Overview of basic principles
The basic principles of criminal procedure are stipulated by the criminal procedure law and run through the whole process or main litigation stage of criminal procedure. Public prosecution organs, legal organs and participants in criminal proceedings must follow the basic code of conduct. In the criminal procedure laws of Japan and Taiwan Province, the basic principles of criminal procedure are often called "criminal procedural doctrine". Scholars in the Republic of China have similar usage.
Edit the characteristics of this paragraph
As a basic code of conduct established by the Criminal Procedure Law, the basic principles of criminal procedure have the following characteristics:
1. The basic principles of criminal procedure embody the basic laws of criminal procedure activities. These basic legal norms have a profound theoretical foundation of law and rich ideological connotation. For example, the principle of open trial requires the court's trial activities to be open to the public from form to content, which makes the trial activities widely supervised by the public. This is the basic guarantee of fair trial procedure and the basic requirement of judicial trial activities.
2. The basic principles of criminal procedure are legal principles clearly stipulated in the Criminal Procedure Law. The basic principles of criminal procedure must be clearly defined by law. Those political or theoretical principles that should be followed in the process of law application are not the basic principles of criminal procedure as long as they are not clearly defined by the Criminal Procedure Law. The basic principles stipulated in China's criminal procedure law include two categories: one is the principle that criminal proceedings and other proceedings must abide by, such as the principle of taking facts as the basis and taking law as the criterion; The principle of equality of all citizens before the law; The principle that citizens of all ethnic groups have the right to use their own spoken and written languages in litigation; The principle of open trial; The principle of protecting the litigation rights of litigation participants; Wait, we call it a general principle. The other is the basic principles peculiar to criminal proceedings, such as: the principle that investigation power, procuratorial power and judicial power are exercised by special organs according to law; The principle that people's courts and people's procuratorates independently exercise their functions and powers according to law; The principle of division of responsibilities, mutual cooperation and mutual restraint; Criminal suspects and defendants have the right to defense, which is a unique principle in criminal proceedings.
3. The basic principles of criminal procedure generally run through the whole process of criminal procedure and have universal guiding significance. The basic principle of criminal procedure is to standardize and adjust the whole criminal procedure, which is applicable to all stages of criminal procedure. Not only the specialized state organs and their staff should abide by it, but all participants in the proceedings should also abide by it. Some specific systems or principles are not the basic principles of criminal proceedings, because they are only applicable to a certain stage of criminal proceedings or are only binding on a specialized agency or litigation participants, and only solve specific litigation problems, such as the final appeal of the second instance, without aggravating the appeal.
4. The basic principles of criminal procedure are legally binding. Although the basic principles are abstract and general, all specific litigation systems and procedures must conform to these principles. Various specific systems and procedures are the concretization of the basic principles of criminal procedure. If you violate these systems and procedures, you will violate the basic principles of criminal procedure and must bear certain legal consequences.
The basic principles of criminal procedure are the basic legal norms established by the Criminal Procedure Law, the summary of the long-term practical experience and fine traditions of public security and judicial organs, which reflect the objective laws and basic requirements of criminal procedure and have important guiding significance for criminal procedure legislation and practice. First of all, a reasonable system of criminal procedure principles is conducive to promoting the scientific legislation of criminal procedure in China. The basic principles of criminal procedure are gradually summarized in judicial practice and clearly stipulated by law, which has important guiding significance for criminal procedure legislation. A perfect system of basic principles of criminal procedure is conducive to guiding the legislature to reasonably set up the status and relationship between public security organs and judicial organs, thus establishing a scientific litigation mechanism and a reasonable criminal litigation legal system. Secondly, the basic principles of criminal procedure also guide the development of criminal proceedings, which is of great significance for public security and judicial organs and participants to correctly understand the criminal procedure law, improve their consciousness of handling cases and litigation according to law, and ensure the correct, legal and timely criminal proceedings. In a word, the basic principles of criminal procedure are closely related to the purpose and task of criminal procedure, which is an important guarantee to guide people to realize the goal of punishing crimes and safeguarding human rights.
The basic principles of China's criminal procedure: the power of investigation, procuratorial power and judicial power shall be exercised by special organs according to law.
