After be being detained 5117 days, zou Junmin walks out of Fujian Province Fujian eventually on the west jail.
April 2004, because Zou Junmin traffics drugs crime put in prison. After appeal of ground of 14 years of unremitting, he on August 10, 2018 by the Fujian Province forensic amend a judgment makes senior people manage a hardship illegally, measurement of penalty also from the set term of imprisonment of life imprisonment instead before 2 years.
This year the whole nation " two meetings " go up, zhang Jun of chief procurator of top people procuratorate alludes in working report Zou Junmin case, will the typical case that corrects as unjust verdict.
However, super- period the Zou Junmin that detains 4386 days did not obtain a country to compensate for. On November 28, 2018, the national compensation that he mentions to Fujian tall courtyard applies for out of court.
Zou Junmin case is not an exemple. Henan farmer Song Yanglu is by change the original sentence from staking blame imprison a blame illegally, super- period detain 1351 days. Hubei businessman Luo Changna because 5 contract bilk cases, the set term of imprisonment that be sentenced 6 years, hind among them 4 by cancel, change the original sentence a year, super- period detain 4 years. The Song Dynasty, Luo Er's person applies for a country to compensate for, all be rejected.
Meanwhile, exceed a few more additionally period detain victim obtained a country to compensate for however. For instance of Zhejiang " Xiao Shan 5 youths record " , case of Fujian Huang Xing. Among them, huang Xing is by change the original sentence from staking blame imprison a blame illegally, be exceeded period detain 5841 days, obtain compensate 1.86 million yuan.
"Current, involve rehear change the original sentence to cause super- period the compensatory regulation of detain basically has a country to compensate for a law the 17th the 3rd, the end of the year published what judicatory explanation is opposite to have complement again 2015. " Gu Yongzhong of professor of academy of law of lawsuit of university of Chinese politics and law says, former regulation, the ability that only according to tries monitor rehear change the original sentence is innocent obtains compensate; Latter regulation, what the charge of share of change the original sentence of case classics rehear that count a blame and punishs does not hold water is OK obtain compensate.
Those ever were sentenced by forensic fault, experience exceeds period detain, but the victim of bad luck complex case that does not accord with afore-mentioned regulations, was blocked to be outside the gate that the country compensates for so.
On August 21, 2018, the Fujian Province is advanced people court judge reads rehear to adjudicate to Zou Jun Minxuan, blame of Zou Junmin that peddle poison is by change the original sentence manage a hardship illegally. Suffer the person that visit to offer a plan
Only innocent person ability obtains compensate
This year the whole nation " two meetings " go up, liu Shoumin of vice-chairman of bar association of delegate of countrywide National People's Congress, whole nation was referred " compensate for a law about revising country of < People's Republic of China > cogent safeguard party legitimate rights and interests " second reading. He thinks, active country compensated for a law to stipulate innocent detain is compensated for only, eliminated other and guilty but already caused actually super- period the case of detain, "No matter this is in on legal principle, still be from justice and fair value angle character, it is ill-considered. It is ill-considered..
Liu Shoumin offers way of modification country compensate accordingly, carry out those actually the punitive case after term of imprisonment exceeds change the original sentence, bring into a country to compensate for limits.
National compensation law of China is promulgated 1994, cent criminal compensation and administration compensate for two kinds. Criminal compensation is to show exercise is investigated, office of the procuratorial work, scheme that tries powers and authorities of office and detention house, jail government and its staff member violate exercise powers and authorities of office, violate property right of party person authority, money, cause the compensation that damage and offers.
Criminal compensates for a respect, compensate law listed the nation 1994 right of 5 kinds of person suffers encroach the case that can win compensation. Among them the 15th the 3rd regulation, "According to rules monitor rehear change the original sentence is innocent, original judgement penalty has carried out " victim, authority wins compensation.
"That is to say, outside removing the condition with innocent rehear, of the others not compensate. " explanation of some law expert, the principle that holds to at that time is " blameless person compensate for a principle " , only exception is minor offence is sentenced again to capital punishment.
