After the old case was pronounced in the second instance, the Judges Law held a dialogue with Liu Jin, a famous lawyer, on the verdict of this case.
Statutory law:
I notice that you have been paying attention to the case of old Rong Zhi and hold different views. Why?
Liu
：
On the eve of the verdict of the second trial, I was interviewed by Red Star News, questioning that many procedures in the first trial of karoshi cases were illegal, especially the collegiate panel composed of three judges instead of seven judges and jurors was a serious injury, which decided that the verdict of the second trial could only be revoked and sent back for retrial.
In addition, the way the British and old Rong Zhi are * * * with the crime, four cases in four places are * * *. The first-instance judgment of Old Rong Zhi seriously conflicted with the effective judgment of the Franco-British case, which was also prohibited by law. If through the current trial, there is new evidence to prove that the judgment in the case of France and Britain is in fact wrong, it should be corrected through the trial supervision procedure first, instead of ignoring the res judicata of the effective judgment and deliberately creating contradictory judgments.
The Red Star journalist asked me to predict that I can only judge according to the law. I said that the second instance of the labor case was revoked according to law, and it was best to report it to the Hefei Intermediate People's Court designated by the Supreme Law for retrial.
Statutory law:
Now that the results of the second trial of "Old Rong Zhi Case" have come out, what do you think?
Liu
：
After the verdict in the second instance, I was very depressed. It's not that I failed to predict my own inevitability, but because I think the road to the rule of law is more distant.
I have been paying attention to the second trial of labor cases, and I noticed that "the organization of trial in the first instance constitutes illegality" is the first defense point of the second trial defender. I think they are very keen, and the first stick hit the "seven inches" of the first trial. This defect in the first example is only lice on the bald man's head-obvious. I even think that defenders only need to express their opinions and point out the legal basis, and there is no need to elaborate at all.
The old defender of the second instance used more than 2,200 words to discuss, and also listed four cases in which the seven-member collegiate panel was revoked by the second instance and sent back for retrial. I still feel a little redundant.
Don't want the defender's efforts in vain, the second instance referee still adopted the prosecution's opinion, no matter how unreasonable their opinion; Naturally rejected the defense, no matter how well-founded.
Statutory law:
During the trial of the second instance, the prosecution and the defense had a fierce confrontation on the procedural and substantive issues of the first instance. With the verdict of the second instance, the court also gave a judgment. Can you talk about your views on the procedure of first instance?
Liu
：
I'm not going to say it either. Let's talk about that bruise. The defense opinion of the second instance is that "the trial organization of the first instance is illegal, and the original judgment should be revoked and sent back for retrial". I think that although the ruling of the second instance does not reflect the defender's defense opinion of more than 2,200 words about the defense points, the summarized points are generally acceptable, and the judgment of the second instance is omitted. I use brackets to make up for it:
"The defender suggested that this case is a case with great social influence (it may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment, death penalty), and a collegial panel of 7 people (3 judges and 4 jurors) was not formed in the first instance according to law. Violation of Articles 1 5 and 16 of the People's Jury Law, which came into effect on March138, and Article 2 13 of the Judicial Interpretation of the Criminal Procedure Law, which belongs to the case that the trial organization stipulated in Item 4 of Article 238 of the Criminal Procedure Law constitutes an illegal act.
I have to make it clear that Article 238 of the Criminal Procedure Law only has 1, and it should not be called 1 when quoted. There is no 1 in the defense opinion of the second instance, which should be caused by the error of the second instance ruling.
Although this defense reason is briefly summarized, the major premise, minor premise and conclusion are all summarized and considered appropriate. A brief analysis is as follows:
Major premise 1: If the trial organization of the first instance constitutes an offence, the second instance shall rule to revoke the original judgment and send it back for retrial (Article 238 of the Criminal Procedure Law).
Major premise 2: Local courts at all levels try criminal cases of first instance that may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment or death penalty, and have great social impact, and are conducted by a collegiate panel composed of seven judges and people's jurors (Article 2 13 of the Interpretation of the Criminal Procedure Law).
Major premise 3: Courts at all levels try criminal cases of first instance that may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment or death penalty, and have great social impact, and are conducted by a collegiate panel composed of 7 judges and 4 people's jurors. (Articles 15 and 16 of the People's Jury Law)
Minor premise: Nanchang Intermediate People's Court's trial of Lao is a criminal case of first instance that may be sentenced to 10 years' imprisonment, life imprisonment or death penalty, which has great social impact, but it is applicable to form a collegiate bench with three judges (the facts of the case procedure).
