Research On The Transformation Of The Local Criminal Trial Functions

It is quite uncommon to study the functions of the criminal trial of a historical period in transition expand with a reference sample of area of Dongguan since the reforming and opening up. Through the uncompleted historical material, databases and cases, analyzing the transition of local criminal trial functions, the main purpose is to summarize the mode of the transition of local criminal justice functions, the direction of the transition, approach of the transformation and external performance form of the transformation. In addition to the introduction and conclusion of this article, it consists of four parts:Introduction describes the significance, status, contents and research methods of the transformation of the local criminal trial functions. The main purpose of this paper is the transformation of the local criminal trial function of China and it's limit, trying to explain the intrinsic link between transformation of the local criminal trial function and transformation of society on a whole experience level, the development of policy changes in the ruling party and the development of laws in shaping the functions of local criminal trial, to explore the practice, characteristics and limitations of the transition of local criminal trial functions. The significance of this thesis is that the transition of the criminal trial functions has the features of endemic, spontaneous, and the reform of transformation is experimental. The main line of this study is “the transition of Chinese criminal trial functions and its limits”. On the methods of the research, it mainly concludes the content analysis which in order to the files as center, historical / comparative analysis and sociology of law analysis.The first chapter researches on the integral development of the local criminal justice from the time of reform and opening up. It mainly includes three aspects: Firstly, it points out the background of the integral development of local criminal justice is the deconstruction of traditional society and transition of modern society. The traditional society which features planning system collapses along with the implement of the policy of reform and opening up, the reform of the economic system, and the development of the market economy. The market economy improves the development of the subjectivity of citizens, and the progress of personal right constitutes the basis for social transformation. The effects of social transition on the transition of the criminal justice mainly are the following: decentralization of local authority stimulates the vitality of local reform; transition within the local justice endogenous function is activated. But the society transformed so rapidly that the control mechanism of the traditional society destroys, resulting in the pressure of criminal justice to control the whole society surges, which also contributes to the ruling party strengthens the function of the criminal trial to punish crime frequently. However, in order to meet the need of the integral transformation of the social structure, the development of personal right still is determines the direction of the transition of the function of criminal trial. But the society transformed so rapidly that the control mechanism of the traditional society destroys, resulting in the pressure of criminal justice to control the whole society surges, which also contributes to the ruling party strengthens the function of the criminal trial to punish crime frequently. However, in order to meet the need of the integral transformation of the social structure, the development of personal right still is determines the direction of the transition of the function of criminal trial. Time of the local criminal justice develops integrally from top to the bottom, the transition of the function of local criminal justice also exists the phenomenon of the evolution of the self-transformation. This is determined by the main contradiction faced by the local criminal trial the in different periods. This is also a local judicial innovation, which embodies in the following aspects. In the initial period of legalization, the local government mainly pushes the development of legalization of criminal justice by the way of public trial. In the “strike-hard” period, due to the politicization of the trial, the trial system, mechanism and procedure are out of the legal system. Moreover, there are many rules beyond the law, forming the unique "strike hard" judicial customs and judicial traditions. In the reform and opening up period, the vigor of transformation of function of the local criminal justice was stimulated, so that the local criminal justice starts innovations in the reform of operation mechanism of the authority, the trial technology and the judicial rules, which provides local experiences for the development of national judicial system and the improvement of the law.The second chapter studies the "dictatorship type" justice model of local criminal trial. The political logic of the dictatorship-type justice is through launching the policy by the ruling party to unite the levels of the provinces and regions. External manifestations of dictatorship type judicial are the entity "severely" on decision, proceedings on "From fast", the center of criminal trial is not at court but at the Sentencing Assembly which made the execution publicized. Features of the local judicial dictatorship-type mode are mainly on the political running of judicial functions, outer "bossy" and rough clumps of criminal justice technical. This pattern continues the criminal trial of political justice mode of operation since the founding of the Republic: First of all, criminal trial is a tool to implement the criminal justice policy, the ruling party's policy is the soul of the law, it is the basis to take actions in the criminal trial; Secondly, the criminal trial is the tool to achieve the class rule; Besides, the task of the criminal trial is achieving the dictatorship through repressing crime, criminal trial becomes a means to maintain the normal operation of the state apparatus. Therefore, the main function of the criminal trial is only concerned about the properties and functions of the dictatorship and the punishment for a crime, while ignoring the other functions, thus it is instrumentalism.The third chapter studies the transition to a fair criminal trial where type of Judi Local criminal trial mode transition from dictatorship to a type of judicial impartiality type justice model focused on three aspects: The first criminal trial free from the "strike hard" and "severe and quick" freed policy, criminal proceedings started polarized development in the pursuit of justice and efficiency in the double value: On the one hand,due to the surge in the number of cases, increasingly cumbersome procedural requirements, the trial institutions overwhelmed, the ordinary procedure appeared to pursue the efficiency of the case; On the other hand, when encountering difficult and complex cases, because the evidence referee principle not been fully implemented in the trial between the various organizations, judges need to consider many factors when deciding cases, so that the case proceedings have too many "hidden rules", leaving the case can not be treated promptly and impartially, lengthy procrastination, extrajudicial procedures more than efficient summary of the proceedings; In this period, judicial practice system began the clean-up action of extended detention in the nationwide, and began to focus on the procedural rights of the accused in the field of criminal trial. Second, the transformation of the judicial function in the criminal