The main contents of the revision of the civil procedure law include the following aspects: perfecting the mechanism of mediation and litigation; Further protect the litigation rights of the parties; Perfecting the system of providing evidence by the parties; Improve the summary procedure; Strengthen legal supervision; Improve the procedure of trial supervision; Improve the implementation procedures, etc.
1. The witness fee shall be borne by the losing party.
The newly revised Civil Procedure Law stipulates that transportation, accommodation, meals and other necessary expenses. The loss of lost time due to the obligation of witnesses to testify in court shall be borne by the losing party. If a party applies for a witness to testify, it shall pay the fee in advance; If the parties fail to apply and the people's court notifies the witness to testify, the people's court shall pay in advance.
The newly revised Civil Procedure Law also stipulates that a witness shall testify in court after being notified by the people's court. Under any of the following circumstances, with the permission of the people's court, written testimony, audio-visual transmission technology or audio-visual materials may be used to testify: unable to appear in court due to health reasons; Unable to appear in court due to long distance and inconvenient transportation; Unable to appear in court due to force majeure such as natural disasters; Other legitimate reasons can not appear in court.
2. Increase the requirement that experts appear in court to participate in litigation. The newly revised Civil Procedure Law adds provisions that the parties may apply to the people's court to notify people with specialized knowledge to appear in court and give their opinions on expert opinions or professional issues raised by appraisers. The consideration of this provision is that medical accidents, environmental pollution, intellectual property rights and other cases are highly professional. In order to find out the facts, distinguish right from wrong and safeguard the legitimate rights and interests of the parties, experts are needed to provide professional advice during the trial.
3, clear the trial conditions of the second instance procedure.
The newly revised Civil Procedure Law further clarifies the trial conditions of the second instance procedure.
The current civil procedure law is not clear about whether civil cases of second instance must be heard in court. In practice, many civil cases have not been decided in court in writing. Therefore, the conditions for trial by the court of second instance should be further clarified.
The newly revised civil procedure law amends the relevant provisions of the current civil procedure law to read: the people's court of second instance shall form a collegial panel when trying an appeal case. After reading papers, investigating and asking the parties, if the collegial panel does not present new facts, evidence or reasons, and thinks that it is unnecessary to hold a court session, it may not hold a court session.
4. Combined with the relevant provisions of the Arbitration Law.
The newly revised Civil Procedure Law unifies the people's court's examination criteria for applying for cancellation and non-enforcement of arbitral awards. The current civil procedure law stipulates the examination conditions for refusing to execute the arbitral award, and stipulates that "the main evidence for ascertaining the facts is insufficient" and "the applicable law is indeed wrong". The Arbitration Law stipulates the examination conditions for applying for cancellation of an arbitral award, which stipulates that "the evidence on which the award is based is forged" and "the other party has concealed evidence that can affect justice". The people's court's review of the application for non-enforcement of the arbitral award is broader and more unreasonable than the review of the revocation of the arbitral award. Therefore, the examination criteria should be unified according to the actual situation of arbitration in China.
The newly revised Civil Procedure Law has been revised according to the relevant provisions of the Arbitration Law.
5, increase the relief procedures for victims outside the case.
The newly revised Civil Procedure Law also increases the relief procedure for the infringed outside the case.
6, increase the punishment measures for malicious litigation.
At present, the parties infringe upon the legitimate rights and interests of outsiders through malicious litigation. For malicious litigation, in addition to applying compulsory measures such as detention, fine or criminal responsibility, we should also increase relief channels for victims outside the case in the civil procedure law. To this end, the newly revised Civil Procedure Law has added provisions on the third party. If he refuses to take part in the litigation because of things not attributable to him, but there is evidence that some or all of the contents of the legally effective judgment, ruling or conciliation statement are wrong, which damages his civil rights and interests, he may bring a lawsuit to the people's court that made the judgment, ruling or conciliation statement within six months from the date when he knew or should have known that his civil rights and interests were damaged. After hearing the case, the people's court shall modify or cancel the original judgment, ruling or conciliation statement; If the claim is not established, the claim is rejected.
