Who are the provisions of the Criminal Procedure Law applicable to?

(1) judges. Judges refer to presidents, vice presidents, members of judicial committees, presidents, vice presidents and judges of people's courts at all levels. Assistant judges and people's jurors. (2) the prosecutor. According to the provisions of Article 32 of the the Supreme People's Procuratorate Rules, prosecutors who should be avoided include chief procurators, deputy chief procurators, members of procuratorial committees, procurators and assistant procurators. (3) investigators. Including specific investigators and responsible persons who have the right to participate in discussions and make decisions on the investigation of specific cases. (4) Clerks, translators and appraisers who participate in investigation, prosecution and trial activities. Criminal avoidance refers to a criminal litigation system that does not allow people and institutions who have legal interests in the case or may affect the fair handling of the case to participate in handling criminal cases. (1) According to the provisions of Articles 28 and 31 of the Criminal Procedure Law, the following persons shall be recused: judges, prosecutors, investigators, clerks, translators, expert witnesses and inspectors. (2) Article 28 of the Criminal Procedure Law stipulates that in any of the following circumstances, the above-mentioned persons shall apply for withdrawal: 1, and they are the parties to this case or their close relatives; 2. I or my close relatives have an interest in this case; 3. Having served as a witness, expert witness, defender or agent ad litem in this case; 4. Having other relations with the parties to the case, which may affect the fair handling of the case. In addition, Article 192 of the Criminal Procedure Law stipulates: "The people's court that originally tried a case sent back for retrial shall form a collegial panel and try it according to the procedure of first instance." Article 206 of the Criminal Procedure Law stipulates: "A case retried by a people's court in accordance with the procedure of trial supervision shall be conducted by a collegiate bench." Therefore, the judicial staff who once served in a certain trial stage of the case cannot serve in the trial of the case again and should also be avoided. Moreover, according to the relevant judicial spirit, those who have participated in the investigation of this case are not allowed to participate in the prosecution and trial of this case, and those who have participated in the prosecution of this case are not allowed to participate in the trial of this case. The withdrawal of the president as the presiding judge shall be decided by the judicial Committee; The withdrawal of the judge is decided by the president; The withdrawal of other personnel shall be decided by the presiding judge. If a party refuses to accept the decision, it may apply for reconsideration. Second, what are the reasons and types of avoidance? The reason for withdrawal refers to the factual basis that is clearly stipulated by law and necessary for the implementation of withdrawal. Theoretically speaking, the circumstances that can be used as the basis for public security judicial personnel to avoid are mainly related to the case or the parties, so it is difficult to handle the case fairly. In order to make this abstract basis operable, the criminal procedure laws of various countries generally clearly set a number of factual situations that conform to this basis, making it a statutory reason for withdrawing the lawsuit. Article 28 of China's criminal procedure law clearly stipulates the reasons for withdrawing the lawsuit. (1) As a judge, prosecutor, investigator or close relative of the party concerned in this case, if he is a criminal suspect, defendant, victim or other party concerned in this case, his substantive interests and litigation purpose will be in fierce conflict with his litigation role, and he will probably conduct litigation activities from the perspective of safeguarding his own interests, thus making it difficult to treat all parties fairly and handle the case fairly and objectively. Similarly, if these people are close relatives of one party, they are likely to favor that party out of affection, or make other parties suffer discriminatory treatment, thus affecting the fairness of the lawsuit. Even if the public security judicial personnel actually do not favor one party and can handle cases impartially, as long as there is the above relationship with the parties to the case, the fairness of criminal proceedings will be doubted by other parties and even the public. Therefore, public security and judicial personnel in this situation should avoid it. As for the scope of the close relatives of the parties, according to Article 82 of the Criminal Procedure Law, it includes the "husband, wife, father, mother, son, daughter, brothers and sisters" of the parties. As far as judges are concerned, article 1 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judges' Avoidance" further explains this, stipulating that judges with lineal blood relatives, collateral blood relatives within three generations and in-laws should be avoided. (2) He or his near relatives have an interest in the case. If investigators, prosecutors, judges or their close relatives have an interest in this case, the outcome of the case will directly affect their interests, so if they preside over or participate in litigation activities, they may not be able to handle the case fairly and objectively. Therefore, public security and judicial personnel in this situation should avoid it. (3) Judges, prosecutors and investigators who have served as witnesses, experts, defenders and agents ad litem in this case, if they have served as witnesses and experts in this case and provided testimony or expert conclusions for this case, may have prejudged the facts or substantive results of the case, and can no longer collect, examine and judge evidence calmly and objectively, which may easily lead to misjudgment. At the same time, if the public security judicial personnel have served as defenders or litigation agents in this case, they may have a special relationship with the client who entrusted them and know the facts of the case, so they cannot conduct criminal proceedings fairly and objectively. Therefore, public security and judicial personnel should avoid such a situation. As far as judges are concerned, Article 1 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judges' Withdrawal" further explains this, stipulating that judges who have served as prosecutors should also withdraw. (four) in violation of the provisions of the meeting with the parties and their clients or accept their gifts. Article 29 of the Criminal Procedure Law stipulates that judges, prosecutors and investigators shall not accept gifts from the parties and their clients, and shall not meet the parties and their clients in violation of regulations. If a judge, prosecutor or investigator violates the provisions of the preceding paragraph, the parties and their legal representatives have the right to ask him to withdraw. According to this regulation, public security judicial personnel accept the "treat and give gifts" of the parties and their clients, and meet the parties and their clients in violation of the regulations, which constitutes the reason for withdrawal. In order to strictly implement this provision, in February, 2000, Article 2 of the Supreme People's