▌ writes article ／ Chen Tao, Zhao Guohua (procuratorate of people of region of world of gold of city of Jiangsu province Changzhou)
A firm Ping Yibo rises again
China is famous week of actor of the show that take off a mouth establishs an experience is in the beauty " hold a gun experience poisonous case " in, just remove with check case delimit on full stop. Dan Yibo just made the same score to rise again, since Zhou Libo after going back to the motherland, it is first rather allow lawyer Mo Hu is lain between call each other names for nothing, accept new capital to declare again then " situation " column special interview, weigh its " hold a gun experience poisonous case " be suffer such-and-such circumvent.
Recently, this case wind and cloud rises again, become public opinion heat again. Did not establish wave case to phonate with car party Tang Shuang in the week of American attest, it is to be in first Zhou Libo of cannon of small gain dispatch, also accepted then " situation " special interview, tell about record of Zhou Libo record to send a course.
Tang Shuang expresses those who take a car to go up to the bag of drugs and firearms is Zhou Libo, and when such-and-such home be a guest, zhou Libo ever also asked for firearms to this person. Tang Shuang points out, the Ceng Ming after wife on record of Zhou Libo is sent tells him the car to the drugs that go up is Zhou Libo truly. And, by the firearms of ferret it is Zhou Libo is in such-and-such home what play that one. The meaning below character, the drugs in knapsack and knapsack and firearms, also be Zhou Libo.
After Tang Shuang's special interview broadcasts, broad netizens are commented on in small gain in succession, have those who queue up to support Zhou Libo, also have those who make known his position to support Tang Shuang. A netizen comment says well: "Suspense of this Sino-US in harmony is big, gut free and easy rises and fall labyrinthian and bizarre, after all who cries "Stop Thief" while being a thief, our wait and see what happens. Our wait and see what happens..
As the masses eating melon of unidentified truth, we want to know Zhou Libo holds a gun after all experience poison, also want to know why Tang Shuang didn't appear in court attest, but what we want to know more is: About Zhou Libo case, be in " situation " after the interview that undertakes to Tang Shuang is made public, does American check just have the possibility that sues Zhou Libo afresh? Want to answer this question, it is double and dangerous to must want to understand American criminal lawsuit to prohibit mediumly above all principle.
Prohibit double and dangerous principle
Be in early times of Greek, Roman law had had " prohibit double and dangerous principle " legal concept. BC 355 years, greek law sets " prohibit trying twice to same person with respect to same controversy " (Forbidthe Same Man To Be Tried Twice On The Sameissue) . The common law of 12 centuries admits England " it is double and dangerous to prohibit " . The 5th amendment provides American federal charter: "Any average per capita must not be forced because of same crime twice to suffer the risk on life or body. " (No Person Shall Be... Subject, for The Same Offense, to Be Twice Put In Jeopardy Of Life Or Limb. ) , american each city has similar legislation to set. U.N. " attainder and political right convention " the 14th the 7th specific provision: "Anybody already the law of a country mixes according to criminal program by conviction finally or of acquittal, must not try once more with same charge and punish. Must not try once more with same charge and punish..
About " it is double and dangerous to prohibit " the purpose of the principle, american academia basically has the following kinds of point of views (refer to Wang Zhaopeng: " American criminal procedural law " , beijing University press 2014 edition, the 322nd page) :
It is to prevent unjust verdict. If do not have the provision with prohibit double and critical,this kind of viewpoint thinks, national office can use its resource dominant position, make innocent person can be sentenced eventually guilty.
After if be in,the accused is acquited, still allow inquisitor to be able to be the 2nd times continuously with respect to same case, the 3rd, wait a moment the 4th times repeat sue adjudgement, till the guilty court decision that wins place to want till inquisitor, inevitable meeting produces unjust verdict.
the angle from the accused, if allow inquisitor to repeat ceaselessly,sue be equal to tell the accused its cannot be cast off forever by the fate with guilty court decision, most the accused may be accordingly in first time adjudgement flat surrender admit his guilt to cause unjust verdict thereby.
This kind of viewpoint to in fact innocent person, it is a kind of protection really, but to in fact guilty person, not applicable.
2 it is to prevent to try brings anguish. If do not have the provision with prohibit double and critical, inquisitor can repeat with respect to same case sue, the spirit that this meeting lets the accused is immersed in persistent angst, disturbed, humiliate, embarrassed and monetary abidance in defray, to the family member of the accused the friend also can cause the anguish on spirit.
