1996 why should the criminal procedure law be amended?

1. The purpose of amending the Criminal Procedure Law. Article 1 of the current Criminal Procedure Law stipulates that the purpose of formulating the Criminal Procedure Law is: "In order to ensure the correct implementation of the Criminal Law, punish crimes, protect the people, safeguard national security and social security, and safeguard the socialist social order, this Law is formulated in accordance with the Constitution." Considering that "person" is a political category in China and does not include serious criminals in extension, the criminal procedure law should protect the basic rights of all people, including suspects and defendants suspected of serious crimes. At the same time, considering that judicial justice and litigation efficiency are the basic value goals of criminal procedure, the proposed draft changes the purpose of the Criminal Procedure Law to "This Law is formulated in accordance with the Constitution in order to ensure the correct implementation of the Criminal Law, punish crimes, safeguard human rights, realize judicial justice and improve litigation efficiency". 2. Further improve the principle of legal procedures. The second paragraph of Article 3 of the current Criminal Procedure Law states the principle of procedural legality: "In criminal proceedings, people's courts, people's procuratorates and public security organs must strictly abide by the relevant provisions of this Law and other laws." According to the principle of authorization in a country ruled by law, especially considering that procedural sanctions against acts violating legal procedures are an important part of the principle of procedural legality, the draft proposal regards the principle of procedural legality as an independent clause, and makes the following statement in two paragraphs: "In criminal proceedings, people's courts, people's procuratorates and public security organs must strictly abide by the relevant provisions of this law and other laws and shall not exceed their authority." "The people's court or people's procuratorate shall decide whether the illegal act is effective according to the seriousness and result of the illegal act." 3. Convert the principle of unified conviction of people's courts into the principle of presumption of innocence. Article 12 of the current Criminal Procedure Law stipulates: "No one shall be found guilty without a judgment by the people's court according to law." This is not a strict principle of presumption of innocence. According to the principle of presumption of innocence, which is the cornerstone of modern criminal procedure, the first paragraph of Article 10 of the draft stipulates the principle of presumption of innocence: "No one shall be presumed innocent until the people's court makes an effective judgment confirming guilt according to law." In addition, in order to ensure that the spirit of suspected crimes derived from the principle of presumption of innocence is never conducive to the defendant's handling can be truly implemented and implemented in practice, the second paragraph of this article also stipulates: "If a criminal suspect or defendant cannot be found guilty or innocent, it shall be handled according to innocence; If the criminal suspect or defendant cannot be found guilty or guilty, it should be dealt with lightly. " 4. Increase the principle of prescribed proportion. The principle of proportionality is a very important principle of modern public law, and it is known as the "imperial clause" of public law. In criminal proceedings, the establishment of the principle of proportionality is of great significance for rationally dividing the boundary between state power and individual rights of citizens, preventing the abuse of state power and protecting individual rights of citizens. To this end, this principle is added to the Proposal, which states: "People's courts, people's procuratorates and public security organs should strictly limit compulsory litigation to the necessary scope, and adapt it to the seriousness of the crime under investigation and the social danger of criminal suspects and defendants." 5. The principle of not forcing self-incrimination has been added. Based on the significance of the principle of not being forced to testify against oneself to prevent extorting confessions by torture and protect the legitimate rights of defendants, and considering the provisions of the International Covenant on Civil and Political Rights, it is suggested that article 12 establishes the principle of not being forced to testify against oneself: "No one shall be forced to prove his guilt or make other statements against himself." Whether this principle includes the right to silence can be interpreted in the light of the reality in China. 6. The principle of criminal reconciliation has been added. Considering that the criminal reconciliation system not only embodies the traditional harmonious culture of "harmony is precious" in China, but also helps to improve the efficiency of litigation and effectively solve various disputes and contradictions brought about by criminal offences; As well as the vigorous development trend of criminal reconciliation system and restorative justice in the international community, it is suggested that Article 20 should stipulate criminal reconciliation as a principle of China's criminal procedure law: "If a criminal suspect, defendant, victim and their close relatives reach a settlement, the people's court, people's procuratorate and public security organ may consider the willingness of the parties to settle, not pursue the criminal responsibility of the criminal suspect according to the case, and give the defendant a lighter, mitigated or exempted punishment." 