被告人诉讼权利与程序救济论纲——基于国际标准的分析（The defendant litigation rights and procedure of relief -- Analysis Based on the international standard）

被告人诉讼权利与程序救济论纲——基于国际 标准 excel标准偏差excel标准偏差函数exl标准差函数国标检验抽样标准表免费下载红头文件格式标准下载 的分析（The defendant litigation rights and procedure of relief -- Analysis Based on the international standard） 被告人诉讼权利与程序救济论纲——基于国际标准的分析(The defendant litigation rights and procedure of relief -- Analysis Based on the international standard) On the defendant's procedural rights and procedural remedies -- Based on the analysis of international standards Author: Chen Weidong / Hao Yinzhong The history of human society from ignorance, autocracy to gradual civilization and democracy is, to some extent, the speech process of criminal defendants who gradually have procedural subjectivity from the object of litigation. If the establishment of the legal rights of the accused and the continuousdevelopment, marking the criminal justice into a state of civilization, so as to minimize the protection of the defendant litigation rights of international standards in the world are generally accepted and popularized, it reflects the world trend of the international society on the development of the field of criminal justice in particular pay attention to the protection of human rights and the modern criminal litigation system, but also reflects the human society culture the basic spiritual needs and material needs of human society and civilization, embodies the objective requirements of the law of modern criminal proceedings, provided the value standard of reference for the improvement and development of the criminal procedure system of various countries. This paper from the perspective of the international standards of criminal justice, litigation rights of criminal defendants and procedure of the relief of the comparative study, hope this can help to promote the modernization of criminal justice China. I A significant symbol of modern civilization and democratic society is increasingly requires the protection of human rights and international legal system, this kind of idea is the most direct attempts to develop a series of international documents to establish the basic principles and standards relating to criminal justice gradually, especially in the hope of the world in the criminal proceedings to protect the legal rights of the accused in accordance with international standards, regulate and unified. The United Nations and its affiliated international organizations and some intercontinental human rights protection organizations have made outstanding contributions to this issue. The 1948 "Universal Declaration of human rights", 1957 "Standard Minimum Rules for the treatment of prisoners", 1966 "International Convention on human rights" and "International Covenant on Civil and political rights" in 1984, "the prohibition of torture and other cruel, inhuman or degrading treatment or punishment," Convention "in 1988 to protect all under any form of detention the principle of" people or imprisonment, 1990 "on the role of lawyers" and some basic principles of the Convention on human rights such as intercontinental "European Convention on human rights", "American Convention on human rights", "human and African people's charter" and other international legal documents have been born and more and more countries to be recognized, marking the criminal justice the international standards established in the world, and the criminal litigation system of various countries has extremely profound influence. The international legal documents systematically established the litigation rights of the minimum defendant enjoys in criminal procedure and procedure of the relief mechanism, in general, mainly include the following contents: (1) the defensive litigious right enjoyed by the defendant and the remedy procedure thereof. The defendant's defensive litigation rights, the defendant is entitled to the prosecution charges against its indictment, offset the effects by litigation rights, mainly include: 1. the right to know, that the defendant has been charged with a crime of the content, nature and cause of the right, this is the basis for the defense of the defendant, the judicial organs have a statutory obligation to protect the defendant's right to know. The second paragraph of article ninth of the International Covenant on Civil and political rights stipulates that any person who is arrested shall be informed of the reasons for his arrest and shall promptly be informed of any charges against him when he is arrested. The second paragraph of article fifth of the European Convention on human rights stipulates that anyone who has been arrested should be informed immediately of the cause of arrest and the accused charges in the language he understands. Give the defendant full right to know, is mainly to the defendant informed of the accusation and reason, to ensure the effective defense readiness, but also to ensure that the defendant has to obtain the release ability and quickly take the necessary measures to defend. 