"National economic atmosphere is bad at that time, compensatory ability is bad also; And people thinks, victim deliverance returns unfulfilment, do not have reason to compensate for guilty that one party more. " one once participated in a country the expert that compensate law legislation works says, the compensatory principle need at that time and the social condition photograph at that time suit.
However compensate law carries out the country only 4 years, fujian appeared after rehear change the original sentence still guilty, but still give compensatory case.
July 1991, the Zheng Chuanzhen that city makes the same score south the Fujian Province because blame of play the market, larceny is sentenced by court of justice of town of fierce of Fujian Province Shao set term of imprisonment 7 years, 2 careful maintain equal intermediate court of justice south original judgement. In March 1995, rehear of Fujian Province High Court the cancel when this case larceny, withhold blame of play the market, change the original sentence a year of set term of imprisonment. When releasing, he already was exceeded period detain 1638 days.
After be released from prison, zheng Chuanzhen applies for a country to compensate for to Na Ping quadrangle, the court adjudicates a cancel with rehear larceny, did not reject to compensate for for blame of Zheng Mo of change the original sentence.
Later, zheng Chuanzhen hits lawsuit to Fujian tall courtyard again, fujian tall courtyard with respect to this matter to supreme court ask for instructions. In August 1996, supreme court reply says, compensate law ruled the country mediumly 1994 " should understand be is to be aimed at specific the blame, zheng Chuanzhen larceny by cancel, what its larceny already carried out is penal, have the right that acquires national compensation lawfully. " this reply is collected " whole book of explanation of administration of justice of top people court and answer of ask for instructions " , as the complement that explains to law and judicatory.
Final, zheng Chuanzhen took the compensation of Fujian tall courtyard to decide a book, according to worker of before one year the forehead multiplies average daily wages with be being exceeded period the day number of detain, receive compensation 16501 yuan.
"The scholar begins the appeal later, if exceed period detain, should win compensation. " university of Chinese politics and law teachs Ying Song personally eventually year explanation, law should protect attainder, whether is party damaged, should serve as the level with whether offer a country compensation the most important.
Gu Yongzhong thinks, do not give compensation not to accord with constitution to ask. Constitution sets the 41st times, encroach attainder as a result of national office and national staff member and get losing person, have the right that acquires compensation according to legal provision. "Criminal law also has photograph of punishment of responsibility for an offence to get used to a principle. " Gu Yongzhong says, party ought to support originally minor offence light punishment, but was sentenced because of erroneous judgment felonious, inflict severe punishment, ought to compensate for.
2010 country when compensate law edits, criminal compensates for limits to be able to expand, after will be being arrested, investigation phase stops to chase after appeal to wait for a circumstance to bring into among them. Participate in castigatory expert introduction according to, at that time, he and partial scholar ever offerred to will exceed period detain compensation is brought into among them, did not succeed however. "But compensate is in the country after editing to develop towards result responsibility principle, that is to say, no matter the judiciary reachs its staff member subjective apiration how, should cause as a result only damage, be about to assume liability to pay compensation. This is the place of the progress that writes a law that. This is the place of the progress that writes a law that..
Wang Jianping is " Xiao Shan 5 youths record " one of 5 leading role. After experiencing career of 17 years of bagnio by innocent release, wang Jianping does poineering work with the investment of compensation of 1.96 million yuan of country of earning, become hang out one's shingle business partner. Data picture / Zhou Gang peak is photographed
Through judicatory the explanation enlarges compensatory limits
By 2015 " two tall " before relevant judicatory explanation comes on stage, national compensation law the 17th only condition that stipulated rehear change the original sentence obtains compensate the 3rd times: "According to rules monitor rehear change the original sentence is innocent, original judgement penalty has carried out " , the victim has authority to win compensation.
Liu Shoumin says, this one article stipulated innocent detain is compensated for, eliminated however guilty but super- period the case of detain, although do not have statistical data, but actual in the example that minor offence sentences again is not little, these victims cannot obtain compensate.
