In this case, when the three defendants tried the case in court, they found that Judge Li's son had been beaten by them and was detained and fined by the public security organs for this matter. They think that Li's participation in handling this case may be unfair and has ideological concerns. Therefore, it is in line with the provisions of the Criminal Procedure Law to apply to our court for the withdrawal of Judge Li.
However, the collegial panel of a district people's court did not seriously consider the application for withdrawal put forward by the three defendants during the trial, nor did it report it to the president of the court for approval, which violated the withdrawal system stipulated in China's criminal procedure law. The correct way is to report the application for withdrawal of the three defendants to the dean after the recess to decide whether to let Judge Li withdraw.
2. According to China's Constitution, the Organic Law of the People's Procuratorate and the Criminal Procedure Law, the People's Procuratorate is the state's legal supervision organ and has the right to exercise legal supervision over criminal proceedings according to law. In the trial of criminal cases, the people's procuratorate has a dual identity and undertakes dual functions: on the one hand, it undertakes the function of accusing crimes as a state prosecutor;
On the other hand, as a legal supervisor, he undertakes the function of supervising judicial activities. Article 169 of China's Criminal Procedure Law also stipulates in detail: "The people's procuratorate has the right to put forward rectification opinions to the people's court when it finds that the people's court violates the legal procedures."
What is stipulated here is the supervision of the people's procuratorate on the legality of the trial procedure. The main contents of this supervision are: whether the members of the court are legal; Whether the trial of the case is conducted in accordance with the procedures prescribed by law;
Whether the litigation rights of the parties and other litigation participants are guaranteed; Whether the decisions made on procedural issues during the trial are legal, etc. In this case, Song, the prosecutor of a district people's procuratorate who appeared in court to support the public prosecution, believed that the collegial panel rejected the application for withdrawal of the three defendants, which violated the withdrawal system stipulated in China's criminal procedure law, that is, it was legal to put forward rectification opinions to the court and correctly performed legal duties. It is very wrong for the collegial panel to reject the public prosecutor's opinion and decide to continue the trial.
3. It is wrong for the court staff to refuse to accept the defense of the defendant Jeff's lawyer Jin Feng:
First, the duty of defense lawyers is to put forward materials and opinions on the defendant's innocence, light crime, reduction or exemption from criminal responsibility according to facts and laws. Defense lawyers defend according to law, which is neither bound by the defendant's will nor influenced by the judge's will and opinions.
Members of the collegial panel cannot demand that the opinions of defenders must be consistent with their own opinions or viewpoints. Lawyer's defense is an important way for the defendant to exercise his right of defense. The people's court shall give full consideration to the opinions of defense lawyers.
Second, according to the Supplementary Provisions on Lawyers' Participation in Litigation, the people's court can verify the evidence provided by lawyers when necessary. The written evidence, defense words and proxy words formally submitted by lawyers to the people's court must be recorded by the people's court.
It can be seen that lawyer Jin Feng, the defender of the defendant Jeff in this case, submitted a defense to the court according to law. The people's court can refuse to adopt the defense on grounds, but it is illegal for the court staff to refuse the defense. On the contrary, the files should be collected in accordance with the regulations.
4. Article 163 of China's Criminal Procedure Law stipulates that all judgments shall be publicly announced. If the verdict is pronounced in court, it shall be served on the parties concerned and the people's procuratorate that initiated the public prosecution within 5 days; If the sentence is pronounced on a regular basis, it shall be served on the parties concerned and the people's procuratorate that initiated the public prosecution immediately after the announcement. It can be seen that the judgment can be pronounced in court or on a regular basis, but after the judgment is pronounced, the judgment should be served according to law.
In this case, the people's court of a certain district made guilty verdicts against three defendants, and chose the method of regular public pronouncements, all of which were legal. However, it is wrong to serve the verdict on the three defendants and their defenders and the people's procuratorate that initiated the public prosecution on the third day after the verdict is pronounced. Because the Criminal Procedure Law clearly stipulates that those who are sentenced regularly shall serve their sentences immediately.
