On Examination Of The Accused

This dissertation consists of an introduction and five chapters.The research motivations and research purpose are elaborated in the introduction. There are two main reasearch motivations in this dissertation:one is practical, and the other is theoretical. The one from practice chiefly originates from the author’s judical practice in China’s mixed-modes trials. In actual judicial practice, the author has deeply felt found some problems of China’s mixed-modes, especially such problems as the default of appearance on the part of the witnesses, adopt evidences during trial, and investigation of the accused. The thearetical motivation mainly stems from the current domestic research situation. Until now in the academic circles there has been no separate or systematic research into examining procedures for the accused. Thus the purpose of this dissertation is that special attention should be paid to the improvement of examining procedures for the accused while adequate emphasis is laid upon China’s mixed-modes.The first chapter is a detailed retrospect on the historical evolution of the accused’s status of litigation in the west. The unique feature of this chapter in terms of its statement is that characteristics of examining procedures for the accused is studied, espeically a textual research is conducted at length on the evolution of examining procedures for the accused in continental law, whereas trial modes in different periods of western history are simultaneously surveyed.The second chapter contains the elaborate and meticulous investigation and analysis on the process, cause, thought, basis, and actionable value of the formation of examining procedures for the accused in modern civil law and common law. In modern civil law, examining procedures for the accused is formulated following the abolishment of inquisitional proceedings that feature inquisition by torture and judicial oath system, and the said procedures have been profoundly influenced by the humanist thought of enlightment thinkers like Montesquieu, Voltaire, Beccaria, and Kant. The process of the formation of the examining procedures for the accused in common law is the one in which the accused accquires the right to testify. The formation of the system in which the accused is a witness in common law is greatly influenced by Benthamism. Through comparative analysis it is found that the inquisitorial procedures for the accused in the civil law system are more benefical to the discovery of the merits of cases, while the counterparts in common law sytem can better guarantee the human right of accused.The third chapter examines respectively the traits of the mixed-modes, and meanwhile a transverse comparative study is conducted. The primary purpose of doing this is to discover by comparason which features from the mode of the court-control have been maintained in the mixed-modes and which features in the mixed-modes have been employed in reference to the party-control in the hope of finding somthing general and regular so that they can justify the improvement of China’s comparative law discussed in Chapter V in terms of China’s mixed-modes. Apart from the comparason of court trial modes, this chapter eventually puts the comparative perspective on the principles applicable to the examining procedure for the accused. It is found by comparason that in the mixed-modes, examining procedure for the accused have been greatly altered:the inquisitorial investigation against the accused has been replaced from the opening stage to the evidence presentaton stage by the defense; the mode of"cross-examination+interrogation by court-control"is generally adopted in the investigation against the accused; and the accused enjoys relatively complete right to state his own case. Among the changes, the first one stems from the practice of the trial mode of party-control; the second change mainly features party-control, and the third fundamentally maintains the style of court control.The fourth and fifth chapters examine procedural features of China’s mixed-modes and also examine the examining procedures for the accused. Two chapters first examine the gradual process ofthe China’s court trial mode and inquisitorial procedures for the accused. Then come the key expoundation on the formation and procedural features of China’s mixed-modes and examining procedures for the accused are analyzed under China’s mixed-modes. What follows next are the expoundation and proof of the reasons why China’s mixed-modes should be strengthened together with the meticulous analysis of existing problems in the examining procedures for the accused. Finally, the author points out that China should reform the current China’s mixed-modes and promote such reform by focusing on the improvement of examining procedures for the accused. This dissertaion puts forward the following argumentation:the reform of examining procedures for the accused should be conducted in reference to the experience of those contries and regions with the trial mixed-mode. For instance, the accused can be the defense’s proof means and be granted the right to silence; and and during investigating evidences, "convicting" and "sentencing" can be properly separated. However, China should not indiscriminately imitate certain practice of those countries with the trial mixed-mode, such as the investment of liberty right to the accused notwithstanding the accused has renounced his right to silence and choose to state his case. Such practice apparently violates the objective duty to be undertaken by the accused as proof means, and it is also likely to disturb the order of evidence presentation at court. This dissertation whereby raises this point:when the accused renounces his right to silence and choose to state his case, he shall be imposed legal liabilities to tell truth, that is, the objective duty on the part of the accused as proof means.