The Zhejiang that obtained change the original sentence 2013 " Xiao Shan 5 youths record " it is an exception.
In July 1997, the 5 people such as Chen Jianyang of desolate hill youth are accused to commit a taxi to rob, murder, be sentenced to rob a blame by Hangzhou town intermediate court of justice, 3 people are sentenced capital punishment, one person is sentenced stay of execution, one person is sentenced life imprisonment. Of the same age December, zhejiang saves High Court to make final judgment adjudicate, maintain original judgement.
After adjudicating become effective, 5 people are ceaseless appeal. On June 15, 2013, other combination of Zhejiang tall courtyard views law court, open rehear this case, among them two taxis are robbed case, a fact be cognizanced has by accident, not clear, evidence is not worth a fact be cognizanced. The two people in 5 people because this by acquittal; In additionally 3 people, two people obtain punishment one year because of larceny, because one person robs a blame to obtain punishment 3 years.
But the rehear change the original sentence after ten years, bring about 5 average per capita to be exceeded period detain, exceed the least among them period detain 5238 days, 6362 most days.
2013, the person such as Chen Jianyang is aimed at super- period detain applies for a country to compensate for to Zhejiang tall courtyard. Except entire case innocent Zhu Youping, Wang Jianping obtains compensate successfully more than yuan 190 outside, the 3 people such as the Chen Jianyang with innocent part won compensation likewise, 1.82 million tall yuan, 1.33 million low yuan.
From theoretic tell, the 3 people with innocent part are not accorded with at that time " innocent detain principle " , but the court still offers compensation.
On December 28, 2015, the supreme court, highest procuratorate " compensate for statute of case comfortable use about dealing with criminal the explanation of a certain number of problems " (next weighing " criminal compensates for an explanation " ) come on stage, regulation " the charge of share of change the original sentence of case classics rehear that count a blame and punishs does not hold water, imprisonment deadline exceeds rehear to adjudicate affirmatory term of imprisonment, the citizen is right exceed period imprisonment applies for a country to compensate for, ought to decide to give compensation. Ought to decide to give compensation..
After a few days, the supreme court compensated for Liu Gehua of council office director to have further explanation to this on the press conference, still will " Xiao Shan 5 youths record " compensatory circumstance labels typical case. He says, although be exceeded period the citizen of imprisonment is not devoid blame, but had not held water as a result of among them share charge, in the light of this kind specific the blame super- period detain forms innocent detain, ought to compensate for, explain " such regulations also are the response that carries out development to criminal compensation judicatory " .
The former assistant dean, Chen Chunlong that ever was in charge of adjudgement of Beijing country compensate is in court of this as senior as Beijing people " Chinese country compensation is talked " the point of view is similar. Chen Chunlong thinks, "No matter the victim has,do not have other mistake, break the law or criminality, its add up to right beneficial to all must not be violated encroach, those who be encroached is uniform authority gets compensatory. Those who be encroached is uniform authority gets compensatory..
"But judicatory explanation is not law. Compensate code decides the country ambiguous, forensic concern does not have legal basis, still won't adjudicate compensation. " one does not wish the jurisprudent of sign one's name expresses.
On November 24, 2015, top people court rejected Song Yanglu's country to compensate for application, mention among them " you are by same crime fact felonious instead minor offence... do not attribute the situation with rehear innocent change the original sentence " . Suffer the person that visit to offer a plan
Guilty fact is changeless, accusation by become light again: Not compensate
Had " criminal compensates for an explanation " , still a lot of experience exceed period the victim of detain cannot obtain compensate. Because of guilty fact changeless circumstance falls, although the accusation after rehear by become light again, the victim is unavailable also compensation.
Zou Junmin case is.
