However, no matter from the theory of crime constitution, illegal procedure, unclear facts and insufficient evidence, lawyers can't put aside the facts, let alone ignore the importance of law.
The common legal basis of innocence defense is:
First, the principle of legality.
Article 3 of the Criminal Law: Crimes that are expressly stipulated by law shall be convicted and punished according to law; If the law does not clearly stipulate that it is a criminal act, it shall not be convicted and punished.
The basic meaning of the principle of a legally prescribed punishment for a crime is that there is no explicit stipulation that it is not a crime, and there is no explicit stipulation that it is not punished. The principle of a legally prescribed punishment for a crime is not only a "magna carta for criminals" but also a "magna carta for good citizens".
Second, the principle of presumption of innocence.
Article 12 of the Criminal Procedure Law: No one shall be found guilty without a judgment by the people's court according to law.
The principle of presumption of innocence means that anyone is innocent before being declared guilty by the court, and the court is the only legal judge whether the actor constitutes a crime.
Third, the principle of excluding illegal evidence.
Article 43 of the Criminal Procedure Law: Judges, prosecutors and investigators must collect all kinds of evidence that can prove the guilt or innocence of criminal suspects and defendants and the seriousness of the crime in accordance with legal procedures. It is strictly forbidden to extort confessions by torture and collect evidence by threats, enticements, deception or other illegal methods. ……
"the Supreme People's Court on implementation
Article 11 of the Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice on Several Issues Concerning the Exclusion of Illegal Evidence in Handling Criminal Cases: If the public prosecutor cannot provide evidence to prove the legality of the defendant's pre-trial confession, or the evidence provided is not true or sufficient, the confession cannot be used as the basis for finalizing the case; Article 12 If the people's court of first instance refuses to examine the opinion put forward by the defendant and his defenders that the defendant's pre-trial confession was illegally obtained and takes the defendant's pre-trial confession as the final basis, the people's court of second instance shall examine the legality of the defendant's pre-trial confession. If the public prosecutor does not provide evidence to prove it, or the evidence provided is unreliable and insufficient, the defendant's confession cannot be used as the fundamental evidence of illegal words.
As long as it is confirmed that verbal evidence was obtained by illegal means such as extorting a confession by torture, it should be absolutely excluded and will not be used as the basis for finalizing the case. Once the confession of the "king of evidence" is excluded, or the important witness testimony and the victim's statement are not taken as the final basis, the prosecution's evidence system will be greatly impacted, leading to no doubt. It should be noted that documentary evidence and physical evidence obtained by illegal means are conditionally excluded, not absolutely excluded.
Fourth, the standard of proof in criminal cases.
Article 162 of the Criminal Procedure Law: … Based on the ascertained facts, evidence and relevant laws and regulations, the following judgments are made: (1) If the facts of the case are clear, the evidence is true and sufficient, and the defendant is found guilty according to law, a guilty judgment shall be made; (2) If the defendant is found innocent according to law, a verdict of innocence shall be made; (3) If the defendant cannot be found guilty due to insufficient evidence, a verdict of acquittal shall be made because the accused crime cannot be established due to insufficient evidence.
The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice "Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases" Article 5 In handling death penalty cases, the defendant's criminal facts must be true and sufficient.
True and sufficient evidence means:
(1) There is evidence to prove the fact of conviction and sentencing;
(2) The evidence of each final judgment has been verified by legal procedures;
(3) There is no contradiction between evidence and evidence or between evidence and facts of the case, or the contradiction can be reasonably eliminated;
(4) In the same criminal case, the position and role of the defendant have been ascertained;
(5) The process of ascertaining the facts of a case according to the evidence conforms to the laws of logic and experience, and the conclusion drawn from the evidence is the only one.
In handling death penalty cases, the following facts must be proved to be true and sufficient:
(1) The occurrence of the alleged criminal facts;
(two) the time, place, means and consequences of the defendant's criminal act;
(3) affecting the status of the defendant's conviction;
(4) The defendant has criminal responsibility;
(5) The defendant is guilty;
(six) whether * * * and the defendant's position and role in the crime of * * *;
(7) The fact that the defendant was given a heavier punishment.
Article 162 of the Criminal Procedure Law clearly stipulates that the evidence in a criminal case must be "true and sufficient", otherwise the criminal suspect will never be found and a verdict of innocence will be made. The Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of National Security and the Ministry of Justice have made detailed explanations in Article 5 of the Provisions on Several Issues Concerning the Examination and Judgment of Evidence in Handling Death Penalty Cases. The standard of proof in criminal cases is that the evidence is "really sufficient". If the evidence is untrue and insufficient, the suspect will never be found.
Fifth, the concept of crime.
