With the arrest of Zhang Jun, the first criminal, the "9. 1" robbery case and another 1 1 case in Changde, Hunan Province, which shocked the whole country, were declared solved. However, because the criminal gang committed crimes across regions, the jurisdiction of more than ten related cases became a problem. On the basis of comprehensive investigation of legislative cases in various countries, this paper reflects and reconstructs the current judicial jurisdiction system in China.
(A) the concept and significance of implicated jurisdiction
In order to maintain judicial justice, modern countries ruled by law generally recognize and establish the legal principle of judicial independence. According to the principle of judicial independence, judicial power, as a basic right of the state, belongs exclusively to the courts, which exercise judicial power independently according to law without interference from administrative organs, social organizations and individuals. However, the purpose of the emergence and existence of judicial power is not to be independent in the abstract sense, but to solve specific social conflicts or disputes and maintain social order. Therefore, in order to realize the purpose and function of judicial power, judicial power in the abstract sense needs to be concretized. From a dynamic point of view, this process from abstraction to concretization is the process of allocating abstract judicial power to national courts at all levels. From a static point of view, the concretization of abstract judicial power is the result that courts at all levels in the country have obtained the authority to hear specific litigation cases through distribution, that is, trial jurisdiction. It is in this sense that trial jurisdiction is also called specific judicial power. Criminal procedure is essentially a conflict of rights and interests between the state and the individual, and the right of criminal trial aims to solve the conflict of rights and interests between the state and the defendant. Therefore, the criminal trial power itself has a process of distribution from abstract to concrete, and therefore, courts at all levels in the country have obtained corresponding criminal trial jurisdiction.
The standardization and institutionalization of power distribution process is the premise and condition for the legitimacy and rationality of distribution results. In order to ensure the legitimacy of the distribution of criminal jurisdiction, the state has established a standardized trial jurisdiction system, such as level jurisdiction and regional jurisdiction, with the trial level and region as the distribution standards. Logically speaking, since a standardized trial jurisdiction system has been established, different litigation cases should be determined according to the principles of hierarchical jurisdiction and regional jurisdiction. However, in the practice of criminal proceedings, due to the complexity of the criminal phenomenon itself, there may be factual correlation between several cases prosecuted. For example, several cases are committed by the same defendant or several defendants. According to the regulations, several cases or several defendants should be under the jurisdiction of different courts. At this time, if all the courts under jurisdiction are under their own jurisdiction and tried separately, it will not be conducive to finding out the truth of the case and discovering the objective truth. It is also not conducive to saving judicial resources and realizing litigation economy, because on the one hand, several interrelated cases can confirm each other in facts and evidence. If it is tried by different courts, it is not conducive to the courts to fully grasp the case, reasonably judge the evidence on the basis of multi-party verification and determination, and correctly determine the facts of the case; At the same time, there are many overlaps in case investigation and evidence application between several related cases. Separate trials will lead to separate court investigations and debates in order to find out the same fact, which will undoubtedly lead to repeated operation of litigation procedures, increase the cost of separate litigation, and is not conducive to the economic realization of litigation. Based on this, the criminal procedure laws of major countries in the world have made corresponding technical adjustments to the trial jurisdiction system, established the implicated jurisdiction system, and made exceptions and supplements to the level jurisdiction and regional jurisdiction system. The so-called implicated jurisdiction refers to several cases under the jurisdiction of different courts, one of which is combined with jurisdiction and trial because of its relevance. According to the implicated jurisdiction system, several interrelated cases are tried in the same court with the same procedure, which is beneficial for the court to fully understand the case, corroborate the evidence in many ways, find out the facts of the case and apply the law correctly; At the same time, using one trial procedure to handle multiple cases can avoid the duplication of procedures, reduce the cost of separate litigation, and help realize litigation economy. Therefore, the establishment of implicated jurisdiction system is conducive to the realization of scientific and economic criminal litigation objectives, avoiding the possible substantive irrationality caused by mechanical application of hierarchical jurisdiction and regional jurisdiction, which is more in line with the purpose and original intention of establishing trial jurisdiction system to rationalize litigation.
(B) the content of implicated jurisdiction system
The content of implicated jurisdiction system includes the applicable conditions and rules of implicated jurisdiction. The former is to solve which cases can be applied to implicated jurisdiction, and the latter is to determine the attribution of implicated jurisdiction, that is, which court should be under the jurisdiction of implicated cases. The following are elaborated separately.