In December 2004, zou Junmin because fluid of inject of ketone of chloric amine of hydrochloric acid of buy in and sell at a profit, be adjudicated to commit the crime that peddle poison by intermediate court of justice of fontal state city, be in life imprisonment. After appeal,
After Zou Jun Minshen appeals to more than 10 years, fujian tall courtyard had review to this case 2018, the become effective before thinking adjudicates " guilty fact is clear, evidence is sufficient " , but applicable law is undeserved. Accordingly Jun Min of Zou of change the original sentence makes Fujian tall courtyard manage a hardship illegally, be in a set term of imprisonment 2 years, term of imprisonment comes from April 7, 2004 on April 6, 2006.
According to rehear measurement of penalty, zou Junmin already was exceeded period detain 4386 days, but the national compensation that its mention to Fujian tall courtyard applies for out of court. Of Fujian tall courtyard do not compensate for decision book to say, rehear court decision did not affirm Zou Junmin did not violate act or its violate behavior not to make crime, just conviction and measurement of penalty was made fluctuant, felonious instead minor offence, because " blame rehear change the original sentence is innocent " , do not grant to compensate for.
Zou Junmin's country compensate representative lawyer is not agreed with to this. "Be by change the original sentence by the accusation of cancel other charge, was equivalent to original sin name doing not have, had new crime. This accords with the requirement that charge of the share in judicatory explanation does not establish.
However he thinks, the application that the judiciary explains to judicatory too become rigid, bring about Zou to cannot obtain compensate finally: "Be in ' several blames ' on the problem, the judiciary thought to be sentenced so only several blames, some blames after rehear by change the original sentence innocent, super- period detained ability compensate. And Zou case has a charge only originally, not count blame, because this court thinks not applicable " criminal compensation judicatory explains " , do not grant to compensate for. Do not grant to compensate for..
The circumstance of Henan farmer Song Yanglu and proposal of Zou Jun Min are similar. 2000, the 7 people such as Song Yanglu carry steel tube, jump the knife stemmed the development business that defaults project money, blame of the kidnap that be sentenced, obtain punishment 5 years to differ to 10 years. After appeal, henan tall courtyard thinks statute of first trial comfortable use is wrong, cancel original judgement, staking change the original sentence is the blame to imprison a blame illegally, adjusted the measurement of penalty of person of each the accused, 2 term of imprisonment is highest years 6 months, avoid the least punish at criminal.
Compensate files Song Yanglu's state for many times by refus. On November 24, 2015, committee of supreme court compensation is in in rejecting its country to compensate for appeal advice note, write, "Because your department is same guilty fact by felonious instead minor offence, happening of term of imprisonment changes " , do not belong to the rehear change the original sentence that compensate code decides the country innocent case, "Although you were exceeded actually by detain time,rehear adjudicates affirmatory term of imprisonment, but the compensatory limits that does not belong to a country to compensate for code to decide. But the compensatory limits that does not belong to a country to compensate for code to decide..
Note trends is contracted break up a line
Charge is fixed, guilty fact decreases: Not compensate
Another doorsill comes from " criminal compensates for an explanation " in " partial charge by cancel " state. If charge is fixed,this is meant, partial crime fact also cannot be obtained to compensate for by cancel, for instance the Luo Changna case of Hubei.
In April 2004, because Luo Changna commits contract crime of fraud 5 cases, by court of district of summer of Wuhan city river sentence a set term of imprisonment 6 years, after appeal, wuhan quadrangle maintains original judgement.
2008, high Court appeal is saved to Hubei continuously after Luo Changna is released after serving a sentence. Till 2014, hubei tall courtyard just make rehear decision, made rehear adjudicate 2016: 4 in 5 contracts crime of fraud all because of the fact not clear, evidence is not worth and cancel, hold water together additionally, he obtains punishment finally 1 year.
At first, quadrangle of Luo Changna Xiang Wuhan applies for a country to compensate for, committee is compensated for to apply for to Hubei tall courtyard again after out of court. In requisition, luo Changna thinks oneself " 4 facts in the case do not hold water, already obtained innocent " , accord with " criminal compensates for an explanation " medium compensatory level.
