Research On The Issue Of Live Testimony In Court For Bribery Cases

The legalization of anti-corruption and the country's legalization basically follow the same path.The rule of law in the country,that is,the state power is fully incorporated into the orbit of the rule of law,is to put power into the cage of the system.Examining the anti-corruption course since the 18 th CPC National Congress,the rule of law has gradually become the most distinctive and prominent feature.The most fundamental and most direct manifestation of the rule of law against corruption is to conduct a fair trial of all duty crimes,including bribery crimes.Because,trial is the center and focus of criminal proceedings,the court to solve through criminal trials is that the state investigates the legality and legitimacy of crimes.Since the Fourth Plenary Session of the 18 th CPC Central Committee,the litigation concept of "trial as the center" has gradually gained popular support and attempts to promote fair trial through substantive substantive reforms have also been gradually rolled out all over the country.Among them,stressing that witness testifying in court is not only the most important task of this reform,but also has far-reaching significance for the trial of bribery crimes,which is the typical representative of corruption crimes.Based on the litigation practice of bribery cases in our country,the author analyzes why witnesses appear in court and how to appear in court in order to seek a positive institutional countermeasures to solve the problem of witnesses in bribery cases and fairness in criminal trials.Only by upholding the justice of the judiciary can justice be ruled by the supreme authority of the rule of law so as to eliminate the suspicion of the campaign against corruption and the anti-corruption political struggle and ensure the legitimacy,certainty and continuity of anti-corruption so that people's will and anti-corruption Under the protection of the rule of law,the struggle goes further and goes further to ensure that anti-corruption achievements will not change when and where people depend.In addition to the introduction of this article,is divided into five chapters,about 180,000 words.The first chapter studies the basic issues of the appearance of witnesses in bribery cases.Mainly includes three aspects.First,the article summarizes the legislative changes,legislative features and the typological elements of bribery as a whole.With the gradual increase in the number of crimes of bribery and gradual increase in crackdown,the legislative adjustment aimed at intensifying the punishment and strictly compiling the criminal law network runs through the entire legislative criminal activity of bribery since the founding of People's Republic of China Rough to fine,from simple to complex legislative process.In terms of the legislative features of the overall category of bribery crimes,the main characteristics of the crime group in the legislative model,the non-strict symmetry in the system of guilty of charges and the imperfect coincidence of crime constitution.In terms of the typological elements of bribery crime,it mainly includes the identification of such elements as identity and official affairs,acceptance and bribery,employment facilitation,circulation of interests,and direct intentionality.Second,the proof of class crimes of bribery,with the judicial practice are explained from the proof of the object,prove the characteristics and prove the difficulty.Proposed two characteristics of evidence of bribery offenses,namely,the evidence structure of the word evidence and the method of finalizing the mutual evidence of direct evidence.Based on this,it proved that the bribery case was difficult from the formation causes and the ways of overcoming Analyzed.Third,we analyzed the witnesses of the bribery case from two aspects of theory and practice.As a typical witness of the bribery case,the identity of the co-workers has the characteristics of multiple identities.Fourth,the identity of investigators appearing in court was analyzed.On the one hand,it is difficult to deny investigators the witness status when they appear on the court due to the semantic inconsistency or the practical factors of legislation.On the other hand,The characteristics of the case and the limitations of avoiding instinct.The second chapter studies the scope and safeguard of witness in criminal cases appearing in court.First,through the comparative research and normative analysis of the way,defines the standard of key witness.Around the world,three representative models have emerged: the "testimonial statements" of the Supreme Court of the United States,the "sole or decisive" standards of the European Court of Human Rights,and the "special guarantees of credibility" of the English Supreme Court "standard.The above criteria are mainly determined on the basis of ensuring the accused's right of pledge and the credibility of the witness' s testimony.However,judging from the domestic research,three kinds of views have also been formed: that is,the substantive standard says that procedural standards are both considered and taken into account.Overall,taking into account that the key elements that better reflect the key witnesses,that is,the key witness is a combination of dynamic program-driven and static entity judgments that the defendant's application as the prerequisite elements to the testimony of the testimony as the essence standard.The second is to elaborate the basic content of the judge's discretion from the judgment of the key witness,whether it can appear in court or whether the rumor should be excluded.That is,the need to pass key examinations such as pre-examination,due diligence and credible examination to determine whether the key witness can be exempted from court and adopt his anecdotal statements.Thirdly,in combination with the legislation of the country governed by law,the general measures to ensure that key witnesses appear in court are analyzed.This mainly includes compelling court testimony for the purpose of witness obligations in the Section,giving priority to trial testimony