"Records of the Grand Historian: The Creative Biography": "If this bird does not fly, it will soar into the sky; if it does not sound, it will soar into the sky, it will soar into the sky."
The unprecedented "Liaoning election bribery case"
Liaoning has become the only province with negative economic growth in the country from the former "Liao boss" to the only province with negative economic growth. Not only has it not soared into the sky, but it has become a free fall; the "Liaoning election bribery case" made a stunning success, and it actually set two "first time in the history of New China."
During the first session of the 12th Liaoning Provincial People's Congress election of the National People's Congress deputies, 45 elected National People's Congress deputies canvassed votes and 523 Liaoning Provincial People's Congress deputies were involved in the case. The Standing Committee of the 12th Liaoning Provincial People's Congress has a total of 62 members, of which 38 were terminated due to their representative qualifications, and the positions of members of the Standing Committee were terminated accordingly. In this way, less than half of the members of the Standing Committee of the Liaoning Provincial People's Congress are unable to hold a Standing Committee meeting to perform their duties. This situation occurred in a provincial-level People's Congress Standing Committee. There has not been any new China in the history of New China. Creative arrangements need to be made in accordance with the spirit of our country's constitution and relevant laws.
Chairman of the Standing Committee of the National People's Congress Zhang Dejiang pointed out: "The Liaoning vote canvassing and bribery case is the first major case that has been investigated and dealt with since the founding of New my country, which has seriously violated the party's discipline and national laws, seriously violated political discipline and political rules, seriously violated organizational discipline and term change discipline, and seriously undermined the electoral system of the people's congress. It is a challenge to our country's people's congress system, a challenge to socialist democratic politics, a challenge to national laws and party discipline, and touched the bottom line of the socialist system with Chinese characteristics and the bottom line of the Chinese Communist Party's governance."
"People's Congress representative"
day ago, Shenyang and 14 municipal people's congress standing committees and relevant election units decided to accept the 452 people involved in the case resigned from their post as representative of the 12th People's Congress of Liaoning Province.
Why are so many people flocking to these four words? "Finance" once reported that Liaoning business owners obtained the identity of NPC deputies through canvassing votes and bribery, intervened in case handling in the form of "judicial proposals", and formed a chain of interests of "mutual help" between NPC deputies. This is one of the reasons why many business people participate in election bribery. In other words, many entrepreneurs hope to become "red-topped businessmen" through the title of NPC deputies.
Our country’s laws grant the National People’s Congress representatives at all levels the right to exempt the speech and special personal protection from personal rights to ensure that representatives exercise their powers and perform their duties in accordance with the law. However, the personal special protection right of NPC deputies is not a "shield" or "amal" for illegal acts. Taking the "Liaoning election bribery case" as an example, if a NPC representative is suspected of committing a crime, can he be arrested or tried in a criminal manner? If so, do I need to go through a special licensing process?
Improvement of the system of special personal protection rights
through legal authorization, granting parliamentarians special rights such as disclaimer of speech and special personal protection rights. This is a common practice in many countries in the world and has played a positive role in ensuring parliamentarians performing their duties. Among them, the right to special personal protection refers to the right of members of parliament to have judicial immunity, that is, the right to not be detained, arrested or tried without approval from Parliament. Although my country implements the People's Congress system, which is different from the parliamentary system in other countries, in order to ensure that the NPC deputies exercise their representative powers in accordance with the law, there are similar legal provisions, and special personal protection rights for the NPC deputies are set. However, the provisions on the subject, content, time limit of the examination of the NPC's exercise of the licensing rights are vague, and there are even legal conflicts, which lead to problems in the implementation level of this system. Due to the ambiguity in legislation, it has brought arbitrary to judicial practice, resulting in different practices in various places, which to a certain extent damaged the unity and dignity of the legal system.
1, the subject of exercising the right to licensing compulsory measures
At present, relevant laws and regulations mainly include the "Law of the National People's Congress and Local People's Congresses at All Levels" (hereinafter referred to as the "Representative Law"), the "Law of the Local People's Congresses at All Levels and the Organization Law of the Local People's Governments at All Levels" (hereinafter referred to as the "Organization Law") and the "Measures for Implementing the "Representative Law" formulated by the People's Congresses at All Levels".
