Research on the Criminal Trial System

Author: Long Zongzhi
Publisher:
Publish Date: 2001-11-01
Features: The trial is the center and core of criminal litigation. Constructing a reasonable theory of the trial system has significant and fundamental value for the research of trial litigation. Moreover, the trial stage under the new criminal litigation system is a concentrated reflection of various contradictions and conflicts. By exploring the basic theory of the trial and the contradictions and conflicts in reality, studying the overall institutional coordination and micro-level institutional filling, is of great significance for the perfection and effective operation of the new criminal litigation system. This work consists of 10 chapters, the first four of which discuss general issues of the trial system, such as the elements, functions, and value objectives of the trial; the basic principles and principles of the trial system; a comparative study of the pre-modern and modern types of the trial system; and the characteristics and models of China's new trial methods, which can be called "general theory." The last six chapters belong to the "specific theory" content. They discuss the basic issues of the pre-trial public prosecution review and evidence disclosure procedures, the basic issues of the trial investigation and debate procedures, and the problems in the public prosecution and defense in court. Subsequently, a special study is conducted on the focus and difficulties of the trial investigation—investigation of persons, and a special study is conducted on the trial of the judge. Criminal trial refers to the activity of judges, under the participation of other litigation parties, in trying criminal cases in a criminal court in a specific manner. To achieve its functions, the court trial should have four essential elements: (1) Subject elements. Judges and the prosecution and defense sides are trial litigation subjects, while witnesses, experts, and interpreters play a supporting role and are trial legal relationship subjects. Judges are the trial subjects with a decisive role. (2) Object elements, that is, criminal cases. (3) Space-time elements. The trial takes place in a specific space and time, solemnity being its spatial characteristic, and continuity being its temporal characteristic. The way the court is set up belongs to the content of "court ecology arrangements" and can reflect the spirit and structure of the trial. (4) Method elements. Judges and other trial subjects use which steps, actions, and procedures to advance and complete the trial. The trial method depends to a large extent on the relationship structure and interaction among the prosecution, defense, and adjudication sides in litigation. The significance of the trial is "settling disputes and stopping conflicts," and its specific functions include: (1) Fact verification function; (2) Legal principle clarification function; (3) Conflict resolution and its legalization function. The value objectives of the trial are to achieve objectivity and fairness and to achieve litigation efficiency. To achieve the functions and value objectives of the trial, a reasonable structure and mechanism are needed, the constituent elements of which are the principles of the trial, that is, "optimization provisions with direction but with room for maneuver." As a principle system, the trial principles can be specifically divided into three parts. First is the structural principle for constructing the trial framework and forming the basis for trial. Second is the operational trial principle that should be followed during the case trial process. Third is the judgment principle that judges should comply with when ruling on cases. As a "combination of three parties," the structural principles of the trial include: (1) Judicial independence. Judges are not interfered with during the trial and only obey the law. (2) Judicial neutrality. First is interest avoidance; second is role separation; third is statutory judges. (3) Supremacy of justice. Judges, due to their adjudicative function and structural position, have authoritative effects on the litigation process and produce decisive impacts. (4) Equality of prosecution and defense. It requires equal access to information related to the case: the defendant becomes the prosecution subject and receives litigation attention; the affirmation and protection of the right of defense are the key to prosecution and defense equality. The trial principles of the criminal trial include: (1) Open trial. Especially, the conflict between open trial and related interests should be properly handled: first, open trials should be limited according to the need for public interest. Second, a system of partial non-open trials should be implemented. Third, in the conflict between trial fairness and freedom of the press, appropriate choices should be made for the way of open trial. Fourth, a system of open trial records should be established. (2) Direct and verbal. It requires the actual presence of the judge rather than absence and requires oral testimony and debate. (3) Argumentation and verification. The trial must be based on the attack and defense of both sides and use counterarguments and verification. (4) Concentrated trial. The trial should continue and be seamless to achieve rapid trial and correct judgment. The judgment principles of the criminal trial include: (1) Prosecution and judgment identity. It requires that the court's trial be limited by the scope of prosecution. (2) Evidence-based judgment. Criminal judgment must be based on facts and should be based on evidence. (3) Judgment according to law. It opposes any arbitrary, illegal, and arbitrary judgment without legal basis. (4) Favorable to the defendant. In the case of limited information and multiple possibilities, "reasonable doubt in favor of the defendant" should be chosen. Its consciousness is: "better to let the innocent go than to wrong the guilty." The structure of the criminal trial can be divided into pre-modern structure and modern structure. The pre-modern structure includes: (1) Adversarial and inquisitorial structures; (2) Pre-modern mixed structures; (3) Irrational special trial structures. The characteristics of the irrational structure are that judges are not independent; inhumane and irrational methods are used to obtain confessions and testimonies, which are used as the basis for judgment; arbitrary and non-procedurally guaranteed pre-trial detention; preconceived notions, presumption of guilt; the defendant loses their subject status and has no right to defend or explain. The modern structure of the criminal trial, on the basis of some rational common characteristics, can be divided into the adversarial trial structure