2., the right to defense, that is, the law gives the accused to defend the defendant's legal rights in order to defend the legitimate rights and interests, which is the core of the defendant's litigation rights. In order to ensure the defendant's right to defense can be fully and effectively realized, International legal documents relating to enjoy a full defense at the same time the provisions of the defendant, the corresponding relief procedures were discussed: (1) the defendant has the right to be informed and have the right to have the right to defense, defense and defense lawyers to help, this is the two basic ways to defend the accused exercise right. Nowadays, almost all countries in the world have given the defendant the right to defend themselves. However, due to the lack of legal knowledge of the accused, and personal freedom is generally restricted to varying degrees, in order to fully exercise their right to defend, they have to resort to the defender who has legal knowledge to defend them. In addition, the lawyer's defense can also restrict the judicial personnel through exercising their defense function. Therefore, some of the provisions of the international legal documents, such as the "International Covenant on Civil and political rights" fourteenth paragraph third, "on the basic principles of" law of first "and the protection of all persons under any form of detention or imprisonment for the principle of" Eleventh paragraph first etc. are specified by the defendant litigation rights and law enforcement duty. (2) the right to obtain timely help from lawyers. Lawyers to participate in criminal proceedings, as soon as possible to the defendant in legal aid, and can effectively prevent the illegal acts against the rights of the defendant's occurrence, collect evidence in a timely manner, in order to fully protect the legitimate rights of the accused. To this end, the Third International Covenant on Civil and political rights, fourteenth articles, second provisions: a considerable time and convenience to prepare his defense and contact with his own choice of lawyers. The "basic principles" on the role of lawyers first further stipulates: all people have the right to request the assistance of a lawyer of their choice to protect and establish their rights, and at each stage of criminal litigation to defend. Article seventh provides that governments should also ensure that all persons detained or arrested, whether or not subject to criminal charges, shall have prompt access to a lawyer, and in any case not later than from the time of arrest or detention of 48 hours. (3) contact with lawyers and right to meet. The defendant through contact with lawyer, met with the situation, to help a lawyer as soon as possible to understand the case, timely to provide legal advice to the defendant, the defendant to prevent unfair treatment, and is conducive to the collection of evidence, which is the basis for effective play to the functions of the defense lawyer. Therefore, "basic principles" on the role of lawyers eighth provisions: arrest, detention or imprisonment, all people should have adequate opportunities, time and convenience, without delay in eavesdropping, after inspection and complete secrecy under the lawyer's visit, and contact a lawyer consultation, such consultations may be in law enforcement officers can see but listen to not see within the scope of. (4) enjoy the right to obtain effective defense. It is far from enough to stipulate the defendant's right of defense only by law, and the corresponding safeguard mechanism must be formulated to make the right of defense be effectively implemented in the practice of litigation. The "basic principles" on the role of lawyers pointed out: second governments should ensure that all people in its territory and subject to their jurisdiction, without distinction of any kind, such as race, colour, nationality, sex, language, religion, political or other opinion, national or social origin, property, birth, economy or other status discrimination based on about effective and equal access to counsel quick procedures and effective mechanism. Article twenty-first: the competent authorities have the obligation to ensure that lawyers can have sufficient time to consult the authorities which are owned or managed by the relevant data, files and documents, to enable lawyers to provide effective legal assistance to their clients. This opportunity should be provided as soon as possible at the right time. (5) when a lawyer fails to hire a lawyer and the case conforms to the legal aid condition, he has the right to obtain free legal aid provided by the state. Legal aid system is an important guarantee to realize the principle of equality before the law. The third paragraph of the fourteenth article of the International Covenant on Civil and political rights stipulates fourth legal aid for him in cases where judicial interests are necessary, And he didn't have enough money to pay for legal aid, and he didn't pay for it. The "basic principles" on the role of lawyers sixth provisions: no lawyers in the judicial case have the right to obtain according to the nature of the crime is assigned to one of his experience and ability of the lawyer, in order to provide effective legal assistance. If he doesn't have enough strength to pay for this kind of service, he doesn't pay. 3. opposing the right to self incrimination and the right to silence. This right is intended to protect the defendant's right to voluntarily or independently carry out statements in criminal proceedings, and to oppose obtaining confessions and other evidence by torture or other illegal means. During the trial, the illegal evidence shall not be taken as a basis; at the same time this right also includes the defendant the right to silence in criminal proceedings, the defendant's silence shall not be used to prove the evidence of guilt, not from the defendant to remain silent in this case derived from the opposite conclusion. The third clause of the fourteenth article of the International Covenant on Civil and political rights clearly stipulates that the seventh is not compelled to testify against himself or compel to confess the crime. 