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The Declarative Significance of "Respecting and Safeguarding Human Rights" into Law
201March 14, the fifth session of the 11th national people's congress passed a decision on amending the criminal procedure law of People's Republic of China (PRC), which is another overhaul of China's criminal procedure law since it was amended in 1996. At the same time, great changes have taken place in the social situation and the construction of democracy and legal system in China. "Governing the country according to law" and "respecting and safeguarding human rights" have been written into the Constitution, the socialist concept of rule of law has gradually taken root in people's hearts, and people's awareness of rule of law and rights has also been greatly improved. All walks of life have placed high expectations on this revision, and the whole revision process has also been widely and highly concerned by the society. Among them, the entry of "respecting and protecting human rights" into the law has become the biggest highlight of this amendment. It is regarded as a positive signal that China's criminal judicial civilization and democracy have been released through legal amendments after the entry of "respecting and protecting human rights" into the constitution in 2004. It is an important measure for the criminal legal system to safeguard constitutional principles and protect human rights, and it is a substantial leap in China's human rights protection cause.
Criminal procedure is an activity that the state exercises the power of punishment. The use of state power is not only positive and universal, but also mandatory. As the accused, criminal suspects and defendants are always in a passive, defensive and controlled litigation position, and their rights to freedom, health, property and even life are in danger of being restricted or even deprived by public power at any time, and their personality, dignity and reputation are also easily adversely affected. "Respect and protect human rights" into the law means that while emphasizing the functions of investigating and punishing crimes, the state requires standardizing the use of state powers such as investigation power, procuratorial power and judicial power, respecting the status of criminal suspects, defendants and victims as litigation subjects, and respecting and protecting the litigation rights and other legitimate rights and interests enjoyed by criminal suspects, defendants, victims, witnesses and other litigation participants according to law, rather than just treating them as subjects or even tools or means to assist state organs in handling cases. At the same time, it also shows that investigating and cracking down on crimes is no longer the only important purpose and task of criminal proceedings, and the thoughts and practices of "unscrupulous", "regardless of cost" and "not asking right and wrong" have or will become history. It can be imagined that under the guidance of the concept of "respecting and safeguarding human rights", criminal procedure and criminal justice will go beyond the instrumental value of simply cracking down on crimes, and gradually play their roles in safeguarding and safeguarding citizens' basic rights and interests, promoting litigation justice and judicial justice, and realizing various aspects from institutional civilization to judicial civilization.
Looking at the development history of China's criminal procedure law since the founding of New China, we can find that whether it is the criminal procedure law of 1979, the first legal amendment of 1996, or the second legal amendment of 20 12, an important guiding ideology and basic principle throughout is to regulate the exercise of public power and avoid the occurrence of violations of citizens' rights such as indiscriminate arrest and prosecution. And make citizens truly enjoy the freedom of "freedom from fear" and "respect and protect human rights" into the law, which fully reflects that China's criminal procedure system will continue to develop in the direction of democratization, rule of law and science, and China's criminal procedure and criminal justice will be more humane and rational.
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The Practical Significance of "Respecting and Safeguarding Human Rights" into Law
On the surface, the most direct beneficiaries of "respecting and protecting human rights" are criminal suspects, defendants, victims, witnesses and other participants in litigation. But in fact, as a constitutional principle and a litigation principle, "respecting and safeguarding human rights" aims to protect every citizen as a member of society, regardless of his status and rights and interests, so it has great practical significance and preciousness.
Some people may think that they will never commit a crime or deal with public security and judicial organs in their lifetime, so it has little to do with themselves whether it is stipulated to "respect and protect human rights" in criminal proceedings. Those who hold this view undoubtedly ignore the fact that criminal proceedings often lag behind criminal offences. Before the state organs determine the criminal suspects and defendants, or even before the court makes a judgment according to law, any citizen may become the object of suspicion of the state organs, and may be prosecuted as a criminal suspect or defendant, and then dragged into criminal proceedings, that is, the so-called "you can guarantee that you will never commit a crime, but you can never guarantee that you will not be investigated by the public security and judicial organs". Once you are investigated as a criminal suspect or defendant by the state organs, you will be arrested and investigated. In fact, it has always been an unsolved problem that innocent people are held accountable and even sentenced to jail. Therefore, respecting and protecting the human rights of criminal suspects and defendants is actually respecting and protecting the human rights of all people as ordinary citizens. Similarly, "respecting and protecting human rights" also applies to victims, because as an ordinary citizen, everyone may become a victim of a crime, which is the so-called "you can guarantee that you will never hurt others, but you can never guarantee that you will never be hurt by others". Therefore, respecting and protecting the human rights of victims in criminal proceedings is actually protecting the human rights of all ordinary citizens. Similarly, "respecting and safeguarding human rights" also applies to witnesses, lawyers and other participants in litigation, because no one can guarantee that he will not act as a witness or need the help of witnesses all his life; Even if you don't work as a lawyer, no one can be sure that you won't need the help of a lawyer all your life. Therefore, respecting and protecting the human rights of witnesses, lawyers and other participants in litigation means protecting the human rights of all ordinary citizens in a certain sense.
