Study On The Criminal Pretrial Procedure

As an important judicial proceeding in the criminal procedure, criminal pretrial procedure refers to the litigation activities conducted by the participating organs and personnel of the litigation according to certain sequence, methods and steps and the litigious relationship thus formed in a criminal public prosecution case after the public prosecution organ initiates a public prosecution and before the court officially holds a trial. In the sense of litigation stage, criminal pretrial procedure is a connecting link between the previous public prosecution procedure and the following court trial procedure and has an extremely important significance for promoting the smooth progress of criminal litigation activities, preventing the abuse of the right of public prosecution, guaranteeing the concentration and effectiveness of court trial, and enhancing the litigation efficiency. The major countries under the rule of law in the world all stipulate a complete criminal pretrial procedure, with the purpose of reviewing the public prosecution so as to convey to the court the cases conforming to the conditions for holding a trial and to make necessary preparations for the formal trial of the court. However, criminal pretrial procedure is not an independent judicial proceeding in China and it has not attracted enough attention in the criminal procedure for a long time. The ambiguous positioning of criminal pretrial procedure as set forth in China’s criminal procedure law and the rough legislation leave the proper value and function of pretrial procedure unable to be fully played and hamper the systematic and effective running of the entire criminal procedure, thus causing negative effects to the criminal judicial activities. Therefore, carrying out systematic and in-depth research on criminal pretrial procedure is of great theoretical and practical significance for China’s criminal judicial reform. The whole contents include three parts:introduction, the main body and the regulations concerning criminal pretrial procedure (draft proposal). The main body of this paper is divided into five chapters and the main contents are as follows:Chapter One introduces the basic theory of criminal pretrial procedure. This chapter mainly defines the concept of criminal pretrial procedure. After sorting out the different definitions of pretrial procedure in Chinese theoretical circle and differentiating and analyzing the relevant concepts of criminal pretrial procedure, criminal pre-court procedure, criminal inquisitional procedure, criminal pretrial review procedure, criminal pretrial preparation procedure and criminal review and prosecution procedure, this chapter puts forward the definition of pretrial procedure for the purpose of this paper. China’s criminal pretrial procedure can be understood from the following two aspects. In the sense of litigation stage, "pretrial" refers to the period between the public prosecution organ initiates a public prosecution and the court formally holds a trial; in terms of procedure content, pretrial procedure mainly includes the review of public prosecution before the trial and the preparations made for opening a court session. Then this chapter selects four countries whose pretrial procedure is characteristic in the world, i.e. Britain, America, France and Japan, and investigates the historical evolution of these countries’pretrial procedure. After that, this chapter further explains the internationalization of criminal pretrial procedure. This paper mainly introduces the pretrial procedure in the judicial proceedings of International Ad Hoc Criminal Tribunals and the pretrial procedure in the judicial proceedings of International Criminal Court. The historical evolution of various countries’criminal pretrial procedure and the relevant stipulations of pretrial procedure in international criminal judicial stipulations indicate that the development tendency of criminal pretrial procedure is as follows:When receiving widespread attention and more concern, criminal pretrial procedure will be further codified and embody the integration of different litigation models.Chapter Two is about the jurisprudential analysis of criminal pretrial procedure. Firstly, this chapter makes an analysis on the independence of criminal pretrial procedure. This paper maintains that pretrial procedure is not a prepositive procedure dependent on the trial procedure, nor a dispensable transitional procedure in judicial proceedings. Instead, it is a judicial proceeding with its own independent value and function. Subsequently, this chapter further discusses the value of criminal pretrial procedure to reveal the legal value contained therein and the value goal pursued thereby. In conclusion, the value of pretrial procedure mainly includes contributing to the fairness of trial, enhancing the litigation efficiency, and safeguarding individual rights. At last, this chapter studies the function of criminal pretrial procedure. Although various countries have different settings for criminal pretrial procedure, the function of pretrial procedure mainly includes prosecution and review, evidence acquaintance, elimination of illegal evidence, evidence retrieval and preservation, procedure division, case sorting, and other preparatory functions.Chapter Three is the comparative analysis of criminal pretrial procedure. As an indispensable part of criminal judicial proceedings, a country’s criminal pretrial procedure should be consistent with the entire criminal judicial proceedings in nature and with the litigation model