Between Two Systems: A Study On The Japanese Criminal Procedural System.

It is well known that the Japanese criminal procedures law promulgated in 1948 is a mixture of the adversary system and inquisitional system. This mixed system is regarded as perfect by some Chinese legal scholars, who hold the view that the Japanese system deserves China's modeling upon.However, this thesis shows that the Japanese system is still a trial system which conforms to Japanese traditional culture and can only be drawn on in establishing China's trial system .This thesis consists of three chapters, exclusive of the introduction and the concluding remarks.The first chapter centers on the development of the Japanese system. Previous to the Dahua Reform, Japan was at the stage of customary law, which belongs to the accusatory procedures featuring trial of gods. After the reform, Japan modeled on China's Tang dynasty and became one of the representatives of the Chinese legal system. As a result, Japanese criminal procedures adopted the inquisitional system. After the Minzhi Reform, Japan set on its journey towards the legal westernization and modernization, transforming its criminal procedures from the feudalistic accusatory procedures into the inquisitional system. During World War Two, its trial system went backwards to the accusatory procedure as the result of Fascistization of law.The second chapter, the most important of the thesis, is composed of five parts.In the first part, the development of modern Japanese system is described. After World War Two, with the enactment of the Japanese Constitution, Japanese criminal procedures were reenacted, which established the mixed system having the inquisitional system as the basis with some elements of the adversary system.In the second part, the characteristics of the present Japanese system are analyzed from the viewpoint of legal norms and legal practice. From viewpoint of legal norms, the main constitutional elements of the trial system is studied, and the characteristics in the way of prosecuting, trial objects, the way of trial and the scope of the cases tried are expounded. From the viewpoint of legal practice, in view of the separation of legislation and justice, the state of inquiry of witness and trial by record of inquiry is observed.In legislation, the Japanese system adopts the doctrine of exclusiveness of bill of prosecution. But compared with that of the adversary system, the scope of the Japanese one is only limited to the first public trial. As a result, this doctrine cannot completely exclude a judge's prejudgment. As to the issue of determining the trial object, the Japanese system introduces the doctrine of cause of action of the adversary system, but the cause of action can be altered on the condition that the facts of public prosecution are the same, even judges can order cause of action to be ordered. This makes the trial objects in Japanese trial more resembles those of the inquisitional system. In light of model of trial, the Japanese system adopts a mixedone. According to this model, two ways of inquiring the witness coexists___thejudge's examination and cross-examination. Because the Japanese system does not adopt the doctrine of plea of guilty, it has the same scope of cases tried as the inquisitional system.Under the Japanese system a judge is active in inquiring the witness, which makes its cross-examination quite different from that under the adversary system. The trial by record of deposition is unique under the Japanese system.From the above analysis, a conclusion is drawn that although the Japanese system is a mixture of the adversary system and the inquisitional system, it is moreclose to the inquisitional system both in legislation and justice. Therefore, it may be defined as an improved inquisitional system.In the fourth part, the causation of the Japanese system is searched into. The Japanese view of objective truth, the Japanese cultures (including its traditional religion), its national character, and the bureaucratic power structure of the trial etc. jointly contribute to the formation of the Japanese system.In the fifth part, Japanese and Chinese scholars make an introduction and an analysis of the evaluation of the Japanese system. Based on the introduction and analysis, this author puts forward his viewpoint according to the Procedural standard. This author holds the view that the Japanese system promote the justice feeling of the litigating parties by introducing some elements of the adversary system, but the prevailing of the trial by record in judicial practice causes the procedural injustice and directly harms the constitutional right to examine the testimony in the trial.Chapter three takes the reform trend of Japan criminal judicature as the topic. It especially introduces the main content of schoffen system, which is regarded as the prop of Japan criminal judicature reform. The chapter analyzes the reson for adopting the system. Finally, it points out that the system can't transform the mode of Japan criminal judication.Chapter four revelation of the Japanese system. At present, China is at the stage of reforming its criminal procedures. It is an urgent issue for the legal scholars to find out a modern criminal procedural system which conforms to both China' legal tradition and is national character. Historically, Japan belonged to Chinese genealogy of law and set on its journey to legal modernization after the Minzi Reform. In the end, Japan established the improved inquisitional criminal procedural system. China can learn from Japan in two ways: in the first place, in a society pursuing objective truth and cooperation and reconciliation, the inquisitional system may be a wiser choice; in the second place, mixed model of trial conforms to the notion of procedural justice.