In criminal proceedings, in order to punish crimes accurately, it is necessary to find out the facts of crimes. Based on this, although there are requirements of substantive justice, such as crime and non-crime, light crime and heavy crime, and adaptation of crime and punishment, finding out the truth is the necessary condition and core foundation for realizing substantive justice. In criminal proceedings, finding out the truth has two meanings: innocent people can be exempted from innocent punishment; It is helpful to punish those who are guilty.
It is precisely because the basis of criminal justice is to find out the truth, so in the history of China and foreign countries, finding out the truth was once the only purpose of criminal proceedings. By hook or by crook, all kinds of heinous torture in ancient times were largely developed under such a litigation concept. With the progress of human civilization, especially the emergence of the concept of human rights, people have increased their thinking on the rationality of pursuing truth and realized that criminal litigation activities should be adapted to the spirit of the times and social conditions. While seeking to find out the truth, we should also consider other social interests and demands. Although "other social interests" are different due to differences in legal conditions, cultural traditions, political systems and other factors, respecting and safeguarding human rights has become one of the most important social values based on respect for personal dignity. As a dispute resolution mechanism in society, criminal proceedings inevitably involve the most basic rights of citizens, such as personal freedom, property and even life, which has a great influence on the rights of litigants, especially defendants. As an objective social individual, litigants also enjoy basic human rights and cannot be arbitrarily deprived because of their involvement in litigation. Therefore, it is very important to respect and protect human rights in criminal proceedings, and it is also the basic value to make objective truth move towards legal truth.
In addition to the challenge of human rights protection, objective truth also faces the attack of epistemology. Things are complex and changeable, and there is a complex causal relationship. Knowing the truth is often restricted by objective conditions, and knowing objective things is a relative process. Professor Fujishigemitsu, a Japanese criminal procedural jurist, pointed out: "The true absolute truth can only exist in the world of God. In the human world, truth is only relative after all, and the truth in the field of litigation is no exception. " Therefore, it is a big mistake to think that criminal proceedings are only for the pursuit of finding out the truth. In judicial practice, "unclear facts and insufficient evidence" often appear. What if you are leased under objective conditions and you can't find out the facts?
Historically, the concept of criminal procedure has been adopted. Even if the truth is not ascertained, innocent people are forced to bear the adverse consequences of guilt because they cannot prove their innocence. When the Enlightenment began to preach individual rights, humanism rose, resulting in the principle of "no doubt" in the field of criminal procedure, which was regarded as "the iron law of modern criminal procedure" by the legal circles.
The principle of "doubt is beneficial to the defendant" establishes that in fact, if it is really impossible to find out the truth, an explanation must be made in favor of the defendant. This principle includes three aspects: first, "there is no doubt about crime", and when there is doubt about crime and non-crime, it is regarded as innocence; Second, "suspected crime is lighter", when there is doubt about which crime is lighter or heavier, it will be handled as a misdemeanor; Third, when the facts involved belong to the nature of sentencing circumstances, it should be determined in favor of the defendant. The establishment of this principle gives the defendant the right not to prove his innocence, and it also contains the value concept of respecting and protecting the rights of innocent people, that is, "I would rather indulge in order not to waste."
The establishment of the principle of "no doubt" marks that the single pursuit of objective truth in criminal proceedings has been broken. On the basis of reflecting on objective truth, scholars put forward the view of legal truth, arguing that justice is actually realized on the basis of facts recognized within the scope of legitimacy and supported by some evidence, that is, legal facts, which may be similar to objective facts, but not necessarily equal or coincident. The referee clearly reveals the truth of the case by reviewing the evidence provided by the prosecution and the defense or collected by himself, but this disclosure only provides a certain factual basis and basis for the settlement of the dispute, not the ultimate goal. The judgment of the referee on the settlement of the dispute does not have to be based on an objective basis. The fact that the referee makes a procedural determination should be a legal fact. This fact should be a subjective judgment made by the referee in court on the premise of listening to the evidence and opinions of all parties.
Legal truth can properly express the accuracy of facts found in criminal trial, conform to the essence of criminal trial, and can reasonably solve the conflict between substantive justice value and procedural justice value. However, the realization of legal truth will be realized through two main practical links.
