The Study Of Italian Special Criminal Procedure

This dissertation is composed of the introduction and main text of five chapters. In a combination of textual analysis and empirical study, it introduces legal regulations and judicial practices of Italian special criminal procedure and generalizes its features in all aspects.The introductory portion rests on the background of integration of criminal litigation procedure, and generally analyzes the legislation and judicial application of the special Italian criminal procedure. Against the background of acceleration of globalization process, transfer of sovereign country’s power occurs partially; the litigation pattern of inquisitional system and the litigation pattern of adversary system already transcend the dual antagonism, the integration and drawing ideas from each other of two legal chains on the criminal judicial concepts and criminal litigation systems developed constantly. The public in Italy has lost confidence on justice due to Italy’s delay in justice and serious backlog of domestic criminal cases. In view of the practicality of international and domestic criminal justice, Italy has already made the criminal judicial reform that inquisitorial system transfers to ligigantism. Based on the solution of piled-up cases, the criminal litigation laws has especially established the diversified criminal special procedures in 1988, which already becomes one of the feature of Italian criminal litigations. However, there is a significant discrepancy between judicial practices and legislation purpose in the initial stage of special criminal procedures, which has already received the mixed receptions from the theoretical circles and judicial circles. Through the Parliament and constitutional court’s constant amendment of criminal litigation law, as well as the greater inclusiveness of the local legal culture, the system design and judicial application of current criminal special procedures turns out for the best gradually. The scholars’misunderstanding of system design, legal revolution and judicial application in Italian criminal special procedures was further pointed out. Both of our country and Italy have the tradition of continental legal system, and confront with the issue of safeguarding the human’s rights and elevating the efficiency. Therefore, the legislation and justice of Italian special criminal procedures has more of reference value to our country’s criminal judicial reform.The first chapter has analyzed the legislation process and its features of Italian special criminal procedures from the perspective of legislation background and comparative method. An analysis is made in the first section of Chapter 1 about how to shift into the adversarial system from Italian criminal justice and the features of adversary system. In the analysis of Italian criminal judicial reform, the gestation process of Italian special criminal procedures has already been fully sorted out and the legislation purpose and diversified system design of Italian special criminal procedures out of the ordinary have already been indicated. In order to understanding and perceive the special criminal procedures in all aspects, this part has made a brief introduction to the general procedures corresponding to it. The second section has analyzed the features of special criminal procedures from the viewpoint of comparative method. Firstly, make a comparison of Italian special criminal procedures and 3 representative countries to analyze the features of Italian special criminal procedures in specific system; make a comparison of Italian special criminal procedures and Germany, the representative country of continental law system to analyze its summary court proceedings; make a comparison with the USA, the representative country of common law system in accordance with the features of applicable criminal procedures and procedures of punishment writ of the person involved, and analyze its characteristics of consultative justice; make a comparison with Russia, the representative country of mixing system to analyze the similarities and dissimilarities of two country’s special criminal procedures. In the comparative analysis, make a comparison with the latest special criminal procedures more often to highlight the timeliness, and also make the conclusions with more appropriateness. This section makes the general evaluation of Italian special criminal procedures following the analysis of specific system, and strives to get a more comprehensive and appropriate grasp of the characteristics and general features of Italian special criminal procedures.Chapter 2 and Chapter 3 can be made as the overall text interpretation and system evaluation of Italian special criminal procedures. Italian special criminal procedures may be divided into two categories due to its reduction into different ligation stages:the first is special criminal proceedings in reduced trial stage, which mainly include the proceedings of summary jurisdiction, applicable criminal procedures and procedures of punishment writ at the request of the persons involved; the second is special criminal procedures of reduced initial stage of court hearing, which are mainly the direct trail procedures, and summary trail procedures. This section separately makes the specific analysis of summary trail procedures, applicable criminal procedures at the request of party involved, direct trail procedures, summary trial procedures, and procedures of punishment writ, which analysis is conducted from the three levels of legal provisions, legal revolutions and system evaluations to achieve the completeness and objectivity of introduction and analysis, instead of making it as a proverb goes "can not see the forest for its trees" in a "just for my use" style. The system design and revolution of Italian special criminal procedures is not simply the saving of judicial resources and increase of judicial efficiency, but also the assessment of real discover of rights safeguard and inquisitorial system of the defendant. This value assessment, which seems paradoxical, also highlights the difficulty of special criminal procedures that applies in the Italian criminal procedures. It is also just the features of Italian special criminal procedures.Chapter 4 Judicial practice and revolution of Italian special criminal procedures:due to the difference between law in book and practice, it is necessary to analyze Italian special criminal procedures from the point of judicial practice. One of high points in this dissertation is to sort out the change of judicial practice of Italian special criminal procedures and analyze the factors of its system and judicial concepts in revolution. Since 20 year’s reform of Italian criminal justice, the judicial practice of special criminal procedures change constantly, and the applicable data shows:the relevance factor is from low to high, and result of application takes a turn for the better, the acceptability of the party involved passes from passivity to activeness. This dissertation is not confined to the appearance of change of judicial practice, but focuses on analyzing the reason of its change and probing into its criminal judicial ideas and system changes.Chapter 5 Legislation and justice of Italian special criminal procedures’ inspiration on our country:This part mainly abstracts the value and lesson of Italian special criminal procedures from two levels of criminal judicial concept and system design of special criminal procedures. On the level of criminal judicial idea, Italian special criminal procedures belong to the power-led summary quick-decision model, which empowers the judge with rights of investigating partial evidence and the procurator with rights of activating partial procedures on the basis of fully protecting the rights of the accused. Power-led criminal special procedures concept guarantees the impartiality of criminal procedures, and also highlights the efficient value, which is of great significance to designing and perfecting the system of our country’s criminal special procedures. In relation to the general procedures, rights of the accused is partially violated; however, the most basic rights such as right to information, right of choice of procedures and the right to defense must be safeguarded; otherwise, the special criminal procedures may turn into a pure pattern of conviction. On the level of system, the reference value of Italian special criminal procedures lies in the design of diversified system and application basis of diversification in more cases. The complexity of crime, diversification of punishment, the multi-phrase of application proposed by the person involved demonstrates that the system design of diversification is more suitable to criminal ligation laws than the simplex special criminal procedures. The results of special criminal procedure must also be supported by other auxiliary system. The initial judicial practice of Italian special criminal procedure fails to measure up to our expectations due to the lack or unsuitableness of judicial auxiliary measures. This is also mostly seen in the law transferring among different law systems. At last, construct our country’s special criminal procedure on the blueprint of Italian special criminal procedure; reconstruct our country’s special criminal procedure in response to the characteristics of crime in our country and the practicality of criminal justice. Transform the summary procedures, and empower the defendant with right of choice of procedures and certain extenuation at discretion of punishment on the basis of expanding the scope of application. Abolish the summary trail of general procedures, draw lesions from the mode of trail of defendant’s pleading guilty and establish Chinese-style plea bargaining. The defendant’s confession is the application conditions to Chinese-style plea bargaining procedures, and the contents of agreement between prosecutor and defenders are restricted, which is only directed at the discretion of punishment, and the contents of agreement is not necessarily binding on the judge. Establish the quick-disposal procedures of statutory minor criminal cases; draw lessons from the application condition of "detection in the act" and "defendant’s confession" in direct trail, rather than drawing lessons from application requirements of punishment writ.