Criminal Procedure Law (Arguments. Regulations. Cases)

Author: Tan Shigui
Publisher:
Publishing Date: 2003-12-01
Features:
1. The Status of Criminal Procedure Law in China's Legal System
In the history of legal systems both in China and abroad, the status of procedural law has always been inherently subordinate. Early famous legal codes, such as the Code of Hammurabi, did not include independent provisions for procedural law. In ancient China, laws were combined into a single system, without a distinction between criminal and civil law, nor between substantive and procedural law. After the bourgeois revolution in the West, with the development of productive forces and societal progress, legal disciplines became increasingly specialized, and procedural law gradually gained independence, leading to the emergence of criminal procedure codes and their growing importance in various countries. Modern rule-of-law states include extensive provisions on criminal procedure in their constitutions and constitutional documents, such as France's Declaration of the Rights of Man and the U.S. Constitution's Fifth Amendment, which stipulate principles like the presumption of innocence, independent judgment, and prohibition of double jeopardy. China's Constitution also outlines the nature, tasks, and powers of judicial organs, as well as the fundamental principles and systems for conducting criminal procedure. Criminal procedure law is a hallmark of the development of modern state legal systems and an important manifestation of modern procedural civilization. Due to its dual function of punishing crimes and safeguarding human rights, and its close relevance to fundamental rights, criminal procedure law is often referred to as a "mini-constitution" in many countries. Criminal Procedure Law is one of the 14 core courses for law majors in higher education institutions, designated by the Ministry of Education, and is a mandatory foundational course for law students. Criminal procedure law belongs to the category of procedural law, characterized by its strong applicability, practicality, and operability. In judicial practice, criminal procedure law is a crucial legal instrument frequently applied by public security and judicial organs. The implementation of criminal procedure law has also become an important indicator of judicial civilization. Therefore, law students must attach sufficient importance to this law, study its content diligently, master its key principles, and integrate their understanding to meet the demands of a legal career.
2. The Formulation and Revision of China's Criminal Procedure Law
As early as the early 1950s, China began drafting its criminal procedure law. In 1955, the Legal Affairs Commission of the Central People's Government drafted the Draft Regulations on Criminal Procedure of the People's Republic of China. In 1956, the National People's Congress entrusted the Supreme People's Court with drafting the criminal procedure law, establishing a specialized institution that, by the following May, produced the Draft Criminal Procedure Law of the People's Republic of China, consisting of 7 chapters and 325 articles. However, the drafting process was suspended due to the start of the "anti-rightist" campaign. In June 1962, under the leadership of the Central Legal Affairs Group, the revision of the draft criminal procedure law was resumed, and by April 1963, the Draft Criminal Procedure Law of the People's Republic of China (initial draft), with 7 chapters and 200 articles, was completed. Subsequently, due to the onset of political movements, particularly the Cultural Revolution, the formulation of the criminal procedure law stalled for an extended period. In December 1978, the Third Plenary Session of the Eleventh National Congress of the Communist Party of China marked the beginning of a new phase in China's socialist construction and the opening of a new chapter in its legal system. In February 1979, the Legal Affairs Commission of the Standing Committee of the National People's Congress was established. While focusing on drafting and revising the criminal law and other legal drafts, the commission also organized efforts to revise the draft criminal procedure law, based on the 1963 initial draft, producing successive revised drafts. In June 1979, the Standing Committee of the National People's Congress submitted the second revised draft for deliberation by the second session of the fifth National People's Congress, which was formally adopted on July 1, 1979, and promulgated on July 7, with effect from January 1, 1980. This marked the birth of China's first socialist criminal procedure code. The law consisted of four chapters and 164 articles: General Provisions, Investigation, Prosecution, and Trial, Execution. To address the need to combat serious criminal offenses and ensure the smooth progress of socialist modernization, the Standing Committee of the National People's Congress passed the Regulations on the Procedure for Rapid Trial of Serious Offendersing Social Order on September 2, 1983, and the Supplementary Regulations on the Handling Period of Criminal Cases on July 7, 1984, as well as the Decision on Amending the Organization Law of the People's Courts of the People's Republic of China and the Decision on Amending the Organization Law of the People's