| Currently ongoing substantial reformation concerning criminal trial system in China has provided the space for the development of pre-trial conference, which also comes up with the new requirements for the perfection of the system of said pretrial conference. Based on the actual operation of pre-trial conferences in China, this essay analyzes the “affirmativeness” and “doubts” towards the pre-trial conferences in practice, with a view to probe into the system of pre-trial conference which conforms to the substantial reformation concerning criminal trial. There are five chapters in this essay, except the part of introduction, conclusion and appendices.The Introduction sets forth the value of selected topic, commentaries of relevant research achievements, scope of research, research approach and research methods. This essay is trying to clarify the role and functions of pre-trial conference so as to promote the solution of the problem that pre-trial conferences perform practically no function at all, to focus on highlight issues in the practice of pretrial conferences, to probe into the challenge brought by the ongoing substantial reformation concerning criminal trial system, and finally explore the pretrial conference that meet the need of criminal trial reformation in China. The scope of research in this essay shall be limited on the pretrial conferences in the criminal cases of public prosecution of first instance. This essay mainly employs literature research method, empirical approach and comparative approach.Chapter 1 is to clarify the role and functions of pretrial conference. There are two parts in this Chapter: the first part analyzes the roles of criminal pretrial conference in China. Pursuant to relevant provisions of the Criminal Procedure Code of PRC and Judicial Interpretations currently in effect, pretrial conferences are preparatory activities, centering on trial related issues, participated in by prosecution, defense and the trier, for the purpose of improving the efficiency of trial, which are important component of pretrial preparation proceedings for specific type cases. Mode of processing and the results of pretrial conference are limited to the scope that “know the information and listen to the opinions”, which is characterized with the nature of distinct preparation and procedure. Besides, there are some features in pretrial conference like the unicity of purpose of legislation, powers of office in the system operation, and non-adjudication of the processing results. Currently, there have been experimental explorations for pretrial conferences in the local levels from various regions, during which the connotation of the preparation is constantly enriching, the purpose of pretrial conference changes from singularity to pluralistic development, the scope of consultation is expanding, the functions of prosecution and defense are attached more importance to. On the whole, the institutional supply of pretrial conference in the Criminal Procedure Act of PRC is insufficient, the connotation of the pretrial conference preparation shall be further excavated, and the mechanism that safeguard effective participation by prosecution, defense and the trier need to be further perfected. The second part of this Chapter probes into the functions of criminal pretrial conference. The researchers discussed the functions of the pretrial conference in ”ought to be” level and in “being” level, and by reference to the system of pretrial conference abroad, made different demarcations on the functions of pretrial conference in China. However, part researches demonstrate the desires to change the current situation that pretrial proceedings does not function at all by endowing more functions to pretrial conference, which go beyond the scope that pretrial conference should bear, and caused confusion in demarcation of functions of pretrial conference. Therefore, it is necessary to differentiate the prosecution examination and procedure of distribution of pretrial cases in demarcating the functions of pretrial conference. In fact, pretrial conference does not undertake the function of procedure of distribution of pretrial cases, on the contrary, it has the premise that needs more effective mechanism of distribution of pretrial cases; pretrial conference itself does not have the capacity of filtering cases, which just provide the prosecution the place that he may decide to withdraw the prosecution. So, in demarcating the functions the functions of pretrial conference, it is necessary to pay close attention to the structure of procedural subject right, the influence of implementation of concentrating hearing, and new requirements brought by the substantial reformation concerning criminal trial. The functions of pretrial conference shall be determined based on the essential attributes—virtually preparation. There are three functions in criminal pretrial conference: solution of procedural issues, dealing with evidential problems, and organizing mediation in supplementary civil compensation and criminal reconciliation. Among them, evidential problems includes summarizing issues, exclusion of illegal evidences, and evidence preparation.Chapter 2 is to study the subjects of criminal pretrial conference and their rights and duties. The provisions of the current Criminal Procedure Code of PRC on pretrial conference are too principle, and are not involved in the rights and duties of the relevant subjects, which makes each subject not clearly know the way of act and its boundary. Therefore, it is necessary to probe into the rights and duties of the presiding party and other main participators in criminal pretrial conference. The “Judicial Officers” in the Criminal Procedure Code of PRC are too vague, which brought different opinions in determining the judge presiding pretrial conference and the problems focused on whether the judge