2. Defense function. The defense function is the function of refuting the criminal suspect and accusation, explaining that the criminal suspect and accusation do not exist and are not established, and demanding that the criminal suspect and defendant be declared innocent, the crime is light or the punishment is mitigated or exempted. The dissemination of human rights, the implementation of democratic ideas, procedural justice ideas and the establishment of constitutional system are the decisive factors to produce the defense function. The subjects of exercising the right of defense include: criminal suspects, defendants, defenders, etc.
3. Judicial function. The trial function refers to the function of determining whether the defendant has committed the alleged crime, whether he should be sentenced and what kind of punishment he should be sentenced through trial. The theoretical basis of the existence of judicial function is based on the needs of notarization in handling criminal cases and the scientific requirements of exercising rights, and its exercise subject is only one, that is, the people's court.
What is the basic structure and principle of modern criminal procedure function? The basic structure and principles of modern criminal procedure function include: separation of prosecution and trial, equality of prosecution and defense and neutrality of trial.
1. The separation of prosecution and trial means that the appeal function and the trial function must be undertaken by special litigants respectively, but not by one litigant. If there is no legal subject to file a lawsuit, the court that undertakes the trial function cannot take the initiative to try any case. This is also the origin of the principle of non-prosecution and disregard in criminal proceedings. Modern judicial reform has established the principle of separation of prosecution and trial, which is a great progress in the history of criminal justice system. The significance of the separation of prosecution and trial lies not only in the clear division of labor within the state judicial organs, but also in strengthening the state's ability to prosecute crimes and improving the quality of public prosecution; It is more important to keep the judiciary neutral, so as to ensure that the judiciary tries cases objectively and fairly.
2. The equivalence of prosecution and defense means that the parties who undertake the appeal function and the parties who undertake the defense function have equal status and confront each other. In modern criminal proceedings, whether the prosecution and the defense can be equal is the key to realize the defense function. Because the state specialized agency exercising the right of appeal is obviously superior to the defendant in terms of power, means, personnel and material conditions, it is difficult for the two sides to confront each other in strength. Therefore, when the state formulates the criminal procedure law, it must be able to construct the procedure of equivalence between prosecution and defense to ensure the effective exercise of the defense function.
3. The neutrality of the trial means that the court and its judges who undertake the trial function cannot have both the prosecution and the defense or the organs or personnel who have an interest in the case at the same time, and the judge should treat both the prosecution and the defense fairly and equally. The trial can only be fair if it is neutral, and there is no immediate justice without anything in it. In order to ensure the neutrality of the trial, the prosecution and the trial must be separated and the prosecution and the defense must be equal.
Separation of prosecution from trial, equality between prosecution and defense, and neutrality of trial are the basic concepts and requirements of modern criminal proceedings, and are the basic guarantee for realizing judicial justice. At present, the above principles have been implemented in both civil law countries and common law countries, as well as in interrogation proceedings and adversary proceedings. China's litigation structure, the separation of prosecution and trial, has basically been realized, but there are still some problems in the equivalence of prosecution and defense and the neutrality of trial, which need to be seriously studied and solved.
What are the criminal proceedings? Criminal litigation refers to the litigation activities of judicial organs, procuratorial organs and investigation organs to solve the criminal responsibility of the defendant in accordance with legal procedures with the participation of the parties and litigation participants. According to the provisions of the Criminal Procedure Law, general criminal cases generally go through three stages, namely, investigation stage (public security organs), examination and prosecution stage (people's procuratorate) and trial stage (people's court).
First of all, for the record:
When a public security organ or a people's procuratorate discovers a criminal fact or a criminal suspect, it shall file a case for investigation within its jurisdiction.
People's procuratorates have jurisdiction over crimes of corruption and bribery, dereliction of duty by state functionaries, illegal detention, extorting confessions by torture, retaliation and framing, illegal search and infringement of citizens' democratic rights.
