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The Study Of Divisions In Criminal Trial Procedure

Posted on:2009-03-22Degree:DoctorType:Dissertation
Country:ChinaCandidate:X H YeFull Text:PDF
GTID:1116360272483878Subject:Procedural Law
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To make divisions in criminal trial procedure is not only a theoretical problem but also a problem of strong practicability.It is of great theoretical research significance and value to study into the criminal trial procedure in this new perspective of procedure division.This dissertation, based on a review of the theories and practices of procedure division of criminal trial abroad,through a comparative study,comes out with the author's own viewpoints on application and improvement of procedure division of criminal trial in China.The whole dissertation contains seven parts:ChapterⅠ,International outlook and Chinese problem on procedure division of criminal trial.Based on the concept definition of procedure division of criminal trial,this chapter analyzes its internationalization tendency and Chinese problem in a macrographic perspective.It is stressed that procedure division of criminal trial is favorable to the protection of accused person's human rights,the reform and improvement of the mode of trial,and fundamentally to the promotion of judicial justice. The basic mode for procedure division of criminal trial,which is also the reform mode of our existent summary procedure and simplified trail of common procedure,is to absorb the appropriate elements of the simplified trail of common procedure and reconstruct it,thus to extend its scope of application.Meanwhile,to add procedures promoting trial simplification, like penal order procedure,criminal plea bargain procedure,etc.ChapterⅡ,Theoretical foundations of procedure division of criminal trial.It is pointed out in this chapter that the theoretical foundations of procedure division of criminal trial are theories of Harmony, Justice,Efficiency and Principle of Combining Punishment with Leniency. Furthermore,it expounds how to apply these theories in procedure division of criminal trial.ChapterⅢ,Determination procedure of procedure division of criminal trial:pre-trial review procedure.Pre-trial review procedure,also called preliminary procedure,is an important link connecting prosecution and trial.It is a procedure to decide the distribution of criminal trial procedure.It is of great importance to the case coming to the trial stage to choose what kind of procedure for trial.The author in this chapter makes a comparative study of the pre-trial review procedures abroad and a retrospection and comment of the pre-trial review procedure in China,and provides a reform proposal to it,namely,the pre-trial review procedure should be position-set as an independent preliminary procedure,rather than only a preparing step for courtroom trial,and there should be a preliminary trial judge system to ensure the separation of preliminary trial judge and trial judge.ChapterⅣ,Procedure of penal order.Procedure of penal order is a summary procedure dealing with simple slight criminal cases in civil law countries.It is a trial without court hearing,or a documentary trial.After a comparative study of the procedures of penal order abroad,the author analyzes the necessity and feasibility of establishing the penal order system in China,and gives a concrete construction of establishing penal order system in China.ChapterⅤ,A research on the reform of summary procedure and simplified trial of common procedure.First of all,this chapter determines the concept of summary procedure,and distinguishes between the summary procedure in a narrow sense and the one in a broad sense; secondly,it studies and compares the foreign legislations of summary procedure and simplified trial of common procedure;thirdly,it retrospects and comments on China's summary procedure and simplified trial of common procedure;finally,it advices to reconstruct our summary procedure by integrating the existent summary procedure and simplified trial of common procedure into one procedure,viz.the summary procedure for defendant- confessed cases.ChapterⅥ,Procedure of criminal reconciliation.Reconciliation means to reconcile the dispute by considerate means.On the basis of a comparative study on foreign legislations of criminal reconciliation procedure and practical operations,the author has an analysis of the traditional "He-he" culture,on which the criminal reconciliation system in China relies,and the realistic interest base of the system,thus recommends to establish the criminal reconciliation system in China.ChapterⅦ,Procedure of plea bargain.Based on a comparative study of foreign legislations of plea bargain procedure and practical operations,the author analyzes that plea bargain system in essence is a system tied up to the adversarial proceeding mode of common law system, and it is better not to bring in this system since there is no such soil for it in China at the present time.
Keywords/Search Tags:Procedure division of criminal trial, Pre-trial review, Penal order, Summary procedure, Criminal reconciliation, Plea bargain
PDF Full Text Request
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