Mnemonic: obvious when the special accusation of death
"Criminal Procedure Law" Article 16 of the following circumstances, not to be pursued criminal responsibility, has been pursued, should be withdrawn from the case, or not to prosecute, or the termination of the trial, or acquittal: (a) the circumstances are significantly less serious, less harmful, is not considered to be a crime; (b) the offense has passed the statute of limitations period; (3) exempted from punishment by a special amnesty; (4) in accordance with the criminal law to deal with the crime of telling, did not tell or withdrew the telling; (5) the death of the suspect or defendant; (6) other legal provisions exempted from the pursuit of criminal responsibility.
2, legal representative and litigation agent
legal representative
litigation agent
difference
according to
law
delegation agreement
Authority
Power
discretionary agent (can not be on behalf of the statement, serve a prison sentence)
limited to the authorization
Effectiveness
Not bound by (the will of the agent)
Cannot be contrary to (the will of the agent)
3. Defenders and litigation agents
Difference
Defense
Criminal agent
Commissioned subjects
Suspects, defendants
1. Victims and their Legal representative or close relatives, the private prosecution and their legal representatives, the parties to the incidental civil proceedings and their legal representatives
2, suspects, defendants fleeing, the confiscation of illegal proceeds of the case of death of the suspect, the defendant's close relatives, as well as other interested parties
3, not criminally responsible mental health care procedures for compulsory medical procedures The respondent or defendant in the
Expression
Self-defense, commissioned defense, legal aid defense
Commissioned agent
Litigation status
Independence
Limited by the will of the agent
Litigation function
Defense functions
A portion of the litigation Agent has prosecution functions (victims of public cases, pro se cases, etc.)
4, witnesses and experts
difference
expert
witness
interest
not available
may be available
assigned to hire
needed
Not Required
Time of Creation
In Litigation
(General) At the Time of the Case
Substitutability
Substitutable
Non-Substitutable
Expertise
Required
Not Required
Qualification Age
Required
Not Required
5, cases that can be investigated by the Procuratorate
Illegal detention, extortion of confessions by torture, illegal searches, etc.; public security organs under the jurisdiction of the other major crimes of duty (such as the use of power by a public official to kill, smuggling, drug trafficking, etc.) Provincial Procuratorate or above decision
6, the people's courts directly accepted cases
Tell only to be dealt with
Insults, Slander cases (except those that seriously jeopardize the social order and national interests)
Violent interference with the freedom of marriage (except those that result in death)
Maltreatment cases (except those that result in serious injuries or death of the victim)
Evasion and misappropriation cases (except those that result in misappropriation of duties)
Minor criminal cases that the People's Procuratorate did not bring a public indictment, and that are proved by evidence from the victim
Intentional injury cases
Illegal intrusion cases
Infringement of freedom of communication cases
Bigamy cases
Abandonment cases
Production and sale of shoddy goods cases (as stipulated in Chapter 3, Section 1 of the Criminal Law Sub-Chapter, except those that seriously jeopardize the social order and the interests of the State)
Infringement of intellectual property rights cases (as stipulated in Chapter 3, Section 1 of the Criminal Law Sub-Chapter)
Infringement of intellectual property rights cases (as stipulated in Chapter 3, Section 1 of the Criminal Law Sub-Chapter
Cases of infringement of intellectual property rights (as provided for in Chapter IV and Chapter V of the Sub-Chapter of the Criminal Law, except those which seriously jeopardize the social order and national interests)
Cases in which the defendant may be sentenced to a term of imprisonment of less than three years, as provided for in Chapters IV and V of the Sub-Chapter of the Criminal Law
Cases in which a public prosecution is transferred to a private prosecution
Cases in which the victim has proof that the defendant's infringement of his or her personal or property rights should be investigated for criminal liability according to law, and there is proof that the victim has previously filed a complaint
Thinking: the handling of competing jurisdictions of the public security organs, procuratorates, supervisory commissions, and courts (emphasis added)
7. Level Jurisdiction
Criminal Cases of First Instance under the Jurisdiction of the Supreme People's Court
Nationally Significant Criminal Cases
Higher People's Courts Criminal Cases of First Instance under the Jurisdiction of the Higher People's Court