Court's "Several Provisions on Strictly Implementing the System of Judge's Withdrawal" further stipulated that if a judge has one of the following circumstances, the parties and their legal representatives have the right to request withdrawal: (1) meeting with one of the parties to this case and their agents and defenders without approval; (2) recommending or introducing agents or defenders for the parties to a case, or introducing lawyers or other personnel to handle the case; (3) accepting property and other benefits from the parties to the case and their clients, or asking the parties and their clients to reimburse expenses; (four) accept banquets or participate in various activities by the parties to the case and their clients at their own expense; (5) Borrowing money from the parties to the case and their clients, borrowing vehicles, communication tools or other articles, or accepting the interests of the parties and their clients in purchasing goods and decorating houses. Although there is no relevant explanation for the prosecutors and investigators of 1, we think it should be implemented with reference. In order to avoid the above situation, the parties and their legal representatives shall provide relevant evidential materials. (5) Persons who participated in handling this case before this litigation stage shall not participate in handling this case again. Article 192 of the Criminal Procedure Law stipulates that the people's court that originally tried a case shall form a collegial panel to hear it according to the procedure of first instance. Article 206 stipulates that a people's court shall form a collegial panel to retry a case in accordance with the procedure of trial supervision. According to the above provisions, the members of the original collegiate bench of the court of first instance who are responsible for hearing the case may not participate in the trial of the case if the court of second instance decides to send them back for retrial after the second instance procedure is over; When the people's court retries a case in accordance with the procedure of trial supervision, the members of the collegial panel who were originally in charge of the trial shall not participate in handling the case. Because the judge who participated in the original trial of this case has predicted the facts and results of the case, it is difficult to guarantee the fairness of the trial by participating in or presiding over the retrial of the case. Article 3 1 of the the Supreme People's Court Interpretation further stipulates that any investigator or procurator who participates in the investigation and prosecution of this case shall not serve as a judge of this case if he is transferred from the people's court. Members of the collegial panel who participate in the trial of this case in one trial procedure shall not participate in the trial of other procedures in this case. Article 29 of the "the Supreme People's Procuratorate Rules" stipulates that the investigators involved in the investigation of this case, if transferred to the people's procuratorate, shall not serve as the prosecutor of this case. (6) The social life with other relations with the parties to the case, which may affect the fair handling of the case, is very complicated, and it is impossible for the law to list all possible social relations between the public security judicial personnel and the parties. Judges, prosecutors, investigators and the parties have other relations other than the above three situations, so that the case can not be handled fairly, they should also withdraw. Of course, the fact that there are other special relationships between these people and the parties is not enough to constitute a reason for withdrawal alone. Only when the existence of this special relationship leads to the case can not be handled fairly, public security and judicial personnel should avoid it. As far as judges are concerned, Article 1 of the Supreme People's Court's Several Provisions on Strictly Implementing the System of Judges' Withdrawal stipulates that judges who have the relationship of husband and wife, parents, children or siblings with agents ad litem and defenders in this case should withdraw. In the theory of procedural law, avoidance can be divided into many types according to different standards, but it is generally believed that avoidance can be divided into three types: self-avoidance, application avoidance and instruction avoidance. Active withdrawal refers to the active withdrawal of judges, prosecutors and investigators. Immunity from criminal proceedings in case of revocation of the law. Article 28 of the Criminal Procedure Law establishes the system of automatic withdrawal. The essence of this system is to eliminate human factors that may lead to unfair handling of cases through the professional self-discipline and self-restraint consciousness of public security judicial personnel, so that public security judicial personnel who meet the statutory withdrawal situation consciously withdraw from litigation activities. Application for withdrawal refers to that the parties to the case and their legal representatives think that the judges, prosecutors and investigators have legal withdrawal situations and apply to their organs for withdrawal. According to the provisions of the Criminal Procedure Law, it is an important litigation right of the parties and their legal representatives to apply for the withdrawal of public security and judicial personnel. Public security and judicial organs have the obligation to ensure that the parties and their legal representatives fully and effectively exercise this right. According to the revised Criminal Procedure Law of China 1996, the victim has the litigation status of the party, so he has the same right to apply for withdrawal as the criminal suspect and defendant at all stages of criminal proceedings. Withdrawal of orders means judges, prosecutors, investigators, etc. Legal withdrawal, if the parties and their legal representatives have not applied for withdrawal, they may not withdraw on their own. Courts, procuratorial organs, public security organs and other relevant organizations or administrative leaders have the right to make decisions and order them to withdraw from litigation activities. Instruction avoidance is an important part of avoidance system and a necessary supplement to self-avoidance and application avoidance. According to whether it is necessary to explain the reasons for applying for withdrawal, in theory, withdrawal can be divided into two types: justified withdrawal and unreasonable withdrawal. Reason avoidance, also known as justified avoidance, means that the participants who have the right to apply for withdrawal can only apply to the relevant public security and judicial personnel for withdrawal if the case has legal reasons for withdrawal. Unjustified withdrawal can also be called compulsory withdrawal or unreasonable withdrawal, which means that the person who has the right to apply for withdrawal can ask a quorum of judicial personnel to withdraw without giving any reason. Once this application is made, it can lead to the withdrawal of these public security and judicial personnel. China's criminal procedure law has not established the system of avoidance without cause. When the parties and their legal representatives apply for withdrawal, they must generally provide evidence to prove that a public security judicial officer has legal reasons for withdrawal.