Procuratorates of the People's Republic of China. These regulations revised and supplemented aspects of the criminal procedure law, including the jury system, trial organizations, trial procedures, handling periods for criminal cases, and the review of death sentences. With the gradual establishment of the socialist market economy system, China's political and economic landscape underwent significant changes, and criminal offenses exhibited new characteristics, presenting new challenges and issues for judicial practice. The 1979 Criminal Procedure Law increasingly became inadequate in addressing these changes. Therefore, in 1993, the Legal Affairs Commission of the Standing Committee of the National People's Congress formally included the revision of the criminal procedure law in its legislative plan and entrusted Professor Chen Guangzhong of China University of Political Science and Law to organize experts in drafting the Proposal for the Revision of the Criminal Procedure Law. After conducting investigations and research, Professor Chen Guangzhong's criminal procedure law revision research team submitted the Proposal for the Criminal Procedure Law of the People's Republic of China to the Legal Affairs Commission of the National People's Congress in July 1994. Based on this, the commission drafted the Draft Criminal Procedure Law of the People's Republic of China in October 1995 and the Draft Amendment to the Criminal Procedure Law of the People's Republic of China in December 1995, which was submitted to the 17th session of the Standing Committee of the National People's Congress for deliberation. In March 1996, after extensive consultations and revisions, the Draft Amendment to the Criminal Procedure Law of the People's Republic of China was finalized and submitted to the fourth session of the eighth National People's Congress. On March 17, 1996, the Decision of the National People's Congress on Amending the Criminal Procedure Law of the People's Republic of China was adopted with a high vote count and took effect on January 1, 1997. This revision added, deleted, or modified 110 provisions, increasing the revised Criminal Procedure Law to 225 articles, an increase of 61 articles, thereby bringing significant changes and further improvements to China's criminal procedure system. The major revisions to the criminal procedure law included the following:
1. Additional provisions on the fundamental principles of criminal procedure law, such as the principle that judicial, procuratorial, and investigative powers are exercised by specialized organs in accordance with law; the principle that courts and procuratorates exercise their powers independently in accordance with law; relying on the masses; basing judgments on facts and applying laws as standards; ensuring equal application of law to all citizens; the division of responsibilities and mutual coordination and restraint among public security and judicial organs; the principle that procuratorates exercise legal supervision over criminal procedure; the right of ethnic citizens to use their own language and script in litigation; the right of suspects and defendants to obtain legal defense; the principle that no one shall be deemed guilty unless legally convicted by a court; safeguarding the procedural rights of litigants; and not pursuing criminal liability under certain legal circumstances.
2. Adjustments to the scope of functional jurisdiction of public security organs, procuratorates, and courts, with that criminal investigations are generally conducted by public security organs, except as otherwise stipulated by law; direct investigation by procuratorates is mainly limited to crimes committed by state officials using their power; and private prosecution cases are handled directly by courts. The scope of private prosecution cases was also further expanded.
3. Reforms to the criminal defense system, with defense counsel participating in litigation from the prosecution stage rather than the trial stage, stipulating that in public prosecution cases, suspects have the right to a defense counsel after the case is transferred for review and prosecution. Additionally, suspects were allowed to hire lawyers for legal assistance during the investigation stage. The scope of court-appointed defense was also clearly defined.
4. Improvements to coercive measures, with the inclusion of elements of "receiving and examining" in criminal procedure law to strengthen socialist democracy and the rule of law and better protect citizens' personal rights. Conditions for detention were expanded, its duration extended, and conditions for arrest revised. Supplementary provisions were made for surveillance, bail, and property bail, with stipulations on the obligations and responsibilities of sureties. Specific provisions were also made for the duration and conditions of surveillance and detention.
5. Improvements to investigative measures and the extension of detention periods. To meet the needs of investigating crimes, provisions were made for the examination and freezing of suspects' deposits and transfers, and procuratorates were granted the power to detain. It was explicitly stated that procuratorates may use various investigative measures in cases directly handled by them. At the same time, detention periods for certain cases were extended.