4. the right to obtain free translation assistance is one of the basic conditions to ensure fair trial. The third paragraph of article fourteenth of the International Covenant on Civil and political rights stipulates that the aid of interpreters will be free if he does not understand or will not speak the language used in the court of the sixth party. 5. the right to equal protection of the law. Article seventh of the Universal Declaration of human rights stipulates that everyone is equal before the law and enjoys equal protection of the law, without any discrimination. Everyone has the right to equal protection so as to avoid any discrimination against the declaration and any act of prejudice against such discrimination. The first paragraph of article fourteenth of the International Covenant on Civil and political rights stipulates that all persons are equal before the tribunal and the tribunal. This right expresses equality before the law, opposes any privilege and opposes any discrimination, which is the basic requirement of the principle of procedural justice. (two) the right of relief litigation and the relief procedure enjoyed by the defendant. The defendant's right of relief refers to the right of the defendant to act against the law enforcement organization, decide or judge, and require another special organ to review and change the right of action. These rights mainly include: 1. appeal right. The fifth paragraph of article fourteenth of the International Covenant on Civil and political rights stipulates that all convicted persons shall have the right to review their conviction and punishment in accordance with the law by a higher level court. This right that review by higher courts, can make up for the first instance judgment may appear due to the subjective factors and objective factors such as law privilege mistakes, to build a solid barrier for the maintenance of justice and the unity of the legal system. 2. the right of criminal compensation, that is, the defendant has the right to obtain economic compensation when he is detained, arrested or convicted. This is a basic right enjoyed by the defendant, a minimum compensation for the unjust treatment suffered by the defendant, and a basic element for the realization of a fair trial. Article eighth of the Universal Declaration of human rights stipulates that any person who is infringed upon by the constitution or the fundamental rights of the law shall have the right to be compensated effectively by the competent national court for such violations. The "International Covenant on Civil and political rights" fourteenth paragraph sixth: in a final decision in accordance with the person has been convicted of a criminal offence and according to the new or newly discovered evidence does suggest that the error occurred, his conviction was overturned or pardoned the case, because of the conviction and punishment should be in accordance with the law get compensation, unless it is proved at that time not to know the facts is not timely disclosure is entirely or partly because of his own sake. 3. the right and requirement of non custodial detention shall be examined and amended by the judge, and the right of compulsory measures and the right of bail should be cancelled. It is generally accepted by the international community that personal freedom of citizens is one of the most basic and primitive requirements in human life, and is one of the most important values of legal value. Even if personal freedom is not guaranteed, Not to mention the dignity of human beings and the exercise of democratic rights. Therefore, the use of coercive measures to restrict personal freedom of criminal proceedings of the international community has been cautious, and the provisions of the applicable procedures strictly, and give the defendant to request a change or cancellation request of compulsory measures and the right of getting the right to bail. The "International Covenant on Civil and political rights" Ninth paragraph third and fourth paragraph: criminal charges for any person arrested or detained shall be brought promptly before a judge or other authorized by law to exercise judicial power officials, and have the right to trial within a reasonable time or release. Persons awaiting trial detention should not as a general rule, but release may be subject to ensure the court at any other stage of the judicial proceedings, and at times to execute the judgment necessary for. Any person who is deprived of liberty by arrest or detention shall be entitled to bring a suit to the court so that the court can decide without delay whether he is legally detained and if the detention is not lawful, the order will be released. (three) the presumption litigation right enjoyed by the defendant and its relief procedure. The presumptive right of the accused refers to the right of litigation deduced from the criminal procedure law, which is the right form that objectively benefits the defendant through endowing the law enforcement agency with a certain