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Does the Lawyer 's Law and the Criminal Procedure Law Are "Peaceful"?

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[Abstract]:
CoreTip:Notlongago,thethreemajorprocedurallawsandregulationswerealsoincludedinthecurrentNPCStandingCommitteefiveyearsoflegislativeplanning,andareaclassoflegislativeprojects.Recently,someexpertssaidtha
Core Tip: Not long ago, the three major procedural laws and regulations were also included in the current NPC Standing Committee five years of legislative planning, and are a class of legislative projects. Recently, some experts said that in the face of the 2007 lawyers to amend the law, the Criminal Procedure Law (hereinafter referred to as the Criminal Procedure Law) is expected to accelerate the pace of revision. Obviously, how to clarify the content of the conflict, attracted attention.
 
In the debate on the academic circles, Professor Han Daanyuan, a professor of constitutional law, has reconsidered this issue from the perspective of constitutional history and constitutional texts. In his exclusive interview with journalists, his view is that in constitutional relations, the National People's Congress Hereinafter referred to as the "National People's Congress") is not the same organ as the Standing Committee of the National People's Congress. When the basic laws formulated by the National People's Congress are in conflict with the effectiveness of the non-basic laws enacted by the Standing Committee of the National People's Congress, In the old law "principle, through a reasonable legislative policy, the establishment of a mechanism conducive to the protection of the basic legal effect.
 
Retrospective constitutional history: the new law is superior to the old law principle can be applied
 
In the enactment of the "1954 Constitution", the legislator attached great importance to the constitutional authority of the supreme authority. Article 22 of the draft constitution (draft) has stipulated that the supreme organ of power of the People's Republic of China is the National People's Congress. At the joint meeting of the convenors of the draft groups of the draft constitution, the participants discussed the proposal to amend the "People's Republic of China National People's Congress is the highest authority of state power." From the formulation and revision of the relevant provisions, the framers and the participants are very concerned about the lofty status of the National People's Congress in the constitutional system, trying to clearly define the nature and function of the National People's Congress and the Standing Committee , From the institutional prevention of the Standing Committee may appear on the National People's Congress authority "violation."
 
The 1982 draft constitution stipulated that "the organs of the people exercising state power are the National People's Congress and the local people's congresses at all levels". The National People's Congress is the highest authority of the state, the unified exercise of the highest power of the country. This draft does not include the Standing Committee of the National People's Congress as the supreme authority of our country and does not stipulate the Standing Committee of the National People's Congress as an independent organ. Later, the reason why the establishment of the NPC Standing Committee as a permanent representative of the National People's Congress, mainly from some practical considerations.
 
In this regard, Peng Zhen comrades in November 26, 1982 at the Fifth National People's Congress on the fifth meeting of the "People's Republic of China on the draft amendment to the Constitution," a detailed description: China's national adults, the National People's Congress Not too small; but the number is not easy to carry out regular work. The Standing Committee of the National People's Congress is a standing organ of the National People's Congress. Its members can also be said to be deputies to the National People's Congress (NPC), who can meet frequently and carry out heavy legislative work and other work. Therefore, the proper expansion of the Standing Committee of the National People's Congress is an effective way to strengthen the people's congress system. In the discussion of the whole people, it was suggested that in expanding the functions of the Standing Committee of the National People's Congress, should fully guarantee the National People's Congress as the supreme authority of the status. Comrade Peng Zhen said that this opinion is correct, and the draft constitution of Article 67, Article 62 to explain the Standing Committee of the legislative restrictions.
 
In the 1954 constitution, the National People's Congress was the only legislature, and the Standing Committee of the National People's Congress could only enact decrees. Later, although the authority of the Standing Committee slightly expanded, but only to develop a part of the legal nature of the single-line regulations. To the 1982 Constitution, was given the legislative function of the NPC Standing Committee. Thus, the new provisions of the 1982 Constitution clearly expanded the powers of the Standing Committee of the National People's Congress.
 
However, after the expansion of the Standing Committee of the National People's Congress, especially after the National People's Congress and the Standing Committee of the National People's Congress have the national legislative power, whether the Standing Committee of the National People's Congress has the same constitutional status The answer is clearly negative. On the afternoon of April 12, 1982, at the third plenary session of the Constitutional Amendment Committee of the People's Republic of China, the Secretary-General of the Constitutional Amendment Committee, Hu Qiaomo, pointed out that this revision of the Constitution "strengthened the Standing Committee of the National People's Congress Status and role, but the NPC Standing Committee can not be completely with the National People's Congress together. " Therefore, in the constitutional status, the National People's Congress is the highest state power organs, the exercise of the highest power of the country, and the Standing Committee of the National People's Congress is only a permanent establishment, can not be called the supreme national authority. Constitutional status of the decision of the National People's Congress and the NPC Standing Committee is a different nature of the organs, not the same organ. "The new law is superior to the old law" principle is difficult to reasonably solve such as the new lawyer law and criminal action law conflict.
 
Analysis of the Constitution: the superior method is superior to the lower law principle can be applied
 
Then, "the upper law (basic law) is superior to the lower law (non-basic law)" principle, can solve the new lawyer law and criminal law effect of conflict? We first need to return to the Constitution and the provisions of the legal text.
 