Article 32, Paragraph 1 of the Representative Law stipulates: "Deputies to the People's Congress at or above the county level shall not be arrested or criminally tried without the permission of the Presidium of the People's Congress at the same level during the recess of the People's Congress at the same level without the permission of the People's Congress at the same level. If they are detained because they are the current offender, the organ that is detained shall immediately report to the Presidium of the People's Congress or the Standing Committee of the People's Congress at that level." Paragraph 2: "For deputies to the People's Congress at or above the county level, if other measures to restrict personal freedom are taken as stipulated by law, they shall be approved by the Presidium of the People's Congress or the Standing Committee of the People's Congress at that level." It can be seen that the "Representative Law" clearly stipulates that the permission for compulsory measures to take on NPC deputies shall be made by the Presidium of the People's Congress or the Standing Committee of the People's Congress. Article 45 of the Organization Law stipulates: "The Standing Committee of the People's Congress is convened by the director and held at least once every two months." When the People's Congress deputies' meeting is closed, the Standing Committee meeting is usually held once every two months. At the same time, the Criminal Procedure Law strictly restricts the deadline for the people's courts, people's procuratorates, public security organs and state security organs (hereinafter referred to as relevant organs). For example, Article 117, paragraph 2 stipulates: "The duration of summons and detention and shall not exceed twelve hours; if the case is particularly serious and complicated and requires detention and arrest measures, the duration of summons and escalation shall not exceed 24 hours." From interrogating the suspect after the case is filed to taking compulsory measures, the maximum period is only 24 hours. In just 24 hours, even if the National People's Congress accepts the application of relevant authorities, it is not time to notify all Standing Committee members to attend the meeting, not to mention that the Standing Committee meeting usually only takes two months to be held. If the National People's Congress cannot hold a Standing Committee meeting in a timely manner for review, the relevant authorities are unable to take compulsory measures against the National People's Congress representatives involved in the case, it may affect the smooth progress of the investigation and may even allow the suspect to destroy the evidence, collude with confessions or abscond abscond. According to investigations, the usual practice in various places is that if the Standing Committee meeting cannot be convened in a timely manner, the Standing Committee Chairman's Meeting can be approved first and confirmed at the next Standing Committee meeting. However, the People's Congress in some regions also pointed out that the Standing Committee Chairman's Meeting has no legal basis to exercise the right to licensing instead of the Standing Committee Meeting, and sometimes it will not be accepted on the grounds that the members are not convened in a complete manner and cannot hold a Standing Committee Meeting.
In an emergency, it is indeed difficult for the National People's Congress to convene a Standing Committee meeting in a timely manner to make a permit decision. Therefore, whether the permission of the Standing Committee Chairman's meeting is legal is questionable. The current Representative Law has been amended twice in 2009 and 2010. Before the second revision, the 16th meeting of the Standing Committee of the 11th National People's Congress first reviewed the "Amendment to the Representative Law (Draft)" for the first time. The draft changed the original Article 30 to Article 32 and added two paragraphs, of which the 3 of the current Representative Law is consistent with the current Representative Law; Paragraph 4: "If the relevant organs request permission from the Standing Committee of the People's Congress at all levels in accordance with the provisions of this article, during the resuming of the Standing Committee of the People's Congress at the same level, in an emergency, the Chairman's Meeting or the Chairman's Meeting may decide and permit it and report it to the next Standing Committee of the People's Congress for confirmation. (Article 18 of the Draft Amendment)" However, the 4th paragraph was deleted in the "Decision on Amending the Representative Law" at the 17th Session of the Standing Committee of the Eleventh National People's Congress on October 28, 2010. Although the content of this modification is not retained, some local regulations authorize the meetings of the Standing Committee of the People's Congress to handle. For example, Article 30, Paragraph 1 of the "Measures for Implementing the Representative Law of Hubei Province" (Amendated in 2012): "Deputies to local people's congresses at or above the county level shall not be arrested or criminally tried without the permission of the presidium or the Standing Committee of the People's Congress at the same level, and shall not be subject to other measures that restrict personal freedom as stipulated by law. If they are detained because they are current offenders, the organ that is detained shall immediately report to the presidium or the Standing Committee of the People's Congress at that level in writing. If the People's Congress and its Standing Committee are intersessional, the Standing Committee may be authorized by the Chairman's Meeting to handle the matter and report to the next Standing Committee meeting."Article 18 of the "Anhui Provincial People's Congress Standing Committee Work Regulations" (published in 1988): "The Chairman, Deputy Director and Secretary-General of the Standing Committee form a meeting of directors to handle the important daily work of the Standing Committee: ... (IV) In an emergency, approve the arrest or criminal trial of the representatives of the Provincial People's Congress and submit it to the Standing Committee meeting for ratification; (V)..." It can be seen that from practical operations to local regulations, the Standing Committee shall authorize the Chairman's meeting to pre-approve the The method of confirmation afterwards is reasonable and necessary. The author believes that the provincial-level People's Congress Standing Committee can amend the "Measures for Implementing the "Representative Law"" and authorize the chairman's meeting to review it during the recess of the Standing Committee meeting and report it to the next Standing Committee meeting for confirmation. According to Article 46 of the "Organization Law": "The meetings of the chairman of the Standing Committee of the People's Congress at or above the county level may submit proposals to the Standing Committee of the People's Congress at the same level that fall within the scope of the powers of the Standing Committee, and the Standing Committee meeting shall be reviewed. "In the case of unmodified local regulations, the chairman's meeting may authorize the decision to make a decision on whether to take compulsory measures based on this article, and supplementary review at the Standing Committee meeting.
