(1) Giving the defendant the right to remain silent. Because the current criminal litigation structure in China still belongs to the litigation structure dominated by authority, the power of accusation is far greater than that of defense. If the criminal suspect has the obligation to "truthfully state" to the investigation organ according to the Criminal Procedure Law, then taking the statement of the defendant in a weak position as evidence will inevitably lead to the prosecution extorting confessions by torture, inducing confessions, cheating confessions and so on.
Causing the defendant to testify against himself is not only in contradiction with the defendant's own litigation status, but also in contradiction with Article 14 (3)(g) of the United Nations International Covenant on Civil and Political Rights signed by China in June 1998+00, which stipulates that "the accused shall not be forced to testify against himself or admit his crime". In this way, the defendant's right to defense can not be guaranteed.
Therefore, in order to achieve the balance between prosecution and defense, prohibit the existence of illegal evidence collection behaviors such as extorting confessions by torture, luring confessions and cheating confessions, and reach the same standards as in China, the defendant should be given the right to remain silent and the provision of "truthful confession" of criminal suspects should be revised.
(2) stipulate the defendant's right to arbitrary investigation and evidence collection. As a legal mechanism to solve social contradictions, criminal proceedings have formed a certain litigation confrontation between the prosecution and the defense, and the judge is the arbitrator who lives in it and makes a fair judgment.
However, the basis of forming a balanced litigation confrontation is the right of both parties to investigate and collect evidence, because evidence is the basis of a judge's fair judgment. If neither the prosecution nor the defense has the right to investigate and collect evidence, or the right to investigate and collect evidence is not equal, the party with the right to investigate and collect evidence is stronger than the other party, so that the two sides cannot form confrontation, and the judgment made by the judge based on the evidence is naturally unfair.
Therefore, giving both the prosecution and the defense equal rights to investigate and collect evidence has become the basis of the defendant's right to defense. However, Article 45 of the current Criminal Procedure Law stipulates: "People's courts, people's procuratorates and public security organs have the right to collect and obtain evidence from relevant units and individuals. The relevant units and individuals shall truthfully provide evidence. "
Judging from the content of the stipulation that "evidence should be provided truthfully", investigation and evidence collection by public, procuratorial and legal organs is a compulsory right, which runs through the whole criminal procedure.
It shows that the right of investigation and evidence collection as a procuratorial organ is mandatory, arbitrary and diverse. As a defense, the defendant and his defender according to the provisions of Article 37 1 of the current Criminal Procedure Law: "With the consent of the witness or other relevant units and individuals, the defense lawyer may collect materials related to this case, or apply to the people's procuratorate or people's court to collect and obtain evidence, or apply to the people's court to notify the witness to testify in court."
This shows that:
1. During the whole criminal proceedings, the criminal suspect or defendant and other defenders have no right to investigate and collect evidence, but the defendant's defense lawyer has the right to investigate and collect evidence;
2. Lawyers have the right to collect evidence related to this case only at the stage of examination, prosecution and trial. In the investigation stage, there is no right to investigate and collect evidence;
3. The object of evidence collected by lawyers is witnesses or other relevant units and individuals (hereinafter referred to as "witnesses");
4, collecting evidence materials must obtain the consent of the witness, etc. ;
5. If the witness disagrees, the defense lawyer may directly apply to the people's procuratorate or the people's court for collecting and obtaining evidence;
6. The defense lawyer may directly apply to the people's court to notify the witness to testify in court;
7, if the witness does not provide evidence, or the witness does not testify in court, because this paragraph does not stipulate how to deal with it, the people's procuratorate and the people's court have no choice. This shows that the defendant's right to defense is not guaranteed compared with the former prosecution. It is limited in procedure, limited in the object of evidence collection and dependent in procedure, which is really different from the right of investigation and evidence collection of procuratorial organs.
Let's look at the second paragraph of Article 37 of the current Criminal Procedure Law: "With the permission of the people's procuratorate or the people's court, and with the consent of the victim or his close relatives or witnesses provided by the victim, the defense lawyer may collect materials related to this case from them."
From this point of view, the collection of materials related to this case by defense lawyers from the victims or their close relatives and the witnesses provided by the victims (hereinafter referred to as "victims") is more resistant and has more obstacles than the collection of materials related to this case from witnesses, that is, they have to go through "permission" first and then "consent".
The subject of "permission" includes both the people's procuratorate in the stage of examination and prosecution and the people's court in the stage of trial. In the subject of "consent", if it is a statement collected from the victim, the subject is the victim; If the statement is collected from the close relatives of the victim, the subject is a close relative; If the testimony is collected from the witness provided by the victim, the subject is the witness provided by the victim.
According to the second paragraph of Article 37 of the current Criminal Procedure Law, defense lawyers must obtain the "permission" of the people's procuratorate or the people's court to collect the victim's statement. If you don't have a "permit", the collection work can't be carried out. Even if it is "allowed", it is necessary to obtain the "consent" of the victim and others; If you don't agree, the collection ends here.
