I. Revision of Principles
The principle of prohibiting self-incrimination: the person under criminal investigation has no obligation to prove his crime. "It is strictly forbidden to extort confessions by torture and collect evidence by other illegal methods, and no one may be forced to prove his guilt."
Legal effect: 1. Criminal suspects and defendants have the right to silence; 2. The confession that forced him to plead guilty shall not be used as evidence; 3. Voluntary confession has evidential capacity.
Two major changes:
1. Change the traditional investigation mode from "confession → other evidence" to "other evidence → confession".
2. Change the trial mode: from the mode of "interrogating the defendant to start the trial" to the mode of "witnesses appearing in court and presenting physical evidence and documentary evidence to start the trial".
Some cases have jurisdiction:
1. Cases endangering national security and terrorist activities and cases that may be sentenced to life imprisonment or death shall be under the jurisdiction of the intermediate court.
2 "Foreigners' Crime Cases" are under the jurisdiction of the basic courts, which can be upgraded if necessary.
Two, criminal defense, criminal legal aid system modification
1. Narrow the restrictions on the right to meet: "In cases of crimes endangering national security, terrorist activities and particularly serious bribery crimes, the meeting during investigation shall be approved by the investigation organ." Emphasize that "defense lawyers will not be monitored when they meet with criminal suspects and defendants."
2. Find out the identity of the lawyer hired by the criminal suspect in the investigation stage: "defense lawyer" or "defender".
3. Expand the scope of legal aid: "Cases that may be sentenced to life imprisonment" will also be included in the scope of legal aid.
4. Clarify legal aid obligations: national obligations and collective obligations. Public, procuratorial and legal organs all have the obligation of "informing", and legal aid institutions undertake the obligation of implementing legal aid in detail.
5. Crimes committed by lawyers: After the investigation of the original case is completed, it will be transferred to an organ other than the original investigation organ for investigation.
Third, modify the compulsory measures.
(1) Changes in arrest measures
1. spirit of revision: embody the criminal policy of "combining leniency with severity" and implement the policy of "arresting as little as possible and not arresting".
2. Classification of arrest: (1) General arrest. List five situations of "social danger" and emphasize its decisive role in general arrest conditions. (2) Special arrest. Namely: "Criminal suspects and defendants who intentionally commit crimes or whose identities are unknown and may be sentenced to fixed-term imprisonment of more than 10 years shall be arrested".
3. Arrest procedure: (1) Inform family members within 24 hours after arrest. Delete the situation of "obstructing the investigation" without notice. (2) It is stipulated that the people's procuratorate should review the necessity of detention after arrest (suggest release or direct change).
(two) modify the detention and custody measures.
1. Duration of summons
The duration of summons or summons shall not exceed twelve hours; If the case is serious and complicated and detention or arrest measures are needed, the time limit for summoning and summoning shall not exceed 24 hours.
2. Prohibition clause
The criminal suspect shall not be detained in disguised form by means of continuous summons or compulsory summons. The suspect should be guaranteed necessary food and rest time.
3. Procuratorial detention
Extension period: generally 14 days. Under special circumstances, the time for deciding to arrest may be extended by one to three days.
4. Notice of detention
In addition to being unable to notify or suspected of "three types of cases" obstructing investigation, family members may not be notified.
(3) Modification of bail pending trial and residential surveillance.
1. Applicable conditions
Distinguish between the conditions of bail pending trial and residential surveillance; Adding "pregnant and lactating women" can be applied to bail pending trial or residential surveillance.
2. Get bail pending trial
Increase the "information change reporting system for people on bail pending trial"; Increase the compliance of people who have been released on bail pending trial-"don't engage in specific activities, don't enter specific places, don't meet or associate with specific people"; Increase the provisions on the establishment and return of the deposit amount.
3. Execution procedures
Whether he is released on bail pending trial or under residential surveillance, the criminal suspect can be ordered to hand over the identity documents such as "passport and other entry and exit documents" and "driver's license" to the executive organ for preservation. "Class III cases" can be monitored at the designated residence with the approval of the procuratorial organ at a higher level or the public security organ.
Evidence part
I. Concept and form of evidence
1. Evidence concept
Old concept (Article 42, paragraph 1): "All facts that prove the true situation of a case are evidence." The current criminal procedure law adopts "telling the truth".
