Research On The Substantiation Of The Criminal Court Hearing

Substantiation of the criminal court hearing is a theoretical proposition and the reform target which is put forward for the phenomenon of formalization of court hearing in the practice in China.The “Decision on Several Important Issues in the Overall Promotion of the Ruling of the Country by Law”,approved in the Fourth Plenary Session of the 18 th Central Committee of the Communist Party of China(CPC),has clearly stated to advance the litigation system reform centered on trial.One of its main objectives is to “ensure that the court hearing plays a decisive role in fact-finding,affirming evidence,protecting the right of appeal and just judgment”,that is to realize the substantiation of the court hearing.As the current hot issues of criminal justice reform,the reform of substantiation of the court hearing has ushered in the best period.Based on the status quo of China's criminal court hearing practice,this thesis discourses the deconstruction of the substantiation of the court hearing,analyzing the shortages and reform problems of substantiation of the court hearing.The purpose is to explore the possible way for the reform of substantiation of the court hearing in China.In addition to the introduction,this thesis is divided into five chapters.The first chapter studies the basic theory of the substantiation of the criminal court hearing,mainly including three aspects: first is to explain the substantiation of the court hearing and the meaning of the relevant terms.From the literal meaning,the substantiation of the court hearing can be understood that the court hearing can effectively plays its functions in the practicing process;from the intrinsic requirements,the theory of the substantiation of the court hearing accord with the theory of modern criminal procedure system,which all take impartial trial as the core value pursuit and take the effectiveness of the program operation as the main target.Referred to the substantiation of the court hearing,we have to talk about centering on trial.The substantiation of the court hearing is closely related to the trial-centered.The substantiation of the court hearing is the main content of centering on trial.the contents referred to the two belongs to the subordinate relationship.from the perspective of the focuses of China's current reform,the goals of the two are basically same;Judging from the mutual promotion of centering on trial and the substantiation of the court hearing,the two have a clear positive-correlation relationship,which all focus on the construction and promotion of the substantiation of the court hearing and the development of centering on trial.Second is the multidimensional interpretation for the substantiation of the court hearing.From the external function perspective can make this term imensional analysis.As an state of litigation which should be pursued,substantiation of court hearing not only points to ideal model theoretically,but also includes differences between different levels and standards in practice;as the measure standard of system constitution,substantiation of court hearing raises a series of requireme to trial system,and guide its perfection;as guiding litigation concept,substantiation of court hearing emphasize the independent value of court hearing prominently,and become the power source which move reform and practice forward.The third is the analysis of the legitimacy of the substantiation of the court hearing.The two main functions of verifying the facts of the case and guaranteeing the rights of the defense are the power sources of the substantiation of the court hearing.On this basis,it can also enhance the judicial authority.The second chapter researches the changing process in the reform of the substantiation of the court hearing in China.Looking at the changing process in the reform of the substantiation of the court hearing,we can find the limitations and unfinished tasks of all previous reforms.So far,China's reforms of the substantiation of the court hearing can be divided into three development stages.The first is the reform of accusing and defending trial mode based on the amend of “Criminal Procedure Law” in 1996,trying to realize the substantiation of the court hearing by playing the roles of both accusing and defending sides in the court trial.The reform of accusing and defending trial mode has reduced the phenomenon of “deciding on a verdict first and hearing later”,which made the structure of court trial more reasonable.But it has not changed the common states that the accuser and defender are difficult to confront equally;the court is hard to hear with speech;and judges are difficult to originate from the court hearing.The deep reasons which cause difficulties to the reform of the substantiation of the court hearing include: the absence of legislative impetus and a large number of supporting systems of the reform of trial mode leads to the confrontation situation of court hearing in practice difficult to form spontaneously,which can not get the protection of the system.The core value pursuit centering on fighting crimes and the reform logic of neglecting the rights protection result in that the reformed court hearing is still a process of punishing crimes.The second stage is the further improvement of procedure law system from the introduction of “The Regulation on Two Evidences” in 2010 to the modification of “Criminal Procedure Law” in 2012.The basic principles of the evidence act,exclusionary rule of illegally obtained evidence,the establishment of pre-court meeting system,the system of witnesses and identifier appearing in court,system of advocacy,and reform of summary procedure all obviously promote the substantiation of the court hearing.The main problems that impede the substantiation of the court hearing after amending the laws are as follows: the effects of pre-court meetings are not good with the risks in real trial;the situations of witnesses and identifiers not appearing in court have not been improved markedly;the problems of records and files have not been paid attention;the procedure of court evidence investigation is not reasonable and substantial enough.The third stage is the ongoing trial-centered reform of lawsuit system,which aims to promote the substantiation of the court hearing by establishing the decisive position of the trial and the reform focus of the substantiation of the court hearing.The status of the substantiation of the court hearing has been significantly improved,ushered in the best period of development.But to maintain the traditional relationship among the three public security organs and the value pursuit for focusing on punishing criminals may have limited the reform of the substantiation of the court hearing.The local pilot reform of the substantiation of the court hearing which is ongoing has achieved results in examining the operation of technique and system,forming guiding rules and the accumulating propagable reform experiences and other aspects.But the pilot reform method has its own limitations;the effect in pilots can not represent the general situation of criminal justice,which is difficult to become ordinary state in the short term;pilot cases still lurk the risks of formalization of court trial.The third chapter studies the real modality of China's criminal court hearing.Through investigating the real modality of China's criminal court hearing in practice,we can fully understand the shortages and key problems that need to be solved of the substantiation of the court hearing in practice in China.On the basis of existing achievements of the empirical researches,through the analysis and interpretations of the trial processes and contents of the individual cases,it can show the typical states of the formalization of trial processes and trial judgment in practice,and then combining the data statistics and interview to analyze the causes of the