Criminal Cases of First Instance under the Jurisdiction of the People's Court of the Province (Autonomous Region or Municipality directly under the Central Government)
Mnemonic: National Fear of Death and Disaster
1, Endangering National Security
2, Terrorist Activity Cases;
3, Cases with Possible Life Imprisonment Sentences
4, cases that may be sentenced to death
5, criminal suspects, defendants fleeing, death of the case of confiscation of illegal proceeds of the proceedings
6, trial in absentia procedures
8, recusal of the application and decision
recusal of persons
decision of the main body
Other considerations of the application and decision
Investigators
General investigators, the head of the public security organ decides to recuse;
Head of the public security organ, the same level of the Procuratorial Committee decides to recuse
1, requesting the head of the public security organ to recuse himself should be proposed to the People's Procuratorate of the same level of the public security organ to be submitted to the Procuratorate Committee by the Procurator-General for discussion and decision
2, the investigator does not stop investigating until a decision is made on recusal Work
3, was decided to recuse the head of the public security organs, investigators before the recusal decision is made on the validity of the procedural activities carried out by the organ making the decision on the basis of the case
Prosecutors
general procuratorial staff, the chief procurator decides to recuse;
Procurator General, Procuratorate Committee decides to recuse
1, Procuratorial personnel who disqualify themselves may do so orally or in writing, stating the reasons. Oral application shall be recorded
2, the Procuratorate shall inform the parties and their legal representatives have the right to apply for disqualification in accordance with the law, and inform the handling of the relevant cases of the names and positions of the prosecutors, clerks and other relevant information
3, Procuratorate Committee to discuss the issue of disqualification of the Procurator General, chaired by the Deputy Procurator General, the Director of the Procurator General shall not participate
4, Prosecutors were decided to disqualify, previously collected evidence and the validity of the proceedings by the Prosecutorial Committee or the Prosecutor General in accordance with the specific circumstances of the case for decision
Trial staff
general trial staff, the President decided to disqualify
President, the Trial Committee decided to disqualify
Clerks, interpreters and appraisers, the President decided to disqualify
1, The trial judge applies for disqualification on his or her own, or the parties and their legal representatives apply for disqualification of the trial judge, can be made orally or in writing, and explain the reasons, the president decides
2. The court shall, in accordance with the law, notify the parties and their legal representatives of the right to apply for disqualification, and the list of the composition of the collegial panel, the single trial judge, the clerk and other personnel
3. Trial Committee When discussing the disqualification of the president, the vice-president shall preside and the president shall not participate
4. On the application for disqualification, the people's court may make a decision orally or in writing
5. The judge shall not have the authority to decide that the prosecutor should be disqualified. If the parties and their legal representatives apply for the recusal of prosecutors appearing in court, the people's court shall decide to adjourn the hearing and notify the People's Procuratorate
9. Notification of legal aid
Public Procuratorates and Law Enforcement Agencies shall notify the legal aid of: blindness, deafness, and mute (with the same can be), mental illness (intermittent, in a state of normalcy at the time of the act), and the possibility of being sentenced to life imprisonment, death penalty, and minors
Legal aid shall notify the legal aid: trial in absentia cases, the defendant and his close relatives did not appoint a defender, the people's court shall notify the legal aid agency to assign a lawyer to provide defense
The court may notify the legal aid: *** in the same crime, the other defendant already has a defender, causing a significant impact, the prosecutor's office to resist the prosecution of the case, the defendant's behavior may not constitute a crime
10, Duty lawyer legal help
Criminal Procedure Law, Article 36: legal aid organizations can be stationed in the people's courts, detention centers and other places on duty lawyer. Criminal suspects, defendants did not appoint a defender, the legal aid agency did not assign a lawyer to provide their defense, the duty lawyer for criminal suspects, defendants to provide legal advice, procedural options, application for a change in compulsory measures, and opinions on the handling of the case and other legal assistance.