New concept: "All materials that can be used to prove the facts of a case are evidence." The revised Criminal Procedure Law adopts the "essence theory".
2. The form of evidence
Add "the record of search and investigation experiments", which is juxtaposed with "the record of inquest and inspection"; Change "appraisal conclusion" to "appraisal opinion"; Add "electronic data", that is, "electronic evidence", which is juxtaposed with "audio-visual materials". * * * Eight forms of evidence.
3 administrative law enforcement evidence into criminal proceedings
"Evidence materials such as physical evidence and documentary evidence collected by administrative organs in the process of administrative law enforcement can be used as evidence after verification by judicial organs."
4. Guarantee of objective conditions
"We must ensure that all citizens who are related to the case or know the facts of the case have the conditions to provide evidence objectively and fully."
Second, the system of witness testimony.
1. The principle of witness testimony
Principle of individual testimony: the principle that the collection of witness testimony and the testimony of witnesses in court only have individual evidence ability. "Joint signing" and symposiums are prohibited.
The principle of cross-examination in court: the principle that the testimony of witnesses without cross-examination and debate in court shall not be used as the basis for deciding a case. (Article 47 of the current law, as amended and reiterated. )
2. The system of witness appearing in court
Subjects in court: ordinary witnesses, expert witnesses and investigators.
Exceptions to appear in court: serious illness; Overseas affairs; Immunity from testifying (kinship, state secrets, professional trust, self-incrimination).
Guarantee of appearing in court: material guarantee-"The witness shall be compensated for the direct economic losses suffered by testifying in court". Safety-"If the personal safety of witnesses, victims or their close relatives is threatened because they testify in litigation, the people's courts, people's procuratorates and public security organs shall take one or more of the following protective measures".
3. Questioning skills and rules for witnesses to testify in court
(1) questioning skills
Positive example: establish the scope of inquiry (proof object) → peel off layers → click on the center of gravity.
Counterexample: "Tell me what you know." The content of this answer is not credible.
(2) Query rules
I. Relevance rule: The content of the inquiry is related to conviction and sentencing.
Two. Rules prohibiting the main inquirer from leading questions: the main inquirer may not lead questions, but the counter-inquirer (cross-inquirer) may lead questions. "Induce": Hint or question is the answer.
Three. The rule that cross-examination is limited by the scope of the main inquiry: after the main inquirer establishes the scope of inquiry for his witness, the cross-examination of the counter-inquirer shall not exceed the scope of the main inquiry.
Three. Rules of proof
1. Exclusion rule of illegal evidence: a rule to exclude the evidence qualification of evidence materials that violate legal procedures and do not meet legal forms.
Scope of application: confessions obtained by illegal means such as extorting confessions by torture, witness testimony and victim's statement-verbal evidence obtained by violent means. If the collection of material evidence and documentary evidence in violation of the law may seriously affect judicial justice, it shall be corrected or given a reasonable explanation; If it cannot be corrected or a reasonable explanation cannot be given, the evidence shall be excluded.
Obligation to exclude illegal evidence: All three organs of the Public Security Law have the obligation to exclude illegal evidence.
Exclusion procedure: pre-trial exclusion procedure (self-exclusion procedure); Test exclusion procedure (start-inform right and written application; Investigation-defendant's statement, prosecutor's evidence, investigators' testimony in court, cross-examination and debate with each other; Handling-postpone the trial, reject the application and confirm the violation.
2. Opinion rule: the evidence rule that excludes the evidential qualification of the speculative, critical and judgmental statements made by the declarant on the facts of the case.
Exclusion reasons: it will hinder the discovery of substantive truth; Obstruction of judicial judgment.
Scope of application: subject scope → ordinary witness, victim and defendant; Object scope → speculative statement, critical statement and judgment statement. It does not apply to the concluding observations of expert witnesses.
3. Reinforcement rule: in a broad sense, it refers to the evidence rules that evidence materials with weak probative power or questionable credibility can only be used as evidence after being supplemented and strengthened by other evidence; In a narrow sense, it refers to the evidence rule that only the defendant confessed without other evidence, and the defendant could not be convicted and sentenced.
Generalized application: the testimony of interested parties, the testimony of mentally retarded people, single material evidence, documentary evidence, audio-visual materials, and the testimony of minors who are not commensurate with their age and intelligence.
