Lecture records

Time:2012-6-7Morning

Location: Shaw hall second Hall

Speaker: Zhou Guangquan, Tsinghua University

(Jia Mingjun lawyer:Hot real case weeks teacher is not much, but the criminal law theory of deep, learn quite harvest!)

The new criminal procedural law and the countermeasure

Week of the original is the Beijing Deputy procurator general, representatives of the National People's Congress, Tsinghua University doctoral tutor

 

Listen to the money to the lawyer told me, this class has organized many times. The starting point of this topic, is the exclusion of illegal evidence. Some lawyer friend I know is I study the criminal substantive law. I had three on the attachment of the Deputy procurator general, acquired in the NPC Law Committee in particular, have a special feeling for the criminal procedure law. The focus and key problems, have always been and criminal law problem with. Want to learn good business law, do well, must understand the law of criminal procedure. My questions related to the criminal procedure law is interested. I speak of illegal evidence exclusion, is actually want to talk, both sides in the next few years, against the main point, which will change. Whether can pass this on to pose some problems, relevant content in the Jilin Provincial People's Procuratorate said once, is the story of the illegal evidence exclusion is the procuratorial work, while watching the three level procuratorate video. Talking about today and told them, they should consider the prosecutor in the face of criminal evidence, how to communicate, how to ensure the high quality of the prosecution, the lecture, is the relationship between prosecutors and police say. To talk about today, is the relationship between lawyers and prosecutors, different.

 

The last lecture, to my this lecture will be of great help. I begin with a brief introduction, the rivalry, to ensure that lawyers are able to have the ability and prosecutors are respectively put forward their own ideas, the lawyer's view that very clear, to convince the judge. The overall structure should be a triangular structure, rather than a linear. The police put the dinner, and end to the procuratorate, the procuratorate to send meal to eat, the court. This is a line, not good, to triangle.

 

(intermediate processing telephone)

 

Investigation on lawyers "armed" not enough. Foreign lawyers, forensics rights and private detective than not bad. China private detective is illegal. If the rivalry, the lawyer must have involved in space. In fact is a broad concept, as early as possible, to modify this time law of criminal procedure, a lawyer involved in the early. Also the system design, the evidence, witnesses to testify in court. This time the problem is solved. Lawyer's right to legal protection, criminal law have some special law, for example, exemption, lawyer perjury not be held, this time limited to a part of the solution.

 

To solve the above problems, the stage of investigation, the status of the right to meet with counsel, for obtaining evidence, the defendant the right, not the old method. The stage of review and prosecution lawyers access to the right; the new criminal procedure law, moderate armed lawyer, lawyer no hesitation about. The lawyer's perjury completely abolished (Professor Chen Guangzhong) argue that many, through the process to modify, to ensure criminal law306Modification of the substantive law, I agree completely, there are now some specific obstacles. This time the amendment of the criminal procedure law, the evaluation is very high. The same is true of other experts, to this extent, very not easy, practical wisdom, this is not a hymn. In the public security so strong, modifications to this degree, not easy. Said the lawyer perjury, must be handled outside the investigating organ. Through such programming, basic pursuit after the lawyer perjury cancel. Some of our judicial intervention, but we try to prevent.

 

The lawyer attend the meeting before the tribunal, contribute to the lawyer and the prosecution against.

 

The witness, the provisions of the new criminal procedure law, can do, is also the question.

Illegal evidence exclusion, is a new focus of future criminal defense confrontation, will very much. After a period of time after the run in, this number will go down. The procuratorial system is concerned, there may be a transition in the future. The rivalry, may be reflected in legal or illegal confrontation. I divided into such several questions:

 

The new criminal procedure how to comprehend and apply

Combined with the concepts of criminal law, speaking about the illegal evidence exclusion

Discussion of illegal evidence exclusion method should pay attention to some problems

 

After the introduction of the criminal procedure law of learning,54-58Article,5A clause on the illegal evidence exclusion. The elements involved, what evidence is illegal, to exclude can be corrected.

The public security organs are the exclusion of illegal evidence obligation.

The procuratorial organs of the public security investigation and evidence obtainment of independent right to investigate whether illegal.

 

The best defense against time is the trial stage. Investigators in the Court issues, regulations clear. What evidence can be excluded, according to what criteria. Sources of evidence legal or illegal, the prosecution prove inadequate, confirm not completely illegal questions, also need to exclude. Exclusion criteria Also say. This is I mentioned, some basic rules of criminal procedure law, controversial issues in amending,2010By the year two2A rule50A number of provisions. A debate, the investigation organ itself to exclude illegal evidence is reality. Abroad does not require investigation organ to exclude themselves from their Chinese, some special legal theory, to seek truth from facts. Evidence from basically does not exclude. Verbal evidence, illegally obtained evidence must exclude; documentary evidence illegally obtained, generally do not exclude. Justice has the serious influence to exclude. Seriously, if vague? Illegal evidence exclusion and relationship of acquittals what link? The exclusion of evidence, not necessarily draw the conclusion of innocence.

