What needs to be explained here is: Regarding the central issue of judicial review, the issues to be resolved by judicial review are limited to whether the case meets the conditions of not filing a case, not withdrawing the case, or not prosecuting, and the court review only revolves around this center , rather than focusing on all the facts and evidence of the case.
(2) Improve the rights of victims and their authorized agents to state their opinions during the prosecution stage.
Compared with the original Criminal Procedure Law, the new Criminal Procedure Law adds the following content to Article 139: “When reviewing a case, the People’s Procuratorate shall question the criminal suspect and listen to the opinions of the victim and the person entrusted by the victim. “The addition of this provision in the legislation not only improves the status of the victim in the review and prosecution stage, but also enhances the transparency of the review and prosecution. Moreover, it must be made a legal and necessary procedure and cannot be arbitrarily simplified or eliminated. However, judging from the current judicial practice, there are still some problems in how to protect the rights of victims and their attorneys to state their opinions, which need to be improved.
No protection, no rights. How do victims and their attorneys present their opinions to the prosecutorial agency? Without clear and specific procedures, it will be difficult to realize the intention of adding this provision in legislation. "From abroad, under the influence of the international trend of strengthening the protection of human rights of criminal victims, many countries have gradually expanded the participation and influence of victims in criminal proceedings in order to ensure the realization of victims' rights. During the review and prosecution stage, some countries also listen to the opinions of victims Procedures are generally clearly stipulated. For example, in the UK, prosecution is carried out in the form of defense. The victim has the right to state his opinions and attitudes about the evidence and case handling to the pre-trial judge in the pre-trial court (the pre-trial judge has the right to decide whether the case is suitable for prosecution). Conditions). "In the United States, victims' participation in litigation is mainly in the form of "victim statements." Under the U.S. Federal Victim and Witness Protection Act (1982), prosecutors are required to consult with victims and their families in order to receive input into the handling of federal criminal cases. The scope of negotiation includes: (1) withdrawal of prosecution; (2) release of defendant; (3) plea bargain; (4) pretrial change procedures, etc. In addition, in plea bargaining, prosecutors should solicit the opinions of the victim in their sentencing recommendations. "The prosecutor's report of findings to the federal court must include a 'victim's victim status statement,' which describes the crime and its consequences from the victim's perspective. Restrictions on 'victim status statements' in this Act , the purpose is to prevent the court from trying the criminal without seeing the victim or hearing the victim's statement. The victim's statement can make the judge fully aware of the economic, social, physical and mental damage suffered by the victim as a result of the crime. This allows the judge to comprehensively consider the circumstances of the defendant, the victim and his or her family members when sentencing.
Although the law and relevant judicial interpretations regard hearing the opinions of the victim and his or her client as a necessary procedure for reviewing prosecutions, the prosecutor's office does not require hearings. There are no clear regulations on the methods, procedures and consequences of the opinions of victims and their attorneys. Even in judicial practice, different prosecutors, and even different prosecutors within the same prosecutorial agency, have different practices, and some places simply omit them.
In order to achieve the purpose of establishing this procedure in legislation, strengthen the protection of the human rights of victims, and ensure the fairness of the criminal procedure law, we can learn from some foreign practices to further improve the hearing of victims and their agents during the review and prosecution stage. Human opinion programming.
First, it should be clear that the procuratorial organs should fulfill their obligation to inform victims of their right to state their opinions. Secondly, in the design of specific procedures for hearing opinions, it should be stipulated that the lawyer entrusted by the victim has the right to be present when stating opinions to the prosecutorial agency; the contents of the victim’s statement should include the facts of the case whether to prosecute, and attitudes and opinions on conviction and sentencing; for these content, the procuratorate shall prepare a transcript and submit it to the court. Finally, the consequences of the procuratorial organ failing to fulfill its reporting obligations, failing to listen to the victim’s opinions, or failing to prepare a transcript and submit it to the court should be clarified. For example, the judge can ask the prosecutor to supplement these materials again, and the prosecutorial agency should make the supplement within three days from the date of receiving the notice.
(3) Improve the victim’s right to restrict judgment and give the victim the right to appeal against the legally effective judgment of the first instance court.
