Regulatory Research On Criminal Judicial Reports

Regulatory mechanism of criminal judicial reports is an important part of the criminal procedure law, it is intended to reconcile the conflicts between fair trail and freedom of expression in criminal proceedings which are basic value in democratic society to achieve the win.lt has been a great concern of criminal judicial reports and legal problems brought about with the media’s intervention into social political,economic and cultural life comprehensively.Whether common-law countries or civil-law countries have established sound and mature regulatory mechanisms of criminal judicial reports, China still does’t have the scientific and rational one.The existing regulatory mechanism of criminal judicial reports has serious defects in the authority,integrity,operability and harmony of the mechanism. Aphasia media and trial by media caused by incomplete mechanism have become the important symbol of criminal judicial reports’dissimilation.This dissertation will explore the pertinent problems on criminal judicial reports and will help to the foundation of regulatory mechanism and the solution of practical problems.This Ph.D dissertation consists of five chapters and the introduction,total 240000 words.The introduction explains the research origin,research actuality and research methods,and define criminal judicial reports and legal control.Chapter one explores why criminal judicial reports should be safeguarded and restricted. Today is a time when media penetrated into social life more and more,criminal judicial reports which possesses justification awarded by the right of free speech,the right to know and supervise should be safeguarded. Specifically,the right of free speech,the right to know and supervise award criminal judicial reports such values as the advancement of public knowledgements,the improvement of democracy and the clear of bad emotion,and help to strengthen public confidence in justice,achieve knowledgement about social safety and order.As far as jurisprudent bases are concerned, this dissertation hold that any right and freedom has its border and must be restricted by ethics,democracy and law, criminal judicial reports also must be restricted by ethics,democracy and law. As far as practical bases are concerned,this dissertation holds that the press is a strange mix of good and evil forces,it has not only positive significance but also negative effects. The increasing tensions and conflicts between criminal judicial reports and dependent justice is the most direct actual reasons why criminal judicial reports should be restricted.Chapter two introduces the theory,system and practice of criminal judicial reports in common-law countries and civil-law countries and international rules,analyses the reason why difference between common-law countries and civil-law countries came into being. This dissertation firstly compares America’s regulatory mechanisms of criminal judicial reports with England, point out their common characters and main differences, analyses their reasons. This dissertation holds that the historic fact they involved from the same orign enables them to have the following common characters:multi-pronged regulatory approachs——simultaneously adopt the legislative, judicial and media’s self-regulation way, regulatory methods both before and after——adopt prevention,remedial and deterrent measures. But America and England also have great difference:America emphasizes the judicial control,England stressed the legislative restrictions;America paies attention to answer after the event, remedial strategies for dealing with prejudicial publicity are predominant with deterrent and preventative strategies playing a very limited role.in the U.S., England focus on the deterrence through penal sanctions, remedial strategies and preventative strategies only are ancillary strategies.These differences are embodied in the following four aspects:firstly,the object of regulation which is emphasized particularly on is defferent,America focuses on the extracourt statements of both parties,England puts their eyes mainly on the restrictions on media;secondly,special remedial strategies is different, England has no such remedial strategies as jury-seguestering and jury-summoning which America has, the simplified voir dire enables England not to preclude juror which have prejudice from jury just as America do;thirdly, the means and scope of information collection are different,in England repoters only can collect information by way of taking notes and recording, photo-taking,sketch-drawing,video,broardcast and so on aren’t permited to use, the use of recording also has serious restrictions, the procedural documents and evidences reporters collect from the court are narrow, in America,media has more means of information collection,reporters can not only take note and record but also take photoes, draws ketch,video,live or broardcast. By way of the right to access to court documents almost all evidences and documents can be collected from court by reporters;lastly,the restriction on content of reports is different.England has made detailed restrictions on interrelated matters in juvenile case and special cases,but there are not any restrictions on the contents of criminal judicial reports in America.These reasons that causes these differences is that there is some distinctness in their constitutional spirit, legal culture and trial system.This dissertation then reviews the regulatory mechanisms of criminal judicial reports of civil law countries like Germany,France and Japan, finds that it has the character of high trust in and opening to media, emphasizes the legislative regulation on reporting contents and extracourt statements of both parties, and lack remedial strategies after the events, exemplary measures and preventative strategies such as media prior restraint which Anglo-American law system has. The different infulences which trial orgnization has been put on and the different judicial power in different legal traditions bring about the above differences which lie in the two law systems. At last