First, the connotation and legislative status of criminal procedure supervision
According to the existing laws and regulations, the so-called supervision of criminal proceedings by procuratorial organs can be defined as procuratorial business activities such as investigating the activities of criminal proceedings participants such as investigation organs (including self-investigation departments of procuratorates), judicial organs, execution organs, lawyers, etc., and judging whether their actions are legal, so as to support, oppose and put forward corrective opinions (suggestions), or lodge protests. The supervision of criminal proceedings is a judicial relief procedure in criminal proceedings. When criminal proceedings may cause judicial injustice, the procuratorate will provide judicial relief according to law. Therefore, the purpose of criminal procedure supervision is to correct the judicial injustice in criminal proceedings, ensure that criminal proceedings are carried out correctly and legally, safeguard the legitimate rights of parties in criminal cases, prevent judicial corruption, safeguard judicial justice, and ensure the unified and correct implementation of national laws. The Criminal Procedure Rules of the People's Procuratorate divides the supervision of criminal proceedings into filing supervision, investigation supervision, trial supervision, criminal judgment supervision, ruling supervision and execution supervision. Among them, trial supervision refers to the supervision of trial activities, which is procedural supervision; The supervision of criminal judgments and rulings is the supervision of people's courts' wrong judgments and rulings, and it is substantive supervision. These two kinds of supervision can also be collectively called trial supervision. In addition, the State Compensation Law of People's Republic of China (PRC) stipulates the criminal compensation procedure, stipulating that the final compensation decision shall be made by the compensation committee of the people's court. As a continuation of criminal proceedings, criminal compensation procedure is necessary to be included in the scope of supervision of criminal proceedings. Therefore, the author believes that the supervision of procuratorial organs over criminal proceedings covers the supervision of filing, investigation, trial, execution and criminal compensation.
For a long time, the problem of ineffective supervision of criminal proceedings by procuratorial organs has attracted the attention of legal circles and legislatures. 1996 the new criminal procedure law adds article 8 to the basic principles: the people's procuratorate shall exercise legal supervision over criminal proceedings according to law. In addition, relevant provisions have been added in the specific provisions to strengthen legal supervision. The relevant provisions in the specific provisions mainly include: if the public security organ finds any illegal investigation in the process of examining and approving the arrest, it has the right to notify the public security organ to correct it (Article 76); Supervise the public security organs not to file a case (article 87); Have the right to put forward rectification opinions on the illegality of court trial activities (Article 169); If the judgment or ruling of the first instance is indeed wrong, it has the right to lodge a protest (article 18 1); Lodge a protest against the effective judgment or ruling that is really wrong (Article 205th, paragraph 2); On-site supervision of death penalty (Article 2 12); Supervision of execution outside prison (Article 2 15); Supervision of decisions on improper commutation and parole (Article 222); To supervise whether the activities of the executing organ in executing the penalty are lawful (Article 224). In addition, according to the provisions of the Criminal Procedure Law, the Supreme People's Procuratorate has refined the provisions of the Criminal Procedure Law with Article 66 of Chapter 10 of the Rules of Criminal Procedure of the People's Procuratorate, and made corresponding provisions on supervision measures.
Second, the legislative defects and legislative ideas of criminal procedure supervision
Although the provisions of the Criminal Procedure Law and the Criminal Procedure Rules of the People's Procuratorate on the supervision of criminal proceedings have been further improved compared with the legal and judicial interpretations before the revision of the Criminal Procedure Law, in practice, the supervision of criminal proceedings faces certain challenges. To sum up, it is mainly manifested in the following aspects: first, the legislative capacity is too small, and there are many defects and gaps, which leads to many blind spots in supervision, which makes many litigation activities outside the legal supervision; Second, the supervision measures of the supervised institutions are not mandatory, and often only have the right to suggest, but not the right to order. Resulting in insufficient regulatory rigidity and ineffective measures; Third, the supervision procedure is imperfect, too principled and abstract, which is not convenient for practice.