Some people may think that there is no need to protect the rights and interests of criminal suspects and defendants who have been investigated by the state for committing crimes and doing bad things. This view is actually a misunderstanding of criminal proceedings and criminal judicial activities for a long time. The mistakes are as follows: First, the history of criminal justice in ancient and modern China and abroad has repeatedly warned us that no matter how professional and dedicated judicial personnel are, no matter how precise judicial procedures are, unjust, false and misjudged cases can only be reduced, but it is impossible to eliminate them. Those who "severely punish according to law" are probably as kind, honest and innocent as us. Secondly, modern countries ruled by law require criminals to be punished only after being found guilty, and no one can punish criminal suspects or defendants before being found guilty according to law. The so-called "everyone is punished" practice has long been history. Third, even guilty people must be sentenced by judicial organs and handed over to executive organs for execution. No other organ, organization or individual has the right to punish him, let alone to punish him extrajudicially. The compulsory measures such as detention and arrest taken by investigation and prosecution organs against criminal suspects are only preventive, not punitive, in order to prevent them from escaping or hinder investigation, prosecution and trial. Finally, even if the suspects and defendants are guilty, they only need to be responsible for their own criminal acts and accept the punishment given by the state according to law. This kind of punishment is the so-called "culpable of punishment" for criminals, and "punishment as a crime" for society and ordinary people. In addition, neither the state nor anyone can punish criminals for their "evil harm" on the one hand, but also inflict "evil harm" on criminals and infringe on their basic rights and interests as "people" by improper means, such as extorting confessions by torture.
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Normative Significance of "Respecting and Safeguarding Human Rights"
In this revision of the Criminal Procedure Law, "respect and protection of human rights" is not only written as a principle into the general provisions, but also reflected in the revision of litigation systems or procedural rules such as evidence system, compulsory measures, defense system, investigation measures, trial procedures, execution regulations and special procedures, so it has a strong normative significance.
First, the protection of criminal suspects and defendants' right to defense has been strengthened. The right of defense is a basic litigation right for criminal suspects and defendants to refute accusations, defend themselves and safeguard their rights and interests. The newly revised Criminal Procedure Law clearly stipulates that criminal suspects can be defended by lawyers during the investigation stage, which expands the scope of cases in which legal aid is assigned, and stipulates that public security and judicial organs should notify legal aid institutions to appoint defenders for "criminal suspects and defendants who may be sentenced to life imprisonment" and "mental patients who have not completely lost their ability to identify or control their own behavior". At the same time, in order to ensure that the defendant can obtain an effective defense, this revision has also improved the lawyer's interview procedure, solved the problems of "difficulty in marking papers", "difficulty in meeting" and "difficulty in obtaining evidence" that have plagued lawyers for a long time, relieved the worries of lawyers in performing their defense duties, and clearly stipulated that "if a defender is suspected of committing a crime, it should be handled by an investigation agency other than the case undertaken by the defender."
Second, the balance between discovering the truth and respecting and safeguarding human rights. Finding out the truth has always been regarded as an important mission of criminal proceedings, which often conflicts with the protection of human rights. This amendment balances the two and highlights the importance of human rights protection. For the first time, the rules of "no one shall be forced to prove his guilt" and "illegal evidence exclusion" were stipulated, and the illegal evidence exclusion procedure was set up to prevent the phenomenon of extorting confessions by torture and illegally obtaining evidence. In addition, the legislation not only clarifies the specific circumstances of forcing witnesses to testify in court, but also strengthens the protection of witnesses, appraisers and victims, so as to avoid putting the personal safety of themselves or their close relatives at risk because of testifying. At the same time, in order to maintain family harmony and stability, respect human nature and care for interpersonal relationships, this amendment also stipulates for the first time that "the defendant's spouse, parents and children shall not be forced to testify in court".