7, small target cases, the first instance.
Article 162 of the New People's Procedure Law If the basic people's courts and the courts dispatched by them try simple civil cases that conform to the provisions of the first paragraph of Article 157 of this Law, and the amount of the subject matter is less than 30% of the average annual salary of employees in various provinces, autonomous regions and municipalities directly under the Central Government, the final judgment of first instance shall be executed.
The current civil procedure law implements a unified system of second instance and final adjudication for civil litigation cases, that is to say, if a party refuses to accept the judgment of first instance, it has the right to file a second instance with a higher court, and the judgment of first instance will take effect after the trial of second instance. However, in judicial practice, in order to delay the trial time and extend the final execution period of the court, individual parties still appeal against the judgment that the facts are clear and the law is correct, and simple cases can sometimes be delayed for one year or even longer; On the other hand, such as simple infringement, lending, leasing disputes and other cases. The obligee gave up the lawsuit because the litigation time was too long and the right could not be relieved in time, and then exercised "self-interest relief" through some abnormal or even illegal means, resulting in greater losses.
In view of the above situation, Xinmin procedural law adds a system of "first instance and final instance" to cases of first instance that apply summary procedure, which is helpful to reduce the litigation burden of the parties, save judicial resources and realize fairness and justice in time. 8. When the parties choose the court, they should choose "the place with actual connection with the dispute".
Article 34 of the new People's Procedure Law: The parties to a dispute over a contract or other property rights and interests may, by written agreement, choose the people's court of the place where the defendant's domicile, the place where the contract is performed, the place where the contract is signed, the plaintiff's domicile and the place where the subject matter is located are actually related to the dispute, but they shall not violate the provisions of this Law on hierarchical jurisdiction and exclusive jurisdiction.
The current civil procedure law establishes the system of "jurisdiction by agreement", that is, the parties can choose the court that will govern the contract or property dispute cases in the future through agreement. In addition to the five types of "fixed" agreed jurisdiction stipulated in the current Civil Procedure Law, the new People's Procedure Law adds "places with actual connection with disputes", which makes the original five types of "fixed" jurisdiction list the places with actual connection and makes the agreed jurisdiction more flexible in practice. In addition, the scope of cases under the jurisdiction of the agreement has been expanded from "contract dispute cases" to "contract or other property dispute cases".
When applying the jurisdiction of agreement, it should be noted that, first of all, the provisions of hierarchical jurisdiction and exclusive jurisdiction cannot be violated. Second, the agreed place cannot have no actual connection with the dispute.
For example, an old man living in Shijiazhuang borrowed 50,000 yuan from his neighbor and wrote an iou. Both parties can't stipulate in the IOU that the dispute shall be under the jurisdiction of Shijiazhuang Intermediate People's Court or Hebei Provincial High Court, which will violate the provisions of "hierarchical jurisdiction". The two neighbors could not agree on the jurisdiction of the Beijing court that had nothing to do with lending. However, if the old man's son also provides a joint repayment guarantee to his neighbor, and his son lives in Chaoyang District, Beijing, then Chaoyang District of Beijing becomes the actual place related to the loan dispute, and the people's court of this district can be used as the agreed jurisdiction court.
Highlights of the revision of the new criminal procedure law
1 verbal evidence obtained by torture shall be excluded.
Extract from draft
The confessions of criminal suspects and defendants collected by illegal methods such as extorting confessions by torture, witness testimony and victim statements collected by illegal methods such as violence and threats should be excluded.
No one can be forced to prove his guilt.
interpret
Hu (Chairman of the Law Committee of the National People's Congress): The highlight of this revision is that on the basis of the prohibition of extorting confessions by torture in the original criminal procedure law, it is added that no one shall be forced to testify against himself. You can't be forced unless you confess. If it is forced verbal evidence, it must be excluded.
