Criminal Trial, Confrontation And Agreement

The re-amendment to the Criminal Procedure Law is imperative under the situation. The trial process is a core component of the whole criminal procedure. Whether the criminal procedure is perfect or not will have a great influence on the realization of the justice and efficient value of the criminal procedure. Taking advantage of the opportunity to re-amend the criminal procedure law, this paper departs from the traditional research modes of specific trial systems. It discusses the disciplines in the course of criminal trial process and surveys the relationship between contradiction and consensus of the accuser and the defender in the criminal trial with an all-around view. Modern procedural law respects and maintains the subject status and legal rights of the accuser and defender. Contradiction and consensus are two distinct relations between the two parties, yet they are connected closely. And in nowadays western countries' criminal justice, these relations are embodied in some extent. Through a comparative study, and after the evaluating and analysis of China's present criminal trial process, this paper puts forward some practical innovative propositions from the angle of harmony relationship between the contradiction and the consensus in criminal trial process.The paper is divided into introduction and six chapters.The first is the introduction, which illuminates the purpose and clue of the paper. China's Criminal Procedure law was revised a lot in the 1996 reformation, yet it still has lots of faults and deficiencies. Since the reformation of criminal trial process relates much with China's construction of law, it is also one of the important tasks of criminal procedural law re-amendment. The criminal trial process deserves much study according to its research value and its practical merits. The approaches of study in this paper are as following: it mainly observes the phenomena and relation modes of the contradiction and consensus, as well as studies several countries' criminal justice to find the situation and the trend of the adversary and consensus relations between the accuser and defender. And it reviews China's criminal trial from the aspects of justice and efficiency, at the same time it proposes constructive ideas with related system and procedures.The first chapter is a comprehensive view of criminal trial. It mainly discusses three themes, that is, the origin, function and role, and the value of criminal procedure. In orderto disclose the historical trace of criminal procedure and criminal trial so that finds the rules of criminal trial, the paper studies the origin of criminal trial. In modern society, the criminal trial plays an important role in resolving disputes, maintaining social order, setting up the authority of law and balancing all sorts of social interests. So the reformation of criminal trial process should consult the requirements of society development to set the orientation and aim of reformation, rather than limit view on criminal procedure narrowly. In the end of this chapter, it sets forth that justice and efficiency are the developing tendency of criminal trial process so the reformation should surround these two aspects.The second chapter is about the contradiction of the accuser and the defender in the trial. This paper defines the contradiction of the accuser and the defender as the foundational relationship. They have different stands in the criminal trial and both of them aim at winning the case during the whole adversarial course of debating and arguing. The contradiction relationship of the accuser and the defender is common in different trial modes, and it is also the basic relationship between the accuser and the defender. Just based on the contradiction, the principles such as cross-examination, trial argument, and defense are set up. As to the role and significance of adversary system, it should be viewed from two aspects: on one hand, it is good to seek the truth and safeguard the fairness of procedure;on the other hand, it also leads to some inverse effects. Keep a well balance may be the rational choice.The third chapter is about the consensus of the accuser and the defender in criminal trial. Based on defining the concept and connotation of consensus, and after reviewing the application and development of consensus in private law and public law, the paper sets forth that consensus in criminal trial is a new phenomenon and should be paid much attention. The consensus in criminal trial refers to the agreement between the accuser and the defender, which comes into being through adequate participation, communication, dialog and negotiation. Both of the two parties agree not only on important procedures and procedural items, but also on substantial problems. Plea bargaining, restorative justice and the right to choose process in summary procedure and so on are resulted from the consensus in criminal trial. There are deep theoretic bases for the criminal trial consensus, including balance of interests, acceptable ideas about justice, the subject in criminal procedure and efficiency of procedure. The paper states the active meaning of consensus in criminal trial, at the same time it discusses and analyses the relating problems, such asthe dissimilation of consensus.In chapter Four it discusses the relationship between the contradiction and consensus of the accuser and defender in criminal trial. The paper puts these two distinct relationships together, analyses the complicated connection between them. In different procedure structures, the two modes show varying characteristics. The contradiction and consensus of the accuser and defender are consolidating in the trial process. Every criminal trial has a combined relationship between the accuser and defender. The conflicts between these two modes should be harmonized with the principle that "not too emphasize either of them".Chapter Five analyzes the first reformation and amplification of Chinese Criminal Procedure from the viewpoint of contradiction of the accuser and the defender, this part and the next part uses many cases to illustrate the thesis. From the regulation of criminal procedure, the paper points out that the defects of the contradiction has severely damaged the justice and the efficiency of criminal procedure, thus needs to be improved and amplified.Chapter Six analyzes the second reformation and amplification of Chinese Criminal Procedure from the viewpoint of consensus of the accuser and the defender. The paper points out the drawbacks of the consensus in our criminal trial. We should absorb the consensus of the accuser and the defender limitly and construct relevant system and procedure.