presiding pretrial conference and the trial judge are separately designated. Though whether agreement or disagreement on the separation between the judge presiding pretrial conference and the trial judge has its reasonableness, non- separation shall be more conform to the concurrent situation of Chinese criminal justice. On one hand, in consideration of lack of actual binding force upon the criminal pretrial conference in China, separation between the pretrial judge and the trial judge shall reinforce the “no function” of pretrial conference, while non-separation shall help to bring the results of pretrial conference to trial procedure. On the other hand, bad effect on fair trial brought by pre-established guilty judgment owing to access to the material in the cases prior to trial, shall be controlled by technical regulation. The definition of specific rights and duties of the judges shall be helpful to exert its trial function, and the specific rights and duties of the judges shall be fixed based on the three functions of pretrial conference. In public prosecution cases, the prosecution and the defense are the main participators in pretrial conference. However, in judicial practice, the prosecutor are not enthusiastic in participate in pretrial conference. So, when determining the rights and duties of the prosecution, effective performance of the function of prosecution shall be considered to make them attend pretrial conference effectively. The current does not regard attendance of pretrial conference by the defendant as a legal legitimate right, which is referred to the court to decide on its discretion. Hence, “whether the defendant should attend the pretrial conference” becomes an issue in question. The reasons that exclude the defendant to attend pretrial conference lack justified excuses, the attendance by the defense lawyer and that by the defendant shall not substitute each other. The attendances both by the defense lawyer and by the defendant are inherent requirement from exercise of right of defense, and also indispensable conditions that realize the function of pretrial conference. For the purpose of the defense lawyer's performing their functions in pretrial conference, the right to reviewing files, right to interview with the defendant and right to certain investigation shall be effectively safeguarded.Chapter 3 is to study the Initiation of criminal pretrial conference. This Chapter involves two issues: one is the scope of application of pretrial conference. Too broad in the scope of application will cause expansion of litigation procedure and waste of litigation resources; while too narrow in the scope of application will prejudice the functions of pretrial conference. The exploration of the scope of application in practice mainly involves the types of cases applied to pretrial conference and the hearing proceedings in the pretrial conference. The types of cases applied to pretrial conference include the cases with major disagreement between the prosecution and the defense; hard or complicated cases; the cases with huge social influence; the cases with supplementary civil compensation; or the cases to be resolved by criminal reconciliation. While determining the scope of application of pretrial conference, the principle of “necessity” shall be followed, and it is inappropriate to have forbidden provisions, but it is acceptable to distinguish pretrial conference should be convened and that may be convened. The criteria for “should be convened” is that there exist the issues which must be settled in pretrial conference, and the criteria for “may be convened” is that there exist the issues which might be(but not must be) settled in pretrial conference, and which shall be decided by the judge on its own discretion. Two are the ways of initiation of pretrial conference, ways of convening, time and place of the conference. Besides the initiation of pretrial conference by the judge according to its power and authority, the rights to apply for pretrial conference shall be endowed to the prosecution and the defense, and the mechanism of informing of said rights and the mechanism of approval of said application shall be further perfected. In consideration of the nature of consultation in pretrial conference, the conference usually will not be held in public, except otherwise the court deem appropriate or the laws expressly stipulate. The pretrial conference shall be held by way of the meeting, or hearing, which shall be decided by the court according to the nature of the issues needed to be settled. The pretrial conference shall be held following the determination of collegial panel and reviewing the files and interviewing with the defendant by the defense. In addition, convenience and safety shall be considered while determining the place of conference.Chapter 4 is to study the contents and operation mechanism of criminal pretrial conference in China. The contents of criminal pretrial conference mean the issues to be settled. Those procedural issues that may affect the smooth ongoing of the trial, and those preparatory issues that may promote the function of trial hearing, are all included into the pretrial conference. One is the handling of procedural issues. There are six procedural issues related to the trial progress, that is, verifying the status of the defendant, jurisdiction objection, application of withdrawal, application for trial in private session, fixing the date of trial through consultation, and any other issues. Such procedural issues shall be resolved by regulating the following stages: application, answer, hearing and deciding. Two is summarizing the issues in question. The purpose for summarization is to find out the issues in question, the value of which is embodied in realizing concentrating hearing and effective hearing, ensuring trial center, and improving the efficiency of trial. The