This is an improvement in protecting the legitimate rights and interests of criminal suspects; It is a great pressure and motivation for the public security organs to handle cases strictly according to law, so as to prevent some misjudged cases from happening. For example, in the case of She Xianglin before, why did it happen after reflection? One of the reasons is extorting confessions by torture and using illegal verbal evidence.
Xu Xianming (President of Shandong University, Professor of Law): No one can be required to prove his guilt. This principle comes from the rules of the United Nations, and no state organ allows the defendant to prove himself guilty. This embodies the spirit of human rights, makes the evidence more accurate and scientific, and provides a guarantee for safeguarding judicial justice and the legitimate rights of participants in criminal proceedings.
Except for the immediate family members of witnesses who are forced to appear in court.
Extract from draft
If a witness fails to appear in court as notified by the people's court without justifiable reasons, the people's court may compel him to appear in court, except for the defendant's spouse, parents and children.
interpret
Hu: What stands out in criminal cases now is the question of witnesses testifying in court. In some cases, witnesses do not appear in court and read their testimony directly. However, the most serious criminal offence may be life imprisonment or even death penalty. If the criminal suspect puts forward a defense, the court considers it necessary for the witness to appear in court.
At the same time, some expert conclusions are also very important for the judgment of the case. For example, an official is involved in corruption and bribery, involving a celebrity calligraphy and painting. If it is finally decided whether to commit a crime or not, the key is how much the calligraphy and painting are worth. Then the identification link is very important. If there are different opinions on the appraisal, the appraiser may also be required to appear in court.
In addition, in order to respect China's national conditions, it is stipulated that the defendant's spouse, parents and children do not need to testify in court.
The draft establishes a witness protection system for the first time. Why are people afraid to testify now? Just afraid of revenge. Including economic disputes and civil disputes, some people are afraid to testify, let alone criminal cases. Therefore, it is necessary to strengthen the protection of witnesses.
Confiscating the property of fleeing corrupt officials is conducive to anti-corruption
Extract from draft
In major criminal cases, such as corruption, bribery and terrorist activities, if the criminal suspect or defendant is at large and cannot appear in the case after being wanted for one year, or if the criminal suspect or defendant dies, the people's procuratorate may apply to the people's court for confiscation of his illegal income and other property involved.
interpret
Chen Weidong (Professor, Renmin University of China): The establishment of the special procedure "Procedure for Confiscating the Illegal Income of Criminal Suspects and Defendants in Escaping Death Cases" is conducive to severely punishing corruption crimes and terrorist crimes, recovering national losses, and eliminating the economic conditions of crimes, which is in line with the requirements of the United Nations Convention against Corruption and resolutions on anti-terrorism issues that China has joined.
Because trial by default is not allowed in our country, when the suspect escapes or dies and cannot appear in court, the proceedings cannot be started, which makes the criminal's property unable to be recovered for a long time.
"Non-conviction property confiscation procedure is a special procedure, which can solve the problem of criminal suspects and defendants not appearing in the case and recovering their criminal proceeds." Because these properties are obtained from criminal acts, the recovery of these properties must go through criminal proceedings.
Pregnant women can monitor their homes.
Extract from draft
Residential surveillance is suitable for people who meet the conditions of arrest, but cannot take care of themselves because of serious illness, are pregnant or nursing their own babies, and are the only caregivers of people who cannot take care of themselves. Because of the special circumstances of the case or the need of handling the case, it is more appropriate to take residential surveillance measures, and the detention period has expired and the case has not yet been settled, so it is necessary to take residential surveillance measures.
interpret
Song (Professor, School of Law, Beijing Normal University): First of all, residential surveillance measures are taken to ensure the smooth progress of litigation and prevent criminal suspects from escaping, colluding with confessions, destroying evidence and other acts that hinder litigation or continue to commit crimes.