Article 3 of the Criminal Procedure Law stipulates that the public security organs shall be responsible for the investigation, detention, execution and pre-trial of criminal cases. The people's procuratorate shall be responsible for the prosecution, approval of arrest, investigation and prosecution of cases directly accepted by procuratorial organs. The people's court is responsible for the trial. Except as otherwise specified by law, no other organ, organization or individual has the right to exercise these powers. This provision determines the basic principle that the power of investigation, procuratorial and judicial power shall be exercised by specialized organs according to law. Specifically, this principle includes the following basic contents:
1. The power of investigation, prosecution and trial is an important part of state power, which is exclusive and can only be exercised by public security organs, people's procuratorates, people's courts and other specialized organs according to law. Except as otherwise provided by law, no other organ, organization or individual may exercise it. Of course, according to the provisions of Articles 4 and 225 of the Criminal Procedure Law, state security organs can exercise the powers of investigation, detention, preliminary examination and execution of arrest enjoyed by public security organs according to law; A prison may exercise the right to investigate criminal cases that occur in the prison; The military security department can also exercise the right to investigate criminal cases within the military.
2. The power of investigation, procuratorial power and judicial power shall be exercised by public security organs, people's procuratorates and people's courts respectively, and cannot be substituted for each other. Xiao Kun. As a national public security organ, public security organs are responsible for the investigation of most criminal cases, and enjoy the right of detention, arrest and pre-trial in the process of investigation. As the legal supervision organ of the country, the people's procuratorate enjoys the right of legal supervision in criminal proceedings, and exercises legal supervision over the filing, investigation activities of public security organs, trial activities of courts and execution activities of executive organs; Procuratorial organs have the right to investigate cases directly accepted by themselves and prosecute criminal cases. As the judicial organ of the country, the court exercises judicial power and has the right to try criminal cases and make judgments.
Strictly abide by legal procedures
Article 3 of the Criminal Procedure Law stipulates that the people's courts, people's procuratorates and public security organs must strictly abide by the relevant provisions of this law and other laws when conducting criminal proceedings. This provision establishes the principle of strict compliance with legal procedures. The basic meaning of this principle is:
When conducting criminal proceedings, the people's courts, people's procuratorates and public security organs must strictly abide by the provisions of the Criminal Procedure Law and other relevant laws, and must not violate the procedures and rules prescribed by law, let alone infringe upon the legitimate rights and interests of the parties and other participants in the proceedings. The "other laws" mentioned here refer to all laws related to criminal proceedings, such as criminal law, court organization law, judge law, procuratorate organization law, prosecutor law, lawyer law, people's police law, etc.
If the people's courts, people's procuratorates and public security organs violate the procedures and rules prescribed by law in litigation activities, the parties and other participants in litigation have the right to lodge complaints and accusations according to law. Organs that violate legal procedures shall bear corresponding legal consequences according to law. According to the provisions of Article 19 1 of the Criminal Procedure Law, if the people's court of second instance finds that the trial of the people's court of first instance violates the provisions of the system of public trial and withdrawal, deprives or restricts the legal litigation rights of the parties, violates the law of organizing a trial, and other illegal circumstances that may affect a fair trial, it shall make a ruling to revoke the original judgment and send it back to the people's court of first instance for retrial. According to article 6 1 of the Supreme People's Court's interpretation, it is forbidden to collect evidence by illegal means. Witnesses' testimony, victim's statements and defendant's statements obtained by extorting a confession by torture or by threatening, luring or cheating shall not be used as the basis for finalizing the case.
People's courts and people's procuratorates independently exercise their functions and powers according to law.
Article 5 of the Criminal Procedure Law stipulates that the people's courts independently exercise judicial power in accordance with the law, and the people's procuratorates independently exercise procuratorial power in accordance with the law, without interference from administrative organs, social organizations and individuals. This provision establishes the principle that people's courts and people's procuratorates independently exercise their functions and powers according to law. The basic meaning of this principle is:
1. The people's courts and people's procuratorates independently exercise judicial power and procuratorial power according to law, without interference from administrative organs, social organizations and individuals. Administrative organs, social organizations and individuals shall not interfere in criminal proceedings conducted by the people's courts and people's procuratorates for any reason or in any way.
