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On Trial Procedure Of The Capital Cases

Posted on:2011-07-01Degree:DoctorType:Dissertation
Country:ChinaCandidate:H P ChenFull Text:PDF
GTID:1116330338960185Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
This PhD. dissertation includes the introduction, the main body which has four chapters and the conclusion.The introduction explains the background and value of subject selection, the research situation, the empirical materials and the train of thought. Limiting death penalty has become the international consensus and abolishing death penalty has become the international trend, the view of "the Retention and Strictly Controlling of Death Penalty" has also become the common understanding in China, and the method of its controlling is altering from legislative limitation to judicial control. The research on the death penalty is turning from whether reserving or abolishing the death penalty and the standard of application to the discretion and procedure of the death penalty in Chinese jurisprudential circle, and ensuring the application of death penalty fairly and accurately through judicial procedure has become the central study focus in the academic circle; the research on the trial procedure of capital case is involved in its comprehensive consummation, the innovation of procedure for review of death sentence and the second instance procedure. The main problems consist of the research gaps, the deficiency of comparative study and the weakness of empirical research and so on. The value of the trial procedure of capital case research lies in the core of judicial control is trial procedure, responding timely to the efforts in practice circle of controlling, ensuring the application of death penalty fairly and accurately through judicial procedure and promoting the reformation of criminal trial procedure. The empirical materials which are collected by the author contains one hundred questionnaires for the chairman of the tribunal,eight hundred judgment documents of death penalty, the feeling by court hearing of capital case and the established empirical materials of achievements. Based on the established achievements, this dissertation is pondering integrally the consummation of the trial procedure of capital case in China through exercising the basic method of comparative analysis and empirical survey, focusing on the problem gaps, developing the comparative study and emphasizing the empirical research.In chapter one, the dissertation defines the connotation of "Capital Cases", summarizes and analyses the typical characteristics and the value respectively of the trial procedure of capital case, and discusses the restriction of trial procedure toward the death penalty. The divergence of "Capital case" between academic circle and practice circle is the connotation of "May be Sentenced to Death" is ambiguity, and the judgment right of "May be Sentenced to Death" is whether to be endowed to the prosecution. The trial procedure of capital case has three characteristics:interest involved is greater, procedure is stricter, social influence is wider. The value of the trial procedure of capital case displays three aspects:the indispensable guarantee to apply death penalty fairly, the optimal device to apply death penalty accurately and the crucial point to apply death penalty austerely. The author deems that we should pursuit rather importunity the effect of trial procedure towards death penalty, strive for ensuring the application of death penalty fairly in order to avert erroneous judgments or mistake killed and to decrease the number of immediate execution. However, it is difficult to limit the total number of death penalty, so we ought to prevent the trial procedure of capital case excessively interpreting the restraint procedure of capital case.In chapter two, the dissertation exercises comparative research method and observes the distinguished features of the trial procedure of capital case in international covenants and some foreign typical countries or areas. The international covenants claim to ensure the judgment should be fairly in the trial of capital case. Moreover, the covenants also formulate some special requirements which are superior to ordinary criminal case such as compulsory appeal, proof standard and defense security. The unique features of the trial procedure of capital case in America are as follows:the prosecutor's death accusation is a precondition of starting procedure, death accusation has a special significance to capital case; the trial procedure has been distinguished severely two phases, that are conviction and sentencing, and both need the jury to participate in and verdict; the rigorous sentencing procedure has strengthened the difficulty of death proof, enhanced the standards and guaranteed the discretion of death appliance prudently; various remedies procedures are supplied to capital defendants and condemned criminal in order to avert erroneous judgments or mistake killed; not only ensure coercive defense in capital case, but also emphasize and intensify the validity of death penalty defense by system reformation. The trial procedure of capital case in Japan stresses on the fairness of judicial procedure rather than establishing some special procedures, its features are adopting a prudent policy on applying the common procedure of death penalty, instituting forcibly the appeal system without resorting to compulsion, the more opportunities of reviewing to relieve after the sentence of death penalty has been determined but a rigid launch procedure, obtaining the supports of legal profession although the defense has effectives. The unique features of the trial procedure of capital case in Korea are adopting a prudent policy on capital case trial, instituting forcibly the appeal system, guaranteeing distinctively the jury system and review trial. The special requirements of the trial procedure of capital case in Taiwan area are stressing prudently to apply capital case, the opportunities of reviewing are wider after the death is determined and applying the systems of appealing and defending forcibly