Analysis on how the public prosecution department should deal with related problems after the revision of the new criminal procedure law

The newly added and revised provisions of the Criminal Procedure Law account for almost half of the total number of existing provisions. * * *11published amendments to the criminal procedure law, which mainly revised and improved the evidence system, compulsory measures, defense system, investigation measures, trial procedures, enforcement provisions and special procedures, most of which involved public prosecution, and put forward many new challenges, new tasks and new requirements for the public prosecution work of procuratorial organs, so as to better implement them. First, the concept of law enforcement The biggest highlight of this revision of the Criminal Procedure Law is to write "respect and protection of human rights" into the general rules, emphasizing that while cracking down on crimes, more attention should be paid to the protection of human rights, which urges the police in the public prosecution department to effectively update the concept of law enforcement. Only by strengthening the study of the new criminal procedure law can we update the concept of law enforcement. Therefore, the public prosecution department should pay special attention to the study of the new criminal procedure law, constantly carry out and actively participate in various learning activities of the new criminal procedure law, actively organize prosecutors to study and study the original work, deeply understand the significance, guiding ideology and basic principles of the revision, fully grasp the revised content, accurately understand the legislative intent, and achieve mastery. In particular, it is necessary to educate and guide prosecutors to correctly handle the relationship between punishing crimes and safeguarding human rights, justice and efficiency, legal effects and social effects, further strengthen their awareness of evidence, procedure, limitation, authority and consciously accepting supervision, and truly adhere to rational, peaceful, civilized and standardized law enforcement while strictly and fairly enforcing the law. Second, the mechanism construction (1) Strengthen the standardization construction of procuratorial organs' own sentencing suggestions, and further improve the system and mechanism for making sentencing suggestions. Public prosecutors should strengthen their awareness of sentencing in handling cases. The public prosecutor is the executor of the sentencing suggestion system, and must establish a sense of strengthening sentencing. However, this kind of consciousness should be shown in the specific litigation behavior. For example, when reviewing a case, we should strengthen the review of details, including the consistent performance, identity and motivation of the suspect. In the review, we should strengthen the interrogation of these details, and reflect how to put forward sentencing suggestions and the scope of sentencing suggestions in the discussion notes of the review report. However, if the procuratorial organs repeatedly put forward judicial suggestions, which are not supported by judicial decisions, it will actually cause the society to question the judicial credibility. Therefore, in the process of handling a case, the public prosecutor should establish a communication mechanism with the judge, and after full discussion, reach a more consistent view on the basis of the sensible law. On this basis, the public prosecutor will put forward sentencing suggestions. (2) Improve the system of excluding illegal evidence, and strengthen the system of witness testifying in court and protecting. The new criminal procedure law clearly stipulates "the exclusion of illegal evidence". In the stage of examination and prosecution, if there is evidence that should be excluded, the case-handling personnel shall exclude it according to law and shall not be used as the basis for the prosecution decision. Therefore, in handling cases, the public prosecutor should firmly establish a strict sense of review, focusing on reviewing evidence that does not conform to the norms and may be illegal. Drawing lessons from the practices and experiences of other provinces and cities, when transferring five types of cases, such as intentional homicide, the public security law must transfer synchronous audio and video with the case. The materials obtained in this way can not only fix verbal evidence, but also serve as audio-visual materials to independently prove the legitimacy of the evidence collection process. The system of witness testifying in court not only clarifies that it is every citizen's obligation to testify in court, but also clarifies the scope of fulfilling the obligation to testify in court, the legal consequences of not appearing in court, including the punishment measures of compulsory appearance and refusal to testify, and the relief procedures for those who refuse to accept the punishment measures. At the same time, the new criminal procedure law also takes resolute protective measures against the dangers faced by witnesses and victims because of testifying, including compensation for economic losses caused by testifying and personal safety protection measures. However, the application of compulsory witness appearance and sanctions should not be rushed, but should be steadily promoted. Liu Hui, an associate professor at the National Prosecutor's College, reminded that the low attendance rate of witnesses in court is not entirely due to the lagging laws, but also rich national conditions. At present, most public prosecution departments actively persuade and persuade witnesses to testify in court, which still needs to be improved. When a witness testifies in court, his statement may change at any time. In practice, when the witness's confession is contrary to the previous testimony, the witness's confession in court shall prevail, which is a great challenge to the public prosecution agency. Faced with this situation, prosecutors must strengthen communication with witnesses before court, use questioning skills in court, protect witnesses after court and ensure that witnesses and their relatives are not threatened. (3) Improve the system of examining the necessity of detention. In practice, procuratorial organs often attach importance to the pre-arrest review, in which more attention is paid to the evidence of the case and the possibility that the suspect may be sentenced to punishment. The public prosecution department usually thinks that the change of compulsory measures after arrest makes the arrest work more casual and undermines the seriousness and authority of the judiciary, so it often ignores the continuous review of the necessity of detention after arrest. Article 93 of the new Criminal Procedure Law stipulates that after a criminal suspect or defendant is arrested, the people's procuratorate shall still review the necessity of detention. If it is not necessary to continue detention, it shall be suggested to release or change compulsory