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Research On The Pretrial Procedure Of Criminal Public Prosecution Case

Posted on:2007-03-23Degree:DoctorType:Dissertation
Country:ChinaCandidate:H X HanFull Text:PDF
GTID:1116360182987678Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The pretrial producer of crime public prosecution case is an important litigationstage that links the public prosecution procedure and the judgment procedures, whichrestricts the movement of the public prosecution procedure and decides the mode ofjudge and affects the structure of the criminal procedure. Between the pretrialproceedings and the trial procedure, the pretrial producer has the function of jointpoint , which urged the autonomy of the procedure and guarantees the close characterof procedure ,having the important guarantee function for the realization of thepurpose of the criminal procedure. 1t is the key to is to carry out the rationalizationand scientificlizaton of the whole criminal procedure to Set up the reasonable pretrialprocedure which availably checks and supervises investigate the power and thepublic prosecution powers to be used unscrupulously , and guarantees the values ofthe concentrated judgment, quick judgment and justice judge. The reasonablecriminal pretrial procedure has the necessary function in the system of the criminalprocedure. But, because the criminal pretrial procedure is not to be the independentprocedure, it is placed the litigation position that edge turn for long time ,which didnot cause the widespread attention in theories study and judicatory practice, leadingto the seriously mistakable understanding to the purposes and values of the criminalpretrial procedure ,which causes that the guarantee and check functions of thecriminal pretrial procedure are hardly carried out in the lawmaking design ,and thatperform of the criminal procedure system lack harmonious characters .Therefore,studying the criminal pretrial procedure systematically has the important theoreticalmeaning and practical meaning. This text carries on the overall research of thepretrial procedure from two aspects of theory and practice, put forward to set up thelawmaking suggestion of the pretrial procedure of our country that has the blemishescurrently to expect to modify the function that rise lawmaking's draw lessons from tothe future code of criminal court of our country.The first chapter researches general outline of crime public prosecution case.This chapter mainly defines the concept of the pretrial procedure of the criminalpublic prosecution case and researches to the litigation relation and the litigationbehaviors of the pretrial procedure. Because the pretrial procedure is not a dependentlitigation procedure, it did not be enough value in the research of the theory that hasno the formation to unify up to now. The author puts forward the concept definitionof the pretrial procedure on the base of analyzing and studying the foundation ofmany standpoints of the Chinese and Foreign scholar. The pretrial procedure of thistext means to carry on of prepare the activity and litigation relation among court,public prosecution person and the defending person from after indict to before opencourt session judgment, which includes two litigation stages: one is the publicprosecution reviewing procedure and the other is the pretrial procedure. The second,this chapter researches the litigation relations of the pretrial procedure. Studying thelitigation to understand the further pretrial proceeding, The pretrial procedure in thistext mainly researches the preparation activity that can produce the litigation relationamong the main part of the pretrial procedure not study the activity of corpus alone,which help to define the concept of the future prospects preface of the further explicitcourt to help the function importantly in the future prospects preface of the court.The litigation relation take the litigation behavior as the invalid result of loading, thelitigation behavior usefulness and the result of behavior unusefulness is the importantproblem in the pretrial procedure. Finally, the chapter researches the litigationbehavior of the pretrial procedure.The second chapter researches the purpose of the criminal pretrial procedure.Setting up any systems according to the certain purpose, the purpose of the criminalpretrial procedure includes three aspects: one is a purpose of guaranteeing thejudgment candor, which not only need judge the candor of the process, but also needthe pretrial procedure that judge the fair guaranteeing function. The pretrialprocedure is the tool value of the guarantee judgment realization, which removes thefair factor of the influence out of the court within the scope of its function, at thesame time, is advantage of the growth of the factor of the fair judgment value toguarantee the judge fair purpose. Two is a purpose that guarantees human rights.Because the judge procedure may bring the huge injury and risk of sentenced bymistakes to the defendant person, the pretrial procedure can get the purpose ofguarantee the accused everyone power to pass the public prosecution reviewingprocedure to rise to towards going the reviewing of the public prosecution powerover, in the future prospects preface of the court. Three is a purpose that carries outthe litigation efficiency. Making use of the simple and economical litigationcharacteristic, the pretrial preparation procedure may solve the influence factor ofgoing the trial as far as possible, avoid causing the interruption of the trial, and settlethe litigation delaying that the preparation items brings .Hence, the design of thepretrial procedure must be obey the purpose of carrying out the litigation efficiency.The third chapter is the value of the pretrial procedure of the criminalprosecution case .The value is the result that the function of demand and a body ofthe corpus can move, is subjective and objectivities to unify the body. In many valuesand the reasonable purposes of the pretrial procedure, the author thinks that the mainvalues of the pretrial procedure embody four aspects: one is the value that expels theprejudge, which is one of the importance values guaranteeing the fair purposerealization, also carries out important guarantees of the adversary trial models. Thedesign of the pretrial proceedings should carry through the value that can expel theprejudge, but eliminating the prejudge should not cancel the pretrial procedure, onthe contrary, should rationally set up it and develop the value of expelling theprejudge. Two is the value that guarantees the continuous trial, which gets therequest of the fair judge purpose and is particularly important under the adversarytrial models. The realization of the continuous trial relies on the deeper pretrialprocedure , which may cancel the influence factors of carrying out the continuoustrial to take up the worth realization