3 it is to prevent to annoy the accused. If do not have the provision with prohibit double and critical, inquisitor can be depended on sue authority to annoy the accused continuously, the injured party (private prosecution person) pass possibly also again and again private prosecution in order to annoy the accused. Occasionally, inquisitor because of politics, religion or other purpose intent is annoyed or may retaliate the accused, it is fractionation of a thing 2, sue the money with using up the accused, energy respectively, use even repeat sue adjudgement, coerce advantageous to the accused witness comes ceaselessly judicial attest, achieve the goal that advantageous witness for the defence does not wish to appear in court.
In addition, height of modern society media develops, the medium that runs undesirable motive to acquited the accused, may use its resource to track mining old issue continuously, hope check alarm investigate continuously again tell defendant with recrudesce. Prohibit be being annoyed what double jeopardy can arrest pair of defendant continuously.
4 it is to ensure end sex of the court decision. After in the court the court decision decides, if can try to sue again with respect to same case, person witenagemot loses the confidence of pair of judicatory programs, can feel without what lawsuit is practical. It is double and dangerous to prohibit so, be equal to even if be in ensure end sex of the court decision, promote judicatory the lawful sex of the program.
Sue Zhou Libo afresh?
Return the query of preamble, after the interview that undertakes to Tang Shuang is made public, does American check just have the possibility that sues Zhou Libo afresh? Someone may say, were you told it is double and dangerous to prohibit? American check just cannot be sued afresh for certain. Fasten rapid move to make conclusions first, let us view American federal supreme court and each state court first the regulation of double to prohibiting dangerous principle. (cite ibid)
American federal supreme court to " it is double and dangerous to prohibit " issue calendar classics struggles, took several kinds of point of views early or late, but still adopted finally " important document is included say " .
American federal supreme court was adopted in Blockburger V.U.S case " important document is included " academic, express early or late 2 appeal to any tell a way the important document that asks to prove, include another tell a way of important document all, criterion hind appeal to those who bear double risk to prohibit, do not suffer otherwise prohibit.
For example, after the car of other leaves, Zhang Mou will be arrested, inquisitor sues Zhang Mou " blame of use theft car " , zhang Mou admits his guilt. Inquisitor of after the event sues defendant again " larcenous car blame " , inquisitor advocates both is different from one case.
Federal supreme court thinks, "Blame of use theft car " , the requirement proves " did not acquire a vehicle advocate agree " , " obtain and use a car " ; "Steal a car " outside the same important condition that the blame proves except the requirement, only many " the intent steals " important document, because of one blame form important document element to be covered completely for another blame place, maintain so early or late 2 appeal to accord with " important document is included " law, inquisitor must not be sued again " larcenous car " blame.
In Harris V. In Oklahomo case, federal supreme court enlarged the cognizance limits of same case further. This case the accused kills the victim when rob, because this is sued " felonious killing " (Felony Murder) blame (weigh fault at making namely other is sent to die in Cheng) , forensic court decision is guilty. Later, inquisitor is sued again rob a blame. If include rule according to important document, the important document of felonious killing blame is " when be specific and felonious behavior " " send other to die " , not with " rob " for important document; Conversely " rob " the important document of the blame also does not include " send other to die " , so both is not " important document is included " .
But federal supreme court not so think, postmortem of federal supreme court finishs sth true important condition, think to appeal to first " felonious killing blame " hold water, it is the felonious behavior that is based on the accused to rob, appeal to after place " rob a blame " important document is completely appeal to first " felonious killing blame " be covered, because this court decision robs a blame,do not sue so that be again.
Of course, this also is not to do not have exception. Federal supreme court also thinks, if accord with exceptional case, should allow to try to sue again. Include: Inquisitor is done not have prevenient appeal to chase after appeal to more serious crime, because more serious crime fact has not happen,be, or the government organization has investigated the guilty fact that still cannot discover this are more serious carefully. Zhou Libo case does not accord with these two exceptional case apparently.
As to American state court, the United States has 30 cities to adopt as identical as federal supreme court " important document includes theory " , the others city is adopted commonly " same episode is academic " . Alleged " same episode " academic, basically be to point to early or late 2 those who appeal to sue a fact to whether come from the social fact at same base, if come from same social fact, criterion hind accuse for double jeopardy place prohibits.
Having a bit must want to make clear Hunan, the effectiveness that American federal supreme court adjudicates is to reach Yu Quanmei of each city. Federal supreme court is ensured to what the accused place builds, each city can establish higher level only, and cannot establish lower level.
Will look on put together, no matter be a basis " important document includes theory " or " same episode is academic " , unless discover new guilty fact, otherwise according to present case, tang Shuang's attestation can prove firearms and drugs are Zhou Libo very it's hard to say, the attestation of bright of even if the Tang Dynasty forms new evidence to prove firearms and drugs are Zhou Libo, american check also just cannot undertake prosecution to Zhou Libo afresh, the court also cannot undertake convictioning sentencing to Zhou Libo again. Prohibit the harrass that the main effect of double and dangerous principle protects a citizen not to get this kind of unending state power namely.
