On Criminal Summary Procedure

The paper, focusing on criminal summary procedure and based on the “trial-centered" judicial reform at present in China and theory of diversified litigation mode, comprehensively applies the empirical, typed and comparative study methods to rethink the value selection, define the theoretical pivot points, explore the procedure simplified rules and guarantee of procedural justice by clarifying the basic theory and finally find a path to improve the criminal summary procedure of China. The paper is to clarify the internal logic between criminal summary procedure and “trail-centered” litigation system reform to define the macro direction for criminal summary procedure in China, deepen the basic theory of criminal summary procedure, enrich and expand the connotation and extension of the theory of criminal procedure and provide necessary theoretical supports for improving the legislation and judicial practice in China.Compared with the ordinary procedure, the litigation efficiency in the criminal summary procedure is of relative priority. Firstly, the generation of criminal summary procedure is a direct result of practical needs for resolving the dilemma of “insufficient manpower for handling cases” and improving litigation efficiency; secondly, the characteristic of the accused guilt-admission case also makes such case prefer the litigation efficiency, instead of maintaining relatively complex ordinary procedure; lastly, the criminal summary procedure plays an important role in improving the justice of ordinary procedure through optimizing the allocation of litigation resources. Although the efficiency is the most direct value target of the criminal summary procedure, the justice must also be taken into account. However, some tension exists between efficiency and justice. Due to strong interference of efficiency, the criminal summary procedure is unable to comply with procedural justice standard in the conventional sense. It only needs to observe “minimum justice”. The “minimum justice” in criminal summary procedure includes following basic requirements: neutrality of judge, help from the lawyer to the accused, participation of the accused and the judgment rationality of the judge.The core difference between criminal summary procedure and ordinary procedure is that the application of the criminal summary procedure depends on the consensus between the accused and the nation, while the design of ordinary procedure is based on antagonism between the prosecution and the defense. The litigation consensus is the theoretical pivot point for criminal summary procedure and refers to the unanimous declaration of intention by two or more specific litigation subjects on substantial or procedural issues in the litigation which has a certain binding force and is to apply some influences on the litigation process or outcomes. The criminal summary procedure involves substantial and procedural consensuses. The substantial consensus refers to admission of criminal charge by the accused, i.e. admission of guilt; the procedural consensus is to reach consensus between the accused and the nation on the application of criminal summary procedure. The admission of guilt by the accused, i.e. the existence of the substantial consensus, promotes the settlement of criminal conflicts, so there is no need to apply ordinary procedure for such cases; that the accused selects or agrees to apply the criminal summary procedure means that the accused can self-dispose part of the litigation rights; in return for such agreement, the accused can get benefits on the measurement of penalty to compensate the unfavorable consequences due to the application of criminal summary procedure. Therefore, based on the litigation consensus, the three aspects mentioned above explain the reason why the criminal summary procedure is simple and legitimate.The criminal summary procedure has low application rate and is not widely used in China. In addition, the handling time for such case is relatively long with low actual efficiency. Such “efficiency problem” is mainly due to the imperfect procedure simplification. The criminal summary procedure can be simplified horizontally and vertically. The horizontal simplification refers to the diverse settings and different criminal summary procedures have hierarchies in simplification degree; the vertical simplification is to simplify some litigation links in the whole litigation process, specifically including whole omission of the litigation phase and partial simplification of litigation links. Based on the two simplified paths mentioned above, the criminal summary procedure in China should be simplified thoroughly both in procedures and contents, i.e. both the trial procedure and the pretrial procedure should be simplified; as well as both the legal rules and the internal handling mechanism should be simplified.The guarantee to procedural justice of criminal summary procedure draws a bottom line for the procedure simplification. From the point of litigation consensus, the guarantee to consensus effectiveness or to confirming with constitutive requirements of effective consensus is an important aspect of justice guarantee. Litigation consensus ought to be reached within limited legal limits, or the consensus is invalid. Also, the consensus for applying the criminal summary procedure can be reached only within specific scope. That is to say, the scope of application for criminal summary procedure should be restricted. Therefore the application scope thereof shall be limited. Meanwhile, the voluntariness for pleading guilty and procedure selection by the accused shall be guaranteed, or the authenticity of declaration of intention is hard to be ensured, resulting in invalid consensus. So, the accused should be given the privilege against self-incrimination, procedure selection right, the right to information and the right of help from lawyer. Meanwhile, the judge is obligatory to examine the voluntariness of pleading guilty and procedure selection by the accused.The academia and the practical groups are puzzled by the existence of proof in the criminal summary procedure, which comes from the fact that the evidence theory under the single default background of adversary trial lacks effective explanatory power to the proof in the criminal summary procedure. Based on diverse procedures, although the criminal summary procedure is based on consensus and does not have a complete trial form, the fact finding needs by the judge make it necessary to prove the accused criminal facts. The basic proof structure of prosecutor, the defendant and the trial also shows that proof exists in the criminal summary procedure. The proof standard is related to the judicial proceedings. According to the generalized “proof standard” containing subjective and objective factors, lowering of the objective proof standard means the simplification of judicial proceedings relating to the proof, which is advantageous to enhance the litigation efficiency. In the view of subjective proof standard, the procedure simplification relating to the proof makes the application of proof standard of higher levels such as “beyond a reasonable doubt” lose the necessary procedure basis, thereby only reducing the convincing degree for confirming guilty. Therefore, the proof standard in criminal summary procedure should be lower than that in ordinary procedure.The novelty of the paper lies in the following aspects:(1) The paper studies the values, theoretical pivot points and proof of criminal summary procedure under the grand vision of multiple litigation modes, which also decides the innovation of concrete research contents.(2) The basic route for procedure simplification of criminal summary procedure is summarized into horizontal and vertical simplified approaches. The procedure simplified way of the vertical simplified approach is further summarized into omission of litigation stage and procedure link simplification.(3) The guarantee of procedural justice is discussed from the litigation consensus effectiveness. The guarantee to the voluntariness for pleading guilty and procedure selection by the accused is to ensure the authenticity of declaration of intention. The limitation on application scope of criminal summary procedure is to ensure the scope of litigation consensus qualified.(4) The issues on proof in criminal summary procedure are thoroughly discussed in this paper.