This principle emphasizes that the people's courts and people's procuratorates collectively exercise judicial power and procuratorial power, rather than judges and prosecutors independently exercise their functions and powers. Because the people's courts and people's procuratorates implement different leadership systems, the scope of their independent exercise of functions and powers is different. The relationship between the superior and the subordinate of the people's court is a supervisory relationship, not a leadership relationship. The judicial activities of each people's court are independent. The people's court at a higher level can only supervise the people's court at a lower level through the procedure of second instance, the procedure of death penalty review and the procedure of trial supervision. A higher court cannot directly instruct a lower court how to handle a specific case. As far as the people's courts are concerned, single judges and members of the collegial panel have independent jurisdiction over general criminal cases. However, if the collegial panel finds it difficult to make a decision on a difficult, complicated or major case, it shall submit it to the president for discussion and decision. Different from the people's courts, the people's procuratorates have a leadership relationship between higher and lower levels, and the procuratorial organs throughout the country exercise procuratorial power independently. In criminal proceedings, the people's procuratorate at a higher level has the right to instruct the people's procuratorate at a lower level to handle the case, and the people's procuratorate at a lower level must obey it. As far as the people's procuratorates are concerned, the approval of arrest, prosecution and protest is decided by the procurator-general, and major, complicated and difficult cases are discussed and decided by the procuratorial committee.
Although this principle requires the people's courts and people's procuratorates to exercise their functions and powers independently as a whole, the practice of judicial reform in recent years clearly shows that judges enjoy more and more judicial power in court trials.
2. The people's courts and people's procuratorates must strictly abide by the provisions of national laws in the process of independently exercising their functions and powers, and shall not violate legal procedures and rules.
3. The people's courts and people's procuratorates shall, in the process of independently exercising their functions and powers according to law, accept the leadership of China * * * production party, accept the supervision of people's congresses at all levels and report their work to them. This is determined by the political system of our country.
Relying on the masses is one of the characteristics of China's criminal procedure law, which is embodied in Articles 6 and 50. Division of responsibilities, mutual cooperation and mutual restraint.
Article 7 of the Criminal Procedure Law stipulates that in criminal proceedings, the people's courts, people's procuratorates and public security organs shall be responsible for the division of labor, cooperate with each other and restrict each other to ensure the accurate and effective implementation of the law. This provision establishes the litigation principle of division of responsibilities, mutual cooperation and mutual restriction.
"Division of responsibilities" means that public security organs, people's procuratorates and people's courts should perform their respective duties in criminal proceedings in accordance with the provisions of the law. According to the provisions of the Criminal Procedure Law, the public security organs are responsible for the investigation, detention, execution and pre-trial of criminal cases, the people's procuratorates are responsible for the investigation and prosecution of cases directly accepted by the prosecution organs, and the people's courts are responsible for the trial. The division of labor is responsible for requiring the public security and judicial organs to exercise their functions and powers within the statutory scope, which can neither replace each other nor shirk each other.
"Mutual cooperation" means that public security organs, people's procuratorates and people's courts should support each other, cooperate with each other and coordinate with each other on the basis of division of responsibilities, so that criminal proceedings can be smoothly connected, and the tasks of exposing crimes, proving crimes and punishing crimes can be jointly completed, and innocent people can be protected from criminal investigation.
"Mutual restraint" means that public security organs, people's procuratorates and people's courts supervise and restrain each other in criminal proceedings, prevent mistakes from happening, correct mistakes in time and correctly enforce the law.
The division of labor is responsible, mutual cooperation, mutual restriction, close correlation and indispensable. Among them, the division of responsibilities is the premise, and cooperation and restriction are the guarantee for the three organs to exercise their functions and powers according to law and carry out criminal proceedings smoothly. Carrying out this principle is conducive to ensuring the correct handling of cases and the accurate and effective implementation of laws.
People's procuratorates exercise legal supervision over criminal proceedings according to law.
Article 8 of the Criminal Procedure Law stipulates that people's procuratorates shall exercise legal supervision over criminal proceedings according to law. The basic content of this principle is:
In China, the People's Procuratorate is the state's legal supervision organ and has the right to exercise legal supervision over criminal proceedings, civil proceedings and administrative proceedings. In criminal proceedings, the people's procuratorates supervise the legality of the investigation by public security organs, the trial by courts and the execution activities by executive organs. This kind of supervision runs through the criminal proceedings.