"Basic Law" is a legal concept clearly stipulated in the 1982 Constitution of our country. The text is based on Article 62, paragraph 3, of the Constitution. "The National People's Congress exercises the following powers: (3) to formulate and amend the criminal Civil, national institutions and other basic laws ". As the constitutional text of the basic concept of the law is too simple, for its meaning and extension, the legal profession has been debated.
 
Han Dae-yuan that a law is a "basic law", the formal depends on the development of the subject, the content depends on the norms of social relations it is the importance and overall situation. According to the classification and analysis of the laws of the National People's Congress, the provisions of the "basic law" should be a major and overall matter in a particular area of ​​national political, economic and social life. Thus, "basic law" refers to the law enacted by the National People's Congress, which is later than the Constitution and higher than other laws that regulate the major and global matters of a particular political, economic and social life in the country.
 
"The basic law" of the importance and overall characteristics, it should be determined in the national legal system is second only to the Constitution and higher than other laws of a very important level. It should be said that this proposition is necessary to better safeguard the supreme authority of the National People's Congress, to protect the maximum effectiveness of the basic law and to safeguard the effectiveness and authority of the Constitution.
 
Although the constitution of our country has clearly stipulated the basic legal right of the National People's Congress, it is not uncommon in practice to develop the law by the National People's Congress. In some cases, Resulting in the chaos of the logic of the legal system. Especially in the determination of specific laws to develop the main body, there is often a certain degree of arbitrariness. Therefore, in the practice of legislation, it is necessary to define the connotation and extension of the basic legal right, and insist on the constitutional principles of the basic legal right of the National People's Congress to prevent the formalization of the basic legal right.
 
To find a solution to the path: or may apply the "special effect principle"
 
The National People's Congress is not the same organ as the Standing Committee of the National People's Congress. The constitutional text clearly distinguishes the different subjects of basic and non-basic laws. Therefore, how to correctly handle the relationship between basic and non-basic laws becomes a major issue that needs to be solved The
 
In the existing institutional framework, to solve the new lawyers and criminal law of the effectiveness of the conflict, you can choose a different approach. Zhang Yi, deputy director of the Legal Department of the Ministry of Justice, has proposed four solutions: First, to promote the National People's Congress to amend the Criminal Procedure Law, as soon as possible to introduce the Criminal Procedure Law amendments, the recent criminal law has been included in the five-year legislative plan; Second, by the National People's Congress Standing Committee for the introduction of new law law to develop relevant legislative explanations; Third, follow the 1996 Criminal Procedure Law on the application of Article 48 of the relevant provisions of the six ministries jointly issued a written interpretation, Fourth, according to the provisions of Article 55 of the legislative law, the Ministry of Justice to the Standing Committee of the Standing Committee of the National People's Congress submitted a written inquiry by the NPC Standing Committee of the Standing Committee of the Advisory Committee to respond to the form of new lawyers in the implementation of the problem The
 
In addition to the fourth solution in the level of effectiveness there are still questions, the first three solutions are feasible. In addition to these solutions, there is no other solution? Han Dae-yuan that can be based on basic legal and non-basic legal effect of the relationship between the "non-contradictory principle" and "special effect principle" to be resolved.
 
First of all, according to the "non-contradictory principle", the new law firm enacted by the Standing Committee of the National People's Congress can not modify the contents of the Criminal Procedure Law enacted by the National People's Congress, nor can it be inconsistent with the content of the criminal law as the basic law; Second, in practice, there is indeed a new lawyer law and criminal prosecution law inconsistent circumstances, the most effective way is to amend the relevant content of the Criminal Procedure Law as soon as possible. Although the revision of the Criminal Procedure Law involves some complicated problems, it is the most reasonable legislative policy to amend the criminal law in a timely manner from the fundamental value trend of maintaining the unity of state legal system and legal authority. This is the most effective way to solve the problems of academic controversy and lawyer law implementation, but also to maintain the basic legal effect of one of the basic forms.
 
Of course, when the amendment of the Criminal Procedure Law in the legislative policy problems, but also through constitutional interpretation or legal interpretation of the basic law to clarify the nature and effectiveness of the two legal content to solve the different understanding of the unity of law enforcement Provide a clear basis. If the legislature loosens the conflict between objectively existing laws, it is possible to encounter more and more complex problems in practice, and the result will inevitably damage the unity and authority of the national legal system.
 
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The main point of view on the relationship between the Code of Criminal Procedure and the Lawyers Law:
 
One point of view: from the effectiveness point of view, the two laws are the highest legislature to develop the law, in the same legal rank, with the same legal effect. In accordance with the provisions of the legislative law, with the legislation enacted by the legislature, the new law is superior to the old law, so the lawyer law priority apply.
 
In the text of our constitution, the laws enacted by the legislature are divided into two categories: "basic law" and "non-basic law." The National People's Congress has formulated the basic law. The Standing Committee of the National People's Congress can only formulate basic law Other laws. In the event of a conflict of validity in the event of a dispute, the principle of "superior law is superior to that of the lower law" should be followed and the criminal law should be applied.