of death case.In chapter three, the dissertation is reflecting and thinking on the consummation of the trial procedure of capital cases in China. The focus of reformation of death case trial procedure mainly includes four aspects:taking back the power of rechecking death penalty, promoting the second instance to open court sessions, ensuring the key witnesses in court and intensifying the defense of death penalty. The primary appraisals of existing reformation lies in the reform strength of death case trial is great and the achievements are remarkable, but there are still some deficiencies on implementation and production design, not to reach the imagined optimum reform effect. Therefore, the author advances three aspects to adjust reform methods that are through qualified person rationality guidance, joint forces harmony and concern the details to implement.In chapter four, the dissertation is thinking entirety the death capital trial consummation in China, and has put forward seven methods perfection:Firstly, litigation reform of procedure for judicial review of death sentences, establishing three-tiered system of death case. The necessity lies in promoting justification reform of procedure for judicial review of death sentence, strengthening the supreme court's adjudicative control power of death case in order to reinforce due judgments of death case; the feasibility lies in existing practices of death penalty checking as initial preparation, the problem of judicial resources insufficient supply is not insolvable, overseas experiences can be used for reference; the primary procedure points are as follows:ascertaining scope of the case of the third instance as the final, the exclusive jurisdiction right of death case belongs to intermediate court, setting rationality scope of trials of proceedings of third instance, applying the implement compulsory appeal and compulsory defense systems and the third instance carries out the principle of no additional punishment resulting from appeal. Secondly, setting that conviction procedure is separated from sentence procedure in death case. The necessity lies in ensuring the application of death penalty publicly and fairly, restricting judicial discretion, strengthening the victim to participate in, ensuring the effectiveness of defense; the feasibilities lie in there is an existing experimental unit, and theoretical limits have consensus understanding, in the mean while, the practice also have enough ideological preparation; the system designed points are as follows:reorientation the recognition of sentencing procedure, building two stages structure of the interrogation in court, the main suitable object of separation of conviction procedure and sentence procedure is death case.Thirdly, continuing to perfect the appeal procedure. The operation of the appeal procedure of death case is generally well, but there still have some problems such as implementation is not thorough and procedure design is unreasonable; the primary problems are as follows:substantive continuance of the written hearing, inspectors' weak-authority in court, trial in court in the detention place; the countermeasures of the appeal procedure are that consummating its preparation procedure, strengthening its prosecutor's obligation and detaining convergent death penalty defendant.Fourthly, reforming and perfecting the system of witness appearing in court in death case. Predicament of the material witness in court epitomizes are that the violation of specification and practice, that is to say, the current situation of material witnesses in court in the capital trial case is unsatisfied although it is emphasized in the specification; The main reason are that the witness is treated negatively by judicial branch, the ambiguous legal consequences as the witness refusing to appear in court, the deficiency of the system of protecting witnesses; the means of guaranteeing the material witness in court rest on moving judicial branch's initiative, establishing pretrial discovery system, conceding witness in court, consummating the protection of the witness compensation system.Fifthly, ensuring the defense effective of death case. The current situation of death penalty defend in China is that defend forcibly has implemented, designation defend is almost null and void, the effect of death penalty defend is unsatisfied; the reasons of the effects of death penalty defend are unsatisfied lies mainly in the inadequacy of defend preparation, the lack of safeguard to designation defend, submission despised, and attorney is indifference to take part in; ensuring the effect of death penalty defend are that enhancing the death penalty defend-entry ticket, guaranteeing the satisfying defend preparation, consolidating the safeguard of designation defend, ensuring to treat the submission, motivating the passion of attorney to join in.Sixthly, conquering the problem about virtual trial or rather the existing trial has little sense. It mainly displays the collegial panel is unrealistic, trial quickly, board of reviewing editors undertake the judgments; it is directly leads to high cost and low interest of promoting the death case trial procedure reform; the reasons lie in the intervention of power of politics, the intervene of administration and the pressing of criminal victim; the countermeasures are as follows:optimizing the trial organization, reforming the criminal trial procedure and straightening out the court internal system.Seventhly, optimal allocation the trial time limit of death case. The current legal trial time limit to death case is rather too short, and is difficulty to satisfy the case trial; the most death cases are hard to terminate in the legal trial time, this easily leads to death penalty application is too rapid; therefore, design separately unfitted relatively trial time limit is imminent.In the conclusion, reviewing and summarizing of the whole dissertation, and prospecting optimistically the consummation of the trial procedure of capital case in China.
Keywords/Search Tags:Death Penalty, Capital Cases, Trial Procedure
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