Authors: Guo Hengzhong, Xie Qing, Zhong Zhang, Mao Lihua Release date: July 29, 2004 14: 20: 12.
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At present, the construction of criminal pretrial procedure still exists at the level of theoretical research, and there is no systematic theoretical system. How to establish criminal pretrial procedure is not only related to the establishment of due process of law, to the protection of legal rights of criminal suspects and litigants, to the standardization of public, procuratorial and legal powers, but also to the ongoing revision of criminal procedure law and judicial system reform.
First, the pre-trial procedural issues raised
Pre-trial procedure is a concept based on trial. In western countries, it generally refers to the stage from prosecution by prosecutors to trial by judges. Most scholars believe that the pretrial procedure in China should be a broad concept, that is, the "grand pretrial procedure", which includes all stages of filing, investigation, examination and prosecution before the people's court hearing.
For a long time, China's criminal proceedings have focused on punishing and cracking down on crimes. 1996 when the criminal procedure law was revised, the provisions on human rights protection were strengthened to a certain extent, such as strengthening the supervision and restriction of procuratorial organs on investigation activities, canceling the detention review, abolishing the exemption from prosecution system, and greatly advancing the time for lawyers to intervene in litigation. But generally speaking, the protection of the rights of criminal suspects is based on the correct punishment of crimes. In order to change this situation and improve the litigation status of criminal suspects, the value goal of pretrial procedure, that is, the reform of criminal pretrial procedure in China should adhere to the principle of "paying equal attention to punishing crimes and protecting human rights"
Secondly, the issue of compulsory measures.
The reform of compulsory measures is an important content of constructing criminal pretrial procedure in China at present. Judging from the current legislation, the main problems existing in China's compulsory measures system are as follows: First, judicial review is absent, except for a few compulsory measures (arrests) approved by procuratorial organs, the application of a large number of compulsory measures is decided by investigative organs themselves. Second, the compulsory measures system is not complete, such as the compulsory punishment of property and privacy has not been included in the compulsory measures system.
Scholars believe that ensuring the smooth progress of criminal proceedings cannot be the only purpose of compulsory measures, because detention can better achieve this purpose. Another important purpose of coercive measures should be to strengthen the protection of human rights, especially when human rights are enshrined in the Constitution. This needs to be reformed in the following aspects: first, strict legal principles, realization of the justification of compulsory measures, strict control of the application of lien, stipulation of the interval between two summonses, cancellation of residential surveillance and establishment of scientific compulsory measures. The second is to improve the compulsory measures system and realize the hierarchy of compulsory measures, such as bringing the compulsory disposal of things and the right to privacy into the compulsory measures system. The third is to establish an independent detention system and realize the exception of detention measures. The fourth is to establish a bail system to realize the normalization of bail. The fifth is to establish a judicial review mechanism and implement compulsory measures under the rule of law.
On the issue of detention, the outstanding manifestations at present are extended detention and abuse of detention. To solve this "stubborn disease", we can't just rely on self-examination and self-correction. In particular, we should refer to the international standards of preventive detention in criminal proceedings and take countermeasures: first, improve the litigation system, such as safeguarding judicial independence and avoiding improper intervention by party committees and government departments in specific cases; Separate investigation from detention, and hand over the power of detaining pending criminals to neutral judicial administrative organs; Simplify or even cancel the internal examination and approval system of public security and judicial organs. The second is to implement the system design of bail pending trial, supplemented by detention, and make the detention measures exceptional, making it a last resort and fundamentally solving the problem of extended detention. The third is to reform the trial limit, separate the detention period from the handling period, and strictly limit the detention period. The fourth is to establish the procedural judgment mechanism of detention, including the strict establishment of the judicial review mechanism applicable to detention and the objection mechanism of improper detention. The fifth is to establish a procedural sanction mechanism for extended detention, including the exclusion of confession during extended detention and the investigation of legal responsibility for illegal crimes.
Third, reform the investigation system.
In the investigation stage, due to the location of the criminal suspect, his legal rights are most vulnerable to infringement. The constitutional amendment adopted at the Second Session of the Tenth National People's Congress has written "the state respects and protects human rights", "citizens' private property is inviolable" and "the state protects citizens' private property rights and inheritance rights according to law" into the constitution. Therefore, the investigation procedure reform in China should be reformed and improved in accordance with the spirit of the Constitution.
Scholars believe that the investigation procedure in China is more administrative, so they advocate the introduction of litigation mode. On the reform of the procedure of interrogating criminal suspects. Based on the understanding that the procedure of interrogating criminal suspects is the "soft rib" of human rights protection, some scholars believe that it is an inevitable choice to promote the reform of investigation and interrogation procedures, and demand that the scientific and feasibility of the current legal system be carefully examined and examined, and the legal provisions that violate the interrogation law and unduly limit the effect of investigation and interrogation should be actively revised to improve the efficiency of interrogation and maximize the protection of human rights and obtain true confessions.
