The people's procuratorate shall, within three days from the date of receiving the case materials transferred for examination and prosecution, inform the victim and his legal representative or his near relatives, the parties involved in incidental civil litigation and his legal representative that he has the right to entrust an agent ad litem. The people's court shall, within three days from the date of accepting a case of private prosecution, inform the private prosecutor and his legal representative, the parties to an incidental civil action and his legal representative that they have the right to entrust an agent ad litem.
2. the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Interpretation of the Criminal Procedure Law)
Article 48
The duty of an agent ad litem is to safeguard the legitimate rights and interests of the victim, the private prosecutor or the parties involved in incidental civil litigation according to facts and laws.
Article 49
As an agent ad litem, a lawyer can consult, extract and copy the materials related to the case and understand the case. Other agents ad litem, with the permission of the people's court, may also consult, extract and copy the relevant materials of this case to understand the case. If it is necessary to collect and retrieve materials related to this case, it may be implemented with reference to the provisions of Articles 44 and 45 of this Interpretation. (court stage)
3. Provisions of the People's Procuratorate to guarantee lawyers' practice in criminal proceedings.
Article 14. As agents ad litem, defense lawyers and lawyers entrusted by the victims and their legal representatives or close relatives may consult, extract and copy the litigation documents and technical appraisal materials in this case from the date when the people's procuratorate examines and prosecutes. (procuratorial stage)
Lawyer's analysis: There are few provisions on the rights of the injured party's litigation agent in relevant laws. Take the lawyer's right to read papers as an example. Attorney can read papers in the procuratorate, but there are few materials that can be consulted, and there is no clear provision in the criminal procedure law. I think it should be clarified by higher-level legislation to avoid unnecessary disputes caused by lawyers' marking in practice. At the court stage, the injured party's lawyer can read the documents.
Second, apply for withdrawal.
1 Article 28 of the Criminal Procedure Law A judge, a prosecutor or an investigator shall recuse himself under any of the following circumstances, and the parties and their legal representatives also have the right to ask him to recuse himself:
(1) Being a party to the case or a close relative of the party;
(2) He or his close relatives have an interest in the case;
(3) Having served as a witness, expert witness, defender or agent ad litem in this case;
(4) Having other relations with the parties to the case, which may affect the fair handling of the case.
Three. Witness's testimony
1, Article 47 of the Criminal Procedure Law, the testimony of witnesses must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court, and the testimony of witnesses from all sides can be used as the basis for finalizing the case. If the court finds that a witness intentionally perjures or conceals criminal evidence, it shall deal with it according to law.
2. Article 58 of the Interpretation of Criminal Procedure Law
The evidence must be verified by court investigation procedures such as presentation in court, identification and cross-examination, otherwise it cannot be used as the basis for finalizing the case. When a witness testifies in court, he must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court, and his testimony can only be used as the basis for finalizing the case after examination; The testimony of a witness who did not appear in court, which was read in court and verified, can be used as the basis for finalizing the case. If the court finds that a witness intentionally perjures or conceals criminal evidence, it shall deal with it according to law.
Lawyer's analysis: There are not many regulations on whether the victim can participate in the cross-examination of evidence, and it focuses on the testimony of witnesses, which stipulates the victim's right to ask and cross-examine witnesses.
Fourth, the stage of public security investigation.
1, Procedures for Handling Criminal Cases by Public Security Organs
Article 24 1 The public security organ shall inform the criminal suspect and the victim of the appraisal conclusion used as evidence. If a criminal suspect or victim disagrees with the appraisal conclusion and applies for it, supplementary appraisal or re-appraisal may be conducted with the approval of the person in charge of the public security organ at or above the county level.
Article 267 Where a victim files an incidental civil action, it shall be recorded; When transferring for review and prosecution, it shall be indicated on the last page of the prosecution opinion.
2. Provisions on handling injury cases by public security organs
Article 18
After accepting a case of injury, the public security organ shall issue a power of attorney for injury identification within 24 hours, and inform the victim to go to the designated appraisal institution for injury identification.
Article 22
The format and content of personal injury identification documents should meet the requirements of the specification. The identification document shall include bareheaded photos of the victim's face and detailed photos of all the injured parts that the human body needs to identify. For the expert opinions used as evidence, the case-handling unit of the public security organ shall make a notice of expert opinions and serve it on the victims and criminal suspects.
Lawyer's analysis: the relevant provisions of victims in the public security stage mainly focus on identification matters, which stipulate the obligation of public security organs to inform and the victim's right to object; At the same time, the procedure of bringing incidental civil action in the public security stage is stipulated.
Five, the procuratorate review and prosecution stage
1. Article 139 of the Criminal Procedure Law. When examining a case, the people's procuratorate shall interrogate the criminal suspect and listen to the opinions of the victim, the criminal suspect and the person entrusted by the victim.