the country pursues. This chapter introduces the criminal pretrial procedure of different countries according to different criminal litigation models and divides it into the pretrial procedure under the party dominant litigation model, the pretrial procedure under the authority dominant litigation model, and the pretrial procedure under the new-type hybrid litigation model. By comparing the criminal pretrial procedure under different litigation models, the author concludes that the common points of different countries’criminal pretrial procedure are as follows: Pretrial procedure is a necessary stage before the formal trial; the main contents of pretrial procedure are public prosecution review and pretrial preparation; and pretrial procedure is carried out jointly by the prosecutor, the defender and the court. However, the difference of criminal pretrial procedure under different litigation models is mainly manifested in the fact that public prosecution review and pretrial preparation have different relations in judicial proceedings and the concrete contents of public prosecution review and pretrial preparation under different litigation models are also largely different. In this aspect, this paper maintains that the pretrial procedure under any model is neither good nor bad, and different system design is bound to have its underlying legislation reasons and national conditions, which manifests different countries’ pursuit of and balance in the fairness of trial and litigation efficiency and provides reference and experience for the construction of China’s pretrial procedure.Chapter Four is about the current situation and analysis of China’s criminal pretrial procedure. First of all, this chapter investigates the contents relating to pretrial procedure in the 1979 criminal procedure law and the 1996 criminal procedure law, sorts out the legislative development of pretrial procedure in China, discusses the legal practice of pretrial procedure in practice, and points out that the reform of the trial procedure for criminal cases, the implementation of judge assistant system, the exploration of disclosure of evidence and the practice of pretrial conference provide rich experience and practice foundation for the further development and improvement of criminal pretrial procedure. Subsequently, this chapter highlights the stipulations relating to pretrial procedure set forth in the 2012 criminal procedure law as further amended, and conducts necessary reflection on the current pretrial procedure in China and analyzes the problems existing in China’s pretrial procedure, which problems are: The legislation concerning criminal pretrial procedure is too simple and inoperable; criminal pretrial procedure is not independent; the function of criminal pretrial procedure is simple and insufficient, lacking such functions as disclosure of evidence, evidence preservation, early handling and division of cases, and elimination of illegal evidence; and criminal pretrial procedure fails to realize the elimination of judge’s prejudgment.Chapter Five is about the reconstruction of China’s criminal pretrial procedure. The ultimate purpose of studying criminal pretrial procedure is to reconstruct China’s criminal pretrial procedure. This chapter firstly makes a comment on the theories proposed by the Chinese educational circles relating to reforming criminal pretrial procedure, and then conducts a macro thinking on the reconstruction of China’s pretrial procedure from the aspects of pretrial procedure’s nature, positioning, the litigation model to be selected and the principle to be followed. China’s criminal pretrial procedure should be an independent judicial proceeding and have independent subjects of power and independent operation model and procedures. It has not only an instrumental value of preventing the abuse of right of public prosecution, but a self-existent value of eliminating judge’s prejudgment, settling disputes and terminating litigation. When reconstructing pretrial procedure, China should not rigidly adhere to litigation model but should make a full use of the reasonable factors of pretrial procedure under different litigation models for reference and combine its practical situation. Apart from following the general principle of due procedure, China should also incorporate the specific principles of procedure participation, moderate openness, elimination of prejudgment, clarity of issues and judicial economy. Consequently, this chapter puts forward a concrete idea on the reconstruction of China’s criminal pretrial procedure from the micro perspective:After the people’s procuratorate initiates a case of public prosecution, the case should enter into the pretrial procedure except that the people’s court is suggested to apply the summary procedure; the people’s court sets up a criminal pretrial court with specialized pretrial judge to deal with the matters relating to criminal pretrial procedure, and the pretrial judge and the trial judge must be separated; and the main contents of pretrial procedure should include the review of public prosecution, disclosure of evidence, plea of guilt, and the holding of pretrial conference. Finally, the reconstruction of pretrial procedure is not only dependent on improving pretrial procedure itself, but on improving the relevant supporting system, such as guaranteeing the independence of judge, perfecting the mechanism of plea of guilt and making sure the defendant gets help from lawyers.This paper ends up with the regulations concerning criminal pretrial procedure (draft proposal) prepared by the author.