6. Improvements to the public prosecution system, with the scope of prosecution expanded. To align with the principle of legal conviction by courts, the exemption from prosecution was abolished, and prosecution was divided into three types: legally non-prosecutable, discretionally non-prosecutable, and insufficient evidence non-prosecutable. It was stipulated that procuratorates may not prosecute for minor offenses where criminal circumstances do not require a criminal penalty or where criminal liability is waived. For cases where supplementary investigation is conducted and evidence is still deemed insufficient, procuratorates may also not prosecute.
7. Improvements to trial procedures, with the power of collegiate courts expanded. To avoid judges forming preconceived notions before trial, pre-trial review was changed from substantive to procedural, stipulating that as long as prosecution materials include clear allegations of criminal conduct with evidence lists, witness lists, and copies of key evidence or photos, courts shall decide to hold a trial. In trial procedures, elements of the adversarial system from common law countries were introduced, increasing the confrontational nature of trials. It was stipulated that collegiate courts have independent judgment power for general cases, with only, complex, and major cases requiring submission to the presidium for discussion and decision.
8. The introduction of a simplified trial procedure for public prosecution cases that may be sentenced to three years or less in prison, with clear facts and sufficient evidence, where procuratorates recommend or agree to the use of the simplified procedure, as well as for private prosecution cases and minor criminal cases with evidence. In such cases, courts may apply the simplified procedure with a single judge presiding. In simplified trials, procuratorates are not required to attend court, witnesses and experts are not required to testify, and trial investigation and debate are not conducted, with trials to be concluded within 20 days of acceptance.
9. Improvements to the measures and means by which procuratorates supervise criminal procedure, including supervision of the implementation and modification of coercive measures, supervision of case filing, supervision of trials, supervision of release on bail, and supervision of parole and commutation.
10. Strengthened protection of human rights in criminal procedure, such as distinguishing between the terms "suspect" and "defendant" in public prosecution cases, allowing suspects to hire lawyers for legal assistance during the investigation stage, enabling defendants to defense counsel during the prosecution stage, allowing victims to hire legal representatives to participate in litigation, and granting victims the right to file lawsuits against the court if evidence proves criminal liability but public security organs or procuratorates fail to pursue it, as well as the right to request procuratorates to appeal against court judgments.
11. Provisions for addressing long-standing issues in criminal procedure, such as the number of times supplementary investigation may be returned, the abolition of courts' power to return cases for supplementary investigation, the principle of transferring and handling stolen property with cases, and specific provisions for resolving issues of extended detention and handling cases where suspects' identities are unknown.
3. Key Content to Master When Studying Criminal Procedure Law
Criminal procedure law is one of the fundamental laws of the state, a general term for legal norms governing criminal procedure, belonging to the category of procedural law. It stipulates the responsibilities, powers, and procedural legal relationships among public security organs (including national security organs, public security departments of the army, prisons, etc.), procuratorates, and courts (hereinafter referred to as "public security and judicial organs") at various stages of criminal procedure; the principles, systems, procedures, and methods that public security and judicial organs must follow when conducting criminal procedure; how public security and judicial personnel investigate, collect, verify, and use evidence to ascertain case facts during investigation, prosecution, and trial; the types and applicable objects, conditions, and procedures of coercive measures in criminal procedure; the principles, procedures, rights, and obligations of parties and other procedural participants in criminal procedure; the tasks, procedures, and methods of various procedural stages such as case filing, investigation, prosecution, trial, and execution, as well as the corresponding legal documents; and the methods and procedures for supervising whether criminal procedure is conducted correctly and legally.
