In September, Beijing King&Capital Law Firm's Criminal Division came to Dalian to have an in-depth discussion with Beijing King&Capital Law Firm on the topic of “Substantiation of Court Trial and Proposals for Revision of Criminal Procedure Law”. The lawyers of King&Capital and Dalian Branch Office gathered together to give advice on the focus of common concern in criminal practice, and jointly discussed the substantive trial and other hot issues in the process of criminal procedure law revision, aiming at the revision of the Criminal Procedure Law from the perspective of the lawyers to gather wisdom and strength, and jointly promote the development of the rule of law in criminal matters.
Mr. Tian Wenchang, founding partner and honorary director of Beijing King&Capital Law Firm, Mr. Hua Yang, director of Beijing King&Capital (Dalian) Law Firm, Mr. Liang Yali, partner in charge of the criminal department of Beijing King&Capital Law Firm and director of the Kyoto Criminal Defense Research Center, and Mr. Chu Changzhi, managing partner and CEO of King&Capital Law Firm, delivered speeches respectively. The seminar was chaired by Mr. Weng Xiaoping, Senior Partner of Beijing King&Capital Law Firm.
Mr. Tian Wenchang, Founding Partner and Honorary Director of King&Capital Law Firm
Hua Yang, Director of King&Capital (Dalian) Law Firm
Liang Yali, Partner-in-Charge of Criminal Department of King&Capital Law Firm, Director of King&Capital Criminal Defense Research Center
Chu Changzhi, Managing Partner and CEO of King&Capital Law Firm
Weng Xiaoping, Senior Partner of King&Capital Law Firm
This seminar includes two units of topics, namely, verbal evidence, witnesses' appearance in court and the proposed amendment to the Criminal Procedure Law, and illegal evidence exclusion and the proposed amendment to the Criminal Procedure Law.
The first unit of topics by the Kyoto firm partner Li Jingyu lawyer keynote speech, by the King&Capital Dalian partner Wang Jinlian lawyers, Kyoto firm partner Xu Wei lawyers, senior partner of the King&Capital Dalian firm Wang Shuju lawyers and talk.
Li Jingyu lawyers believe that: witness testimony is a kind of verbal evidence, witnesses testify in court is the implementation and embodiment of the principle of direct speech. This is essential to protect the rights of suspects and defendants, is the trial of the substance of the meaning. But our country criminal case trial mode is still the case file transcript centrism, this is also one of the core problems; Then, Li Jingyu lawyer from four levels of in-depth analysis of the causes of the problem, and give the solution to the proposal: in the existing system conditions, for the whole process of the witness testimony “show” and open to the defense for effective supervision than to emphasize that Witnesses to appear in court is much more realistic, but also can effectively avoid the system is false.
King&Capital Law Firm Partner Li Jingyu
In the conversation, Wang Jinlian agreed with Li Jingyu's viewpoints and made four responses: first, whether witnesses can appear in court is a long-standing problem, and we hope that it can be solved in the revision of the Criminal Procedure Law, and we hope to expand the scope of simultaneous recording, and to establish synchronous audio-video recording system of the key witnesses; secondly, to establish the protection system of the contact between the defender and the witnesses and to provide institutional support for the defense to obtain evidence; thirdly, for the practice Third, for the practice of the defender to put forward the application for witnesses to appear in court is often rejected, increase the relief channels, the establishment of reconsideration or review of the relief channels; Fourth, the establishment of a sound witness protection system and the corresponding supporting measures, to provide the substantive trial of the effectiveness of the guarantee.
Wang Jinlian, Partner of King&Capital (Dalian) Law Firm
Mr. Xu Wei started from the perspective of the victim's case he represented, and elaborated on the necessity of witnesses' appearance in court from the dialectical relationship between accusation of crime and witnesses' appearance in court; and then shared the phenomenon of witnesses being induced and deceived to make statements and analyzed the reasons from different perspectives of the defendant's case he represented in practice. In this regard, he suggested: establishing a system for key witnesses to appear in court in some cases, without the precondition that the court deems it necessary; and setting up a system of synchronized audio-video recording of some witnesses.
Xu Wei, Partner of King&Capital Law Firm
Combining his own judicial work experience, Mr. Wang Shuju made a brief overview of the process of trial substantiation since the revision of the Criminal Procedure Law in 1996, analyzed the practical dilemmas of witnesses' appearance in court, and looked forward to the amendment of the law to make new breakthroughs in the witness appearance system, and to truly implement the system and measures for witnesses to appear in court in major cases. Based on the data of local court cases, Mr. Wang Shuju suggested to establish a system of compulsory appearance of key witnesses in major and difficult cases of the first instance of the intermediate courts as well as cases in which the defendant does not plead guilty.