At the Second Session of the Tenth National People's Congress, Chen Wenqing, Procurator-General of Sichuan Provincial People's Procuratorate, and more than 65.438 million deputies jointly submitted a bill, demanding that legislation be improved and the legal supervision function of procuratorial organs be strengthened. However, scholars have different opinions on what form to take to improve legislation and strengthen supervision. Some scholars believe that legal supervision should be legislated separately and the Law on Legal Supervision should be formulated. Some scholars believe that the Organic Law of People's Procuratorates can be amended to clarify the object of supervision, so as to improve legislation and strengthen supervision. As an important part of legal supervision, criminal procedure supervision certainly needs to be improved through legislation. However, due to the uniqueness of the legal relationship in criminal procedure and the complexity of the criminal procedure supervision procedure, it is difficult for the legal supervision law or the people's procuratorate organization law to cover all the contents of criminal procedure supervision in detail. Therefore, the author thinks that a special criminal procedure supervision law should be formulated. Through the criminal procedure supervision law, aiming at the existing problems, improve and perfect the criminal procedure supervision. In the future, the content of supervision should be concretized as much as possible in legislation, and the power of procuratorial organs as the subject of legal supervision, the relationship between the subject of legal supervision and the subject under supervision, the procedures and measures of legal supervision and the coercive force of supervision measures should be clarified.
Three, the specific problems and solutions in the supervision of criminal proceedings
(1) Supervision of criminal filing. The supervision of criminal filing is the legal supervision of procuratorial organs on whether the filing behavior of the subject of criminal filing is legally implemented. There are many problems in the current law on the supervision system of criminal filing by procuratorial organs.
First, the object of criminal filing supervision is not comprehensive enough. The Criminal Procedure Law only limits the object of criminal case-filing supervision to public security organs in Article 87, and the Criminal Procedure Rules of People's Procuratorate extends the object of case-filing supervision to the self-investigation department of procuratorial organs. However, Article 4 of the Criminal Procedure Law stipulates that "state security organs shall handle criminal cases endangering state security according to law and exercise the same functions and powers as public security organs", Article 18, paragraph 3 stipulates that "cases of private prosecution shall be directly accepted by the people's courts", Article 225, paragraph 2 stipulates that "cases committed by criminals in prisons shall be investigated by prisons", and People's Republic of China (PRC) and China Customs can be seen that in China, Whether the procuratorial organs have the right to supervise the filing activities of these organs with criminal filing rights is not clearly stipulated in the Criminal Procedure Law and related laws. Therefore, the object of filing supervision is only defined as the filing activities of public security organs, which greatly limits the scope of filing supervision and obviously weakens the criminal litigation supervision function of procuratorial organs.
Second, the definition of the object of criminal filing supervision is too narrow. Article 87 of the Criminal Procedure Law stipulates that the people's procuratorate only supervises the criminal filing of public security organs, that is, it only stipulates the legal supervision of the negative filing behavior, but not the positive filing behavior, so that the illegal phenomenon in the positive filing behavior can not be corrected in time. Although Article 378 of the Criminal Procedure Rules of the People's Procuratorate includes "filing investigation instead of filing investigation" in the scope of supervision, Article 164 of the Procedures for Handling Criminal Cases by Public Security Organs only stipulates the procedure for public security organs to accept the supervision of procuratorial organs without filing a case, which shows that it is difficult for procuratorial organs to implement filing investigation instead of filing supervision. In addition, there is no clear regulation on the supervision of criminal filing activities, such as whether the criminal filing procedure is standardized and whether the decision to file a case is legal. The supervision of cases that are not under the jurisdiction of the criminal filing subject is neither transferred to the competent authorities for handling, nor notified to informants, accusers and informants.
