Research On Criminal Preliminary Hearing Procedure

Preliminary Hearing Procedure is a very important pretrial procedure in criminal procedure. That procedure helps to promote criminal proceedings, guarantee fair action and improve the efficiency of action. Some main legal states have integrated Preliminary Hearing Procedures in their criminal proceedings codes, however, there is no Preliminary Hearing Procedure in our criminal proceedings code. With the development of the criminal justice reform, the absent of Preliminary Hearing Procedure have become the "bottleneck" for China, which restricts the effective operation of the criminal trial and the whole criminal procedure and brings some passive effect to the criminal justice. It is necessary for us to catch the chance of remodifying the criminal proceedings code and make a systematic and deep research on Preliminary Hearing Procedure in order to establish a reasonable Preliminary Hearing Procedure. This article makes a primary discuss on some relevant problems on Preliminary Hearing Procedure. This paper is composed of six chapters with over 200,000 characters.Chapter 1 of the paper is the Introduction. This chapter debates some elementary problems on Preliminary Hearing Procedure. The article points out: as to the meaning of Preliminary Hearing, there is a distinction between the broad sense and the narrow sense. The narrow sense of Preliminary Hearing means that the subject which possesses the power of judicial review inspects the case which the prosecutor is prepared to bring an action against, determines if the indictment is necessary and then submits it to trial. So Preliminary Hearing in narrow sense only includes the procedure of reviewing the indictment from prosecutor and we can call it "Preliminary Hearing in the sense of pure judicial review", which is the key point of this article. The broad sense of Preliminary Hearing means that the subject which possesses the power of judicial review participates in the criminal investigation, inspects the case which the prosecution is prepared to bring an action against, determines if the indictment is necessary and then submits it to trial. So Preliminary Hearing in broad sense includes the procedure of investigation in some sense and we can call it "Preliminary Hearing in the sense of investigation and judicialreview ".which must be involved when researching Preliminary Hearing Procedure in some countries. The foothold of the article is Preliminary Hearing in narrow sense, so it is necessary to emphasize the following points: the original meaning of Preliminary Hearing is not "preliminary trial", but "preliminary review" and the main problem which Preliminary Hearing Procedure must solve is not the substantial problem of whether the indictee is guilty, but the procedural problem of whether the indictment is proper; The indictment of the prosecutor only starts Preliminary Hearing Procedure and is not inevitable to start the trial. In principle, whether the trial is start up must depend on the review of Preliminary Hearing Procedure, i.e.; the functions of Preliminary Hearing don't include starting the trial; Preliminary Hearing is not the procedure of commencement of action, but the procedure of reviewing the action. The subject that is responsible for Preliminary Hearing doesn't bear the responsibility of indictment. If Preliminary Hearing Procedure is terminative and the case enters the trial procedure, the subject of Preliminary Hearing doesn't bear the responsibility of indictment; Preliminary Hearing is the procedure which is presided by the subject such as a preliminary judge, but Preliminary Hearing is not trial procedure, but one of the procedures before the trial. In Preliminary Hearing Procedure, whether the case can enter trial is not determinate, the windup of Preliminary Hearing Procedure may start trial procedure and promote the litigation or not start trial procedure and terminates the litigation; Preliminary Hearing is adjudicative and it is an adjudication mechanism which determines if the indictment is approved before the trial. The proce...