But the application that Hubei tall courtyard rejected Luo Changna, say national compensation follows innocent detain principle, "Just assume liability to pay compensation in the country when the citizen that is detained is innocent only. Contrary, to having the person of guilty fact, although the judiciary was carried out to its (exceed period) detain, also do not assume liability to pay compensation. Also do not assume liability to pay compensation..
To this, chen Chunlong of former assistant dean ever wrote Beijing High Court, "Usually, the country assumes liability to pay compensation to because maintain factual mistake,causing a fault to sentence.
Liu Shoumin thinks, legal fact is the foundation of criminal case, the fact maintains a mistake, bring about law necessarily applicable mistake. In the past a lot of alleged " iron case " do not have however " ironclad proof " , for instance vocative auspicious straps design, Nie Shubin case to wait, some case are put possibly still in inquisition by torture to extort a confession. Below this kind of circumstance, be about to take doubt pain from unprincipled change the original sentence, get unjust treatment party behoove wins compensation.
On December 2, 2016, heibei deer spring, the happy event after Nie Shubin's father and elder sister are informed Nie Shubin's innocent message extremely and sob. Home Nie relative obtains national compensation to add up to more than yuan 2.68 million. New capital signs up for reporter Peng Ziyang to photograph
Another outlet
To by the country compensate law is mixed the 17th times " criminal compensates for an explanation " block the victim outside the door, law offerred an outlet: Talk things over solve.
Compensate law rules the country the 23rd times, "Compensate for voluntary mechanism to make compensatory decision, ought to listen to compensation adequately to ask the person's opinion, can request a person to compensate for project of means, compensation and compensatory amount according to with compensation the regulation of 4 chapters undertakes Benfadi talk things over.
"Xiao Shan 5 youths " rehear hind is guilty still the 3 people that catch compensation however, their national compensation decides the book mentions expressly is " compensate for through talking things over " , huang Xing case also is like this.
Huang Xing case is with " criminal compensates for an explanation " one of a few typical case that release at the same time. 1996, fujian youth Huang Xing is adjudicated to make staking imprison a blame blame, illegally by Fujian Province High Court because of two crime fact, put to death punishment postpone a deadline is carried out two years. 2015, blame of kidnap of the cancel after rehear of Fujian Province High Court, huang Xing is sentenced because of imprisoning a blame illegally set term of imprisonment 3 years, hind because be exceeded period detain obtains compensate 5841 days 1.86 million yuan.
Introduce according to participating in the lawyer Chen Jianhua of this case, huang Xing case negotiates a process in, the victim puts forward person freedom to damage to the Fujian tall courtyard that has compensatory obligation, spirit is damaged wait for compensation to appeal to beg, raise specific number at the same time, "Mental damages can talk things over, a bit similar civil case is mediated. A bit similar civil case is mediated..
With case the circumstance of bristly peak of person of another the accused and yellow identical. But die of illness in jail because of its, fujian tall courtyard is stemmed from sympathize with, the compensation that raises actively in Home Lin relative rose mental damages on amount, compensate for 1.29 million yuan finally.
"But talk things over solve mandatory without law, can get compensatory, want to view the decision that compensates for voluntary mechanism. " lawyer Wang Weihua says, for instance " Xiao Shan 5 youths record " , "Zhejiang tall courtyard is compensated for of one's own accord, it is to want to redeem social influence probably. It is to want to redeem social influence probably..
Wait for a person to Zou Junmin, Song Yanglu, Luo Changna, it is not easy to want to open this way. After Song Yanglu is released from prison, ever parted to file a state to tall courtyard of Luoyang quadrangle, Henan, supreme court compensate, 3 by refus.
Zou Junmin files a state to Fujian tall courtyard compensate. November 2018, fujian Province tall courtyard compensated for committee to contact him, after both sides meets, zou Junmin poured out his life current situation, to the dissatisfaction of 12 years of a miscarriage of justice, and the expectation to mental damages amount, but the other side did not make any reply. In December, zou Junmin received what Fujian Province tall courtyard gives out not to compensate for decision book.