In the reform of investigation procedure, scholars advocate the introduction of judicial review mechanism in our investigation procedure to realize judicial control of investigation activities. However, scholars at the meeting have different opinions on what kind of judicial review mechanism to introduce, but everyone thinks that the ideal state should be that judges exercise judicial review power.
Fourthly, the role of lawyers in investigation.
Lawyers' participation in the discussion of investigation procedure is the most important part of this seminar. Although the criminal procedure law clearly stipulates that lawyers are involved in investigation, some theoretical problems in judicial practice need to be further improved.
Lawyers' participation in investigation procedures should be clarified and guaranteed in legislation. According to the current law, lawyers in investigation procedures have the status of independent participants in litigation, but they are not defenders yet. Most scholars believe that lawyers in investigation procedures should be defined as defenders, not witness lawyers. Some scholars further pointed out that the narrow defense is limited to the trial stage and should be understood in a broader sense. Although the lawyers in the trial are different from those before the trial, on the whole, both of them undertake the defense function. Therefore, the implementation of the provisions of the Criminal Procedure Law on lawyers' involvement in pretrial procedures should move from formal defense to substantive defense. Some scholars analyze the right of defense from the perspective of anthropology and regard the right of defense as a natural human right. It is clearly pointed out that the exercise of the right of defense is an instinctive reaction of human beings. We should strengthen the defense function in pre-trial procedure from two aspects: introducing judicial review mechanism to reasonably control the investigation right and strengthening the lawyer's defense right, so as to discover the truth and protect human rights.
When talking about the role of lawyers in pre-trial proceedings, some scholars pointed out that in the relationship between the state and individuals, the state should ensure that individuals enjoy certain rights of defense, and individuals have the obligation to maintain state order, but this obligation is limited, that is, the performance of personal obligations does not affect personal dignity. In other words, in the pre-trial procedure, the state should ensure that every citizen, including criminal suspects, pursues the legitimate rights and interests when committing crimes.
Fifth, build a scientific relationship between police and prosecutors.
Scholars generally believe that the relationship between prosecutors and police in China should be reformed to meet the needs of practice and realize the scientific and rational litigation. However, the delegates were divided on how to reform the relationship between the police and prosecutors in China. Some delegates believe that the "prosecutorial guidance investigation" being implemented in China's current judicial practice cannot fundamentally solve the relationship between police and prosecutors in China. The fundamental way out of the relationship between police and procuratorate in China lies in the integration of police and procuratorate, emphasizing the control of procuratorial organs' exercise of public prosecution power over public security organs' exercise of investigation power and introducing judicial review mechanism. Some scholars believe that the reform direction of the relationship between prosecutors and police in China should be to strengthen the restrictive factors in the relationship between prosecutors and police. Some representatives explicitly oppose the integration of police and procuratorate, and believe that the problems existing in the current pretrial procedure, such as extorting confessions by torture, are caused by traditional concepts, not by processes. Therefore, we do not advocate talking about reform easily without finding the crux of the problem. Some scholars believe that the integration of police and procuratorate is more about working relationship, while in the past it focused on supervision and restriction, which is flawed. Therefore, we should emphasize cooperation and strengthen cooperation between police and prosecutors.
Some scholars have pointed out that no matter which model is adopted to build a scientific relationship between police and prosecution, we should consider the same goal: how to improve the quality and efficiency of pre-trial procedures and serve the subsequent trials. Some people think that to build a reasonable relationship between police and prosecutors, we should pay attention to the concepts and principles of criminal proceedings, be realistic and innovative, and consider introducing legal control mechanism and responsibility restriction mechanism on the basis of national conditions.
Sixth, the issue of prosecutorial discretion.
Regarding the orientation of the right of public prosecution, according to the actual situation in China, some scholars believe that the public prosecution system in China should implement the prosecution mode. On this basis, the reform of pre-trial review should also adapt to it, follow the reform direction of overcoming "pre-trial judgment" and realizing substantive trial, weaken the participation of judges in prosecution activities, and move towards a pure prosecution mode.
Some scholars pointed out that 1996 Criminal Procedure Law abolished the system of exemption from prosecution and gave the procuratorial organ no right to appeal. Judging from the current situation of the exercise of procuratorial discretion in China, due to the influence of many factors such as artificially limiting the rate of non-prosecution, compared with the system of exemption from prosecution, the proportion of procuratorial organs applying discretion to apply non-prosecution is obviously low, which hinders the full implementation of legislative spirit and related criminal policies.
In view of the problems existing in the exercise of prosecutorial discretion in judicial practice, scholars pay more attention to how to effectively exercise and standardize prosecutorial discretion. Most scholars believe that it is a natural trend for China to greatly expand procuratorial discretion in the future, that is, to expand the scope of procuratorial discretion from the perspective of the spirit of cheap prosecution, the spirit of litigation diversion and the saving of judicial resources. Some scholars hold the opposite view that some prosecutors exercise their discretion improperly and abuse it, which leads to unfair law enforcement and social contradictions. Therefore, at present, we should focus on how to regulate and restrict the use of discretion to prevent its abuse and misuse, rather than expanding its scope.
Source: Legal Daily