Comment on Tang Xinbo's case

This morning, lawyer Tang Xinbo of Beijing Kangda Law Firm introduced that "continuous investigation" and "supplementary investigation" belong to different legal concepts in different criminal proceedings. Continued investigation takes place in the investigation stage, and supplementary investigation takes place in the prosecution stage.

According to the provisions of China's Criminal Procedure Law: "The period of investigation and detention of criminal suspects after arrest shall not exceed two months. If the case is complicated and cannot be terminated at the expiration of the time limit, it may be extended for one month with the approval of the people's procuratorate at the next higher level. "

Lawyer Tang also said that after the case enters the stage of examination and prosecution, the procuratorial organ can ask the public security organ to provide the evidence materials needed for the trial according to the Criminal Procedure Law. If it is considered necessary to make supplementary investigation after examination, the procuratorial organ may return the case to the public security organ for supplementary investigation or conduct investigation on its own. . Today is the first day of the 20 13 new year, and it is also the day when the criminal procedure law was revised and officially implemented. This morning, Daxing Procuratorate initiated the first review of the necessity of detention according to the new criminal procedure law. The detained traffic accident suspect Li was released on bail pending trial, and Li was released home on the spot.

After the incident, Li took the initiative to report to the police and waited for treatment at the scene, which can be considered as a plot of surrender. Generally speaking, there is no need for Li to remain in custody. The lawyer said that the suspect can bring his own examination. Tang Xinbo, a senior criminal lawyer of Beijing Kangda Law Firm, said that the newly revised Criminal Procedure Law has added Article 93 "Examination of the necessity of detention": if a criminal suspect or defendant is arrested and does not need to remain in custody, the people's procuratorate should recommend the release or change of compulsory measures. Lawyer Tang introduced that the "review procedure of detention necessity" can be actively reviewed by the procuratorate, or the criminal suspect, defendant and their defense lawyers can apply for passive review. Lawyer Tang said that in China's criminal proceedings, the high pretrial detention rate is a common phenomenon. The introduction of the system of "review of the necessity of detention" will prevent extended detention and unnecessary detention, help protect the legitimate rights and interests of criminal suspects and defendants, and reduce litigation costs. With the approach of the 18th National Congress of the Communist Party of China, the new political and legal committee secretary of local government will face the test of "stability". There have also been new changes in the secretary of the local political and legal Committee. Traditionally, the secretary of the local political and legal committee is also the head of the local public security system, and has been criticized for "interfering with judicial independence" for many years. This year, the local party committees have changed their positions. Among the new political and legal committee secretaries, only eight are also the top leaders of the public security system, and the previous practice may be broken.

"This arrangement is a normal return to the constitutional status of the public, procuratorial and legal organs." Tang Xinbo, an agent of "Li Zhuang Case" and a lawyer of Beijing Kangda Law Firm, analyzed that if the secretary of the Political and Legal Committee is also the head of the public security department, a head of government functional departments will be formed, in fact leading the president of the court and the procurator-general of the procuratorate. Judicial power and legal supervision power are dominated by administrative power, not just intervention.

Professor Chen Guangzhong, the convener of the Legal Department of the Social Science and Technology Commission of the Ministry of Education, also suggested in an interview with the media, "I suggest that the Supreme Court conduct a nationwide survey of those criminal cases that leave room to prevent the occurrence of unjust, false and wrong cases like She Xianglin and Zhao Zuohai." He believes that the power of local political and legal committees to make decisions on this case should be abolished. Because this kind of power not only violates the basic principles of litigation and the principle of direct words, but also belongs to "trial without trial", once a wrong case occurs, it is difficult to hold the relevant personnel accountable. She Xianglin case and Zhao Zuohai case were decided by the local political and legal committee. This painful lesson should be carefully learned to prevent the system reform from repeating the same mistakes.