Criminal procedure law can be broadly or narrowly defined. Narrowly defined criminal procedure law refers to the criminal procedure code formulated by national legislative organs, specifically the Criminal Procedure Law of the People's Republic of China passed by the second session of the fifth National People's Congress on July 1, 1979, and amended by the fourth session of the eighth National People's Congress on March 17, 1996. Broadly defined criminal procedure law refers to all legal norms related to criminal procedure, including the Constitution, the Organization Law of the People's Courts, the Organization Law of the People's Procuratorates, the Law on Lawyers, the Prison Law, and other legal and regulatory provisions related to criminal procedure; decisions and interpretations by the Standing Committee of the National People's Congress on criminal procedure; and judicial interpretations by the Supreme People's Court and the Supreme People's Procuratorate on the specific application of criminal procedure law. In the study of criminal procedure law, the following content should be mastered:
1. The concepts of criminal procedure and criminal procedure law, the purpose, basis, tasks, and fundamental philosophy of criminal procedure law.
2. The nature, status, and powers of specialized organs in criminal procedure, the concept and composition of trial organizations, and the rights and obligations of parties and other procedural participants.
3. The fundamental principles and main systems of China's criminal procedure law, including the principle that investigative, procuratorial, and judicial powers are exercised by specialized organs in accordance with law; the principle that courts and procuratorates exercise their powers independently in accordance with law; relying on the masses; basing judgments on facts and applying laws as standards; ensuring equal application of law to all citizens; the division of responsibilities and mutual coordination and restraint among public security and judicial organs; the principle that procuratorates exercise legal supervision over criminal procedure; the right of ethnic citizens to use their own language and script in litigation; the right of suspects and defendants to obtain legal defense; the principle that no one shall be deemed guilty unless legally convicted by a court; safeguarding the procedural rights of litigants; and not pursuing criminal liability under certain legal circumstances. Main systems include the system of open trial, the system of two-tier appellate review, and the jury system.
4. The concept and significance of jurisdiction; the principles for determining jurisdiction; the scope of jurisdiction for public security organs, procuratorates, and courts; and the levels, regions, and specialized jurisdictions in trial jurisdiction.
5. The concept and significance of recusal; the types, reasons, and scope of recusal; and the procedures for recusal.
6. The concept and types of defense; the scope, responsibilities, procedural status, and rights and obligations of defense counsel; the concept, scope, and procedures of criminal legal aid; the concept and types of criminal representation, as well as the rights and obligations of representatives.
7. The concept and characteristics of evidence; the classification of evidence; the concepts and characteristics of various types of evidence; the objects, responsibilities, and standards of proof; the collection, verification, judgment, and application of evidence.
8. The concept and characteristics of coercive measures; the distinction between coercive measures, criminal penalties, and administrative penalties; the concepts, characteristics, objects, conditions, and procedures of various coercive measures.
9. The concept and characteristics of civil litigation in criminal cases; the conditions for the establishment of civil litigation in criminal cases; the scope of parties in civil litigation in criminal cases; and the procedures for civil litigation in criminal cases.
10. The concept and significance of time limits; the calculation, restoration, extension, and recalculation of time limits; the concept and methods of service.
11. The concept, tasks, and significance of case filing; the sources and conditions of materials for case filing; the procedures for case filing; and procuratorate supervision over non-filing.
12. The concept, tasks, and significance of investigation; the concepts, significance, and applicable procedures of various investigative actions; legal assistance by defense counsel during the investigation stage; the concept and procedures of investigation termination; the conditions and procedures for transferring cases for prosecution; the conditions and procedures for withdrawing cases; the duration of investigative detention; procuratorate investigation of cases directly handled by them; the concept, significance, and methods of supplementary investigation; the concept, content, and procedures of investigative supervision.
13. The concept, content, and procedures of prosecution review; the concept, conditions, and procedures of prosecution; the concept, types, conditions, and procedures of non-prosecution.
14. The concept and significance of trial procedures; the tasks, content, methods, and post-review handling of public prosecution cases; preparatory work before trial; stages of trial; the scope and characteristics of private prosecution cases; the concept, significance, and scope of simplified trial procedures; the characteristics of simplified trial procedures; the concepts and applicable scopes of judgments, rulings, and decisions.
15. The concept and tasks of the second-tier trial procedure; the entities that may initiate the second-tier trial; the reasons, time limits, and methods of appeal and appeal; the second-tier trial procedure; the principle of no increased penalty in the second-tier trial; the handling of detained or frozen property.
