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Research On Confrontation Right Of Criminal Defendant In China

Posted on:2013-03-21Degree:DoctorType:Dissertation
Country:ChinaCandidate:X H WangFull Text:PDF
GTID:1226330395988763Subject:Criminal Procedure Law
Abstract/Summary:PDF Full Text Request
Evidence is the core of criminal procedure. No evidence no facts. Defendant has thePrivilege against self-incrimination, he does not bear the burden of proof in the proceedings.Compared to the prosecution, the defendant is in the negative position in the case. To achievethe purpose, defendant must question or deny the prosecution’s evidence. Right ofconfrontation is the most important means of defense. Whether the accused enjoy the fullright of confrontation is the key to the legitimacy of fact-finding and proceedings. Throughoutthe world, the right of confrontation has become an important right of the accused in criminalproceedings, even as a basic political right of citizens.In China, the research of right of confrontation just started in recent years. In the judicialpractice, the important of right of confrontation has not been completely accepted. Theconfrontation by the defendant is just been aware of an adjunct way of fact-finding. Inpractice, the defendant is facing a lot of questions to confront the evidence. It makes thedefendant hard to become the subject of the proceedings. Even in some cases also affected thelegitimacy of the results. So this article is willing to analyze the status of the right ofconfrontation in China, to find the problems and its causes, to find the effective measures tosolve these problems.In addition to the introduction and conclusion, the article is divided into three chapters.The first chapter discusses the basic theory of right of confrontation of criminaldefendants, is divided into four main parts.The first part is the concept of confrontation right. The confrontation right means thedefendant has the right to cross-examination the witness, questions prosecutor’s evidence inthe court. This concept composed of three parts: First, the confrontation right is the core rightof the defendant. It reflected in three aspects: the first aspect, the confrontation right is thecore content of the rights of the defendant’s right system; the second aspect, the confrontationright is commonly regarded as a constitutional right in the world; third aspect, theconfrontation right distinguish the modern criminal procedure from feudalism Offences.Second, confrontation right is the right in trial. Cross-examination in the trial is animportant means to influence the judge of fact-finding. If the judge is unable to witness thecross-examination process, the effects of confrontation will be greatly reduced. Of course, itdoes not mean the confrontation can’t be behavior outside the trial absolutely. In some conditions, confrontation out-of-court may be recognized.Finally, confrontation right is the right against the human being. There must beresponded by human being can makes confrontation full and effective whether the evidence isphysical evidence, documentary evidence or oral evidence. In the criminal procedure, eachevidence is the “hearsay” evidence to the prosecutor, so it orders the subject of evidence(witness, detection, identification, etc.) to be cross-examination by the defendant face-to-face.The second part of chapter one describes the content of the confrontation right. Theconfrontation right contents of the right to face-to-face and cross-examination. Theface-to-face demands the defendant, the witness and the judge must in a same space forconfrontation. The whole process of confrontation should be placed within the judge’sobservation. Cross-examination demands the confrontation should be made by language(including oral and behavior) in order to guarantee the principle of directness and verbalismof confrontation.The third part of chapter one discusses the theoretical basis of the confrontation right.The article analyzes the authenticity theory, due process theory and other theories. Theauthenticity theory has a greater impact on the development of confrontation right. But toomuch emphasis on the authenticity theoretical will make confrontation right into the quagmireof the instrumental. Especially in China’s special legal environment, emphasis authenticitytheory alone cannot support the necessity and legitimacy of the necessity and legitimacy ofconfrontation right. Due process theory is another important basis of confrontation right. Thedue process theory makes up by “prevent government abuse of power theory” and “principlesof fair trial”, the two converge, complement each other.Part four of chapter one discusses the value of the defendant’s confrontation right. It hasthree aspects: the first is the instrumental value of confrontation right. The confrontation rightprovides judge a full range of information channels to prevent the wrong fact-finding. Thesecond is the value of procedural justice. It protects the dominant position of defendant andfully participants in the proceedings. The third is the efficiency value. The confrontation rightpromotes the effectiveness of the proceedings by reduce the judge’s out-court work and lessappeal trial.The second chapter combing the status of the exercise of confrontation right in Chinaand analyzes the causes.The first part of this chapter induction the status quo of confrontation right in China’s legislature and judiciary by empirical research. In legislation, confrontation is but justregarded as a means of fact-finding for the judge instead of the right of defendant. China’sCriminal Procedure Law doesn’t clearly given the right of confrontation to the defendant. Inpractice, the confrontation is lack of interaction. The main form of confrontation of thedefendant is to answer if has objection to the evidence. In trial the judge rarely consider thedefendant’s ability of confrontation. And there is litter rules to regular the cross-examination.Through empirical research the article finds that there are not very high rates ofdefendants really need to cross-examine the witness in practice. The existing judicialrecourses should meet the defendant’s cross-examination needs by optimizing theconfiguration of judicial resources and improve the cases of shunt system.The second part of chapter two analyzes the main six reasons for the status quo ofconfrontation right: The first reason is the lack of the concept of a fair trial in China’straditional legal culture. Too much emphasis on the instrumental value of the criminalproceeding making the conception of confrontation right hard to take root in the mindset ofthe people. The second reason is that the responsibility of protection of the right of theconfrontation by authorities hasn’t been fully put in place, including that who should call thewitness is unclear, that the power to interrupt the defendant’s cross-examination is notcontrolled, and that the responsibility of witness protection and compensation did not fulfillbeen obligations. The third reason is that the judge is too much reliance on the prosecutionfiles in fact-finding, resulting in that the confrontation cannot affect the judge’s evaluation ofevidence. The fourth reason is uneven distribution of judicial resources which makes judgeunwilling to accept the confrontation right which may delay the case. The fifth reason issystem of legal aid is imperfect, so that the defendant cannot obtain effective lawyer to helpimprove cross-examination capacity. The sixth reason is unperfected evidence informedsystem which makes defendant hard to prepare the confrontation.In response to these issues, chapter three makes reasonable suggestions to regular theregulation of confrontation right of defendant in China. There are five main points: first, tomake confront with witness is a real right of defendant. On constitutional level, to establishthe concept of a fair trial, let the confrontation right become the fundamental rights of citizens.On procedural law level should give defendant the initiative and choose right to confrontation.On the institutional level should improve the safeguards of defendant’s confrontation right.Secondly, reducing the dependence on prosecution files for judge’s fact-finding. Establishment an independent judge files to cut off the links between judges’ process ofevaluation of evidence and prosecution files. Strict limit the admissibility of investigation filesand urged investigators to testify in court. Third, to reform the system of testify, includingimprove witness rights, clear witnesses obligations and improve the witness protectionmechanism. Let witnesses willing to testify in court and dare to do so. Fourth, improve thelitigation triage mechanism, Simplify simple and standardization complex. Simplifying thepleads guilty case, no objection case. Focus the recourse to deal with controversial cases.Finally, to improve the auxiliary system of confrontation right, including perfect the legal aidsystem, improve the system of evidence informed, enhanced the defendant’s ability ofconfrontation by improving the scientific and technological content of the proceedings.
Keywords/Search Tags:Confrontation right, Testify, Cross-Examination
PDF Full Text Request
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