1. Applicable conditions of implicated jurisdiction Implicated jurisdiction is actually an exception to hierarchical jurisdiction and territorial jurisdiction. As an exception to this principle, in order not to undermine the universality of this principle, the application of implicated jurisdiction must strictly follow the legal substantive and procedural conditions.
(1) Substantive conditions: namely, several cases under implicated jurisdiction must be interrelated. Because the word "relevance" is more a descriptive concept than an analytical one, it is difficult to accurately define the meaning of relevance from the abstract theoretical level. From the legislative practice of various countries, the meaning of relevance is also described by listing. For example, Article 3 of the German Criminal Procedure Law (related meaning) stipulates: "One person is accused of several criminal acts, or several people are accused of being the principal offenders of a criminal act, * *. Article 9 (Associated Cases) of Japan's Criminal Procedure Law stipulates: "(1) Several cases are regarded as related under the following circumstances: 1. One-person crime; Binary system, several people * * commit the same crime or * * * commit the same crime; Third, several people conspired to commit crimes separately; (2) The crimes of concealing people, destroying evidence, forging evidence, making false expert translation and stolen goods are all regarded as crimes of * * *. "Article 12 of the Italian Code of Criminal Procedure (cases involved) stipulates that the proceedings involve the following situations:" (1) The crime being prosecuted was committed jointly or cooperatively by several people, or several people took independent actions to cause the criminal result; (2) As a result, someone is accused of several crimes of one act or omission or several crimes of several acts or omissions at the same time and place; (3) If a person is accused of several crimes, some of them are for the purpose of committing or covering up other crimes. "Through the investigation of the above legislation, we can see that the criminal procedure laws of all countries agree that implicated jurisdiction is applicable in two cases: one is the crime of one person; The second is * * * and crime. For the former, we can accurately define the correlation between cases as the meaning of "defendant's identity", but for the latter, we can't simply define the correlation between cases as "the identity of criminal facts", because the "* * * accomplice" here is the most generalized * * offender, including not only the * * accomplice with intentional crime, but also the * * accomplice with negligence and simultaneous crime; It includes not only joint crimes before and during the crime, but also joint crimes after the crime, such as harboring, shielding, concealing and selling stolen goods. It should be said that the term "* * * with crime" here does not fully conform to the concept of "* * * with crime" in strict substantive law, but has the characteristics and significance in procedural law, so some scholars call it "crime in procedural law". In criminal cases of procedural law, although the relevance between cases is objectively related, that is, related to criminal facts, the specific forms of this relevance are various, and the degree of basic relevance is also different. It is difficult to define the meaning of basic relevance simply by "the identity of criminal facts"
(2) Procedural conditions: including the following three requirements:
First, the nature of criminal jurisdiction must be the same. Implicated jurisdiction in criminal proceedings is the expansion of criminal trial jurisdiction, that is, the court has obtained jurisdiction over cases that it did not have jurisdiction, but the expansion of criminal trial jurisdiction is based on homogeneity, that is, the expansion of criminal trial jurisdiction can only be carried out between criminal trial jurisdictions of the same nature, and ordinary criminal trial jurisdiction and special criminal trial jurisdiction cannot expand each other because of their different nature. In other words, there can be no implicated jurisdiction between ordinary courts and specialized courts. For example, Article 6 of Japan's Criminal Procedure Law (Combined Jurisdiction of Related Cases) stipulates: "When nine cases with different geographical jurisdictions are related, the court with jurisdiction over one case may combine jurisdiction over other cases. However, cases belonging to a specific court under other laws cannot be governed. " The theory and practice of criminal procedure in Taiwan Province Province also hold that "if their jurisdiction belongs to each other, one belongs to ordinary courts and the other is tried according to military law, there will be no problem of joint jurisdiction or joint trial." However, it must be pointed out that there is another view on the contrary, that is, the jurisdiction of ordinary criminal trials and special criminal trials can also expand each other, that is, the jurisdiction of ordinary courts and special courts can be implicated in each other. For example, Article 13 of the Italian Criminal Procedure Law stipulates that the litigation under the jurisdiction of ordinary judges is related to the litigation under the jurisdiction of special judges, and France and other countries hold similar views. Therefore, the procedural condition of "the nature of criminal jurisdiction must be the same" has only relative significance.