on the part of the Section for prosecution obligations,and nullifying sanctions on the part of the Section for the purpose of a judge's obligation.The third chapter studies the practical logic of the appearance of witnesses in bribery cases.First,we analyzed the unreliability of bribery cases more than typical witnesses from two aspects: the intertwining of positive and negative factors and the imbalance of rights and obligations.That is to say,the unwillingness of the co-agent,despite the fact that he / she has a willingness to confess it,is unfavorable to the fact that it has been substantiated.However,its unreliability will be greatly enhanced due to the influence of the interest,the memory effect and the mode of the interrogation.At the same time,this phenomenon of unreliability has been further exacerbated by the fact that there is a factual absence of forced self-incrimination in criminal law and judicial practice in our country and the factual and unnamed immunity of witnesses.Second,proceeding from the requirements of the proof model of criminal proof,the paper proposes the necessity of verifying the credibility of written statements and the necessity of guilty confession and reinforcement.Thirdly,the author puts forward bribery cases for the main groups of existing bribery cases in judicial practice Witness the legal status of the request,the impact of pre-measures and the Human instinct driven for their appearance.The fourth chapter is based on the empirical investigation of the bribery case witnesses in court to testify objective reality and its internal causes.The empirical research mainly adopts the way of judgment and questionnaire of criminal judgment documents.First,starting with the investigation before the investigation of bribery and the investigation after the filing,the author puts forward the investigation and investigation of bribery crime has gradually formed a pattern dominated by discipline inspection and supervision organs,and this model has set the standard of settlement,Fixed verbal evidence and a highly closed investigation process and other characteristics,greatly limiting the follow-up trial witnesses to testify.The second is to take the prosecution of bribery as the starting point and reveal the weakening of function radiation and censorship and prosecution in judicial practice.However,the imbalance of the inspection relations behind the phenomenon and the prosecution's vigorous defending of the prosecution target are the main reasons for the prosecution's negative attitude toward the witness appearance.Thirdly,based on the trial court of first instance and the trial of second instance,objective analysis of the defendant's offer of torture and its extent and the evidentiary evidence clearly violate the logic law and the rule of thumb are the positive factors that promote the appearance of witnesses.However,And "excused censorship" and the second indictment over the negative connotation of allowing witnesses to appear in court in the first instance were negative factors in restraining witnesses from appearing in court.The deep-seated reasons for negative factors are the misleading experience of justice,the imbalance of prosecutors status and the loss of judges' neutrality.The fifth chapter studies the system of bribery witnesses to testify in court.Promoting the witness of the bribery case to testify in court must be based on the renewal of the judicial concept,supplemented by the protection at the system level and the innovation of judicial technology.Only through the accumulation of bits and pieces will it be possible to achieve the stated goal.First,it analyzes the renewal of the concept of trial in the context of substantive trial.That is,we should stick to the judicial bottom line of presumption of innocence.We should not only overcome the guilty tendency in case trials but also correct the improper guidance of judicial experience.We should increase judicial recognition of equality between prosecution and defense.That is to say,The court should follow the judicial rules of evidence adjudication,that is,to take witnesses to court as an important and even the only way to truly implement the principle of evidence adjudication and solve the truth of the truth.Second,it proposes the institutional support to promote the appearance of witnesses in bribery cases.First,the accused should be given the right to interrogate,that is,the witness should be given the opportunity to testify by respecting the face-to-face rights of the defendant and the unfavorable witness.Secondly,the pretrial alternative procedure should be reasonably constructed,Witnesses in the pretrial procedure testified,and to meet the presence of neutrals,the defense effective participation,procedural preservation and other three conditions,may not testify in the formal hearing;once again is to regulate the pre-trial statements and court testimony that witnesses Appearing in court,it is necessary to give priority to the principle of trial testimony,but also in the reasonable evaluation of the premise to strengthen the pre-trial review of the objection;and secondly,to optimize the witness to attend the interests of the lead mechanism,that is,from changing the main responsibility and conduct The two sides of interest guide the witness to voluntarily go to court.Finally regulate the court to verify the testimony behavior.The phenomenon that occurs during the trial of bribery cases should be strictly eliminated.At the same time,the findings of the investigation should not serve as a requirement to testify in court.Third,analyze the issue of witness appearances in the background of the supervisory system reform.The positioning of the supervisory committee and the changes in the pattern of power make it even more necessary for witnesses of bribery cases to appear before a court,but they also find it more difficult to appear before a court.Therefore,on the one hand,procuratorial organs as legal supervisors need to strengthen the substantive examination of the pre-tribunal statements;on the other hand,they should establish investigators' normalization mechanisms.