3 judges and lawyers of the Prosecutor May 30, the Several cases of illegal evidence exclusion provisions of the problem, Some savants have agreed that academia, manufacture guide to hot, set off to learn, learn and climax. Illegal Oral evidence on the scope and how to define the physical evidence illegally? Public security and what character every activity? July 8 9:00 am, , Justice Network will broadcast live the whole, a crowd of consumers attention please!
prosecutors, judges, lawyers gathered to participate in seminars
seminar site
Haidian Lu Jianping deputy procurator spoke on behalf of the organizers
Lie
Legal Daily deputy redactor to speak on behalf of the organizers
forum moderator, Peking University Law School professor Chen Ruihua
behalf of the prosecution, the Prosecutor Xu Yongjun, Haidian Procuratorate to speak
prosecution representative, Jin Yi, Haidian Procuratorate prosecutor to speak
defense on behalf of the National Committee of Criminal Defense Lawyers Association to talk Jiao Peng
defense representatives, Kyoto, Beijing law firm Cheow Tong Yang to speak
representatives trial, the judge Professor Liu Jinghua speak
trial representatives, the Beijing First Intermediate People's Court Zhou Jun, Vice-President to speak
Supreme People's Procuratorate, deputy mentor of the Institute of Theoretical Ze-election to the comments
Legal Secretary for the Ministry of Public Security
Sun Maoli Comments
Beijing Shang Wu Cheng law firm the right to speak
Sun Zhongwei
lawyers to speak
Beijing Dongcheng District People's Court Judge Zhu Xiping Tribunal speak
Haidian District People's Court Criminal Tribunal for Chen Lei Second floor
Chaoyang District People's Court Criminal Tribunal UNDERGROUND SPACE second ground
Haidian District People's Procuratorate Wang Zhenfeng speak
China University of Political Science Professor Fan Chongyi
make concluding remarks
Justice Network: netizens Good morning! Welcome to watch today's
Justice Network: now introduce to you the afterward venue: The participation of the spectators to heed the forum has been full to the scene,
GHD Red Styler, Defendant, the judge, the guests also attended.
Justice Network: Members netizens, the forum now officially begun.
Justice Network: forums about current discussions around the retinue five issues:
1, the scope of evidence on illegal words and the definition of illegal physical evidence.
2, on the defendant and defense counsel to provide clues to the problem of illegal evidence. This requirement average that the defendant should bear the burden of proof?
3, under what circumstances the judge can question the legality of Criminal Investigation? How to understand the standard?
4, the prosecution bear the burden of proof issue. If the prosecution does not provide transcripts, do not provide audio, movie, investigators refused to arise in court, how do?
5, the defendant or defense advice first heaved in the second instance of illegal evidence exclusion of the application, if the court of second instance should be processed?
Justice Network: guests to participate in the forum are: Haidian Lu Jianping, deputy main procurator's Procuratorate; Legal Daily, Li Qun, deputy editor; Peking University Law School professor Chen Ruihua; the National Committee of Criminal Defense Lawyers Association, Beijing, Hong Fan Guang live law firm Peng Jiao, partner; Beijing Kyoto law firm Cheow Tong Yang; Judge professor, the Beijing Higher People's Court Vice President Liu Jinghua sentence of a court; Beijing First Intermediate People's Court Vice-President Zhou Jun; Supreme Court Criminal five Court Vice President Zhang Ming; Supreme People's Procuratorate, deputy director of the Institute of Theoretical Ze referenda; Ministry of Public Security Secretary Sun Maoli law; ; Beijing Haidian District People's Procuratorate Wang Zhenfeng; Beijing Haidian District People's Procuratorate, the Director of Public Prosecution a gold Yi; Beijing Haidian District People's Procuratorate Xuanjiao Chu Director Xu Yongjun.
Justice Network: Now welcoming remarks by the organizers on behalf of Lu Jianping.