legal obligation. Such rights mainly refer to: 1. presumption of innocence. The presumption of innocence is an international legal principle has been gradually formed and developed on the negative medieval inquisitiorial system on, it is the basic requirement, before the court shall decide whether the defendant is guilty, should be presumed innocent. This principle contains a series of procedural rules, mainly including: to prove the defendant guilty liability shall be borne by the prosecution, and to reach no reasonable doubt; the defendant the right to silence and the right to defense; when in doubt, it is in favor of the defendant (Note: Wang Yizhen: "foreign criminal procedure law", thirty-second page). The court's judgment on the defendant's guilt must be made through legal and due process. Thus, the principle of presumption of innocence greatly improves the defendant's position in litigation. After the Second World War, the principle of presumption of innocence was internationally recognized and stipulated in the international conventions. The first paragraph of article eleventh of the Universal Declaration of human rights stipulates that any person who is accused of a criminal offence shall be deemed innocent until he has been proved guilty by public trial in accordance with the law. The second paragraph of the fourteenth article of the International Covenant on Civil and political rights stipulates that a person who is accused of a criminal offence should assume innocence until he has been convicted of guilt in accordance with the law. 2. the right to independent, open and fair trial. The so-called independent trial refers to the judge at the trial only to obey the Constitution and the law responsibility, not accept intervention obligations, any department and forces outside of court shall judge judicial intervention; public trial is refers to the entire court to the public, the final court of criminal responsibility of the defendant made also to be public, except for the exceptions specified by law; justice refers to the justice in the production of legal judgment, should be based on the conclusions established after the prosecutor and defendant both full debate and cross examination of the objective facts and evidence, the trial judge not to prejudge the outcome of the case being First impressions are strongest. Shall not prejudice against both sides of any party, the judge should always remain neutral. These rights enjoyed by the defendant are the most basic standards for the protection of human rights established in the relevant international legal documents. "Universal Declaration of human rights" provisions of article tenth: everyone is entitled in full equality by an independent and impartial tribunal to a fair and public hearing, the determination of his rights and obligations and of any criminal charge against him. The "International Covenant on Civil and political rights" fourteenth paragraph first: put forward to any person any criminal charges or in the determination of his rights and obligations in a lawsuit in the case, everyone has the qualification by a lawfully established competent, independent and impartial court of justice and public hearing. 3. the right to avoid unreasonable delays, That is to say, the judge should make prompt and prompt decision when he makes the final judgment on the criminal responsibility of the accused and the guilty defendant to determine the penalty, without allowing undue delay. The third paragraph of the fourteenth article of the International Covenant on Civil and political rights stipulates that the trial time shall not be unreasonably delayed. (third). 4. the right to avoid double jeopardy, that is, the same act to the defendant, once convicted or innocent, will result in res judicata and shall not be tried or punished again for the same act. This right to maintain the judgment of seriousness, authority and stability, to prevent the defendant's rights because of repeated start unfavorable to the criminal procedure and unstable for a long time, avoid the defendant and therefore subject to unfair treatment, it is a right of social democracy and the rule of law generally gives the defendant. The seventh paragraph of article fourteenth of the International Covenant on Civil and political rights states that anyone who has been convicted or declared innocent in accordance with the laws and criminal procedures of a state shall not be sentenced or punished for the same offence. II Due to differences in history, culture, geographical environment, social economic development level, social political system, all of the criminal procedure law of the defendant litigation rights protection scope and form is not the same. After the amendment of the criminal procedure Chinese will punish crime and protect human rights organically, given the accused more extensive litigation rights (Note: Cheng Rongbin: "China criminal law course", page 108th.) Design, and a close and unique program relief mechanism, this in some ways has far exceeded the international standard, reflecting the Chinese government for the protection of human rights is highly valued and made great efforts to promote the protection of human rights. Such as China criminal law: the criminal suspect is interrogated by an investigation organ for the first time after the date or to take coercive measures may appoint a lawyer to provide legal help; cancel asylum