legal ground
China's criminal procedure law clearly stipulates: "Public security organs are responsible for the investigation, detention, execution and pre-trial of criminal cases. The procuratorate is responsible for procuratorial work, approving arrests, and investigating and prosecuting cases directly accepted by procuratorial organs. The people's court is responsible for the trial. Except as otherwise provided by law, no other organ, group or individual has the right to exercise these powers. " It can be seen from this provision that the people's courts exercise judicial power independently according to law, and the people's procuratorates exercise procuratorial power independently according to law, without interference from administrative organs, social organizations and individuals. In criminal proceedings, the people's courts, people's procuratorates and public security organs must rely on the masses, take facts as the basis and take the law as the criterion. The three organs have a clear division of labor in the process of criminal proceedings, and they should cooperate and restrict each other in execution to ensure accurate and effective law enforcement. People's procuratorates exercise legal supervision over criminal proceedings according to law. According to the law, the people's procuratorate is the most prominent supervisory organ. However, there are many practical problems that are difficult to solve in the process of criminal execution, which need to be discussed. First, about the proof of public prosecution in criminal cases. Article 157 of China's Criminal Procedure Law stipulates that public prosecutors and defenders should present material evidence to the court for identification by the parties concerned. As evidence, documents such as witness testimony transcripts, expert conclusions of appraisers, and transcripts of inquests should be pronounced in court. A judge shall listen to the opinions of the public prosecutor, parties, defenders and agents ad litem. Article 331 of the Rules of Criminal Procedure of the People's Procuratorate stipulates that the public prosecutor shall conduct the following activities in court according to law: 1, read the indictment, accuse the crime on behalf of the state, and request the people's court to try the defendant according to law; 2. Interrogate the defendant; 3. Ask witnesses, victims and experts; 4. Produce physical evidence, read documentary evidence, transcripts of witnesses who did not appear in court, expert conclusions, transcripts of inspection and other documents as evidence, and provide audio-visual materials to the court as evidence; 5. Express opinions on the evidence and the case, reply to the defense opinions of the defendants and defenders, comprehensively expound the public prosecution opinions, and refute the incorrect defense opinions; 6. Safeguard the legal rights of the participants in the proceedings; 7, whether the court heard the case in violation of legal procedures, write down the record; 8. Engage in other litigation activities according to law. Article 332 stipulates: In the court trial, the public prosecutor shall provide the court with evidence to prove the defendant guilty, serious or minor. According to the above provisions, in the trial of criminal cases, the public prosecutor should provide relevant evidence to the court objectively and fairly, not only to provide evidence to prove the defendant's guilt according to law; At the same time, evidence should be provided to prove that the defendant's crime is relatively minor. The law is clear, so it is not simple in practical application. For example, in the criminal cases we accepted, there were cases where the public prosecution agency accused a crime in court and did not produce relevant evidence. Including evidence that can prove a crime, but also evidence that can prove a minor crime. Because before the trial, only the public security organs and the public prosecution organs have evidence, and the judge can't know it without showing it at the trial. In view of this situation, the judge can only advise the public prosecutor to provide relevant evidence after discovery, and there is no other restriction method. For example, in 2007, we accepted the rape case of Zhou Moumou prosecuted by the public prosecution agency. In court, the defendant claimed that the public security organ had extorted confessions by torture, and the interrogation record of the public security organ could not be used as evidence. Because of this key evidence, it is difficult to identify the authenticity of other evidence obtained from it. The case was discussed by the Audit Committee three times and reported to the Political and Legal Committee and the higher court. During the examination, it was found that when the public security organs questioned the defendant, the procuratorial organs sent people to intervene in advance and talk with the defendant. The content is basically consistent with the interrogation record of the public security organ. It is suggested that the public prosecution agency provide this evidence in the trial. In the end, Zhou was convicted of rape and sentenced to fixed-term imprisonment. The defendant refused to accept the appeal and appealed to the Intermediate People's Court. After examination, the judgment of the first instance was upheld. After the case was pronounced, the victim's parents were satisfied and stopped complaining about it. Realize the unity of legal effect and social effect. For example, when we accept a case, during the trial, the defendant should produce evidence to prove that his crime is light and his punishment should be mitigated. We can't just provide evidence to prove the defendant's guilt and felony, but neglect to provide evidence to prove the defendant's guilt. The evidence of criminal cases is collected in public security organs, and the evidence is examined in procuratorial organs. The three organs of public security and procuratorial organs should cooperate with each other, cooperate with each other and restrict each other in the struggle against criminal offences. How to use and supervise in practice should be further improved from the legal provisions. Two, on the issue of compulsory measures taken by the defendant in criminal cases. China's criminal procedure law clearly stipulates the conditions for taking compulsory measures against defendants in criminal cases, and the conditions for summoning, obtaining bail pending trial, residential surveillance, detention and arrest are different. Mainly about whether the defendant can be arrested and whether it is necessary to arrest. Article 60 of the Criminal Procedure Law stipulates that if there is evidence to prove that there is a criminal fact, it can be sentenced to more than fixed-term imprisonment.
