidence objection, may affect the appeal the conviction and sentencing. Remove: the people's Court of second instance that expression.

The reason for the modification:Our country although the provisions of the second instance as the final, but at present a large number of cases of second instance in the judicial practice not to trial, which is actually in the judicial process will most of the cases of first instance being the final. The defender, the defendant in some cases of second instance court application, hope, but such requests are often not supported. On the contrary, it should be with the defendant equal the complaining party, protested cases, the law stipulates that should be hearing. Criminal cases related to the defendant's personal freedom, life and property, even to the harmony and stability of the family, family, so it is very necessary to implement the second instance being the final instance. The intention is to increase the number of amending the law of second instance court case, but once with "the people's Court of second instance that" may affect the conviction expressed, I'm afraid will ever not court trial into a legitimate illegal situation, can not achieve the legislative intent.

 

Thirty-two, the criminal procedure amendment draft eighty-sixth amendment

On the draft of eighty-sixth: "the Supreme People's court review of death penalty cases, it shall interrogate the defendant, to listen to the opinions of the defender",Amended as:

The people's court review of death penalty cases, there should be a lawyer to defend the accused, it shall interrogate the defendant, to listen to the opinions of the defender.

Since the date of review of death penalty cases accepted by the people's court, the defense lawyer may consult, extract all the files or shooting, by copying, scanning copy submitted.

Defense lawyers are entitled to according to the provisions of this law, meet the defendant in the death penalty review period.

Defense lawyers in the death penalty review period, has the right to reflect the opinions and requirements or to submit the evidence, the people's court for the collegial panel shall receive during work time and office space, and making a record attached. The written defence counsel submitted shall be attached.

Procedural, entities of the people's court made the ruling in the death penalty review period according to the provisions of this law, it shall promptly notify the attorney.

The reason for the modification:The lawyer handling death penalty cases of serious lack of legal basis, and play a positive role in practice lawyers can not, this is not conducive to the realization of the basic principles of the rule of law and less killing and cautious.

 

Thirty-three, the criminal procedure amendment draft article ninety-fifth "added the minor crime"

The chapter 266th: for minor crimes, at the time of interrogation and trial, it shall notify the suspect, the defendant's legal agent at. Unable to inform, legal agent cannot be present or legal representative is the accomplice, other adult relatives can also inform the suspect, the defendant, on behalf of the school, unit or place of residence of the village committee, residents' committees, the minors protecting organizations of the scene, and relevant information shall be marked in the transcripts of interrogation. Present legal representative may exercise the criminal suspect, the defendant's litigation rights.Supplementary Provisions:In the interrogation of minors, appointed defense lawyers or hire a lawyer shall be present. The defense argued that the interrogation violated the interests of minors, can give advice, and have the power to indicate in the record.

Additional reasons:Juvenile crime has its particularity, the protection of minors shall be complete, complete. Interrogate the defendant lawyer is present, it is widely recognized by the international community, effective measures to protect the rights of suspects and defendants, accept the. In our country, because of the history, culture, tradition, the idea of rule of law, the level of law enforcement, measures and regulations etc., still does not solve the problem, so the full realization of lawyers may have difficulties present. However, for a juvenile crime cases, we have no reason not to practice, not to protect.

 

Thirty-four, the criminal procedure amendment draft article ninety-sixth "amendment and supplement the parties reconciliation"

On the draft of article sixty-sixth the last paragraph: "276th cases to reach a settlement agreement, the public security organ may make suggestions to the people's Procuratorate leniency. The people's Procuratorate may recommend lenient penalties to the people's court; for minor crimes, without penalty, may decide not to initiate a prosecution. The people's court may, according to law, the defendant leniency".Amended as:The people's courtShouldIn the paper according to the public security organ or the people's ProcuratorateRecommends the followingThe defendant, leniency.

The reason for the modification: the parties reconciliation is the best means to resolve the contradictions, in accordance with the construction of the harmonious society policy; at the same time, the parties reconciliation also helps victims receive timely compensation, compensation, avoid civil criminal trial part without the embarrassment, which effectively avoid the law program, to avoid the risk of lower part of the civil judicial credibility. So, in order to encourage, promote reconciliation of the litigants, reduce and resolve social conflicts, the people's court should not be "can" leniency, but should be "shall" leniency. If the "can" lenient rather leniently, the defendant may have the feeling of being cheated, to the credibility of the law question.

