On System Of Submission Of Case Materials To Court

Besides preface,epilogue and appendix,this dissertation primarily comprises four chapters,Chapter Three and Four of which are the most important.The Preface introduces briefly the theoretical and practical value of research of submission of case materials to court in ordinary procedure of first instance applied to cases of public prosecution,the research situation about it at home and abroad,the structure and methods of this dissertation.Chapter One mainly studies general issues of submission of case materials such as case materials’ meaning,their forming process and internal structure in different contexts,and the meaning of submission of case materials,its types and relation to litigation structure,etc.Chapter Two respectively and detailedly studies systems of submission of case materials,their supporting systems and operation effects in the main countries under the rule of law such as France,Germany,England,America,Japan and Italy,making it clear that submission of case materials is not an isolated system,but a complex systematic engineering which cannot operate effectively or achieve the expected effect without necessary supporting systems.Chapter Three first examines and analyses the legislative and judicial practice of the way of submission of all case materials in the mainland of China,then elaborates on the basic content and operation mechanism of China’s existing system of submission of duplicates of major evidence,finally emphatically analyses its operation effects and reasons.Chapter Four first introduces and analyses various approaches to innovate the present system of submission of duplicates of major evidence in China,then puts forward the three-step scheme which indicates that the Indictment-only Doctrine and preliminary hearing system should be constructed step by step in China.The Epilogue summarises the main content,innovations and deficiencies of the dissertation.The Appendix makes a statistical analysis of the questionnaire result on the transfer of case materials and questions related to it in diagram and other forms.The submission of case materials in criminal procedure can be defined in broad and narrow senses:in broad sense,it runs through the criminal proceedings,but according to the current study situation at home and abroad,the narrow sense in which submission of case materials to court by procuratorate in the ordinary procedure of first instance draws researchers and practitioners’ more attention and has become a most controversial issue.According to the submission time,step and amount of case materials,the narrow sense of submission can be divided into different types.The narrow sense of submission of case materials did not come into being until division of criminal process into pre-trial and trial phases,and differentiation of functions of investigating and judging between prosecutor and court in modern litigation.The system of submission of case materials is closely linked to litigation structure:on one hand,the former is not only extrinsic manifestation of the the latter but also decided by the latter,and if the latter changes,the former will change sooner or later;on the other hand,the former serves the latter,which can promote or postpone the latter’s development.The criminal litigation can be classified as longitudinal and transverse structure.The way of submission of case materials is an important indicator to judge the type of longitudinal structure,according to which submission of all case materials and Indictment-only Doctrine are respectively considered as symbols of continuous structure and incontinuous structure.Since the way of submission of case materials has a great impact on judges’ neutrality and the defence’s equal confrontation with the accuser,it has been considered as a standard judging the type of transverse structure:the way of submission of all case materials is a symbol of linear structure,while Indictment-only Doctrine is inevitably required by isosceles triangle structure.The inquisitorial system in modern continental countries,which radically redesigned their traditional inquisititonal system by absorbing large doses of the accusatorial system,has more features of linear structure.The reason why the civil law countries adopt chain-like submission is that they advocate crime control and adopt litigious procedure of ex officio doctrine.The system of submission of all case materials can effectively prevent public prosecution being abused,and is conducive to the realization of the defense’s right to dossier,discovery of the truth and promotion of lawsuit efficiency,but it makes trial hard to be separated from investigation,fact-finder hard to keep neutral,the defense unable to confront with the accuser equally,the trial easy to be formalistic.The adversarial system used in common law countries which was derived from British medieval accusatorial system,pays more attention to protection of human rights and power restriction,and apparently has more characteristics of triangle structure.In form,the prosecuting way in common law countries is Indictment-only Doctrine,though it is not all the same in these countries,under the protection of a series of mechanisms of exclusion of prejudice,fact-finder’s mental impression before trial is in fact in a blank state,so the prosecuting way in essence is still Indictment-only Doctrine.The reason why the common law countries adopt Indictment-only Doctrine is that they advocate protection of human rights and adopt adversary system.In order to overcome the disadvantages of Indictment-only Doctrine such as litigation inefficiency,etc,the common law countries have successively stipulated explicitly many supporting measures such as review of the public prosecution,arraignment,count,disclosure of evidence,opening statements and direct-and-cross-examination at trial,etc.After the Second World War,Japan abolished completely her traditional submission of all case materials and established Indictment-only Doctrine so as to prevent judges from prejudging.Although the Indictment-only Doctrine has been acknowledged by researchers and practitioners in Japan as an important measure to fulfil citizens’ constitutional right to a fair trial,which can prevent trial judges from prejudice and keep them free from inadmissible evidential materials,under the influence of subjective and