Tao Weijun
" lawsuit of people procuratorate criminal is regular (try out) " (next weighing " regular " ) the 405th regulation: "People procuratorate according to criminal procedural law decision of the 171st the 4th regulation does not sue, in the evidence with new discovery, accord with when sueing a condition, can to sue. " because evidential inadequacy, fact is not clear,this is procuratorial work mechanism and after impeach does not appeal to, the case that prosecutes because of additional new evidence all right again made specific provision. But in practice, whether does the case that after appealing to to this kind of impeach, decides to sue again need cancel not to sue a decision so, put in two kinds of different point of views:
A kind of viewpoint thinks, ought not to not sue a decision cancel is so. Reason is, it is a basis " regular " the 424th regulation, cancel of the ability when the procuratorate is not sueing a decision to have a mistake truly formerly only does not sue a decision formerly, and sueing a decision what impeach does not appeal to is to be based on insufficient to original case evidence current situation and make lawfully, be not wrong decision; 2 it is to consult top people court about applicable " procedural law of criminal of People's Republic of China " the explanation sets the 244th times, do not need cancel, the case that does not prosecute a decision formerly and reason are stated in needing to decide in new prosecution only can.
Another kind of viewpoint thinks, ought to cancel does not sue a decision formerly. Reason is, it is tell from legal principle, to same case, the decision that become effective effectiveness does not have again while be patient of opposes two kinds perhaps adjudicates existence. According to " doubt blame from without " principle, impeach does not sue a decision to hold hypostatic punish concurrently (declare party is innocent) with program punish (end criminal litigation) two powers and functions, no matter reason is to be chased after afresh appeal to guilty suspect or reinstate criminal lawsuit, ought not to appear in same case two kinds of contrary decisions, reason ought to cancel does not sue a decision formerly; 2 although,be " regular " the 424th regulation, cancel of the ability when sueing a decision to have a mistake truly formerly only does not sue a decision formerly, but in criminal procedural law " have a mistake truly " the meaning is relatively rich, criminal procedural law set 5 kinds of condition the 242nd times, among them the first is namely: "The fact that new evidence proves original court decision, ruling is maintained has a mistake truly, the likelihood is affected conviction of measurement of penalty. " visible, the fact that should not sue a decision to maintain formerly only and true case condition not agree with and affected conviction of measurement of penalty, all belong to " have a mistake truly " decision, ought to give cancel.
To this, the author compares opinion of approve of latter, reason is as follows:
The basic law that accords with criminal procedural law manages. Criminal procedural law and " regular " after all appealing to to impeach, additional new evidence is sued again whether ought to cancel does not sue a decision to make specific provision formerly, reason above all ought to the fundamental of procedural law of according to criminal makes basic valuation. Criminal proceeding should be abided by strictly " be related manages no longer " principle, once the judgment of become effective or decision are made have established power namely, outside removing the interest that is the accused person or special status, because be the same as be related fact,cannot try to the accused person. Among them " be related " it is to point to, same contentious case perhaps says the same crime fact that person of same the accused is accused, because discover new evidence is negative,cannot fasten " be related " . Since be based on " be related " do not sue a decision what had had power of hair become effective, mean the criminal lawsuit that is aimed at same case to had been stopped. Reason wants to reinstate criminal lawsuit afresh, ought to not sue decision cancel will so, will be not sued status change of the person is the accused person.
Conduce to the implementation of value of criminal lawsuit justice. The basic value of criminal proceeding is justice and efficiency. The body of procuratorial work of requirement of criminal suit value of justice and efficiency is true the quote that fulfills criminal case is compulsory, mechanism of supervisory public security is comprehensive, lawful, effective exercise investigates authority, the oldest rate is close to nitty-gritty. If necessary go back complement is passed to investigate a program inside legal time limit, the case still cannot achieve those who sue a condition, ought to make impeach do not appeal to a decision, let be not sued of suit of job of person accessory punishment negative tired in break away from, return to normal the life. So, the requirement that reinstates criminal proceeding afresh ought to more strict, the new evidence that discovers namely must prove not to sue a decision formerly " have a mistake truly " , and so called " have a mistake truly " must be the factual photograph that does not sue a decision to maintain formerly has a mistake truly at case truth relatively, such, applicably " regular " the 424th regulation, cancel does not sue a decision.
Be helpful for what the standard sues afresh examining a program. Although criminal procedural law sets to new evidence discovers after impeach does not appeal to, accord with when sueing a condition can recur to public prosecution, but the conduction program to case of recur to public prosecution, examine time, arrest measure applicable wait to all did not make proclaimed in writing set, existence legislation is blank. Come round to look with respect to eye, what our country adopts is to adopt restriction " new evidence " limits, discovery was affected whether time, badly conviction the means such as measurement of penalty comes true, but in view of " new evidence " the ambiguous sex of limits and judge whether serious effect to conviction the subjective sex of measurement of penalty, the effect is not ideal. In practice, deal with what prosecute a case to assure to discover new evidence is new lawfully, some meetings adopt cancel not to sue decision hind to undertake according to case of new first instance public prosecution the means of the case is accepted as new case sufferring formerly, but it is OK still to whether be meant so 3 times complement of two delay, go back is investigated. And will original impeach does not sue decision cancel, can examine on the foundation of original case on one hand sue, accept the restriction that twice go back complement investigates same case and cannot again go back complement is investigated, this more accord with " regular " legislative spirit; The reconsidering check that can assure public security institution on the other hand counterpoises and the appeal of the injured party counterpoises, do not sue the supervisory mode of the decision formerly as to cancel of proper motion of procuratorial work mechanism, can go up carry one class to will not sue authority of proper motion cancel to hand in by exercise of mechanism of ranking procuratorial work, the interior that carries procuratorial work scheme supervises the proper sex that achieves influence exercise.
(writer unit: Procuratorate of people of the division in Chongqing city change)