First of all, we should realize the transformation from substantive justice to procedural priority. Judicial justice includes two aspects: one is substantive justice, the other is procedural justice. The concept of criminal procedure under the guidance of objective truth often only pursues substantive justice and despises procedural justice. Procedural justice requires strict procedural evidence rules and procedures to be followed in the course of litigation. It can be stated as follows: "If substantive justice is a product processed by a factory, then procedural justice is the production process of producing the product. If there is a problem with the production process, then the product is either defective, waste or genuine. "
In most civil law countries, they still believe in the values of procedural justice, while in common law countries represented by the United States, the values of procedural standard have become the dominant concept in criminal proceedings. In fact, there is a value conflict between substantive justice and procedural justice. How should the value conflict between them be resolved? I think we should learn from common law countries in an all-round way, establish the value of procedural standard as the dominant concept of litigation, and correctly understand that procedure is not only a tool, but also has its independence and independent value. Procedural law, like substantive law, is an important part of national law. They are interdependent but independent. Emphasizing the priority of criminal procedure is not only the need to limit state power and protect citizens' rights, but also the need to establish the concept of "procedural priority". The current criminal procedure law lacks clear legal sanctions for procedural violations. Violation of the plan will not have any adverse consequences. Therefore, in order to pursue the objective truth, the investigators violated the procedure unscrupulously. Therefore, I think it is very important to be true to the law and establish the priority of procedure in the criminal procedure law.
The second is to increase the protection of rights and restrictions on reconnaissance rights. First of all, the defendant should be given the right not to testify against himself in an all-round way, which is considered as the minimum human rights protection by the international criminal procedure academic circles. Secondly, the first obstacle to the legal truth of evidence is illegal evidence, which is mainly manifested in the issue of extorting confessions by torture. "Extorting confessions by torture" is a means, and "extorting confessions by torture" is an end, which is a manifestation of the unscrupulous pursuit of objective truth by case handlers. Extorting confessions by torture is a long-term problem that puzzles our judicial practice. The rough and simple legislation makes the "prohibition of extorting confessions by torture" a slogan, which can't regulate and prohibit the law at all. To curb this phenomenon, we must first change the concept of law enforcement, from objective truth to legal truth. Secondly, we should adopt the principle of judicial authorization, bring arrest and interrogation into the scope of court judicial review, and establish a monitoring system for the whole process of interrogation.
As long as the concept of objective truth is changed into the concept of legal truth, the facts are determined on the basis of legal facts, the procedural priority is adhered to, and the protection of rights and the restriction and restriction of reconnaissance power are strengthened, then I believe the meaningful sentence of the judge after Simpson case in the United States: "Although the whole world thinks he is guilty, the law declares him innocent." It will also ring in China, regardless of whether the substantive results are fair or not, but it is indeed a big leap in the criminal procedure law and the rule of law.
What do witnesses need to pay attention to in civil proceedings? Hello! In criminal proceedings, a witness refers to a person other than the party who knows the case outside the proceedings. To understand this concept, we must pay attention to the following points:
First of all, the witness must be someone who knows the case. This is the most basic feature of a witness.
Secondly, the witness must be someone who knows the case outside the lawsuit. The investigation, examination and prosecution, judges, defenders, agents ad litem and appraisers who participated in handling the case also learned about the case in the course of litigation, but their knowledge of the case was formed after the start of litigation, so they did not belong to witnesses. If these people know something about the case before the start of the lawsuit, they should give priority to witnesses and generally should not participate in the handling of the case.
In addition, the witness must be someone other than the party concerned. Although the defendant, the victim, etc. Usually knowing the case, they can only be parties, not witnesses, because they have a vital interest in the judgment of the case.
According to the law, anyone who knows the case has the obligation to testify in criminal proceedings in our country. However, a person who is physically or mentally defective or young, can't distinguish right from wrong and can't express correctly shall not be a witness.
Witnesses can only be natural persons. State organs, enterprises, institutions or people's organizations can't be witnesses, because they can't perceive the facts of the case like natural persons, can't enjoy the litigation rights of witnesses, and can't undertake the litigation obligations of witnesses.
According to the law, witnesses in criminal proceedings enjoy the following litigation rights:
1. Have the right to use the spoken and written languages of their own nationalities in litigation.
2. Have the right to consult the transcripts of testimony, and have the right to request supplements or amendments if the contents of the transcripts are inconsistent with the contents of testimony.
3. The functionaries of public security and judicial organs have the right to lodge a complaint against the infringement of their litigation rights or personal insults.
4. Have the right to claim compensation for economic losses such as lost time due to testimony.
5. Have the right to ask the public security and judicial organs to ensure the safety of themselves and their close relatives, and prevent them from being illegally infringed by giving testimony.
A witness shall bear the following litigation obligations according to law:
1. Those who provide truthful testimony, intentionally commit perjury or conceal criminal evidence shall bear legal responsibility.