If it is necessary to arrest a criminal suspect or defendant, if measures such as obtaining a guarantor pending trial and residential surveillance are not enough to prevent social harm, they should be arrested immediately according to law. If the criminal suspect or defendant who should be arrested suffers from serious illness, or a pregnant woman who is breastfeeding her baby, she may be released on bail pending trial or under residential surveillance. Article 115 of the Procedures for Handling Criminal Cases by Public Security Organs stipulates that it is not enough to prevent social harm to a criminal suspect who has evidence to prove the facts of the crime and may be sentenced to fixed-term imprisonment or more, but if it is really necessary to arrest, it should be reported for approval immediately. Article 86 of the Criminal Procedure Law of the People's Procuratorate stipulates that the people's procuratorate shall approve or decide to arrest a criminal suspect who is proved to have criminal facts and may be sentenced to more than fixed-term imprisonment, but it is not enough to prevent social danger. "There is evidence to prove that there is a criminal fact" means that the following conditions are met at the same time: 1. There is evidence to prove the existence of criminal facts; 2. There is evidence to prove that the criminal facts are committed by criminal suspects; 3. The evidence proving that the criminal suspect has committed a criminal act has been verified. "Criminal facts" can be the facts of a single criminal act or any of several criminal acts. According to the above provisions, since there are criminal facts, and the criminal facts have been proved to have occurred and were committed by criminal suspects, if the crime may be sentenced to more than fixed-term imprisonment, criminal responsibility shall be investigated. The public security organ shall apply for approval of arrest, and the people's procuratorate shall approve or decide on arrest. In practice, some criminal cases should be prosecuted, and other compulsory measures should be taken instead of arrest. For example, in 2009, our hospital accepted Li's traffic accident case prosecuted by the public prosecution agency, and took compulsory measures for the defendant to obtain bail pending trial. Due to the heavy responsibility of the accident, the victim did not get civil compensation and was emotional and kept petitioning. After the case came to our hospital, after careful examination, I worked as a defendant and a parent for many times. The defendant and his parents have a tough attitude and will never give in to civil compensation. Because the victim was seriously injured, his family could not afford the medical expenses and strongly demanded that the defendant be severely punished. With the approval of the dean of the review report, the defendant was arrested according to law. In the process of execution, the public security organs arrested the defendant in various ways and the case was handled fairly. 20 10 when our hospital accepted the case, there were still behaviors such as drunkenness and escape in traffic accident cases. The public security organ has arrested the defendant and the procuratorate has approved the arrest, but before the public prosecution, the compulsory measure was changed to bail pending trial. Whether a situation like this is conducive to punishing crimes. The laws promulgated by the state are the key targets to crack down on drunken escape. The people's court may change compulsory measures according to law, but the public security and procuratorial organs are also judicial organs to enforce the law. How should the three organs cooperate and restrict each other? According to the law, the procuratorial organ is the legal supervision organ, so how to supervise according to law in the implementation of the law. Three, about whether the criminal prosecution case can be returned in the people's court. Article 140 of China's Criminal Procedure Law stipulates: "When examining a case, the people's procuratorate may request the public security organ to provide evidence materials necessary for the court trial. When examining a case, the people's procuratorate may return it to the public security organ for supplementary investigation or conduct its own investigation. A case under supplementary investigation shall be completed within one month. Supplementary investigation is limited to two times. After the supplementary investigation is transferred to the people's procuratorate, the people's procuratorate recalculates the time limit for examination and prosecution. For the case of supplementary investigation, if the people's procuratorate still believes that the evidence is insufficient and does not meet the conditions for prosecution, it may make a decision not to prosecute. " After a criminal case reaches the people's court, at the trial stage, Article 165 of the Criminal Procedure Law stipulates that if one of the following three circumstances affects the trial, the trial may be postponed. 