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Witnesses In The Criminal Trial Investigation Procedures Study

Posted on:2008-01-28Degree:DoctorType:Dissertation
Country:ChinaCandidate:Z H HeFull Text:PDF
GTID:1116360215972742Subject:Criminal Procedure Law
Abstract/Summary:PDF Full Text Request
Criminal witness investigation is the center of criminal evidence investigation on trial. Inmodem legal countries, witness investigation which the whole process of proof goes around isthe heart of legislation design of investigation procedure on trial. The investigation ofphysical evidence and documentary evidence is advanced in the way of inquiring witness. So,criminal witness investigation on trial is the core of evidence investigation, which has a keyrole in the whole evidence investigation even in the smooth operation of the proceedings. Thethesis starts with the meaning of relevant concepts of criminal witness investigation procedure,then compares and analyzesthe concept of witness testimony, the subject of witnesstestimony, the subject of witness investigation, as well as the procedure of criminal witnessinvestigation in court, protective systems and rules, the issues of presence on trial to provideevidence in the two legal families. It also probes deeply and extensively the procedure ofcriminal witness investigation and its developing tendency. At last, it analyzes the presentsituation and shortcomings of criminal witness investigation mode and procedure, meanwhileputs forward reform construction in accordance with national conditions. The thesis is about180,000 words, which has six chapters except for preface and epilogue.The preface elaborates the meaning of choosing the subject, current status of study aswell as study ways.Chapter one is introduction. Firstly, it analyzes the meaning of witness testimony,witness investigation, subject of witness testimony, subject of witness investigation and theprocedure of witness investigation on trial, pointing out witness investigation in the text isonly confined to criminal public prosecution cases triated in ordinary, proceedings in firstinstance, and witness investigation procedure here is the process within the law, following ascertain means, range, ways, order. Secondly, it claims the pattern of witness investigation issubject to litigation mode, also compares with and analyzes the pattern of promoting byparties and the pattern of presiding by judge. Lastly, it discusses general principle of witnessinvestigation from the perspective of legal theory, and indicates that witness investigationshould follow the principle of direct verbalism, concentrated investigation, open investigation, equal participation, investigation subject to law, just investigation and so on.Chapter two makes a comparative study on the procedure of criminal witnessinvestigation on trial in the two legal families. Firstly, it makes a comparative analysis on themeaning of subject of witness testimony and subject of witness investigation, and suggests inthe common law system the subject of witness testimony generally refers to sensu lato witness,which include the accused, the accuser, sense stricto witness, expert witness, appraiser and soforth, while the subject of witness testimony in the civil law system usually include theaccused, the accuser, sense stricto witness, appraiser. It also proposes that in the common lawsystem the subject of witness investigation are litigants and counsels, generally speaking, thejudge does not intervene in the investigation, while in the civil law system the chief subject ofwitness investigation is judge, and litigants only play a supplementary part. Secondly, fromthe aspects of witness investigation preparatory procedure, initial procedure, means, range,way of presenting witness, order and so on, it carries out comparative review on theregulations about witness investigation procedure in two families of laws, and especiallypoints out, to certain extent, there are cross-examination, authoritative enquiry, confrontationexamination in both families of laws, but their meanings and concrete representations aredifferent. In the common law system the main means of investigation is cross-examination,with authoritative enquiry few used in given circumstances, as well as cross-examinationbeing only complementary in the civil law system. Lastly, it makes a comparative analysis onprotective systems of the two legal families, meanwhile elaborates the adversary system,pre-trial evidence exhibition, perfect system of defense, and some protective rules as follows:hearsay evidence, prohibiting from doubting the self witness, forbidding leading a witness inmain-enquiry, inquiring witness alone, objection, opinion evidence and so on. The authorclaims that it is necessary to establish some related systems in the civil law countries whichinclude mainly the principle of direct verbalism, although their protective rules and correlativesystems are not complicated and precise as the common law countries'.Chapter three studies the contemporary development of the modem procedure ofcriminal witness investigation on trial. Firstly, it shows that regarding to the mode andprocedure of criminal witness investigation on trial, there is a tendency of mutual reference and mergence between both legal families, at the same time one mixed investigation patternappears which absorbs the merits of both the mode of promoting by parties and the mode ofpresiding by judge. Secondly, it makes an analysis on the meaning of subject of witnesstestimony and subject of witness investigation of the mixed pattern, and examines theinvestigation procedure of it. It also indicates that the mixed pattern assimilates positivelythe virtues of cross-examination, trying to keep the conditional use of authoritative enquiry,building up "mixed" cross-examination, in which the chief part is cross-examination, withauthoritative enquiry being