First of all, grasp the applicable conditions of summary procedure.
In practice, grasping the applicable conditions according to the law is the key to the successful application of summary procedure. According to our practical experience, this can be summarized as: grasping two conditions, paying attention to three attitudes and paying attention to two effects.
"Two conditions", that is, according to the first paragraph of Article 174 of the Criminal Procedure Law, the conditions for the application of summary procedure in criminal cases can be summarized as two: one is the conditions for factual evidence, that is, the facts of the case are clear and the evidence is sufficient. In other words, the time, place, behavior, harmful consequences, causality and subjective guilt of the defendant accused by the procuratorate are clear, and there is enough evidence to prove that the facts are conclusive. Second, the penalty conditions, that is, cases that may be sentenced to fixed-term imprisonment of less than three years, can consider applying summary procedures.
"Three Attitudes" means that in the actual operation process, procuratorial organs should also pay attention to the attitudes and opinions of all aspects of litigation when grasping the applicable conditions of summary procedure.
The first is to attach importance to the defendant's guilty attitude. If the defendant does not plead guilty, including not pleading guilty to all the alleged facts, partially pleading not guilty or recanting after pleading guilty, it is difficult to apply summary procedure. Because this is bound to require the procuratorial organs to apply ordinary procedures to fully prove, cross-examine and debate to confirm the charges. Therefore, only when the defendant admits all the criminal facts, at least the basic criminal facts, can the summary procedure be considered. To this end, the procuratorate must do the following two things: First, pay attention to reviewing the whole case to see whether the defendant really confessed, whether the confession was stable, and whether it was possible to retract the confession; Second, before deciding to apply summary procedure, the defendant can be informed of the main contents of other basic evidence of the case according to the specific circumstances of the case to see if the defendant has any defense opinions, so as to prevent the confession from being retracted after knowing other evidence at the trial stage.
The second is to pay attention to the attitude and opinions of defense lawyers. If the opinion of the defense lawyer is obviously different from that of the procuratorial organ, especially if the defense lawyer intends to plead not guilty, summary procedure is not applicable in principle. This requires the procuratorial organ to seek the opinions of lawyers as much as possible before suggesting the application of summary procedure to the court.
The third is to pay attention to the victim's attitude. According to the provisions of the new Criminal Procedure Law, the victim is a litigant and enjoys corresponding rights and obligations. If the victim disagrees with the opinion of the public prosecution agency, the summary procedure is bound to be difficult to achieve the effect of convincing all parties and economic litigation. Therefore, summary procedure is generally not suitable for this situation. This requires the procuratorate to solicit and fully consider the victim's attitude and opinions on the case and the accusation of the procuratorate.
"Two effects" refers to the legal effect and social effect of applying summary procedure. The legal effect is to ensure the fairness of case handling, that is, the facts are correctly identified, the nature is accurately identified and the sentence is appropriate. In addition, other problems incidental to handling criminal cases can also be properly handled. For example, there may be differences of opinion in handling incidental civil litigation, especially if the opinions of the defendant and the victim (plaintiff in incidental civil litigation) are difficult to coordinate, summary procedure is not applicable. At the same time, whether to apply summary procedure should also pay great attention to the social effect of the case. Based on this consideration and judicial practice, we believe that there are three situations that generally do not involve the handling of summary procedures.
First, the application of ordinary procedures is more conducive to legal publicity and education. Although some cases meet the applicable conditions of summary procedure, in order to achieve better educational effect, it is necessary to organize the masses to attend and expand publicity and education. Generally, ordinary procedures should be adopted to conduct trials in order to give full play to the functions of procuratorial organs in accusing crimes and publicizing and educating the legal system.
The second is the "important case" of crimes committed by cadres with higher positions. Because this kind of crime itself and its handling have great influence, for the sake of prudence, summary procedure is not applicable in principle.
Third, although some cases are not important, they are affected by their crimes or other factors in the case, and all parties are concerned about the handling of the case, which is not suitable for summary procedure.
Second, strictly abide by the examination and approval procedures.
The Detailed Rules for the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) by the People's Procuratorate (Trial) clearly stipulates that the initiation and consent of the application of summary procedure must be decided by the procurator-general. Its operating rules must be strictly observed: when examining a specific case, the case undertaker thinks that the case meets the conditions for the application of summary procedure, and must put forward written opinions in the case review report, which will be reviewed by the department head and reported to the procurator-general for approval. After the attorney general signs the application for approval, the undertaker may put forward suggestions on the application of summary procedure and submit them to the court. For the case that the court requires the application of summary procedure, the case undertaker should also put forward personal opinions and report them to the director of the department and then to the procurator-general. If the attorney general agrees, the undertaker will serve the opinions on the court and keep a copy.
