On Pretrial Criminal Procedure

Since our new criminal procedure law was promulgated, we haven't put enough emphasis on pretrial criminal procedure's particular functions and values. Thus, the heated topic in china's criminal justice reform has always been focused on the key stages such as investigation, prosecution and trial. The pretrial criminal procedure which starts from preliminary hearing, ends up in trial sets up a bridge from prosecution and trial. Its system design has a great relation to the public prosecution review, object of criminal trial, evidence disclosure, deciding the controversial points, and procedure division. To some degree, operation fact of pretrial criminal procedure will determine whether trial can proceed intensively, effectively and fairly and value of human rights protection can be realized in new criminal law. Therefore, almost all the modern legal nations have set up independent pretrial criminal procedure before trial. In2013, China's new criminal law amended pretrial procedure dramatically. The main contents are as follows. Firstly, prosecutor should transfer all dossiers to the trial. Secondly, judge must open trial procedure so long as there is clear criminal fact in indictment which results in the public prosecution review invalid. At last, the new law added pretrial criminal conference in pretrial criminal procedure. However, operation fact of pretrial criminal procedure is not satisfactory in China. The causes are lawmaking principle out of fashion, single function designed, invalid public prosecution review, lacking necessary contents of pretrial preparation and related system and incomplete criminal judicial environment. Our perfection of pretrial criminal procedure should start from these points as follows. At first, we should set an independent public prosecution review procedure and pretrial judges which come from Case Filing Chamber. In this stage, we should afford pretrial judges right of examining prosecution in which cases may be sentenced beyond three years substantively, alterating prosecution reasonably and dismissing indictment. Secondly, to avoid prejudgement and save reform cost, magistrates should also conducting pretrial criminal conference. At the same time, we should give pretrial conference legal force and perfect its functions such as evidence disclosure, deciding the controversial points and procedure division. Thirdly, we should set up criminal consultation system before trial, set seven years of misdemeanor cases as its scope and prohibit charges bargain. Meanwhile judges should review whether the defendant agrees to apply it and the consultation content is subject to law. Fourthly, to make trial run effectively, the pretrial judges should list achievements before trial such as controversial details, guilty plea, evidence and witness list and so on. At last, we should perfect its related system such as statement of charges, restricting changing charges and media report scope. At meanwhile, we should make modern principles such as equality between prosecution and advocacy, human rights protection, judicial review and judgement centralism carried out in pretrial procedure so that we can perfect our judicial environment.