Author
Lawyer Li Zemin: Executive Director of Guangqiang; Director of Economic Defense Center; Chief Defense Lawyer for pyramid scheme cases
Li Meng: Researcher of Guangqiang Economic Crime Defense and Research Center
Research on related issues in trial confrontation (Part 1) -What is confrontation?
Keywords: Criminal Defense , Trial Confrontation
With the continuous advancement of the trial-centered criminal lawsuit system reform, the requirements for review of verbal evidence are getting higher and higher. Trial confrontation is an important way to review verbal evidence and is also an important way to restore the facts of the case. It plays an important role in helping the judge discover the truth or protecting the defendant's human rights.
However, for what is confrontation? How does our country’s laws stipulate the confrontation system? What is the current status of confrontation in judicial practice? How should we grasp the confrontation of the trial now? These questions still need further answers.
1. What is a confrontation
has a long historical and humanistic foundation to seek the truth through confrontation. In ancient my country, there was a saying that "those who tell each other's message" was said. Jin Yong also recorded the plot of confrontation in " The Legend of the Condor Heroes ": When Huifeng and others accused Zhang Cuishan slaughtered dozens of people from the Longmen Escort Agency but Zhang refused to admit it, Shaolin Temple The monk Yuanyin called Huifeng and four others to confront Zhang Wuxia . From the perspective of daily life experience, facing the quality is one of the best ways to clarify the facts and restore the truth.
Modern Chinese dictionary explanation: Confrontation refers to the persons involved in the litigation questioning each other face to face in court, and also generally refers to the parties related to the problem who are face to face.
The legal theory community, confrontation can also be called "confrontation inquiry" or "confrontation inquiry", which means that two people are questioning each other face to face at the same time. The includes two elements: face to face and inquiry . Inquiry is both a way to ascertain the facts and involves the basic rights of the parties, namely the right to pledge. The core of the trial confrontation is that the defendant has the right to face-to-face with witnesses who are not conducive to him and question them in court to seek the truth. The legal concept of
can be seen in the "Criminal Trial Confrontation Rules (Trial)" issued by the Chengdu Intermediate People's Court (hereinafter referred to as the "Chengdu Trial Confrontation Rules"): Confrontation refers to a trial evidence investigation method that helps judges judge the authenticity of the statements of human evidence in criminal trials. Under the arrangement of the court, through questioning, questioning, refuting, and defense, etc.
According to historical information, around the mid-12th century, the criminal trial required the defendant to confront the witnesses in person, that is, the conditions for the defendant to confront the witnesses are:
(1) When the judge doubts the credibility of the prosecution's proof of the statement, the judge has the right to ask the defendant to cross-examination of the witnesses;
(2) In order to force the defendant to refuse to admit guilt to plead guilty, the judge has the right to ask the defendant to face the face to face with his unfavorable witnesses.
However, with the innovation of criminal prosecution concepts and the transformation of litigation models, confrontation is no longer the power exclusive to judges, and no longer serves to "force the defendant to plead guilty", but becomes a litigation right of the defendant, with the purpose of finding out the truth of the case.
For example, from the perspective of International Covenant , "The Right to Confrontation" is listed as the basic rights of criminal defendants in international conventions such as Article 6, Item 3, Paragraph D of the European Convention on Human Rights ", "The International Covenant on Civil and Political Rights ", "The Right to Confrontation" is listed as the basic rights of criminal defendants in international conventions such as Article 8, Paragraph 2, Paragraph F of the Inter-American Convention on Human Rights ".
In the above-mentioned convention, the defendant's right to confront and question is set under the "fair trial" clause.This shows that the defendant's right to confront and question is not only one of the principles of fair trials, but also one of the minimum standards of fair trials. For example, Section 6 of the U.S. Federal Constitution Amendment stipulates that "the criminal defendant has the right to confront an adverse witness."
The current criminal proceedings norms in my country also stipulate this.
2. Relevant legal provisions and analysis of confrontation
Although my country's " Criminal Procedure Law " does not stipulate the confrontation system, the relevant judicial interpretation of " two high " confirms and stipulates the confrontation system:
(I) " Criminal Procedure Rules of the People's Procuratorate " (hereinafter referred to as the "Criminal Procedure Rules")
Article 402 Paragraph 4: If the defendant, witness, and victim have conflicts in the statements of the same fact, the prosecutor may recommend that the court summon the relevant defendant and notify the relevant witnesses to appear in court to confront the court at the same time. If necessary, it may suggest that the court question the victim.
(II) "Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China" (hereinafter referred to as the "Interpretation of Criminal Procedure")
Article 269: During the trial, if the court deems it necessary, it may summon the defendants of the same case, the defendants in the joint crime or related crime case heard in separate cases, and then appear in court to confront them.