Third, the supervision measures for criminal filing are weak. The supervision of criminal filing by procuratorial organs lacks legal guarantee. For example, without the right of investigation, the complaint department has no legal basis for the right of investigation and verification in the process of performing the function of criminal case filing supervision, and it is impossible to interfere with relevant judicial and law enforcement activities at any time for inspection and supervision; Without the right to adjust the volume, when you want to consult relevant archives, you will often be rejected; Without the right to punish, they are not qualified to punish those who abuse their power but do not constitute a crime, so that they are not punished accordingly, and they still go their own way and fail to achieve the actual effect of criminal supervision.
Therefore, in view of the current situation that the legislation is not specific enough and the operability is poor, the following countermeasures should be taken to improve the supervision system of criminal filing: First, the legal provisions on the object and scope of criminal filing supervision should be improved, all organs with criminal filing rights should be included in the supervision scope, and the supervision of positive filing behavior should be organically combined with the supervision of negative filing behavior to form a complete and strict supervision system of criminal filing, and all criminal filing behaviors should be comprehensively supervised. Secondly, the people's procuratorate is endowed with corresponding powers in the supervision of criminal filing, including: the right to supervise and investigate criminal filing, including: the right to retrieve and review the file of the subject of criminal filing, the right to review the register of the subject of criminal filing, the right to decide whether to file a case, not to file a case, to withdraw the case, and the right to further investigate the illegal acts in criminal filing activities; The power of supervision and decision on criminal filing includes: the right to make a decision to change the subject of criminal filing without filing, the right to make a decision to change the subject of criminal filing without filing, and the right to make a decision to change the subject of criminal filing in violation of the filing procedure, which the subject of criminal filing should abide by after receiving the decision; The right to suggest the supervision and punishment of criminal filing includes: if the people's procuratorate finds that the staff of the criminal filing subject has violated the law in criminal filing activities, and the other party still refuses to correct it after issuing the Notice of Correcting the Violation, the people's procuratorate has the right to suggest that the criminal filing subject stop his duty activities in accordance with the supervision and punishment procedures, and the criminal filing subject will send another case handler and inform the people's procuratorate in writing of the handling results; When the people's procuratorate deems it necessary to give administrative punishment to the person responsible for the illegal act in the process of correcting the illegal act, it has the right to put forward opinions on administrative punishment. After receiving the opinions, the subject of criminal case filing shall give corresponding punishment to the person responsible for the violation, and inform the people's procuratorate of the results in writing.
(2) Supervision of criminal investigation. Article 380 of the Criminal Procedure Law and the Rules of Criminal Procedure of the People's Procuratorate defines the supervision of criminal investigation as the supervision of procuratorial organs on whether the investigation activities of public security organs are legally implemented. Article 390 of the Criminal Procedure Rules of the People's Procuratorate extends the object of investigation and supervision to the self-investigation department of the procuratorate. Compared with the supervision of criminal investigation, the supervision of criminal investigation is more general, which leads to a very weak supervision of criminal investigation activities, which is specifically manifested as follows:
First, the objects of investigation and supervision are incomplete, such as filing supervision, and all organs with criminal investigation power are not included in the scope of supervision.
Second, the object of investigation and supervision is too narrow, and the law only stipulates the legality of investigation activities as the object, but does not explicitly include the review of whether the applicable law is correctly included in the scope of investigation and supervision.
Third, the means of investigation and supervision are weak. The Criminal Procedure Law only stipulates that the public security organ shall inform the procuratorial organ of the rectification opinions put forward by the procuratorial organ and the implementation of the decisions made by the procuratorial organ, but it does not further clarify the legal consequences of the public security organ's refusal to correct or implement the decisions made by the procuratorial organ according to law.
Fourth, the procuratorial organs are not given the right to guide and direct investigations. The concrete manifestations are as follows: the law does not give the procuratorial organ the power to mobilize the criminal police of the public security organ to assist in the investigation when conducting its own investigation or supplementary investigation; The law does not stipulate that procuratorial organs have the right to consult case materials and supervise cases at any time when public security organs investigate cases; The law does not stipulate that the procuratorial organ has the right to order the criminal police who know the case to testify in court.
