The challenge system is applicable to all major proceedings in China. The challenge system of criminal proceedings is to ensure a more fair trial of cases, better safeguard the authority of the law, and ensure that the legal system and the implementation process of the law are universally respected by the parties and the public. So, who does the challenge system of criminal proceedings apply to? Let's take a look!
1. Who does the challenge system of criminal proceedings apply to?
Avoidance of applicable personnel refers to the scope of public security and judicial personnel who should be avoided in the case of avoidance clearly stipulated by law. Only those who fall within this range need to take the initiative to withdraw, or the parties apply for withdrawal.
According to Articles 28, 3 1 of the Criminal Procedure Law and the relevant interpretations of the Supreme People's Court and the Supreme People's Procuratorate, the range of people who apply the challenge system is very wide, including judges, prosecutors, investigators, people's jurors, clerks, translators, appraisers, judicial police, inspectors and executors who participate in investigation, prosecution and trial activities.
Among them, the judge refers to the president, vice president, members of the judicial committee, president, vice president, judges, assistant judges and other staff members who occupy the administrative establishment in the court. Prosecutors refer to prosecutors, clerks and judicial administrative personnel of people's procuratorates at all levels.
The law does not clearly stipulate whether members of the procuratorial Committee belong to the scope of withdrawal. It is generally believed that members of the procuratorial Committee have an important influence on the outcome of case handling. From the perspective of safeguarding judicial justice, members of the procuratorial committee should be included in the scope of prosecutors and avoided according to law.
Second, the reasons for the withdrawal of criminal proceedings
The reason for withdrawal refers to the factual basis that is clearly stipulated by law and necessary for the implementation of withdrawal. Theoretically speaking, the circumstances that can be used as the basis for public security judicial personnel to avoid are mainly related to the case or the parties, so it is difficult to handle the case fairly. In order to make this abstract basis operable, the criminal procedure laws of various countries generally clearly set a number of factual situations that conform to this basis, making it a statutory reason for withdrawing the lawsuit. Article 28 of China's criminal procedure law clearly stipulates the reasons for withdrawing the lawsuit.
(1) being a party to the case or a close relative of the party;
If judges, prosecutors, investigators, etc. As criminal suspects, defendants, victims or other parties in this case, their substantive interests and litigation purposes will have a fierce conflict with their litigation roles, and they are likely to conduct litigation activities from the perspective of safeguarding their own interests, which makes it difficult to treat all parties fairly and handle the case fairly and objectively. Similarly, if these people are close relatives of one party, they are likely to favor that party out of affection, or make other parties suffer discriminatory treatment, thus affecting the fairness of the lawsuit. Even if the public security judicial personnel actually do not favor one party and can handle cases impartially, as long as there is the above relationship with the parties to the case, the fairness of criminal proceedings will be doubted by other parties and even the public. Therefore, public security and judicial personnel in this situation should avoid it. As for the scope of the close relatives of the parties, according to Article 82 of the Criminal Procedure Law, it includes the "husband, wife, father, mother, son, daughter, brothers and sisters" of the parties. As far as judges are concerned, article 1 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judges' Avoidance" further explains this, stipulating that judges with lineal blood relatives, collateral blood relatives within three generations and in-laws should be avoided.
(2) He or his close relatives have an interest in the case.
If investigators, prosecutors, judges themselves or their close relatives have certain interests in this case, and the outcome of the case will directly affect the interests of themselves and their close relatives, then if they preside over or participate in litigation activities, the case may not be handled fairly and objectively. Therefore, public security and judicial personnel in this situation should avoid it.
(3) Having served as a witness, expert witness, defender or agent ad litem in this case.
If judges, prosecutors and investigators have served as witnesses and experts in this case and provided testimony or expert conclusions for this case, they may have prejudged the facts of the case or the substantive results of the case, and they can no longer collect, examine and judge evidence calmly and objectively, which may easily lead to misjudgment. At the same time, if the public security judicial personnel have served as defenders or litigation agents in this case, they may have a special relationship with the client who entrusted them and know the facts of the case, so they cannot conduct criminal proceedings fairly and objectively. Therefore, public security and judicial personnel should avoid such a situation. As far as judges are concerned, Article 1 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judges' Withdrawal" further explains this, stipulating that judges who have served as prosecutors should also withdraw.