Article 13 of the Criminal Law: endangering national sovereignty, territorial integrity and security, splitting the country, subverting the people's democratic dictatorship and overthrowing the socialist system, disrupting social and economic order, infringing on state-owned property or property collectively owned by working people, infringing on citizens' personal rights, democratic rights and other rights, and other acts endangering society are all crimes, but the circumstances are obviously minor and the harm is not great.
Crime must have social harm, criminal illegality and punishment at the same time, otherwise, even if the actor's behavior has two of the criminal characteristics, it is not a crime. If the circumstances are obvious, minor and harmless, and fail to meet the standards of crime, it is not considered a crime.
Sixth, the age of criminal responsibility.
Article 17 of the Criminal Law: A person who has reached the age of 16 commits a crime and shall bear criminal responsibility.
A person who has reached the age of 14 but under the age of 16 commits the crime of intentional homicide, intentional injury, serious injury or death, rape, robbery, drug trafficking, arson, explosion and poisoning, and shall bear criminal responsibility.
If a person who has reached the age of 14 and is under the age of 18 commits a crime, he shall be given a lighter or mitigated punishment.
If a person is not given criminal punishment because he is under the age of sixteen, his parents or guardians shall be ordered to discipline him; When necessary, it can also be taken in for reeducation by the government.
This is a special exemption from the age of criminal responsibility. If the actor has not reached the age of criminal responsibility, the subject of the crime is not qualified, even if his behavior is socially harmful and punitive, it will not be dealt with according to law.
Seventh, mental patients.
Article 18 of the Criminal Law: If a mental patient causes harmful results when he cannot identify or control his own behavior and is confirmed by legal procedures, he shall not bear criminal responsibility, but his family members or guardians shall be ordered to strictly guard and treat him; When necessary, the government forces medical treatment.
Intermittent mental patients who commit crimes when they are mentally normal should bear criminal responsibility.
If a mental patient who has not completely lost the ability to identify or control his own behavior commits a crime, he shall bear criminal responsibility, but he may be given a lighter or mitigated punishment.
A drunken person who commits a crime shall bear criminal responsibility.
This is a special exemption for mental patients. If it is indeed a mental patient who causes harmful results when he is sick, in view of the loss of the subject qualification of this crime, even if his behavior is socially harmful and punitive, it will not be dealt with according to law. .
Eighth, self-defense
Article 20 of the Criminal Law: In order to protect the state, public interests, personal, property and other rights of oneself or others from ongoing unlawful infringement, stopping unlawful infringement and causing damage to the unlawful infringer, it belongs to self-defense and does not bear criminal responsibility.
If justifiable defense obviously exceeds the necessary limit and causes great damage, criminal responsibility shall be borne, but the punishment shall be mitigated or exempted.
Taking defensive actions against violent crimes such as assault, murder, robbery, rape, kidnapping, etc., which seriously endanger personal safety, and causing casualties to illegal infringers, is not excessive defense and does not bear criminal responsibility.
The first paragraph stipulates the definition of self-defense, which should have the legitimacy of motivation, timeliness of time, specificity of object and moderation of limit. The second paragraph stipulates excessive defense, and the third paragraph stipulates unlimited defense. If unlawful infringement is a violent crime stipulated by law, the defender's defense behavior can be free from the defense limit, even if it causes casualties to the unlawful infringer, it is not excessive defense and does not bear criminal responsibility. .
Nine, * * and crime.
Twenty-fifth * * * accomplice refers to two or more * * * accomplices who commit intentional crimes.
If two or more people commit a negligent crime, they shall not be punished as negligent crimes; Those who should bear criminal responsibility should be punished according to the crimes they committed.
First of all, * * * accomplice must have * * * accomplice crime and * * * accomplice intentional crime, otherwise it does not constitute * * * accomplice crime. Secondly, negligent crime is not a joint crime. If a negligent crime should bear criminal responsibility, it should be punished according to the crime it committed.
Tenth, the legal obligations of defenders.
Article 35 of the Criminal Procedure Law: Defenders have the responsibility to put forward materials and opinions to prove the innocence, light crime or reduction or exemption of criminal responsibility of criminal suspects and defendants according to facts and laws, and safeguard the legitimate rights and interests of criminal suspects and defendants.
Article 31 of the Lawyers Law: When a lawyer acts as a defender, he shall, according to facts and laws, put forward materials and opinions on whether a criminal suspect or defendant is innocent or light, or whether his criminal responsibility is reduced or exempted, so as to safeguard the legitimate rights and interests of the criminal suspect or defendant.
Innocent defense is not only one of the litigation rights of defense lawyers, but also one of the duties of defense lawyers.