Provisions on avoidance in criminal procedure law

I. Scope of Persons to Avoid Interpretation of the provisions on avoidance in the Criminal Procedure Law, the scope of persons to be avoided includes judges, prosecutors, investigators, clerks, appraisers and translators who participate in investigation, prosecution and trial activities. According to the interpretation of the Supreme Court, people's jurors, judicial police, prosecutors, executors and court staff occupying administrative establishment also belong to the scope of people applying for withdrawal. Second, the reasons for withdrawal Article 28 of the Criminal Procedure Law: "(1) Being a party to the case or a close relative of the party; (2) He or his close relatives have an interest in the case; (3) Having served as a witness, expert witness, defender or agent ad litem in this case; (4) Having other relations with the parties to the case, which may affect the fair handling of the case. " Article 29: "Judges, prosecutors and investigators shall not accept guests and gifts from the parties and their clients, and shall not meet the parties and their clients in violation of regulations. Judges, prosecutors and investigators who violate the provisions of the preceding paragraph shall be investigated for legal responsibility according to law. The parties and their legal representatives have the right to ask them to withdraw. " However, the applicant shall provide supporting materials. Article 192: "A case sent back for retrial by the people's court that originally tried it shall be tried in accordance with the procedure of first instance." Article 207: "The people's court shall form a new collegial panel for trial in accordance with the procedure of trial supervision." The withdrawal of judges and prosecutors. The people's court shall not allow judges and other court staff to act as agents ad litem or defenders within two years after leaving office; Two years after leaving office, judges and other court staff serve as agents ad litem or defenders in cases tried by the court of first instance. If the other party raises objections that may affect a fair trial, the people's court shall support them and will no longer allow them to serve as agents ad litem or defenders. Except as a close relative or guardian of a party who represents or defends a lawsuit. A public prosecutor shall not act as an agent ad litem or defender within 2 years after leaving the People's Procuratorate; After leaving office for 2 years, he may not serve as an agent ad litem or defender of the original procuratorate. Special attention: Close relatives in the criminal procedure law are different from those in the civil procedure law, and refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters. The Supreme Court's "Several Provisions on Strictly Implementing the System of Judges' Avoidance" only involves judges. Thirdly, there are three types of avoidance: self-avoidance, application avoidance and instruction avoidance. Four. Procedures for Avoidance If public security and judicial personnel find that there are circumstances that should be avoided according to law in filing a case and subsequent litigation procedures, they should take the initiative to avoid it. If there is no voluntary withdrawal, the parties and their legal representatives have the right to apply for withdrawal. Article 30 of the Criminal Procedure Law stipulates: "The withdrawal of judges, prosecutors and investigators shall be decided by the president, the procurator-general and the person in charge of the public security organ respectively; The withdrawal of the president is decided by the judicial Committee of our hospital; The withdrawal of the procurator-general and the person in charge of the public security organ shall be decided by the procuratorial committee of the people's procuratorate at the same level. Investigators can't stop investigating the case before making a decision to withdraw the case. The parties and their legal representatives may apply for reconsideration of the decision to reject the application for withdrawal. " Special attention: 1. If the party concerned or his legal representative refuses to accept the withdrawal decision, he may apply for reconsideration to the original decision-making organ within 5 days after receiving the decision. The organization or individual that originally made the decision shall make a reconsideration decision within 3 days and inform the applicant. The Supreme People's Court explained that Article 28 stipulates that if a person who is decided to withdraw refuses to accept the decision, he may also apply for reconsideration once before resuming the trial. At the trial stage, the court has the right to reject the application for withdrawal of the lawsuit that does not fall under the circumstances stipulated in the Criminal Procedure Law, and may not apply for reconsideration. 2. If the applicant for withdrawal applies for reconsideration in court on the decision to reject the application for withdrawal, the collegial panel shall announce an adjournment and decide whether to continue the hearing after the reconsideration decision is made. 3. Article 30 of the Rules of Criminal Procedure of the People's Procuratorate stipulates whether the evidence obtained before the decision is withdrawn is valid: "Due to one of the circumstances stipulated in Articles 28 and 29 of the Criminal Procedure Law, whether the evidence obtained before the decision is withdrawn and the litigation acts implemented are valid or not shall be decided by the procuratorial committee or the procurator-general."