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With regard to the schedule of amending criminal procedural law, the tenth National People’s Congress has taken the amendment of criminal procedural law into the legislative planning in this people’s congress since 2003. And then the work of improving criminal procedural law was ongoing regularly, routinely and busily. Until December, 2006, an original draft of amendment of criminal procedural law had been accomplished. According to the previous legislative planning, the amendment of criminal procedural law would be completed by the end of the term of the tenth National People’s Congress. However, this legislative planning was not fulfilled. The eleventh National People’s Congress continued to finish revising criminal procedural law. In particular, the congress accelerated to improve the law since 2010. The fifth meeting of the eleventh National People’s Congress approved of the amendment of criminal procedural law by voting on March 14, 2012. It takes around ten years to improve the criminal procedural law so far, which has been discussed by two terms of National People’s Congress. Compared with the time when the criminal procedural law was amended in 1996,“it took three years to complete the previous amendment provided that the time of improving criminal procedural law began with legislative organs taking the improvement into a work planning formally. Nevertheless, it spent five years to accomplish the previous amendment provided that the time began with relative departments holding a conference concerning the amendment in 1991.”
As for the motivation of this amendment, the improvement of criminal procedural law resulted from issues in 2002, when Criminal Evidence Law was prepared to be constituted. The reason is that some problems in relation to evidences and arisen in practice had not been identified in criminal procedural law, which was improved in 1996. The practice, the legal science and so on appealed for Criminal Evidence Law to be constituted. The legislative organs also formally took the legislative investigation on constituting Criminal Evidence Law and producing the draft of the law into legislative planning. However, it found that issues of criminal evidences and issues of criminal proceedings could not be completely divided in the process of drafting and discussing criminal evidence law. The further problems of criminal evidences were solved, the closer relation between issues of criminal evidences and of criminal proceedings it found to be. The legislative organs decided to stop constituting criminal evidence law. The legislation concerning criminal evidence was taken into the amendment of criminal procedural law. During the process of improving criminal procedural law, problems of criminal evidences would be solved at the same time. In the mean time, with the background of deepening the reform of judicial system and operative mechanism, a series of significant measures and documents in relation to the reform of judicial system continuously were published. These measures and documents created conditions and prepared the ground for promoting and accomplishing the amendment for the eleventh National People’s Congress.
With regard to the contents in the amendment, the academia had discussed an important issue that which degree of improvement should be applied to criminal procedural law when the law was intended to be re-amended originally. And then the legislative organs determined that those problems that need to be solved urgently and necessarily would be improved originally by an application of an amendment. An amendment, which will be passed by the Standing Committee of National People’s Congress through a discussion and an examination, is simpler and easier from perspectives of inputs, legislative technologies and other legislative materials. However, this revision of criminal procedural law finally was passed by over 2,000 representatives of National People’s Congress and by the supreme authority of the country. On the other hand, the contents have been amended a lot. Compared with the improvement of criminal procedural law in 1991, the version improved in 1996 supplemented 61 articles. In this amendment, the amount of articles has been up to 290 in comparison with 225 articles in the version improved in 1996. Therefore, we think that this modification of criminal procedural law indeed is extensive.
As for the greatest significance of this improvement, one of the important revisions is to improve the system of criminal defense. The writer holds that suspects and the accused in criminal proceedings strongly require the protection provided by the system of criminal defense. The system of defense should be placed as an importance in criminal proceedings. This significant status is determined by a structure of criminal proceedings. The functions of criminal proceedings consist of the judgment, prosecution and defense. The judgment highlights that it should be positioned to be negative, neutral and passive. The prosecution should actively realize to accuse defenders of their responsibility. Therefore, the most importance to establish a comprehensive system of criminal defense could safeguard justice and fairness in criminal proceedings. In the version of criminal procedural law improved in 1996, the system of criminal defense had been improved and adjusted. However, there were some problems which need to be solved. The significance of criminal defense system in the amendment of criminal procedural law is in the following.