review, compulsory measures and investigation, strengthen the status of litigation of criminal suspects; the defendant has the right to apply for withdrawal rights; identification of evidence; the implementation of the mode of trial, strengthen the defendant's defense ability; the defendant has the right to make a final statement in court; the right to read or listen to the court records, and request for supplementation or correction; has the right to appeal to a legally effective judgment or ruling; have the right to make a counterclaim to the private prosecutor in a case of private prosecution in the case of the death penalty; the provisions of the special review procedure of death penalty and so on a series of rich Chinese characteristics and mechanism of rights protection, and in judicial practice Play a more and more important role. On the other hand, with the increasingly mature litigation mechanism in the world, the convergence of criminal procedure law appears. The international standard established by the international community to protect the defendant's litigation rights is increasingly becoming the most universal criterion to judge whether a country's criminal procedure law is fair, scientific and democratic. Since 80s, the Chinese government has actively participated in the creation of international legal documents (Wang Yizhen: reference materials of foreign criminal procedure law, eleventh pages). In October 5, 1998, Qin Huasun, the permanent representative of the United Nations, signed the International Covenant on Civil and political rights on behalf of the Chinese government at the United Nations Headquarters. This shows the openness of the Chinese government to protect international standards of human rights. Although China has made great achievements in safeguarding and promoting the protection of human rights, the revised criminal procedure law basically conforms to the world trend of the development of criminal procedure law. However, needless to say, due to many factors, Chinese criminal procedure law on the protection of the litigation rights of the defendant, compared with international standards, there is a certain gap; on some of the countries have pledged obligations and our government signed the international convention is not fully reflected in the code of criminal procedure law. Therefore, there are still some problems to be solved in China's criminal procedure law concerning the defendant's procedural rights and procedural remedies: (1) the right to oppose self incrimination is not established. The ninety-third article of China's Criminal Procedure Law stipulates that the criminal suspect should answer truthfully the questioning of investigators. In addition, the criminal policy of "Leniency to the public and resistance to severity" in criminal justice in China means to some extent that the accused bears the responsibility of self incrimination in criminal proceedings. In judicial practice, the negative influence brought by this provision is that the phenomenon of extorting the accused's population illegally by torture and confession has been repeated, and it is becoming more and more serious. Obviously, the above phenomenon is completely contrary to the basic spirit of the privilege rule, which is one of the lowest standards of justice in international criminal justice. So whether it is from the State shall perform the obligation to determine the international convention, or from the current grim situation faced by the criminal justice in China are concerned, are necessary to the relevant provisions of the criminal procedural law the ninety-third adjustments, and further establish against forced self evidence of crime principle and corresponding legal rules, such as: the establishment of a defendant to obtain illegal methods of export supply to the exclusionary rule; the defendant should enjoy the right to silence and the right of body examination etc.. (two) the defendant should have the right to obtain counsel at any time and should further expand the rights of the defense lawyer in the investigation, review and prosecution phase. Although China's Criminal Procedure Law stipulates that the ninety-sixth article stipulates that lawyers have the right to intervene in the investigation stage, but there are many restrictions. Such as: the investigation organ shall present Provisions according to the circumstances of the case and needs; cases involving state secrets, the criminal suspect hired a lawyer and lawyer meets with the criminal suspect in custody shall be subject to the approval of the investigation organ. So that lawyers can not investigate in the investigation stage, can not check papers, investigators questioned the lawyer can not be present. In judicial practice, the lawyer's right of meeting is restricted and interfered by many human factors and can not be effectively guaranteed. It is difficult to play a role. This situation is far from the content of the international standards established "meeting should be carried out in secrecy" and "the accused should have full opportunity, time and convenient conditions to meet the lawyer" and so on. Since it has been recognized that the lawyers involved in the investigation, the investigation is to prevent the abuse of the right, promoting the procedural justice of the powerful means of relief, it is necessary in the criminal procedure law to establish the defendant rights lawyer