Argument on the Openness of Criminal Proceedings

Author: Xu Hennan
Publisher:
Publishing Date: 2002-11-01
Features: This book is the research outcome of the 2000 collaborative project between the National Prosecutors College and the Ford Foundation titled "Research on the Openness of Criminal Procedure." Openness and transparency are topics with a contemporary character and constitute an important component of the power operation mechanism in modern society. The openness and transparency of procedures contribute to achieving substantive justice and procedural fairness, serving as a crucial guarantee for judicial justice. However, in traditional litigation theory, the principle of procedural openness has not been a mainstream research approach or a dominant value standard. Although the requirement for procedural openness is somewhat addressed in other theories, its theoretical origins are far less profound and readily available compared to concepts such as procedural justice and procedural fairness. In judicial practice, the principle of openness is typically implemented and reflected only in the trial phase. In such circumstances, constructing and arguing the issue of procedural openness in criminal litigation from a systemic perspective is both highly necessary and somewhat challenging. From our reflections on this topic, we have gained several insights. First, this topic has introduced us to a new research perspective: through the study of openness, the research on procedural issues can be broadened, aligned with the exercise of state power and the process of national rule of law, thereby entering a systematic thinking space. Second, the proposal and resolution of openness issues present strong technical requirements. As part of empirical research, this methodology is something we should advance, and it is also what legal professional training institutions like ours advocate. Based on this understanding, we undertook and preliminarily completed the research on this topic. The content of this book is divided into two parts: First, it provides a preliminary argumentation and institutional construction for the principles of procedural openness in criminal litigation. This part explores fundamental issues such as the legal rationale for openness, its value, the objects and content of openness, and its principles. Second, it conducts a specific analysis of openness issues in criminal litigation, divided into three phases: pre-trial procedures, trial procedures, and execution procedures. From the perspective of openness, it examines the transparency of investigative procedures, the openness of prosecution procedures, and the participation of relevant personnel in execution procedures, proposing corresponding institutional frameworks. This book has the following characteristics: (1) It is the first time in China that the issue of openness has been introduced into litigation procedures for comprehensive argumentation and research, rather than being limited to the theory and practice of trial openness; (2) It provides a preliminary argumentation for the basic theoretical issues of procedural openness in criminal litigation, including a careful analysis of the connotation and extension of procedural openness, its content and objects, its value and principles, laying a foundation for further research on the openness of criminal procedures; (3) It extensively cites provisions from United Nations documents related to procedural openness and specific practices of other countries, systematically analyzing China's criminal litigation procedures from the perspective of openness and proposing institutional frameworks for improving specific investigative actions and prosecution procedures. From another angle, it makes a valuable exploration in the construction of the legitimacy of China's litigation procedures. Due to the author's limitations in theoretical foundation and research capabilities, as well as constraints in available materials and writing time, it is inevitable that errors and shortcomings exist in this book. In the research process, due to the lack of relevant achievements to reference and guide, as well as the need to balance theoretical research and institutional analysis comprehensively and appropriately, we felt somewhat overwhelmed. Therefore, whether in the analysis of the theoretical foundation of procedural openness or in specific institutional construction, deeper and more systematic analysis and argumentation are needed. In this sense, this hastily completed book can only be considered a preliminary research outcome on the issue of procedural openness in criminal litigation.