Conclusion: The organization of the trial in the first instance of Old Rong Zhi case is illegal, and the second instance should rule to revoke the original judgment and send it back for retrial. (defense viewpoint of second instance procedure)
It can be seen that the arguments in the defense opinion of the second instance are logically rigorous, and I think the defense opinion is as simple as summarized in the ruling of the second instance. As mentioned above, the defense opinions of the second instance are far from satisfied with this, citing the Interpretation, Understanding and Application of the Criminal Procedure Law of People's Republic of China (PRC) compiled by the Supreme Court, and strengthening the relationship between Article 2 13 of the Interpretation of the Criminal Procedure Law and Articles 15 and 16 of the People's Jury Law: "According to the research, this paper For cases of first instance that may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment or death penalty, a collegial panel of seven people should be formed, and conditions with great social influence should be met at the same time, thus greatly strengthening its rationality;
In addition, as mentioned above, the defense opinion of the second instance also listed four cases in which a seven-member collegiate panel was not used in the first instance and was sent back for retrial after being revoked by the second instance, which greatly strengthened the argument discussed.
Statutory law:
How to treat the prosecution's opinion in the second instance?
Liu
：
The ruling of the second instance summed up the opinions of the prosecutor in court more fully: "
The prosecutor in court thinks: (1) According to the provisions of the Criminal Procedure Law, the intermediate people's court may try cases of first instance by a collegiate panel composed of three judges or seven judges and people's jurors. The two modes of collegiate bench are parallel, and the people's court can decide which mode to adopt according to its functions and powers. According to the circumstances of this case, the court of first instance decided that the trial should be conducted by a collegiate panel of three judges according to law, which is in line with the provisions of the Criminal Procedure Law. (2) The Criminal Procedure Law is the basic criminal law and the People's Jury Law is the special law. The provisions of the People's Jury Law that a collegial panel of seven people should be formed cannot be used to interpret the provisions of the Criminal Procedure Law. According to the provisions of the Criminal Procedure Law, the court of first instance may choose three judges to form a collegial panel for trial, and the relevant provisions of the People's Jury Law may not apply. "
However, the ruling of the second instance missed an important opinion of the prosecution, that is, "this case does not belong to a case with great social influence at all, and the prerequisite that the defender said that the first instance should be composed of seven judges and jurors does not exist."
In my opinion, this is not the negligence of the second-instance referee, but deliberate, because this opinion is too contrary to common sense and common sense, and it is not good-looking to write on the judgment documents that must be made public. Imagine that almost all related topics in the case of Old Rong Zhi made headlines from the arrest, transfer to prosecution, trial in first instance, verdict in first instance and trial in second instance, which set off a wave of public opinion climax. This is not enough to prove that the case has a "significant social impact"? !
In addition, judging from the verdict of the first instance in this case, Rong Zhi Sr. was charged with three felonies of intentional homicide, robbery and kidnapping, and was mainly responsible for seven lives. Finally, three death sentences were sentenced, and one death sentence was executed together. Such a serious criminal offence is rare in recent years. This case does not belong to a case with great social influence. What other cases can be counted? !
Of course, this also reminds the relevant departments that the term "significant social impact" has changed from a common life term to a legal concept, which should be scientifically defined through legislation or interpretation power, rather than being left to judicial interpretation. However, no matter how to interpret it in the relevant norms in the future, I am afraid that the case of Old Rong Zhi belongs to the category of "cases with great social impact".
The prosecutor refuted the defense opinion in court and gave two reasons. The first reason (1) is expounded from the specification, and the second reason is expounded from the jurisprudence. As the reason (1) was adopted by the court of second instance, it is discussed in the judgment of our court, and only reason (2) is commented here.
The procuratorial opinion says that "the criminal procedure law is the basic criminal law and the people's jury law is the special law", but the basic law and the special law are not corresponding concepts, and the special law corresponds to the general law. If the "basic law" here is a mistake of the general law, then the applicable rule should be "the special law is superior to the general law", that is, the people's jury law takes precedence, which is just the opposite of the prosecutor's point of view; If the "basic law" here is a mistake of the "basic law" formulated by the National People's Congress, then it should correspond to the "general law (or non-basic law)" formulated by the NPC Standing Committee, and the Constitution stipulates that the NPC Standing Committee has the right to interpret the Constitution and laws. It can be seen that it is not against jurisprudence to explain the application of the basic law formulated by the people of the whole country with the general law formulated by the NPC Standing Committee.
Specifically, the basic law of the Criminal Procedure Law stipulates that "the intermediate people's court may try a case of first instance by a collegiate panel composed of three judges or seven judges and people's jurors", while the general provisions of the People's Jury Law further require that "the intermediate people's court shall try a case of first instance. If it is a case of first instance that may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment or death penalty, and it meets the conditions of great social influence, it shall be conducted by three judges and the people."