Lu Jianping (Haidian Procuratorate Deputy Attorney General): Distinguished leaders, colleagues, Good morn! By the Haidian District People's Procuratorate, begin. Now, I do a short lecture of salute. Today's bbs chiefly at Peking University Law School Professor Chen Ruihua presided the appointment. In fact, our hosts have rigid requirements, has been shrieked on us to keep up worldwide standards. To keep the forum's own face, our forum moderator should be able hostess. But this is a nice appetite, by the hostess did not come, we come to a male guest host.
Lu Jianping (Haidian Procuratorate Deputy Attorney General): Haidian District Prosecutor's Office of Law No. 5 Sharon already, and we hope to be in the form of meetings and the familiar fashion of the difference. Sometimes the leading conference speech had achieved so that we seriously study and deep understanding, and then anew at the implementation of fitting review and feedback and then report. Conference is to speak two reviews, one to speak for five minutes, twenty minutes the two comments, the spokesman said the comments were insufficient comments. Form of such a meeting, for our emancipation, which loosened to consider the problems of our work, or study and research we encountered some problems which may have its flaws. Especially for multi-party hope to hear different views of the requirement is not met. So I think in the form of such a forum should be able to meet the requirements of our activities. Today is the fifth
the future may also have. Welcome to the forum in the near future our consideration and aid. Thank you! Here are invited to speak for everyone Lie.
Lie (Legal Daily deputy editor): Dear leaders, media friends, Good morning! Very glad to participate in the Haidian District People's Procuratorate, the Legal Daily Together virtually each accident of miscarriage and torture are associated to the credibility of the judiciary will bring injury. Therefore, the central law enforcement authorities has been to attempt to resolve this problem, 1 July, the Supreme People's Procuratorate, Supreme People's Court, Ministry of Public Security, Ministry of State Security and the Justice Department 5 ministries and a number of provisions of the exclusionary rule into efficacy, the provision apparently illegal obtained evidence can not serve as the root of evidence. The legal profession has a saying, even the best laws, and then have someone to complete the implementation of the provisions. Today we prop this forum is the best front line in the judicial practice of prosecutors, senior judges, well-known criminal defense attorney to discuss the Defendant, the trial of three and more innovative. As a legal community is based on the same, look forward to your excellent controversy.
Procuratorate Haidian Procuratorate is the well-known, high prestige in the citizen prosecution system, we hosted the Legal Daily's success. Thank you!
Lu Jianping (Haidian Procuratorate Deputy Attorney General): below, amuse menu commander.
Moderator Chen Ruihua (Peking University Law School): very honored to have such an opportunity to participate in Before the official start, I also say a few words using expedience List Administrator, But there are pile up folk find afterward the presentation of two policies, we have a 15 number in addition to the Exclusionary Rule, there are 41 death penalty exclusion. It can be said is that these two provisions to exclude the center and marrow of exclusion. More and more human anxiety almost how to appliance these provisions, how to operate. For instance, I recently Hunan Lawyers Association, was more than a thousand attorneys say the two provisions. Judicial torture in the quondam which have been provided, but the 12-year high on illegal evidence exclusion of two implementation unsatisfactory, and immediately obtain a such a requirement is to implement? This is our concern. A lot of people questioned in recent years the debates, what is called the evidence track? To what extent do to be considered responsible? Said the defendant had ache me, I one daytime a decisive period of being beaten, he also mentioned that some people could not beat him, this is considered to provide clues to the responsibility? And we found that illegal evidence exclusion rule there is an momentous program launched, there is a doubt standard of proof, can not meet this standard does not provide. If the judge in accordance with the understanding of the quondam to be understood, then, how to understand the legal questions to obtain evidence? This issue is naturally troubled by the future law enforcement authorities.
