I. Overview
1. Concept, purpose and characteristics of trial procedure by default
The trial procedure by default refers to the trial procedure applicable to specific criminal cases in which the judge continues to hear, decides to hold a trial and makes a judgment according to law when the defendant does not appear in court.
Trial by default procedure is a special procedure added to the Criminal Procedure Law revised on 20 18. Its main purposes are as follows: first, to prevent criminal suspects and defendants from deliberately evading criminal proceedings, so as to effectively realize the purpose of criminal law; Second, in order to solve the problem of escaping corrupt officials and provide judicial support for international cooperation in fighting corruption; Third, the defendant has died, but there is evidence to prove that the defendant is innocent.
Compared with other trial procedures, the criminal trial procedure by default has the following characteristics: First, compared with the ordinary criminal trial procedure, the defendant in the trial procedure by default does not attend the court trial, which is the most important feature of the trial by default. Second, compared with civil trial by default, criminal trial by default does not have the absence of prosecution, and the scope of application of the case is extremely limited. Criminal trial by default is limited to a few specific cases.
2. Types of trial procedures by default
The Criminal Procedure Law has established three trial procedures by default, and different types of trial procedures by default have their specific functions and applicable requirements. Therefore, for different types of cases, different types of trial procedures by default should be applied respectively. China's trial by default procedures mainly include the following three types:
First, the trial in absentia, the defendant fled abroad. The Criminal Procedure Law stipulates the procedure of trial by default for defendants who have fled abroad, that is, crimes of corruption and bribery, crimes that seriously endanger national security and crimes of terrorist activities need to be tried in time and approved by the Supreme People's Procuratorate. If the criminal suspect and defendant are abroad, the court may try by default if the criminal facts have been ascertained and the evidence is true and sufficient.
2. The defendant suspended the trial due to illness. The Criminal Procedure Law stipulates the procedure of trial by default for the defendant to suspend the trial due to illness, that is, if the defendant cannot appear in court for more than six months due to serious illness, the people's court may resume the trial by default upon the application or consent of the defendant, his legal representative and his near relatives.
Third, the trial in absentia resulted in the death of an innocent defendant. The criminal procedure law stipulates two kinds of trial procedures for the death of innocent defendants by default; First, if the defendant dies, but there is evidence to prove that the defendant is innocent, the people's court shall confirm the defendant's innocence through trial in absentia; Second, if the defendant has died, the people's court may make a judgment by default.
3. The significance of trial procedure by default
The establishment of trial procedure by default has the functions of effectively prosecuting crimes, ensuring trial efficiency and maintaining judicial justice, so the establishment of this procedure has the following significance:
First, make up for the shortcomings of the illegal income confiscation procedure. The revised criminal procedure law adds the system of trial by default, which can solve the problem of conviction and sentencing when the defendant is tried by default.
Second, solve the problems existing in the single trial mode. There are many difficulties in the single trial mode: first, it improperly damages the efficiency of litigation; The second is to hinder the realization of the purpose of litigation dispute resolution; Third, it is not conducive to the proper handling of civil liability. The establishment of default trial procedure can effectively solve the problems existing in the single trial mode, so that specific cases will not be tried because of the absence of the defendant, thus solving disputes as soon as possible and realizing litigation benefits.
Thirdly, it is related to the provisions of the United Nations Convention against Corruption. After the establishment of the trial procedure by default, the courts in our country can make a judgment on the fleeing corrupt personnel according to law, and according to the provisions of this article, it will effectively punish corrupt criminals by asking the requested State party to either extradite corrupt personnel or execute the punishment prescribed by our laws.
2. The defendant fled overseas and was tried in absentia.
The trial procedure by default for the defendant's flight is the first and most important trial procedure by default when the Criminal Procedure Law of 20 18 was revised.
1. Scope and conditions of application
The trial procedure of the defendant's flight by default is only applicable to corruption and bribery cases, as well as serious criminal cases that endanger national security and terrorist activities and need to be tried in time and approved by the Supreme People's Procuratorate.
In terms of applicable conditions, the trial procedure by default can only be applied to cases of corruption and bribery, crimes seriously endangering national security and terrorist activities if the following conditions are met: First, the criminal suspect and defendant are abroad; Second, the facts of the crime have been ascertained and the evidence is true and sufficient, so criminal responsibility should be investigated according to law. The first condition is the prerequisite for the application of the trial procedure by default, and the second condition is the substantive condition for the application of the trial procedure by default.
2. The specific operation of the proceedings
Supervisory organs and public security organs shall transfer cases of corruption and bribery, crimes seriously endangering national security and terrorist activities committed by criminal suspects and defendants abroad for examination and prosecution. If the people's procuratorate considers that the conditions for prosecution are met, it may bring a public prosecution to the court. After examination, if the criminal facts alleged in the indictment are clear and meet the applicable conditions of trial by default, the people's court shall decide to hold a hearing.
A case in which the defendant absconded abroad for trial in absentia shall be tried by a collegiate bench composed of the place where the crime was committed, the defendant's place of residence before leaving the country or an intermediate people's court designated by the Supreme People's Court.