2. Have the obligation to answer inquiries from public security and judicial personnel.
3. Participate in court trials and accept inquiries and cross-examinations from both the prosecution and the defense.
4. Abide by the court discipline and obey the judge's command.
5. Keep the contents inquired by public security and judicial personnel confidential.
How to calculate the lawyer's fee in civil litigation? There are basic standards for the collection of legal fees, but the final transaction is also the result of negotiation between the two parties. Economic cases mainly look at the target amount. Civil cases mainly refer to charging standards. Criminal cases mainly depend on the complexity of the case. Non-litigation cases are generally settled by both parties through consultation. There is no way to judge whether the lawyer's fee of 1 10,000 mentioned by Yuan You is reasonable, because you don't know what case you are and what matters you entrust.
Seizure in civil proceedings can also be found in property.
Forensic expertise in civil litigation can be done as long as there are hospital admission records, medical expenses and other related invoices, and forensic expertise is not needed.
According to the following facts in Article 9 of the Supreme People's Court's Provisions on Evidence in Civil Proceedings, the parties need not provide evidence to prove it:
(1) Well-known facts;
(2) Natural laws and theorems;
(3) Other facts that can be inferred according to laws or known facts and rules of daily life experience;
(four) the facts confirmed by the legally effective judgment of the people's court;
(five) the facts confirmed by the arbitration institution's effective award;
(6) Facts proved by valid notarial documents.
Items (1), (3), (4), (5) and (6) of the preceding paragraph, unless the parties have evidence to the contrary that can be refuted.
On counterclaim in civil litigation counterclaim is an important system in modern civil litigation. Modern countries, almost without exception, have stipulated this system in civil litigation legislation. However, due to the general tendency of legislative simplification and the complexity of counterclaim in practice, this system can not effectively play its role in the contemporary era of increasingly complex substantive legal relations and increasing litigation. Then, in the pursuit of modernization of the rule of law today, how to build the counterclaim system in China's civil litigation? Is it necessary to further improve it? How to further improve the theory and legislation? This paper tries to discuss the related problems.
First, the theoretical orientation of counterclaim and the present situation of counterclaim system in China.
From the perspective of methodology, to study the counterclaim system in China, we must have a clear understanding of what counterclaim is, and then take this basic theory of counterclaim as the starting point and take this as the basic standard to comprehensively judge the present situation of counterclaim system in China, so as to have a clear understanding of the present situation of counterclaim system in China.
(A) the basic theoretical definition of counterclaim
Literally, counterclaim is a kind of litigation, that is, litigation in civil litigation, which refers to the request made by the parties to the people's court to protect their legitimate rights and interests according to law; Secondly, it is a kind of "reaction", that is, it is relative to the frame of reference of this function, and it also contains the irreversibility of this function in time and space. Therefore, from these two points, the author thinks that counterclaim refers to a right of claim that exists relative to this lawsuit, specifically, it is a special independent claim 1 put forward by the defendant of this lawsuit to the plaintiff of this lawsuit in the litigation procedure that has already started.
From the concept of counterclaim, it can be seen that counterclaim exists corresponding to this lawsuit, both of which belong to the category of lawsuit, but counterclaim is different from this lawsuit, and it has the following characteristics: 1, the specificity of the parties. The plaintiff of counterclaim can only be the defendant in this case, and only requires the defendant to be a defendant with procedural significance. The defendant in the counterclaim is the plaintiff in this lawsuit. 2. Time constraints. The counterclaim must be filed in the original litigation procedure in addition to the statute of limitations of general prosecution, which means that the counterclaim depends on this lawsuit in time. Without this lawsuit, there would be no counterclaim, and the existence of this lawsuit makes counterclaim possible. The counterclaim is related to this lawsuit. There must be a factual or legal connection between counterclaim and the claim or cause of action in this case, based on the same legal relationship or the same fact. This is also the reason why the counterclaim is tried together with this lawsuit.
Therefore, counterclaim is a special and relatively independent lawsuit. First of all, counterclaim is independent: first of all, counterclaim is the result of the defendant exercising his right to appeal. Without this lawsuit, the counterclaim plaintiff can also file a lawsuit to safeguard his own interests. Second, the effect of counterclaim is independent. On the one hand, it means that the status of the parties in this lawsuit remains unchanged, on the other hand, it means that it will not lose its effect because of the active withdrawal or rejection of this lawsuit. If the plaintiff withdraws the lawsuit, the counterclaim still exists independently, and the people's court must take the second place. The independence of counterclaim is relative. Counterclaim is attached to this lawsuit, and counterclaim must be based on the filing of this lawsuit. If this lawsuit is not filed, there is no question of filing a counterclaim. If the counterclaim is filed before this lawsuit, it becomes this lawsuit.
