Study Of The Legitimacy Of The Survey System Of Criminal Trial

The legitimacy is a foundational political concept, which explains what power can be acceptable. There are differences and also relations between the criminal procedure's legitimacy, the due procedure and the procedure justice. In a time of right and reason, what special characteristics the criminal procedure should have to be justified? As the core of criminal procedure, how the investigation in the court should be legalized? This is precisely the question that this article attempts to reply. This article divides into five chapters, discussing separately from the concept and the connotation of legitimacy, the history of criminal hearing and comparison of today's procedures, the legitimacy in criminal hearing's structure, in the procedure and the evidences rule.The legitimacy in the ancient times proved to be as a divine will, in the Middle Ages as the regality, today as the public opinion which displayed through the democratic procedure. The reason that the democracy has the quite complete legitimacy, is because it highly value and guard individual' subjective status, technically prove to be reasonable. The justice system has the legitimacy only when it manifests both the humanism and the rationality, both the participation and investigation effectively. So the criminal hearing investigation may follow principles to be legitimate such as equal participation, investigation direct and in words, debating and questioning witnesses, public and concentrated. In the history of criminal procedure both the parties tended gradually to be equal, the accused person' status raised, the evidence system became more mature; Now compared adversary trial system with inquisitorial system, we cannot draw a conclusion which is better to find out the facts, but draw one that adversary mode hearing system provide both parties with more fairness and equality. The history of inquisitorial system in our country' tradition is long, although we have transplanted the cross-examination system from adversary system, the hearing in court still is expected to be improved with the humanism and the rationality.Looking from the hearing system' structure, our country' hearing layout is like "the umbrella type" one. First we should safeguard the accused' subjectiveness status and the right not to self-incrimination, give the defendant rights to confront, to counsel, to select process, to relief, to learn information and so on. Judge should decide neutrally, control the order in the court and keep the balance of equal-armed; with the responsibility to investigates thoroughly the fact he can investigate according to three principles of relatedness, the necessity and the possibility. The lawyer should participate fully in hearing process and in the hearing procedure, communicates with the accused and defend the right. As the special participant the victim should retreat from the party status, just take part in the pre-trial procedure as well as the civil procedure.As the hearing process, it is better to research overall than only focus on the first trial ordinary procedure as the object. Basing on the defendant' rights, we can design several types of courtroom investigation process called diversification. Change the ordinary procedure into adversary system and the simplified procedure into inquisitorial system. Depending on whether the accused confess, we can tell the discrimination between the ordinary procedure and the simplified procedure. The courtroom inquires is typical characteristic of litigation system, not agreeing with adversary system. The accused person should has the right to silence, and we set the courtroom inquiry after the evidence investigation, just as the Japan and Italy's experience; In the simple procedure inquires get the importance, and in the adversary system we attenuate inquires. Improve cross-examination rule, which can arouse the both parties enthusiasm fully, change the technical-oriental to the right-oriental, and substantialize the confronting.The evidence system is a manifestation of rationality. The evidence rules are the essential factor authorizing judicial system the legitimacy. The judgment-on-evidence principle exerts great influences on rationally solving disputes, setting up the judicial authority, safeguarding fair trial. Our criminal procedural law should implement the judgment-on-evidence principle; take this as core to establish evidentiary rules system. In the UK-US legal system, the evidence acceptability is decided by the evidence exclusive rule; in the mainland legal system the evidence of qualifications are decided by the evidence forbidden rules. Our country may refer to the international experiences to establish evidence exclusive rules initially in illegal confess. For protect the right to confront and cross-examination, we may absorb the hearsay rules, simultaneously regulating the direct and verbal trial principle. At the same time, considering the current pressure over the witness appearing in courtroom, we should formulate the reasonable exceptions; adopt the hearsay with credibility and necessity.