of the continuous trial through the preparationactivities of the pretrial procedure. Three is the value that protects the defendantrights . The balance of accusing and defending is a basic principle of moderncriminal public protection. For getting to accuse to defend the both parties equal toresist, the defendant person's right to defense must be attention to in the pretrialprocedure . Fully guaranteeing the rights of knowing proof and applying forobtaining evidence is important means of realizing the equality of accusing anddefending in the pretrial procedure. Four is the value that guarantees the litigationjudge. The quick judgment is an important means that gets the litigation efficiency,also is important contents that guarantees the defendant person's rights. Passing thedetailed preparation activities of the procedure subjects, the pretrial procedure mayreduce the delay of the trial, accelerate the progress of the judgment, carry out theefficiency of judgment.The fourth Chapter is the comparison research of the procedure to the foreignpublic prosecution. Through the comparison research of the lawmaking practice ofthe foreign main nations and Taiwanese region of our country of public prosecutioninvestigation, the chapter theories analyzes the problems of the theory and thepractice that appears in the practice of public prosecution investigation. Finally, Theauthor draws the conclusions: Except Japan, main nations in the world and theTaiwanese region of our country have established the public prosecutioninvestigation mechanism, the purpose of which lie in keeping the public prosecutionpower from abusing, guaranteeing the defendant rights. The public prosecutioninvestigation procedure follows the principles: the principle of the open courtreviewing;the principle of the substance reviewing;the principle of the limitedreviewing;the principle of excelling prejudge;the principle of Limited defending.The public prosecution reviewing not only has its rationality theoretically, but alsohas its necessity of the existence practically .On the contrary, because it has notestablished the public prosecution reviewing procedure, Japan has resulted in thepublic prosecution power abuse and serious maladies of judge delay. The publicprosecution investigation procedure is an important mechanism that carries outhuman rights guaranteeing and also carries out many other value functions in thepretrial procedure.The fifth Chapter introspects and sets up the public prosecution investigationprocedure of our country pretrial procedure. Firstly, this chapter investigates thehistory and the present conditions and introspects the shortcomings of our countrypublic prosecution reviewing. Its shortages lie in: Exist the deviation up while is apurpose, which carries out the function of examining papers before the trial insteadof abusing the public prosecution power. Two is the lack of the function. The publicprosecution investigation of our country did not attach many other functions as othernations and regions in the world. Three is the iniquity of the procedure. The publicprosecution reviewing of our country only does the written reviewing of judge's oneside, not carry through the principle of open court reviewing. Secondly, this chapterputs forward to set up our country public prosecution reviewing that should followthe principles as follow. On the purpose it should prevent the public prosecutionpower abuse and guaranteeing human rights. On the function it should develop manyworth functions and carry out the functions of knowing the proof, excelling the proofand applying the proof investigation etc. On the procedure, it should carry throughthe principle of open trial. The concrete system design should establish the publicprosecution reviewing court in the different stage court and Practice the systems thatseparate the judger of the public prosecution investigation from the judger of the trialand that the whole case removes the court with the job power or be to open courtsession the condition of the reviewing with the application. After the reviewing thecourt should make a consignation judgment or reject the public prosecution. Theaccused proofs should move to send back the public prosecutor.The sixth Chapter is the comparison research of the preparation of the pretrialprocedure of the foreign criminal public prosecution case. This chapter researches thelawmaking and judicatory practice of the preparation pretrial in main nations in theworld and the Taiwan of our country, on this foundation, critique the differences andsimilarities of the preparation pretrial procedure in the different litigation modes, andprospects the development trend of the procedure of main nations in the world andregions. The differences of the preparation pretrial embody in different litigationmodes as follows: the Prepare worth principle dissimilarity of the procedure;the roledissimilarity of the litigation corpus actors of the procedure;the way dissimilarity ofthe procedure;The detail degrees dissimilarity of the preparation;the pointdissimilarity of the preparation. The similiarites of the preparation pretrial embody indifferent litigation modes as follows: The function that assurances smoothly opencourt;The function that knows the proofs;The function that excels the proofs;Thefunction that takes and protects the proofs;The function that tidies up the proofs;Thefunction that divides the case. Seeing the development of the pretrial procedure ofthe main nations and regions in the world, it has turned stronger and deeper trend.The seventh Chapter introspects and set ups to our country pretrial procedure.Firstly, this chapter studies the lawmaking provision and judicial fulfillments of thecurrent pretrial procedure and analyzes the blemishes of the pretrial procedure. Theblemishes of our country pretrial procedure mainly exist as follows: One is thedeviation of the purpose. Our country pretrial procedure is preparation activities thatthe court alone unilateral called before open court, not develop its purpose that theother law should follow the basis principle. Two is the lack of the function. Ourcountry pretrial procedure hasn't the function that guarantees continuous trial andrapid trial and fair trail. Three is the iniquity of the procedure. Our country pretrialprocedure is preparation activities that the court alone prepares , not fully develop thecorpus position of the client, disobey the basic spirit of the client trial mode. Finally,this chapter puts forward to set up our country pretrial procedure, which consists oftwo parts: one is the part functions that the public prosecution reviewing shouldrealize instead of the pretrial procedure, two is the preparation produces that the caseshould trial by the trial judger and the clients take active in the activities after thecase removed.
Keywords/Search Tags:Prosecution
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