help at any time, should also further expand the lawyer rights in investigation and prosecution stage of the review, such as give the defense lawyers right of investigation and evidence collection, evidence preservation, the right to apply for access to books and the right to change the mandatory measures such as the right to apply for. To ensure that lawyers can effectively play their role. (three) the accused should have the right to ask the judge to review the compulsory measures. As stated above, in accordance with international standards, the defendant enjoys the right to remain free from unnecessary detention and to require judges to review, modify, cancel coercive measures and obtain bail. That is to say, the general principles of criminal justice is not the defendant in custody before trial, must accept the judicial scrutiny, and must not allow compulsory measures will limit and deprive the personal freedom of the people as a means of obtaining evidence. In addition, determine the core position of judges in criminal proceedings and its commitment to the authoritative function of lawsuit, the judge of compulsory measures related to personal freedom review in full compliance with the requirements of procedural justice, and is conducive to the unity of the legal system of human rights protection. However, China criminal procedure law the right to arrest and detention decision, given to bear the accusation function, the burden of the procuratorial organs and the public security organs, the defendant has no substantive procedural remedy, the lack of necessary restriction mechanism. The allocation mode of judicial power makes the judicial operation have a strong arbitrariness, which directly poses a threat to the legitimate rights of the defendant, and has bred various malpractices in the judicial practice. Therefore, it is necessary to amend it. The choice of comparative rationality should be: the judge should exercise the power of examination by compulsory measures; the defendant has the right to ask the judge to examine the legality and impartiality of coercive measures. (four) the full realization of the principle of equality between prosecution and defense should be ensured. It is generally believed that, Create a form of justice and equal justice (Note: Pierre Leroux: "theory of equality", the Commercial Press, 1988 edition, page twenty-second.). As the equality principle in modern criminal procedure core mechanism, the prosecutor and the defendant asked both in the proceedings should be equal litigation subject, equal rights, realization of the so-called "equality of arms"; neither party may exert influence on the out of the ordinary judge; the judge should be strictly neutral, should be given equal attention on both sides of the litigation claim and the evidence; the judge has the obligation to ensure the full realization of the equality. Especially when the witness testimony and when asked, whether it is a witness for the prosecution or defense witnesses, whether the defendant or witness for the defendant witness, the judge should be given the same opportunities and conditions can not be proved, this thick and thin. However, due to the prosecutor Chinese in court but not bear the functions of prosecution prosecutor, or trial supervisor, is "standing judge", equality of the parties in the litigation status is hard to protect the so-called justice neutral judge avoid leaning to either side of the image, but also under strict supervision of the prosecutor constantly under attack and gradually lost its independence and convergence with the prosecutor litigation interests, so as to build the equal principle in modern criminal litigation procedures theoretical foundation, it is difficult to Chinese in criminal procedure law completely established. So, in order to realize the equality between prosecution and defense, to China current, also is a great reformation of procuratorial system originated from the former Soviet Union, especially to reposition the role and function of prosecutors in criminal proceedings, which is not for the lawsuit function of judicial supervision and complaint function set up separate completely. The institutional basis for the construction of the equality of the litigation structure. (five) the scope of legal aid should be expanded. After the amendment of the criminal procedure law China established the legal aid system, the public prosecutor in court cases, the defendant due to financial difficulties or other reasons did not appoint a defender, the court may designate a legal aid lawyer to defend it; is blind, deaf and dumb or minors and the defendant may be sentenced to death not entrusted to counsel for the defendant, the court shall designate a legal aid lawyer to defend its. Compared with the original criminal procedure law, it is undoubtedly of historic significance, but it still needs to be improved in comparison with international standards. First of all, should extend legal assistance to the defendant the legitimate rights and interests of the most vulnerable to infringement investigation, public prosecution stage; secondly, for all the defendants due to economic difficulties and does not appoint a defender, should not be given legal aid, to prevent the defendant because of poverty suffered unfair treatment, which is also in the criminal justice is an important aspect that can not be ignored the protection of human rights.