China Inspection: Research on Issues of Criminal Procedure Law Amendment (Volume 10)

Author: Zhang Zhihui
Publisher:
Publishing Date: 2006-01-01
Features: With the passage of time, another new year has arrived. The National Procuratorial Theory Research Work Conference and the 6th Annual Meeting of the Supreme People's Procuratorate were held in Nanjing, Jiangsu from April 22 to 24, 2005. This conference focused on strengthening legal supervision and the "two laws' amendments," conducting extensive and in-depth discussions on the further revision of the "Criminal Procedure Law" and the revision of the "Organizational Law of the People's Procuratorate." Publishing the fruits of these hardworking contributors is both our honor and responsibility. Therefore, Volume 9 of "China Procuratorate" is themed around the "further revision of the Organizational Law of the People's Procuratorate," while Volume 10 focuses on the "further revision of the Criminal Procedure Law," presenting these valuable achievements to everyone.
The issues surrounding the further revision of the "Criminal Procedure Law" are complex and multifaceted. Among these, the issues most closely related to the procuratorate and urgently requiring revision include coercive measures, the investigation of duty crimes, evidence issues, procedural improvements, and the mechanisms for supervising and restricting the procuratorate. All of these issues have been keenly perceived and thoughtfully addressed by wise procuratorial researchers, yielding remarkable results. This is clearly demonstrated by the articles included in this volume. This volume is divided into five sections: "Coercive Measures and Human Rights Protection," "Investigation of Duty Crimes and Its Supervision," "Evidence and Proof," "Procedural Improvements," and "People's Supervisors." Below is a detailed description of each section.
The section "Coercive Measures and Human Rights Protection" includes five selected articles. Coercive measures in criminal procedure are a crucial issue in the further revision of the "Criminal Procedure Law" of our country, concerning the human rights protection of suspects and the implementation of the fundamental spirit of the Constitution that "respects and protects human rights." It is also an inherent requirement of relevant United Nations documents. The conference focused on key discussions such as the high rate of pre-trial detention, detention beyond the legal term, and the review mechanism for detention. Professor Ma Changsheng of the Law School at Xiangtan University and others wrote "On the Improvement of Coercive Measures in Criminal Procedure—A Study of the Pre-trial Detention System," proposing that the root causes of the current excessive detention, especially the disguised excessive detention, in our country lie in various institutional dilemmas. To overcome these challenges, it is necessary to analyze the nature and characteristics of pre-trial detention and pursue a reform path from technical improvement to institutional renewal. Vice-Procurator Chen Huai'an of Anhui Provincial People's Procuratorate examined the limited and moderate application of coercive measures in criminal procedure, reviewing the gap between coercive measures in our country and this principle, calling for a redefinition and scientific design of the coercive measures system. Through measures such as establishing and improving the judicial review system for coercive measures, strengthening human rights protection during the application of coercive measures, and establishing corresponding relief procedures and supporting systems, this important principle related to procedural civilization and human rights protection in the application of coercive measures can be implemented.
Vice-Researcher Deng Siqing of the Procuratorial Theory Research Institute of the Supreme People's Procuratorate closely the procuratorial practice. On the issue of improving coercive measures in the investigation of duty crimes, especially the problems in the three measures of summons, surveillance residence, and arrest, he pointed out the differences between the investigation of duty crimes and other cases, identified the existing problems, and proposed reform suggestions that meet the needs of duty crime investigation. It is believed that these views have significant reference value for changing the current situation of the "Criminal Procedure Law" in our country, which is too rough and lacks targeting.
Procurator Yao Shijin of Taizhou Municipal People's Procuratorate of Zhejiang Province reflected on the legal control of coercive investigation, not only limiting himself to the current coercive measures in our country but also establishing a sound coercive investigation system and studying how to learn from the reasonable connotations of the judicial review system for coercive investigation in foreign countries. On this basis, he proposed to reform the legal control procedures and related systems for coercive investigation in China, reflecting the author's academic stance of learning from the advanced experience of the West without blindly following it.
Yang Mantiao of the Standing Committee of the People's Congress of Qiyang County, Hunan Province, and Qing Feizhou of the Yongzhou Municipal People's Procuratorate of Hunan Province, starting from an empirical perspective, examined the practical status of China's surety bonds with a pragmatic attitude, identified the root causes of the system, and proposed countermeasures from the perspective of systems and related supporting measures. Whether it is theoretical discussions or empirical research, whether it is studies on all coercive measures or a specific coercive measure, they all share a common theme: the application of coercive measures must pay attention to human rights protection. Pre-trial detention is an exceptional state and non-detentionary measures should be expanded as much as possible; even if pre-trial detention is used, it must be strictly limited, which is a basic requirement for human rights protection.
As for how to carry out relevant reforms on coercive measures in China and promote the further revision of the "Criminal Procedure Law," the authors have consistently adhered to the same academic stance: to learn from the advanced experience of foreign countries, strengthen the judicial nature of coercive measures, and combine China's specific conditions to avoid the "" (culture shock) of transplanting foreign systems into China. This undoubtedly reflects the difficult exploration and serious academic attitude of procuratorial theory workers in addressing China's practical problems.
