Dictionary of Criminal Law: Defendant's Relative Defense. In criminal proceedings, if the defendant and his defenders defend or refute the defendant's innocence or light crime, they shall be given a lighter, mitigated or exempted criminal punishment.
Criminal Procedure Law (edited by Cheng): Defending in criminal proceedings, proving the charges of criminal suspects, criminal suspects, defendants and their defenders against public prosecution organs, mitigating or exempting the defendants who do not plead guilty, and safeguarding the legitimate rights and interests of criminal suspects and defendants.
Criminal Procedure Law of the New Code (edited by Zhonglin Zhang): The defense in criminal proceedings refers to the litigation activities that require the defendant and his defenders to refute the evidence and reasons in the indictment from the facts and laws that are beneficial to the defendant, and prove that the defendant is innocent, guilty or relieved of criminal responsibility.
From the above concepts, we can see that there are three problems:
"Demonstration" and "proof" use the concept of defense to prove the responsibility of confusion.
Defense is about the innocence, light crime, reduction or exemption of criminal responsibility of criminal suspects and defendants. Refers to physical defense, not program defense.
3 Defend complaints, no complaints, no defense. This does not include 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 obligation to prove their innocence. Only in the crime of huge property of unknown origin can the burden of proof be reversed, but this article is the only exception. Under normal circumstances, criminal suspects and defendants do not bear the burden of proof. Article 235 of China's Criminal Procedure Law stipulates that "the defender's responsibility is to give opinions on the materials and exemption reasons that prove that the criminal suspect and defendant do not plead guilty, the crime is light or mitigated, and the legitimate rights and interests of the criminal suspect and defendant are safeguarded. "It can be seen that on the one hand, the burden of proof of responsibility is borne by the prosecution, and on the other hand, the burden of proof is stipulated by the defender's law; The defense clause, on the one hand, is the right to appeal, on the other hand, it is to set up a defense line to prove the offender. In order to be endowed with legal rights, the structural relationship between the prosecution and the defense has actually reached a balanced structural relationship. The criminal suspects and defendants proved by the procuratorial organs are guilty, and the defense proves their innocence. You testify for you, and I allow my results. If the defense can't prove the suspect, the defendant will not plead guilty, which will probably lead to the presumption of guilt. In criminal proceedings, the defense function can only prove the corresponding rebuttal, but not prove it. Of course, this rebuttal proof method can be used in technology and thinking, providing evidence in a tit-for-tat manner, refuting the prosecution's claim and safeguarding the legitimate rights and interests of employees, criminal suspects and defendants.
Refutation is actually a positive way to defend rights in the above discussion, but if the complainant can't produce evidence to refute the prosecution's claim, must he lose the case? This involves the second form of national defense. Although the complainant can't produce convincing evidence to refute the prosecution's claim, he can question the prosecution's evidence and point out the problems in the prosecution's evidence, so that it can reach the scope required by the standard of proof, and the interests of the prosecution will be attributed to the defendant. This is because the proof of establishment is different from the requirement of refuting the establishment claim. Proof is not only true, but also requires sufficient evidence. In the process of argumentation, we must follow the legal logic to refute the opposite views. No matter whether the rebuttal is completed by the prosecution through positive tit-for-tat evidence, the evidence cannot be presented on its own initiative, but it is illogical for the prosecution to question and refute in the process of presenting evidence. Some scholars call this defense evidence defense.
The traditional concepts of "proof" and "proof" are borne by the defense. Confused, he refuted and questioned, and replaced the old concept proof and demonstration words with words.
(2) On the second question, with the development of modern human rights concept and the perfection of constitutional system, people gradually realize that there are also different forms of independent entity defense-procedural defense.
Some scholars have put forward opinions on procedural defense, prosecution procedure for violating national defense policy, personal rights of criminal suspects and defendants who violate rules, and democratic rights of defensive behavior. Procedural defense is defined as "judging national defense activities in the execution of national defense procedures." (2) It can be seen that the procedural defense is not directly aimed at exemption, prompting the court to make a judgment, but is applied to the exercise of litigation rights or a certain litigation behavior through procedures. Gao, a famous American lawyer, said that procedural defense is the best defense because it "accuses the police, prosecutors and judges of violating procedures and urges the court to review the legality of these acts." Because of this, procedural defense has become a form of "defensive offensive defense".
Procedural defense of illegal acts in the prosecution procedure violates the due process rules of public institutions participating in criminal proceedings. In the investigation stage of administrative crime mode, there is a lack of necessary judicial review mechanism, so most procedural violations occur in the investigation stage, and the police have the right to defend the criminal suspects and defendants who violate the procedures. Article 75 of China's Criminal Procedure Law: "Criminal suspects, public security organs and lawyers who have taken compulsory measures beyond the statutory time limit have the right to demand the cancellation of compulsory measures. "It can be seen that China's laws have provisions on procedural defense clauses, but it is not enough to only require these provisions. If we really want to implement procedural defense, we need to make a broader plan for the participation right of defense lawyers and meaningfully participate in the effective influence and role of lawyers on the referee.
The right relief theory of procedural defense is closely related, and it is a way to provide rights relief for citizens. There was no relief, no right and no right to relief before. "Because some rights have been violated, if even your own criminal can't put forward his own requirements and can't reach the referee, he won't be able to resort to the right of law, and there is no point in existence. The remedy of constitutional rights, more importantly, procedural defense, is mainly devoted to the remedy of abuse of constitutional rights, which is indispensable and must be strong.
It is pointed out that substantive defense ignores procedural defense, and procedural defense factors of traditional defense ideas should be injected into defense.