B, the nature of criminal proceedings must be the same. Criminal procedure is divided into public prosecution procedure and private prosecution procedure because of its different nature. These two programs are quite different in structure and operation. For example, in the procedure of private prosecution, the parties can reconcile, mediate and counterclaim themselves, but not in the procedure of public prosecution. The implicated jurisdiction of criminal proceedings requires several related cases to be tried in the same procedure in the same court. The "same procedure" here refers to a single procedure, which can be a public prosecution procedure or a private prosecution procedure, but it must not be a mixed procedure of public prosecution and private prosecution, because the differences in structure and operation between public prosecution procedure and private prosecution procedure will inevitably lead to corresponding procedural conflicts, making it difficult to combine public prosecution procedure and private prosecution procedure. The oneness of the nature of litigation determines the oneness of the nature of cases, that is, several cases applicable to implicated jurisdiction must be both public prosecution cases and private prosecution cases. If there are both public prosecution cases and private prosecution cases in several cases, implicated jurisdiction cannot be carried out. For this procedural condition, Japan, France and other countries that implement state prosecution will not consider it; However, this procedural condition is of great practical significance to the countries and regions where it is implemented, and its theoretical research also attaches great importance to it. For example, Professor Chen Pusheng, a criminal jurist in Taiwan Province, China, pointed out that the cases involved belong to several courts, so those who combine judges should take litigation economy as their real interest. If the proceedings of the cases involved are separate ... one is public prosecution and the other is private prosecution, it is still appropriate to try them separately.
C. The stages of criminal proceedings must be the same. According to the degree of criminal proceedings, the whole criminal proceedings can be divided into four stages: investigation, prosecution, trial and execution. If several related cases are at different stages of criminal proceedings, jurisdiction cannot be involved. For example, the first paragraph of Article 16 of Macao's Criminal Procedure Code (restrictions on cases involved) stipulates: "Cases involved in investigation, pre-trial or trial at the same time." For example, when Case A is still in the investigation stage, Case B has been brought to court. At this time, although there is evidence to prove that Case A and Case B are related, Case A and Case B cannot be tried together, because Case A is still in the investigation stage, and its basic facts have not been ascertained. A hasty merger is not conducive to the court to find out the truth of the case and apply the law correctly.
2. Rules applicable to implicated jurisdiction (1) When implicated jurisdiction occurs between a superior court and a lower court, the principle of "if it is high, it is not low" is applied, and the superior court obtains implicated jurisdiction. For example, the first paragraph of Article 2 of the German Criminal Procedure Law (merger and division of interrelated cases) stipulates: "When independent, cases under the jurisdiction of different levels of courts may be merged and submitted to a court with higher jurisdiction for trial." The first paragraph of Article 3 of Japan's Criminal Procedure Law stipulates: "When nine cases with different jurisdictions are involved, the higher courts may merge their jurisdictions." The legal basis for carrying out the principle of "high is not low" lies in ensuring the correctness and fairness of the trial. Judging from the individual judges, the judges of higher courts generally have higher legal literacy, strong trial skills and rich trial experience, so they can better ensure the correctness of judicial decisions; As a whole, the superior court is at a higher judicial level, and the independence of the trial can be better guaranteed in the system, which is more conducive to the realization of trial justice.
(2) How to determine the ownership of implicated jurisdiction when there is implicated jurisdiction between courts at the same level varies from country to country. Germany, Japan and other countries advocate that the court that accepts the case first should intervene in jurisdiction. For example, Article 12 of the German Criminal Procedure Law (several jurisdictions compete, the first paragraph stipulates: "Among the courts that have jurisdiction according to Articles 7 to 1 1, the priority belongs to the court that started the investigation first." This clearly stipulates that implicated jurisdiction belongs to the first court to exercise jurisdiction, and at the same time, in order to solve the jurisdiction dispute, the second paragraph of this article immediately stipulates. However, a superior court with the same jurisdiction can transfer the investigation and judgment of a case to a court with other jurisdiction. In fact, it stipulates the implicated jurisdiction over disputed cases, and the jurisdiction is designated by the superior court. However, Italy advocates determining the court with jurisdiction according to different situations. Article 16 of the Italian Code of Procedure stipulates: (1) If several courts have the same case jurisdiction over several interrelated crimes, the judge in charge of hearing the most serious crime has territorial jurisdiction over all proceedings. (2) When all crimes are equally serious, the judge in charge of hearing the first crime has territorial jurisdiction. (3) In the case that the accused crime was committed by several people jointly or cooperatively, or several people took independent actions to cause the crime, if the act or omission was committed in different places and one person died, the judge in the place where the death occurred has territorial jurisdiction. In other countries, such as France, the criminal procedure law does not clearly stipulate which court is involved, but it is determined flexibly according to the circumstances of the case. For example, in French criminal judicial precedent, when jurisdiction expansion occurs between ordinary courts at the same level, jurisdiction expansion should be beneficial to the court that can best ensure justice, such as the court that is most convenient for collecting evidence. The so-called "the court ensures the best justice" here is a very weak concept, and its connotation can be determined according to different standards. Even "the most convenient court for collecting evidence" is a vague concept. Obviously, this legislative model is easy to lead to judicial arbitrariness, which is not enough.
