Fan Jie? Former post prosecutor, consultant of criminal business Committee of Sichuan Discovery Law Firm.
In the article "Analysis of the Trial Mode of Criminal Cases in the Second Instance", we analyzed the trial of criminal cases in the second instance from three aspects: the purpose of the defendant's appeal, the function of criminal cases in the second instance, and the difference between trial in the second instance and non-trial, and came to the conclusion that the court of second instance tends not to hold a trial. Therefore, the author makes a further study on the difference between trial in court and trial out of court in judicial practice, and what kind of trial can better achieve the purpose of the parties.
As mentioned above, only the trial in court can satisfy the realization of the function of criminal second instance. Looking at the changes of trial mode of second instance in China's Criminal Procedure Law, we can see that 1979 trial mode of second instance was not held in court, 196 was revised to take trial mode as the main trial mode as the supplement, 20 12 was revised to take trial mode as the main trial mode as the supplement, and 20 18 still kept trial mode. The reason for this change is that the history and lessons of judicature have repeatedly proved that judicial justice-procedural justice and substantive justice-can only be realized by holding a trial, which is the embodiment of human social civilization in the judicial field. Of course, the contradiction between the progress of the system and the lag of the concept leads to the complete judicial concept not being accepted by the people, even individual judicial personnel, which is the main problem at present.
On the one hand, the value of procedure is to ensure the realization of substantive justice, on the other hand, it is its most important value, that is, the independent value of procedural justice: to limit the abuse of judicial power and ensure that the defendant is respected as the subject of litigation. The trial in court ensures the defendant to fully exercise his right to defense, increases the chances of equal confrontation for defendants in a weak position, and gains the possibility of a fair trial. Its procedural value is far greater than the efficiency of judicial practice. In a popular saying, "I have been sentenced for more than ten years, at least allow me to say a few more words." The judiciary should be so tolerant of the defendant.
Whether the hearing can achieve the purpose of the parties depends on how likely it is to change the sentence. Is it possible to change the sentence in court or not? This is not as obvious as theoretical analysis. It is difficult to produce convincing evidence to prove which is more likely, because we do not have a comprehensive grasp of the three data: the proportion of cases tried in court to appeal cases, the revision rate of cases tried in court and the revision rate of cases not tried in court. But according to some scholars' empirical research on individual data, an interesting phenomenon is found, which may have certain reference value. Prosecutors in Zhang Dan take the northeast, northwest and southeast regions of China as the geographical choice, and take 2,229 second-instance cases tried by Tonghua, Xi and Shenzhen Intermediate People's Courts from April 2065 to June 2065,438 as the basic data. Through comprehensive analysis, it is found that the trial of criminal cases in the second instance in the three places is generally low, and the trial rate of Tonghua court (referring to the proportion of trial cases in all appeal cases) is 5.68. In the case of amendment, the case of amendment without court session is obviously higher than that of amendment with court session. (Zhang Dan, Empirical Study on the Trial Scope of Criminal Second Instance Procedure, China Case Law Review 20 18 0 1). From 20 12 to 20 16, the Intermediate People's Court of Z City, D Province * * concluded 2256 criminal cases of second instance, and the number of cases heard in court was 29 1 piece, accounting for only 12.9%. The total number of cases tried by means of marking papers and investigation and interrogation reached 1588, accounting for 70.39%, more than two thirds of the total number of cases. (Tian Yuan, Analysis of the Normalization Phenomenon of Non-trial in Criminal Second Instance and Its Solution —— Taking the Intermediate People's Court of Z City, D Province as the analysis sample, Journal of Shandong University (Philosophy and Social Sciences Edition), No.5, 20 17)
Whether the aforementioned scholars' research necessarily leads to the following conclusions: 1, the trial mode of second instance has been wrongly set by judicial practice; 2. In fact, whether a court session is held or not does not affect the realization of the purpose of the parties (that is, the revision of the sentence)? As far as the first judgment is concerned, many scholars' research has been confirmed. As far as the second judgment is concerned, it is worth further discussion.
Through further analysis of Zhang Wen's statistical data, the author finds that the rate of commutation in court (referring to the proportion of cases commuted after the court session) is significantly higher than that of cases commuted after the court session (referring to the proportion of cases commuted after the court session). Among them, the trial repair rate of Tonghua is 2 1.7%, and the non-trial repair rate is 6.6%; The rate of revision in Shenzhen is 54.3%, and the rate of non-revision is 18.9%. The possibility of changing the sentence after the trial is three times that of not trying it. (Because of the data, it is impossible to analyze the trial revision rate and non-trial revision rate of Xi 'an. )
The above data is convincing. Although it is possible to change the sentence without trial, it is more likely to change the sentence after trial. Of course, in order to further confirm and support the above judgment, more data and a wider range of analysis and statistics are needed. However, this conclusion also reflects the requirements of theoretical analysis and legislation to a certain extent: the trial of second instance can better protect the rights of the defendant and realize the purpose of his appeal. How to give full play to the role of lawyers, change the tendency of the court not to hold a court session, realize the entrusted trial of cases, and safeguard the rights of the parties to a greater extent needs further discussion.
In fact, apart from theory, it is better to realize the purpose of the parties and safeguard their rights. The Supreme People's Court has fully realized this problem, and the Supreme People's Court's "Implementation Opinions on Comprehensively Promoting the Reform of Criminal Procedure System Centered on Trial" clearly requires: "The substantive justice of case adjudication is realized through the procedural justice of court trial. Give full play to the decisive role of trial in ascertaining facts, identifying evidence, guaranteeing the right to appeal, and fair judgment, and ensure that litigation evidence is presented in court, case facts are ascertained in court, defense opinions are published in court, and judgment results are formed in court. " Therefore, to achieve the main purpose of the parties, the best way is to hold a trial.
Although this opinion does not point out whether the second trial should also focus on trial, it is reasonable to hold a trial as a comprehensive review of the second trial. Of course, because there is a big difference between the second trial and the first trial, the first trial conducted a comprehensive court investigation and court debate, and gave the defendant a final statement. There are indeed some cases appealed by the defendant, who has no objection to the facts ascertained in the first instance, but only to the application of the law or sentencing. At this time, no matter from which point of view, there is no need to hold a court session like the first instance. Therefore, the second paragraph of Article 234 of the Criminal Procedure Law stipulates: "If the people's court of second instance decides not to hold a hearing, it shall interrogate the defendant and listen to the opinions of other parties, their defenders and agents ad litem." Of course, what is the meaning of the regulations here? It should be said that there are different opinions. This will be further analyzed below.