Mr. Wang Shu, Senior Partner of King&Capital (Dalian) Law Firm
The second module was on the topic of illegal evidence exclusion and suggestions for the revision of the Criminal Procedure Law. Mr. Yang Haiming, partner of King&Capital Law Firm, made a keynote speech, and Mr. Zhou Lixiang, senior partner of King&Capital Dalian Law Firm, and Mr. Li Zhiguang, senior partner of King&Capital Law Firm, made a talk.
Mr. Yang started from the concept of illegal evidence and analyzed the types of illegal evidence in judicial practice. Mr. Yang also discussed whether the induced confessions and finger confessions encountered in practice but not included in the types of unlawful evidence, and whether the transcripts formed from interrogations outside of the courtroom and the simultaneous audio-visual recordings of interrogations with the written transcripts can be regarded as unlawful evidence, and suggested that the above evidence be included in the Criminal Procedure Law through the opportunity of this amendment to the law, and he hoped that this amendment could take a bigger step to make the system of exclusion of unlawful evidence truly effective in practice. Illegal evidence exclusion system really play its due role in practice.
Yang Haiming, Partner, Kyoto Law Firm
Yang Haiming, Partner of King&Capital Law Firm
In the talk session, Mr. Zhou Lixiang spoke and made suggestions from three aspects: the scope of exclusion, the procedure of exclusion, and the simultaneous recording of criminal cases. Firstly, it is suggested that the scope of exclusion should be appropriately expanded in the revision of the Criminal Procedure Law, and the verbal evidence obtained by deception and enticement should be included, and the exclusion rules can be considered to apply discretionary exclusion, in order to rationalize the relationship between investigation techniques and the protection of the authenticity and legitimacy of verbal evidence; secondly, the new exclusion procedure will adjust the mode of initiation of the court investigation procedure from mandatory initiation to the judge's discretionary initiation, when the prosecution and defense parties do not agree on the legality of the collection of evidence in the pre-trial meeting. Secondly, the new protocol will adjust the mode of starting the court investigation procedure from mandatory start to the judge's free heart to start, which will make the start of the procedure of non-exhaustive investigation lose the objective standard, and it is against the basic principle of safeguarding human rights in the criminal procedure law, and it is recommended that the modification of the criminal procedure law can return to the mode of mandatory start of the non-exhaustive investigation. Thirdly, it is recommended to appropriately expand the scope of interrogation witness statement system in major criminal cases, improve the system of preservation and transfer of statement, and further clarify and rationalize the legal attributes of statement.
Zhou Lixiang, Senior Partner of King&Capital (Dalian) Law Firm
Mr. Li Zhiguang, from the judicial concept of human rights protection, believes that the revision of the Criminal Procedure Law must be firm and unshakeable judicial concept of human rights protection; as to whether the verbal evidence obtained by enticement and deception can be included in the process of exclusion, Mr. Li believes that in practice, it is not a generalization, but should be judged specifically, in order to better balance between the means of investigation and the protection of human rights; in addition, it is also necessary to focus on the vigilance of new types of methods of extorting confessions by torture to further clarify the means and methods of exclusion, and further clarify and rationalize the legal attributes of the same records. In addition, we should also focus on being alert to new methods of extortion of confessions by torture, further clarify the means and methods of exclusion, incorporate the handling of functional crime cases into the exclusion procedures, refine the exclusion procedures, strictly apply the exclusion procedures, and hope that the exclusion system will no longer fall through the cracks.
Li Zhiguang, Senior Partner of Kyoto Law Firm
Li Zhiguang, Senior Partner of King&Capital Law Firm
The seminar was summarized by Liang Yali, who refined the highlights of the lawyers' speeches, and summarized the focus of attention on the revision of the Criminal Procedure Law: clarifying the system of witnesses appearing in court and the corresponding supporting measures, expanding the scope of the exclusion of the non-exclusion of the same record, strictly implementing the exclusion of the non-exclusion of the procedure and the same record of the system of disclosure to do to ensure the protection of the lawful rights and interests of the parties.
At the end of the meeting, Tian Wenchang emphasized the concept of the problem, he believes that the concept of positioning is the decisive factor in the revision of the criminal procedure law, whether it is the witness appearance system or the system of exclusion, must focus on the concept of the problem, the substance of the trial is essentially the implementation of the principle of direct speech, only the principle of direct speech to the implementation of the substance of the trial may be able to promote the principle of direct speech to the practical. He encouraged King&Capital lawyers and colleagues in practice to pay attention to the conceptual issues and make joint efforts to promote the development of criminal justice in China.
This seminar was jointly participated by the lawyers of the Criminal Department of King&Capital and Dalian Branch, and the participants actively made suggestions, which opened a precedent for the lawyers of King&Capital Head Office and Branch to jointly discuss the specialized practical hotspots and put forward the targeted recommendations for law amendment.