The criminal cases directly accepted by the people's courts are:
1, telling to handle the case;
2. The victim has evidence to prove a minor criminal case; Including intentional injury (minor injury), bigamy, abandonment, obstruction of freedom of communication, illegal intrusion into other people's houses, production and sale of fake and inferior commodities (except those that seriously endanger social order and national interests), infringement of intellectual property rights (except those that seriously endanger social order and national interests) and other minor criminal cases that can be sentenced to fixed-term imprisonment of not more than three years as stipulated in Chapters IV and V of the Specific Provisions of the Criminal Law.
3. Cases in which the victim has evidence to prove that the defendant has violated his personal and property rights and should be investigated for criminal responsibility according to law, but the public security organ or the people's procuratorate will not investigate the criminal responsibility of the defendant.
Other criminal cases except those under the jurisdiction of the people's procuratorate and directly accepted by the people's court shall be under the jurisdiction of the public security organs.
Second, the investigation:
The public security organ may impose criminal detention on an active criminal or a major suspect. Detainees should be questioned within 24 hours after detention. A criminal suspect may hire a lawyer to provide him with legal advice, complaints and accusations after the first interrogation by the investigation organ or from the day when compulsory measures are taken. The entrusted lawyer has the right to know the charges charged by the criminal suspect from the investigation organ, and can meet the criminal suspect in custody and get information from the criminal suspect.
If the public security organ deems it necessary to arrest the detained person, it shall submit it to the people's procuratorate for examination and approval within three days after detention. Under special circumstances, the approval time can be extended by one to four days. For major suspects who commit crimes on the run, commit crimes many times or commit crimes in collusion, the time for submitting for examination and approval may be extended to 30 days. The people's procuratorate shall, within seven days after receiving the approval letter from the public security organ, make a decision on whether to approve or disapprove the arrest. If the people's procuratorate does not approve the arrest, the public security organ shall immediately release it after receiving the notice and promptly notify the people's procuratorate to execute it. Those who need to continue the investigation and meet the conditions of obtaining a guarantor pending trial or residential surveillance shall be granted a guarantor pending trial or residential surveillance according to law.
If the suspect is arrested, the lawyer hired can apply for bail pending trial.
The public security organ shall not detain a criminal suspect for more than two months after his arrest. If the case is complicated and cannot be concluded at the expiration of the time limit, it may be extended for one month with the approval of the people's procuratorate at the next higher level.
When investigating a closed case, the public security organ shall ensure that the facts of the crime are clear and the evidence is true and sufficient, write a prosecution opinion and transfer it to the people's procuratorate at the same level for examination and decision together with the case file and evidence.
Iii. review and prosecution:
When examining a case, the people's procuratorate shall interrogate the criminal suspect and listen to the opinions of the victim, the criminal suspect and the person entrusted by the victim.
The criminal suspect has the right to entrust a defender from the date when the case is transferred for examination and prosecution. The defendant in a case of private prosecution has the right to entrust a defender at any time.
The people's procuratorate shall, within three days from the date of receiving the case materials transferred for examination and prosecution, inform the criminal suspect that he has the right to entrust a defender. The people's court shall, within three days from the date of accepting a case of private prosecution, inform the defendant that he has the right to entrust a defender.
Defense lawyers can consult, extract and copy the litigation documents and technical appraisal materials of the case from the date when the people's procuratorate examines and prosecutes the case, and can meet and communicate with the criminal suspect in custody.
The people's procuratorate shall make a decision on the case transferred for prosecution by the public security organ within one month, and the major and complicated cases may be extended by half a month.
If the people's procuratorate believes that the criminal facts of the criminal suspect have been ascertained and the evidence is true and sufficient, and criminal responsibility should be investigated according to law, it shall make a decision to prosecute and file a public prosecution with the people's court in accordance with the provisions on trial jurisdiction.
Fourth, the trial:
After the people's court has examined the case in which a public prosecution was initiated, if the facts of the crime alleged in the indictment are clear, and a list of evidence, a list of witnesses and copies or photos of the main evidence are attached, it shall decide to hold a hearing. Except for cases involving state secrets or personal privacy, the people's courts try cases of first instance in public.
Since the people's court accepted the case, the defense lawyer can consult, extract and copy the materials of the alleged criminal facts in this case, and can meet and correspond with the defendant in custody. At the trial, the defense lawyer defended the defendant.