In view of the mid-1990s, Ren Jianxin, president of the Supreme People's Court, was also the secretary of the Central Political and Legal Committee. It has also been suggested that the secretary of the local political and legal committee can also serve as the president of the court, which can not only strengthen the party's leadership over judicial work, but also better safeguard social fairness and justice. "The attorney general and the public security bureau chief are not suitable for the secretary of the committee. Are intermediate links in law enforcement. If there is really no way to have one, the president of the court is the most suitable secretary of the Political and Legal Committee, which is always better than others. " Yang Lixin, deputy director of the Commercial Law Science Center of China Renmin University who worked in the Supreme People's Procuratorate, explained.

Liu did not give a clear answer to who will be the secretary of the Political and Legal Committee in the future. She believes that whether it is part-time or full-time, this is mainly personnel appointment. It is necessary to analyze the actual situation, which is not only related to the cadres' own ability and professional background, but also related to the coordination of the three departments of local public security law. However, in view of the fact that people in the judicial system also serve as the secretary of the Political and Legal Committee, Liu still affirmed that this is a promotion and enhancement of legal awareness, and it is no longer simply to maintain social order.

Tang Xinbo said that the coordination between the Political and Legal Committee and the public security and inspection departments should be more reflected in the coordination of the opposite work. The leadership of the Political and Legal Committee should be more reflected in the leadership of the public security department, whether the staff are competent, and the number of candidates, assessment, work effectiveness, performance assessment, etc., rather than the supervision and intervention of individual cases.

No matter who is in the department, there is a problem of dealing with the relationship between the three departments. It's not about which department will do it, but how to deal with the division of labor functions of each department after doing it. Zhao Xudong, deputy dean of the School of Civil and Commercial Economic Law of China University of Political Science and Law, was once the deputy director of the Civil Administrative Procuratorate of the Supreme People's Procuratorate. He emphasized that "it is very important to respect the independence of various departments".

Tang Xinbo said that the coordination between the Political and Legal Committee and the public security and inspection departments should be more reflected in the coordination of the opposite work. The leadership of the Political and Legal Committee should be more reflected in the leadership of the public security department, whether the staff are competent, and the number of candidates, assessment, work effectiveness, performance assessment, etc., rather than the supervision and intervention of individual cases.

No matter who is in the department, there is a problem of dealing with the relationship between the three departments. It's not about which department will do it, but how to deal with the division of labor functions of each department after doing it. Zhao Xudong, deputy dean of the School of Civil and Commercial Economic Law of China University of Political Science and Law, was once the deputy director of the Civil Administrative Procuratorate of the Supreme People's Procuratorate. He emphasized that "it is very important to respect the independence of various departments". Yesterday 10: 50, there was a shooting at Evening News Avenue in Changsha, Hunan Province. One person was shot in the face and the other was hit in the head by a brick. On the afternoon of the same day, Weibo, the official of Changsha Public Security Bureau, released a message saying that it was initially found that the case was caused by a debt dispute. At present, the Furong Public Security Bureau has taken control of both parties involved and set up a task force to thoroughly investigate the case.

This morning, the reporter of French evening contacted Li Jing, the brother of the wounded who was shot in the incident and the owner of a real estate company in Hunan. He said that in the process of real estate project transfer, there was a dispute with business partners. The two parties originally conducted mediation in Hunan High Court, but the other party suddenly got a "black hand", causing his brother's face injury. Later, his younger brother rose up and wounded the gunman with bricks.

The lawyer said that the gunman was suspected of intentional homicide.

This morning, the reporter interviewed Tang Xinbo, a senior criminal lawyer of Beijing Kangda Law Firm, on the criminal legal issues involved in this shooting incident.

Tang Xinbo believes that in this incident, the gunman Peng fired a gun at Li Daiyu continuously, and the first shot hit the other side's head. This kind of behavior has obvious intentional behavior of depriving others of their lives, not just learning from each other. Although Li Daiyu was not killed on the spot, her behavior constituted the crime of intentional homicide in criminal law.

In addition, gunmen openly stopped vehicles in the street and fired at each other's heads continuously, which had a very bad influence and should be severely punished. According to the criminal law, the gunman should be sentenced to at least 10 years in prison.

The gunman was suspected of excessive defense.