 

Thirty-five, the criminal procedure amendment draft article ninety-seventh "revision and supplement of the illegal income confiscated program"

(a)On the draft of ninety-seventh, fifth, third chapter, 277th: "for the crime of corruption and bribery, crime of terrorist activities and other major crime, criminal suspects, defendants absconded, appear in the wanted not a year later, or criminal suspects, defendants die, in accordance with the provisions of the criminal law shall be recovered and the illegal income and other properties involved in case the people's Procuratorate, can put forward to the confiscation of illegal income shall apply to the people's court".Delete:Other major crime;Add a paragraph: the higher people's Court of review decisions can initiate confiscation procedure.

Delete reason:This should take detailed examples, not allowed to expand the explanation.

Additional reasons:The provisions of this chapter is a kind of special procedures, should be the case in the judicial practice. If the intermediate people's decision to start, arbitrarily large, is not conducive to ensure judicial impartiality.

Two.In this chapter the first paragraph of article 278th: "the confiscation of illegal income and other properties involved in case application, by the criminal suspect, the defendant or the place of residence of the intermediate people's court formed a collegiate bench trial".Delete: Criminal jurisdiction;Amendment to:The suspect, the defendant resides to the intermediate people's court formed a collegiate bench trial.

The reason for the modification: judicial practice, criminal trial of cases where the property to ascertain the property scope, nature, attribution, dispute and so on, easy to understand the criminal of the social environment and background, the social consequences for the disposal of property caused by the full evaluation and prediction, so as not to affect society, people around the production life. If a criminal court, interference may protect local interests, departmental interests, local, not conducive to creating a harmonious and stable social environment. In the judicial practice in different places, different witnesses are suspected of a crime, after a year as a fugitive wanted by the pre condition, you can start the disposal of property procedures, lest cause random start the disposal of suspects, witnesses and property in practice.

Three.The third paragraph of this chapter 278th: "the people's court at the expiry of the notice to the confiscation of illegal income for trial. People near relatives or any other interested the suspect, the defendant has the right to apply to participate in the litigation, or may entrust an agent to participate in the proceedings proceedings. Interested party has objection to the confiscation of illegal income of an application, the people's court shall trial.Is amended as: the suspect, the defendant's close relatives andInterested party has objection to the confiscation of illegal income of an application, the people's court shall trial.

     Additional reasons:A person interested in the confiscation of properties involved in dispute is just one example, generally close relatives of criminal suspects, defendants have objection to dispose of the property. But the draft only where the interested party raises objection hearing procedure regulations, obviously exists limitation.

   (four) in this chapter 280th: "in the process of trial, criminal suspects, defendants, surrendered or captured, the people's court shall terminate the trial".

   "For the confiscation of criminal suspects, defendants property is wrong, he shall return."

    Supplementary provisions:"For the confiscation of criminal suspects, defendants property is wrong, he shall return.Losses should be compensated".

    Additional reasons:The punishment of property should be cautious.

 

Thirty-six, the criminal procedure amendment draft article ninety-eighth "revision and supplement of compulsory treatment program"

The chapter 281st: "the mental patient violence endangers public security or cause death, serious injury, upon verification and confirmation through legal procedure, do not bear criminal responsibility according to law, continue to harm society possible, the people's court may decide to compulsory medical".Amended as:The people's court may decide to start the mandatory review procedures. In the reconstruction of identification, assessment of risk on the basis of, listen to the community representatives, unit representative, agent, the guardian, the defenders and the related personnel's opinion, whether the compulsory treatment.

The reason for the modification:Avoid starting compulsory treatment program at.

 

Source: Han Jiayi lawyerHttp://wqh.zfwlxt.com/newLawyerSite/BlogShow.aspx? ItemTypeID=c05a6163-c688-408b-9ab0-9cd700b419ac&itemID=ec46c7a6-f56e-4878-917b-9f54013d60f0&user=12655