Source: Hu Hongxing [Abstract] The lawyer's criminal defense business has a general problem of emphasizing substantive defense over procedural defense, and criminal procedural defense has its independent value and important significance. Master the key points and skills of procedural defense, and run procedural defense through the whole criminal defense process. Paying equal attention to procedural defense and substantive defense is a complete and successful defense, which is helpful to realize the criminal defense purpose of comprehensively protecting the legitimate rights and interests of the defendant. [Keywords:] the significance of criminal defense; The main point of criminal procedure defense "emphasizing entity over procedure" is a traditional drawback of China's legal system, which is reflected in lawyers' criminal defense business, and it is also a common problem of emphasizing entity defense over procedure defense. The root of this common fault is not only the factors that despise and restrict lawyers' criminal procedure defense under the current legal environment in China, but also the reasons why lawyers themselves ignore criminal procedure defense. In the current legal environment of our country, the legislature, as the maker of criminal judicial procedures, and the judicial organs such as the public and the law, as the leaders of criminal judicial procedures, generally still ignore or even despise lawyers' criminal litigation defense. This attitude is basically reflected in the current criminal procedure law. The current and revised criminal procedure law still regards the division of labor and cooperation among the public, the prosecution and the law as a basic principle of criminal proceedings [1], but this principle obviously excludes lawyers from participating in criminal proceedings, and lawyers' participation in criminal proceedings is at most a marginalized role. Accordingly, in the practice of criminal justice, it is also common for public, procuratorial and legal judicial organs to ignore, restrict or even crowd out lawyers' participation in criminal litigation defense. Of course, lawyers themselves do not pay attention to or even ignore the present situation of criminal litigation defense, which is the main problem that the lawyer industry should review and the basic problem to be discussed in this paper. There are many lawyers, including those who mainly handle criminal business, who ignore or know little about criminal litigation defense. Judging from the author's own criminal defense practice, criminal procedural defense is not only important in the overall criminal defense business, but also can make great achievements. First, the significance of criminal defense As we all know, the duty and function of lawyers' criminal defense is to fight for the defendant's innocence and lighter punishment. Generally speaking, the handling of innocent misdemeanor is indeed a substantive handling, which seems to have little to do with procedural defense. Therefore, this is the fundamental reason for ignoring the criminal procedural defense. In fact, criminal procedural defense does have its practical effect and important significance. Criminal procedural defense not only has its independent value, but also can achieve the effect of protecting the legitimate rights and interests of the defendant, such as innocence and light crime. The defense of criminal procedure has its independent value, its theoretical basis is "procedural justice", the procedure itself has its basic value independent of the entity, and the procedural defense also has its independent value. The independent value of procedural defense also has practical basis. The amendment to the Criminal Procedure Law stipulates that lawyers can intervene in the investigation stage in advance, which is an indisputable fact. Therefore, in judicial practice, as long as criminal suspects can afford lawyers, they also hire lawyers to provide legal assistance in the investigation stage. In the investigation stage, lawyers provide legal aid, which is not a formal defense, let alone a substantive defense (the real substantive defense is often in the trial stage). If procedural defense has no independent value and function, why should lawyers be required to intervene in advance in the revision of the Criminal Procedure Law? Why do criminal suspects hire lawyers in the investigation stage? It is enough to show that procedural defense has its own value independent of substantive defense. The independent value of criminal procedural defense is mainly reflected in the fact that procedural defense does have its functions and functions. Through procedural defense, the defendant can be acquitted and the crime is light. "Procedure determines the entity", or "procedure determines the result". To some extent, it is the change or decision of the procedure that directly or indirectly determines the outcome of the case entity. The main procedural defense links we discuss in the following paragraphs all play an important role in the substantive outcome of the case. For example, bail pending trial, this change in compulsory