At the stage of filing a case, if the people's procuratorate thinks that the public security organ will not file a case for investigation, it has the right to ask the public security organ to explain the reasons for not filing a case. If the people's procuratorate believes that the reason why the public security organ does not file a case cannot be established, it shall notify the public security organ to file a case, and the public security organ shall file a case after receiving the notice.
When the people's procuratorate examines and approves the arrest, it finds that the investigation activities of the public security organ are illegal, and it shall notify the public security organ to make corrections, and the public security organ shall notify the people's procuratorate of the corrections.
In the stage of examination and prosecution, the people's procuratorate may request the public security organ to provide the evidence materials necessary for the trial. If supplementary investigation is needed, it can be returned to the public security organ for supplementary investigation, or it can be supplemented by itself. If the people's procuratorate still believes that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute. This is the last step to supervise the investigation activities of public security organs.
At the trial stage, the people's procuratorate supervises the court proceedings while prosecuting on behalf of the state. If the people's procuratorate finds that the people's court has violated legal procedures in handling cases, it has the right to put forward rectification opinions to the people's court. Local people's procuratorates at various levels shall lodge a protest with the people's court at the next higher level when they think that the judgment or ruling of the people's court at the corresponding level is indeed wrong. If an error is found in a legally effective judgment or ruling, the people's procuratorate has the right to lodge a protest in accordance with the procedure of trial supervision. When a people's procuratorate protests a case, the people's court that accepts the protest shall form a collegiate bench for retrial.
In the execution stage, the people's court shall notify the people's procuratorate at the same level to send personnel to supervise before handing over the death penalty for execution. The organ that approves the temporary execution outside prison shall send a copy of the approval decision to the people's procuratorate. If the people's procuratorate thinks that the temporary execution outside prison is improper, it has the right to issue written opinions to the organ that approved the temporary execution outside prison. After receiving the written opinions of the people's procuratorate, the organ that approved the temporary execution outside prison shall immediately review the decision. The people's procuratorate believes that the people's court's ruling on commutation or parole is improper, and has the right to put forward written correction opinions to the people's court within 20 days after receiving a copy of the ruling. The people's court shall, within 1 month after receiving the rectification opinions, re-form a collegial panel for trial and make a final ruling. In addition, people's procuratorates supervise the legality of the activities of executing organs to execute punishments. If an illegal act is found, it shall notify the executing organ to correct it.
Use one's own language in litigation.
Article 9 of the Criminal Procedure Law stipulates that citizens of all ethnic groups have the right to use their own spoken and written languages in litigation. The people's courts, people's procuratorates and public security organs shall translate for the participants in the proceedings who are not familiar with the local spoken and written languages. In areas where ethnic minorities live in compact communities or where many ethnic groups live together, trials shall be conducted in the local common language, and judgments, notices and other documents shall be issued in the local common language.
This principle includes the following contents: (1) Citizens of all ethnic groups, whether they are parties, defenders, witnesses or expert witnesses, have the right to make statements and debates in their own languages and to write relevant litigation documents in their own languages; (2) In areas where ethnic minorities live in compact communities or where many ethnic groups live together, procuratorial organs and judicial organs shall conduct investigations, prosecutions and trials in the local common language, and issue judgments, notices, notices and other documents in the local common language; (3) If the participants in the proceedings are not familiar with the local language, the public, procuratorial and legal organs have the obligation to assign or hire translators to translate for them.
