Criminal law dictionary: defense and accusation are opposite. In criminal proceedings, the defendant and his defenders defend or refute the charges according to laws and facts, and demonstrate that the defendant is innocent or guilty of a minor crime, and should be given a lighter, mitigated or exempted criminal punishment.
Criminal Procedure Law (edited by Cheng): Defense refers to the litigation activities carried out by criminal suspects, defendants and their defenders in criminal proceedings to prove that the criminal suspects and defendants are innocent and the crimes are light, and that they should be mitigated or exempted from punishment and safeguard the legitimate rights and interests of criminal suspects and defendants.
New Theory of Criminal Procedure Law (edited by Zhang Zhonglin): The defense in criminal proceedings refers to the litigation activities in which the defendant and his defenders refute the charges from facts and laws, and prove that the defendant is innocent and light, or reduce or exempt his criminal responsibility.
From the above concepts, we can see that it has the following three problems:
1. The two words "argument" and "proof" are used in the concept of defense, which is confused with the burden of proof.
2. The content of defense is about the innocence of criminal suspects and defendants, and the mitigation or exemption of criminal responsibility, that is, substantive defense, not procedural defense.
3. The defense is made against the complaint. Without the complaint, there is no defense. This eliminates the defense in the investigation stage.
The author questions the above three questions.
(1) On the first question. China's law clearly stipulates that defense is the litigation right enjoyed by criminal suspects and defendants, and criminal suspects and defendants do not bear the responsibility of proving their innocence. Only in the crime of "huge property of unknown origin" can the burden of proof be reversed, but this article is only an exception. Under normal circumstances, criminal suspects and defendants do not bear the burden of proof. Article 35 of China's Criminal Procedure Law stipulates that "the responsibility of the defender is to put forward materials and opinions to prove the innocence, lighter or mitigated criminal responsibility of the criminal suspect and defendant according to facts and laws, and safeguard the legitimate rights and interests of the criminal suspect and defendant". It can be seen that the law of our country stipulates that the burden of proof shall be borne by the prosecution on the one hand and the defender on the other; On the one hand, the right of defense is defined as a litigation right, on the other hand, the act of exercising the right of defense is defined as proof. In making this provision, the law actually changes the structural relationship between the prosecution and the defense into a balanced structural relationship, that is, the prosecution proves that the suspect and the defendant are guilty and the defense proves their innocence. You testify against you and I testify against me. As a result, if the defense cannot prove the innocence of the suspect and the defendant, it may be guilty and will inevitably lead to the presumption of guilt. In criminal proceedings, the function of defense can only be a rebuttal corresponding to proof, not proof. Of course, this rebuttal can use the method of proof in technology and thinking, present evidence tit for tat, refute the prosecution's claim, and safeguard the legitimate rights and interests of criminal suspects and defendants.
In the above discussion, rebuttal is actually a way to actively exercise the right of defense, but if the defendant can't produce evidence to refute the prosecution's claim, will he lose the case? This involves the second form of defense, that is, although the defendant can't produce strong evidence to refute the prosecution's claim, he can point out the problems in the prosecution's evidence by questioning, so that it can't reach the level required by the standard of proof, and then the prosecution will lose the case and safeguard the interests of the defendant. This is because the requirements for proving and refuting are different. The establishment of evidence not only needs true and sufficient evidence, but also the process of its argument must conform to logical laws, which is different from refutation. Refutation can be accomplished by actively presenting evidence that is diametrically opposed to the prosecution, or by not actively presenting evidence, but only by doubts and logic in the prosecution's proof process. Some scholars call this defense "evidence defense".
In the traditional concept, the words "argument" and "proof" are used to confuse the defense and the burden of proof, so the words "rebuttal" and "query" are used to replace the words "proof" and "argument" in the old concept.
(2) On the second question. With the development of modern human rights concept and the perfection of constitutional system, people gradually realize that there is an independent form of defense-procedural defense, which is different from substantive defense.