(B) China's counterclaim system construction status quo
1, the legislative provisions of China's counterclaim system
At present, China's legislation on counterclaim system is as follows:
Article 52 of the Civil Procedure Law of People's Republic of China (PRC): The plaintiff may give up or change the claim. The defendant may admit or refute the claim and has the right to file a counterclaim. Article 126 If the plaintiff adds a claim, the defendant makes a counterclaim, and a third party makes a claim related to this case, they may be tried together. Article 129 If the plaintiff refuses to appear in court without justifiable reasons after being summoned by a summons, or withdraws from court without the permission of the court, it may be treated as withdrawing the lawsuit; If the defendant counterclaims, he may make a judgment by default. Paragraph 2 of Article 59: The power of attorney must specify the entrusted matters and licensing rights. An agent ad litem must have the special authorization of the client to admit, waive, change the claim, settle, file a counterclaim or appeal on his behalf.
Article 156 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law: After the case is accepted, before the end of the court debate, if the plaintiff adds a claim, the defendant makes a counterclaim, and a third party makes a claim related to this case, and it can be tried together, the people's court shall try it together. Article 184: In the procedure of second instance, if the plaintiff in the original trial adds an independent claim or the defendant in the original trial puts forward a counterclaim, the people's court of second instance may mediate the added claim or counterclaim on the basis of the principle of voluntariness of the parties. If mediation fails, the parties concerned shall be informed to file another lawsuit.
2. Defects of China's counterclaim system
Although China's counterclaim system has been established, but carefully scrutinize the above legal provisions and combine the reality of counterclaim in China, we will find that the counterclaim system mainly has the following defects:
First, the counterclaim system has insufficient legislation and simple system design. A perfect litigation system must be able to comprehensively balance the interests of all parties, so that all parties can act step by step, form procedures in practice, and act according to procedures. However, judging from the construction of China's current counterclaim system, China's counterclaim legislation is obviously insufficient: on the one hand, it is impossible to achieve the legitimate effect of the procedure. For example, how should the parties file a counterclaim? How should the court hear it? How to deal with counterclaims? What are the consequences of violation? These aspects which are closely related to counterclaim procedure have no corresponding provisions, and the parties cannot operate in practice; On the other hand, the right of action and judicial power are unbalanced and have poor mutual restraint. For example, there is a serious unilateral tilt to the judge between the right of the parties to file a counterclaim and the right of the judge to dispose of the counterclaim; The merger of counterclaim and this lawsuit mainly depends on the will of the judge, not on the power of the court to provide judicial protection.
Second, it is difficult to operate in judicial practice, and judges have misunderstandings in their concepts, and judges arbitrarily handle counterclaims. Because the legislative provisions are too simple, it will inevitably bring difficulties to the actual operation. At present, a large number of judges ignore the unique function of counterclaim system, and replace joint trial with divisional trial, believing that there is no substantive difference between them, and the judicial protection provided to the defendant in this case is the same. The reasons for this situation are as follows: first, under the norms of counterclaim system, the merger of this complaint and counterclaim will make the trial more difficult, and it is difficult for judges to take refuge under the condition that the protection function of counterclaim system is empty; Second, at present, the measurement index of judges' work performance lacks scientificity, and unilaterally emphasizes the number of cases handled by judges, which leads judges to separate this lawsuit from counterclaim and show the trial performance by quantity. Therefore, in the judge's mind, the relationship between counterclaim and right of action is not balanced, and the judge still pays more attention to the lawsuit than to the lawsuit. Improper application of counterclaim system will bring harm to civil litigation practice and dampen the parties' belief in procedural justice.
Thirdly, the theoretical circle needs to further comb and study the basic theory of counterclaim. We have not paid enough attention to the basic theories related to counterclaims, nor have we theoretically discussed which counterclaims must be tried together and which counterclaims can be tried together. In addition, some basic theories of civil litigation, such as RES judicata, are not mature, which also brings difficulties to the construction of counterclaim system, and the resulting separation of subject and counterclaim is likely to damage the rights and interests of the defendant. Therefore, it is not surprising that the counterclaim system lacks strict theoretical support and needs to be improved urgently.
When do you need to file a separate lawsuit 1 in civil litigation, and file a lawsuit unrelated to this case? 2. In the criminal incidental civil action, the civil part cannot be associated with the criminal;
This paper discusses that counterclaim in civil litigation is counterclaim, which is relative to this lawsuit. The defendant in this lawsuit takes the plaintiff in this lawsuit as the defendant.
Can I apply for legal aid in civil litigation? In civil proceedings, those who are unable to hire a lawyer due to financial difficulties may apply for legal aid. The burden of proof of medical malpractice is reversed. But it's not like your legal aid.