of the common law system, the inquisitorial trial structure of the civil law system, and the so-called "mixed system." Different litigation structures are essentially different ways and paths to explore the truth of the case. The inquisitorial system adopts the "investigation and confirmation method," that is, the method of "tasting the pear with one's own mouth"; while the adversarial system adopts the "argument and confirmation method," that is, the method of "clear as a." In terms of objective truth, litigation fairness, litigation efficiency, and requirements for litigation conditions and resources, different structures have different functions. In terms of institutional reference, it is recognized that gains often come with losses. After the trial method is "adapted," it still retains a basic tendency and characteristic. Due to various reasons, borrowing from the adversarial system is a more common trend. The new trial structure of China (i.e., trial method) has uniqueness in pre-trial procedures, trial procedures, the rights and obligations of litigation subjects, and adjudication mechanisms, and is a mixed trial method with Chinese characteristics, which can be said to be a blend of traditional and inherent institutional factors, modern inquisitorial system, and adversarial system. When studying China's trial model, attention must be paid to the operating conditions and background of China's trial system. When China borrows from the adversarial system to reform the trial system, it will face strong resistance, restrictions, and transformation from local resources. This includes four major restrictions: culture, policy, system, and practical resources. This results in incomplete substantive implementation, insufficient antagonism, incomplete equality, and non-standardized operational methods. The greatest contradiction in operation is the conflict between the adversarial procedure and the pursuit of substantial truth. The target model for reforming and improving the trial system is a "gray model" with Chinese characteristics, and the main path for improvement is reconciliation, coordination, and integration of local and global aspects. The specific content of the reform includes the adjustment of the court's role, the strengthening of the function of the collegiate panel, the strengthening of the verification system, the establishment and improvement of evidence rules, the promotion of equality between the prosecution and defense, the strengthening of the function of defense, and the adjustment of pre-trial procedures, etc. The reform of pre-trial procedures has taken a big step forward in implementing the exclusion of preconceptions, while also taking into account the connection and transition between the old and new systems, as well as the reality of justice. However, there are still problems: the legislative intent of the exclusion of preconceptions may not be achieved, the lack of comprehensive understanding of the case by the judge may lead to "twisted preconceptions," the content of pre-trial review is uncertain, and substantive review cannot be excluded, which may lead to a new "" in the trial. According to the existing problems and current conditions, and by learning from foreign systems, a "three-step" reform of the pre-trial procedure can be implemented. The first step is to implement measures such as comprehensive material submission and the establishment of pre-trial discussion systems; the second step is to learn from the "single indictment principle," reduce the content of material submission, and implement basic procedural review; the third step is to establish a pre-trial system when conditions are ripe, and to separate the pre-trial judge from the trial judge, and to truly implement the exclusion of preconceptions. Another important content of the reform of pre-trial procedures is to establish evidence disclosure procedures for both the prosecution and defense. Evidence disclosure is an important measure to achieve the fairness and efficiency of litigation. It is necessary to learn from the mature experience of foreign countries and establish China's evidence disclosure system as soon as possible. This disclosure should be comprehensive rather than partial; mutual rather than one-sided; mandatory rather than voluntary. In the trial investigation and debate procedures, a series of controversial issues need to be resolved. First, how to determine the trial order. In this regard, there are principles that are constant and variable—defendants and victims should be questioned first, and the rest should be flexibly arranged according to the situation; the second principle is to proceed with the prosecution first and then the defense, with evidence presented in sequence; the third principle is to determine the investigation order and method of specific cases through the combination of the prosecution, defense, and adjudication. The term "judges leading the trial" is inappropriate. Second, the system of litigation objections and litigation debate. Proposing and ruling on litigation objections during trial investigation has an important role in ensuring the fairness and orderliness of the trial. The prominent feature of China's litigation objection system is the active intervention of judges. Litigation debate can be divided into debate during the investigation stage and debate during the debate stage, and the two debates have different contents and functions. Third, evidence submission and post-trial "silent trial" and related issues. Under current conditions, a certain degree of "silent trial" is still justifiable. The trial record production and verification system should be improved to meet the needs of changes in the trial system. The trial of the court prosecution and defense focuses on three issues. First, prosecution changes. Prosecutors have the need and right to change, add, and withdraw prosecution, but it should not hinder the exercise of the right of defense, and should accept judicial review in some links. The prosecutor's withdrawal of prosecution and subsequent prosecution must meet legal conditions. Second, the of the prosecutor's office. In the civil law system, prosecutor's office sentencing suggestions are quite common, and in the common law system, especially in the United States, there has been considerable development. The development of the prosecutor's office sentencing suggestion system in China is conducive to further playing the function of prosecution and restricting the discretion of judges. However, the specific method can be flexible according to the case situation. Third, the mechanism and issues worthy of attention of lawyer defense. The philosophy of judgment based on "relative systems" provides a legal basis for the defense of