Statutory law:
The court of second instance held that the choice of the sole collegiate bench by the court of first instance was in line with the regulations. what do you think?
Liu
：
The reason for the second instance ruling to reject this defense opinion is this: "
We believe that according to the provisions of Article 183 of the Criminal Procedure Law of People's Republic of China (PRC), the collegiate bench of the people's court in trying criminal cases of first instance is divided into two types: one is a single collegiate bench composed of judges, and the other is a mixed collegiate bench composed of judges and people's jurors. The choice of mode is decided by the people's court according to its functions and powers. In this case, the court of first instance chose the sole collegial panel, which is in line with the provisions of the Criminal Procedure Law. Therefore, the above defense opinions of the defenders are not adopted.
"
The reason for the judgment of the second instance is the same as that of the prosecutor in court (1)-"According to the provisions of the Criminal Procedure Law, the intermediate people's court may be composed of three judges or seven judges and people's jurors to try the case of first instance. The two modes of collegiate bench are parallel, and the people's court can decide which mode to adopt according to its functions and powers. " The two are in the same strain, which can be regarded as adopting procuratorial opinions and denying defense opinions in court.
Article 183 of the Criminal Procedure Law cited in the reasons for the judgment is long, and the relevant provisions of this case are: "The basic people's court and the intermediate people's court shall try a case of first instance by a collegiate panel composed of three judges or three or seven judges and people's jurors." This provision is very general in principle. In criminal cases of first instance tried by the Intermediate People's Court, under what circumstances should "collegiate bench composed of three judges", "collegiate bench composed of three judges" and "collegiate bench composed of seven judges" be applied. There is no further clarification.
In China, the task of how to further clarify the overly principled provisions of the criminal law is entrusted to the criminal judicial interpretation, and the National People's Congress Standing Committee (NPCSC) has also given the highest judicial organ the power to make a universally binding interpretation through legislation, so that the judicial interpretation can be directly used as the legal basis for judging cases. This is common sense in legal theory and judicial practice, and I believe that the judges of the court of second instance and the collegial panel of Laos case are also fully aware of this.
Article 2 13 of the Interpretation of the Criminal Procedure Law of the Supreme Court further clarifies that the basic people's courts, intermediate people's courts and higher people's courts try criminal cases of first instance that may be sentenced to fixed-term imprisonment of 10 years or more, life imprisonment or death penalty and have great social impact, and are composed of seven judges and people's jurors. Since the judicial interpretation clearly stated that "such" specific cases "should be conducted by a collegiate panel composed of seven judges and people's jurors", it is a clear requirement of the law to form a collegiate panel of seven people to hear such cases, which should be strictly enforced. Where can the court choose a "single collegiate bench"? !
Furthermore, the reasons for the ruling should respond to the defense opinions in a targeted manner. The defense opinion quoted Articles 15, 16 of the People's Jury Law, Article 2 13 of the Judicial Interpretation of the Criminal Procedure Law, and Article 238, Item 4 of the Criminal Procedure Law, indicating that it is illegal to form a collegial panel of three judges in the first instance of labor cases. If the ruling of the second instance is not adopted, it should fully respond whether the defense opinion is based on procedural facts or procedural laws.
Statutory law:
When will the old Rong Zhi's death sentence take effect? How to review the Supreme Law?
Liu
：
After the Higher People's Court of Jiangxi Province makes a ruling to uphold the death sentence of first instance, it shall report the criminal ruling together with all the case files to the Supreme People's Court for review, and the death sentences of first instance and second instance in this case will take effect after the criminal ruling is approved. If it is not approved, the Supreme Court may decide to send it back for retrial or directly commute the death sentence or life imprisonment.
According to the provisions of the Criminal Procedure Law, the Supreme Court should be composed of a collegiate panel of three judges to review death penalty cases, and interrogation of defendants is a necessary procedure; If a defense lawyer makes a request, he shall listen to the opinions of the defense lawyer. At present, lawyers' right to defense in the review stage of death penalty has been more and more guaranteed, and problems such as consulting case materials, marking papers, meeting and submitting defense opinions have been basically solved, and they are more and more satisfied with asking law enforcement judges to listen to lawyers' opinions face to face.
We should also know that after the criminal ruling approving the death penalty is served, there is still a process of executing the death penalty, and how long it takes is not stipulated by law. However, it is clear that the court of first instance must execute the death penalty within 7 days after receiving the execution order issued by the president of the Supreme Court.