(3) The construction of implicated jurisdiction system in China.
China's Criminal Procedure Law 1979 does not stipulate implicated jurisdiction. Although some scholars suggested that the system of implicated jurisdiction should be added to the revision of the Criminal Procedure Law, this legislative proposal was not adopted in the revision of the Criminal Procedure Law of 1996, and the revised Criminal Procedure Law still does not provide for implicated jurisdiction. However, for a long time, implicated jurisdiction has been widely used in China's criminal judicial practice, based on the relevant judicial interpretations formulated by the Supreme People's Court, such as Article 5 of the Supreme People's Court's Several Interpretations on the Implementation of the Criminal Procedure Law of People's Republic of China (PRC): "If one person commits several crimes, * * * and other cases that need to be tried together, as long as one or one of them belongs to the jurisdiction of the higher people's court, the whole case shall be under the jurisdiction of the higher people's court. Although the Supreme People's Court's judicial interpretation of implicated jurisdiction fills the gap in criminal procedure legislation and has certain realistic rationality, this judicial interpretation, which goes beyond the power of judicial interpretation and obviously has the nature of "judicial legislation", has its own legitimacy problems. According to the principle of legal procedure, major issues involving the allocation of litigation functions of criminal judicial organs and the protection of litigation rights and interests of criminal suspects and defendants should take the form of legislation and be stipulated by the Criminal Procedure Law. As one of the important contents of the criminal trial jurisdiction system, the implicated jurisdiction system in criminal proceedings is related to the allocation of the court's trial functions, which should be clearly stipulated by the Criminal Procedure Law, not by the court itself through judicial interpretation. Therefore, on the basis of summing up China's judicial experience in time and drawing lessons from foreign advanced legislation, the second chapter of the Criminal Procedure Law adds provisions on implicated jurisdiction in order to standardize and improve the implicated jurisdiction system in legislation. The specific ideas are as follows:
1, the substantive conditions of implicated jurisdiction.
Article 5 of the Interpretation stipulates that implicated jurisdiction applies to the following three situations: (1) multiple crimes for one crime; (2)*** same crime; (3) Other cases that need to be tried together. It should be said that this provision in the interpretation is not scientific enough, and the condition of "other cases that need to be tried together" may expand the scope of application of implicated jurisdiction too widely, thus providing convenience for the court to abuse implicated jurisdiction. In fact, the objects of implicated jurisdiction include the crime of one person and the crime of * * in procedural law. Therefore, the best legislative model is to adopt the enumerative formula commonly used in all countries, and clearly stipulate that implicated jurisdiction is applicable to the following situations: (1) one-person crime; (2) Several people * * commit the same crime or * * commit different crimes; (3) Several people conspire to commit crimes respectively; (4) crimes of harboring, harboring and perjury, and crimes of harboring, transferring, purchasing and selling stolen goods in the name of this crime.
2. Procedural conditions of implicated jurisdiction.
(1) Ordinary courts and specialized courts cannot be implicated in jurisdiction. Article 20 of the Interpretation stipulates: "Crimes committed by active servicemen (including employees in the army) and non-active servicemen shall be under the jurisdiction of military courts, local people's courts or other special courts respectively; If it involves state military secrets, the whole case shall be under the jurisdiction of the military court. " This clearly stipulates that in principle, there can be no implicated jurisdiction between ordinary courts and specialized courts (military courts), and only under special circumstances involving state military secrets can military courts have implicated jurisdiction. In this regard, some people criticize that criminal cases involving military areas, whether involving state military secrets or not, should be under the jurisdiction of military courts and tried together. We believe that whether to allow or prohibit the implicated jurisdiction between ordinary courts and specialized courts has its own advantages and disadvantages, and it is more a matter of judicial tradition. Judging from China's judicial system, China's ordinary courts and specialized courts have a clear division of labor and have formed a tradition. There is no need to make major adjustments and change the basic system of divisional jurisdiction.