measures. (D) A correct understanding of the significance of improving criminal defense system. The new criminal procedure law stipulates the guarantee system of lawyers' right to read papers, meet and apply for evidence during the examination and prosecution. As prosecutors, we are in a position opposite to the defender's duties in court. To implement this provision, we must first eliminate two misunderstandings: First, we should oppose the boycott, that is, we unilaterally believe that perfecting criminal defense system will cause greater obstacles and more difficulties to the public prosecution. The second is the passive waiting thought, that is, not actively adapting to the new development of criminal defense system, but ignoring waiting. Secondly, we should actively face it, conscientiously implement it, actively listen to the opinions of defenders in the review and prosecution work, treat the reasonable demands of defenders without shirking or making things difficult, and fully protect the legitimate rights and interests of criminal suspects and defendants. . (five) efforts to "three effects in one", improve the working mechanism for handling juvenile criminal cases. In order to realize the good combination and full expression of the political effect, social effect and legal effect of handling juvenile crime cases in the process of prosecution and public prosecution, establishing and perfecting the relevant working mechanism of handling juvenile crime cases should always be the focus of public prosecution reform. Combined with the relevant legal provisions and judicial interpretation of handling juvenile criminal cases, the following systems should be mainly implemented. The first is the notification system of case progress and the "family meeting" system. In handling criminal cases of minors, at the request of criminal suspects, victims and their families, combined with the nature of the case, the facts of the suspected crime, subjective malignancy, guilty attitude and degree of repentance, they can be informed of the progress of the review and prosecution, and explain and explain the relevant situation. Under appropriate circumstances, juvenile criminal suspects in custody may be arranged to meet and talk with their legal representatives and close relatives. The second is the special case handling system, combined with the "classified supervision" system of accepting cases for examination and prosecution, and appointing prosecutors who are familiar with the characteristics of minors' physical and mental development and are good at ideological education for minors. The third is the social investigation system. When handling juvenile criminal cases, we should investigate the personality characteristics, family situation, social interaction and growth experience of minors, strengthen the pertinence of education for juvenile criminal suspects and defendants, and enhance the effect of law enforcement. Fourth, adhere to the principle of combining leniency with severity, which means leniency, focusing on education and salvation. In addition, when applying conditional non-prosecution to handle juvenile criminal cases, we should firmly grasp the following three applicable principles: First, we should adhere to the principle of voluntariness. The new criminal procedure law gives the juvenile criminal suspect and his legal representative the right to object to the decision of the procuratorial organ not to prosecute conditionally, but it does not stipulate that the procuratorial organ should listen to the opinions of the juvenile criminal suspect and his legal representative before making the decision of not to prosecute conditionally. When handling specific cases, procuratorial organs should not force criminal suspects and their legal representatives to accept this special system, but should take the initiative to punish them. In practice, two solutions can be adopted: first, if the public prosecutor thinks that it meets the conditions of conditional non-prosecution, he will inform the criminal suspect and his legal representative in writing in time and let them choose independently; Second, the criminal suspect and his legal representative voluntarily submitted a written application to the public prosecution department. If the public prosecution department considers that it meets the requirements after examination, it will start the conditional non-prosecution procedure. Second, it must conform to the principle of public interest. According to the provisions of the new Criminal Procedure Law, crimes suspected of infringing personal rights, democratic rights, property and disturbing social management order can be sentenced to fixed-term imprisonment of not more than one year, which meets the conditions for prosecution. However, minors who show repentance can be prosecuted unconditionally, which is relatively broad. When handling specific cases, we should first consider the public interest factors such as the degree of harm to social order and the public, the actual effect of crime prevention and litigation costs, comprehensively weigh the advantages and disadvantages, strictly grasp the applicable conditions, and make it clear that the object of conditional non-prosecution cannot or should not be applied. Conditional non-prosecution is not applicable to recidivists and principal offenders of the same crime who violate the maintenance of public interests; For those who have already applied conditional non-prosecution, it is not appropriate to apply it repeatedly to ensure that the system will not be abused. Third, we must adhere to the principle of supervision and restriction. In order to enhance transparency and ensure the openness and fairness of the application, it is necessary to strengthen supervision and restriction from outside and inside. Three. Capacity Building In recent years, the number of criminal cases accepted by the public prosecution departments of grass-roots procuratorates has increased substantially year by year, the number of new crimes has increased year by year, social hot cases and interest-related cases have increased year by year, and the people's demands for strengthening legal supervision have become stronger and stronger. In reality, the contradiction between the large number of people and the small number of cases in the public prosecution department is becoming increasingly prominent, which makes most public prosecution case handlers tired of handling cases and relaxed their business study. In addition, due to objective environmental constraints and personal reasons, some prosecutors also neglected the study of new knowledge and new policies. With the deepening of legal system construction, the improvement of evidence requirements and the change of law enforcement concept, higher requirements are put forward for public prosecution. Only by improving the quality of public prosecutors in an all-round way can the public prosecution department calmly deal with heavier tasks. In order to change the present situation that the overall quality of prosecutors