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Legal Practice Abiding by Legislative Minimalism: evaluation on Rules on Executing Criminal Procedure Law
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Zhang Jianwei
《China Law》2013年1期

Legal Practice Abiding by Legislative Minimalism: evaluation on Rules on Executing Criminal Procedure Law

Zhang Jianwei
Law School, Tsinghua University

Legal Practice Abiding by Legislative Minimalism: evaluation on Rules on Executing Criminal Procedure Law

  Our legislators have compromised to “legislative minimalism” for a long period when criminal procedure law was constituted in our country. “Legislative minimalism” refers that the legislation aims to generality and simplicity without the pursuit for details and completeness, based on political or other particular factors. It is also named as “appropriate roughness rather than focusing on details”. In our country, the legislative pattern is not represented from the legislation of criminal procedure law and also from the legislation of other laws. However, criminal procedure law is a kind of proceeding provisions. Furthermore, it is rich in specifications about proceedings. Therefore, explicitness and meticulousness could be operational. Even though criminal procedure law is quite specific, lots of judiciary explanations should be used for practical problems. Providing criminal procedure law is rather coarse, judicial and law-enforcing departments are required to constitute practical measures or there are more legal specifications to be supplemented, otherwise the new law might be difficult to be executed. Considering the reason above, the supreme people’s court, the supreme people’s procuratorate and other departments are demanded to specify relative principles for legal practice of criminal procedure law or to provide judicial explanations after the law was amended. Therefore, Rules on Executing Criminal Procedure Law has been published by the Supreme People’s Court, the Supreme People’s Procuratorate and other four departments together (“provisions” named for short in the following), in order to satisfy the practice of criminal procedure law.

  Although “provisions” actually are those specially for “problems in legal practice”, they are different from Enforcement Act of Criminal Procedure Law constituted and published in some countries and Taiwan region. The enforcement act is another law differentiated from criminal procedure law. “Provisions” are constituted by the supreme people’s court, the supreme people’s procuratorate, the ministry of public security, the ministry of state security, the ministry of justice and the commission of legislative affairs under the standing commission of national people’s congress together. The six branches above agree on some specifications for criminal procedure articles. “Provisions” are with an authority of explanation because the supreme people’s court and the supreme people’s procuratorate, which are those have authorities to provide judicial explanations, among these six departments.

  “Provisions” firstly were published on January 19th, 1998. The reason is that changes in the law were large and the regulations were not specific enough after the revision of criminal procedure law in 1996. In particular, there was a technological negligence caused by the legislation in terms since the constitution of the law. Therefore, these problems should be solved before enforcement. In addition, the supreme people’s court and the supreme people’s procuratorate commenced to form judicial specifications about hundreds of terms at once. Furthermore, the ministry of public security and other departments also drafted regulations in relation to criminal procedure law sequentially. Some of provisions were required for agreement, so as to be enforced in judicial practice. Since the amendment of criminal procedure law in 2012, the new rule, “provisions” came out on December 26th, 2012, in order to a demand for an agreement reached by relative departments. This mode seems to form a supplement to specifications of legislation. Some of them are the same to the law, for example, the term 32 is completely the same as that in term 43. The new provisions surely are added some new contents, particularly for clarifying articles in the amended criminal procedure law in 2012 before the new law would be executed.

  “Provisions”, the newly published document, include jurisdiction, defending, evidence, compulsory measures, recording, investigation, appealing, judgment, enforcement, treatment involved in property and other main parts in criminal procedure law, covering 40 items and a large range of contents. The 40 items, which are related to the amendment, mostly are involved in two critical points. The one is that a protection for appealing rights of parties. The contents in relation to this area mainly are involved in eight articles. These articles are in relation to an enforcement of defending rights (item five, six, seven, eight, twelve, twenty and twenty-seven). These items specify defending rights regulated in the amendment, in order to practice these rights. As for the compulsory measures, people, guarded in appointed houses, should not pay for fees (item fifteen). Regarding a treatment of property, close relatives and people in a close relation to crimes are confirmed as those with appealing rights for confiscation of illegal property (item 39). Furthermore, the range of defenders (people who cannot act as defenders) and joint-defense (one defender could not defend for both crimes and the accused who are in the same case but in cases closely interrelated) further are stipulated to be prohibited by “six departments”. The other one is that an enforcement of public security sectors. These items aim to clarity duties and rights of public security and judicial sectors. Except for regulations on appealing rights of parties, items basically are to identify duties and rights of public security, which covers two thirds of a whole content.

  1. Detailing the protection for appealing rights of parties through legal specifications

  The criminal procedure laws in all countries or areas have important norms for an evaluation of civilization. That’s a structure of the system to protect rights of parties. In particular, a protection for appealing rights of crimes and accused in criminal cases, clearly represents human rights protection in the country or society and the civilization in politician and the law. An amendment to criminal procedure law in 2012 shows that a progress in the judicial protection for human rights. However, an improvement just in legal documents evidently is not enough. Whether the law written in papers could enforced into practice determines an authority of the law in itself and whether judicial personnel could obey or execute the law and the limitation of legal rights. A specific law could prevent from non-feasance in judicial practice. In order to an enforcement of appealing rights of parties, “provisions” specify the defending rights and corresponding duties in public security and judicial sectors.

  In order to protect criminals and accused to attain legal aids, “provisions” regulate that sectors for legal aids could assign lawyers within three days when people’s courts, people’s procuratorate, public security sectors offer notices for legal aids. These sectors should notice the names of lawyers, their units and contact information to people’s courts, people’s procuratorate, public security sectors in paper. Therefore, the responsibility of legal aids sectors is identified, in order to prevent from an appointment of lawyers who provide legal aids delayed by legal aids sectors because of no explicit constriction. This delay might result in rights aided by lawyers to criminals and the accused could not be realized on time.

  In the criminal proceedings, the ranges of rights to know for parties, defenders, appealing agencies are involved in transparency in criminal justice. As for defenders, when to know and the range of rights to know are quite important for the preparation for defending and for the quality of defending. The item six in “provisions” regulates that defenders are able to attain the range of “relative information in cases” except for crimes involved in criminals at the stage of investigation. The range includes that main facts of that crime investigated, compulsory measures adopted, varied and removes for criminals, the limitation of investigation and custody for investigation sectors and so on.

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