formalization of court hearing.First of all,the real modality of the formalization of the trial process can be summarized as follows: the investigations of the facts of the case are not sufficient,that the main evidences of deciding on a verdict have not been fully cross-examined and debated,Which mainly show in three aspects: the accusers put to proofs excessively,and the issues of court investigation are not prominent;the way of putting to proof and cross-examination is too rigid,and the debate for fact issue is not enough;the key witness does not appear in court,resulting in substantive investigation of the witnesses can not be carried out.The main reasons for the formalization of the trial process in China are as follows: the court investigations take records and files as the main objects;the power of the accuser and the defense is not balanced;the right of cross-examination of defense can not be effectively protected;the ideas to solve problems through court hearing is absent;lack of technical and institutional support for the investigation of evidence in court hearing;pursue efficiency under the pressure of more cases but less people.Secondly,the substantiation of the court hearing must be based on the substantiation of the trial process.If the trial process is formalized,the judge can not take the contents of the court trial as basis.Thus,the judgment will lose the basis of legitimacy.In addition,the formalization of court adjudication also show in two aspects: from the situation of trial subject performing jurisdiction,the formalization of the court judgment is shown as that the judges do not perform the jurisdiction substantively;from the relevance of court adjudication and judgment decisions,the court hearing has not played substantive impacts on the formation of the judgment decisions.The main reasons leading to the formalization of the Chinese court judgment are: the administration of judgment decision;the connection between the court hearing and the judgment has been blocked;the pursuit of mutual confirmation of evidences;the decisive position of the judgment is missing.The fourth chapter studies the ideas and methods of the reform of the substantiation of the court hearing in China.The formalized phenomenon of criminal trial which keeps existing in China and difficult reforms of the substantiation of the court hearing for many years indicate that the substantive reform of the trial is an arduous task that is still far from accomplished and needs to be continuously advanced.Designing and sticking to implement reasonable and pragmatic reform plans can ensure that the substantiation of the court hearing in China continues to move forward at least.Based on the previous reform experiences and the reality restricted by many factors,China can only gradually advance the substantiation of the court hearing.For the starting point of the reform,we should establish the basic concept for the substantiation of the court hearing to ensure it to be guided by the concepts of positive development;we should clear bottom-line standards for the substantiation of the court hearing,to urge and guide the practical operations to maintain the most basic legitimacy;we should set system goals according to the standards of the substantiation of the court hearing,and gradually improve and perfect the system.In terms of the specific direction of reform,it is necessary to push the imperfect operations in the reality to the ideal state,which includes: from hearing by file-transcripts to direct verbal trials;from formalized proof to rigorous proof,from the imbalance between the accuser and defender to the balanced accusation and defense,from the judgment out of court to the judgment on the court.Correct understanding and handling with the impacts of the file-transcripts on the substantiation of the court hearing,as well as attaching the importance of litigation protection function of the substantiation of the court hearing,are the basic problems which need to be faced by the reform of the substantiation of the court hearing.From the legislative promotion to the pilot reform,the logic transformation reflects the reformers' cautious attitude to the system reform.In addition to the main method of the pilot reform,promote the reform of the substantiation of the court trial also needs to comprehensively apply specific methods,such as top-level design,text interpretation and system legislation.At the same time,we should pay attention to assess the actual effect of the substantive development of the court trial,including individual assessment and holistic assessment.The development situations of the substantiation of the court hearing are judged mainly depending on the overall assessment.The fifth chapter researches the main measures of the reform of the substantiation of the court hearing in China.Following the basic idea of the reform of the substantiation of the court hearing,the main measures of the reform can be divided into two parts.The first part is to improve the court hearing system and related evidence system,specifically including four aspects.First,improve the pre-court meeting system.Take effectively organizing disputes and resolving procedural disputes as the goal,to clarify the procedures and physical preparation functions of pre-court meetings.Increase starting mode of the right of action promoting the convening of the pre-court meetings,clearing specific issues,procedures and effectiveness solved in pre-court meeting,and preventing pre-court meeting turning into substantive hearing.Secondly,on the basis of establishing the principle of direct speech,the criminal defendant should be given the right of confrontation and inquiry.Promote witness to present at court with the mode of check and balance between the right of appeal and jurisdiction,and perfect the system of witness appearing in court and the ability and rules of evidence,to promote the normalization of witness appearing in court and to restrict the use of file-transcripts.The third is to improve the evidence investigation system of court hearing.Establish pre-dispute arranging procedures,improving the witness investigation procedures focused on the cross-examination;establish induced inquiry rules,standardizing the application of judges' interpretation right and the power of investigation outside the court.Fourth is to establish a statutory record system on court hearing,which will be taken as the material to supervise and control the trial process.Standardize the contents and making process of trial file-transcriptions,clarifying the evidence attributes and the proving validity of the trial file-transcripts,as well as the right of reading and using.Meanwhile,realize the technicalization of trial file-transcripts production and perfect video and audio recording system of court hearing.The second part is to improve the supporting factors of the substantiation of the court hearing,including four aspects.First is to protect the judicial power performing in collegiate bench,which needs to focus on improving the relationships between judgment and investigation and public prosecution and operating mechanism of judicial power.The second is to improve the procedural diversion mechanism which focuses on perfecting the criminal quick judging procedures and lenient system of pleading guilty.Third is n to perfect the safeguard measures for the equal participation of the accuser and the defender,taking improving the defending rate and the defending quality of the ordinary procedure.Fourth is to enhance the technical literacy of the subjects of litigation.Enhance the judge' abilities to preside over,command,control and regulate the court hearing and the ability of authentication in the court according to the technical requirements of the substantiation of the court hearing;improve the abilities of pretrial preparation,putting to proof in the court,cross-examination and debating of the public prosecutor and lawyers.