5. It took a district people's court two months and eight days from acceptance to judgment, which exceeded the time limit for handling cases in the first instance stipulated in the Criminal Procedure Law. Article 168 of China's criminal procedure law stipulates: "When trying a case of public prosecution, the people's court shall pronounce a judgment within 1 month after accepting it, and it shall not exceed 1.5 months at the latest.
Under any of the circumstances specified in Article 126 of this Law, it may be extended by 1 month with the approval or decision of the higher people's courts of provinces, autonomous regions and municipalities directly under the Central Government. If the people's court changes its jurisdiction, it shall be counted from the date when the changed people's court receives the case. The people's court shall recalculate the time limit for hearing a case transferred to the people's court after the supplementary investigation by the people's procuratorate is completed. "It should be pointed out that the probation period is calculated from the day after the people's procuratorate files a public prosecution;
The trial period of public prosecution cases that change jurisdiction or supplement investigation shall be recalculated; If the people's court of second instance remands the case to the people's court of first instance for retrial, the people's court of first instance shall recalculate the trial period from the date of receiving the remanded case; The time limit for psychiatric appraisal of the defendant is not included in the time limit for handling cases.
In this case, the people's court of a certain district tried the case of intentional injury of three defendants, which lasted for two months and eight days from the acceptance to the sentencing. During this period, it was not approved by the higher people's court, and it did not belong to the situation that the people's procuratorate changed its jurisdiction and supplemented its investigation. Therefore, the trial period of this case does not comply with the law.
6. After accepting the appeal, the Intermediate People's Court of a certain city formed a collegial panel composed of judges Wang Moumou, Zhu Moumou and people's juror Li Moumou, which did not conform to the provisions of the Criminal Procedure Law. Paragraph 4 of Article 147 of China's Criminal Procedure Law stipulates: "The people's court shall try cases of appeal and protest by a collegial panel of three to five judges."
This case is a case of second instance. According to the law, it can only be tried by a collegial panel of judges, and the jury system is not applicable. Therefore, it is illegal for an intermediate people's court in a city to hear an appeal case by a collegial panel composed of judges and people's jurors.
7. A city intermediate people's court ruled that the original judgment was in favor of the defendant, and the sentence imposed on Jeff was too light, so it revoked the original judgment and sent it back to the original people's court for retrial, and ordered the original people's court to give a heavier punishment to the defendant who did not appeal, which violated the system of final appeal of second instance. After the people's court of second instance sent the case back for retrial, the court of first instance tried it again. Therefore, the judgment of a case can only be based on the re-examination of facts and evidence according to law, and it is made by the legal trial organization of first instance according to law.
Before this, if the court of second instance gives instructions on the specific conclusion of the first-instance judgment, it will not only exceed its authority, but also affect and interfere with the independent exercise of judicial power by the court of first instance according to law, making the system of final adjudication of two trials essentially the system of final adjudication of first instance, thus making the appeal or protest after the judgment of the case invalid. At the same time, this practice also violates the principle of no additional punishment on appeal.
Paragraph 190 of China's criminal procedure law clearly stipulates: "The people's court of second instance shall not aggravate the punishment of the defendant when hearing the case appealed by the defendant, his legal representative, defender and close relatives." In this case, only the defendant appealed unilaterally, and the people's procuratorate did not protest. In this case, the court of second instance aggravated the defendant's punishment on the grounds that the sentence was too light, which is not essentially different from the court of second instance. This is obviously a deliberate evasion of the law.
8. According to the relevant provisions of China's Criminal Procedure Law, the people's court of second instance may decide to revoke the original judgment and send it back to the people's court of first instance for retrial. First, the facts of the original judgment are unclear or the evidence is insufficient; Second, the original judgment seriously violated legal procedures. This is not only a requirement for the second trial, but also a constraint on the second trial. In this case, the original judgment did not appear in one of the above two situations, but the sentence was improper, so it did not have the legal conditions for sending it back for retrial.
9. After the case is sent back for retrial, the county people's court will organize the same trial.