16. The concept and significance of the death penalty review procedure; the attribution and evolution of the power to approve the death penalty; the procedures of the death penalty review procedure.
17. The concept, characteristics, and significance of the trial supervision procedure; the sources and review and handling of materials for initiating the trial supervision procedure; the entities and reasons for initiating the trial supervision procedure; the methods and procedures for re-trial of cases under the trial supervision procedure.
18. The concept and characteristics of execution; the basis for execution; the organs for execution; the execution procedures for various judgments and rulings; changes and other handling of execution; procuratorate supervision of execution.
19. The necessity and legal basis for establishing special procedures for juvenile cases; the principles and unique principles of juvenile case procedures; the procedures for juvenile cases.
20. The concept, legal basis, unique principles, and special provisions of foreign-related criminal procedure procedures; the concept, basis, entities, content, and procedures of criminal judicial assistance.
21. The concept and significance of criminal compensation; the scope and procedures of criminal compensation.
4. Combining Legal Research with Case Analysis in Criminal Procedure Law Studies
The study of criminal procedure law should follow the path of first understanding the "how" and then understanding the "why." First, one must understand how current laws are stipulated, master the specific content of legal provisions, and be able to handle practical issues based on these provisions. The provisions of laws and corresponding judicial interpretations are the most fundamental content. Mastering this content cannot be separated from memorization, which is a common characteristic of studying all legal courses. In this regard, one must not cut corners or attempt to take shortcuts. Second, knowing how laws are stipulated is merely the first step; one should further understand why laws are stipulated in this way, meaning not only knowing the "how" but also the "why." As a discipline, criminal procedure law is guided by fundamental concepts and principles that permeate its entirety, with many regular patterns within it. These concepts, principles, and patterns can be considered the essence of criminal procedure law. While criminal procedure law can be amended with changes in objective circumstances and practical needs, these concepts, principles, and patterns maintain a certain stability and often play a guiding role in the specific changes of the law. Only by mastering these content can one better understand the specific provisions of the law and prevent one's knowledge from becoming outdated due to legal revisions. Only by mastering these content can what is learned be elevated from "law" to "jurisprudence." To illustrate this, let us take an example. For instance, "Why is the review of public prosecution cases by courts considered procedural rather than substantive?" After initial study, most people can answer a few points. According to legal provisions, the content of pre-trial review by courts is limited to whether litigation materials are complete and procedures are in order, rather than whether case facts are clear or evidence is sufficient, thus making this review procedural rather than substantive. Such an answer is not wrong, but it is too superficial and a typical example of knowing the "how" but not the "why." We should also delve deeper and consider why the law stipulates procedural review at this stage rather than substantive review. This is because, according to the principles of procedural law, judges must maintain a neutral stance between both parties without bias. If judges review relevant evidence and case facts before the formal trial, they may form preconceived notions, which inevitably create a bias toward one party. If judges proceed to trial with such preconceived notions and biases, their neutrality would be lost, making it difficult to ensure the objectivity and fairness of the judgment. From this example, we can see that a mindset of knowing both the "how" and the "why" is essential in the learning process to deeply and thoroughly understand criminal procedure law.