 

The new criminal procedure law, the absolute exclusion of illegal words evidence. By means of torture to extract confessions to confession, for the protection of human rights, adverse. The State prohibits the use of torture to extract confessions, justice on the whole country. Water is polluted, the water is not. Cheating is not illegal evidence? Many defendants and lawyers, said prosecutors to cheat me, let me explain second days let me bail, let me go. I want to go out with her college entrance examination. This is not the "methods" means? The academic circles think that cheating in violation of ethics, not. In practice, the situation is too complicated, sometimes not sure, does not mean that lawmakers approved deception can. We're not, we want to see whether the violation of ethics usually. For example, the investigators say, your mother died in a car accident, you have to let you go. Finally, prosecutors say, made a mistake, is another man's mother. The violation of ethics, too bad, which made the exclusion of evidence.

 

There are many occasions, deception, situation is very complex. Judge handling the case, two people walk on the road, two people do not know each other, under a heavy rain. In front of a person holding an umbrella, umbrella back up, play, then the people behind is his umbrella. On the problem of the umbrella belonging, lawsuit to judge there. Bag it is a small matter, your own processing. The man said, "judge not how, this is the exhibition Zhao sent to people, follow. Listen, an umbrella on a clear, put behind the dozens of plate. Obtaining of evidence, is to deceive, justice Bao said you myself, I don't know, send someone follow, is the secret investigation. Now the method of detection, no problem.

 

Third, I want to talk about the illegal evidence and the defective evidence. Illegal evidence rule, not to say that the defective evidence did not exist.

 

Evidence of documentary evidence principle cannot be excluded. In the criminal procedure law, evidence, documentary evidence collected in violation of the statutory extent, may seriously affect the judicial justice. In this case, the correction, or make a reasonable explanation, more problem, correction can. Correction, a reasonable explanation, interpretation and write the note, I think it is China characteristics, the judicial personnel's advantage, creative thinking, solve difficult, but write the note, not difficult. The only source of evidence illegally, and will seriously affect the justice that is not clear, to exclude. Evidence for elimination, it is difficult to.

 

Proceedings, the applicant to provide clues and materials. The draft criminal procedure law, the original, may be56The original formulation, clues and evidence, "clues and evidence", the last day, experts, let the defendants and lawyers to provide "evidence" is very difficult, the burden of proof and the criminal procedure law of the public prosecutor, conflict. The final submission3Month14Day, should provide clues and materials "". The lawyer did not burden, no person shall be forced to testify against himself. After the prosecution investigation provides, in the review stage, to exclude the evidence. If you haven't ruled out, just before the court session. Review and prosecution, trial, joined182Before the meeting of the court. After all, if the criminal defense business, will use a lot,182Article2Paragraph, the judges may convene the defenders, the public prosecutor, the list of evidence, illegal evidence exclusion, listen. On the program design, and provided a new space. The lawyer to apply for withdrawal, raised this time. The exclusion of illegal evidence, pretrial conference also to mention. According to my understanding, before the court session also solve:

Evidence discovery problem. Do not know the other side of any evidence on hand, what is not clear, no way to prevent. The basic requirements, the prosecution must not hide, no copy, on the other hand, the defenders and the defendant claims that verbal evidence of illegal, should be noted in the pretrial conference. Criminal Procedure Law182A, the exclusion of illegal evidence relevant opinions, "etc.", including both for the trial concerning the exchange of views. The criminal procedure law has not solved the defendant marking rights. In some places, a few years ago, a copy of the file of the case law, for the defendant, even to the detention center, was arrested for the crime of betraying state secrets, but as I know, the court does not support this approach, so also corrected. There is a meeting, should solve the defendant scoring problems, the Standing Committee of National People's Congress records, in some cases, economic, property, people outside the crime, especially economic crime, he opened a lot of companies, capital accounts from one place to another, but the very place, and finally how to. The files may have ten, a lawyer to see, not necessarily clear; the money out, may be sentenced to. That most clearly, perhaps the defendant. After he read, can be seen in before the trial, prosecutors, lawyers can handle.