this dissertation reviews international standards in regulatory mechanism of criminal judicial reports,and finds that international community have founded international standards from the perspectives t of the approach and relief of judicial power,restricting report contents and standardize extracourt statements.Chaper three analyses targets and principles which regulatory mechanism of criminal judicial reports must pursue and adhere to. This dissertation first explores regulatory targets of criminal judicial reports,and considers that promoting judicial efficiency,protecting civil right and maintaining public order and good morals should be targets and guides of regulating criminal judicial reports, and explores why and how to realize these targets.Then,this dissertation demonstrates basic principles which we should adhere to when we regulate criminal judicial reports:presumption of innocence,the principle of balance of interests,the principle of dynamic regulation and the principle of proportionality,and discusses how to carry out these principles.Chapter four analyses the present status of criminal judicial reports and its regulation. Firstly,the dissertation summarily runs back over the history of criminal judicial reports since 1949.So far it has undergo three phases:preliminary development of early period, out-of-order of the cultural revolution period and resumement and development since reforms and opening up,and plays a positive role of social watchdog. Secondly, this dissertation particularly analyses the problems and its harm of criminal judicial reports at present stage,and finds that the coverage space of meidia nowadays is still limited subject to strict administrative regulation, As far as many criminal cases are concerned, the media aphasia such as media’s refusal to report due to abandonment of responsibility and unenability to report can be found everywhere, it seriously hinders the public from exercising efficiently their right of free speech,their right to know and supervise.At the same time trai by media also is a prominent social problem because mass media makes a great deal publicities surrounding the major cases with a strong impact and draws a conclusion that the person suspected or asscused is guilty,innocent,or has won or lost a lawsuit prior to procedure.Large numbers of excessive, unilateralist discriminated and false coverages seriously impair criminal investigation, the independence of judicatory and the legal rights of the person suspected or accused.Thirdly, this dissertation deeply explores the reasons that lead above appearances,and finds that media driven by advantage, media personnel with defective attainments and judicature with no self-control are social cause, unbalanced administrative control system,seriously distorted judicial arrangement sysstem and organ-style media management system are causes in system,the traditional legal culture that pursuit substantive justice and beihavior habit of trusting in media blindly are cultural causes.Lastly,the dissertation researches the difficiencies of the present regulatory mechanism based on exploring its prensent status.This dissertation points out that there isn’t special press law which regulate criminal judicial reports in China, the existing regulatory mechanism consists of constitution,law,policy,judicial interpretation and journalist ethics.By virtue of these systems, major contents of regulatory mechanism have been established.Although these progress and achievements, regulatory mechanism of criminal judicial reports still has severe difficiencies: the lack of authority,simplification of regulated measures,abstraction of interrelated rules,contradiction and illegibility of existing rules and regradation of some rules.Chapter five debates the design of regulatory mechanism of criminal judicial reports in China.Firstly,this dissertation explores the standpoint and pattern which we should select, and finds that it is the obligatory selection to recognize the premise of press freedom and preferentialy protect the person suspected or accused when criminal judicial reports and independent judicature and the civil right of the person suspected or accused conflict,which not only is the demand of international trend,but also is the needs of current conditions.Furthermore, Legislation law of China,model of legal education and limited judicial power enable us to adopt more suitably the legislative model of civil law country than judicial control model of America.secondly,this dissertation explores material technical design.This dissertation points out that the regulatory mechanism of criminal judicial reports should integrate the current conditions of China with helpful experiences of western countries, establish the scientific and rational regulatory mechanism from the following aspects:improve the justice spokeman system,standardize information release during various procedure stages;establish secret-maintained system,standardize the extracourt statements of judicial officers;perfect public hearing system,guarantee the constitutional right to approach court;set up the legal system on live or broadcast,standardize media’s coverage;establish report-delayed system,keep media away from impacting judicial activity;perfect the remedial system of prejudicial publicity and countability system,eliminate the influence of prejudicial publicity.Thirdly,this dissertation explores the assistant measures which support the regulatory mechanism of criminal judicial reports,and take it for granted that we should push judicial system’s reform by perfecting the furnishment system of judicial fund,optimize the configurement reform of court’s internal authority,speed up reforming judicial selection system; we should perfect media’s professional ethics system,strengthen self-discipline by intensify professional ethics and improve the legal literacy;we should build good legal culture and enhance the citizens’legal awareness by reinforce popular legal education and cultivate the ideas of procedural justice to make people keep calmness and mind when they face media’s prejudicial publicity.