First, the relevant provisions of the Criminal Procedure Law and relevant judicial interpretations copy the main evidence.
Article 150 of the Criminal Procedure Law of People's Republic of China (PRC) stipulates that if the facts of the crime charged in the indictment are clear, and a list of evidence, a list of witnesses and copies or photos of the main evidence are attached, the people's court shall, after examination, decide to hold a hearing. This article stipulates that when prosecuting, the indictment should contain the clear facts of the alleged crime, with a list of evidence, a list of witnesses and copies or photos of the main evidence.
Article 36 of the Provisions of the Supreme People's Court the Supreme People's Procuratorate Ministry of Public Security, Ministry of National Security and Ministry of Justice the National People's Congress Standing Committee (NPCSC) Law Committee on Several Issues Concerning the Implementation of Criminal Procedure Law stipulates that: According to the provisions of Article 150 of the Criminal Procedure Law, when a people's procuratorate initiates a public prosecution, it shall obtain copies or photos of the main evidence of all criminal facts from the people's court. "Main evidence" includes: (1) the main evidence of all kinds of evidence involved in the indictment; (2) Being determined as the main evidence among multiple similar evidences; (three) as evidence of surrender, meritorious service, recidivism, suspension, attempted, justifiable defense. When the people's procuratorate transfers a specific case for prosecution, it shall determine the "main evidence" according to the above provisions. The regulation points out that the main body of determining "main evidence" is the people's procuratorate, and the determination of main evidence should be carried out in accordance with the regulation.
Article 116 of the Supreme People's Court's Interpretation on Several Issues in Execution stipulates that after receiving the indictment, the people's court shall appoint a judge to examine the following contents: ... (5) Whether copies or photos of the main evidence that can prove the nature and circumstances of the alleged criminal act are attached; ..... The main evidences mentioned in Item (5) of the preceding paragraph include: 1. The main evidence in the types of evidence specified in Article 42 of the Criminal Procedure Law involved in the indictment; 2. Multiple evidences of the same kind are identified as main evidences; If there is only one kind of evidence, the evidence shall be the main evidence; 3. Evidence such as surrender, meritorious service, recidivism, suspension, attempted defense, excessive defense, etc. are used as statutory sentencing circumstances. This clause stipulates that the judge has the right to examine whether the copy of the main evidence has been taken according to the explanation in item (5) above.
Article 282 of the Criminal Procedure Law of the People's Procuratorate of the Supreme People's Procuratorate stipulates that when a people's procuratorate initiates a public prosecution, it shall transfer the indictment, the list of evidence, the list of witnesses and the copies or photos of the main evidence to the people's court. ..... If the appraisal conclusion and the record of the inquest have been taken as the main evidence, if the names of the appraiser and the producer of the record of the inquest have been specified, they will not be taken separately. This article stipulates that when a people's procuratorate initiates a public prosecution, it shall transfer a copy of the main evidence to the people's court, including the appraisal conclusion and the record of the inquest.
The main task of criminal trial is to convict and sentence the defendant, but different charges and sentencing circumstances have different requirements for the type and quantity of evidence.
First of all, we should determine the type and quantity of the main evidence according to the charges of prosecution, and we should be able to distinguish different charges from different situations of the same charge, and have different requirements for the main evidence. Cases endangering public safety can be roughly divided into two categories: one is a dangerous crime, which constitutes a crime as long as it poses a threat to public safety, and the other is a consequential crime, which causes harmful consequences. For the former, the main evidence of conviction should at least include: the defendant's confession, witness testimony, on-site investigation record, material evidence appraisal, material evidence photos or audio-visual materials, proof of the defendant's criminal responsibility ability, etc. For the latter, in addition to the above types of evidence, it should also include the victim's statement, the victim's living identification or the deceased's body identification, the list of damaged property, price identification and so on. For example, in cases of infringement of property and personal rights, the main evidence of the former includes: the proof of the defendant's criminal responsibility, the defendant's confession, the victim's statement, the identification record, the photo of physical evidence, the appraisal of goods' price, and the proof of the return of stolen goods. The latter mainly includes: the defendant's criminal responsibility ability certificate, the defendant's confession, the victim's statement, the victim's injury identification, the victim's injury photo and the defendant's compensation certificate. Here are two examples to illustrate that the identification of the main evidence is different in cases with different charges and different circumstances. Therefore, when determining the main evidence, we should analyze and determine the characteristics of the case. The provisions of the law and judicial interpretation are only the basis for identifying the main evidence.