Narrow sense: the confessions of criminals are consistent with each other, and there is no other evidence.
Fourth, criminal proof.
1. Burden of proof: the obligation to prove charges and punishment claims with evidence. Legal obligations and legal consequences are unified.
Undertaking rules: it is clearly stipulated for the first time that "the burden of proof for the establishment of a complaint or punishment request shall be borne by the complainant".
Liability exception: the burden of proof is reversed-"except as otherwise provided by law".
2. Standard of proof: the degree to which the crime should be proved by using evidence.
Legislative spirit: keep the reasonable part of the existing law and learn from the common law system.
Measures to amend the law: adopt the reasonable elements of the "two evidence provisions", clarify the content of "the evidence is true and sufficient" and add the provision of "excluding reasonable doubt".
The new standard of proof: to prove a crime with evidence, it must reach the level of "the facts are clear, the evidence in the whole case is complete, and the ascertained facts exclude reasonable doubt".
Pre-trial procedure
Reform of investigation procedure
1. structural adjustment: the structure of investigation procedure is a "small isosceles triangle" structure composed of "inspection, investigation and suspicion". At the top of the triangle, while performing the function of investigation and supervision, prosecutors "guide investigation" by putting forward procuratorial suggestions and expressing investigation opinions. Investigators and suspects live in the two bottom corners of the triangle respectively, "equal confrontation."
2. Legalization of technical investigation: Procuratorial organs have the right to decide technical investigation measures, and administrative power is exercised by state security organs or public security organs.
3. Partial legalization of secret investigation: denying "temptation investigation intentionally induced by crime" and affirming "temptation investigation provided by opportunity". Establish "controlled delivery".
4. Legalization of biological evidence: "Collecting biological samples such as fingerprints and blood".
5. Full audio and video recording: "Yes"-general situation; "Should"-a case that may be sentenced to life imprisonment or death.
6. Emphasize the place where the witness is questioned: the scene, the unit and residence of the witness, or the place where the witness puts forward.
7. Improve the search procedure: the searched person or his family members, neighbors or other witnesses should be present. The search of women's bodies is carried out by female staff.
8. Expand the scope of seizure and freezing: bonds, stocks, fund shares and other properties.
9. Improve investigation and supervision: The types of investigation and supervision are divided into: investigation and supervision of specialized agencies; Supervision of the parties, defenders, agents ad litem and interested parties-If the judicial organs and their staff members are not relieved, dissolved or change the compulsory measures within the statutory time limit, they shall return the bond for obtaining a guarantor pending trial, seal up, seize and freeze the property irrelevant to the case, and remove, occupy, misappropriate, privately divide, exchange or use the sealed up, seized or frozen property in violation of regulations.
Reform of procuratorial mode
1. Abolish the prosecution mode of "copying the main evidence".
2. Restore the prosecution mode of "transferring the evidence of the whole case": "In accordance with the provisions of the trial jurisdiction, bring a public prosecution to the people's court and transfer the case files and evidence to the people's court."
Establish a pre-trial meeting system
1. Concept: Pre-trial meeting, also known as pre-trial meeting, is a meeting presided over by the judge, attended by both the prosecution and the defense, mainly discussing procedural issues, and the judge makes a decision or ruling.
2. Task: Jurisdiction over objections; Whether to avoid; Evidence exchange; Changes in compulsory measures; Exclude illegal evidence; Criminal reconciliation; Withdraw the prosecution; Wait a minute.
judicial process
1. Reform summary procedure
Scope of application: extended to all criminal cases under the jurisdiction of grass-roots courts.
Applicable conditions: a, the facts are clear and the evidence is indeed sufficient; B, the defendant voluntarily pleaded guilty; C the defendant agrees to apply summary procedure.
2. Establish "special procedures"
(1) Juvenile criminal proceedings: conditional non-prosecution; Relatives, friends and teachers come to court to persuade and educate; Restrict news reports.
(2) Reconciliation procedure of public prosecution cases: the defendant repents, the victim understands, and the two sides reach an agreement, the contents of which shall not violate the law.
(3) Confiscation procedure without criminal trial-legal definition and trial determination of stolen money and illegal income, hearing procedure, court ruling and appeal reconsideration.
(4) Compulsory medical procedures: trial object, hearing procedure, court ruling, appeal and reconsideration.