Firstly, the new version re-interprets responsibility of defenders, which represents that substantial defense, as well as procedural defense, is quite important. According to article 28 in 1979’s criminal procedural law, “a defender is responsible to put forward materials and suggestions that prove the accused to be innocent, to commit minor crimes or prove the penalty to be reduced, exempted in accordance to facts and laws, so as to protect legal rights and benefits of the accused.” According to article 35 in 1996’s criminal procedural law, “a defender is responsible to put forward materials and suggestions that prove suspects and the accused to be innocent, to commit minor crimes or prove the penalty to be reduced, exempted in accordance to facts and laws, so as to protect legal rights and benefits of suspects and the accused.” In the later version, only “suspects” was added. In this amendment of criminal procedural law, “a defender is responsible to put forward materials and suggestions that the accused are innocent, commit minor crimes or the penalty should be reduced, be exempted in accordance to facts and laws, so as to protect suspects and the accused’s litigation right and other legal rights and benefits.” The modification in the amendment makes this article changed essentially. With regard to the previous article 35, the defense only refers to substantial defense. Responsibility of lawyers is to propose evidences, in order to protect legal rights and benefits of suspects and the accused. The work that defenders could do is involved in criminal entities, such as suspects and the accused who are guilty, innocent or whose penalty is reduced, exempted and so on. There was no content in relation to criminal proceedings. In addition, the previous article 35 requires that a defender should propose materials and suggestions to prove suspects and the accused to be innocent, to commit minor crimes or to prove their penalty to be reduced, be exempted, which presses the responsibility of proving onto defenders. In the amendment of criminal procedural law, defenders do not only protect substantial right and other legal rights and benefits of suspects and the accused, but also definitely highlights the procedural defense through revising some words. This modification realizes that both substantial defense and procedural defense equally are significant. At the same time, “prove” is deleted, which demonstrates that the improvement has essentially changed the foundation of the whole system of criminal defense.
Secondly, the new version solves a problem, which has been puzzling in the theory and practice for a long period, and which is that suspects are able to engage lawyers who provide legal aids at the stage of investigations. However, lawyers, who provide legal aids at the stage of investigations, should be called as defenders at the stage of judgment. There are two reasons for this arrangement. On the one hand, suspects are able to engage lawyers for the defense at the stage of investigations, which can not be included in 1996’s criminal procedural law. The reason is that the condition at that time is not enough for such an improvement. On the other hand, the defense traditionally is a substantial defense. According to Black’s Law Dictionary and Oxford Dictionary of Law, “defense”still is defined as a substantial defense. However, procedural defense in modern times is also important in the system of defense. As a result, this amendment is a radical reform. Lawyers at the stage of investigations are still defenders. Nevertheless, compared with defenders at the stage of prosecution and judgment, their responsibilities are distinctive. At the stage of investigations, most of cases, mainly involving in procedural defense, might be lacking in conditions of substantial defense. However, the essence of these defenses is the same.
Thirdly, the new version basically solves a problem that suspects or the accused meet lawyers. Except for three kinds of cases where investigation organs should approve of the meeting, lawyers in other cases, who use “lawyer’s practice certificate”, “certification issued by a lawyer firm”,“letter of attorney” or “letter of legal aid”, are able to meet suspects within 48 hours. Furthermore, meetings should not be monitored and detectives should not be present. Lawyers found it difficult to communicate with suspects before when detectives were present at the meetings.
In terms of the interpretation of the amendment of criminal procedural law, this improvement has lasted a long time and it keeps pace with the times. With regard to the contents and changes in the modification, the new version has advanced a lot. Legal construction should be improved gradually. Some modifications have been beyond the original views of some scholars. It shows that legal advance and legal civilization are a main trend for modern democracy and legal development although the process of amendment is not smooth all the time. China, through improving democratic and legal construction continuously, also will adapt to this trend.
As for the motivation of this amendment, the improvement of criminal procedural law resulted from issues in 2002, when Criminal Evidence Law was prepared to be constituted. The reason is that some problems in relation to evidences and arisen in practice had not been identified in criminal procedural law, which was improved in 1996. The practice, the legal science and so on appealed for Criminal Evidence Law to be constituted. The legislative organs also formally took the legislative investigation on constituting Criminal Evidence Law and producing the draft of the law into legislative planning. However, it found that issues of criminal evidences and issues of criminal proceedings could not be completely divided in the process of drafting and discussing criminal evidence law. The further problems of criminal evidences were solved, the closer relation between issues of criminal evidences and of criminal proceedings it found to be. The legislative organs decided to stop constituting criminal evidence law. The legislation concerning criminal evidence was taken into the amendment of criminal procedural law. During the process of improving criminal procedural law, problems of criminal evidences would be solved at the same time. In the mean time, with the background of deepening the reform of judicial system and operative mechanism, a series of significant measures and documents in relation to the reform of judicial system continuously were published. These measures and documents created conditions and prepared the ground for promoting and accomplishing the amendment for the eleventh National People’s Congress.
With regard to the contents in the amendment, the academia had discussed an important issue that which degree of improvement should be applied to criminal procedural law when the law was intended to be re-amended originally. And then the legislative organs determined that those problems that need to be solved urgently and necessarily would be improved originally by an application of an amendment. An amendment, which will be passed by the Standing Committee of National People’s Congress through a discussion and an examination, is simpler and easier from perspectives of inputs, legislative technologies and other legislative materials. However, this revision of criminal procedural law finally was passed by over 2,000 representatives of National People’s Congress and by the supreme authority of the country. On the other hand, the contents have been amended a lot. Compared with the improvement of criminal procedural law in 1991, the version improved in 1996 supplemented 61 articles. In this amendment, the amount of articles has been up to 290 in comparison with 225 articles in the version improved in 1996. Therefore, we think that this modification of criminal procedural law indeed is extensive.