Fifth, some effective methods of investigation and supervision in practice have not been confirmed in legislation, such as some feasible methods of early intervention.
In view of the defects of the current investigation and supervision mechanism in China, the most effective way to strengthen investigation and supervision is to learn from the experience of foreign investigation and supervision and make the following improvements in legislation: First, change timely intervention into investigation activities, strengthen the supervision of procuratorial organs on investigation activities, and guide investigation organs to legally obtain evidence. Secondly, the procuratorial organs are given the right to review and decide on the application of extended detention and the change of compulsory measures after arrest, as well as the right to review the handling of non-litigation Thirdly, clarify the legal effect of procuratorial suggestions and notices to correct illegal acts in investigation and supervision to ensure the implementation effect of investigation and supervision. Fourth, give procuratorial organs the right to investigate and deal with cases based on collective avoidance, serious inaction and serious violation of the law by subrogation.
(3) Supervision of criminal trials. Criminal trial supervision is the legal supervision of procuratorial organs on the legality of criminal trial activities and the correctness of the judgment results of people's courts. According to the law, the procuratorial organs mainly perform the functions of criminal trial supervision by participating in court trials, conducting out-of-court investigations, the procurator-general attending the trial committee as a non-voting member, reviewing the case files and accepting complaints. Main problems existing in criminal trial supervision;
First, the ex post facto nature of criminal trial supervision restricts the effectiveness of supervision. According to Article 43 of the Provisions on Several Issues Concerning the Implementation of the Criminal Procedure Law promulgated by the Supreme People's Court, the Supreme People's Procuratorate and other six ministries and commissions 1998, "the people's procuratorate shall put forward rectification opinions on the trial activities that violate legal procedures, and the people's procuratorate shall put forward them after the trial". Articles 3365, 438+0, 360 and 394 of the Rules of Criminal Procedure of the People's Procuratorate also stipulate that the prosecutor appearing in court only records whether there is any lawsuit that violates the law during the court trial. If there is any lawsuit that violates the law, it shall report it to the chief procurator of our hospital in time after the adjournment, and the procuratorate shall put forward it after the trial. The ex post facto nature of supervision determines that supervision is a passive and compensatory legal supervision, which can not stop and correct the illegal trial activities of the court in time and effectively.
Second, there is a lack of supervision over criminal trials, and there are many blank areas. The supervision of criminal trial should run through the whole process of criminal trial and cover all links. It should include not only the supervision of trial activities of first instance, but also the supervision of second instance, retrial activities and death penalty review activities; It should include not only the supervision of criminal public prosecution cases, but also the supervision of criminal private prosecution, incidental civil litigation cases and cases applying summary procedure; It should not only include the supervision of court trial activities, but also include the supervision of out-of-court activities; It should include not only the supervision of judgments and rulings, but also the supervision of decisions. However, there are many gaps in the supervision of criminal trial in the current law: the supervision of private prosecution cases, criminal incidental civil cases, cases tried by summary procedure, cases of second instance caused by appeal, cases of retrial caused by the court in the trial supervision procedure, and cases of death penalty review procedure are not within the scope of supervision; The decision made by the court is not within the scope of supervision.
Third, the means of supervision are not rigid, but flexible supervision. Article 394 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that if a court or judge violates the law in handling a case, he shall put forward rectification opinions to the people's court. However, if the court neither raises objections to the rectification opinions issued by the procuratorial organs nor implements them, the procuratorial organs can only do nothing. The behavior of the supervised person has not been reversed into legal provisions because of the supervision of the procuratorial organs, and the procuratorial supervision has lost its due effect.