measures means that criminal suspects can generally be sentenced to probation in subsequent trials. Another example is that if the jurisdiction is changed, the improper jurisdiction of the case can be changed and corrected, and the case can be handled by an appropriate judicial organ, and the criminal suspect can often be dealt with fairly. Also, non-prosecution, such a way of ending criminal proceedings, is actually a result of acquitting criminal suspects. From the substantive effect of these procedural decisions, we can see that procedural defense can completely protect the legitimate rights and interests of the defendant, such as the criminal suspect's crime is light and innocent. Second, the main points of criminal litigation defense The development of modern criminal judicial procedure more embodies the concept of protecting the legitimate rights and interests of defendants, and the revision of China's criminal procedure law also embodies the spirit of this principle, which has been implemented in the criminal procedure system. Therefore, the defense in all aspects of criminal proceedings should be able to help realize the purpose of protecting the legitimate rights and interests of the defendant. This paper mainly selects the defense of bail pending trial, change of jurisdiction, non-prosecution, medical parole and so on. This has a direct and decisive role in obtaining the defendant's innocence and light crime, and is expounded as the main point of procedural defense. (I) Debate on Bail Pending Trial Article 96 of the Criminal Procedure Law stipulates that a criminal suspect may hire a lawyer to provide legal aid. "After a criminal suspect is arrested, the lawyer hired can apply for bail pending trial." Article 5 1 stipulates that "the people's courts, people's procuratorates and public security organs may obtain bail pending trial for a criminal suspect or defendant under any of the following circumstances: (1) They may be sentenced to public surveillance, criminal detention or independently apply additional punishment; (2) Those who may be sentenced to more than fixed-term imprisonment and released on bail pending trial-there is no social danger. " According to the above provisions of the Criminal Procedure Law, as long as the criminal suspect is arrested and detained, as long as he meets the conditions of obtaining a bail pending trial, that is, obtaining a bail pending trial will not cause social danger, the lawyer should apply for obtaining a bail pending trial. As long as the suspect is released on bail pending trial, according to the current judicial practice in China, the court will generally apply probation and a non-custodial penalty to him. In judicial practice, the decision to obtain bail pending trial is mainly made by the investigation organ. However, when the investigation organ makes a decision to obtain a bail pending trial, one case is that the investigation organ makes a decision on its own, and the other case is that the investigation organ requests approval for arrest, and the people's procuratorate decides not to approve the arrest after examination, and the investigation organ changes compulsory measures to obtain a bail pending trial. There are two situations in which the people's procuratorate does not approve the arrest, namely, innocence and guilt, and guilt refers to the situation that constitutes a crime but is not necessary for arrest [2]. Therefore, the author believes that there are two ways for lawyers to put forward bail for criminal suspects. One is to apply directly to the investigation organ, and the other is to appeal to the people's procuratorate. If the procuratorate accepts the complaint, once the procuratorate decides not to approve the arrest, the investigation organ must change the compulsory measures and release the suspect on bail pending trial. (II) Dispute over Change of Jurisdiction Article 24 of the Criminal Procedure Law stipulates: "A criminal case shall be under the jurisdiction of the people's court of the place where the crime was committed. If it is more suitable to be tried by the people's court of the defendant's domicile, it can be under the jurisdiction of the people's court of the defendant's domicile. " Article 25 stipulates: "Several cases over which the people's courts at the same level have jurisdiction shall be tried by the people's court that accepted them first. When necessary, it may be transferred to the people's court of the place where the main crime is committed. " Article 26 stipulates: "A people's court at a higher level may designate a people's court at a lower level to try a case with unclear jurisdiction, or it may designate a people's court at a lower level to transfer the case to another people's court for trial." It can be seen that the jurisdiction of the people's courts over criminal cases is not static, and there may be changes in regional jurisdiction and level jurisdiction. In judicial practice, in fact, the court trial is the last litigation link, and the jurisdiction problem has already appeared in the investigation, review and prosecution links, and once it is determined, it may