complementary, and the system of investigation means composedof authoritative enquiry and confrontation examination. Thirdly, it advances the "mixed"investigation pattern goes with the witness investigation procedure absorbing adversarydoctrine, and sets up some evidence rules. The author probes mainly the rule of hearsay.Chapter four analyzes the current situation of the procedure of criminal witnessinvestigation of our country. Firstly, it analyzes the present pattern of witnessinvestigation, and states that the trial still tends to authority doctrine, as well as the pattern ofwitness investigation also assimilates partly positive factors of the mode of promoting byparties, thereby the judge still plays a dominant role in the whole witness investigation,although the pattern of investigating witness by judge has been changed, establishing thepattern of investigating by the defender and the accuser, meanwhile with no exception ofinvestigating by judge. Secondly, it states that concrete investigation procedure has made agreat progress in contacting with the world as a whole, but as to legislation there are somefaults. These faults are as follows: first, the ambiguous concept of subject of witnesstestimony and subject of witness investigation; second, the considerable simplicity ofpreparatory procedure of witness investigation; third, the lack of definite range of witnessinvestigation; fourth, the serious separation of means of witness investigation on legislationfrom what in judicial practice; fifth, the dim means of witness presence; sixth, the unspecificregulations of the witness investigation order; seventh, the delay of technical rules andrelevant systems.Chapter five studies the reform of the procedure of criminal witness investigation on trialof our country. For one thing, it claims that the reform should insist on principle of basing on "native resources", protecting basic human rights, integrating justice and efficiency, and so on.For another, focusing on the existent problems, it advances reform conception as follows: first,establishing the investigation pattern in which the defender and the accuser can confrontequally and sufficiency under the judge presiding; second, defining the meaning of witnesstestimony in accordance with lawsuit mode; third, perfecting the preparatory procedure ofwitness investigation; fourth, building up the system of investigation means thatcross-examination is put in the first place, with the authoritative enquiry and confrontationexamination as necessary complement; fifth, clarifying the scope of witness investigation;sixth, founding the means of witness presence which combines the free statement mode withquestion and answer mode; seventh, constructing the order of witness investigation of themixed mode; eighth, establishing and perfecting technical supporting rules; ninth, perfectingthe relative institutions, and so on.Chapter six makes a research on the issues of witness presence on trial. Firstly, the thesisexplores the issues of the presence of sense stricto witness. It compares with the system ofsense stricto witness presence on trial in the two legal families, and points out the seriousphenomenon that witness is not present on trial, then puts forward reform conception ofsetting up the system to compel witness to be present, conferring witness the privilege ofrefusing to give testimony, making the system of security protection and economiccompensation more perfect. Secondly, it studies the presence of police to give testimony. First,it analyzes the meaning of it, and indicates that the police in this text only refer to the personwho know some facts about the case because of taking in charge of investigating cases, withthe exception of those who learn it for executing duty. Second, it makes analysis on thepresence of police to provide evidence, from the perspective of legal theory, which, as theauthor is concerned, is the inevitable requirement of the adversary, system, the principle ofdirect verbalism and the rule of hearsay, as well as guaranteeing human rights and therelationship between police and public prosecutor. Third, it analyzes comparatively thesystem of the presence of police who deal with the routine work of investigating in the twofamilies of laws, and suggests that most countries, whether in the civil law system or in thecommon law system, admits that: the police is competent witness and is liable to be present on trial if necessarily, according to the request of the defender and the accuser or thesummons of the judge. Fourth, it proposes classifying the police to witness for the prosecutionand the police should be present on trial to give testimony, on grounds of the fact that there isno regulation of the presence of police who have engaged in investigation encouragement andbelieves they should be present, but the means should be paid more attention. Lastly, itresearches the presence of appraiser. First, it explores the meaning of appraiser of the twolegal families. In the common law system, appraiser called "expert witness" is thought asscientific assistant of the parties, comparing with the above "expert witness" being expressedas "appraiser", which is regarded as assistant of the judge, in most countries of the civil lawsystem. Second, it compares with the regulations regarding to the presence of appraiser inboth legal families, from the aspects of the procedure of examining qualification, theprocedure of appointment, the system of compelling appraiser to be present in court. Third, itprobes the problems of appraiser of our country, and proposes clarifying the concept andcompetency of appraiser, establishing the system of forcing appraiser to be present, endowingthe rights of choosing appraiser to the defender and the accuser, establishing the procedure ofinitiation and notification.
Keywords/Search Tags:Investigation
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