Therefore, in view of the defects of criminal trial supervision, it is necessary to further strengthen criminal trial supervision and improve criminal trial supervision legislation. One is to cancel Article 43 of the Provisions on Several Issues in the Implementation of the Criminal Procedure Law issued by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of Justice and the Legislative Affairs Committee of the National People's Congress, and interpret the restrictions stipulated in Article 169 of the Criminal Procedure Law as the provision that people's procuratorates should put forward corrective opinions on court trial activities that violate legal procedures after the trial. Restoring the original provisions of Article 165433 is the most suitable for supervising and restricting judicial power. Change the present situation of post-trial supervision and let procuratorial supervision run through the trial procedure. Secondly, the relevant provisions of criminal trial supervision are supplemented and revised, and the supervision of private prosecution cases, criminal incidental civil litigation cases, summary trial cases, second-instance cases caused by appeals, retrial cases caused by courts in trial supervision procedures, death penalty review procedures cases and decisions made by courts are included in the scope of supervision. Third, strengthen supervision measures and give procuratorial organs corresponding supervision power. If it is found during the trial that the trial may cause damage to the legitimate interests of the state or individual citizens, it has the right to order the trial to be suspended and request a new trial; Give procuratorial organs compulsory retrial procuratorial suggestions, actively adopt case retrial procuratorial suggestions, and urge the court to start retrial procedures; Give the procuratorial organs the right to supervise and warn and the right to request punishment; In the case of the Supreme People's Procuratorate's protest in accordance with the supervision procedure, the Supreme People's Court's judgment after trial is still wrong, and the Supreme People's Procuratorate has the right to report to the National People's Congress Standing Committee (NPCSC).
(4) Supervision of penalty execution. The supervision of penalty execution is the supervision of the people's procuratorate on the legality of the execution of criminal judgments and rulings by the executing organs according to law. Including criminal judgment, ruling execution and change execution. The supervision of penalty execution is the last link of legal supervision by procuratorial organs in the whole criminal procedure, which plays a final and realizable role in ensuring the complete, scientific and standardized execution of criminal judgments, and its importance is self-evident. However, the imperfection of legislation and related systems hinders the effectiveness of supervision of penalty execution. Mainly manifested in:
First, the supervision scope of penalty execution is too narrow. Article 224 of the Criminal Procedure Law stipulates: "The people's procuratorates shall supervise whether the activities of executing the punishment by the executing organs are lawful." Therefore, the scope of supervision of penalty execution should include all penalty execution activities. However, in practice, due to various reasons, only the supervision of fixed-term imprisonment, life imprisonment and deprivation of political rights is well implemented, while the supervision of control, probation of fixed-term imprisonment, property punishment and deportation is not well implemented.
Second, the legal provisions of penalty execution supervision are simple and principled, and it is difficult to operate in practice. In addition to the general provisions of Article 224 of the Criminal Procedure Law, procuratorial organs should supervise the execution of punishment. Only four articles of the Criminal Procedure Law mention the supervision of execution of punishment, namely, the supervision of death penalty on the spot, the supervision of execution decisions outside prison, the supervision of commutation and parole decisions and the acceptance of complaints during execution, but there are no detailed provisions on how to supervise the supervised objects.
Third, at present, procuratorial organs can only put forward written opinions on decisions or rulings that they think are wrong after receiving the decisions or rulings of relevant organs. Because it is post supervision, even if the procuratorial organs put forward rectification opinions, it is difficult to play its due role.
Fourth, the only supervision measures are on-site supervision, written opinions and written correction opinions. The means of accepting complaints is single and lacks rigidity.