1. It is necessary to notify new witnesses to appear in court, obtain new material evidence, re-identify or conduct an inquest; 2, prosecutors found that the case of public prosecution needs supplementary investigation, put forward suggestions; 3, because the parties apply for withdrawal and unable to hear. In addition, there is no extension or refund. Only two kinds of decisions can be made on criminal cases prosecuted by procuratorial organs: 1, criminal cases prosecuted by procuratorial organs constitute crimes and are sentenced to corresponding penalties; 2. The criminal case prosecuted by the procuratorate has insufficient evidence, which does not constitute a crime and is acquitted. In criminal cases prosecuted by procuratorial organs, it is often found that there are criminal facts by reviewing the case files, but there is no evidence to prove them. In view of this situation, it is obviously an indulgence to decide whether to commit a crime. We generally suggest that the public prosecution agency postpone the trial and supplement the evidence. However, the public prosecution agency shall not postpone the trial on the grounds that the evidence cannot constitute investigation. This case is difficult to be handled fairly. How should the public, procuratorial and legal organs cooperate with each other, restrict each other and cooperate closely in the process of criminal proceedings? It is clear from the legal provisions, and there are also some problems in practical application, which are worth discussing. The Central Political and Legal Committee issued a document on the mutual cooperation, mutual restriction and close cooperation between the public security and procuratorial organs. In the process of criminal proceedings, conflicts can be solved through communication between the presidents of the three courts, and the political and legal Committee can coordinate them when necessary. This is mainly from the perspective of harmony. Public security and procuratorial organs have the same responsibilities in cracking down on crimes, protecting people and maintaining a good legal environment. The three organs can act in strict accordance with the relevant provisions of China's criminal procedure law and do their duty, so the contradictions in the above discussion will be reduced. How to achieve this effect. I think: 1, we should strengthen the study, especially the study of legal business knowledge, and newly introduce the interpretation of relevant regulations. The legal awareness and knowledge of the whole society and ordinary citizens are growing rapidly. Political and legal police officers may not learn enough at school if they don't continue to study at work. Popularizing law by the whole people has made citizens' legal concepts and knowledge grow rapidly. The legal knowledge of political and legal police officers should adapt to the growth rate of citizens' legal knowledge or consciousness. Only by continuous learning can we help meet the higher requirements of the people for political and legal police officers. 2. Establish a sense of the overall situation, and clarify that the duties of the three organs of the Public Security Law are to crack down on crimes, safeguard people's lives and property, ensure good social order and maintain social stability. By punishing all kinds of serious criminal offences, we will earnestly safeguard national security and social stability and effectively promote steady and rapid economic development. Maximize harmonious factors, minimize disharmonious factors, maintain social stability and promote social harmony. 3. Have a strong sense of responsibility. Changing the work style of the functional departments of political and legal organs is the key to win the trust of the people. It is necessary to clarify "who is in power, who enforces the law and who serves". Really do practical things for the masses, do good deeds, constantly improve efficiency, and finally satisfy the people.