From the above analysis of Article 37, paragraph 2, we can see how difficult it is for defense lawyers to collect the victim's statements, whether in the stage of examination and prosecution or in the stage of trial. It can be said that it is more difficult to collect evidence from witnesses or relevant units and individuals, and the defense's right to investigate and collect evidence is even more insecure.
Therefore, the author believes that in order to achieve the balance between prosecution and defense and a fair trial, the restrictions on the defense process, objects and procedures should be lifted, and the defense should be given the right to investigate and collect evidence at will from the investigation stage, so that the defendant's right to defense can be effectively guaranteed.
(3) In the stage of examination and prosecution, both the prosecution and the defense formed the evidence discovery system.
According to article 36 1 of the current criminal procedure law, defense lawyers can "consult, extract and copy the litigation documents and technical appraisal materials of this case" from the stage of examination and prosecution. Other defenders, with the permission of the people's procuratorate, may also "consult, extract and copy" the above materials during the examination and prosecution stage. However, the prosecutor as the prosecution can read and be familiar with all the files.
On the question of how much case materials are known, the rights enjoyed by defenders are obviously extremely unequal to those enjoyed by prosecutors. According to the second paragraph of Article 36 of the current Criminal Procedure Law, lawyers can consult, extract and copy the criminal facts accused in this case from the date when the people's court accepts the case. Other defenders may also consult, extract and copy the above materials with the permission of the people's court.
In judicial practice, the facts and materials of the crime alleged in this case transferred by the prosecution to the court often only include the evidence list, witness list and a few copies or photos of the main evidence. Because the defense can only consult these limited contents, the prosecution has all the evidence materials of the whole case.
It is conceivable that in a court where litigation is evidence collection, when the defense doesn't even know the evidence, how to put forward powerful materials and opinions to safeguard the rights of the defendant, especially in cases involving a large number of people and complicated cases, when the prosecution strikes like lightning in a hasty court, it is even more difficult for the defense to respond, which eventually leads to the inability to put forward correct opinions and the defendant's right to defense cannot be guaranteed.
Therefore, some people think that the defense should be given the right to consult the case file at the beginning of the review and prosecution stage. But the prosecution also showed our evidence to the defense, and the defense's evidence was not shown to us. This is also unequal and cannot form confrontation. Therefore, the author believes that the evidence discovery system should be formed on both sides of the prosecution and defense from the stage of examination and prosecution. The reason is:
First, to meet the needs of litigation confrontation between the prosecution and the defense, only the prosecution and the defense have equal access to the file. Both sides know the same case information, and the materials and opinions put forward by the defense to the prosecution during the review and prosecution stage are targeted, realistic and convincing, so that the defendant's right to defense is truly guaranteed; Only in the trial stage can we form a real confrontation with the prosecution and fully safeguard the legitimate rights of the defendant.
Second, the establishment of evidence discovery system is a common practice all over the world. At present, the United States, Japan and many other countries have established this system to prevent the prosecution and the defense from forming evidence ambush and judicial injustice in court, especially when the prosecution has evidence and the defense is in a weak position, which is more conducive to protecting the defendant's right to defense.
Third, it can prevent judges from prejudging cases. Because after the prosecution and the defense began to exchange evidence in the prosecution stage, the two sides provided the judge with a list of evidence and a list of witnesses in the trial stage, and the judge didn't know the case until he saw the whole case or the main evidence, so he carefully organized the court trial and made a fair ruling. So that the defendant's right to defense is truly and comprehensively guaranteed.
(4) At the trial stage, it is stipulated that the court must include the defense opinions and submitted evidence materials, and specify the reasons for rejecting the defense opinions in the judgment.
In judicial practice, because the public, the procuratorate and the law have formed the habit of handling cases, the materials and opinions put forward by the defense are just inconsistent with the facts of the case and have no legal basis; The original judgment found the facts clear and the applicable law was correct. This not only led the defense to refuse to accept it, but also violated the defendant's right to defense.
Because whether the defendant defends himself or others, especially the lawyer's defense, he exercises the right of defense for the defendant according to the facts, facts and laws of the case, including both the facts and circumstances of the case and the cited evidence.
It includes not only the analysis and refutation of improper charges according to law, but also materials and opinions such as innocence, lighter punishment, mitigated punishment or exemption from punishment. These not only help the members of the collegiate bench to make a fair and legal judgment on the case, but also provide important materials for the court of second instance (if the defendant appeals) to understand the case and the defense opinions of the first instance.
As for the evidence provided by the defense to the court, it is an important basis to support the defense, refute the accusation and safeguard the legitimate rights and interests of the defendant, and plays an important role in the lawsuit. The court shall attach the above opinions and materials, and explain in the judgment whether the evidence provided by the defense is recognized and the reasons for adopting the opinions provided by the defense, so as to clearly recognize or deny the defense's claim in law.