Moderator Chen Ruihua (Peking University Law School): In particular, we have Article 12, the first wafer of refuse on legal humans if the court of review, the defendant can be arraigned to the second layer side. He is mainly on account of a demand made to avoid reiterated requests, resulting in delays in the proceedings. We are now busy in an open system of illegal evidence exclusion, and the second instance can also be a retrial, if the second instance rejected or not preferred,
GHD IV Styling Set, even no chance of relief. Is the most polemical segment 13, which manner that the defendant raised the defense of the accused made a statement in book. I will not list them here, and after the essence of always parties on these issues.
statute there is a major problem is an abstract general rules, how to be implemented in cases in which this is the biggest problem. Please do not forget that both American or British, and their Therefore, in practice, these rules must have a run-in, game, marathon, re-shaping process. We should take good outlook,
GHD Gold Styler, to promote the occasion of the legal system to look at the rules. Fortunately, senior leadership of the chief end of this discussion, Currently, the biggest problem is not rule-making on the wrong issue, but how to implement the problem. So I recommend that today, in order to save time, we focus on how to implement the rules, what issues facing the implementation process to be discussed. We are now facing is how to implement a requirement that it be exactly to ensure the full implementation of the problem.
Here we above all the prosecution, the two prosecutors from the Haidian Procuratorate express their opinions, each fifteen minutes.
Xu Yongjun (Director of the Haidian Procuratorate Xuanjiao Chu): Oral Evidence on the extent of unlawful and illegal problem of defining the physical evidence, my basic point is this: on the relationship between the two should be based on rules to be applied. The range of evidence of illegal words, we must first understand how illegal means clear. From the present point of view, mainly referring to verbal evidence of illegal use of torture to obtain confessions is. Illegal means of torture from the procedural point of view, mainly violence, assault. However, some long undergoing, this means sufficient to suspect a psychological suppression. I think it should be resolved depending on the circumstances, whether it is a means of torture. Physical evidence for the definition of illegal, I think, But for physical evidence, we believe that physical evidence from a empirical point of view is divided into documentary and physical evidence. This evidence should get down to the legal understanding, and so should include information and transcripts should be included in the physical evidence inside. This is my first big question about the basic rank.
Xu Yongjun (Director of the Haidian Procuratorate Xuanjiao Chu): The second question on the defendant and defense counsel to provide hints to the problem of illegal evidence. In questioning this question, I would like to detail a point of view, the problem is actually narrated to how to equilibrium fairness and efficiency issues, for law enforcement is the maximum fundamental purpose is to preserve law and mandate. Therefore, the maintenance of law at anyone time of the mandate should continue as a basic premise. In this context two types of evidence, physical point of guilt or innocence of the accused, unless other provisions of law, or by the prosecutor to bear, this is no problem. Procedure, that the Standard of proof and demonstrate the amplitude to which the basic determination by the judges the right to decide, but for this standard, I think that as the judiciary can be discussed. Here my basic view is amounted up roughly at a time he proves time and he was a respective of a respective position, by torture or illegal evidence can be, for we liken China's current situation and the strict procedural system, Whether the prosecutor or the investigating authorities, conduct investigation and litigation of his actions are annotated on in a more stringent as evidence. Meanwhile, his words also audio and video recordings of evidence to prove the existence of this period action of the illegal evidence.
Xu Yongjun (Director of the Haidian Procuratorate Xuanjiao Chu): Third question, under what circumstances the judge can question the legality of Criminal Investigation? How to understand the standard? This problem is an extension of the second question. My basic view is that the proof of the defendant and the defense reached a preponderance of the evidence or a prima facie evidence that can, through his words or Chen said the extent of his harm, prima facie,
GHD Purple Styler, the burden of proof responsibility can go to the prosecutor here, the judge can make causativeable doubt. This is the third question of the fundamental point of view. Here by my colleague Kim Yi Director to continue.
Kim Yi (a Director of Public Prosecution, Haidian Procuratorate): When I delivered the fourth and fifth answer the views of the problem before the first question I would like to join it. In accordance with the relevant provisions of the Criminal Procedure Law, the provisions of the usage torment and deception to acquire illegal way, but does not cater for legal consequences. But how tin the standards achieved by torture, in consensus with the relevant criminal decree, has verified evidence that is verified to be proficient to certify that this is the case of torture down there confirmation? Personally, I think, should be to differentiate between the torture of criminal entities. Investigators surmise the confession of crime can be done will be issues, in front of the substantive issues of fact, followed by the effectiveness of problem. We distinguish this problem merely beneath the prelude that we can publish illegal evidence exclusion have a explicit view. That is the standard of proof as torture, from my personal view is that to fulfill advantageascendencyascendentdominancepredominancep reponderancesuperiority of the evidence and convincing evidence standard.