Therefore, in order to ensure the supervision of the procuratorial organs on the execution of punishment, it is suggested to improve the legislation and build the system from the following aspects: First, in view of the current situation that non-custodial punishment and property punishment are legally executed by public security organs or courts, and the law does not implement the supervision of the people's procuratorate, it is necessary for the law to stipulate that the executing organs should accept the legal supervision of the people's procuratorate at any time when executing such punishments or changing the execution measures. Procuratorial organs have the right to conduct regular or irregular inspections on the basis of complaints or on their own. Only in this way can we reduce and prevent the illegal problems in execution and ensure the correct execution of the referee. Secondly, it is necessary to supervise the execution of changes in criminal judgments and rulings. In order to ensure the implementation of the right of supervision and ensure that the procuratorial organs can communicate with post supervision before and during litigation, it is necessary to supplement the provisions in the Criminal Procedure Law and the Prison Law: where the executive organs think that the measures for changing execution should be applied according to law, they should submit their suggestions to the people's procuratorate for examination, and whether the two opinions are consistent or not, they must also submit their suggestions and the opinions of the people's procuratorate to the organ that has the right to decide. This will help the recommending organ to withdraw improper suggestions in time, help improve the accuracy of decisions or rulings made by organs with decision-making power, prevent undue indulgence crimes, and ensure the fair application of these statutory measures; The law should give procuratorial organs the right to keep abreast of the execution of various punishments and put forward suggestions for appropriate changes in execution to improve the enforcement agencies' efforts to safeguard the legitimate rights and interests of criminals in a timely manner. Thirdly, strengthen the enforcement effect of the notice of the procuratorial organ to correct the violation, and clearly stipulate in the Criminal Procedure Law that the penalty enforcement organ that has corrected the violation must correct the violation within the specified time, and inform the procuratorial organ of the correction in time.
(5) Supervision of criminal compensation. Criminal compensation supervision refers to the procuratorial organ's supervision over the legality of the activities of the organ liable for criminal compensation or the organ that makes the final decision on criminal compensation. At present, the supervision of criminal compensation by procuratorial organs is basically in a blank state. Article 21 of the State Compensation Law stipulates the criminal compensation procedure of the reconsideration system, stipulating that the final compensation decision shall be made by the compensation committee of the people's court, which lacks necessary supervision. This system of entrusting justice to the compensation Committee of the first-level people's court inevitably makes people doubt the fairness of criminal compensation. After the promulgation of the State Compensation Law, both procuratorial organs and procuratorial organs tried to change this situation and issued some judicial interpretations, but the power of judicial interpretations could not shake the foundation of the law. Article 23 of the Supreme People's Court's "Interim Provisions on the Procedure for the Compensation Committee of the People's Court to Trial Compensation Cases" stipulates that "after the decision of the Compensation Committee takes effect, if the original facts or applicable laws are found to be wrong, the original decision must be changed. After the president of our hospital decides or the higher people's court orders, the Compensation Committee shall re-examine the case and make a decision according to law." Article 2 of the Working Rules of the Supreme People's Court Compensation Commission stipulates that the Supreme People's Court may send back the decision of the compensation commission of the Higher People's Court for retrial. These two provisions have solved the internal supervision problem of the compensation Committee of the people's court in making compensation decisions. Article 36 of the Provisions of the People's Procuratorate on Criminal Compensation stipulates that "if the organ liable for compensation thinks that the compensation decision of the compensation committee of the people's court is really wrong, it may submit the facts and reasons that are really wrong to the people's court at the next higher level that made the compensation decision, and report to the people's procuratorate at the next higher level, and the people's procuratorate at the next higher level or the people's procuratorate at the provincial level may make suggestions to the compensation committee of the people's court at the same level." This provision undoubtedly provides a way to solve the controversial compensation decision, but it also reflects the weakness of the people's procuratorate in supervising criminal compensation and cannot make up for the defects in the criminal compensation procedure. Now the legislature is planning to amend the state compensation law. The author suggests that the supervisory position of the people's procuratorate should be established in the criminal compensation procedure of the new law. The following provisions can be made: the Supreme People's Procuratorate has made a wrong compensation decision to the compensation committees of people's courts at all levels, and the higher people's procuratorate has made a wrong compensation decision to the compensation committees of people's courts at lower levels. The compensation committees of people's courts at the same level should retry or instruct the compensation committees of people's courts at lower levels to retry and make a decision.