3. Notification procedure
Before the defendant is tried in absentia, the defendant has the right to know the charges, the litigation rights he enjoys, the time and place of the trial, etc., so the court has the obligation to inform him. In order to protect the defendant's right to know, the people's court shall serve the defendant with a summons and a copy of the indictment by the people's procuratorate through judicial assistance as stipulated in relevant international treaties, through diplomatic channels, or through other means permitted by the law where the defendant is located.
When the copy of the summons and indictment is served on the defendant, if the defendant fails to appear in court as required, it can be regarded as that the defendant has waived his right to appear in court. At this time, the people's court shall hold a hearing and make a judgment by default according to law.
4. Defense system
In a trial by default, the defendant cannot exercise his right of defense by himself because he does not appear in court. Therefore, it is particularly important for the defender to appear in court to defend the rights of the defendant, which can also make the judge listen and effectively guarantee the fair trial of the court. Therefore, the Criminal Procedure Law fully guarantees the defendant's right to defense in cases tried by default: First, in cases tried by the people's court by default, the defendant has the right to entrust a defender, and his close relatives can entrust a defender. Secondly, when the defendant and his close relatives do not entrust a defender, the people's court shall notify the legal aid institution to appoint a lawyer to defend him, that is, a compulsory legal aid system has been established.
5. Relief procedures
The Criminal Procedure Law establishes three kinds of relief procedures for the trial procedure in default in which the defendant is forced to flee, namely, appeal and protest, retrial return and compensation.
(1) Appeal and protest. In a case tried by default, the people's court shall serve the judgment on the defendant, his close relatives and defenders. If the defendant or his near relatives are dissatisfied, they have the right to appeal to the people's court at the next higher level. The defender may also appeal with the consent of the defendant or his near relatives. Therefore, the criminal procedure law gives the defendant and his close relatives an independent right of appeal, and at the same time, with the consent of the defendant or his close relatives, the defender also enjoys the right of appeal. If the people's procuratorate believes that the judgment of the people's court is indeed wrong, it shall lodge a protest with the people's court at the next higher level.
(2) retrial. First of all, in the course of the trial, if the defendant surrenders or is arrested, the people's court shall retry the case. At this time, because the condition that the defendant can't attend the trial has disappeared, the people's court should try the case again in the presence of the defendant to protect the legitimate rights and interests of the defendant and safeguard procedural justice. Secondly, if the criminal appears in court after the judgment or ruling becomes legally effective, the people's court shall deliver the criminal to execute the punishment. Before executing the penalty, the people's court shall inform the prisoner of his right to object to the judgment or ruling. If a prisoner disagrees with the judgment or ruling, the people's court shall retry it. This is to fully protect the rights of the defendant and maintain its status as the subject of litigation. In addition, since many countries require the requesting party to try the extradited person again after extradition, giving the defendant who was tried in absentia a chance to get a retrial is also beneficial to the extradition of the defendant.
(3) Return and compensation. If there is a mistake in handling the property of a criminal in accordance with an effective judgment or ruling, it shall be returned and compensated. This is the protection of criminals' property rights.
3. The defendant suspended the trial due to illness.
This is the second trial by default procedure stipulated in the Criminal Procedure Law, that is, the trial by default procedure in which the defendant stops due to illness. To apply this type of trial by default, the following three conditions must be met at the same time: First, the trial was suspended for more than six months because the defendant was unable to appear in court because of serious illness. "Suffering from a serious illness" should be understood in a strict and narrow sense, mainly including the situation that one cannot identify and control one's behavior and express one's true meaning because of a serious illness, and the situation that one's life safety may be affected once appearing in court. Second, after the trial was suspended for six months, the defendant was still unable to appear in court. At this time, the defendant could not be cured or alleviated in a short time, and the trial of the case entered an irreparable state. Third, the defendant, his legal representative and close relatives applied for or agreed to resume the trial. Giving the defendant, his legal representative and close relatives the right to choose whether to try in absentia reflects the respect for the defendant's meaning and guarantees the defendant's right to participate in the procedure. Only when the above three conditions are met at the same time can the people's court conduct a trial by default without the defendant appearing in court and make a judgment according to law.
Four, the innocent defendant died in absentia trial procedure
This is the third trial by default procedure stipulated in the Criminal Procedure Law, that is, the trial by default procedure for the death of an innocent defendant. This type includes two specific situations, and the applicable conditions are different.
The first case is the trial procedure in absentia when there is evidence to prove the defendant's innocence. In the course of the trial, if the defendant dies, the people's court shall make a ruling to terminate the trial. However, if there is evidence to prove the defendant's innocence and the people's court confirms the defendant's innocence through trial in absentia, it shall make a judgment according to law. This trial by default procedure must meet three applicable conditions at the same time: first, the defendant dies; Second, there is evidence to prove that the defendant is innocent; Third, the purpose of trial in absentia is to confirm the innocence of the defendant. This is a reaffirmation of the spirit of handling the defendant's death in the trial stage of the Criminal Procedure Law.
The second case is the default trial procedure of the defendant's death retrial according to the trial supervision procedure. If the defendant dies in a case retried by the people's court in accordance with the procedure of trial supervision, the people's court may try the case in absentia and make a judgment according to law. This trial by default procedure must meet two applicable conditions at the same time: first, the case should be retried in accordance with the trial supervision procedure; Second, the defendant died. This kind of trial by default has always existed in judicial practice, and the correction of past unjust cases in China belongs to this kind of trial by default.