(III) "Trial Investigation Procedures for the People's Courts for the First Instance Ordinary Procedures for Criminal Cases (Trial)" (hereinafter referred to as "Criminal Cases Procedures")
Article 8: In cases where there are multiple defendants, the interrogation of the defendants shall be conducted separately. If there is a substantial difference between the defendant's confession, the court may summon the relevant defendant to confront him. The presiding judge may interrogate the defendant separately and investigate and verify the substantive differences in the confession. With the permission of the presiding judge, the prosecution and defense may interrogate and ask questions to the defendant. If the presiding judge deems necessary, he may allow the defendants to ask questions from each other.
According to the needs of the case trial, the presiding judge may arrange for the defendant to confront the witness and the victim in accordance with the methods stipulated in the preceding paragraph.
Article 24: If there is a substantial difference between witness testimony, the court may summon the relevant witnesses to confront the court.
Presiding judge can ask witnesses separately and investigate and verify the substantive differences in testimonies. With the permission of the presiding judge, the prosecution and defense may ask questions to witnesses. If the presiding judge thinks it is necessary, he may allow witnesses to ask questions from each other. The norms related to criminal proceedings above all indicate that the premise of confrontation is "there are contradictions" and "there are substantial differences", so this will also resolve this evidence contradiction as the purpose of questioning.
The difference is that the confrontation subject stipulated in the "Criminal Procedure Rules" are the defendant and witness, and also includes the confrontation between the defendant, the confrontation between the defendant and the witness, and the confrontation between the witness.
As for whether it can confront the victim, the term "Criminal Prosecution Rules" is "If necessary, it can be recommended that the court asks the victim." The "National Prosecutor's Guide to Appearance for Court" prepared by the Public Prosecution Department of the Supreme People's Procuratorate pointed out: ... whether the victim can appear in court to confront the crime. The prosecutor must make it clear to the court that neither the Criminal Procedure Law nor the judicial interpretation stipulates that the victim can participate in the trial and confrontation. From the perspective of the victim's privacy and protection of the rights and interests of the victim, in order to avoid the victim's "secondary injury", in principle, the prosecutor should request the court not to allow the victim to appear in court for confrontation, except where the victim voluntarily agrees to appear in court for confrontation. In other words, the Criminal Prosecution Rules and the public prosecution agency believe that the subject of confrontation includes the defendant and witness, and does not include the victim.
The scope of confrontation subjects stipulated in the "Interpretation of Criminal Procedures" is narrower and refers only to the defendant. However, the "Criminal Cases Regulations" promulgated in 2018 also belongs to the judicial interpretation of the Supreme Court of . In this document, the scope of the confrontation subjects is expanded to: witnesses and victims.
We believe that confrontation in court belongs to the category of judicial power and should be subject to the interpretation of the Supreme Court. Moreover, the provisions of the "Criminal Cases Regulations" for the confrontation system are more detailed and have more applicability. Therefore, the confrontation subjects stipulated in the document should be subject to the confrontation subjects. , that is, the confrontation subjects include: defendant, witness, and victim.
It is worth noting that there are also some local judicial norms documents that extend the subject of confrontation to investigators, appraisers and personnel with specialized knowledge. As the Chengdu Confrontation Rules stipulate that confrontation is carried out between the defendants, witnesses, victims, investigators, appraisers and personnel with specialized knowledge participating in the trial. The prosecutor and defense lawyer may assist their own witnesses to participate in the confrontation with the permission of the presiding judge. (Note: This specification falls under local norms and is not within the main discussion scope of this article.)
Conclusion
2
The questioning is based on in-court in court. When there are contradictions in the content of testimony against the same facts between the defendants, between the defendants and witnesses, between the defendants and victims, and between the witnesses, and between the witnesses, and a method of personal evidence investigation is required when the controversy is made. It is generally regarded as one of the basic trial rights enjoyed by criminal defendants, aiming to achieve the goal of authentic identification and fairness and justice.
The current Criminal Procedure Law itself does not stipulate the inquiry system, but the Criminal Procedure Interpretation, Criminal Procedure Rules and Criminal Cases Procedure Provisions make principled provisions on them in the form of judicial interpretation, and on this basis there are also some local judicial documents. Overall, the scope of the currently stipulated subjects of the confrontation are different and narrow, and there are lack of specific confrontation operation specifications - such as start-up conditions, start-up procedures, confrontation procedures, etc.
As criminal defense lawyers, we cannot blindly hope that the court trial and confrontation will be carried out after the law is improved. Since the law gives the defendant the right to confront the case, we should make good use of the pledge right to fight for the parties to the greatest rights and interests. If you want to make good use of the pledge right, you must not only know the meaning and legal provisions of the confrontation, but also formulate a relatively effective confrontation plan in combination with current judicial practice. Please pay attention to the subsequent article "Research on issues related to court trial confrontation (Part 2) - How to do confrontation? 》
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