The people's courts, people's procuratorates, and detention centers shall inform criminal suspects and defendants of their right to appoint a duty counsel, and shall provide criminal suspects and defendants with facilities for making appointments with duty counsel.
11, restrictions on meeting
crimes against national security, terrorist activities, lawyers need to meet with the investigating authorities before permission, but only limited to the investigative stage.
12, the right to make comments
(Note that the suspect, the defendant is "can" or "should" questioning; their defense is "can" or "should" listen to) "hear" or should be heard)
Review prosecution: should be asked, should be heard
The second non-trial: should be asked, should be heard
Death and review: should be asked, can be
Minors: should be asked, should be listened to
The end of the investigation: the attorney's opinion may be listened to
Application for exclusion: Counsel should be heard
13, refused to defend
should provide legal aid defendants
other defendants
first refused to defend
justified reasons should be allowed
should be allowed
refused to do what
appointed a separate defender or separate legal aid
Appoint another defender or self-defense
Refused again how to do
Not permitted
Can be permitted, can only be self-defense
14, criminal agent types
Different according to the entrusted subject:
Public Prosecution victim agency
Subjects
Victims, Legal representative, close relatives
Time
The date of transfer to trial_prosecution (different from the suspect is from the date of the first interrogation or coercive measures can be entrusted to the defense)
Procuratorate duties
From the date of receipt of the case materials transferred to trial_prosecution of the case should be notified of the right to entrust the agent of the litigation
Prosecution cases
Subjects
Property owners, legal representatives
Time
Anytime
Court Duties
The court shall inform the right to appoint a legal representative within 3 days from the date of accepting the case of private prosecution
Accompanying civil plaintiffs and defendants in the case
Subjects
Accompanying civil litigants , legal representative
Time
Public prosecution, from the date of case examination and prosecution; private prosecution, at any time
Procuratorate duties
From the date of receipt of the case materials transferred for examination and prosecution within 3 days, shall inform the right to appoint a litigation agent
Court duties
From the date of acceptance of the case of private prosecution within 3 days, shall be Inform the right to appoint a legal representative
Property confiscation proceedings
Subject
Close relatives of suspects and defendants
Other interested parties
Psychiatric compulsory medical care
Subject
Respondents and defendants
15, case filing supervision
Contents
Subject
Supervision of the accuser: victims, their legal representatives, close relatives, administrative law enforcement agencies, etc. to the procuratorate
Supervision of procuratorate: procuratorate found that
Objects
should be filed but not; should not be filed but filed
Procedures
(I) Supervision of the filing of cases under the jurisdiction of the public security organs
1. When the investigation_supervision department of the procuratorial organ finds that the public security organ should have filed a case but did not or should not have filed a case but filed a case, it shall request the public security organ to state in writing the reasons for not filing a case or filing a case
2. The public security organ shall justify its case within seven days
3. People's Procuratorate
5, the public security organs in the receipt of notification of filing or notification of the withdrawal of the case more than five days after the book is not filed or neither reconsideration review nor withdrawal of the case, the People's Procuratorate shall be issued to rectify the violation of the law to be corrected. The public security organs still do not correct the report of the people's procuratorate at a higher level to consult with the public security organs at the same level to deal with
6, the public security organs that the procuratorate notice of withdrawal of the case of error can be requested by the people's procuratorate at the same level for reconsideration. The reconsideration of the decision may also be submitted to the people's procuratorate at a higher level for review
(2) for the procuratorial organs of the case of self-investigation supervision
People's procuratorates investigative _ supervision department or public prosecution department found that the investigative departments of this hospital should be investigated in the case of cases that are not reported to the investigation or should not be reported to the investigation of a case for investigation, it should be recommended that the investigative _ department reported to the investigation or withdrawn. Investigation or withdraw the case; recommendations are not adopted, it shall be reported to the Procurator General for decision
16, technical investigation
Applicable conditions:
Public security organs in the filing of the case, for crimes against national security, terrorist crimes, crimes of organizations of a triad nature, major drug-related crimes, or other serious harm to society in accordance with the needs of the investigation of crime The People's Procuratorate may, after strict authorization procedures, take technical investigative measures. After a case has been filed, a people's procuratorate may, in the case of a major crime that seriously infringes on the personal rights of a citizen and is committed with the use of its powers and authority, adopt technical investigative measures in the light of the needs of the investigation of the crime and after strict authorization procedures, and hand them over to the relevant organ for execution in accordance with the regulations. In the pursuit of fugitive criminal suspects or defendants who are wanted or whose arrests have been authorized or decided upon, technical investigative measures necessary for the pursuit may be taken after approval.
