Research On Prejudge Exclusion In Criminal Procedure

The term of "Prejudge Exclusion" was originated from Japan, but the thought embodied inPrejudge Exclusion Rules can be found in the criminal laws of many countries. Carrying outPrejudge Exclusion Rules can make judges remain neutral position in the trial and remove thewrong first impressions, so they could form their independent and objective conviction for thecases, and finally make a reasonable decision. According to the Criminal Procedure Law inPeople’s Republic of China which was published in1979, prosecutor transfer all the files andevidence of the case to the court before the trial. Then the courts would examine all the materialssubstantively. However, in doing this, it is easily for the judges to form before the trail in practice.The decisions of the cases are almost set before the trials, and the trial procedure turns into a mereformality. In order to get rid of the malpractice in Criminal Procedure Law which was publishes in1979, the amendment of the Criminal Procedure Law in1996canceled the transfer of all the filesand evidences to the court and changed it into only transferring the case evidence directory and theprimary evidence to the court. Although lawmakers noted the importance of Prejudge Exclusion,the law system still lacks some corresponding measures.Thus, It cannot fully achieve the aim ofPrejudge Exclusion. In view of this situation, this article will research the Prejudge Exclusionmechanism in different countries, and combine the legal provisions and judicial practice in ourcountry, to discuss how can we establish the Prejudge Exclusion mechanism to improve ourcriminal justice issues.This paper is divided into four parts.The first part is the overview of Prejudge Exclusion. Firstly, differentiating some conceptsrelated to Prejudge Exclusion to define the real meaning of Prejudge Exclusion.Secondly,discussing the causes and harms of the Prejudge Exclusion, and delivering the necessity ofpreventing Prejudge. Finally, discussing the origin of and the theoretical basis of PrejudgeExclusion.The second part is the Prejudge Exclusion Mechanism in different countries.Firstly, in USA, the judges ascertain the facts of the cases based on the confrontation betweenthe the accused and the prosecutor, and the judges can not intervene the conflict of the two sides.So trial structure in USA adversary to Prejudge Exclusion naturally. In addition, the jury systemalso has a strong effect in Prejudges Exclusion.Secondly, in Germany, judges have greater powers, but was rarely limited. However, atpresent, Germany also follow the trial-center principle, and set up some legal mechanisms topromote Prejudges removes. For example, pre-trial procedure and constraint the number of judgeswhich view the files before the trail.Thirdly, in Japan, the prosecutor only transfer indictment to the court. It is essential for Japanto realize Prejudge Exclusion. In addition, the Japanese Criminal Procedure Law also take othermeasures to eliminate Prejudge. The third part is the Prejudges Exclusion System in our country. Although our countryemphasizes the subjective initiative of the judges in the trail and Prejudge Exclusion Rules are notgiven due attention, Prejudges Exclusion in our country is still traceable.The fourth part is to improve the Prejudges Exclusion System in our country. According tothe rules of Prejudge Exclusion in different countries, some proposals to amend the existingCriminal Procedure Law will be proposed to eliminate the prejudge.