Procedural defense refers to the defense policy's defense and proposition against procedural illegal acts of procuratorial organs, which infringe on the personal rights and democratic rights of criminal suspects and defendants. Some scholars directly define procedural defense as "the defense activities carried out by the defense in the process of procedural judgment". It can be seen that the direct goal of procedural defense is not to urge the court to make a judgment of innocence or light crime, but to exercise a certain litigation right or realize a certain litigation behavior through procedural application. In the words of dershowitz, a famous American lawyer, procedural defense is the best defense, because it urges the court to conduct judicial review on the legality of its procedural violations by "accusing" the police, prosecutors and judges. Because of this, procedural defense has become a form of defense of "opposing attack and defending".
Procedural defense is put forward against the procedural violations of procuratorial organs. Procedural violation refers to the violation of legal procedural rules by public institutions involved in criminal proceedings. Due to the lack of necessary judicial review mechanism in the investigation stage, most procedural violations occur in the investigation stage, and most of them are committed by the police. Defenders of criminal suspects and defendants have the right to put forward procedural defense against procedural violations. Article 75 of China's Criminal Procedure Law stipulates: "If a lawyer entrusted by a criminal suspect takes compulsory measures against a public security organ beyond the statutory time limit, he has the right to demand the cancellation of compulsory measures." It can be seen that China's laws have some provisions on procedural defense, but it is not enough to only stipulate these provisions. In order to truly implement procedural defense, defense lawyers need more extensive procedural participation rights, and through the meaningful participation of lawyers, they can effectively influence and play a role in the judgment results.
Procedural defense is closely related to the theory of right relief, which is essentially to provide citizens with a way of right relief. "Without relief, there is no right" and "Relief precedes right". Because after a right is infringed, if the infringed person can't even put forward his own opinions and his own opinions can't reach the judge, he can't get judicial relief, and the existence of this right is meaningless. Remedy of these constitutional rights is more important. Procedural defense is mainly a remedy for infringement of constitutional rights. This remedy is indispensable and must be strong.
The traditional defense concept only attaches importance to substantive defense and ignores procedural defense. We should inject procedural defense factors into the defense.
(3) On the third question. Only when someone is accused of a crime does he need a defense. (3) Based on this, it is naturally inferred that there is no room for defense in the investigation stage, and defense can only start from the examination and prosecution stage at the earliest. However, it is the development trend of criminal procedure law all over the world that lawyers fully participate in the investigation stage to defend criminal suspects. "In the history of litigation development, with the extension of criminal litigation activities to pre-trial, the right of defense in various countries has experienced a bumpy course from the trial stage to the pre-trial procedure." Therefore, it is necessary for us to advance the defense to the investigation stage.
As far as judicial practice is concerned, both prosecution and trial depend on the investigation results to a great extent, and more than 99% of the guilty verdict rate is actually maintained by strong investigation. In a sense, it can also be said that the procedure that really determines the fate of criminal suspects and defendants in China is not trial, but investigation. ⑤ The investigation results are predictable for judges, who make judgments mainly based on the investigation results. Since the investigation procedure has such a great influence on the defendant's fate, if the defendant can't fully and effectively defend himself in the investigation stage, then after the investigation, the effectiveness of defense in each stage will be greatly weakened and the whole criminal judicial procedure will be unfair. What's more, China's investigation mode is a secret and opaque administrative crime mode, lacking the necessary supervision and judicial review mechanism, and the power of investigation organs is rare in all countries. According to the existing laws and regulations, except for the arrest, the public security organs must obtain the approval of the procuratorate, and all other investigation measures such as search, seizure, sealing up and monitoring are decided by the public security organs themselves without the approval of the procuratorate. Procuratorial organs enjoy the same investigative power as public security organs when investigating corruption and bribery cases, but who will supervise the supervisors? The investigation organ has too much power and lacks necessary, reasonable and effective restrictions. If there are not enough lawyers to defend it, the status and strength of the prosecution and the defense will be seriously unbalanced, which will affect the entire criminal justice system.