The investigative power of the procuratorate is a key function of the procuratorate. The historical and current legitimacy of the procuratorate's investigative power for duty crimes, how to properly exercise this investigative power, and how to internally and externally supervise and restrict the investigative power for duty crimes when the functions of investigation, prosecution, and indictment are exercised by the same organ are issues that cannot be avoided in procuratorial theory research.
The section "Investigation of Duty Crimes and Its Supervision" includes five related articles. The article "On Investigative Measures for Duty Crimes and Legislative Improvement" by Director Wang Jianming of the Anti-Corruption and Bribery Bureau of the Supreme People's Procuratorate addresses the gap between the current legislative provisions for the investigation of duty crimes and practical needs, proposing several legislative improvement suggestions for the investigation of duty crimes in our country, such as granting necessary secret investigation and technical investigative measures for duty crime investigations, extending the time limits for summons and summons, and establishing and improving an organic system for the investigation of duty crimes. From both practical and theoretical perspectives, it provides important references for future legislative work on the investigation of duty crimes in our country.
Ye Linhua of the Huangpu District People's Procuratorate of Shanghai Municipality took the construction and control of the procuratorate's investigative power as the research object, proposing that as a power-setting model, the procuratorate's investigative power has a constitutional basis and practical foundation. However, the investigative power of the procuratorate in our country should be reconstructed, reasonably defined, and established the principle of statutory coercive investigation. At the same time, while establishing and improving various investigative measures for duty crimes, the procuratorate should be given the command authority for investigating certain specific cases. At the same time, a series of measures should be taken to establish internal and external supervisory and restrictive mechanisms. The smooth exercise of power necessarily requires a strong supervisory and restrictive mechanism. While strengthening the investigative power for duty crimes, it is necessary to establish sound and effective internal and external supervisory and restrictive mechanisms.
Director Yang Xingguo of the Anti-Corruption and Bribery Bureau of the Supreme People's Procuratorate proposed solutions to the problem of "supervising the supervisors" from the perspectives of internal and external supervisory and restrictive mechanisms. Internally, supervision should be strengthened at all stages of case clues, preliminary investigation, filing, and coercive investigation, and strengthened supervision among departments, between the procurator and department heads, between the procurator and the handled cases, as well as between higher procuratorates and lower procuratorates. At the same time, from the aspects of Party leadership, (NPC supervision), and People's Supervisors, external supervision and restrictive mechanisms should be standardized and strengthened.
Gu Wen and others of the Legal Policy Research Office of the Beijing Municipal People's Procuratorate conducted a detailed and comprehensive discussion on the procuratorate's investigative integration mechanism and its internal and external supervisory and restrictive mechanisms, proposing that our country should use systems theory, control theory, and information theory to promote and implement the procuratorate's investigative integration, combining overall concepts and specific plans for systematic demonstration. In terms of supervision and restriction, internal restrictions should be strengthened among self-investigating departments, between departments, and between higher procuratorates and lower procuratorates, while external restrictions should be strengthened from the aspects of the NPC, litigants, and People's Supervisors.
Zhao Xinyuan and others of the Zhangjiakou Municipal People's Procuratorate of Hebei Province also reflected on establishing a supervisory and restrictive mechanism for handling duty crime cases, fully demonstrating the theoretical significance and practical necessity of establishing such a mechanism and proposing specific operational procedures for internal and external supervisory and restrictive mechanisms. Their proposals for internal and external supervisory and restrictive mechanisms are closely linked to procuratorial practice, refining internal and external supervision and demonstrating strong operability.
The roughness and imperfections of evidence law are a bottleneck restricting the "Criminal Procedure Law" of our country and a prominent issue in the further revision of the "Criminal Procedure Law." The four articles selected for the section "Evidence and Proof" conduct empirical and digital analyses of the problems and improvements in our country's evidence and proof systems from an empirical perspective, reflecting the authors' rare pragmatic and diligent academic style in the face of science.
Deputy Director Li Zhongcheng of the Supervision and Reform Department of the Supreme People's Procuratorate wrote "Criminal Evidence and Proof Standards," exploring the two fundamental issues of evidence and proof: what evidence is and what proof standards should be established. The author pointed out that there is no need to modify the concept of evidence in the current "Criminal Procedure Law." In terms of proof standards, the criminal procedure proof standard is divided into stage standards and ultimate standards, and the proof standards of our country at different stages are discussed in stages, showing that they are not adapted to practical needs. This reflects the author's consideration and exploration of practical problems after accumulating profound theoretical foundations.
Huang Yazhen and others of the Ganzhou Municipal People's Procuratorate of Jiangxi Province recognized the difficulty of grasping evidence standards at the review stage of prosecution, proposing a series of standards from the overall to the detailed, combining their rich experience in procuratorial work not only to propose how to adhere to the standard of evidence being true and sufficient overall but also to discuss in detail how to grasp the proof standards at the prosecution stage of individual cases from the aspects of statutory and discretionary circumstances. Refining the proof standards of various detailed issues on the basis of macro discussions on proof standards is the outstanding contribution of the authors of this article.