In response to the gunman Li Daiyu's behavior of knocking the gunman to the ground with bricks and then slapping the gunman's head many times, Tang Xinbo believes that Li Daiyu's behavior can be divided into two stages: one is to fight back after being injured and knock the gunman to the ground with bricks. This kind of behavior is to protect one's personal and property safety from infringement and prevent the gunman from being illegally infringed. This behavior conforms to the "legitimate defense" of the criminal law and should not bear criminal responsibility according to law. Forum background

65438+1On October 20th, the China Center for the Prevention and Research of Entrepreneur Crime of Beijing Normal University and The Legal Person magazine jointly published "20 12 Case Analysis Report of China Entrepreneur Crime Media". According to the report, the number of entrepreneurs who have been publicly reported by the media has increased for three consecutive years. Entrepreneurs frequently fall off their horses, which has become the focus of many media and society.

The first forum on the rule of law was held in Beijing on 20 13, jointly organized by Legal Evening News Agency and Kyoto Law Firm. The theme of the forum is "Entrepreneur's Crime Risk and Legal Prevention and Control". Well-known legal experts such as Zhang, Wang Sixin,, and other well-known criminal defense lawyers such as Yang Zhaodong, Zhu Yonghui and Tang Xinbo gathered together to conduct in-depth discussions and exchanges on the causes, social factors and criminal risk prevention of entrepreneurial crimes. ● News background

On May 14, a woman in Yichang, Hubei Province suddenly broke the escalator and fell to her death. On May 15, an intern female nurse in Shenzhen, Guangdong Province stepped out of the elevator when the elevator door suddenly closed and was crushed to death. 16 In May, a 6 1 year-old man fell into the elevator in the inpatient building of Yuxi Traditional Chinese Medicine Hospital, Yunnan Province, and stopped breathing after being rescued ... Recently, there have been many accidents in China that caused death by elevators. According to the Emergency Notice on Strengthening Elevator Safety issued by the Special Equipment Bureau of the General Administration of Quality Supervision, Inspection and Quarantine on May 17, these accidents exposed problems such as failure to implement the safety management responsibility of elevator users and inadequate maintenance work. Relevant data show that more than 80% elevator accidents are caused by the maintenance link, that is, the follow-up maintenance is not in place, which is related to the irregular operating procedures such as detection, maintenance and update of special equipment. At the same time, a large number of old elevators run with diseases, which increases the accident rate. However, in order to reduce the cost, some domestic developers choose light elevators regardless of the flow of people, load objects and the structure and function of buildings, which leads to frequent accidents. In this kind of accident, elevator managers and users such as elevator manufacturers, developers, property companies and community owners, who will be responsible for the "fatal elevator"? How to make property maintenance funds timely and efficiently used for elevator maintenance? These problems have become the focus of public attention.

Legal roundtable

Tang Xinbo, partner of Beijing Kangda Law Firm.

Tang Xinbo: Users are the first responsibility.

Whether the elevator can run safely is related to many factors, and the accident may be related to the elevator production and installation unit, but the elevator user should be the first responsible person. Only by determining the first responsible person can we help the victims to the maximum extent and avoid the phenomenon of wrangling.

Users mainly include the following five situations: self-management, elevator owner is the user; Commissioned by the management of property services companies, property services companies for the use of units; If the newly installed elevator is not handed over to the owner, the project construction unit is the user; * * * If there is property right, the owner clearly uses the unit through a written agreement; If the owner of the elevator rents, lends or otherwise transfers the right to use the place containing the elevator, it may be agreed that the user is the user.

For residential elevators, elevator users are actually property rights units, because most residential elevators are entrusted by the owners' Committee in the form of contracts to be responsible for the daily management and maintenance of elevators. Daily management and maintenance are very important for the safe operation of elevators. The first responsible person may claim compensation from the ultimate responsible party according to the accident appraisal of the authoritative department. Economic Observer reporter Shen Nianzu On May 29, the 20th day after zhou wenbin, president of Nanchang University, was taken away, the Standing Committee of Jiangxi Provincial People's Congress issued an announcement and decided to remove him from his post as a deputy to the National People's Congress. According to people close to the Jiangxi Provincial Commission for Discipline Inspection, the zhou wenbin case is related to the infrastructure and logistics support of the new campus of Nantah.