 

For instance, taxation and other economic crimes, public security, not clear, false value added tax invoices. Don't let the defendant marking, not too good. I once met Chen Guangzhong teacher, and I said. Because some worry, volume of mixed together, verbal evidence grading in turn, cannot let them see, only cross examination, in any case can not be changed, the company's accounts, bank draft. This kind of thing, you let him see, no problem. But because the file did not separate classification. So not. The defendant to see volume, no conditions. After has the potential to solve.

 

Evidence Is it right? Illegal? Fight, must be resolved in court. The court investigation, through the complex process of elimination. In the pretrial conference, the defender is proposed to eliminate, the first link of the court investigations, is the exclusion of illegal evidence. The Guizhou case, illegal evidence exclusion, lawyers, judges have been tossing enough, the judge said that, considering, continue to burden of proof. If the illegal evidence, may be excluded, in fact, the public prosecutor in the confirmation of the nature of public prosecution before, people can not be used. Don't take to the back of the litigation. Evidence of legal and illegal speak not clear, this is not possible. The court investigation and the collegial panel to evaluate, judge to have a judgment, Defender of this statement, the prosecutor says there is no proof, torture to extract confessions, a video recording. The starting point, the first and last sentences, now playing. Played two minutes, stop, do not need to play all. The defendant, advocate if no opinion, you may consider legal evidence.

 

The court investigation, can't possibly illegal evidence to the court. After the case, the judge said the illegal evidence exclusion of lawyers put down, and then consider, this not, lawyers should adhere to.

 

If the lawyer proposed sources of evidence illegally, the prosecution:

1Provide the explanation for handling a case

2Provide the interrogation record

3Draw the court shall notify the investigators in the court to explain the situation

We now think, investigators in the court of law, is not realistic. All investigators in the court case, no one is excluded, not the defendant guilty conclusion. Two reasons, one is the reason of not playing, not scold; another, or defective torture to extract confessions, dare to appear in court when the judge, can form, the investigators out, evidence may be supplemented or explain. When I lecture and procuratorate, prosecutors make public appearance, improves the level of case handling, learning ability, is also a good thing. That hope to investigators in the court can make the case overturned, unlikely. The first investigators in the court in Ningbo, charged with bribery7.6Million. One of the7After Wan was torture to extract confessions, hand injury.6A thousand is human relations. After the proposed law, obtaining a health certificate, do not hurt the hand on the record; prosecutors say he met or what, the judge that prosecutors identified inadequate. The judge thought the source problem,7Never identify,6Thousands of recognized. When a trial, notify the Public Security Court, but not to. The second time, appear in court, the second is to the end of the year, now also did not see the second sentence. In this case, the police have to appear in court, perhaps the result will have the change.

 

Provide trial video, there may be playing time is not recorded, the recorded when not playing. To show to what extent, is problematic.

On the nature of the evidence to the court made the final decision.

 

For example, the accused of bribery, deny. Hit, recognize. Procuratorial organs for people, the money out. Then find the defendant, not to play and then, what kind of money what to say what. You put the money into his, spoke so clearly, he also confessed, than the original first spoke also fine. When the case to the public prosecutor, all confessions are transferred, the defendant is torture to extract confessions, conclusion innocent? It cannot be? The fruit of the poisonous tree principle, not implemented in our criminal procedure law. The reason China crime investigation, there are still some problems, therefore, the confession, and did not get case statement, other people's confession, cannot be ruled out. Finally, still can not draw the conclusion of innocence. Discharge of illegal evidence, not of course the innocent.

 

I have always believed that, in the criminal procedure, criminal investigation, prosecution and law the final orientation is consistent, obey the law, obeying the truth. However, different possible path. Method the contribution of the work is not the same.

 

Xing Xun torture causes repeated the words, is the important evidence. There are some places, about the murder must be broken,45%About the crime is unable to break. This is the world's data. In this way, our procedure can not the ideal. Some people hold the case, but the evidence is not sufficient, can not be forcibly pushed forward, so, our concept has a problem. Justice, pay attention to explore the inner evil. There will be no good scenery in front of the police. Caught ask, ask not hit, do not come out to play before. The logic of the question. In front of the police, there seems to be no good, this is valued people the problem of evil. Is it right? Me too extreme? Before the prosecutor may also be the case. I am in Beijing acting as Deputy Prosecutor of three years, do200Many cases. A case, Hot pot, coat did not wear shorts, below. Passerby says, these people don't civilization, city, to be heard, to pull up, do not vent, to the river, kneel, wrong. The slight wound (or some lawyers). The trouble. The defendant yibingding (social idle personnel), this description is not good, the actual is inaction. What is the social idle personnel? The best working state, is not working, can also live well. You lawyers are very hardy people (applause), not working is not idle personnel. Can it be changed into non industry? There is no industry it doesn't matter. Write this description, this word, residual some thought of the revolution. The judge also won't feel awkward, but deep thinking, can be seen.

