Table of contents and summary
[feature]
1. Great achievements of criminal law legislation in New China
Gao Mingxuan, honorary president, distinguished professor, doctoral supervisor of Institute of criminal law science of Beijing Normal University, chief expert of Beijing Normal University, honorary first-class professor and doctoral supervisor of Renmin University of China, honorary member of Academic Committee of China law society, honorary president of China Criminal Law Research Society, honorary vice chairman of International Criminal Law Association and member of China branch Chairman Yu.
This is Professor Gao Mingxuan's speech at the Symposium on "achievements and experience in the construction of the rule of law in New China" held by China Law Society on September 23, 2019.
[theme discussion: Theory and practice of procuratorial reform in the new era]
2. The leading role of prosecutors under the system of leniency of confession and punishment
Liu Hua, Secretary of the Party group and chief prosecutor of the people's Procuratorate of Jiangsu Province, and a second-class general prosecutor.
Content abstract: the implementation of the leniency system of confession and punishment has a significant impact on the judicial concept, Litigation Authority and working mechanism of the procuratorial organ. In this context, the expansion of prosecutorial power further consolidated the dominant position of prosecutors in the use of this system. However, under the system requirement of dialectical unity of objective truth and legal truth, the leading role of prosecutors should be based on facts and laws, and its path should include: leading investigation and evidence collection, playing the leading role of early intervention; advocating non custody litigation, playing the leading role of application of compulsory measures; correctly applying the right of non prosecution, playing the leading role of review and prosecution Function: put forward the sentencing suggestion of combining definite punishment and range punishment, and play the leading role of sentencing. However, the leading of the prosecutor is not arbitrary. The leading needs more supervision and restriction. It needs to respect the judicial jurisdiction of the court, the right of the criminal suspect to defend, the right of the defendant to defend and the right of the victim to participate, so as to strengthen the responsibility of the prosecutor.
Key words: pleading guilty, pleading for punishment, lenient prosecution, leading role, supervision and restriction
3. Research on leading cases in civil procuratorial supervision
Li Hao, Professor, School of law, Nanjing Normal University, researcher of China Institute of modernization of rule of law, researcher of Collaborative Innovation Center for regional development of rule of law in Jiangsu University.
Abstract: Handling leading cases is a new requirement of the Supreme People's Procuratorate for the procuratorial supervision of civil litigation. There is a certain connection between leading cases, guiding cases and similar cases, but they have their own characteristics different from these two kinds of cases. The leading cases have certain scarcity, and the leading cases in the procuratorial link are even more a scarce resource. Leading cases can be divided into high-end cases and ordinary cases. The effective way to find leading cases is to examine the guiding cases of the Supreme People 's Procuratorate and the Supreme People' s Court, analyze the influential cases and typical cases selected every year.
Key words: scarcity discovery method of leading cases of civil procuratorial supervision
4. On the practice of procuratorial public interest litigation
Liu Hui, Professor of the state prosecutor's college.
Abstract: the report of the Supreme People's Procuratorate on the procuratorial work of public interest litigation presents a panoramic view of the practice of procuratorial public interest litigation and provides a rare perspective of practice observation. There are two misunderstandings about Procuratorial public interest litigation: one is to evaluate the effectiveness of procuratorial public interest litigation system only based on the number of prosecution cases; the other is to question the legitimacy of litigation due to the large proportion of pre litigation procedures. The main reason for misreading is that we do not understand the principle of the two-stage construction of procuratorial public interest litigation. Different from other qualified subjects, the legal relationship of procuratorial public interest litigation starts from the filing process, not after the litigation department belongs to the court. Therefore, it is necessary to improve the litigation characteristics of the pre litigation procedure and clarify the effectiveness of the procedure. In the context of the rapid growth of the number of cases, we should pay attention to the legitimacy of the initiation of the procuratorial power. At the same time, we should adjust the dissimilation of the case structure through the improvement of the norms, instead of forbidding the handling of the criminal incidental civil public interest litigation cases.
Key words: Procuratorial public interest litigation practice observation pre litigation procedure clue source case structure
5. Some theoretical problems on the suggestion of pleading guilty and punishment
Liu Chen, prosecutor of the first public prosecutor's office of the Supreme People's Procuratorate, doctor of law;
Zhou Jian, director of the second procuratorial department of the people's Procuratorate of Hongkou District, Shanghai.
Content abstract: in the application of leniency system of confession and punishment, sentencing suggestion is the necessary prerequisite. The development direction of the precision of sentencing proposal is also supported by the theoretical and practical circles, but there are still many problems to be studied and clarified. In order to highlight the value of leniency system of confession and punishment, confession and punishment should be evaluated as a separate circumstance. In the evaluation of the circumstances of confession and punishment, we should adhere to the idea of systematization, and construct a scientific evaluation system of the circumstances of confession and punishment by defining the scope of concession, setting the overall upper limit of leniency, reasonably removing the overlapped parts of lenient circumstances such as surrender, confession, compensation for losses, etc. We should guarantee the effective legal help of the lawyer on duty, perfect the rules of sentencing consultation procedure, standardize the content and adjustment methods of sentencing suggestions, construct the sentencing consultation procedure in China, and ensure that the sentencing suggestions are carried out in the orbit of the rule of law. In order to protect the defendant's human rights, we should explore the appropriate reduction of the standard of proof of leniency and the application of the standard of advantage. In the case that the court refuses to adopt the sentencing suggestion of the procuratorial organ without reason and the defendant pleads guilty and accepts the punishment and obtains the lenient punishment and has no reason to appeal, the protest means should be reasonably used according to law to achieve the balance between justice and efficiency.