(2) Cases of private prosecution, minor criminal cases in which the victim has evidence, and cases handled after being informed in public prosecution cases cannot be implicated in jurisdiction. Article 194 of the Interpretation stipulates: "If two or more criminal acts committed by the defendant belong to a public prosecution case and a private prosecution case respectively, the people's court may try the public prosecution case and the private prosecution case together, and the people's court may try the private prosecution case together when trying the public prosecution case." This clearly affirms that there can be implicated jurisdiction between public prosecution cases and private prosecution cases. In this regard, we have different opinions, because it has been pointed out that there are great differences in the structure and operation between the public prosecution procedure and the private prosecution procedure, so in principle, private prosecution cases and public prosecution cases cannot be converted into private prosecution cases, that is, "if the victim has evidence to prove that the defendant has violated his personal and property rights, he should be investigated for criminal responsibility according to law, but the public security organ or the people's procuratorate will not investigate the criminal responsibility of the defendant." The victim may bring a lawsuit directly to the people's court. This kind of case from public prosecution to private prosecution is different from that of public prosecution. Once a case is prosecuted, there can be no reconciliation, mediation and counterclaim. Therefore, if it is tried together with the public prosecution case, there will be no procedural conflict, and this kind of private prosecution case can be allowed to be implicated in the jurisdiction of the public prosecution case.
(3) Of course, criminal cases at different stages of litigation cannot be implicated in jurisdiction.
3. Applicable rules of implicated jurisdiction.
Article 5 of the Interpretation stipulates that when the jurisdiction of the people's court at a higher level and the people's court at a lower level is involved, as long as one or one of the crimes is under the jurisdiction of the people's court at a higher level, the whole case shall be under the jurisdiction of the people's court at a higher level. This establishes the principle of "high is not low" in implicated jurisdiction, and it should be said that this provision is worthy of recognition. This provision can be used for reference in legislation. In addition, Article 25 of China's Criminal Procedure Law stipulates that when people's courts at the same level in different regions have implicated jurisdiction, they can determine the ownership of implicated jurisdiction. This article was originally designed to deal with how to determine the territorial jurisdiction when the same case belongs to several people's courts at the same level, but it can also be used to deal with the territorial jurisdiction of implicated cases. According to the provisions of this article, "several cases under the jurisdiction of the people's court at the same level shall be tried by the people's court that initially accepted them. When necessary, it may be transferred to the people's court of the place where the main crime is committed. " Accordingly, in our country, when there is implicated jurisdiction between people's courts at the same level, the people's court that accepts the case first obtains implicated jurisdiction, and if there is a major crime place, the birthplace of the perpetrator of the major crime place carries out implicated jurisdiction. In case of disputes over implicated jurisdiction, the people's court at a higher level shall designate one of the people's courts for jurisdiction.
In the "9. 1" robbery in Changde, Hunan, Zhang Jun gang committed more than ten crimes in five years, involving Chongqing, Wuhan, Changsha and Changde, Hunan. According to Article 24 of China's Criminal Procedure Law, "a criminal case shall be under the jurisdiction of the people's court of the place where the crime was committed". Accordingly, the intermediate people's courts in Chongqing, Wuhan, Hubei, Changsha, Hunan, and Changde, Hunan all have jurisdiction over cases that occur in various places. Because these more than ten bloody cases were all planned by Zhang Jun, the principal offender, and Zhang Jun and his men participated in the case, these more than ten bloody cases are related to each other and can be tried by one of the intermediate people's courts. However, due to the great influence of the case, it was finally under the jurisdiction of the courts in Chongqing and Changde, and was tried separately, which eventually brought a lot of inconvenience to the trial of the case. As we can see, Zhang Jun was tried as the first criminal in Chongqing, and other principal criminals were tried in Changde. As a result, several interrelated cases can't be proved in court, which brings a lot of inconvenience to the witnesses in this case. After testifying in Chongqing, some witnesses can only run at both ends and go to Changde to testify. During the whole trial, the overall feeling was fragmented. From a macro perspective, the consequences may lead to the loss of legal unity and the fragmentation of the rule of law.