not be changed in the trial stage. We must admit that in some cases, the same case may be handled by different judicial organs and may have different conclusions. For example, in the case of an employee of a company in Hangzhou who has great influence in China infringing on the business secrets of a company in Shenzhen, at the beginning, the public security organs in Hangzhou and Shenzhen had jurisdiction disputes. Later, the case was determined to be under the jurisdiction of Shenzhen public security organs, and the defendant was later found guilty. We have reason to assume that if the case is handled by the public security and judicial organs in Hangzhou, the results may be different. Therefore, for our lawyers, it is an important procedural defense link that how to strive for the case to be transferred to the judicial organ that is beneficial to the defendant. With regard to the change of jurisdiction in the investigation stage, Article 16 of the Provisions of the Ministry of Public Security on the Procedures of Public Security Organs Handling Criminal Cases stipulates: "A criminal case over which several public security organs have jurisdiction shall be under the jurisdiction of the public security organ that initially accepted it. When necessary, it may be under the jurisdiction of the public security organ in the place where the main crime is committed. " Article 14 of the Rules of Criminal Procedure of the People's Procuratorate stipulates: "Cases of duty crimes committed by state functionaries shall be under the jurisdiction of the people's procuratorate where the criminal suspect is located; If it is appropriate to be under the jurisdiction of other people's procuratorates, it may be under the jurisdiction of other people's procuratorates; Disputes over jurisdiction shall be designated by the people's procuratorate at the next higher level. With regard to the change of jurisdiction in the stage of examination and prosecution, Article 2 17 of the Criminal Procedure Rules of the People's Procuratorate stipulates: "The cases prosecuted by people's procuratorates at all levels shall be compatible with the trial jurisdiction of the people's courts. If a people's procuratorate accepts a case transferred for examination and prosecution by a public security organ at the same level, and considers it to be a case of first instance under the jurisdiction of other people's procuratorates at the same level after examination, it shall write a review report and submit it to the people's procuratorate at a higher level for designation together with the case file, and notify the public security organ transferred for examination and prosecution at the same time; If necessary, it can also be returned to the public security organ, which will transfer it to the people's procuratorate with jurisdiction for examination and prosecution in accordance with the provisions on the jurisdiction of the case. The people's procuratorate at a higher level accepts a case transferred by a public security organ at the same level for examination and prosecution, and if it thinks that it belongs to the jurisdiction of a lower people's court, it can directly transfer it to the lower people's procuratorate for examination, and the lower people's procuratorate shall initiate a public prosecution in the people's court at the same level, and notify the public security organ transferred for examination and prosecution at the same time; It can also be suggested that the public security organ at the same level should transfer it to the people's procuratorate at the same level for review and prosecution in accordance with the provisions on the jurisdiction of the case. "According to the provisions of the above-mentioned laws, the people's procuratorate may transfer the cases that have been investigated by the public security organs and transferred for examination and prosecution to other people's procuratorates at the same level, or directly submit them to the people's procuratorates at lower levels for examination and prosecution. In judicial practice, when the people's procuratorate transfers jurisdiction, it usually contacts the people's court at the same level to make a decision to designate jurisdiction. (III) Arguments for Non-prosecution Article 140 of the Criminal Procedure Law stipulates: "-When a people's procuratorate examines a case and needs supplementary investigation, it may return it to the public security organ for supplementary investigation. -If the case under supplementary investigation is still considered insufficient and does not meet the conditions for prosecution, a decision not to prosecute may be made. "Article 142 stipulates:" If a criminal suspect falls under any of the circumstances stipulated in Article 15 of this Law, the people's procuratorate shall make a decision not to prosecute. If the circumstances of the crime are minor and it is not necessary to sentence or exempt from punishment according to the provisions of the Criminal Law, the people's procuratorate may make a decision not to prosecute. "According to the provisions of the above-mentioned laws, the people's procuratorate