Value Of Criminal Summary Procedure And Its Realization

By applying ways of logical inference, comparison between foreign and china and historical investigation, this article explores series of basic theories and basic systematic mode of summary procedure from prospective of structure action. On fore-mentioned basis, this article also designs systematic reform program of the criminal summary procedure of China. The main aim of the paper lies in that it tries to offer legislative suggestions to the reform of criminal summary procedure of China. Main content is as follows: Summary procedure is opposite to general procedure. The basic relation between summary procedure and general procedure is that summary procedure is the simplified form of general procedure. Criminal summary procedure boasts general characteristics of summary procedure. In a broad sense, simplification of criminal pre-trial procedure belongs to the scope of criminal summary procedure, while in a narrow sense criminal summary procedure is the simplified form of criminal formal trial procedure. Criminal summary procedure also includes summary procedure of criminal first instance and summary procedure of criminal relief trial. Summary procedure of criminal first instance is the typical case of criminal summary procedure. The inherent mechanism of criminal summary procedure in a narrow sense simplifies the general structure of criminal action. It includes two levels which are simplification of subject and simplification of behavior. The common characteristic of criminal summary procedure in a narrow sense is the exemption or substantial reduction of courtroom investigation procedure. The core measures of criminal summary procedure is to determine the degree of formal court trial through setting procedure of packing up points of dispute before criminal court trial. The difference between criminal summary procedure and civil summary procedure lies in their different operation manners and differences on the following special conditions: Firstly, procedure of packing up points of dispute in civil action is more typical while procedure of packing up points of dispute in criminal summary procedure is denouncing procedure or reviewing procedure in adversary proceeding, and on this basis forms procedure of pleading guilty and sentencing. Secondly, mediation system widly applied in civil summary procedure is restrained and therefore forms plea bargaining system in criminal summary procedure. Thirdly, as part of criminal summary procedure in a broad sense, the simplification of criminal pretrial procedure is more complicated than that of civil pretrial procedure, mainly because different nature between cases causes the tremendous difference in pretrial procedure. Forthly, in a narrow sense, criminal summary procedure includes procedure of civil suit collateral to criminal proceedings, a special form which civil action doesn't have. Value of criminal summary procedure includes the following analysis: Firstly, criminal summary procedure is the most effective measure to promote efficiency of criminal procedure law. There are two ways to promote efficiency of criminal action: one way is through maintaining structure of action that is not a simplified way to promote efficiency of action. The other way is by simplifying the structure of action to promote efficiency of action, which is also called system of perfecting summary procedure. The source of maximum charming and powerful vitality of efficiency promoting measures of maintaining action structure lies in the common promotion of efficiency of justice. The characteristic of promoting efficiency of action taking the way of simplifying the structure of criminal action is that the initial intention of setting criminal summary procedure is to promote efficiency of criminal action, but the effect in practice can't enhance the impartial quality of criminal procedure while even weaken the impartial quality in some cases. The principle of it is just to ensure the basic stability of the impartial quality of criminal procedure. However, the effect for criminal summary procedure to promote the efficiency of criminal action is notable. Secondly, the basis to establish criminal summary procedure is the nontypical pattern of cases. In most cases, suspects or defendants usually admit wholly or partly the facts of crime, so the process of proof is simple. This substantive truth is the essential formation condition of criminal summary procedure. The basis of possibility ofsimplification of the structure of criminal procedure lies in that several procedures setting for fact investigation can be omitted when the facts of a case are clear and the evidence is reliable, but it is mainly the simplification of courtroom trial procedure. The maximum value of criminal summary procedure is it promotes efficiency of action to a great extent and this value of high efficiency is even out of people's imagination. Main manifestations are as follows: One is that criminal summary procedure is the evitable choice under the background that the number of criminal cases increases rapidly and that too many cases still to be tried in the court. Another is the majority of all criminal cases are cases that apply criminal summary procedure. Last is that it is short to deal with individual case. Thirdly, one of the main direct conditions of criminal summary procedure to develop its function of promote efficiency is that criminal summary procedure should obey the baseline of procedural impartiality, so efficiency could be promoted under impartiality background. The baseline of criminal summary procedure is the highest limitation to simplify structure of criminal action under the prerequisite of ensuring justice. During the process of operating, the key point is what content of the structure of criminal action can't be simplified. The static state pattern of equality between prosecution and defense and neutrality of judges is the