"To Zou Junmin, there are two ways now, it is to carry explanation case, let its accord with innocent detain to compensate for a principle; 2 it is law of modification country compensation, always exceed period the entirely of detain gives compensation. " Zou Junmin's lawyer says.
Li Sanren of the maternal Shang Aiyun that vocative auspicious forces an attempt, father reveals these year of ticket that will stay to Beijing to appeal for help. These ticket are one part only. Data picture / Guo Tie shedding is photographed
The rehear that start already very difficult, not compensate cannot be justified or explained away
Central director Wu Hongyao helps look in law of criminal of university of Chinese politics and law, it is very difficult that instantly criminal case wants to start review. "This is not the 2 careful change the original sentence in common proceeding. " Wu Hongyao says, no matter the fact maintains applicable still law, if do not have major mistake, very bad review, so that once rehear is started, receive change the original sentence very easily, and this also meant a victim to get serious unjust treat.
According to criminal procedural law, want to mention criminal adjudgement monitor must have the following requirements: The first, mention the mechanism that the main body of rehear must be exercise jurisdiction and service personnel; The 2nd, must be the become effective judge that has a mistake truly; The 3rd, must by authority mentions the organization that tries monitor makes ruling book, decision rehear.
The threshold that this means the appeal person, party that applies for rehear to be faced with is quite high.
According to the data that publishs in bulletin of statistic of judicatory of courtyard of entire 2017 national law, in those days criminal case closes case many 1.84 million, criminal rehear closes case it is 2820, 0.15% what hold sum total only. Among them of change the original sentence, those who send heavy careful is respectively 1521, 245, occupy respectively than 0.08% with 0.013% . That is to say, of change the original sentence, of heavy careful, the proportion that holds rehear case number respectively is 53% with 8.6% .
In the case that already was corrected at present, brother's son of Zhang father's younger brother rapes murder to started rehear to use 9 years, vocative auspicious straps design to started rehear to use 18 years, nie Shubin case started rehear to use 22 years. Besides be exceeded period outside detain, these victims or their family member the life that cost went several years, seek one paper innocent court decision.
Zou Junmin to start review, tried hard 12 years. Since was detained 2004, he begins to write material, appeal, everyday outside the work time besides 8 hours, in every case is available, he is being written. Weekly, he is met to Fujian Province procuratorate, province senior people court sends a letter. Hour of his college good friend is paying close attention to the Fujian Province two courtyards, whole nation " two tall " leader member, every somebody responsibility changes, zou Junmin sends the material such as juridical copy clerk, apologetic word the past.
An old jail alarm cannot help persuading him: "Came 1976 from me this jail writes letter appeal with respect to somebody, but had never seen one reverses a verdict successful. But had never seen one reverses a verdict successful..
A favourable turn appeared 2016. At that time, an inquisitor of Fujian Province procuratorate noticed Zou case, report the case to highest procuratorate.
After this, before the error correction of Zou Junmin case is compared a lot of more successful. In those days in May, highest check sends a person to understand a situation to Fujian, book of proposal of review procuratorial work was made in April 2017 after, the supreme court asked Fujian tall courtyard undertakes checking to the case in June 2017.
On August 21, 2018, in the policeman office of jail of Fujian Province Longyan, came from the judge that saves tall courtyard read rehear criminal report to Zou Jun Minxuan. Zou Junmin says, that judge says to sentence a fault at that time, very regretful, "Connect an apology to be done not have " .
After freeing, hard life subsequently and come. During serve a sentence, zou Fu loses labor ability almost because of cerebral stalk, zou mother cries almost blind eye, zou Junmin sees a doctor for them without saving of a single cent or penny not only, his undergraduate course is graduate, read 3 each to take an examination of degree again in jail, cannot find decent job however. "Much this many days 4000, even if be in the factory making the clothing of Fujian charge for the making of sth. , be money of very big brushstroke. " Zou Junmin says.