 

Poisonings are very difficult to break, which no one else. The drug is usually drug. Very not easy to catch a person, quarrel. If our thinking is the subjective thinking, may extor torture, unable to break the case, the community reacted strongly, the defendant may be miserable person. The situation is to change ideas.

 

Just mentioned, according to the former idea of torture to extract confessions is easy to form. The objectivism attention consequences, according to this logic, the investigators found that what is important, according to these things, to further evidence to the defendant. Subjectivism, some crime cannot be avoided, from bad motives and thoughts dominate to do, is the root of people a bad, bad for the first, why were so bad, subjective thought is important. Subjectivism will check what behavior, but from the behavior that the heart is how bad.

 

Objectivism and subjectivism in the results may be different, evidence collection methods, ideas, may bring some differences. I now talk about the influence of forensics, subjectivism:

1Attention to the danger of subjectivism. In practice, it is difficult to avoid the subjective as a solution to the centre of things. An important means to obtain a confession, purpose, as well. Subjectivism, criminal justice will be: the judicial personnel legal procedures is not important; pay attention to oral confession, subjective judgment prior to the objective judgment. The lack of the character evidence exclusion. These points, each point has case support.

 

To reduce the illegal evidence, adhere to the objectivism. The police did not have the public prosecutor's objective, method view more objective. Through the design of the judicial system.

 

Bribery case, in addition to the outside, and the diary. This is not a confession, and books, bank accounts. University a tube housing repair person, modify the party finished, thank you, give money, direct deposit5Wan Yuancun up. Repair implementation was arrested, the last sent5Million, from the bank card to. For that, this solves.

 

Some cases of rape, there are some traces, can find a breakthrough. In some other cases, use of tainted witness. The use of legal and policy to encourage the confession, there is no need to torture to extract confessions. Criminal Procedure Law118A, I think there is a better place, criminal suspects of investigators question, shall truthfully answer. (there is no right to silence), regulation second, increased (interrogation report, truthfully answer, will be lenient punishment), can alleviate contradictions. Can not be forced to testify against himself, is the basic principle, truthfully answer, is willing to answer, can you answer, you don't want to answer, can not answer.

 

The law of criminal procedure, at the request of the confession, to be honest, be lenient punishment. The policies to encourage and trial together, policy appropriate, there is no need to force a confession. Some facts, objectively look not clear, make the conclusion of innocence. In doubt for the defendant. The criminal law, we speak of a case, two people have the same victim, they are not the accomplice relationship at the same time, the victim was found on the road, two people are throwing stones, a stone hit dead, but who threw the unclear. In this case, if two people are complicit, is that Sui; unclear unclear, only, only to find out I attempted murder. Family members must be jumped up, the conclusion seems unreasonable, but in accordance with the law theory. Conducive to the defendant, or to consider. The causal relationship is specific, these cases in practice. The judicial practice may not be equal to anything. In addition, the basic position of criminal reduce torture to extract confessions.

 

Method of exclusion of illegal evidence, investigators, prosecutors, judges, lawyers, to establish the innocent inference principle, reinforce the consciousness of evidence. The lawyer should also implement the innocent inference principle.

 

If the second criminal procedure law, the state respects and safeguards human rights, carrying out the difficult. The lawyer as soon as possible to learn the evidence, in the strict evidence trade-offs between, timely request, the specific methods of work.

 

1Review the discovery mechanism; review not only the defendant's confession, and the testimony of witnesses, victims of evidence, real evidence, identification conclusion. These findings, should carry out. A long time, the environment changed, do not. The corresponding charges, may not make the. Exclusion of illegal evidence review mechanism should be established.

2The exchange of views; to ensure the smooth communication and. We speak, the rivalry, but built on the members of the judiciary against. Obey the case processing, maintenance of the legal system. The exchange. To convince a judge. The suspect to say, there is no extortion of statement. Physical examination. Now the criminal case, from2010Years,2A rule of evidence, the majority of cases have physical condition of the accused. Return card records, and asked the record, can also be found. Must have the spirit of doubt, the investigation work must first believe, then to doubt, to have active discovery and skeptical consciousness. If the lawyer does not preclude not found, no presents, prosecutors also did not speak, the judge is proposed, the judge (like a question in the trial) private can exchange views. In a case, that is, the work of lawyers discounted. We want to avoid this situation.