(3) On the third question. "Only when a person is accused of a crime does he need a defense." Therefore, it can naturally be inferred whether there is defense in the investigation stage, and defense only begins in the earliest stage of examination and prosecution, but it is the development trend of the criminal law and procedural law world that lawyers fully participate in defending criminal suspects in the investigation stage. "The history of litigation and the extension of the right of defense before trial. In the process of criminal proceedings, the pilot program has been extended from the trial stage. (4) We need to advance the national defense investigation stage.
In judicial practice, prosecution and trial depend on the investigation results to a great extent. In fact, more than 99% of them rely on the conviction rate to maintain a strong investigation. In a sense, it can be said that the procedure that really determines the fate of criminal suspects and defendants is not trial, but investigation. ⑤ The investigation result is based on the investigation judge's foresight of the judge's judgment result. Due to the great influence of the defendant's fate in the investigation procedure, the people in the investigation stage of the procuratorate can't fully and effectively carry out national defense investigation, and the defense effectiveness in each stage will be greatly weakened, which is simply not available in the whole criminal justice process. In addition, our investigation mode is a secret and opaque administrative crime mode, lacking the necessary supervision and judicial review mechanism, and it is rare for the investigation organ to have such great power. According to the current law, the state can investigate, search, seal up, detain and monitor all other measures approved by the public security organs except the arrest of the procuratorate, without the approval of the procuratorate, and the public security organs decide to prosecute and investigate the crime of corruption and bribery. The investigation and public security organs with the same power, who is in charge of the investigation organ, have so much power that they lack necessary, reasonable and effective restrictions. If there is no lawyer to defend it, the status of the prosecution and the defense will be seriously unbalanced, which will further affect the entire criminal justice system.
The participation of defense lawyers in the investment portfolio of state officials and individuals has become a single criminal model-not only an independent state organ, but also an independent political party-social forces (6) Compared with public prosecution organs, the participation of defense lawyers embodies a kind of checks and balances, strengthens the accusation of weak position, protects the human rights of criminal suspects and maintains the fairness of procedures. "At the beginning of the litigation, the defendant participated in legal aid in a more timely and effective manner, with a wider scope, and played a' head-to-head balance' with the prosecutor's ability. The defense lawyer participated in the defense in the investigation stage, and the defendant made full defense preparations, investigated and collected sufficient defense evidence, and put forward convincing defense claims. In the process of trial, the form of the judge's judgment has had an effective impact. ⑦ It is a common practice for defense lawyers to provide legal aid to criminal suspects in the proceedings at the investigation stage, and it is also an internationally recognized convention. The Basic Principles on the Role of Lawyers and Defence Lawyers at the Stage of Criminal Proceedings adopted by the United Nations 1990 set some minimum standards. Article 1 of the Convention stipulates: "Everyone has the right to ask them to choose a lawyer to help protect and establish their rights and defend them at all stages of criminal proceedings. The provisions of article 7 should also ensure that all persons arrested or detained, regardless of whether they are charged with a criminal offence, should be contacted by a lawyer promptly, and in any case no later than 48 hours after their arrest or detention. It can be seen that "lawyers fully participate in China's criminal procedure law in the process of investigation" meets the needs of international integration. In order to conform to international practice, Article 96 of China's revised Criminal Procedure Law stipulates that "the lawyer's participation in criminal proceedings is advanced from the trial stage to the investigation stage": "After the criminal suspect is interrogated for the first time by the investigation organ or takes compulsory measures, he can hire a lawyer to provide legal advice and appeal, accuse and arrest the criminal suspect, and the lawyer you hire can apply for bail pending trial." These provisions show that lawyers have the right to accept the entrustment of criminal suspects to intervene in litigation during the investigation stage, but there are still many imperfections:
First, the suspect has the right to hire a lawyer in the investigation stage, but the lawyer's position in participating in the lawsuit is not called "guardian" in legal language, and his agency right is very limited. Its function is to apply for limited bail for criminal suspects, and lawyers intervene in the proceedings at the stage of examination and prosecution, which means that they are called "guardians" and have the right to complete their defenders.
Because the terminology is not uniform, the identity litigant is in the investigation stage. However, it is not difficult to find that this is a comprehensive result of understanding the concept of defense. In the investigation stage, a large number of defenses are procedural defenses, and procedural defenses are not the premise of formally accusing lawyers of their litigation status in the investigation stage. It should be clear. If it is still limited to defense complaints, the litigation status of lawyers in the investigation stage will always be neither fish nor fowl.
There are many restrictions on the participation of defense lawyers, mainly due to the consideration of investigation effect, which shows that there are still some doubts about the positive role of defense lawyers in investigation organs. In fact, it is necessary for lawyers to intervene in the investigation process from the overall situation and safeguard the dignity of the law, because the investigation process is secret and opaque. If you don't have the supervision and control of lawyers, how can people believe that the investigation procedure is legal and how can people, I believe, be tortured? The result can only lead to the public's suspicion and distrust of the law, and it is difficult to prove the legitimacy of the investigation, which leads to a large number of defendants repeatedly trying to find out the reasons for illegal acts and retreating in court, and the prosecution is in a passive position, which reduces the efficiency of litigation and is not conducive to the realization of the purpose of litigation.
Therefore, from the above discussion, we can see that the traditional concept of limited defense, as a stage of opposing defense and national defense investigation, can no longer meet the requirements of today's social development. It should be extended to the stage of national defense investigation. The only way is to better realize judicial justice without involving complaints.
The above analysis of the shortcomings of the traditional concept of defense, and explain their statements one by one. From the concept of defense, it can be concluded that defense is the right of criminal suspects, defendants and their defenders to refute the questioning claims in the investigation, prosecution, trial and investigation of illegal entities and procedures complained by third parties, so as to protect the legitimate rights and interests of criminal suspects and defendants in litigation.