Research on Criminal Procedure Issues

Author: Zuo Weizhong
Editor-in-Chief: Song Jun
Publisher:
Publish Date: 1999-08-01
Features:
Fragment: In civil law countries, when the prosecution files a lawsuit with the court, it must not only submit an indictment but also transfer the case file. In common law countries, the principle of "indictment alone" is implemented, where the prosecution only submits an indictment to the court without transferring the case file.
2. Whether judges read the prosecution's case file before the trial. In civil law countries, judges can not only access and read the prosecution's case file before the trial but also regard it as an important part of their pre-trial activities. In common law countries, the principle of "indictment alone" is generally followed, and the prosecution only submits an indictment without transferring the case file. Therefore, judges are prohibited from accessing or reading the prosecution's case file before the trial.
3. Whether the prosecution's case file can be used during the trial. In civil law countries, the prosecution's case file is highly emphasized during the trial. Judges can use the materials in the case file as evidence in court and read them aloud. If the evidence in the case file conflicts with trial evidence, judges often accept the case file evidence while rejecting the trial evidence. In contrast, in common law countries, judges do not place much importance on the prosecution's case file during the trial. Generally, judges cannot cite or adopt evidence contained in the case file, such as confessions of the defendant or testimony of witnesses, which cannot be presented or used in court. Only in special circumstances, such as when a witness dies, can testimony provided outside the court be admitted as evidence. Therefore, the prosecution's case file merely reflects the investigative and prosecutorial activities of the investigative and prosecutorial authorities. If the prosecution's evidence conflicts with trial evidence, judges generally exclude the prosecution's evidence.
From the comparison of these three aspects, it can be concluded that the influence of the prosecution's case file on judges is entirely different in civil law countries and common law countries. In civil law countries, the prosecution's case file has a significant influence on judges. On one hand, judges must read and review the case file before the trial, which constitutes the basic content of their pre-trial activities, making it difficult for them to avoid forming a preconceived bias in favor of the prosecution. On the other hand, when judges have a fixed preconceived bias and hold the dominant role in court proceedings, their entire trial activities are inevitably transformed into a review and presentation of the prosecution's case file. However, in common law countries, the prosecution's case file has almost no influence on judges' preconceived biases.
So, what is the fundamental reason for the significant differences in the use of the prosecution's case file in criminal proceedings between civil law countries and common law countries? In my opinion, the root cause lies in the differences in litigation values and litigation structures. Civil law countries advocate a crime control perspective in litigation values, believing that maintaining social order and safety is the fundamental interest of criminal justice, and the interest of freedom is primarily realized through the punishment of crimes. Therefore, civil law countries regard the investigative, prosecutorial, and judicial authorities as crime control agencies, considering that although their specific functions differ, their goals are consistent—to pursue and punish crimes, protect public interests, and maintain social order and safety. As a result, the investigative, prosecutorial, and judicial authorities are essentially a partnership, emphasizing cooperation between the prosecution and the court. This is reflected in the use of the prosecution's case file, where the judicial authority not only does not exclude or maintain distance from the case file but also acknowledges it.
In contrast, common law countries start from the perspective of rights protection, believing that individuals have certain fundamental rights that the government cannot interfere with. Criminal proceedings should equally emphasize the punishment of crimes and the protection of the innocent, and crimes should be pursued and punished only on the basis of fully protecting the personal rights of citizens. This determines that in common law countries, the investigative, prosecutorial, and judicial authorities are essentially a check-and-balance relationship rather than a cooperative relationship, thereby preventing the abuse of power and protecting the personal rights of citizens.