Kim Yi (a Director of Public Prosecution, Haidian Procuratorate): Here on the fourth question, the prosecution mentioned to provide proof, if you do not provide transcripts and video and audio how to do? This question is for the I think on this issue, perhaps in the paucity of When the counsel or the defendant to the court, I was in pre-trial statement by the public security organs of the torture, violence, deception or a way to bait such a confession made to make such a statement. The prosecutor in court is needful to provide public security organs in court when the defendant the transcripts of the trial, video and sound recordings.
does not provide transcripts or if there is not to provide audio and video recordings of the phenomenon, I think this issue should go to different judgments. First, we must take into account our substantial court prosecutor in the trial which, as we may encounter some of these issues is evidence of the raid and the raid made a number of clues. If you do not have the evidence the prosecutor was the case, according to law, the prosecutor should be allowed to use an extension hearings, and to find or understand, investigate such evidence to the defendant or defense counsel's questions or made clues to be verified. Second, if the prosecutor in this process, the existence of such an objective, or do not want to end we are still not able to put forward relevant evidence to prove the legitimacy of the evidence obtained, in accordance with our words of the defendant's trial is to be excluded.
Also consider whether the suspect can be convicted and penalized, we not only by the prosecution to continue, I think this evidence on the prosecution bear the responsibility for the problems, which are some of my personal views.
Kim Yi (a Director of Public Prosecution, Haidian Procuratorate): The fifth problem is that the defendant or defense counsel first raised in the second instance of illegal evidence exclusion of the application, whether the court of second instance should be processed? I calculate the mind with other comrades are not the same, I thought should be based on illegal evidence. Understanding of this rule, I think that should be understood in practice, the implementation of: the defendant or the defense at the court of first instance did not apply while, in the second trial while he made his application should be reviewed. If this problem is to apply the defendant and counsel for the first time, then the second instance court to be reviewed, and if in mistrust, you should start this investigation. At the same time, he proposed such an application should be considered as evidence of the facts of the case and intend a current defense views. In this case, should be a comprehensive reiterate, but the differential management is to make some amendment and maintenance, which is based on the corresponding legal provisions. To express my outlooks here.
Xu Yongjun (Director of the Haidian Procuratorate Xuanjiao Chu): add, my fourth question my personal view is that subjective and objective can not be disinclined. Objective can not embody two cases presented for prosecution in the short term requirements of proof, the prosecution could not instantly provide evidence of this disarray can be ruled out, I think the court should be given to the prosecution of the some of the waiting time.
fifth question, I think there are three exceptions, the first exception is when the case was found in his hand, and the second is in this case seriously affected the rights of the accused, such as the death penalty. The third is the first instance the defendant without a lawyer, he does not understand or can not objectively complaints raised, and these three cases, I think that can be accustomed as an exception.
Moderator Chen Ruihua (Peking University Law School): I thank the two views expressed in these few questions. I noticed the two views are alter, but very invariable with two views, one is that the defendant the burden of proof should be provided, this may be the political and the legal profession with the law is very differ point of view.