Criminal procedure is a process of finding out the facts of a case and applying criminal law to conviction and sentencing. In order to ensure that this process is carried out correctly and smoothly, and that the legitimate rights and interests of participants in litigation, especially defendants, are not infringed in litigation, the law should guarantee that all participants in litigation have the right to know the contents of litigation activities related to them, and the defendants have the right to know the charges they are accused of, as well as the right to express their opinions and defend themselves in the course of litigation. If the native language is not used in litigation, it will be difficult for participants to understand the case and effectively exercise their litigation rights. Specifically, the realization of this principle is of great political and litigation significance: (1) It is conducive to the implementation of the principle of national equality stipulated in the Constitution, ensuring that citizens of all ethnic groups, especially citizens of ethnic minorities, enjoy equal litigation rights in criminal proceedings, thus ensuring their corresponding substantive rights, strengthening national unity and cooperation, and promoting people of all ethnic groups to actively carry out socialist construction. (2) to ensure the smooth progress of criminal proceedings and the realization of the purpose of criminal proceedings. The law allows citizens of all ethnic groups to use their own spoken and written languages in litigation, state the case, provide evidence and debate, which is conducive to the people and procuratorial and judicial organs to accurately and timely find out the true situation of the case and correctly handle the case. (3) guarantee the realization of other principles of criminal procedure. Without this principle, it is difficult to realize the principles of open trial, equal application of law and debate. (4) It is helpful for local people to know about cases and lawsuits, educate the masses on the legal system, enhance citizens' legal concept and improve their enthusiasm in cracking down on crimes.
Except under statutory circumstances, the trial shall be held in public. People's courts must hear cases in public and pronounce judgments. Citizens should be allowed to sit in on the court and journalists should be allowed to report. Criminal suspects and defendants have the right to be defended.
Article 1 1 of the Criminal Procedure Law stipulates that when the people's court hears a case, the defendant has the right to be defended, and the people's court has the obligation to ensure that the defendant is defended. The basic meaning of this principle is:
1. During the whole criminal proceedings, criminal suspects and defendants have the right to defend themselves. From the stage of examination and prosecution, criminal suspects and defendants have the right to entrust defenders. At the trial stage, if the defendant meets the relevant conditions stipulated by law, the court shall appoint a lawyer to provide legal aid.
2. According to the provisions of Article 96 of the Criminal Procedure Law, a criminal suspect may hire a lawyer to provide legal advice, complaints and accusations after being interrogated for the first time by the investigation organ or from the date when compulsory measures are taken. According to this provision, criminal suspects can get legal help from lawyers in the investigation stage, thus effectively exercising their right to defense.
The people's court has the obligation to ensure that the defendant is defended. In the trial procedure, the people's court shall promptly inform the defendant who has not entrusted a defender that he has the right to entrust a defender, and appoint a lawyer who undertakes the obligation of legal aid to defend the defendant under legal circumstances. In court proceedings, the people's court shall ensure that the legitimate defense behavior of the defendant and his defenders is not disturbed. Of course, this provision also applies to public security organs and people's procuratorates, both of which have the obligation to protect the defendant's defense.
No one can be convicted without a court ruling according to law.
Article 12 of the Criminal Procedure Law stipulates that no one shall be found guilty without a judgment by the people's court according to law. The basic meaning of this principle is:
1. In criminal proceedings, the right to determine the defendant's guilt is uniformly exercised by the people's court. In criminal proceedings, judicial power can only be exercised by the people's court in accordance with the law, and no other organ, organization or individual has the right to exercise it. Judicial power includes conviction power and sentencing power. The people's court is the only organ that has the power to determine a person's guilt and sentence him to punishment. In the process of investigation, examination and prosecution of criminal cases, public security organs and people's procuratorates can transfer criminal suspects to prosecution and public prosecution according to the facts and evidence that have been ascertained, but their determination of the guilt of criminal suspects and defendants will only bring about the effect in the sense of litigation, not the final guilty verdict. Only the conviction judgment made by the people's court according to law is the authoritative declaration of the state on the defendant's guilty conclusion.
2. The judgment of the people's court must be made according to law. When the people's court finds the defendant guilty in criminal proceedings, it must, in accordance with the provisions of the Criminal Law and the Criminal Procedure Law, find out the facts through trial, make a guilty verdict according to law and make a public announcement. Without legal procedures, the people's court shall not determine that anyone is guilty.
China's criminal procedure law embodies the spirit of this principle in the following aspects: canceling the conviction right that the people's procuratorate has had for a long time in the name of exemption from prosecution, so that the conviction right is exclusively exercised by the court; The person subject to criminal prosecution is always called "criminal suspect" in the stage of investigation, examination and prosecution, and is renamed "defendant" after prosecution by the procuratorate; The procuratorial organ has the right to make a decision not to prosecute a case that it considers that the evidence is insufficient and does not meet the conditions for prosecution; If, after hearing the case, the collegial panel considers that the facts of the case are unclear and the evidence is insufficient, and the defendant cannot be found guilty, it shall make an acquittal on the grounds that the evidence is insufficient and the alleged crime cannot be established.