As for the greatest significance of this improvement, one of the important revisions is to improve the system of criminal defense. The writer holds that suspects and the accused in criminal proceedings strongly require the protection provided by the system of criminal defense. The system of defense should be placed as an importance in criminal proceedings. This significant status is determined by a structure of criminal proceedings. The functions of criminal proceedings consist of the judgment, prosecution and defense. The judgment highlights that it should be positioned to be negative, neutral and passive. The prosecution should actively realize to accuse defenders of their responsibility. Therefore, the most importance to establish a comprehensive system of criminal defense could safeguard justice and fairness in criminal proceedings. In the version of criminal procedural law improved in 1996, the system of criminal defense had been improved and adjusted. However, there were some problems which need to be solved. The significance of criminal defense system in the amendment of criminal procedural law is in the following.
Firstly, the new version re-interprets responsibility of defenders, which represents that substantial defense, as well as procedural defense, is quite important. According to article 28 in 1979’s criminal procedural law, “a defender is responsible to put forward materials and suggestions that prove the accused to be innocent, to commit minor crimes or prove the penalty to be reduced, exempted in accordance to facts and laws, so as to protect legal rights and benefits of the accused.” According to article 35 in 1996’s criminal procedural law, “a defender is responsible to put forward materials and suggestions that prove suspects and the accused to be innocent, to commit minor crimes or prove the penalty to be reduced, exempted in accordance to facts and laws, so as to protect legal rights and benefits of suspects and the accused.” In the later version, only “suspects” was added. In this amendment of criminal procedural law, “a defender is responsible to put forward materials and suggestions that the accused are innocent, commit minor crimes or the penalty should be reduced, be exempted in accordance to facts and laws, so as to protect suspects and the accused’s litigation right and other legal rights and benefits.” The modification in the amendment makes this article changed essentially. With regard to the previous article 35, the defense only refers to substantial defense. Responsibility of lawyers is to propose evidences, in order to protect legal rights and benefits of suspects and the accused. The work that defenders could do is involved in criminal entities, such as suspects and the accused who are guilty, innocent or whose penalty is reduced, exempted and so on. There was no content in relation to criminal proceedings. In addition, the previous article 35 requires that a defender should propose materials and suggestions to prove suspects and the accused to be innocent, to commit minor crimes or to prove their penalty to be reduced, be exempted, which presses the responsibility of proving onto defenders. In the amendment of criminal procedural law, defenders do not only protect substantial right and other legal rights and benefits of suspects and the accused, but also definitely highlights the procedural defense through revising some words. This modification realizes that both substantial defense and procedural defense equally are significant. At the same time, “prove” is deleted, which demonstrates that the improvement has essentially changed the foundation of the whole system of criminal defense.
Secondly, the new version solves a problem, which has been puzzling in the theory and practice for a long period, and which is that suspects are able to engage lawyers who provide legal aids at the stage of investigations. However, lawyers, who provide legal aids at the stage of investigations, should be called as defenders at the stage of judgment. There are two reasons for this arrangement. On the one hand, suspects are able to engage lawyers for the defense at the stage of investigations, which can not be included in 1996’s criminal procedural law. The reason is that the condition at that time is not enough for such an improvement. On the other hand, the defense traditionally is a substantial defense. According to Black’s Law Dictionary and Oxford Dictionary of Law, “defense”still is defined as a substantial defense. However, procedural defense in modern times is also important in the system of defense. As a result, this amendment is a radical reform. Lawyers at the stage of investigations are still defenders. Nevertheless, compared with defenders at the stage of prosecution and judgment, their responsibilities are distinctive. At the stage of investigations, most of cases, mainly involving in procedural defense, might be lacking in conditions of substantial defense. However, the essence of these defenses is the same.
Thirdly, the new version basically solves a problem that suspects or the accused meet lawyers. Except for three kinds of cases where investigation organs should approve of the meeting, lawyers in other cases, who use “lawyer’s practice certificate”, “certification issued by a lawyer firm”,“letter of attorney” or “letter of legal aid”, are able to meet suspects within 48 hours. Furthermore, meetings should not be monitored and detectives should not be present. Lawyers found it difficult to communicate with suspects before when detectives were present at the meetings.
In terms of the interpretation of the amendment of criminal procedural law, this improvement has lasted a long time and it keeps pace with the times. With regard to the contents and changes in the modification, the new version has advanced a lot. Legal construction should be improved gradually. Some modifications have been beyond the original views of some scholars. It shows that legal advance and legal civilization are a main trend for modern democracy and legal development although the process of amendment is not smooth all the time. China, through improving democratic and legal construction continuously, also will adapt to this trend.