issues in question include facts, evidence and legal issues in question. The stages of summarization shall cover the preparation of summarization, objection or opinions made by the defense, the opinions given by the prosecution, the summarization of issues by the judge and confirmation of the summarization by the prosecution and the defense. The summarization shall be conducted within the framework of constitutive elements of crime, and the ways of separate summarization and emphasis summarization shall be employed. The summarization is to raise the issues in question, make clear the nature of the issues for the purpose of preparing the trial by the prosecution and the defense, but not evidence investigation and argument, which shall be the limit that must be strictly observed. The results of summarization shall be explicitly instructed at the beginning of the trial, which shall urge the prosecution and the defense to provide evidence, challenge and argue within the framework of the issues in question. In addition, the reason for introduction of new evidences by the parties shall be limited, which will safeguard the function of summarization of the issues in question. Three are application for exclusion of illegal evidence and disposal of said illegal evidence. Current legislation designs the pretrial conference as the platform to dispose of illegal evidence, but does not make clear the effectiveness of disposal of illegal evidence. In practice there are two types of disposal: one is that only preparation but not substantially disposal of illegal evidence in pretrial conference; the other is substantially disposal of illegal evidence in pretrial conference. On whether or not to exclude the illegal evidence in pretrial conference, there are three opinions: exclusion in trial, exclusion in pretrial conference and limited exclusion in pretrial conference. In view of the universal practice abroad and the value of exclusion of illegal evidence, illegal evidence during the trial stage shall be exclude mainly in pretrial conference and partly in trial hearing. Hence, relevant mechanism of information shall be further perfected, including stipulating the time and way of applying for exclusion of illegal evidence, examining mechanism and the effectiveness of the award. Four is preparation of evidence. The mechanism of examining procedure for application for introducing adminicular evidence and preservation of evidence shall be perfected, the scope, the mechanism for determining the way and order of evidence investigation improved, the effectiveness of determining the plan of the evidence investigation in trial fixed, which will help to avoid the low efficiency in trial resulted by violation of said investigation plan by either party. Five are supplementary civil compensation and criminal reconciliation. Based on the experience in medication in supplementary civil compensation and criminal reconciliation in pretrial, the author of this essay proposes to perfect the medication in supplementary civil compensation and criminal reconciliation in pretrial conference in the system level.Chapter 5 is to study the effectiveness of pretrial conference. The development of pretrial conference depends on key factors, that is, whether the pretrial conference can make decisions and whether such decisions have binding force upon follow-up trial activities. The Criminal Procedure Code of PRC does endow the judge the power to decide the issues submitted during the pretrial conference. But there are some exploration technically on the timeliness of application and power of adjudication in local levels, which provide the train of thought for perfection of pretrial conference. For defining the effectiveness of pretrial conference, there are three issues needed to be urgently solved:(i) whether pretrial conference can make decisions?(ii) how to make decisions?(iii) what kind of binding force have on the trial proceedings does the decisions? Firstly, the power to decide on the issued raised during the pretrial conference should be vested to the judge; Secondly, the procedural adjudication mechanism should be perfected from the aspects of the timeliness of application, the subject of adjudication, and the procedure of adjudication. All the procedural issues pertain to the scope of those to be disposed of before pretrial conference should be applied during pretrial conference, the subject of adjudication should be fixed based on the trial organization and the presiding judge in pretrial conference and the nature of issued to be solved, and the forms the result of the pretrial conference and effectiveness of the decisions shall be made clear. There are two kinds of results of pretrial conference: mutual consent by the parties and decisions made by the judges. Voluntariness and authenticity in mutual consent should be secured, and remedy should be provided to the applicant against the decisions or rulings made by the judges. The items agreed by all the litigant parties and the items decided by the judge shall not be requested again in the trial stage. Unless otherwise there are justified causes, or the court may overrule the request. The cohesive mechanism between award of pretrial conference and trial procedure shall be established by way of regulating making the records of pretrial conference and vesting its binding force, adding the report procedure of pretrial conference, perfecting the awarding documents of pretrial conference.The Conclusion Part reviews the whole text, summarizes the main opinions and finally put forward the expectation of the perfection of criminal pretrial conference in China.Appendices include 11 implementary measures or detailed rules concerning pretrial conference from various local regions, which are one of the fundamental materials that the author observes and analyzes. |
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