When trying a case of public prosecution, the people's court shall pronounce a judgment within one month after accepting it, but not more than one and a half months at the latest. Under any of the circumstances specified in Article 163 of the Criminal Procedure Law, it may be extended for another month with the approval or decision of the Higher People's Court of a province, autonomous region or municipality directly under the Central Government.
After hearing the case, the people's court made the following judgments according to the facts, evidence and relevant laws and regulations that have been ascertained:
(1) If the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, a guilty verdict shall be made;
(2) If the defendant is found innocent according to law, a verdict of innocence shall be made;
(3) If the defendant cannot be found guilty due to insufficient evidence, a verdict of acquittal shall be made because the accused crime cannot be established due to insufficient evidence.
Defendants, private prosecutors and their legal representatives have the right to appeal to the people's court at the next higher level in writing or orally if they refuse to accept the judgment or ruling of first instance of local people's courts at all levels. Defenders and close relatives of the defendant may appeal with the consent of the defendant. The time limit for appeal and protest against the judgment is ten days.
The people's court of second instance shall form a collegial panel when hearing an appeal case. After reading the papers, interrogating the defendant and listening to the opinions of other parties, defenders and agents ad litem, the collegial panel may not hold a hearing if the facts are clear.
After hearing the case of appeal or protest against the judgment of first instance, the people's court of second instance shall handle it separately according to the following circumstances:
(a) the original judgment found the facts and applicable laws correct, and the sentence was appropriate, so the appeal or protest was rejected and the original judgment was upheld;
(two) the original judgment found that the facts were not wrong, but the applicable law was wrong, or the sentence was improper, and the judgment should be revised;
(3) If the facts in the original judgment are unclear or the evidence is insufficient, the judgment may be revised after the facts are ascertained; You can also make a ruling to revoke the original judgment and send it back to the people's court that originally tried it for a new trial.
The judgments and rulings of the second instance and the Supreme People's Court are final. The defendant cannot appeal.
Who is a participant in criminal proceedings? Who is a participant in criminal proceedings refers to a person who participates in criminal proceedings according to law, enjoys certain litigation rights and undertakes certain litigation obligations, except the staff of investigation, procuratorial and judicial organs. According to the provisions of the Criminal Procedure Law, participants in criminal proceedings mainly include: parties, legal representatives, agents ad litem, defenders, witnesses, experts and translators. According to the different interests of litigants and cases, litigants can be divided into litigants and other litigants. The law of parties to criminal proceedings refers to victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil proceedings.
What are the criminal litigation documents? 1, letter from law firm;
2. Entrustment agreement for providing assistance to criminal suspects;
3, refers to the defense;
4. Entrusting and consulting;
5. Letter from the lawyer meeting with the criminal suspect in custody;
6. Criminal case agency agreement;
7. An application for meeting the criminal suspect in custody;
8. An application for collecting and obtaining evidence;
9. Application for lifting compulsory measures;
10, criminal defense.
According to the provisions of China's criminal procedure law, the jurisdiction in criminal proceedings includes two aspects: the scope of functions and powers of the people's courts, people's procuratorates and public security organs to directly accept criminal cases; Second, the scope of authority of the people's court to hear cases of first instance. The former is to solve the problem of the division of authority of the people's courts, people's procuratorates and public security organs to directly accept criminal cases, which is called filing jurisdiction or functional jurisdiction; The latter is to solve the division of permission to try criminal cases of first instance between people's courts at all levels, people's courts at the same level, ordinary people's courts and special people's courts, which is called trial jurisdiction. Trial jurisdiction is divided into three categories: hierarchical jurisdiction, regional jurisdiction, designated jurisdiction and special jurisdiction.
Jurisdiction in foreign criminal proceedings usually refers to trial jurisdiction, which is generally divided into hierarchical jurisdiction, regional jurisdiction and special jurisdiction.
The parties to criminal proceedings include victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil proceedings.