Third, in the game between public power and individual rights, the protection of human rights has been strengthened. A notable feature of this revision is to further standardize the applicable conditions of compulsory measures such as residential surveillance, bail pending trial, detention and arrest. Strictly limit the exceptional circumstances in which state organs do not notify the family members of the parties after taking compulsory measures, and require criminal suspects who are arrested or under residential surveillance to notify their family members within 24 hours, except those who cannot. In order to avoid the phenomenon of citizens' "disappearance", protect the family members' right to know, and ensure that those who have been taken compulsory measures can get help in time, the situation of not informing their families after detention is strictly limited to the crime of endangering national security and the crime of terrorist activities. At the same time, considering that China's procuratorial organs are responsible for legal supervision according to law, the amendment to the Criminal Procedure Law clearly stipulates that procuratorial organs should strengthen supervision over important litigation stages and behaviors such as investigation, arrest, trial and execution, and prevent and promptly correct acts that infringe on the legitimate rights and interests of parties and other participants in litigation.
Fourth, ensure that the defendant has the right to a fair trial. "An open and fair trial by an independent and neutral judicial organ" is an important litigation right enjoyed by criminal defendants, and it is the embodiment and requirement of the state to respect and protect the legitimate rights and interests of defendants. The newly revised Criminal Procedure Law guarantees the rights of the defendant from the following aspects: First, it clarifies the scope of cases tried by the court of second instance, limits the number of times that the court of second instance sends the defendant back to the court of first instance for retrial due to unclear facts, ensures that the defendant can be tried in time, strictly applies the principle of no additional punishment on appeal, and prohibits the court of first instance from aggravating the defendant's punishment when the court of second instance sends him back for retrial; The second is to clarify the reasons for starting the retrial procedure, and stipulate that when the people's court at a higher level sends it back for retrial, it should designate other courts at the same level other than the court hearing the case; Third, it is stipulated that in the procedure of death penalty review, the defendant should be interrogated and listened to, and the defense lawyer should also listen to the lawyer's opinion if he withdraws the request; The fourth is to set up special procedures for special objects and special cases, such as setting up criminal proceedings for minors according to their characteristics, clarifying the application of conditional non-prosecution procedures, and establishing a system for sealing juvenile criminal records.
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The key to "respecting and protecting human rights" lies in implementation.
The entry of "respecting and protecting human rights" not only marks a big step forward in China's legislation towards democracy and legal system, but also points out the trend and inevitable direction of China's criminal justice development. On the other hand, we should also fully realize that "the life of law lies in implementation" and "respecting and protecting human rights" is far from enough, and the key lies in implementation. Only by implementing the constitutional principle and litigation principle of "respecting and protecting human rights" and various relevant systems and regulations in the process of handling cases can we truly promote the civilization and progress of criminal justice, realize the respect and protection of human rights, and finally demonstrate the progressive significance of legislation.
Considering that China has a historical legacy of "emphasizing crime over human rights" and "emphasizing substantive justice over procedural justice", although people have realized the value and significance of due process in realizing judicial justice, and respecting and protecting the rights and interests of litigants, including defendants and victims, is an important symbol to measure a country's criminal justice civilization and democracy. However, in order to achieve "equal emphasis on combating crime and protecting human rights" and "equal emphasis on substantive justice and procedural justice", it is not only necessary for the judicial personnel to change their litigation concepts and judicial concepts, continuously improve their judicial ability and level, and give full play to their subjective initiative. At the same time, it is necessary to cultivate and form a correct concept of rule of law and litigation in the whole society, and effectively improve the awareness and ability of the broad masses of people to safeguard their rights. And the realization of all this must take time, not overnight. In this process, on the one hand, it is necessary to increase publicity and raise the awareness of the rule of law and human rights protection of public security and judicial personnel and the whole society. On the other hand, we should also pay attention to modifying or even abandoning some previous practices that are inconsistent with judicial rules and procedural rules, such as "not asking about the process, only asking about the results" and "handling cases together". We should earnestly respect judicial rules and procedural rules, act in strict accordance with the rules, and create a good judicial and social environment for "respecting and safeguarding human rights."