Organs
Decision: Public Security Organs, State Security Organs, Procuratorial Organs
Implementation: Public Security Organs, State Security Organs
Reporting Procedures
Where it is necessary to take technical investigation measures, a report on the request for the taking of technical investigation measures shall be made and reported to the head of the public security organ above the level of the city in which the district is located for approval, and a decision on the taking of technical investigation measures shall be made. Measures decision.
Where the people's procuratorate or other department decides to take technical investigation measures and refers them to the public security organ for implementation, the public security organ at or above the level of the city where the area is located shall, after going through the relevant formalities in accordance with the regulations, refer them to the department in charge of technical investigation for implementation, and notify the people's procuratorate or other department of the status of implementation.
Approval Decisions
Approval decisions shall be made in accordance with the needs of the investigation of the crime, and shall determine the types of technical investigation measures to be taken and the objects to which they are to be applied. The approval decision shall be valid for up to three months from the date of issuance. For not need to continue to take technical investigation measures, shall be promptly lifted; for complex and difficult cases, the expiration of the period is still necessary to continue to take technical investigation measures, after approval, the validity period can be extended, each time shall not exceed three months.
In the validity of the period, the need to change the type of technical investigative measures or the applicable object, shall be re-approved procedures.
Objects of investigation
Suspects, defendants and persons directly connected with criminal activities
Covert investigation
In order to find out the facts of the case, when necessary, the person in charge of the public security organ decides that the investigation may be carried out by the person concerned, concealing his or her identity. However, no one may be induced to commit a crime, and no method may be used which may jeopardize public ****security or involve great personal danger. In the case of criminal activities involving the giving of drugs and other contraband or property, the public security organ may, in accordance with the needs of the investigation of the crime, carry out controlled deliveries in accordance with the regulations.
Investigation and Use of Evidence
Materials collected by investigative measures in accordance with the provisions of this section may be used as evidence in criminal proceedings. If the use of such evidence may jeopardize the personal safety of the person concerned or may have other serious consequences, protective measures such as not revealing the identity of the person concerned or technical methods shall be taken, and the evidence may be verified outside the courtroom by the adjudicating officer if necessary.
17, the object of bail pending trial
Control detention additional sentence, a period of ill pregnancy without danger, the expiration of the period is not completed
"Criminal Procedure Law" Article 67: The people's courts, people's procuratorates and public security organs of the following circumstances of the suspect, the defendant, can be released on bail pending trial: (a) may be sentenced to control, detention, or independently apply the additional sentence; (b) If the suspect may be sentenced to fixed-term imprisonment or more, and the release on bail pending trial does not pose a social danger; (c) If the suspect suffers from a serious disease, is unable to take care of himself or herself, or is pregnant or breastfeeding her own child, and the release on bail pending trial does not pose a social danger; (d) If the period of detention has expired, and the case has not yet been concluded, and the suspect is required to be released on bail pending trial. The release on bail pending trial is carried out by the public security organs.