Second, the study of criminal procedure law should focus on cultivating the ability to independently analyze cases. Due to the applicability, practicality, and operability of criminal procedure law, case teaching should be actively used and accepted when studying this discipline. Traditional teaching methods often rely on systematic lectures, focusing on introducing, analyzing, and evaluating legal provisions or academic viewpoints, while neglecting to study new situations, issues, and actual cases in China's judicial practice. In terms of form, traditional teaching methods primarily involve teachers lecturing and students listening, with teachers being active and students passive, which inhibits teacher-student interaction and reduces students' interest in and ability to think independently. Systematic lectures also often lead to a disconnect between theory and practice, making it difficult for students to acquire practical skills. Case teaching, as a teaching method primarily based on analyzing and studying cases using statutes, can overcome the shortcomings of traditional teaching methods. Case teaching, with case analysis as its main content, refers to the activity of analyzing and studying cases and proposing handling opinions based on statutes. Of course, after case analysis, one should return to understanding and mastering statutes, not merely mastering the handling opinions of the case. Case teaching, centered on student discussion, can cultivate students' ability to analyze and solve practical problems, enhance their learning initiative and enthusiasm, strengthen teacher-student interaction, and promote mutual learning. We believe that case teaching is not limited to classroom discussions; attending court trials, participating in mock trials, engaging in legal aid work, or even reading this book or similar materials can all be considered part of case teaching. We suggest that readers first read the "case summary" when reading the case section of this book and independently think and analyze based on the knowledge they have acquired. After forming their own judgments and conclusions, they should then compare and learn from the "case commentary." We particularly emphasize and hope that readers maintain an active mindset and conduct careful analysis while reading, rather than passively accepting the opinions or conclusions of the book's author. It must be admitted that the "commentary" for each case included in this book is only of reference value. During the writing of this book, we also noted that although case teaching has been widely adopted in China's legal education, many law schools have raised this banner, seemingly highly attractive. However, many law schools, despite having the name "case teaching," have not grasped its essence. Some institutions treat case teaching as merely a teaching method and consider it an individual matter for teachers, without corresponding investment in funds and personnel or organizational support, resulting in a single source of case materials. As far as we can see, there are many case compilations or case analyses on criminal procedure law, some of which are excellent, but overall, most case compilations are outdated or consist mainly of fictional cases targeting specific legal provisions, making them somewhat distant from China's judicial practice and failing to generate strong learning interest or ensure learning effectiveness. With this in mind, we have strived to select cases that follow the three standards of "freshness," "authenticity," and "representativeness," focusing on selecting some well-known cases that have occurred in recent years. For cases where the identities of parties are not suitable for public disclosure, we have made only minimal technical adjustments, such as obscuring real names and addresses, to the greatest extent possible to maintain their authenticity. We also hope that after reading this book, readers can continue to pay attention to criminal procedure cases, especially those that occur around them or judicial cases disclosed by the media, and develop a good awareness of analyzing these cases with a legal mindset. Our learning should not only systematically master legal theory and rules but also cultivate a legal mindset, enabling us to connect specific rules with corresponding judicial practice and use rules to measure judicial practice and resolve various disputes, thereby developing strong practical skills. Like learning any other legal course, studying criminal procedure law also requires us to quickly master an effective learning method. Using a good method can achieve twice the result with half the effort; conversely, using an inappropriate method can often lead to minimal results or even counterproductive outcomes. Here, we have provided some suggestions on learning methods, but it must be pointed out that the suggestions we provide are only one of many ways to obtain scientific learning methods. The most important way is to continuously think and summarize during the learning process and gradually explore a path that suits you. This is because, on the one hand, one often has a deeper understanding and more accurate grasp of one's own practice; on the other hand, whether a method is effective also varies from person to person, and everyone should summarize a method that best suits them through serious study. In this sense, the acquisition of good learning methods is a process that continuously improves as learning deepens. We sincerely hope that through reading this book, you can find a learning method that suits you and that this book will be beneficial to your studies.
5. The Structure of This Book
The main part of this book includes legal documents and key points of legal research, typical cases, and reference books. The criminal procedure law documents included in this book are numerous and complex, consisting of criminal procedure codes, judicial organization laws, and relevant decisions on criminal procedure formulated by the highest national legislative organs, as well as decisions and judicial interpretations by the highest judicial and procuratorial organs on the specific application of criminal procedure law, and administrative regulations or ministerial rules promulgated by the highest administrative organs. Based on the characteristics of criminal procedure law and the completeness of China's Criminal Procedure Law, we have not written separate key points of legal research and typical cases for each legal document but have organized them according to the chapters and articles of the Criminal Procedure Law. We believe that this arrangement is more conducive to readers understanding the procedures of criminal procedure and aligns with readers' reading habits. In addition to the Criminal Procedure Law, the key points of legal research and typical cases for other legal documents are written separately in the corresponding chapters and articles based on their correspondence to the chapters and articles of the Criminal Procedure Law. Additionally, we have listed reference books (monographs, textbooks, and papers) at the end of the main part for readers to consult and study.