Research On Criminal Pre-trial Procedures In Modern China

The thesis studies on the criminal pre-trial procedures in modern China.Criminal pre-trial procedures are the procedures settled before the criminal cases sued to the court.Criminal pre-trial procedures are not only the preparation for the court trial but also relatively independent litigation stages,which means that they are important parts of criminal procedures.The criminal pre-trial procedures in modern China were the important parts of the modernization of criminal procedures and reflected the features of criminal procedure system in modern China,so this issue deserves a further research.The thesis mainly studies on the statutes,regulations,legal interpretations and referee instruments related to criminal procedures in modern China.This thesis studies from the internal perspective of legal rules,used the normative analysis method and followed by the theory of modern criminal procedure law.The thesis analyzes the main components of pre-trial procedures,including: investigation procedure,preliminary hearing,prosecution and private prosecution.Through this analysis can we observe the power relationship between the investigative authorities,the procuratorial organs and the courts.The criminal pre-trial procedures in modern China were built on the basis of norm and organization.The former refers to the laws enacted by governments at different times since late Qing Dynasty,including criminal procedure laws and judiciary constitution laws,which provided the normative basis for criminal pre-trial procedures.The latter refers to the establishment of procuratorial organs in modern China,which provided the organizational platform for criminal pre-trial procedures.The procuratorial organs was located inside the court at first,afterwards,the procuratorial organs were abolished,only some prosecutors were set within the courts.Despite this,the prosecutors always had the power of investigation with judicial police followed their lead and the power to prosecute as the representative of the state.The procuratorial organs played the important role in the criminal pre-trial procedures in modern China.The investigation procedure was considered as the preparation of prosecution in modern China,which was used for investigating suspect and collecting evidence.The complaint was the main basis to start the investigation procedure.After accepting the complaint,the prosecutors conducted investigations,such as interrogation,search and inspection,as well as coercive measures,such as subpoena,arrest,wanted and detain,with judicial police followed their lead.The investigation conducts and the coercive measures constituted the main content of investigation procedure.In the investigation procedure,the procuratorial organs could decide to conduct the investigation and coercive measures all by themselves,forming a model of self-authorization and self-supervision.The courts,as the neutral judges,could rarely constrain the procuratorial organs.The preliminary hearing was a special stage of criminal pre-trial procedure in modern China.There were two models of preliminary hearing in modern China at the legislative level: it could be in charged of prosecutors or judges.However,at the practical level,the preliminary hearing was in charged of judge throughout the period of modern time.The preliminary hearing had caused the most debates in all criminal procedures.These debates were mainly concerned about the following issues: the nature of preliminary hearing was investigation or trial,the purpose of preliminary hearing was to decide to prosecute or not,the preliminary hearing happened before or after the prosecution.The preliminary hearing charged of judge was a procedure which investigated the facts and collected evidence for trial on the one hand and could be considered as a system which could make the prosecution subject to the neutral judge on the other hand.However,preliminary hearing was eventually abandoned by legislators because it was considered as a violation of separation of trial and prosecution and it might cause the litigation delay.Although the preliminary hearing was an attempt of litigatalization of criminal pre-trial procedures,it was given up halfway in modern China.Prosecution was the core stage in criminal pre-trial procedures in modern China.Under the principle of state accusatorial model,the prosecutors,as the representative of the state,prosecuted the crimes.The scope of the trial was subject to the scope of prosecution.With respect to prosecutors' discretionary power,it experienced a change from doctrine of ruling by law to doctrine of opportunity in prosecution.To prevent the abuse of prosecution,as well as based on the consideration of improving litigation efficiency and saving judicial resources,the government of the Republic of China repeatedly carried out the non-prosecution.The doctrine of opportunity in prosecution and non-prosecution could protect the rights of the defendants,at the same time,the rights of victims were also important in the prosecution.As a remedy,the victims could apply for reconsideration on the non-prosecution according to the law.So the rights of the defendants and the victims were both took into account by the law in the prosecution.The principle of private accusatorial model was also adopted in modern China.The private prosecution was another way to prosecute the crimes besides prosecution and qualified subjects could prosecute the crimes within a certain range by themselves.There were views about lessening procuratorial organs or abolishing the prosecution system in modern China and the private prosecution was considered as a feasible way to reform the criminal procedure system and replace the prosecution.Under the influence of these views,the range of crimes applicable for private prosecution continued to expand in modern China.At the same time,to prevent the possible phenomenon of abusing the private prosecution,the range of qualified subjects was getting smaller and withdrawing the private prosecution was getting more difficult.Overall,the private prosecution changed from “difficult to prosecute but easy to withdraw” to “easy to prosecute but difficult to withdraw”.To sum up,the criminal pre-trial procedures were built around the prosecutors' power.Prosecutors played the most important role in the criminal pre-trial procedures.Because the prosecutors might monopolize the criminal pre-trial procedures,people worried about their power being abused.The preliminary hearing which made the prosecution subject to the neutral judges and the private prosecution which made it possible for victims to prosecute the crimes by themselves were both ways to prevent prosecutors to abuse their power.