objective factors,it does not work well in judicial practice and does not realize the lawmakers’ desired objectives,furthermore,due to lack of supporting systems,it has unexpectedly brought some negative influences to Japan’s criminal action.As another representative of hybrid model of litigation,Italy reformed the system of submission of all case materials in the process of criminal judicial reformation in 1988.However,the newly-established system of submission is neither traditional submission mode nor Indictment-only Doctrine,but a hybrid mode that combines them organically by taking two-step-submission strategy.The two-step submission in Italy to which the scholars and officials throughout the world have paid close attention has not only promoted realization of the principle of direct-and-verbal trial,but also led to the reconstruction of the relationship of investigation and trial,of the accuser,the defence and the judge.Since separation of functions of prosecution and judgement within criminal procedure,and division of criminal process were preliminarily accomplished in the legal reforms in the Late Qing Dynasty,if not to mention the character of regime and class nature of legal system,the system of submission has undergone a change from submission of all case materials to submission of duplicates of major evidence in the mainland of China.Submission of all case materials adopted in the mainland of China before 1997 can be found not only in the criminal judicial practice of the New-democratic Revolutionary Regime,but also in the criminal procedural laws enacted by the Republic of China and the Late Qing Government.The system of submission of all case materials adopted in China before 1997 was helpful for court to review the prosecution initiated by the people’s procuratorates completely and prevent the right to prosecute being abused,for the defence to comprehensively learn the case information and be well ready for defending in court,for the judges to fully exert their power during trial,and hence was advantageous to enhance lawsuit efficiency,but in criminal judicial practice,it made trial hard to be separated from investigation,fact-finder hard to keep neutral,the defence unable to confront with the accuser equally,the trial easy to be formalistic,etc.While amending the criminal procedural law in 1996,the National People’s Congress indirectly reformed the traditional system of submission of all case materials by significantly changing the prerequisites for the court’s decision to try,but did not borrow the Indictment-only Doctrine from Japan.After that,the following two kinds of submission of case materials are directly formulated in the regulations successively promulgated by the Supreme People’s Court,the Supreme People’s Procuratorate and other state organs:one is submission of duplicates or photos of major evidence in the case of ordinary procedure;the other is traditional submission of all case materials in the case of summary procedure.From the perspective of legal texts,the way of submission of limited case materials established in China lays foundation for adversary system,etc,but in judicial practice,because of too simple regulations and deficiencies of supporting systems,it has not gained desired effects,but brought about some disadvantages to the criminal procedure.Most researchers and practitioners in China have been urging the current submission of duplicates of major evidence to be revised,but their opinions on how to revise it are quite different.In summary,there are roughly three approaches or four schemes:one is Returning Back approach,namely,returning to the traditional system of submission of all case materials;another is Radical approach,introducing directly either the Indictment-only Doctrine or the Anglo-American preliminary hearing system;the third is Gradual approach,which means improving the system of submission of case materials step by step.In my opinion,although there is some deficiency not only in the current system of submission of duplicates of major evidence but also in the present pretrial review system,there is much more difficulty not only in reviving the traditional system of submission of all case materials but also in introducing either the Indictment-only Doctrine or the preliminary hearing system all at once,we had better ameliorate the current system of submission of duplicates of major evidence before the prerequisites of introducing the Indictment-only Doctrine and the preliminary hearing system is satisfied.That is to say,the introduction of the Indictment-only Doctrine and the preliminary hearing system in China can be broadly divided into the following three phases:the main task in the first stage is to ameliorate the current system of submission of duplicates of major evidence within the existing legal system;the main task in the second stage is to establish the preliminary hearing system by which the submission of case materials will be changed from one-step into two-step,namely,the submission of case materials will be divided into two steps by preliminary hearing,before which the submission of all case materials will remain unchanged,and after which the submission of all case materials and the submission of duplicates of major evidence will be applied to summary procedure and ordinary procedure respectively;in the third stage,the two-step submission of case materials is to be maintained,of which the submission of all case materials will still be applied to the preliminary hearing and the summary procedure,and the submission of duplicates of major evidence will be replaced by the Indictment-only Doctrine in the ordinary procedure.In order to overcome disadvantages of the current submission of duplicates of major evidence and avoid repeating the mistakes of Japan’s Indictment-only Doctrine,close attention must be paid to integrity and internal coordination of criminal justice system in the course of reformation of the system of submission of case materials progressively by introducing the system of disclosure,perfecting the system of pretrial examination and preparation,stipulating the principle of direct-and-verbal trial,and the rule against hearsay,improving supporting measures such as witnesses’ testifying before the court and examining the oral evidence,and ultimately establishing the mechanism of fact-finding evolving around the first-instance trial.