Jiao Peng (Guangzhou, Beijing, Hong Fan, a associate living): Moderator, ladies and gentlemen, the legal profession, colleagues, Good morning! We are honored to have this chance to go with the Legal Daily and Haidian Procuratorate jointly systematized such a museum. We live in Canton law firm Hongfan willing to subserve and improve the laws of China to make some meek strength, I asked a few points I have in accordance with the
First, I would say the first question is whether the defendant or defense counsel the burden of proof issue. That I am the inverse. Because, according to China's current law,
GHD Precious Gift Set, there is no doubt in criminal proceedings, particularly if there is no legal requirement, the defendant the burden of proof under no obligation to the basic legal alms. This one is to define the law of the defendant's burden of proof given, whether we can interpret it this way? First of all the provisions of its own attribute is relative to a judicial interpretation, which itself is not given, this is a great premise. In this context we can do some thinking, is accused of illegal evidence to provide the time, location and site conditions, workers, etc. These qualitative statements in the end how to do? I think that obligation. Since I have the right to defense, so he has said in court during the trial it was not me, not I look like the prosecutor said, but he absences to unravel the reason on it, this is not his suit claims. If the demand is a lawsuit, it is to bear criminal responsibility.
liabilities to achieve the purpose of that situation, we believe that, We note that this time the death penalty for cases of illegal evidence in a number of rules and regulations, have changed our original standard of proof. Judges have questions about this stuff, it is causativeable reason. As long as you provide message and clues, or you have evidence to make the judge doubt ample. From the Of the provision itself, I think both from a legal point of view or from the technical principles to analyze, this
Jiao Peng (Guangzhou, Beijing, Hong Fan, a partner to live): The second question leads on the issue of illegal evidence, in fact, probably mean I understand that the scope of illegal evidence is oral evidence will be torture If a menace, deception, temptation, the perspective I also do not engage. Two reasons, one requirement is the interpretation of the Criminal Procedure Law, including torture, including the inducement, menace, deception, all the provisions of the Criminal Procedure Law explicitly deterring the use of illegal means. This range to see how small? I think that should be the first of his introduction. For the statements of witnesses and victims of violence, threats and other illegal means, the ultimate conclusion that the evidence of illegal evidence. So this meant speaking, if we in the judicial practice, the emergence of honest deception, seduction, we believe that the evidence is still illegal and can not believe that this provision does not explicitly say that is not listed. This is a two points on this issue. I have no physical evidence
-depth research, meantime the Law Society, said Yang. I corner to the legal calling as our thoughts and wishes. However, the establishment of a new program, we can adopt the digit of the judiciary? This is a problem. Investigators evidence in court, in which case the first time in China's judicial them, from the deep to mention the problem is the conception of thousands of years, the police arrested the prisoners who are able to testify it? We are very willing and hopeful to watch this provision in practice will be implemented, even if there is, we think that will go along. Since this is a new problem, we persist to believe that there is a conflict, constantly to modify and amend, we will see that there would be a better and beyond evolution.
my own opinion and forecast is that this This is also the provisions of the emergence of a very good, very specific of the district. If the pre-trial statements appear less the case that the less torture. These are my comments, other comments by Yang Counsel further statements.
Yang Chao Tung (Beijing Kyoto law firm): Thank you very many here, organizers, and our hosts for giving me a accident. I think as a lawyer in such a situation, and our control, and distinguish, the trial can be very elated together. Originally the However, I still would like to ask approval of the chairperson, I talk about the specific implementation of the opinions, know next to nothing of still about the provisions of these problems.
common, Especially in the from the will and the specific provisions on the progress on either side. At the same period, I too memorandum that the versed feeling? The cause is I base a lot of content, it had in our Code of Criminal Procedure and the pertinent judicial interpretations which have been there. Reason such a prerequisite in the context of judicial interpretation, and no more defined and there is no more specific solve practical problems. Overall, I feel such a prerequisite is a quite raw for of the. Since it introduced, in which case we ambition consider how to manipulate in train.
Yang Chao Tung (Beijing Kyoto law firm): I think the words on the provisions of these illegal range of evidence and physical evidence are within the major provisions of this failing, particularly the oral evidence of the range, a very uncomplicated word, a start talking about the torture and other illegal means to take. I have noticed that we should strictly follow the prosecutor talked about the In fact, we put aside the legal level of analysis, only from the outlook of the text, to take torture and other illegal means, a basic simple understanding.
should be said, over the years, as the process of China's legal system, including the quality of the investigators, this behavior to physical abuse, especially in cases of offenses committed, we, as a lawyer I rarely see such a torture This is a cold violence and non-violent means, as well as nap deprivation method, so that is very prevalent. Long time not let you recess and sleep, people actually have 4 or five days without sleep of death very much, whether we regard it as an And so on, I think that even if interpreted literally, should be summed up as If you can put it down to a certain extent, to take not entirely enumerated, I would like to how to implement the rules which we control, defense, the judge, will not have much distinctions.
