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    The Amendment Of The Criminal Procedure Law &Nbsp; The Gaps That Need To Be Filled Urgently.

    2011/9/5 10:27:00 32

    Amendment Of Penal Law

    In August 30th, the amendment to the Criminal Procedure Law (Draft) and the draft were explained in the full text of the China National People's Congress Network and the public was invited to solicit opinions from the public.

    The draft consists of 99 articles covering seven aspects: evidence system, coercive measures, defense system, investigative measures, judicial procedures, enforcement provisions and special procedures.


    Objectively speaking, the current "draft" highlights have their own dark spots.

    Over the past few days, the media have talked more about the highlights and dark spots of the draft. Here it is only pointed out that the draft should be included in several blank spots that have not been seen.

    Expect to arouse the attention of legislators.


    The first empty white spot, the detention center shunt.

    After "hide and seek" incident in 2009, "bathing bath"

    "," nightmares ","

    The death of the detainees in the detention center is endless.

    This makes some grass-roots public security departments and procuratorial organs struggling to cope with public opinion crisis.

    From the perspective of their status and authority, the grass-roots departments pay more attention to the settlement of cases, and the top-down detention house is only a temporary solution.

    The way to cure this is to reform the management system of detention houses.

    It is precisely because the detention center belongs to the public security department that under the bad habits of "taking the custody of the agent", the repair of the new suspect becomes the encouraging rule of some management, or at least the default rule.

    Why does the rate of abnormal death in detention centres far exceed that of prison?

    This is not a prison manager's strong management ability, but rather a deep institutional root.

    Most of the jurisprudential view holds that only by allowing the public security department to lose direct leadership over the detention center, the detention center will not give the green light to "prison prison tyrants" and torture.


    The second blank point is the right of lawyers to be present.

    Although the bill reiterates that "extorting confessions by torture" is strictly prohibited, it also provides "illegal evidence".

    Exclusionary rule

    "But in what system to curb torture, it is dull.

    The legal profession and lawyers have long appealed for the right to be present.

    Think of it, torture often occurs in confined space (mostly in the detention center managed by the public security department), which lacks witness and is difficult to obtain material evidence in time.

    To curb the existence of torture, we can not expect the conscience of the executioner to wake up, nor can we expect the victim to appeal everywhere.

    Torture victims are usually not legal professionals. They often lose personal liberty at the time of the crime.

    The presence of lawyers can solve this problem.

    With the presence of a lawyer, the suspect will receive professional help from lawyers, including the process of witness questioning.

    A lawyer, a "outsider", can not continue to see torture.

    As an external supervision mechanism, the lawyer's presence right is able to undertake the mission of supervision legitimation and procedure. However, the opportunity to enter the law is lost.


    The third blank spots are the victims and their families.

    Rights and interests protection

    In 1996, the criminal procedure law overhauled the victim to the status of "litigants", highlighting the efforts of legislation in protecting the rights and interests of litigants.

    But in the past 15 years, the victim has been wearing the aura of the "litigant" and is hard to get along with his reputation.

    Take the case of Li Changkui as an example, the victim's family members have not received the notice of the second instance, nor have they received the final judgment of the court of second instance.

    In accordance with the provisions of the current execution law, the victim or his close relatives have no right to appeal against the criminal part of the case.

    The second instance procedure does not refer to the "victim", nor is it clear that the "parties" should be involved in the trial. Many courts thus understood that the second instance should not be notified of the victims and their close relatives.

    Although this method can reduce the risk of the petitioners and their families to choose petitions within a certain time limit, the seeds of conflict have been planted in advance.

    In addition, there are few judgments in China's criminal incidental civil action.

    This "difficulty in execution" has undoubtedly caused two injuries to the victims and their families.

    The victim's national compensation system can help the victim out of poverty and distress caused by the crime in a certain sense.

    The revised criminal procedure law sticks to the basic standpoint of "the defendant's standard" and returns to the principle of "equal protection of the accused's defendants".


    Procedural sanction is also one of the gaps in the draft amendment to the criminal procedure law.

    Take the procuratorial organ's right to file for instance as an example, in accordance with the existing law, the procuratorial organ believes that the public security department should file a case without filing a case, and may ask for reasons for not filing a case.

    If the reason is not valid, a notice for filing a case shall be issued, and the public security department shall file a case.

    The problem is that the police do not catch up with the legal supervision of the procuratorial organs, nor do they comply.

    The current law is arrogant.

    At the institutional level, legal supervision is more thorough and effective, and it is completely missing in the draft.


    The blank points can also be listed quite a lot. Some of the reform measures that the academics have heard highly and have many consensus are not accepted by the draft.

    While announces the full text of the draft legislation, the legislature should dispel doubts about the measures to "enter the law without entering".

    Only good interaction can lay a foundation for public opinion in door opening legislation.

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