Second, evidence involving statutory and discretionary sentencing circumstances should be determined as the main evidence. These evidences, when sentencing the defendant, either aggravate or aggravate the circumstances, or give a lighter, mitigated or exempted punishment. It mainly includes: 1, aggravating and aggravating circumstances: evidence with serious harmful consequences, evidence of repeated violations, evidence of bad means, evidence of recidivism, forged evidence, evidence of collusion, etc. 2. Circumstances of lighter punishment, mitigated punishment or exemption from punishment include: excessive defense, excessive avoidance of risks, suspension of crime, preparation for crime, attempted crime, voluntary surrender, meritorious service, juvenile, mental illness, etc. 3. According to different types of cases, the criminal law clearly stipulates aggravating, heavier, lighter, mitigated or exempted punishment, and these evidences should also be used as the main evidence, such as burglary, bank robbery, armed robbery, gang rape, rape of young girls, etc. The above circumstances have an important impact on sentencing and should be transferred as the main evidence.
Three, when transferring the copy of the main evidence, we often ignore several types of main evidence that should be paid attention to.
After interviewing some criminal judges and criminal defense lawyers, it is generally reflected that there is such evidence, which is easy for the public prosecution to ignore and refuse to transfer.
1. Evidence to prove the circumstances of the defendant's sentencing: such as surrender, meritorious service, certificate of returning stolen goods, certificate of compensation, excessive defense materials, excessive avoidance materials, etc. ;
2. Evidence to prove the degree of infringement: such as physical evidence appraisal, price appraisal, injury appraisal, etc. ;
3. Evidence to prove the defendant's responsibility: such as the defendant's age certificate and the defendant's mental state certificate;
4. Evidence of whether the victim is a special victim: for example, evidence of whether the victim of rape is a young girl; Evidence of whether the rape victim is a mental patient;
5. Evidence to prove the special circumstances of the case: for example, whether the defendant reported or escaped in a traffic accident case.
The above evidence often plays a great role in the sentencing of the defendant, and becomes the basis for the judge to find out the plot in the trial and the defense lawyer to lighten or mitigate the punishment. Therefore, it should be transferred as the main evidence and should not be ignored.
1. First of all, it is necessary to clearly identify and review the subject of the main evidence. In front, the author has listed the relevant legal and judicial interpretations. According to these regulations, the "main evidence" is determined by the people's procuratorate, and the right to examine whether the copy of the main evidence has been obtained lies with the judge. Prosecutors, judges and defense lawyers are the main bodies that pay attention to "copying the main evidence". Among these three types of subjects, the public prosecutor initially determines which materials are transferred and which materials are not transferred when transferring to prosecution. Of course, the public prosecutor is the decider, but the judge is the subject who presides over the trial of the case and finally decides the punishment and exercises judicial power. When there is a dispute over the "main evidence", in addition to the standards stipulated by relevant laws, it should also be determined by the judge after examination.
2. The judge shall read out the documents before the court session, and a copy of the missing main evidence shall be submitted to the public prosecutor. Especially ordinary criminal cases, the case is complicated. Judges should make necessary preparations before the trial, determine the focus of the trial, list the outline of the trial, and defense lawyers should also make necessary preparations before the trial to determine the starting point of lighter, mitigated or innocent defense. If you don't supplement some copies when you know that the main evidence is missing, the preparation of judges and defense lawyers is not sufficient, which is not conducive to a comprehensive trial and proper defense in the trial. Therefore, when the judge reads the papers, he finds that some copies of the main evidence are missing, so he should suggest the public prosecutor to supplement them, and the public prosecutor should supplement them.
3. During the trial, if the public prosecutor newly submits the main evidence but fails to obtain it before the trial, he shall adjourn the court and give the judges and defense lawyers the necessary preparation time. Some of the main evidence, the prosecutor did not get a copy before the trial, but made a surprise inspection during the trial, which is bound to make judges and lawyers unprepared and disrupt the trial review plan and debate plan. Therefore, the judge believes that it is the main evidence. If the court session is held in a hurry, it will not be conducive to the accurate and full trial of the case. The court adjourned to make necessary preparations, which reflected the seriousness of the trial and the importance of the effectiveness and efficiency of the trial. (Author: People's Court of Siyang County, Jiangsu Province)