Who are the participants in criminal proceedings? Who are the participants in criminal proceedings? It refers to a person who enjoys certain litigation rights and undertakes certain litigation obligations except those handled by specialized agencies according to their functions and powers. Participants in litigation are divided into parties and other participants in litigation. According to Article 82 of the Criminal Procedure Law, "participants in litigation" refer to parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators.
Litigation rights and obligations of litigation participants: the right to sue investigators, prosecutors and judges for infringing citizens' legal litigation rights and personal insults; Have the right to know some information about the litigation obligations that judicial personnel must bear; Have the right to use the spoken and written languages of their own nationalities in litigation (except translators); Have the obligation to abide by the provisions of various laws and obey the command of investigators and judges.
Who are the participants in criminal proceedings? Participants in criminal proceedings refer to parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators;
The law provides that:
Article 106 of the Criminal Procedure Law The meanings of the following terms in this Law are:
(1) "Investigation" refers to the special investigation and relevant compulsory measures conducted by public security organs and people's procuratorates in the process of handling cases according to law;
(2) "Parties" refer to victims, private prosecutors, criminal suspects, defendants, plaintiffs and defendants in incidental civil actions;
(3) "Legal representative" refers to the parents, adoptive parents and guardians of the client and the representatives of the organs and organizations responsible for protection;
(4) "Participants in litigation" refers to the parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators;
"Agent ad litem" refers to the victim of a public prosecution case and his legal representative or near relative, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person entrusted by the party involved in an incidental civil litigation and his legal representative to participate in the litigation on his behalf;
(6) "Close relatives" refer to husbands, wives, fathers, mothers, sons, daughters, brothers and sisters.
A participant in criminal proceedings refers to a person who enjoys certain litigation rights and undertakes certain litigation obligations, except those handled by a specialized agency ex officio. Participants in litigation are divided into parties and other participants in litigation. According to Article 82 of the Criminal Procedure Law, participants in litigation refer to parties, legal representatives, agents ad litem, defenders, witnesses, expert witnesses and translators. 1. The legal representative refers to the person who is responsible for protecting the client according to law. According to Article 82 of the Criminal Procedure Law, legal representatives include parents, adoptive parents, guardians and representatives of organs and organizations responsible for protection. The legal representative's task is to protect the legitimate rights and interests of the client, so he should be a natural person with full capacity. If there are multiple legal representatives, only one person can participate in the litigation. The legal representative and the client enjoy the same litigation rights and undertake corresponding obligations, but they cannot replace the statements or obligations related to personal freedom. 2. An agent ad litem is a person entrusted by the principal to participate in the litigation. Paragraph 5 of Article 82 of the Criminal Procedure Law stipulates that an agent ad litem refers to the victim of a public prosecution case and his legal representative or near relative, the person entrusted by the private prosecutor and his legal representative in a private prosecution case to participate in the litigation on his behalf, and the person who participates in the litigation on his behalf by the party involved in the incidental civil litigation and his legal representative. 3. Defender refers to the litigant participants who are entrusted by the criminal suspect or defendant and their legal representatives or appointed by the people's court to defend the legitimate rights and interests of the criminal suspect or defendant. 4. Witnesses refer to the participants in the proceedings who, except the parties, know the case and testify to the public security and judicial organs. The condition of a witness is that he knows the case or the situation related to the case, can distinguish right from wrong and express it correctly. A person who is physically or mentally defective or young, who cannot distinguish right from wrong or express correctly, shall not be a witness. The witness must be a natural person. 5. Expert refers to the litigant participants who are appointed or hired by the public security and judicial organs and use their professional knowledge and skills to identify and judge the specialized issues in the case. An appraiser should meet the following requirements: first, he should have special knowledge or skills. Secondly, the appraiser should be appointed or hired by the public security and judicial organs. Thirdly, the appraiser should have no interest in this case or the parties to this case, otherwise he should withdraw. 6. Translators refer to the participants in the proceedings who are appointed or hired by the public security and judicial organs to translate languages (including deaf-mute gestures and Braille) during the proceedings. Translators should be appointed or hired by public security and judicial organs, and they should have no interest in the case or the parties to the case, otherwise they should be avoided.