Article 145 of the Criminal Procedure Law decides not to prosecute a case with a victim, and the people's procuratorate shall serve the decision not to prosecute on the victim. If the victim refuses to accept the decision, he may appeal to the people's procuratorate at the next higher level and request public prosecution within seven days after receiving the decision. The people's procuratorate shall inform the victim of the reexamination decision. If the people's procuratorate upholds the decision not to prosecute, the victim may bring a lawsuit to the people's court. The victim may also bring a lawsuit directly to the people's court without appeal. After the people's court accepts the case, the people's procuratorate shall transfer the relevant case materials to the people's court.
2. Provisions of the People's Procuratorate on ensuring lawyers' practice in criminal proceedings.
Article 12 When examining a case transferred for prosecution, the people's procuratorate shall listen to the opinions of the lawyers entrusted by the criminal suspect and the victim, and record the transcripts and attach volumes. If it is difficult to directly listen to the opinions of the lawyers entrusted by the criminal suspect or the victim, the lawyer entrusted by the criminal suspect or the victim may be notified in writing and put forward written opinions. If the lawyer fails to put forward his opinions within the time limit for examination and prosecution, he shall indicate it in the case file.
Article 13 The people's procuratorate shall carefully examine the lawyer's opinions on proving the criminal suspect's innocence, light crime or reducing or exempting him from criminal responsibility.
Lawyer's analysis: The above provisions mainly stipulate the victim's right to make statements to the procuratorate, that is, the right to express opinions to the procuratorate on criminal cases, but it is difficult in actual operation, let alone reflected in the litigation materials of the procuratorate. The lawyer believes that the procedure and safeguard measures for the victim's attorney to put forward opinions should be further stipulated in order to further improve the status of the victim's opinions in criminal proceedings.
Sixth, the first instance stage of the court.
Criminal procedure law
Article 155 After the public prosecutor reads out the indictment in court, the defendant and the victim can make statements about the crimes alleged in the indictment, and the public prosecutor can interrogate the defendant. The victim, plaintiff, defender and agent ad litem of an incidental civil action may, with the permission of the presiding judge, put questions to the defendant. The judge can interrogate the defendant.
Article 156 When a witness testifies, the judge shall inform him of the legal responsibilities he should bear for truthfully providing testimony and intentionally perjury or concealing criminal evidence. Public prosecutors, parties, defenders and agents ad litem may, with the permission of the presiding judge, put questions to witnesses and expert witnesses. When the presiding judge thinks that the content of the question is irrelevant to the case, he shall stop it. A judge may question witnesses and expert witnesses.
Article 157 Public prosecutors and defenders shall present physical evidence to the court for identification by the parties concerned. As evidence, documents such as witness testimony transcripts, expert appraisal conclusions, and inspection transcripts that have not appeared in court shall be read out in court. A judge shall listen to the opinions of the public prosecutor, parties, defenders and agents ad litem.
Article 159 During the court hearing, the parties, defenders and agents ad litem have the right to apply for notifying new witnesses to appear in court, for obtaining new material evidence, and for re-appraisal or inspection. The court shall make a decision on whether to approve the above application.
Article 160 With the permission of the presiding judge, the public prosecutor, the parties, the defender and the agent ad litem may express their opinions on the evidence and the case, and may argue with each other. After the presiding judge announces the end of the debate, the defendant has the right to make a final statement.
Lawyer's analysis: The above mainly stipulates the rights of the victim to state, ask questions, cross-examine and give evidence during the trial. However, at present, the characteristics of public prosecution are overemphasized in criminal proceedings, and the above rights of victims sometimes become a mere formality.
Seven, the court second instance stage
1, Criminal Procedure Law
Article 180 If the defendant, private prosecutor and their legal representatives refuse to accept the judgment or ruling of first instance of the local people's courts at all levels, they have the right to appeal to the people's court at the next higher level in written or oral form. Defenders and close relatives of the defendant may appeal with the consent of the defendant. The parties to an incidental civil action and their legal representatives may appeal to the part of the incidental civil action in the judgment or ruling of first instance of the local people's courts at all levels. The defendant shall not be deprived of the right to appeal under any pretext.
Article 182 If the victim or his legal representative refuses to accept the judgment of first instance of the local people's courts at all levels, he has the right to request the people's procuratorate to lodge a protest within five days after receiving the judgment. After receiving the request of the victim and his legal representative, the people's procuratorate shall make a decision on whether to protest within five days and reply to the request.
2. Interpretation of Criminal Procedure Law
Article 242nd The time limit for an appeal or protest against an incidental civil judgment or ruling shall be determined according to the time limit for an appeal or protest against a criminal part. If the civil part of the original trial is tried separately, the appeal period shall be implemented in accordance with the time limit stipulated in the Civil Procedure Law.