Key words: sentencing suggestion pleading guilty and sentencing negotiation proof standard protest
[special research]
6. Legal regulation and practical value of judicial discretion in Tang Dynasty
Zheng Xianwen, professor and doctoral supervisor of philosophy and Law School of Shanghai Normal University.
Content abstract: Tang Dynasty is a very clear and bright era of rule of law in ancient China. In order to make up for the lack of legislation, the Tang Dynasty also gave the judicial organs some discretion in the litigation trial. Therefore, the judicial officials of Tang Dynasty could exercise their discretion according to the principles of logical reasoning, public order and good custom, balance of interests and force majeure, so as to realize the justice of the trial. But judicial discretion is a double-edged sword. In order to prevent judicial officials from abusing their discretion, the Tang Dynasty regulated the judicial discretion from the system level, and set the judicial discretion in a reasonable scope. Judging from the handed down documents and the newly discovered documents of Dunhuang and Turpan, judicial discretion was widely used in various litigation activities in the Tang Dynasty. The reasonable exercise of judicial discretion can not only effectively play the active role of judicial officials, improve the efficiency of litigation and trial, and realize the case justice of judicial judgment, but also help to maintain the credibility of the judiciary and prevent the occurrence of unjust, false and wrong cases and major social risks.
Key words: judicial discretion, legal regulation, fairness and justice in Tang Dynasty
7. Crossing the gap between entity and procedure -- the first step of criminal integration
Li Yong, Ph.D. of Law School of Southeast University, special researcher of anti-corruption and rule of law research center of Southeast University, Deputy Attorney General of Jianye District People's Procuratorate of Nanjing City, and national expert in procuratorial business.
Content abstract: the concept of criminal integration has been widely recognized, but for a long time, it still stays at the level of concept appeal and macro advocacy, and there is still a long way to go in-depth. Now is the time to open the era of "deep integration". Deep integration is a high degree of integration and deep cross. The real high degree of integration and deep cross issues are mostly parasitic on specific legal disputes and practical issues, while the specific legal disputes and practical issues in the criminal field are all intertwined between entities and procedures. In judicial practice, there is no pure criminal substantive law or pure criminal procedural law. However, the reality is that there is a huge gap between the entity and the procedure, which is mainly manifested in the split of the theoretical research of the entity and the procedure and the split of the two legal systems. The deep integration and intersection of entity and procedure should change from macro narrative to micro proposition, from theoretical construction to specific interpretation, and the two legal systems from fragmentation to integration. The real trend of criminal integration should start from the deep integration of criminal entities and procedures.
Key words: criminal integration criminal substantive law criminal procedure law
8. Organizational law perspective on the change of the conference system of the State Council
Jia Shengzhen, lecturer, School of law, Civil Aviation University of China, doctor of law.
Content abstract: by examining the process of the change of the conference system of the State Council, it can be found that under the framework of the constitution of 1954, the plenary session of the State Council is in the core position. After the constitution of 1982 was formulated, the standing session of the State Council is becoming increasingly important, which in fact becomes the highest platform for deliberation and decision-making in the administrative system of China. The decision-making focus of the State Council has gone through the development process from "plenary meeting" to "prime minister's office + executive meeting" and then to "executive meeting", which is the result of the long-term running in between the practice of the State Council's daily work and the norms of the Constitution and the state Council's organizational law. The reason why the executive meeting of the State Council can "win" in the system competition is that it conforms to the leadership system and way of the State Council under the prime minister responsibility system. Under the background of comprehensively deepening reform and comprehensively promoting the rule of law, it is necessary to focus on the overall goal of the modernization of the national governance system, modify the organizational law of the State Council, and further improve the conference system of the State Council. The research of this paper shows that the operation structure and regulation of administrative power in administrative organizations with administrative decision-making as the core should be an important part of the study of administrative organization law.
Key words: organizational law of the prime minister's responsibility system of the plenary session of the executive session of the State Council
9. On the principle of imputation of administrative compensation in China
Wan Qianhui, PhD, School of law, Fudan University.
Abstract: the principle of imputation of administrative compensation is the basis of the whole procedure of administrative compensation. In many countries outside the country, the principle of imputation of fault is the main principle, and other imputation principles are the auxiliary. The principle of imputation of administrative compensation in our country has experienced the changes from relying on civil legal norms to relying on administrative litigation norms to relying on special national compensation laws. At present, an empirical mechanism of "imputation of illegal compensation" has been formed. However, there are many controversies in the theoretical interpretation of the principle of imputation, and there is a tendency of conservative contraction in the practical application. At present, the principle of imputation of administrative compensation in our country should continue to give full play to the advantages of the principle of imputation of violation of law compared with other imputation principles on the premise of following the established legal framework as much as possible. From the perspective of clearing the administrative litigation nodes and promoting the protection of the basic rights of citizens, this paper expands the interpretation of the principle of liability fixation, and at the same time, explains the possible negative effects brought by the expansion of the boundary of the interpretation of the principle of liability fixation with the assistance of judicial independent regulation and case guidance system.
Key words: principle of administrative compensation, principle of illegal liability, principle of fault liability
10. The standard of solving the conflict of legislative power between central and local governments in Canada and its significance
Zhang Peng, associate professor, China modernization Institute of rule of law, Nanjing Normal University.
Abstract: Canada's 1867 Constitution clearly states the legislative powers of the federal and local governments in the way of enumeration, but the legislative conflicts between the central and local governments are still common in the past 150 years. by