The important goal of amending the criminal procedure law is to find a balance between combating crime and protecting human rights. This amendment is also in line with the spirit of non-custodial measures to protect the rights of criminal suspects advocated by relevant international conventions.
At the same time, the draft amendment stipulates that if the execution of residential surveillance on a criminal suspect suspected of endangering national security, terrorist activities or particularly serious bribery crimes may hinder the investigation, it may be executed at the designated residence with the approval of the people's procuratorate at the next higher level or the public security organ, but it may not be executed in a detention place or a special case-handling place. In order to prevent this measure from being abused in practice, the people's procuratorate is required to supervise the decision and implementation of residential surveillance at designated residences.
5 remand for retrial is limited to one time, without additional punishment.
Extract from draft
If the defendant appeals or the procuratorate protests against a case sent back to the court of first instance for retrial by the court of second instance because of unclear facts or insufficient evidence, the court of second instance shall make a judgment or ruling according to law. The court of first instance shall not increase the defendant's punishment unless there are new criminal facts and the procuratorate supplements the prosecution.
interpret
Chen Weidong: In previous practice, it often happened that the second instance was sent back for retrial frequently, which made the case protracted. Some courts of second instance used this as a way to shirk their responsibilities and avoid contradictions.
For cases that have been sent back for retrial and appealed again, the law does not stipulate how to deal with them before the court of second instance, nor does it stipulate the number of times they are sent back for retrial. Therefore, the case may still be sent back for retrial as "unclear facts, insufficient evidence" or in violation of the flexible standards of procedural law. At this time, the case will re-enter the first-instance procedure, and the case will never end. This is a strange litigation cycle of "circular trial". One of the main reasons is that there is no limit on the number of remands.
"No additional punishment on appeal" is a principle of the second instance. The cases sent back for retrial come from the appeal of the parties or the prosecution of the procuratorate, and also from the second instance procedure. Therefore, for the judgment made by the court of first instance in violation of litigation procedures, the court of second instance sent it back for retrial, and the judgment of the court of first instance should not be aggravated.
The results of the death penalty review shall be notified to the Supreme People's Procuratorate.
Extract from draft
When reviewing a death penalty case, the Supreme People's Court may interrogate the defendant, and the defense lawyer shall listen to his opinions according to his requirements.
In the process of reviewing death penalty cases, the Supreme People's Procuratorate can put forward opinions to the Supreme People's Court. The Supreme People's Court should inform the Supreme People's Procuratorate of the results of the death penalty review.
interpret
Hu: The death penalty review procedure has attracted much attention. The death penalty is the most severe punishment, and we should be cautious, because mistakes are irreparable.
According to the regulations, all death penalty cases must be approved by the Supreme Law. Then, should the examination and approval of the Supreme Law be supervised? This provision stipulates that when the Supreme Law approves the death penalty, the defendant can be questioned, and if the defense lawyer has questions when he has evidence, he can also ask.
Xu Xianming (President of Shandong University): These amendments have improved the death penalty review procedure, reflected the prudence of the state in applying the death penalty, and are conducive to further ensuring the quality of death penalty review cases and strengthening the legal supervision of the death penalty review procedure.
Liu Hao (lawyer of Beijing Fatuo Law Firm): From the legislative point of view, the death penalty review procedure has not become a real litigation procedure in the past, which has a certain administrative color and lacks openness and transparency. In order to ensure the quality of such cases, avoid manslaughter and implement the principle of "killing less and killing carefully", it is absolutely necessary to add such clauses.
Being executed outside prison for accepting bribes is not included in the sentence.
Extract from draft
A criminal who has been temporarily executed outside prison shall be put into prison in time under any of the following circumstances: (1) It is found that the conditions for temporary execution outside prison are not met; (two) a serious violation of the relevant provisions of the supervision and administration of temporary execution outside prison; (3) After the temporary execution outside prison disappears, the criminal's sentence has not expired.