On the one hand, this shows that the court is a reasonable place. Judges are encouraged to use their brains diligently, seriously conduct cross-examination, authentication and hearing in court, make correct analysis and judgment on evidence and cases, overcome the arbitrary style of easy denial, and make a convincing judgment for the defense.
On the other hand, both the prosecution and the defense can be fully prepared to find out the facts of the case and apply the law, and debate with each other to achieve a balance of power between the prosecution and the defense. At the same time, it also draws lessons from the common law countries. The judge's denial of the defense lawyer's point of view in the judgment must be refuted and demonstrated one by one from facts and laws, so that the defendant's right to defense can be fully guaranteed.
Extended data
Modern defense system has an important position and significance in criminal proceedings;
Defense is one of the important functions of modern criminal proceedings, and the conduct of criminal proceedings depends on the interaction of three functions: accusation, defense and trial, which complement each other and jointly promote the process of criminal proceedings.
In criminal proceedings, the right of defense is the most basic right of appeal for criminal suspects and defendants. Other rights in litigation are derived from the right of defense, or are closely related, such as the right to apply for withdrawal and the right to use one's own language.
Defense runs through the whole process of litigation. From the beginning of criminal proceedings to the end of the trial, you can not only exercise the right of defense by yourself, but also entrust a lawyer or other defenders to defend, refute and defend the complaints of the investigation and control organs, safeguard your legitimate rights and interests and effectively exercise your litigation rights in criminal proceedings.
The significance of the defense system in litigation, first, restricts the investigation, prosecution and trial activities, which is conducive to the public security and judicial organs to understand the case objectively and comprehensively, apply the law correctly and ensure the quality of the case; Second, it embodies the fairness and democracy of litigation, which is conducive to fully protecting citizens' legitimate rights and interests and litigation rights, thus giving full play to the role of defense and is an important embodiment of the democratization of criminal proceedings.
Article 2 of China's Criminal Procedure Law stipulates: "The task of People's Republic of China (PRC) Criminal Procedure Law is to ensure accurate and timely identification of facts, correct application of laws, punishment of criminals, protection of innocent people from criminal investigation, education of citizens to consciously abide by laws and actively fight against criminal acts, so as to safeguard the socialist legal system, protect citizens' personal rights, property rights, democratic rights and other rights, and ensure the smooth progress of socialist construction. "
The task of China's criminal procedure law can be summarized as the unity of punishing crimes and safeguarding socialist human rights, which is the key to realize the task of China's criminal procedure law.
According to the requirements of this law, punishing crimes refers to the functional departments of public security, public prosecution and law. Under the premise of strictly following the principles and procedures stipulated in the Criminal Procedure Law, it is necessary to ensure that the facts of a crime are accurately and timely ascertained, the law is correctly applied and criminals are punished. Protecting socialist human rights means ensuring that innocent people are not subject to criminal investigation and that criminal suspects and defendants enjoy full litigation rights.
Punishing crimes and safeguarding socialist human rights run through the whole process of criminal proceedings, and actively realizing the functions of both the prosecution and the defense is an important link to accomplish the above two tasks. In the modern litigation system, the functions of prosecution, defense and trial are separated, and the relationship between prosecution and defense is both opposite and unified.
The function of the procuratorial organ is to accuse a crime, prove that the criminal act of the crime should be convicted, so that the criminals can be punished and the law can be realized in real life. The function of the lawyer as a defender is to present materials and opinions to prove the innocence of the suspect and the defendant, or to reduce or exempt criminal responsibility according to facts and laws.
In order to safeguard the legitimate rights and interests of criminal suspects and defendants, so that innocent people are not subject to criminal investigation and those with minor crimes are not subject to heavy sentences, the law is correctly implemented through the work of lawyers. Therefore, the confrontation between the functions of the prosecution and the defense makes the facts of the case clear and the responsibility is correctly identified.
So as to help judges accurately identify the facts, correctly apply the law and realize the unity of punishing crimes and safeguarding socialist human rights. This is a kind of unity that can be achieved through confrontation. Confrontation is the premise, and unity is the result. This unity is the embodiment of national will and national interests.
In order to achieve this unity, the theory and practice of modern criminal procedure law strongly regulate the relative balance of the functions of both sides, which will affect the procedural justice of criminal proceedings. It affects the correct implementation of substantive law, further affects the unity of punishing crimes and safeguarding socialist human rights, and ultimately damages the embodiment of national will and the realization of national interests.
Therefore, when revising the Criminal Procedure Law, China revised and supplemented the Criminal Procedure Law 1979 on the basis of the Constitution, focusing on the task of punishing crimes and safeguarding socialist human rights, and on the basis of summing up past experiences and lessons, especially strengthening the protection of the litigation rights of criminal suspects and defendants.
The principle of "no one can be found guilty without a court ruling according to law" has been added, which shows that even in criminal proceedings, China has protected socialist human rights in the form of law, adopted plea bargaining, strengthened the role of lawyers, and maintained the relative balance between the functions of the prosecution and the defense, which has played a positive role in promoting human rights protection.