can make two decisions not to prosecute after reviewing the case: relative non-prosecution means not to prosecute cases with insufficient evidence as stipulated in Article 140, and absolute non-prosecution means not to prosecute cases that should not be investigated according to law and do not need to be sentenced or exempted from punishment. Once the procuratorate decides not to prosecute, the proceedings of the whole case will end and the criminal suspect will be dismissed from criminal investigation. Moreover, in the case of absolute non-prosecution, the decision of non-prosecution by the procuratorate is more favorable to the criminal suspect than the decision of exemption from punishment by the court, because the decision of exemption from punishment by the court is still a guilty judgment, and the decision of non-prosecution by the procuratorate should belong to no criminal record. Article 220 of the Criminal Procedure Law of the People's Procuratorate stipulates: "When examining a case, the people's procuratorate shall listen to the opinions of the victim, the criminal suspect and the person entrusted by the victim. "Therefore, defense lawyers should actively put forward defense opinions according to the circumstances of the case. If the facts of the case are unclear and the evidence is insufficient, strive for the procuratorate to make a decision not to prosecute; If there are cases that can be dismissed according to law, or if the circumstances of the crime are minor, it is not necessary to sentence or exempt the punishment according to law, the procuratorate shall be asked to make a decision not to prosecute. (IV) Debate on medical parole Article 90 of the Criminal Procedure Rules of the People's Procuratorate stipulates: "If the criminal suspect to be arrested is suffering from a serious illness or is pregnant or nursing his own baby, the People's Procuratorate may make a decision not to approve the arrest or not to arrest. "Article 2 14 of the Criminal Procedure Law stipulates:" A criminal sentenced to fixed-term imprisonment or criminal detention may be temporarily executed outside prison under any of the following circumstances: (1) He is seriously ill and needs medical treatment outside prison; (2) Women who are pregnant or nursing babies. "Article 332 stipulates:" If a criminal meets the provisions of the first paragraph of Article 214 of the Criminal Procedure Law and the people's court decides to temporarily execute the sentence outside prison, it shall make a written decision on the temporary execution outside prison. "According to the above-mentioned laws, if a criminal suspect suffers from a serious illness before being arrested or after being sentenced, he can apply for medical parole. It is precisely because medical parole can be put forward in the initial investigation stage and the final penalty execution stage, which can be used as a non-custodial penalty execution method (that is, execution outside prison) and is also very important for protecting the legitimate rights and interests of criminal suspects and defendants. Therefore, the author thinks that applying for medical parole is also an important part of lawyers' criminal defense. As long as the suspects and defendants meet the conditions for medical parole (the scope of illness and disability of criminals released on medical parole promulgated by the Ministry of Justice, the Supreme People's Procuratorate and the Ministry of Public Security +0990 12 3 1), lawyers should apply for medical parole for them. Lawyers' defense in criminal proceedings can run through the whole process of criminal proceedings, from bail pending trial in the investigation stage to non-prosecution in the examination and prosecution stage, and then to medical parole after the court decision. Procedural defense does have the same value and function as substantive defense. Paying equal attention to procedural defense and substantive defense is a complete and successful defense, and the criminal defense purpose of fully protecting the legitimate rights and interests of the defendant can be realized. [1] Article 7 of the Criminal Procedure Law stipulates: "In criminal proceedings, the people's courts, people's procuratorates and public security organs shall be responsible for the division of labor, cooperate with each other and check each other to ensure the accurate and effective implementation of the law. [2] Article 86 of the Criminal Procedure Law of the People's Procuratorate stipulates: "The people's procuratorate shall obtain a guarantor pending trial, monitor residence and other methods. If it is not enough to prevent social danger and it is really necessary to arrest, it shall approve or decide to arrest the criminal suspect.
Legal objectivity:
Article 37 of the Criminal Procedure Law is the responsibility of a defender to provide materials and opinions on whether a criminal suspect or defendant is innocent or light, or to reduce or exempt his criminal responsibility according to facts and laws, and to safeguard the litigation rights and other legitimate rights and interests of the criminal suspect or defendant.