2. Review standards for taking compulsory measures to take licensing
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The People's Congress is a state power organ established by the Constitution. It exercises legislative power, right to vote, supervisory power and other powers, but does not enjoy procuratorial power and judicial power. It conducts substantive review of cases, which conflicts with the independent exercise of procuratorial power and judicial power of judicial power. Moreover, the view of simply conducting procedural or substantive review of cases does not conform to the original intention of legislation. Article 32, paragraph 3 of the Representative Law stipulates: "The Presidium of the People's Congress or the Standing Committee shall accept applications from relevant agencies to apply for permission in accordance with the provisions of this article, and shall examine whether there are any cases of legal investigations on the speeches and votes of representatives at various meetings of the People's Congress, or other retaliation of the performance of their duties, such as making suggestions, criticisms and opinions on representatives, and make a decision based on this. "This clause reflects the system of exemption from speeches and personal protection by most countries. Disclaimer refers to the speeches, debates, motions, voting, inquiries of parliament members, as well as speeches and documents issued by parliament, and are authorized by parliament, and enjoy the right not to be pursued by law. This provision of our country's "Representative Law" is also to protect the National People's Congress representatives' exercise of their powers in accordance with the law and clearly define the review standards for applying for compulsory measures. In 2010, the Standing Committee of the Eleventh National People's Congress explained the amendment to Article 32, paragraph 3 of the "Representative Law" in the "Representative Law" as follows: "Some places propose that measures to restrict personal freedom for people's congress representatives at or above the county level should be submitted to the presidium or the Standing Committee for permission. What standards should be decided by whether to permit it? ” And this paragraph is added accordingly. Therefore, the review standards and basis for making decisions of the National People's Congress are Article 32, Paragraph 3 of the Representative Law, that is, whether the relevant authorities have held accountable and retaliated against the legitimate performance of their duties and deeds. In other words, if there are no such circumstances, permission should be given.
3. The review period for the license taking compulsory measures
The Representative Law does not stipulate the duration of the review and licensing procedures of the National People's Congress. This does not meet the requirements of procedural justice and may lead to the relevant authorities' application for licensing procedures being delayed indefinitely during the acceptance and review stage of the National People's Congress. Compared with the strict period stipulated by the Criminal Procedure Law for relevant authorities, the unlimited licensing procedures obviously lack fairness and rationality, so it is necessary to set a reasonable review period.For example, Article 30, Paragraph 2 of the Measures for Implementing the Representative Law of Hubei Province: "The presidium, standing committee and its directors of local people's congresses at or above the county level shall make a written reply on whether to permit within three days from the date of receiving the report of the executive authority."
4. Relief mechanism for the licensing system of compulsory measures
law is based on the principle of fairness and justice, and has designed many constraint mechanisms for the criminal litigation activities of relevant agencies, such as evasion, accountability for wrong cases, and state compensation. However, during the process of the National People's Congress exercising its compulsory measures, relevant agencies have no way to find relief. The first is the avoidance system. Chapter 3 of the Criminal Procedure Law lists in detail the circumstances in which judges, prosecutors and investigators need to be avoided. The Representative Law does not have relevant provisions. Even if the members of the Standing Committee of the National People's Congress who participated in the review have a interest in the NPC deputies involved in the case or other relationships that may affect the fair handling of the case, the relevant authorities have no right to request evasion. The second is the reconsideration system. If the relevant authorities believe that the NPC’s failure to accept the case may not be accepted or even illegal, can they request a review? The law does not stipulate this.
The members of the presidium or standing committee of the People's Congress at all levels are not legal professionals. They may not grant permission based on different understandings of the law or other extralegal reasons, but the relevant authorities can only be helpless. The author believes that relevant laws should be revised and procedures such as abstention and reconsideration should be established to provide relief, so as to ensure the smooth progress of legal criminal litigation activities. If the relevant organs may apply to the presidium or standing committee members who have interests in the case to the presidium or standing committee members who are interested in the NPC deputies involved in the case; if they are dissatisfied with the review decision, they may apply to the presidium or standing committee for reconsideration. If they are still dissatisfied with the reconsideration result, they may request the superior organ to request the Standing Committee of the NPC at the same level to revoke the decision that the disallowed permission.
"Han Feizi·Yu Lao": "King Zhuang of Chu was in power for three years, but he had no orders, and he did not do anything. The right Sima was the throne, and said to Wang Yin, 'There is a bird standing in the south (the mountain of earth). It has no wings for three years, and it does not fly or whistle, and is silent. What is this called?' The king said: 'If there are no wings for three years, it will be long with wings; if it does not fly or whistle, it will be to observe the people. Even if there is no flying, it will surely soar into the sky; if there is no sound, it will surely sound.'"
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