can not meet the requirements of law enforcement under the new situation, and further improve the theoretical level and professional ability of prosecutors, especially the ability to resolve social contradictions and participate in social management innovation required by the three key tasks, it is necessary to comprehensively strengthen the construction of public prosecution ability from the following aspects. (a) the establishment of public prosecutors' education and training system and mechanism to improve the professional theoretical level of public prosecutors. Comprehensive and profound legal knowledge and extensive and profound cultural foundation are the strong support for prosecutors to do a good job in public prosecution. With comprehensive and profound professional theoretical knowledge, it is helpful for the public prosecutor to correctly distinguish crime from non-crime, this crime from another crime, felony and misdemeanor, and correctly identify the seriousness, nature and causality of the constitutive elements, means and results of crime. Therefore, we should vigorously advocate the theoretical research of public prosecution and provide learning opportunities for public prosecutors through various channels. For example, by opening a public prosecution forum and inviting authoritative figures from the judicial and legal circles to give lectures, prosecutors can learn new knowledge and experience from excellent legal workers, broaden their horizons and inspire their thinking. (2) Deepen on-the-job training, improve the professional ability of prosecutors and train expert prosecutors. Public prosecution is a very practical work. When undertaking cases, marking papers, making all kinds of legal documents such as transcripts, reports, indictments, public prosecution opinions, and court debates require not only the public prosecutor to have strict logical argumentation ability and strong analytical judgment ability, but also a solid written foundation and eloquent language expression ability. (3) Improve working methods and enhance the ability to solve contradictions. All kinds of cases handled by the public prosecution department are concrete manifestations of social contradictions entering the judicial field. As a public prosecutor in the new era, we should not only be satisfied with handling cases according to law, but also extend and deepen our functions to repair social relations and persist in resolving contradictions and disputes throughout the public prosecution work. To improve the prosecutor's ability to resolve contradictions, we must first change our thinking and get rid of the old concept of law enforcement. The right of public prosecution should not be simply positioned in the aspect of prosecuting crimes, but should focus on deepening the three key tasks, firmly establish the concept of serving the overall situation, unifying the three effects (legal effect, social effect and political effect), restorative justice and source governance, so that prosecutors can fully realize the important significance of public prosecution work in resolving social contradictions and maintaining harmony and stability. Secondly, to overcome mechanical law enforcement and handling cases according to the case, we should take resolving and mediating contradictions and disputes as an integral part of law enforcement and handling cases, improve the methods and methods of handling cases, focus on improving the risk assessment ability of public prosecutors in law enforcement and handling cases, improve their working ability of reasoning and psychological counseling, and improve their coordination ability with various departments and parties. (4) To further enhance the effectiveness of litigation supervision by broadening supervision ideas and innovating supervision methods. In addition to cracking down on crimes, the public prosecution department also undertakes extremely important tasks of investigation and trial supervision. However, in reality, some prosecutors still have problems of not paying attention to supervision, not daring to supervise, unwilling to supervise and not supervising, which leads to the weakening of litigation supervision power. In addition, the unscientific and imperfect litigation supervision mechanism is also an aspect that restricts the effective development of supervision. To this end, the public prosecution department should broaden the supervision ideas, innovate the supervision mechanism, comprehensively use various supervision means, strengthen supervision, highlight the key points of supervision, eliminate the blind spots of supervision and enhance the supervision effect. In terms of investigation and supervision, in view of the fact that the quality of cases is declining year by year, timely, comprehensive and effective supervision of investigation activities is carried out by establishing a regular notification system of case quality, establishing a notification system of prosecution cases and improving the mechanism of guiding investigation. By promoting the convergence of arrest and prosecution and the construction of information sharing mechanism, we will plug regulatory loopholes. (5) Expand the means and space for public prosecution to resolve social contradictions, and strive to close the case. Resolving social contradictions is one of the three key tasks, and it is also an important standard to consider the effectiveness of public prosecution. In practice, because the specific circumstances of each case are different, the judicial demands of the parties are different, and the social contradictions involved in the case are also different, so the effective ways to solve the contradictions are naturally different. Four. Personnel security: The contradiction between the number of staff and the workload of the public prosecution department is more prominent because of the increased responsibility of the procuratorial organs for examination and prosecution and the difficulty of appearing in court for public prosecution. Therefore, it is necessary to fully guarantee the staffing of the public prosecution department and provide assistance in financial and material resources. After the implementation of the new criminal procedure law, prosecutors need to attend pre-trial meetings, apply summary procedures to cases and appear in court for public prosecution, which undoubtedly increases the difficulty and intensity of prosecutors' work. Therefore, prosecutors can save judicial resources by simplifying the trial mode on the premise of ensuring judicial quality when dealing with cases that apply summary procedure to appear in court. In handling cases with clear facts and sufficient evidence, public prosecutors can simplify legal documents such as examination reports, sentencing suggestions and indictments. In the long run, it is suggested that some capable and talented people can be recruited from the society to help prosecutors get rid of complicated paperwork, do their work wholeheartedly and improve the overall efficiency of public prosecution.