If criminals who do not meet the conditions for temporary execution outside prison are temporarily executed outside prison by illegal means such as bribery, the period of temporary execution outside prison shall not be included in the execution sentence; If a criminal escapes during the temporary execution outside prison, the time of escape shall not be counted in the execution period.
interpret
Hu: Some corrupt officials or rich bosses went in and out after being sentenced, and even threatened informants. Some were sentenced to death with a reprieve and came out for more than ten years; Some were sentenced to 15 years, and their parole was less than 1 year. People react strongly to this situation in reality.
There are strict regulations on execution outside prison this time. If bribery, networking and other means are found, they will be thrown into prison immediately, and the time spent outside will not be counted, and the sentence will be recalculated. At the same time, it is necessary to strengthen supervision over commutation and parole and execution outside prison to avoid spending money on commutation.
Xu Xianming: Execution outside prison sometimes becomes the privilege of some people, and the people have great opinions on execution outside prison. A series of improvements have been made this time. Including the execution time outside prison, bail pending trial, medical parole, etc. These amendments are conducive to standardizing law enforcement and preventing criminals from using these systems to escape punishment.
The materials obtained from technical investigation can be directly used as evidence.
Extract from draft
After filing a case, the public security organ may, according to the needs of investigating crimes and through strict approval procedures, take technical investigation measures against crimes endangering national security, terrorist activities, major drug crimes or other crimes seriously endangering society.
Materials collected through investigation measures can be used as evidence in criminal proceedings.
interpret
Gu Yongqiang (Professor, China University of Political Science and Law): At present, the number of criminal cases filed in China is about 5 million each year, compared with 23 million or 34 million five or six years ago, which has increased sharply in recent years. What's our detection rate? About ten years ago, our detection rate was 72%-73%, and now it is 45%-50%. Our ability to crack down on criminal investigation and solve crimes has been seriously challenged. Crime in society is becoming more and more organized, mobile and anti-investigative. If the ability to investigate and handle cases is not improved, social security and people's safety will be in a very unstable state, so it is necessary to improve the ability to investigate and handle cases. "How to improve? A very important measure is technical investigation, including secret investigation.
Xu Lanting (Professor, China University of Political Science and Law): The provisions in the draft are too general, and the conditions for using technical means should be clearly defined. In the past few years, there have been technical investigations and secret investigations within us, followed by regulations on how to approve and control. We can write such provisions into the provisions of the Criminal Procedure Law after combing and considering.
The parties to a minor criminal case can "reconcile"
Extract from draft
The scope of application of the reconciliation procedure of public prosecution cases is caused by civil disputes, intentional criminal cases suspected of violating personal rights, democratic rights and property crimes, which may be sentenced to fixed-term imprisonment of less than three years, and negligent criminal cases that may be sentenced to fixed-term imprisonment of less than seven years except dereliction of duty. However, if a criminal suspect or defendant intentionally commits a crime within five years, this procedure is not applicable.
interpret
Relevant person in charge of NPC Law Committee: It is beneficial to resolve contradictions and disputes to bring some public prosecution cases into the reconciliation procedure and appropriately expand the application scope of the reconciliation procedure.
At the same time, considering the national prosecution nature of public prosecution cases and the seriousness of punishment, in order to prevent new injustice, we should be cautious in establishing this new litigation system, and the scope of application of reconciliation procedures should not be too large.
Chen Guangzhong (tenured professor at China University of Political Science and Law): This system is not without drawbacks, but the scope of application stipulated in the draft amendment is very narrow and strict, and it must be voluntary. Encouraging criminals to apologize and compensate can better protect the rights and interests of victims and make them get more compensation. This is conducive to reducing social contradictions and promoting social harmony.
10 juvenile criminal record sealing
Extract from draft
If he was under the age of 18 at the time of committing the crime and was sentenced to fixed-term imprisonment of not more than five years, the relevant criminal records shall be sealed up. If the criminal record is sealed, it shall not be provided to any unit or individual, except for the need of judicial organs to handle cases or the relevant units to make inquiries in accordance with state regulations.
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