18, residence under surveillance applicable object
Applicable to meet the conditions of the person arrested sick and pregnant only special session; meet the conditions of the bail pending trial can not guarantee the person is not a bond
The Criminal Procedure Law, Article 74: the people's courts, the people's procuratorates and the public security organs of the people's court, the people's procuratorates and public security organs to meet the conditions of the arrest of suspects and defendants in one of the following cases, may be placed under residence under surveillance: (a) suffering from a serious illness, life can not take care of themselves. (a) a person suffering from a serious disease and unable to take care of himself or herself; (b) a woman who is pregnant or breastfeeding her own baby; (c) the sole breadwinner of a person who is unable to take care of himself or herself; (d) where, because of the special circumstances of the case or the need to deal with the case, it would be more appropriate to adopt the measure of residence under surveillance; and (e) where, after the expiration of the period of detention, the case has not yet been concluded and the measure of residence under surveillance needs to be adopted. Where the conditions for release on bail pending trial are met, but the suspect or defendant is unable to provide a guarantor and does not post a bond, he or she may be placed under residential surveillance. Residence under surveillance is carried out by the public security organs.
19, the conditions of prior detention
Real finger edge, self-destruction, flow more knot
Criminal Procedure Law, Article 82 of the public security organs for the current offender or major suspects, if one of the following circumstances, may be detained: (a) is preparing to commit a crime, the implementation of the crime, or in the immediate aftermath of the crime was found; (b) the victim or the presence of the witness identified his crime; (c) the victim or the presence of the person who saw the crime; (d) the victim or the presence of the person who identified the crime. People identified him to commit a crime; (3) in the vicinity or residence found evidence of a crime; (4) attempted suicide, escape or fleeing after the crime; (5) the destruction, falsification of evidence or collusion may be; (6) does not tell the real name, address, identity is unknown; (7) there is a major suspicion of roving crimes, multiple crimes, gang crimes.
20, the conditions of arrest
"Criminal Procedure Law" Article 81: there is evidence of criminal facts, may be sentenced to imprisonment or more criminal suspects, defendants, to take the bail pending trial is not enough to prevent the occurrence of the following social dangers, shall be arrested: (a) the possibility of committing a new crime; (b) there is a danger to national security, public **** security or social order; (c) the real danger; (d) the danger to national security, public security or social order; (e) the danger to national security, public security or social order; (f) the real danger; (g) the real danger. social order; (iii) may destroy or falsify evidence, interfere with the testimony of witnesses or collude in confessions; (iv) may retaliate against victims, informants or accusers; (v) attempt suicide or escape. Approval or decision to arrest shall take into account the nature and circumstances of the suspects or defendants suspected of committing the crime, and their plea of guilty and punishment, as factors to be considered in determining whether or not social danger is likely to occur. Where there is evidence of a crime that may result in a sentence of ten years' imprisonment or more, or where there is evidence of a crime that may result in a sentence of imprisonment or more, where there has been an intentional crime or where the identity of the person is unknown, he or she shall be arrested. If a criminal suspect or defendant who has been released on bail or under residential surveillance violates the provisions on release on bail or residential surveillance and the circumstances are serious, he or she may be arrested.
21, detention necessity review should be recommended for release, change: no crime, minor penalties, more than the term of imprisonment, in line with the conditions of release on bail, residential surveillance
22, protection of witnesses, experts, victims: the state of fear of the black drug
23, the conditions for the convening of a pre-trial conference: the application of the exclusion of non-existent evidence, evidence of a large number of impact
24, the conditions of application of the simplified procedures The conditions of the summary procedure: grass-roots, clear and sufficient, recognize the crime and punishment, no objection
25, summary procedure does not apply: blind, deaf, mute, mental illness, significant social impact, not guilty
26, the summary procedure to the ordinary procedure: not guilty, not responsible for, do not recognize, not clear
27, speedy adjudication procedure conditions of application: grass-roots, three years, clear, plead guilty
28, Expedited adjudication procedures do not apply: blind, deaf and dumb, mental illness, minors, high impact, dissenting, not reconciled Focus: the case of minors can not use the expedited adjudication procedures
29, violation of the law of procedural circumstances: public trial, recusal, procedural rights, trial organization
30, should be on the trial committee: the case of the death penalty to be sentenced to death, the prosecutor's office against the prosecution