Criminal defense consultation day
Defense is a basic right of criminal defendants. As a right, criminal defendants can defend themselves and have the right to hire defenders to defend them. With the expansion of defenders' participation in criminal proceedings, their role in criminal proceedings has become increasingly prominent. Defenders can not only defend criminal defendants in criminal trials, but also defend criminal defendants in the prosecution stage and even in the investigation stage.
The prosecutor sought legal help. The continuous expansion of defenders' participation in criminal proceedings was once considered as an important reason for the "milestone" progress in the revision of the Criminal Procedure Law from 65438 to 0996.
The expanding scope of defenders' participation in criminal proceedings is of great positive significance for strengthening the role of defenders in criminal proceedings and safeguarding the legitimate rights and interests of criminal defendants. However, the expansion of defenders' participation in criminal proceedings cannot fully explain the development and changes in criminal defense system since modern times, because besides the expansion of participation, the change of criminal defenders' responsibilities is also an important development that cannot be ignored in the defense system.
In the traditional defense theory and practice, the defender's responsibility is to put forward materials and opinions to prove the innocence, lightness or reduction or exemption of criminal responsibility of criminal suspects and defendants according to facts and laws, and to safeguard the legitimate rights and interests of criminal suspects and defendants. According to this explanation, criminal defense is only substantive in nature, that is, it is only a refutation and defense activity aimed at problems related to criminal entities. Whether it is to provide materials to prove innocence, to reduce or exempt criminal suspects and defendants from criminal responsibility, or to put forward opinions, criminal defense is only carried out around the legal issues of criminal entities. However, in addition to this substantive criminal defense, there is another criminal defense, that is, procedural criminal defense. The so-called procedural criminal defense refers to: in criminal defense, on the grounds that the investigation, prosecution and trial activities of the relevant departments are illegal, the opinions that the criminal suspect and defendant are innocent, the crime is light or should not be investigated for criminal responsibility are put forward, and the legal proceedings that have not been carried out according to law are required to be supplemented or re-conducted, and the illegally obtained evidence is excluded. , so as to defend from the procedural aspects.
Obviously, procedural defense should be a typical criminal defense. However, according to the previous explanation of criminal defense, this kind of defense based on criminal procedure rules is generally not recognized. The criminal procedure law only stipulates that the defense is based on facts and laws, although procedural facts and laws are not explicitly excluded. However, people understand this as "facts" here refers to relevant facts and evidence in criminal cases; And "law" only refers to criminal substantive law. Judicial practice also shows the recognition of this understanding. Therefore, procedural defense is just a kind of defense that is basically ineffective in judicial practice.
Procedural defense should be regarded as a typical criminal defense method, mainly because:
First of all, procedural defense is the broader foundation of criminal defense. Facts show that the substantive defense is based on the fact that there is a criminal entity error in the investigation and judicial organs if it wants to have an effective impact in judicial practice. However, the universality of this premise is unrealistic. In judicial practice, from investigation, prosecution to trial, the public security and judicial organs make mistakes in criminal entities and conduct criminal investigations on innocent people or other people who should not be investigated for criminal responsibility. Although it happens from time to time, it is not universal. Therefore, a single substantive defense model is in danger of making criminal defense generally suspect. On the premise of only attaching importance to substantive defense, people often emphasize the importance of defense from the perspective of preventing possible substantive mistakes. However, preventing and correcting "possible" but not common substantive mistakes in reality, as the basis of the universal necessity of criminal defense, gives people the impression that the foundation is not solid enough and the importance of defense is easily doubted. When the public security and judicial organs think that there is no substantive error in the case (this is a common practice), the defense can no longer be taken seriously. Even defense lawyers often think that the necessity of defense is very suspicious when they think that there is no substantive error in the case, even though there are cases where public security and judicial organs violate legal procedures. Therefore, by adding procedural defense, defense can not only be aimed at the substantive facts and laws that are beneficial to the defendant in the case, but also at the acts that violate legal procedures, which will make the widespread existence of criminal defense have a more solid foundation.
Secondly, the existence of procedural defense is helpful to standardize the behavior of investigation and judicial departments and prevent, contain and reduce their violations of procedural rules. Judicial practice shows that the subject who violates the procedural rules is often the organ of power in criminal proceedings. Although the relevant laws of our country strictly prohibit this and set up a mutual supervision and restriction mechanism to prevent and correct violations of litigation rules, the actual effect is not ideal. Violations of procedural rules are not uncommon, especially in the investigation stage. This has a lot to do with the fact that violations of procedural rules are difficult to be exposed, or it is difficult to be taken seriously after being exposed. By using the procedural defense method, the defendant can not only expose the procedural violations more fully, but also demand correction more urgently.
Third, procedural defense helps to further strengthen the status of criminal proceedings and safeguard procedural dignity. The dignity of the proceedings depends on people's respect and compliance. The existence of procedural criminal defense makes the behaviors and phenomena that violate the procedure become the object of criminal defense, which is undoubtedly of positive significance for promoting people to pay attention to and abide by the procedure. Criminal procedural defense, as a completely different defense from criminal substantive defense, is of direct and positive significance for correcting the phenomenon and concept of "emphasizing entity over procedure", realizing the value of protecting the legitimate rights and interests of the parties and standardizing the behavior of criminal litigation organs.
Procedural defense in criminal defense
Of course, although the procedural criminal defense method has been often adopted by the defense in reality, its function is not obvious. The reason is that the realization of the above-mentioned significance of procedural defense depends on the improvement of relevant laws. Only when the criminal procedure law fully affirms and explicitly guarantees this, can its series of meanings be realized. However, China's current criminal procedure law and related regulations have not yet clearly and fully affirmed this. For example, the exclusion of illegal evidence is limited to illegal verbal evidence, excluding illegal physical evidence, which makes the procedural defense against illegal evidence collection almost meaningless.
Criminal defense procedure
Therefore, the extensive and effective development of procedural defense depends on the full affirmation of criminal procedural rules by law, making it as inviolable as criminal substantive law, not just a "soft law" that can be observed and violated. Secondly, we should fully realize the positive role of defense in preventing and correcting behaviors and phenomena that violate procedural rules, rather than relying solely on "mutual supervision and mutual restraint" between authorities. In this sense, the positive significance of this change in criminal defense mode is very important and should be paid full attention to by theoretical circles and legislative and judicial practice circles.