The participation of defense lawyers has injected independent social forces into the criminal litigation pattern of state officials and individuals, not only independent of state organs, but also independent of the parties. ⑥ Compared with procuratorial organs, the participation of defense lawyers embodies a kind of supervision and checks and balances, strengthens the weak position of defendants, and safeguards the fairness of procedures by protecting the human rights of criminal suspects. "The earlier the defense lawyer participates in the lawsuit, the wider the scope of participation, the more timely and effective the legal help the defendant gets, and form a' close' balance with the prosecution in terms of confrontation ability. The defense lawyer's participation in defense activities during the investigation stage can enable the defendant to fully prepare for defense, investigate and collect sufficient defense evidence, so as to put forward a strong defense proposition in the trial and effectively influence the judge's judgment. " ⑦ It is a common practice all over the world for defense lawyers to intervene in litigation during the investigation stage, provide legal assistance to criminal suspects and exercise their right of defense, which has been confirmed by international conventions. The Basic Principles on the Role of Lawyers, adopted by the United Nations 1990, provides some minimum standards for the stage scope of defense lawyers' participation in criminal proceedings. Article 1 of the Convention stipulates: "Everyone has the right to ask a lawyer of their choice to help protect and establish their rights and defend them at all stages of criminal proceedings". Article 7 states: "All persons arrested or detained, regardless of criminal charges, shall be guaranteed the opportunity to contact a lawyer promptly, and in any case no later than 48 hours after arrest or detention". It can be seen that the lawyer's comprehensive involvement in the investigation procedure is also the need for China's criminal procedure law to be in line with international standards. In order to keep up with international practice, China's revised Criminal Procedure Law advances the time for lawyers to intervene in criminal proceedings from the trial stage to the investigation stage. Article 96 of the Criminal Procedure Law stipulates: "A criminal suspect may hire a lawyer to provide him with legal advice and represent him in complaint and accusation after the first interrogation by the investigation organ or the day when compulsory measures are taken. If the suspect is arrested, the lawyer hired can apply for bail pending trial. " These provisions show that lawyers have the right to accept the entrustment of criminal suspects and intervene in the proceedings during the investigation stage of a case. But there are still many shortcomings:
First, the suspect has the right to hire a lawyer at the investigation stage, but what is the identity of the lawyer involved in the lawsuit at this time? Legally, it is not called "defender" and its litigation rights are limited. Its role is limited to applying for bail for criminal suspects. Lawyers are called "defenders" only when they are involved in the proceedings at the stage of examination and prosecution, and they enjoy the right of defenders in a complete sense.
Due to the inconsistency of terminology, there is also a great debate about the litigation status of lawyers in the investigation stage. But it is not difficult to find that this is the result of an incomplete understanding of the concept of defense. In the investigation stage, a large number of defenses are procedural defenses, and procedural defenses are not based on formal accusations. Therefore, the litigation status of lawyer defenders in the investigation stage should be clarified. If it is still limited to the defense of the charges, the litigation status of lawyers in the investigation stage will always be neither fish nor fowl.
Second, there are great restrictions on the participation of defense lawyers, mainly because of the consideration of the investigation effect, which shows that the investigation organ still has doubts about the positive role of defense lawyers. In fact, it is necessary for lawyers to participate in the investigation procedure from the overall situation of safeguarding legal dignity, because the investigation procedure is secret and opaque. Without the supervision and restriction of lawyers, how can people believe that the investigation procedure is legal and that there is no torture to extract confessions? The result can only lead to public suspicion and distrust of the law. And because the legality of the investigation is difficult to prove, a large number of defendants have repeatedly retracted their confessions in court on the grounds that the investigation is illegal, which makes the prosecution passive, reduces the efficiency of the lawsuit and is not conducive to the realization of the purpose of the lawsuit.
As can be seen from the above discussion, the traditional defense concept is limited to the defense opposite to the accusation and does not involve the defense at the investigation stage, which is no longer in line with the requirements of today's social development. The defense should be extended to the investigation stage, and only in this way can judicial justice be better realized.
The above analysis of the shortcomings of the traditional concept of defense, and one by one to explain and demonstrate. From this, we can draw the concept of defense: defense is a litigation behavior in which criminal suspects, defendants and their defenders argue, question and advocate against the complaints and procedural violations of the investigating and prosecuting parties in the process of investigation, prosecution and trial, so as to safeguard the legitimate rights and interests of criminal suspects and defendants.