Third, strictly grasp the opportunity to appear in court.
Summary procedure is applicable, and the public prosecutor may or may not appear in court. As for the situation of appearing in court and the situation of not appearing in court, the law does not clearly stipulate. In practice, we try to appear in court in some cases: First, people should be sent to appear in court in juvenile criminal cases. In view of the particularity of juvenile delinquency, court trials are not held in public, and their legal representatives appear in court to participate in the proceedings, and the court has no educational procedures. Therefore, the public prosecutor's appearance in court to support public prosecution can directly educate and influence them and pay attention to their legitimate rights and interests. Educate parents or guardians of their responsibilities. Second, cases involving certain professional or technical knowledge should be sent to the court. Injury cases, traffic accidents and other cases all involve certain medical knowledge and responsibility determination, so it is very necessary for prosecutors to make necessary explanations in court. For example, when the author handled Tan's intentional injury case, Tan broke the victim's left hand radius with a pole, causing the victim's left hand function to be seriously damaged, and the forensic doctor identified it as a serious injury. The defendant argued that the victim was not seriously injured at that time, but his hand was broken, and the identification time was too long, even suspecting the victim's injury. To this end, we specially visited the hospital, consulted the forensic doctors of public security, inspection and law, and learned about the relevant provisions and specific explanations of injury identification. On the basis of evidence, the public prosecutor clearly pointed out the causal relationship between the defendant's behavior and the victim's injury degree, and quoted specific instructions on injury identification, which forced the defendant and his family to take it orally and received good social effects.
Fourthly, the legal supervision of summary procedure
The purpose of applying summary procedure is to realize litigation economy, so the trial of the court and the public prosecution of the procuratorial organ must be simplified, otherwise the significance of applying summary procedure will be lost. However, the application of summary procedure does not mean giving up the supervisory responsibility of procuratorial organs. On the contrary, due to the greatly simplified litigation procedures, in order to ensure the fairness and democracy of litigation, the supervision of procuratorial organs should be strengthened.
The supervision of procuratorial organs is mainly reflected in three aspects: first, the supervision of the facts ascertained by the court. The facts required to be confirmed by the court judgment are basically consistent with the charges charged in the indictment of the procuratorate, otherwise the summary procedure will not be applicable or it will not continue to be applicable; The second is to supervise the punishment imposed by the court. Although the term of imprisonment is less than three years, it should be appropriate, especially not too light, such as exempting those who should be sentenced from criminal punishment; The third is to supervise whether there is any obvious violation of summary procedure in summary procedure. If something unexpected happens during the trial, we should seek the opinions of the procuratorial organs instead of seeking them and directly deal with cases contrary to the requirements of the procuratorial organs, and so on.
There are three main channels for the supervision of the above three aspects: first, ventilation and coordination before and during the event. It is necessary to strictly grasp the procedural requirements that summary procedure can only be started and promoted if the court agrees to the prosecution of the charges by the procuratorate. In the determination of the nature of facts and the handling of cases, the procuratorate and the legal parties should exchange information and reach an agreement; Second, when necessary, the procuratorate can send personnel to appear in court to support public prosecution and implement supervision. This is mainly because the defendant asked for a defender, but the defender did not express his opinions clearly before deciding to adopt summary procedure, and the opinions expressed later were obviously different from the charges of public prosecution, especially in cases that should be sentenced, the defender intends to defend or defend not guilty. In addition, some new facts, evidence and clues appear in the case, which may affect the prosecution charges. The procuratorial organ should also send personnel to appear in court to support the public prosecution, present the main evidence and show the opinions of the public prosecution; The third is to review the judgment, and if it is found that the judgment is improper, it is necessary to conduct a technical protest.
As for the application of summary procedure, the author thinks that as long as we do a good job in the above four aspects and grasp the application conditions, examination and approval procedures, the opportunity to appear in court and legal supervision of summary procedure, we can correctly apply summary procedure, handle cases strictly according to law, improve work efficiency, reduce work burden, and receive better legal and social effects at the same time, so that the law can truly protect the legitimate rights and interests of the parties. (Author: Banan District People's Procuratorate, Chongqing)