Tang Xinbo, a lawyer of Beijing Kangda Law Firm, who has represented many bribery cases in colleges and universities, said: "Because some leading cadres lack vigilance in thinking, they often treat this kind of holiday' red envelope' and' gift money' as simple human exchanges, and they often come to the net. This also led to the' high incidence period' of corruption crimes of some leading cadres during the festival. " "Power optionalization" is another feature of Liu Zhihe's bribery case, that is, he didn't grab benefits in the transaction, but waited for many years or even quit the power system to collect benefits under various excuses. After Liu Zhihe stopped paying attention to infrastructure for many years, he borrowed 200,000 yuan from an infrastructure businessman to invest in the stock market. According to informed sources, although Liu Zhihe wrote an IOU, he obviously had no intention to return it. As of the time of the incident, Liu Zhihe had not returned the loan. Lawyer Tang Xinbo believes: "This phenomenon is extremely harmful and extremely concealed." In the case of infrastructure corruption in colleges and universities, not only the principal, but also a large number of people related to infrastructure were dismissed. They often take advantage of the opportunity of land acquisition, expansion, reconstruction or decoration of the school to accept bribes from builders, contractors and engineering contractors, opening the door for them to undertake projects and pay fees. Debate 1: Is private letter auction legal?

Tang Xinbo (partner and lawyer of Beijing Kangda Law Firm): According to Article 6 of the Auction Law, "the auction object shall be the goods and property rights owned by the client or disposed of according to law", the client enjoys the ownership or disposition right of the lot. However, the auction of letters needs to solve two rights problems: first, the letter owner agrees and authorizes; The other is the consent and authorization of the copyright owner. As far as this case is concerned, the client has no right to entrust the auction of the letters donated by Mr. Jiang Yang, because Mr. Jiang Yang's gift is accompanied by the obligations of the donee, which is kept as a souvenir and cannot be used for other purposes or made public. After knowing Mr. Jiang Yang's statement, the auction company has no right to auction again, otherwise it will constitute * * * infringement, and it is wise to stop the auction immediately. Of course, not all letters cannot be auctioned. If the copyright owner agrees with the owner within the copyright protection period or the owner entrusts it after the copyright protection period, it may be auctioned.

Argument 2: Who should have property rights and privacy rights first?

Tang Xinbo: I think from the perspective of copyright infringement, letter auction can better realize rights. The author of the letter is the copyright owner, and the reading object of the letter is limited to the recipient. If you want to publish it, you need the consent and authorization of the author. Therefore, it is not so much a conflict between property rights and privacy rights as a conflict between ownership and copyright. Of course, the disposal of ownership shall not infringe upon the legitimate rights of others, including the copyright owner. Therefore, if the author's copyright is still in the protection period, it is of course necessary to obtain the consent and authorization of the copyright owner, otherwise it will infringe the rights of the copyright owner and cause a series of legal consequences.

Argument 3: Should the information of the auctioneer be kept confidential?

Tang Xinbo: China's auction law does not stipulate that the client's information cannot be made public. The confidentiality of the client's information is limited to the client's own requirements and is agreed by signing a confidentiality agreement with the auctioneer. According to the auction law of our country, clients are not allowed to bid for their own lots, and auction houses are not allowed to auction all their own lots. Therefore, starting from the principle of fairness, the auctioneer should explain the client's situation to the bidders so as to facilitate the supervision of the bidders and buyers. Of course, it can also be supervised by the industrial and commercial departments.

Experts suggest how to deal with celebrity letters being auctioned.

Tang Xinbo: For the auction house, it is necessary to strictly examine whether the client has the ownership and disposition right and confirm the legitimacy of the source of rights; Secondly, it is necessary to examine whether the copyright protection period of letters has passed, and if it is still within the protection period, it is necessary to examine whether it has been authorized by the copyright owner. The client should also pay attention to whether he has complete ownership and disposal rights and whether he has obtained the authorization or consent of the copyright owner. At the same time, as the market supervision department and the administrative department for industry and commerce, we should also strengthen supervision and require auction houses to submit relevant entrustment procedures and rights information as required. If there is no complete ownership and copyright disposal right, the auction house is required not to auction.