lawyers in modern litigation. When dealing with the contradiction between protecting the legitimate rights and interests of the defendant and the independent status of the defense lawyer, the lawyer's real obligation to the court and the lawyer's "protection of rights" and "confidentiality" responsibility, the lawyer should adhere to legal boundaries, pay attention to value balance, and effectively protect the legitimate rights and interests of the defendant. It should be noted that there is a connection and difference between the lawyer's obligations and the official's defense obligations. As long as the lawyer does not break the legal bottom line, there should be a certain degree of tolerance for their activities, including the establishment of an exemption for lawyer's trial remarks. Investigation of persons and evidence is the difficulty and focus of the trial investigation system. It is necessary to strengthen and improve the system of witness testimony by improving the environment for testimony, enhancing the rigidity of the system, strengthening written testimony, and establishing an exemption system. In view of the needs of the judiciary, the use of written testimony should be regulated. The use of written testimony when a witness does not appear in court should be determined according to the principles of litigation and the actual situation, while learning from the mature experience of foreign countries to establish reasonable and feasible rules. When written testimony conflicts with on-the-spot testimony, the use of written testimony should also be regulated. Under the condition that the defendant or witness appears in court, written testimony can be used as impeachment evidence, and under certain conditions, it can also be used as independent evidence. Cross-examination is the main method of original person and evidence investigation after the reform of China's trial system. However, due to the constraints of the system background, China's cross-examination has shown its own characteristics, such as limited scope and effectiveness, polarization, "harmony," and belonging to a "technical method type" rather than a "right technical type." To improve the cross-examination system, it is necessary to set up operating conditions, grasp the limit of antagonism, and especially establish appropriate cross-examination rules. Such as relevance rules, anti-leading rules, opinion rules, anti-complex question rules, and other rules that may cause confusion, as well as not threatening witnesses, not damaging the personal dignity of witnesses, etc. Confrontation questioning is a necessary supplement to the investigation of persons and evidence. Judges, as the hosts and adjudicators of the trial, are the soul of the trial. The trial power of judges includes litigation leadership power, fact verification power, and substantive judgment power. The litigation leadership power of judges includes trial guidance power, rule maintenance power, and order maintenance power. Judges also have the right to verify facts, undertake the responsibility to verify, but not the responsibility to clarify. In fact verification, listening should be the main method, and investigative power should be supplemented. The on-the-spot one of judges is generally limited to the evidence of the evidence ability; the evidence of the evidence force is generally recognized in a comprehensive way, and the comprehensive recognition can be divided into on-the-spot comprehensive recognition and off-the-spot comprehensive recognition (criminal judgment recognition). The verification of evidence outside the court as a special way of exercising judicial power should follow legal restrictions. In two difficult situations, the questioning of witnesses can be solved by a special method of holding a hearing outside the court. The evidence obtained by the judge through external investigation should be re-examined in the trial. In terms of the system, the jury system of the common law system and the lay judge system of the civil law system have different functions, but the dependence of lay judges in the lay judge system and the difficulty of solving professional legal problems as non-professionals make it difficult for them to play an effective role. In view of this, to save China's basic trial system, which is almost empty, it cannot just be patched up, but should take a new path, that is, to learn from the jury system. But it must consider resource bearing capacity, etc., so a transitional trial method can be adopted. Whether the criminal judgment can change the charge of prosecution, the judicial interpretation recognizes it. However, from the perspective of legal theory, due to the limitations of the debate principle and the defense principle, judges cannot arbitrarily determine and change the charge, which may lead to "surprise judgment." But to avoid "surprise judgment" and the dilemma of being unable to fight crime due to technical flaws, a "change of charge notice procedure" can be set up. In terms of judgment form, the Supreme People's Court has created a new form of judgment—"not criminally liable" judgment through judicial interpretation, which is an overstep of interpretation and the interpretation is inappropriate. As for the preparation of judgment documents, the lack of reasoning has been a common problem in the preparation of judgments for many years. To ensure the rationality and justice of judgments and restrict the discretion of judges, criminal judgments should strengthen the reasons for judgment from both fact argumentation and legal theory argumentation. This includes reforming the way of making judgments, explaining the formation process of judges' inner conviction, and focusing on explaining the difficulties in evidence and facts; it can learn from the legal analysis model of "dialogue-argument," and the judgment preparation should explain the basis for determining the nature of the case, make reasonable and reasonable analysis of the circumstances and both sides' litigation opinions, and when necessary, make specific analysis and explanation of the legal application. The preparation of judgment documents should vary in form and be appropriate in detail. The binding force of criminal judgments and the recognition or non-recognition of the principle of "" in criminal trials in China. In criminal trials in China, adverse re-examination can be filed against effective judgments, and the prosecutor's office can file a new prosecution according to new evidence, that is, "" from both vertical and horizontal aspects, which contradicts the minimum standards of international criminal justice, is not conducive to maintaining the binding force of court judgments and the legal security of citizens, and should be amended.