According to the provisions of the Criminal Procedure Law, criminal defendants, their legal representatives or defenders, and close relatives have the right to appeal if they are dissatisfied with the legally effective judgment of the first instance court. If the defendant does not appeal and the procuratorate does not protest, even if the original verdict is a felony and the sentencing is obviously wrong, the criminal victim has no right to appeal and can only apply to the procuratorate for a protest. However, whether this protest request can be accepted depends on the prosecutor's office. In contrast, the law gives parties the right to litigate against the court's first-instance judgment. The victim is obviously smaller than the defendant, which is unfair to criminal victims. This unfairness of litigation rights is contrary to the requirements of a country governed by the rule of law, and affects criminal victims' efforts to safeguard their legitimate rights and interests. Therefore, it is important to give victims the right to appeal.
Give victims the right to appeal. The main reasons are as follows: First, granting the victim the right to appeal is an inevitable requirement for him to be a litigant. “All litigation participants should fully participate in the litigation, and the most important guarantee for full participation in the litigation is that the procedural participants can obtain a meaningful opportunity to participate in the retrial process of the same case through complaints or appeals.” Second, the right to apply for protest is limited of. The current Criminal Procedure Law only stipulates that victims only have the right to apply for protest, and whether to protest is entirely decided by the procuratorate. However, there are no clear provisions on the conditions or standards for the procuratorate to accept criminal victim's protest applications. Therefore, in criminal justice practice, even if a criminal victim believes that the sentence imposed by the court is too light, this is indeed the case, and the procuratorate will often not protest. One reason is that the nature and responsibilities of the procuratorate require that its protests must be based on the need to safeguard the interests of the country and society. The second reason is that the statutory sentencing standards established in my country's criminal law are somewhat too broad. The uncertainty words stipulated in many laws are very flexible, such as "the circumstances are minor," "the circumstances are serious," and "the circumstances are particularly serious." The judge has great discretion. The statutory crime and punishment stipulated in our country's criminal law does not really adopt the "statutory crime and punishment principle" implemented in Western countries. In fact, it implements the "principle of conviction and sentencing according to law." Even if the sentence is inappropriate, the procuratorate often refuses the victim to apply for a protest, and this right enjoyed by the victim is actually a piece of paper with little practical value. Third, stipulating the victim's right to appeal is a practice in many countries around the world. Countries such as France, Canada, and the former Soviet Union grant victims the right to appeal in different forms. The Supreme Court of my country pointed out in its reply on March 40, 1958 that victims of public prosecution cases who are dissatisfied with the judgment can appeal as victims. This explanation affirms the victim's right to appeal.
In addition, in specific litigation procedures, the victim’s attorney must have the same responsibilities, rights and obligations as the criminal suspect and defendant’s defender; after the court debate, the victim should also The right to make a final statement has the opportunity to have the final influence on the upcoming judgment; during the penalty execution stage, judicial organs should listen to the opinions of the victim when deciding to execute the criminal outside prison, commute the sentence, or parole.
There is no doubt that today’s recognition of the independence and importance of victims’ rights challenges the traditional litigation theory that centers on the defendant and the state, and also impacts the litigation model built on this basis. Therefore, a new litigation concept that emphasizes the coordinated coexistence of the interests of the defendant, the interests of the victim, the interests of the country and the interests of society has gradually been accepted by people.
Correspondingly, revolutionary changes have also taken place in the litigation models of some countries (of course this change is limited) (Note: Zuo Weimin and Xie Youping: Synchrony and Gap: Looking at China’s Criminal Procedure System from the Perspective of International Standards, " Journal of Political Science and Law, Issue 1997, Issue 1). In our country, truly establishing the victim's party status will also lead to some changes in our country's existing criminal litigation structure. For example, truly giving victims the right to sue and appeal will change the legal relationship of litigation, change the jurisdiction of cases, divide the prosecution power of the People's Procuratorate, and to a certain extent, damage the legitimate rights and interests of criminal suspects and victims (Note: Liu Genju: On Public Prosecution Cases Protection of victims’ rights, legal research), etc. However, as individual interests are recognized and the human rights movement develops, the status of victims continues to improve. Therefore, how to reconstruct a criminal procedure structure that takes into account national interests and personal interests, and balances the rights of victims and the rights of criminal suspects and defendants, is a major topic that needs further exploration.