There namely variant certify of witnesses on the witness what is catching hazards because? Can be said that 80% of the cases there such a phenomenon, the inquiry organ is apt witness the premier control them, not detention programs, not procedures aboard the platform, merely you control them, and distant more than 12 hours. During this period, the criminal who, whether you're an official list of how much money we do no pursue your duty, or we'll be on your sentence.
Yang Chao Tung (Beijing Kyoto law firm): For the illegal physical evidence, tangible said, notwithstanding defender, but I would think that the physical evidence that he compared with the verbal evidence is more qualitative. Physical evidence of authenticity at all times it should be said, has relevance in the legitimacy of speaking, even as the defense, that is only on the physical evidence of the authenticity and relevance, can be properly excluded.
on the defendant and counsel for the providing clues to the problem of illegal evidence. Speaking of the defendant only in a certain period where I was hit, only to say this, and even some cases of which hit him on the who are not sure. I have gone through several individuals to speak, they said The investigators also really hit after the questioning was not in the on signature. Our methodology, on the torture issue, the burden of proof capabilities are feeble defense, prosecution and the defense coerce is not balanced.
Yang Chao Tung (Beijing Kyoto law firm): Another problem is the seventh article, referred to the court in doubt when the evidence, the prosecution to provide the original video, notify the trial court personnel. For such a provision, at the outset I think that the provision itself, or too extensive, and well actions. Another, for instance, the original video, audio, and we were a lot of trial time of our request, he said, we do not have video, there is no we do not know, but I suspect, does not provide, this is only an idea. There we have again noted that the offer is a truncated, we have a case, detectiin season of up to one and a half, I do not know how many times seasoned the trial, we provided for a two and a half video. There must be provisions in this prehistoric to provide audio, video, whether that took two and a half on it? This is sure a judge, he should provide all, at fewest for this trial, the whole process of providing audio, video. Also requested to exhort interrogators, I practiced law in the legal profession has been 20 years, I've never seen a case and an investigator said in court that I beat him, no.
Yang Chao Tung (Beijing Kyoto law firm): One final question, I would like to talk about Article III block. We will often meet them in real life such a case, prosecutors come up with a public security organ stamped proof that we learn via investigation, there is no torture in the interrogation situation in which there is legal throughout the trial. As long as interrogators signed his appoint stamped on the note is legitimate, it is a very serious matter.
I would like to talk about the defendant or defense counsel first raised in the second instance of illegal evidence exclusion of the application, whether the court of second instance should be processed? I think that should be accepted,
GHD Salon Styler, including a retrial. Prosecutors say equitable three exceptions, I would like to have a lawyer, not that the defendant in the first instance to make such a defense were not the true reason, according to my detection, is a planter in court if he is then he will say He kick me before doing the evidence. For example, few days ago I run a case in Chengdu, the first instance there is no pray. The real reason is the psychological oppression of his existence, he panics the results of the second instance trial of hand, increased their penalties.
These are my views, I actually elected out so many problems. For such an So I think a lot of issues are determined, thank you.
Moderator Chen Ruihua (Peking University Law School): Thank you very much two lawyers. The two lawyers are talking about very wealthy, in addition to the issues raised earlier prosecutors made a reaction, but also Young lawyers from some of the issues which we can feel such a concern, of course, in my opinion, no legal provisions have to be some activation, no activation of any of the provisions would become a die letter.
Thank you.
Thank you!
Thank you!
Thank you!
Thank you!
Thank you!
Three judges and lawyers of the Prosecutor
At that second
Linear Mode