Be worth what carry is, to felonious the accused, general component is criminal lawsuit of the United States 3 phase,
The first phase is big jury (Grand Jury) level, federal law and the city that arrange an in part provide felonious case, after need passes big jury examine and verify, ability is sued, the purpose depends on preventing inquisitor excessive to be sued all right;
The 2nd phase is prejudication (Preliminary Hearing) level, the evidence that check of examine and verify just provides is lawful. Differ with adjudgement, its purpose should be denied in the decision only want the accused to accept formal adjudgement order. In this phase the accused can entrust a lawyer, can quote him proof is innocent;
The 3rd phase is substantial cognizance phase, both sides dominating debate parts to have alternate inquiry with respect to the evidence of his evidence and the other side, convince jury hard. Zhou Libo case is terminative at the 2nd phase namely prejudication phase, that is to say, this case has not entered substantial cognizance, by cancel.
Why should highlight this problem? Involve here prohibit double and dangerous principle and be related manage no longer the distinction of the principle.
Ying Meifa is a country it is double and dangerous to prohibit, mainland law fastens what the country says to manage no longer for be related. Alleged be related manages no longer principle, it is to point to pair of same act, after the adjudicative become effective that the court makes, outside having a regulation additionally except law, must not be a person to be chased after all right again to going appeal to and try.
Prohibit double and dangerous principle, it is to point to a person to be or try for many times or cannot be punished because of same travel.
The distinction between both basically is applicable premise differs: Be related manages no longer the premise with applicable principle is the court makes become effective judgment; Prohibit of double and dangerous principle applicable do not make become effective judgment be premise with the court, wanted judicatory program to had arisen to the accused person only " dangerous " , criterion the accused person not merit the 2nd " dangerous " .
This shows, although Zhou Libo case did not enter essence to try level, jury did not enter a judgement, but suffer euqally " it is double and dangerous to prohibit " principle protection.
Well-known, the principle with prohibit double and dangerous without establish in procedural law of our country criminal, long-term since the guiding ideology in judicatory practice is " be practical and realistic, wrong surely correct " , but such guiding ideology can not ensure " national esteem and safeguard human rights " implementation.
In Chen Guang of no less than old gentleman Ceng Yan: "Our country already signed U.N. " attainder and convention of political right international " , convention ' one blame not 2 careful ' the principle ought to be admitted. " (in referring to Chen Guang: " criminal procedural law " , beijing University press 2005 edition, the 385th page)
The author thinks, the premise with ought to prohibit double and dangerous in establish lays pattern of exception of be patient of, right with the fact the innocent court decision that makes for inadequacy of not clear, evidence, when discovery new evidence proves the accused person is guilty, not when change the original sentence indulges crime probably, can allow to be chased after all right again appeal to.
Actually, even if is in flower beauty the law is fastened, in recent years, double to prohibiting dangerous principle also had the sign of lift a ban gradually. England " 2003 criminal judicatory law " regulation: If strong new crime evidence is found, public prosecution just can ask to have review a case.
But applicable this exceptional condition is quite slashing. Be like: Killing, man slaughter, rape is shared in England and Cambria, peddle poison and arm rob wait for 29 kinds of crime to be able to mention to try afresh, but applicable limit requirement includes (1) want innocent to already was being sentenced person reopen investigation, must exist go against by acquittal of the person " new and the evidence of be convinced making a person " ; (2) must classics chief procurator personally written agree, and pass a society even of public interest examine; (3) before having review, the court must reach unanimous opinion with respect to new evidence; (4) to any innocent court decisions, the requirement is innocent court decision by the application of cancel mere be confined to. (refer to Li Fenfei: " " it is double and dangerous to prohibit " the development that the principle is in England " , carry " Chinese inquisitor " 2007 the 1st period. )
The motion picture that does not know everybody has seen Wu Mengda act the leading role " guide igneous news wire " .
Film was told about because the Zhishu that amounts to personate by Wumeng is painful break love daughter, and Hong Kong " one blame cannot 2 careful " law exemple gave however in those days the right that fierce apprentice is at large, under anguish of all the different kind, zhi Shuchuang uses hostage of bomb hold sb under duress into the TV station, the intent makes governmental high level pass " one blame two careful " law exemple.
That word of the Zhi Shu in film, still let my remain fresh in one's memory up to now,
"... the law exemple of original Hong Kong, same the blame is not OK accuse same individual twice. The lawyer says to calculate that murderer personally to admit one's guilt, the court can not sentence him guilty. Why can Hong Kong have so foolish law routine? ! !!