3Remove program participation; enhance the level of illegal evidence exclusion, we should sum up experience, different cases, illegal evidence exclusion standard is different. Bribery, rape, abetting (murder for hire), without pay, to pay may be difficult to implement (may use torture means). Has the ability to judge. The defendant asked defense time, the defendant had raised, the general said for the first time, is really not in detention, interrogation, especially in the place (such as a fat cop) court cases, is a slim, proposed to the defendant, no trial. I. And the health check tables, transfer. Discipline, the same prison testimony. Not beyond reasonable doubt, a lawyer should not put to the judge as evidence. The defendant in court on temporary out, can not be annexed, otherwise, easy to take in a ditch. Sometimes, found evidence against him, the defendant desperate, lawyers to follow, passive.

In order to eliminate some misunderstandings lawyer understanding, some lawyers found evidence of illegal, not to mention, not to offend the prosecutor of the court, there is some misunderstanding. My basic view about, the lawyer must be zero tolerance, found together, put together, do not tolerate.

"The dead return" Zhao Zuohai case. The court's judicial level is to improve the standard of proof, the court more and more. The innocent case is very low, Beijing10Several cases sentenced to several crimes, Beijing total cases, very few, also shows that, the court is not what all listen to the procuratorate. The lawyer dared mention, judges have to consider, but also to study. Abroad, whether the evidence Some problems on the way of the case, have to mention the illegal evidence exclusion? This is the last question I speak. I'm worried about them in time, and some of the judges giving a lecture, will let the prosecutor. There's strong, prosecutors in the wind. Procuratorate in some places very badly, lawyer exclusion of illegal evidence, the judge seat on the bench, I chuckle to oneself, the public prosecutor? Prosecutors sometimes helpless ah. The lawyer may have not pay out, the do while avoiding, for lawyers, is not a good thing, the trial is the increased uncertainty, has a substantial effect. Are you hearing surprise attack, be adjourned. Illegal evidence exclusion, in some places, the judge will see prosecutors do. Some lawyers are used, what case, what the evidence. Not any defects are not. If there is a problem with the way of evidence, lawyers should also identify, lawyers should pay attention to:

Everything is subordinated to the case quality, the authority of law. Evidence if the problem, lawyer or to be mentioned; however, according to the law of criminal procedure, some of the new evidence, can be supplemented, pretrial conference (time182Article second) lawyers can come to a judge, prosecutor ruled that. Not to mention the illegal exclusion, not to fight him, the mentality of the prosecutor. I have to admit, the new criminal procedure law, in the next two or three years, prosecutors and lawyers have the running in period, which can be proposed, which can not extract, process both of us have a trial, understanding. The judiciary, is very complex, we need to constantly try to. We talked about the legal community problems, very important . When I lecture in other places are also particularly at this point. Illegal evidence exclusion, is not only a technical problem, construction and the legal community, association. The basic requirements of the legal community. In addition, the members of the legal community, is the goal of unity. In this way, the lawyer's request, that is to say, the exclusion of illegal evidence should have according to, have the method. The program flow, cannot let the defendant family think, exclusion of illegal evidence, we can get the result of the innocence of the defendant.

4To convince the judge ruled that the evidence was illegal.

In practice, there are difficulties. In some cases, we can see. Xie Yalong in this case, the trial began in April, said to be torture to extract confessions, existing reporting materials, investigation procedure, there may be some problems. On the train, to the northeast, the train was playing; in detention, torture and torture rooms. Also carry out, police detained his wife (uremia). I can't say that this case is really exist, but the existing materials, the evidence is not enough. So, now the exclusion of illegal evidence, the lawyer is a new topic Idea change, the problem. If the problem is not solved, forever is a cancer of the judicial procedure, this problem does not explain, the construction of legal system, difficulty is very great. There will be a lot of problems. Judicial development, it will be difficult to convince people. Interlinked problems. Relating to, and the judicial system for example, the judiciary is not integrity, an accused person to say be extor torture, the image of the judiciary is broken. This is not good. We speak, social integrity, to the benign development, government officials should take the lead, and good faith, our social credit is low, and we have a relationship between judicial, and our whole system. Full recording video, but not recorded playing time, the recorded when not playing, how to solve this problem? If you want to solve this problem, mainly to the detention center for third party, including the procuratorate office. The suspect (called what, what in the detention), to the third party. The detention center to the interrogation room, not too far distance, automatic equipment, playing time is not recorded, you can't do it. Ensure that the exclusion of illegal evidence, to have a lot of reform. The public security organs also thinks, illegal evidence exclusion is a good thing. You can update the device, with a budget. The legislation of the impact, is a full range of!

 

Have time to exchange!

 

(Finish)