Safeguard the litigation rights of litigation participants.
Article 14 of the Criminal Procedure Law stipulates that the people's courts, people's procuratorates and public security organs shall guarantee the litigation rights enjoyed by participants in litigation according to law. In the case of a minor under the age of 18 who commits a crime, the legal representatives of the criminal suspect and the defendant may be notified to be present during interrogation and trial. Participants in litigation have the right to sue judges, prosecutors and investigators for violating citizens' litigation rights and personal insults. The meaning of this principle is:
1. Litigation rights are legal rights enjoyed by participants in litigation and are protected by law. Public security and judicial organs shall not deprive them in any way. Moreover, the public security and judicial organs have the obligation to ensure that the participants fully exercise their litigation rights, and the public security and judicial organs have the obligation to take measures to stop all kinds of behaviors that hinder the participants from exercising their litigation rights in criminal proceedings.
2. Participants in litigation have the right to use legal means to safeguard their litigation rights when their litigation rights are infringed. If they sue or ask the public security and judicial organs to stop it, the relevant organs should seriously investigate and deal with the acts that infringe on citizens' litigation rights.
3. The litigation rights of litigation participants should be protected, but this does not mean that litigation participants can give up their litigation obligations. The public security and judicial organs have the obligation to protect the litigation rights of the participants in the proceedings, and also have the right to require the participants in the proceedings to perform the corresponding litigation obligations, otherwise, the criminal proceedings will not be carried out smoothly.
Protecting citizens' litigation rights according to law is the consistent principle of China's criminal procedure and the symbol of democracy, justice and civilization in China's criminal procedure. Only by effectively protecting the litigation rights of litigation participants can the legitimate rights and interests of litigation participants not be infringed, and the litigation participants can actively participate in the litigation, ensure the smooth progress of criminal litigation, and ensure the realization of criminal litigation tasks and objectives. At the same time, safeguarding the litigation rights of litigation participants is also conducive to promoting the public, procuratorial and legal organs to continuously improve and perfect their work, fully exercise their functions and powers, and effectively investigate and crack down on crimes.
If there are legal circumstances, criminal responsibility shall not be investigated.
Article 15 of the Criminal Procedure Law establishes the principle of not pursuing criminal responsibility under legal circumstances. Specifically, the statutory circumstances of not being investigated for criminal responsibility mainly include:
1. The circumstances are obviously minor and harmless, and it is not considered a crime according to the provisions of the Criminal Law.
2. The crime has passed the limitation of prosecution. The criminal law stipulates the time limit for prosecution of criminal offences: if the statutory maximum penalty is fixed-term imprisonment of not more than five years, after five years; The maximum legal penalty is fixed-term imprisonment of more than 5 years 10 years, 10 years later; The maximum legal penalty is fixed-term imprisonment 10 years or more, after 15 years; If the maximum legal punishment is life imprisonment or death penalty, after 20 years. Those who exceed the above statutory limitation of prosecution shall generally not be investigated for criminal responsibility.
3. Freedom from punishment through pardon. In China, the NPC Standing Committee has the power to decide on amnesty. This Amnesty has the legal effect of terminating the criminal investigation.
4. Failing to tell or withdraw a crime that should be dealt with according to the criminal law. Cases handled after being told are based on the complaints of the victims. If the victim fails to file a complaint or withdraw his complaint, the investigation of such cases will lose its legal basis.
5. The criminal suspect or defendant dies. The criminal law implements the principle of self-responsibility and opposition to involvement. If a criminal suspect or defendant dies, it is meaningless to investigate criminal responsibility and it will not be investigated.
