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The Research On The Legal System Of The Defendant's Confrontation Right

Posted on:2018-01-11Degree:DoctorType:Dissertation
Country:ChinaCandidate:H GuoFull Text:PDF
GTID:1316330515489806Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
At present,in the transition period of judicial reform,the establishment of a trial-centered criminal procedure system is the general trend of China's judicial reform.At the request of the trial-centered,the defendant's rights should be protected in particular.As a fundamental right of the defendant,the confrontation right has not only been guaranteed by the Constitutions and the Codes of Criminal Procedure in many countries of the world,but also regulated in the European Convention on Human Rights and International Covenant on Civil and Political Rights.However,the review of China's criminal proceedings,the defendant's litigation status is relatively weak,both sides of the prosecution and defense are not equal,the defendant's rights has not been substantially comprehensively protected,the defendant has not been given the right to confront with the witness against him in court.Based on the omission of the legislation in our country,this paper attempts to elaborate the legal problems and institutional obstacles behind the lack of the defendant's confrontation right and put forward the initial conception of establishing the legal system of defendant's confrontation right in China.This paper amounts to a total of about 125,000 words,which starts from the summary of the confrontation right in the first chapter.In the second chapter,we discuss the basic theories of the confrontation right,and then in the third chapter,we discuss the the different legislation systems outside the country.In the forth chapter,we try to figure out the reason that such as the existing legislative problems and system roots of why the confrontation right in our country is difficult to establish,and finally in the fifth chapter we discuss the institutional basis and legislative methods of confrontation right in our China.The first chapter of this article summarizes the concept of confrontation right.lt discuss respectively the conceptual definition,basic characteristics,objects of implementation,nature of this right and legal function.In this paper,the definition of the concept of confrontation right is discussed in detail,starting from the concept of the text of the confrontation right,extending to the conceptual distinction between the confrontation and cross-examination,and then comparing the distinction and the contact between them.This paper also analyzes the "face-to-face" and"confrontational" of confrontation right,discusses the distinguishing characteristics of confrontation right from other rights,discusses the two objects that the defendant confronts to,which contains the witness against the defendant,the victims,the expert witness and the investigators.Subsequently,we define the confrontation right as one kind of the defendant's defense rights and the basic rights of citizens.Finally,it proves that the establishment of the confrontation right can guarantee the defense right of the defendant and promote the litigation balance between the prosecution and the defense,and then discover the truth of the crime cases and finally realize the trial justice.In the second chapter,the author discusses the theoretical basis of the defendant's confrontation right.The confrontation right is based on the theory of due process,the subject theory of litigation and the theory of power restriction.This paper introduces the concepts and characteristics of the above three important theories and their connection with the confrontation right,clarifies the righteousness of the confrontation right,explains the principle of self-incrimination,the presumption of innocence and the doubts interests of the defendant principle,as well as the inherent impact of the natural law theory,social contract theory to establish the confrontation right.The third chapter of this article focuses on the comparative study of the confrontation right in the two major legal systems in foreign countries.In order to provide a useful reference for the construction of the confrontation right in our country,this chapter introduces and discusses the basic situation and operation rules of the confrontation right in the United States as the symbolic country in the common law system,and introduces the confrontation right of the European Convention on Human Rights in the civil law system.In this paper,we also analyzes the legislative provisions of the confrontation right in Taiwan District of China.The fourth chapter of this paper analyzes the status quo of the defendant's confrontation right in our country,and describes the legislative omissions and judicial difficulties presented by the confrontation right.This paper argues that the institutional barriers to confrontation right in our country include four aspects,namely,the absence of the system of direct speech principles,the barriers of the investigative centralist litigation model,the positive realism of the truth and the obligatory selfish system.In our country,in order to establish the defendant's confrontation right,to solve its legislative oversight and judicial issues,you need to first solve the above four aspects of institutional barriers.The fifth chapter puts forward the conception of defendant's confrontation right in China.First of all,it is necessary to establish the institutional basis of the confrontation right,including the principle of direct speech,the use of restrictions on the case notes,the establishment of a trial-centered litigation model,the establishment of negative truth realism,change the standard of justice judicial system.On this basis to protect the legitimate rights of the defendant to achieve the confrontation right.Secondly,we envisages the creation path of confrontation right,including the creation of the confrontation right under the protection of constitution,the construction of the confrontation right in the criminal procedure law and the matching procedures for stipulating the defendant's confrontation right.
Keywords/Search Tags:confrontation right, the rule of hearsay, the trial-centered doctrine, witness testifies in court
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