(four) in violation of regulations to meet the parties and their clients or accept their gifts.
Article 29 of the Criminal Procedure Law stipulates that judges, prosecutors and investigators shall not accept guests and gifts from the parties and their clients, and shall not meet the parties and their clients in violation of regulations. If a judge, prosecutor or investigator violates the provisions of the preceding paragraph, the parties and their legal representatives have the right to ask him to withdraw. According to this regulation, public security judicial personnel accept the "treat and give gifts" of the parties and their clients, and meet the parties and their clients in violation of the regulations, which constitutes the reason for withdrawal. In order to strictly implement this provision, in February, 2000, Article 2 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judge's Withdrawal" further stipulated that if a judge has one of the following circumstances, the parties and their legal representatives have the right to request withdrawal: (1) meeting with one of the parties to this case and their agents and defenders without approval; (2) recommending or introducing agents or defenders for the parties to a case, or introducing lawyers or other personnel to handle the case; (3) accepting property and other benefits from the parties to the case and their clients, or asking the parties and their clients to reimburse expenses; (four) accept banquets or participate in various activities by the parties to the case and their clients at their own expense; (5) Borrowing money from the parties to the case and their clients, borrowing vehicles, communication tools or other articles, or accepting the interests of the parties and their clients in purchasing goods and decorating houses. Although there is no relevant explanation for the prosecutors and investigators of 1, we think it should be implemented with reference. In order to avoid the above situation, the parties and their legal representatives shall provide relevant evidential materials.
(5) Having participated in handling this case before this litigation stage.
Persons who participated in handling this case before this litigation stage shall not participate in handling this case again. Article 192 of the Criminal Procedure Law stipulates that the people's court that originally tried a case shall form a collegial panel to hear it according to the procedure of first instance. Article 206 stipulates that a people's court shall form a collegial panel to retry a case in accordance with the procedure of trial supervision. According to the above provisions, the members of the original collegiate bench of the court of first instance who are responsible for hearing the case may not participate in the trial of the case if the court of second instance decides to send them back for retrial after the second instance procedure is over; When the people's court retries a case in accordance with the procedure of trial supervision, the members of the collegial panel who were originally in charge of the trial shall not participate in handling the case. Because the judge who participated in the original trial of this case has predicted the facts and results of the case, it is difficult to guarantee the fairness of the trial by participating in or presiding over the retrial of the case. Article 3 1 of the the Supreme People's Court Interpretation further stipulates that any investigator or procurator who participates in the investigation and prosecution of this case shall not serve as a judge of this case if he is transferred from the people's court. Members of the collegial panel who participate in the trial of this case in one trial procedure shall not participate in the trial of other procedures in this case. Article 29 of the "the Supreme People's Procuratorate Rules" stipulates that the investigators involved in the investigation of this case, if transferred to the people's procuratorate, shall not serve as the prosecutor of this case.
(6) Having other relations with the parties to the case, which may affect the fair handling of the case.
Social life is very complicated, and it is impossible for the law to list all kinds of social relations that may occur between public security and judicial personnel and the parties. Judges, prosecutors, investigators and the parties have other relations other than the above three situations, so that the case can not be handled fairly, they should also withdraw. Of course, the fact that there are other special relationships between these people and the parties is not enough to constitute a reason for withdrawal alone. Only when the existence of this special relationship leads to the case can not be handled fairly, public security and judicial personnel should avoid it. As far as judges are concerned, Article 1 of the Supreme People's Court's Several Provisions on Strictly Implementing the System of Judges' Withdrawal stipulates that judges who have the relationship of husband and wife, parents, children or siblings with agents ad litem and defenders in this case should withdraw.
The above is the relevant content introduced to you by the latest criminal procedure avoidance system. To sum up, it includes: judges, prosecutors, investigators and people's jurors, clerks, translators, experts, judicial police, inspectors and executors who participate in investigation, prosecution and trial activities.