6. Other laws provide for exemption from criminal responsibility. The Criminal Procedure Law and the judicial interpretation of the Supreme People's Court provide different ways to deal with the above-mentioned cases that are not investigated for criminal responsibility according to law. Specifically, in the filing stage, if the people's court finds that a private prosecution case has one of the above circumstances, it will not be accepted. In any of the above circumstances, the public security organ and the people's procuratorate shall make a decision not to file a case. In the investigation stage, in any of the above circumstances, the investigation organ shall reject the case. In the stage of examination and prosecution, the people's procuratorate shall make a decision not to prosecute under any of the above circumstances. At the trial stage, the people's court shall declare innocence in the first case mentioned above. In other cases, the trial should generally be concluded. However, if the defendant who has died can be confirmed innocent according to the facts of the case that have been ascertained and the evidence materials that have been identified, the people's court shall declare the defendant innocent.
Investigating foreigners' criminal responsibility is applicable to China's criminal procedure law
Article 16 of the Criminal Procedure Law stipulates that if a foreigner commits a crime and should be investigated for criminal responsibility, the provisions of this law shall apply. If a foreigner who enjoys diplomatic privileges and immunities commits a crime and should be investigated for criminal responsibility, it shall be resolved through diplomatic channels. The basic meaning of this principle is:
1. If a foreigner commits a crime and should be investigated for criminal responsibility, the provisions of China's Criminal Law and Criminal Procedure Law shall apply. Foreigners here include people with foreign nationality, stateless people and people with unknown nationality. As a sovereign and independent country, foreigners, like China people, should abide by the laws of China within the jurisdiction of our country. When foreigners' acts violate the criminal law and should be investigated, the public security and judicial organs should carry out filing, investigation, prosecution and trial activities in accordance with the provisions of China's criminal procedure law.
2. According to international practice, if a foreigner who enjoys diplomatic privileges and immunities commits a crime and should be investigated for criminal responsibility, it shall be settled through diplomatic channels. According to the Regulations on Diplomatic Privileges and Immunities of People's Republic of China (PRC) adopted by the 6th the National People's Congress Standing Committee (NPCSC) on September 5th, 1986, foreigners enjoying diplomatic privileges and immunities include: diplomatic representatives of foreign embassies in China, their spouses and minor children living with them; Foreign heads of state, government, foreign ministers and other officials with the same status visit China; Foreign diplomatic representatives in third countries who pass through China and their spouses and minor children who live with them; Diplomatic officials who come to China with China diplomatic visas or passports; Other foreigners who enjoy diplomatic privileges and immunities with the consent of the China Municipal Government. The crimes committed by the above-mentioned persons in China are not under the criminal jurisdiction of China law, but are resolved through diplomatic channels. The solution can be to suggest that the sending country recall and deal with it according to law; Or a person who is declared persona non grata, shall be ordered to leave the country within a time limit; Or the government of China announced its deportation.
Criminal judicial assistance
Article 17 of the Criminal Procedure Law stipulates that according to the international treaties concluded or acceded to by People's Republic of China (PRC) or the principle of reciprocity, China judicial organs and foreign judicial organs may request criminal judicial assistance from each other. This provision establishes the basic principles of criminal judicial assistance.
Judicial assistance in criminal proceedings refers to the relationship between China judicial organs and foreign judicial organs. On the basis of treaties concluded or international treaties acceded to by each other and the principle of reciprocity, they assist each other and conduct certain criminal proceedings on their behalf.
The basic meaning of the principle of criminal judicial assistance is:
1. The subjects of criminal judicial assistance are China judicial organs and foreign judicial organs. The judicial organs here are broad, including the courts and procuratorial organs of both sides. China joined Interpol on 1984, so the cooperation between China public security organs and foreign police organs is usually carried out through Interpol. The Judicial Assistance Bureau of the Ministry of Justice, as the central organ of China's foreign judicial assistance, is responsible for external contacts.
2. The legal basis of criminal judicial assistance includes treaties or agreements concluded between China and foreign countries, international treaties containing judicial assistance to which China is a party and the internationally recognized principle of reciprocity.
3. The contents of criminal judicial assistance mainly include service of documents, investigation and evidence collection, mutual entrustment of identification, inspection, search, seizure, mutual notification of witnesses and expert witnesses to appear in court, and mutual collection of physical evidence, documentary evidence and other evidence. In addition, criminal judicial assistance also includes the important content of extradition. The so-called extradition refers to the system that a country transfers a person who was in its territory at that time and was accused of a crime or sentenced by another country to another country for trial or punishment at the request of another country. Extradition between China and foreign countries is based on extradition treaties signed with foreign countries.