The article "Empirical Research on the Application of the Rule of Excluding Illegally Obtained Evidence" was written by Mao Jiangzhou and Hu Zhijian of the Jiangbei District People's Procuratorate of Ningbo City, Zhejiang Province, based on nearly ten months of empirical research on individual cases. It pointed out that defining, proving, and excluding illegally obtained evidence in our country is currently very difficult, analyzed the reasons, and proposed legislative suggestions for improving the exclusion of illegally obtained evidence. In the legislative proposal section, the authors did not vaguely introduce the practices of other countries but proposed a series of institutional measures to guarantee the implementation of the rule of excluding illegally obtained evidence through the problems found in the research.
The article "Research on Criminal Public Prosecution Evidence" is a summary of the research project on criminal public prosecution evidence, led by Li Quanyi, the Procurator of Guilin Municipal People's Procuratorate, and Zhou Shizhong, a professor of the Law Department of Guangxi Normal University. The research emphasizes practicality, closely focusing on practical problems that need to be solved through judicial practice and legislation, and has considerable reference value for the ongoing legislative work on criminal evidence and the resolution of evidence issues in criminal judicial practice, such as criminal public prosecution proof standards, criminal public prosecution evidence rules, criminal public prosecution burden of proof and proof responsibility systems, and criminal public prosecution verification systems.
The improvement of specific procedural issues is also a hot topic in the further revision of the "Criminal Procedure Law" and an indispensable part of procuratorial theory research. During this annual meeting, comrades in the procuratorial system also put forward their views on procedural improvements, especially on procedural improvements related to the functions of the procuratorate in this process. We have taken "Procedural Improvement" as a section and included four related papers.
Wu Youwen of the People's Procuratorate of the Hui Autonomous Region wrote "On the Improvement of Criminal Pre-trial Procedures," proposing several ideas for improving criminal pre-trial procedures in our country based on the basic concepts that should be followed in public prosecution cases during pre-trial procedures, from filing, investigation, prosecution, and control of self-investigating cases in pre-trial procedures.
Wang Xinhuan of the Legal Policy Research Office of the Beijing Municipal People's Procuratorate selected the issue of criminal retrial procedures, a hot and difficult issue in the further revision of the "Criminal Procedure Law," as the research object, analyzing it from the perspective of improving the appeal procedure, proposing that our country should establish a special appeal procedure and a retrial application procedure, and improve the relevant provisions of the retrial procedure.
Sun Li, the Procurator of Haidian District People's Procuratorate of Beijing Municipality, and others, starting from the criminal policy of "lightly and heavily," proposed relevant procedural improvements for implementing this criminal policy in our country: in the "lightly" aspect, expand the scope of non-prosecution, introduce measures such as suspended prosecution, limit the scope of criminal punishment, expand the scope of simplified trials and (simple procedures) for defendants who admit guilt, and introduce criminal mediation systems; in the "heavily" aspect, strictly limit the targets of "heavily" and impose heavier penalties in accordance with the law.
Kwang Doong of the Heilongjiang Provincial People's Procuratorate and others, starting from the perspective of human rights protection in the entire litigation process, discussed a series of reform measures that should be taken in terms of concept renewal and institutional improvement in our country to strengthen human rights protection, such as reforming the appointment system for procurators, granting limited silence rights to suspects and defendants, and other measures.
The People's Supervisor system is an important measure for the procuratorial system to implement the spirit of the 16th National Congress of the Communist Party of China on promoting judicial reform. Since the pilot work began in October 2003, it has been advancing in a healthy, orderly, and in-depth manner, achieving good results. In-depth research on this system is beneficial to further socializing and democratizing procuratorial work.
Director Wen Shengtang of the People's Supervisor Office of the Supreme People's Procuratorate, combining the experience of promoting the People's Supervisor system in the past two years, argued that the People's Supervisor system plays an important role in implementing the important thought of the Three Represents, implementing constitutionalism and democratic supervision, building a civilized judiciary, and building a harmonious society. It pointed out that the legislation of the People's Supervisor system is both necessary and feasible, and that a step-by-step legislative path should be taken in three steps: the "Organizational Law of the People's Procuratorate," the "Criminal Procedure Law," and the "Law of the People's Supervisor."
Liu Mingxiang and others of Wuhan University wrote "Research on Several Issues of the People's Supervisor," pointing out that the People's Supervisor is an external supervision and a practical reform exploration, which has its own legality and rationality. Since the People's Supervisor system was implemented, it has achieved certain results, but it should be improved in terms of legislative aspects such as supervisory personnel, supervisory scope, and supervisory effectiveness.
Volumes 9 and 10 of "China Procuratorate" are a year's worth of essence in procuratorial theory research, selected from 735 submitted articles. Those articles that could not be published due to space limitations also reflect the sense of responsibility and mission of the procurators and other legal workers of the Republic. It is precisely because of their joint efforts that the current flourishing situation of procuratorial theory has been achieved.
Improving the Chinese procuratorial system and developing the procuratorial cause of China is our common responsibility.