trial focused on the center of power operating mechanism reform oriented. Main features: The judges are no longer practice the judicial cooperation mechanism which named ‘Three members of the investigators', criminal justice cooperation began to change as “Police, prosecution, courts joint meeting” institutional collaboration; due to a large of cases?much more backlog and referee burden of judges, at the beginning, presidents who are in bureaucracy upper courtyard also have rights to appear in the full court, the phenomenon of trial separation reduced; In order to make adversarial trial system implemented which established in the "Criminal Procedure" when revised on 1996, the area of Dongguan occurs exchange of evidence in the criminal trial pretrial in practice to help carry out an effective defense counsel, and to achieve a balance on the prosecution and the defense on litigation structure. Third, on the change of the criminal justice systems which controlling the death penalty applies strictly, local criminal trial appears certain technical standards rules on verdict evidences, first or second instance trial functions are continuously strengthened, in fact, it started to protect the rights of the accused trial essence of reform-oriented. Meanwhile, the District Court also innovation criminal incidental civil mediation and justice system to resolve litigation contradictions, and "Case Closed things." Because this transition of judicial functions has the values to protect the rights, and enhance the impartiality of the judiciary greatly, I called this judicial practice mode on the name of "fair type" justice model.The fourth chapter studies the limit of the transition of the local criminal trial functions. The transition of the local criminal justice functions to fair judicial model type is restricted of political institutional power structure. The first is the influence and intervention of the party and government power. The local party committee decided the appointment and removal of local jurisdictions, the acceptance of supervisors and local party committees became criteria for evaluating local criminal justice agency functions. It made local jurisdictions vulnerable to undue interference of party and government power. In practice, it has become a local judicial traditions and habits for Politics and Law Committee to coordinate the handling of cases. Meanwhile, the local administration holds the personnel management and financial management of local jurisdictions, which affect or restrict the independent exercise of judicial power. Then, the leaders of local party treat trial institutions as the functional departments of government and the executors of local policy, undertaking the duty of keeping stability as other departments. This will also lead to the result that the criminal cases followed with interest by the leaders of local party cannot be judged justly. Second is the influence of criminal judicial power operation mechanism. First, the systematic configuration of criminal judicial power appears the structural defects that the power of investigation dominates. This leads to the facts that jurisdiction relies too much on investigation, the conclusion of investigation determines the limits of the conclusion of criminal trial, and the procedural control mechanism centering on the trial cannot be set up throughout. Then, the power of criminal jurisdiction in court exercises administratively. The division among the power of jurisdiction, the power of judicial management, and the power of judicial supervision is not clear, as well as the scope of power and responsibility. The power of jurisdiction is exercised by many sections because of power confusion. As the result, the requirement of judicial reform that the persons who hear the case judge it and are responsible to it cannot be carried out in practice, and the establishment of fair trial mechanism has difficulties in judicial system and mechanism. Third is the lack of soundness of systematic regulations which ensure a fair trial, such as the rules of procedure like dividing simple cases from difficult ones, defining function of hearing levels, preparing before the trial, guaranteeing the right to defense(including the legal aid, effective defense, and so on), discussing regulation in big and small collegiate benches(including the case that how to arbitrate with jurors), and so on; the rules of evidence like hearsay rule, the rule of witnesses and experts appearing in court to testify, the rule of cross inquiry, and so on. These rules pay attention to attack and look down protection, lacking considerate rules of procedure and evidence to protect the development of human rights. The transmission of trial function remains at the stage of empirical judicature, and the considerate systematic rules required by judicial justice has not formed. Forth is the low professionalization of judges. The professional security system develops too slowly, and the judges' judicial idea and ability cannot adapt to the requirement of judicial justice function. The independence security system of trial is imperfect, the judicial responsibility system is not sound, and the publicity mechanism of trial information is inadequate. These are also barriers existing in the transmission of justice function of Chinese criminal trial.The conclusion is summarizing and prospecting of the whole article. First, it shows that the function transmission of Chinese local criminal trial is from dictatorship judicial mode to justice judicial mode. Although the“policy- mission” determined by the ruling party dominates the development of Chinese local criminal trial more than thirty years, this transmission from higher levels to grassroots is in form, and the inner force to promote the development of this transmission is the development of human rights in the process of the whole society transmission. Guaranteeing and promoting the development of human rights determine the transmission direction of criminal trial function. The route of this transmission appears in a combination of the whole advancement from higher levels to grassroots and the local creativity from grassroots to higher levels, not relying on a single development mode. The increasingly technological development of the rules of due procedure centering on the substantialization of trial process in criminal trial is the outside manifestation of function transmission of justice judicial mode of criminal trial. At present, local criminal trial function encounters the barriers of system, mechanism and security in the process of transmission. This needs the country's judicial power to adjust structurally, and needs to stimulate the vitality of local reform further. The ruling party determines the goal, mission and concrete measures of judicial system reform from the third session of the eighteenth National People's Congress, and has begun to promote the top design of judicial reform from many respects such as the system of judicial domination, the litigation system centering on trial, the distribution of powers in court, the operating mechanism of jurisdiction, the mechanism of judicial publicity, the normalization, specialization and professionalization of people in court, the exercise of jurisdiction by court independently and justly, and so on. Although these contents of reform may be incomplete in some respects, they have already touched the systematic and structural contradictions in judicial reform, determining the direction of situation-broken development of justice transmission of local judicial function. This transmission will be certain to show an unprecedented developing vigor and propulsion in the new process of judicial reform.