249th cases of appeal and protest incidental to civil action shall be tried as a whole. If there is nothing improper in the criminal part of the judgment of first instance, the people's court of second instance only needs to deal with the incidental civil action. If the facts attached to the civil part of the first-instance judgment are clear and the applicable law is correct, the original judgment shall be upheld by the criminal incidental civil ruling, and the appeal and protest shall be rejected.
Analysis: In the case of public prosecution, the victim only enjoys the right of appeal in the incidental civil part, but not in the criminal part, only the right of protest. This provision is conducive to the separation of criminal and civilian, which is exercised by different subjects, but it also inevitably makes the victims feel at a loss when exercising their rights. For example, the victim refused to accept the judgment of the first instance, especially the criminal part, and requested the procuratorial organ to protest. However, due to various reasons, the procuratorial organ failed to file a protest in time according to the appeal procedure, so the victim only appealed on his own, and the scope of appeal was limited to the civil part, and it was useless to file a criminal part of the first instance; Although according to the law, the court of second instance is not limited to the scope of appeal, but conducts a comprehensive review. When the criminal part of the first-instance judgment is found to be wrong, the criminal part can be tried according to the trial supervision procedure, but in practice, the court often refuses to try the criminal part on the grounds that it has taken effect. Moreover, the law itself has procedural difficulties, and the court will try it in accordance with the procedure of second instance. It is not clear whether the case should be tried according to the first instance procedure of retrial, whether it should be tried by the same collegial panel or by another collegial panel, whether it should be tried in writing or in court, which ultimately leads to the failure to implement the protection of the rights of the victims, at least in terms of procedures, to ensure the smooth exercise of their rights.
Eight. Trial supervision procedure
Article 203 of the Criminal Procedure Law The parties, their legal representatives and their close relatives may appeal to the people's court or the people's procuratorate against a legally effective judgment or ruling, but they cannot stop the execution of the judgment or ruling.
Article 204 The people's court shall retry the complaint of a party, his legal representative or his near relatives under any of the following circumstances:
(a) there is new evidence to prove that the facts identified in the original judgment or ruling are indeed wrong;
(2) The evidence on which conviction and sentencing are based is not true or sufficient, or there are contradictions between the main evidences proving the facts of the case;
(3) The application of the law in the original judgment or ruling is indeed wrong;
(4) The judicial officers commit acts of corruption, bribery, favoritism and malpractice, and perverting the law.
Nine, criminal incidental civil action
Judicial interpretation of criminal procedure law
Article 84 After accepting a criminal case, the people's court may inform the victims (citizens, legal persons and other organizations) who have suffered material losses due to criminal acts, the close relatives of the deceased victims, and the legal representatives of the victims with incapacity or limited capacity that they have the right to bring an incidental civil action. If the person who has the right to file an incidental civil action waives his litigation rights, he shall allow and file a case.
Article 87 An adult defendant in an incidental civil action shall be liable for compensation, and if his relatives voluntarily undertake it on his behalf, they shall be allowed.
Article 88 The conditions for prosecution in an incidental civil action are:
(1) The plaintiff and legal representative who file an incidental civil action meet the statutory requirements;
(2) Having a clear defendant;
(3) There are specific requirements and factual basis for claiming compensation;
(4) The material loss of the victim is caused by the criminal behavior of the defendant;
(5) It falls within the scope of the people's court accepting incidental civil actions.
Article 89 An incidental civil action shall be filed after the criminal case is put on file and before the judgment of first instance is pronounced. Before the judgment of first instance is pronounced, if the person who has the right to bring an incidental civil action fails to do so, no incidental civil action may be brought. However, a separate civil lawsuit may be filed after the criminal judgment takes effect.
Article 90 In the stage of investigation, pre-trial, examination and prosecution, if the person who has the right to file an incidental civil action requests compensation from the public security organ or the people's procuratorate, the people's court shall accept the criminal case as an incidental civil action after it is filed; After mediation by public security organs and people's procuratorates, if the parties reach an agreement and pay, and the victim insists on bringing an incidental civil action to the court, the people's court may also accept it.
Article 95 When trying an incidental civil action, the people's court may decide to seal up or detain the defendant's property when necessary.
Article 99 For cases in which the victim has suffered material losses or the defendant's compensation ability is temporarily uncertain, and the parties involved in incidental civil litigation are unable to appear in court for some reason, in order to prevent excessive delay in the trial of criminal cases, the same trial organization may continue to conduct incidental civil litigation after the trial of criminal cases is completed. If the members of the same judicial organization really cannot continue to participate in the trial, they may be replaced.
Article 102 The people's court shall not charge legal fees when trying criminal incidental civil litigation cases.
The above information is provided by the Criminal Legal Affairs Department of Sichuan Huyun Law Firm.