baseline of criminal summary procedure. The source of true vitality of criminal summary procedure lies in that to promote efficiency of action substantially can only be realized under the prerequisite of enduring or basically ensuring justice of action. While the key point of ensuring justice of action is to maintaining the basic pattern of procedural impartiality of action. That is we should grasp firmly two most basic principles, one is equality between prosecution and defense, and the other is neutrality of judges. Unjust criminal summary procedure is the procedure that breaks the baseline of justice. The theoretical codes of criminal summary procedure include code of subject simplification and code of pattern simplification. The former includes trial by a sole judge, private prosecution and trial by default etc., and the latter is mainly a code of summary procedure, the major part of which ---- vertical code includes: 1. Procedure of pleading guilty and sentencing. It also called procedure of plea ofguilty. The meaning of it is that after the defendant admits the prosecuted facts in formal court the judge will convict and sentence directly by omitting courtroom investigation. Essence of procedure of pleading guilty and sentencing is that the judge presumes the accusation as true in the case that the defendant admits the fact of accusation. Consequently, it is a kind of summary procedure of trueness presumption. Procedure of pleading guilty and sentencing is the pre-procedure of general trial procedure, but also is formal trial procedure. The basis of it to improve action efficiency is that it prevents most cases of pleading guilty from applying general trial procedure but applying summary pre-procedure which is also formal trial procedure to solve cases. If there is no such procedure most general trial procedure that has been planned and organized would be unnecessary and wasteful. In fact, most of the accused defendants are willing to plead guilty, so procedure of pleading guilty and sentencing is kind of criminal summary procedure possessing foresight and quality of practice. The applicable scope of it is very extensive, and it can be applied to almost all cases. This extensive applicable quality determines its vigorous vitality. Procedure of pleading guilty and sentencing is less speedy than plea bargaining in ability of solving individual case, but it overcomes most defects of plea bargaining. 2. Procedure of plea bargaining. Plea bargaining is a trial system in which the judge reviews the agreement made between defendant and prosecutor about facts, conviction and sentencing of the case before trial. Summary procedure of pleading guilty and sentencing is applied in case of defendant's pleading guilty. While in plea bargaining two parties (prosecution and defense) make an agreement about sentencing, therefore, investigation and debate of conviction and sentencing can be omitted and the judge can solve problems through identifying the agreement made between two parties before trial. The essence of plea bargaining is the same as that of procedure of pleading guilty and sentencing, and the forms of trial between them are familiar. Only the degree is different between the two. Plea bargaining may be a kind of typical mechanism of dispute settling. Though the mechanism of plea bargaining to settle dispute weakens the ability to explore true facts and it may not be able to ensure the guilty party gained punishment which he ought to have, it can ensure the guilty party be punished to a great extent.3. Proceeding for execution order. The basic characteristic of it is that it's simplified procedure taken by the judicial organization in finding whether facts are clear singly. Proceeding for execution order is kind of criminal summary procedure affirmed by judges in reviewing the recommendation of conviction and sentencing offered by the prosecutors. The basic operational procedure of proceeding for execution order is as follows: the prosecutor present the appropriate written recommendation to the judge, then the judge conducts written review firstly, if he consents the prosecutor's recommendation he will make a writ of penalty according to the prosecutor's recommendation, and this writ of penalty is equal with effective judgment when the defendant consents, if the defendant opposes the formal trial procedure will begin to be applied. The essence of proceeding for execution order is kind of process of exploratory trial. Compared with the procedure of plea bargaining proceeding for execution order is less impartial to some extent, and the defendant may bear more pressure besides of informal trial. There are also some procedures that can be classified as criminal summary procedure of simplified ways, such as the simplification of criminal appellate procedure, simplification of criminal preparatory procedure as kind of criminal summary procedure to a broad sense (including speedy suit, prosecuting discretion, written procedure of preparatory trial and conciliation of discovery etc.), and civil suit collateral to criminal proceedings as a special form of criminal summary procedure. The most serious question of criminal summary procedure in effect of China is that the system of it is very imperfect and some important systems of criminal summary procedure are to be established, including procedure of plea bargaining, and proceeding for execution order. Procedure of pleading guilty and sentencing is not established at all. Other summary procedure such as appellate summary procedure, procedure of trial by default, speed suit procedure, and prosecuting discretion are not established either. As to these systems that have already been established, there are serious defects. The basic measures to perfect system of criminal summary procedure in our country should be as follows: firstly, we should design systematically the basic criminal summary procedure of China, and then perfect each procedural rule.