7. Increase the principle of double jeopardy. In view of the important significance of the principle of non bis in idem (the rule of prohibiting double jeopardy) in protecting human rights, maintaining judicial authority and judging stability, considering the reality of repeated prosecution in China's criminal judicial practice, and combining with the development trend of the principle of non bis in idem in the international community, Article 21 of the proposed draft establishes the principle of non bis in idem in idem, namely: "After the people's court makes an effective judgment, no one may be prosecuted and tried again for the same act, unless otherwise stipulated by law." 8. Increase the priority principle of international law. In view of the international conventions signed and ratified by China, many contents related to criminal proceedings are stipulated; However, there is a certain gap between China's criminal procedure system and these international conventions in some aspects. To this end, the "Proposal Draft" refers to the common practice of the international community, and adds the principle of the priority of international law to Article 22, that is, "If the international treaties concluded or acceded to by People's Republic of China (PRC) have different provisions from this Law and relevant laws, the provisions of the international treaties shall apply, except for the provisions on which People's Republic of China (PRC) has declared reservations." 9. Increase the principle of special protection for minors. Considering the rapid development of juvenile delinquency and the significance of special protection for juvenile defendants in safeguarding human rights and long-term social stability, it is suggested that Article 23 should stipulate special protection for minors as a basic principle, namely: "When handling juvenile criminal cases, people's courts, people's procuratorates and public security organs should consider the physical and mental characteristics of minors, follow the principle of education, probation and salvation, adhere to the principle of giving priority to education and supplementing punishment, and fully protect minors. 10. Improve the responsibility of braid protectors. There are two prominent problems in the provisions of Article 35 of the current Criminal Procedure Law on the duties of defenders: first, the connotation of defense does not fully reflect procedural defense; Second, it overemphasizes that the defender has the burden of proof to prove the defendant's innocence. In view of these two problems, Article 54 of the draft proposal modifies the duties of defenders as follows: "Defenders should collect and put forward materials and opinions on the innocence of criminal suspects and defendants, and reduce or exempt criminal responsibility, and safeguard their litigation rights and legitimate rights and interests according to facts and laws. "1 1. Clarify the status of lawyers as defenders in the investigation stage. According to Article 96 of the current Criminal Procedure Law, although a criminal suspect can get the help of a lawyer in the investigation stage, he has not been given the status of a lawyer's defender, which makes the lawyer's quotation in the investigation stage incorrect and unsatisfactory. To this end, the "Proposal Draft" clearly stipulates the defender status of lawyers hired by criminal suspects in the investigation stage. 12. Solve the defender's right to know by strengthening the protection of the defender's right to read papers. In view of the outstanding problem that it is difficult for lawyers to read papers in judicial practice caused by the current criminal procedure law, the "Proposal Draft" does not clearly stipulate the evidence display system in combination with the actual situation, but on the one hand, it advances the time for defenders to know the case materials, on the other hand, it expands the scope for defenders to read papers. Article 55 of the "Proposal Draft" stipulates: "In the process of investigation, defense lawyers have the right to know the crimes accused by the criminal suspect from the investigation organ, and can consult, extract and copy the statements, transcripts, technical appraisal materials and litigation documents of the criminal suspect in this case, except those involving state secrets." "Within ten days from the date of examination and prosecution to the date of judgment of first instance, the defense lawyer has the right to consult, extract and copy all the materials of this case to the procuratorial organ. Other defenders may also consult, extract and copy the above materials with the permission of the people's procuratorate. " "In the second instance, the death penalty review and retrial procedure, the defense lawyer has the right to consult, extract and copy all the materials of the case in the people's court. Other defenders may also consult, extract and copy the above materials with the permission of the people's court. " "The investigation organ, the people's procuratorate and the people's court shall provide conditions and convenience for the defender to consult, extract and copy the case materials according to law. "