| Chapter 1 Introduction to Reform of Litigation System Based on Trial-Centered DoctrineAccording to general understanding,the trial-centered doctrine provides that a trial,especially the first trial by court,is the most important procedure in determining whether the individual prosecuted should be subject to penalty or not.In other words,nobody should be considered as criminal or be found guilty without a trial.The trial-centered doctrine is reflected not only in trials but also in pre-trial procedures.The term “trial-centered doctrine” originated from Japan.The New Constitution of Japan after the WWII included a series of litigation principles with respect to human rights of its citizens as constitutional principles,which laid solid foundation for the establishment of trial-centered doctrine.The trial-centered doctrine is represented in various ways,including formulating the code of criminal procedure based on criminal trial procedures.Many countries established their respective criminal litigation system based on trials;consequently,the structure of their codes of criminal procedure have distinctive feature of the trial-centered doctrine.The trial-centered doctrine is also strongly represented in the trial structure.Criminal trial proceedings mainly take form of a triangle structure consisting of the prosecutor,the defense lawyer and the judge.There are other forms of trial structure in pre-trial procedures.The trial-centered doctrine is also represented in judicial practice,the recognition of facts and evidence,the finality of sentences,etc.It would be impossible to implement the principle of rule of law in the legal procedures that determine the criminal liability of a citizen without strict adherence to the trial-centered doctrine.The trial-centered doctrine became a well-discussed topic partially because of the promotion by the Supreme People's Court as well as the recognition by the CCP thereof.We should not focus merely on term “trial-centered”,but should also consider numerous problems with respect to the rights and obligations of the prosecution and the defense,as well as the balance therebetween.A trial-centered prosecution-defense relationship should be a relationship properly structured,which would comply with the structure provided in the modern criminal litigation principles.The structured prosecution-defense relationship is a problem yet to be solved completely under the criminal litigation of China.A trial-centered prosecution-defense relationship should take the purpose of criminal litigation into account.The purpose of criminal procedural law is best described in Article 1 of the Code of Criminal Procedure of Japan: “The purpose of this Code,with regard to criminal cases,is to reveal the true facts of cases and to apply and realize criminal laws and regulations quickly and appropriately,while ensuring the maintenance of public welfare and the guarantee of the fundamental human rights of individuals.” It would be ideal to have substantive justice and due process coexist equally,however,contradiction and conflicts between the two arise from time to time.There are times when the efforts to ascertain the facts might violate human rights,while other times the protection of human rights might interfere with the ascertaining of the facts.It is a major issue to determine how to prioritize these two values.The academic focus should be on how to define the relation between them.One of the major problems of the criminal litigation in China is the failure to attach equal importance to substantive justice and due process,and the prosecution-defense relationship needs to be further refined.Based on the criminal litigation theories,we have reason to believe that “to promote the trial-centered based reform of litigation system and to ensure that the factual evidence of the cases that have been investigated,reviewed and prosecuted are up to the examination under the law”,as stipulated in the policies issued by the central government,certainly refers to,among others,a scientific and reasonable prosecution-defense relationship.Of course,to refine the prosecution-defense relationship also includes the realization of substantive trials,the exclusion of illegally obtained evidence,the due pre-trial procedures,etc.Justice and efficiency of litigation shall be taken into consideration when evaluating the prosecution-defense relationship.The trial-centered doctrine as a generally applied principle is correct,but it should not be taken to extreme;otherwise it would be difficult to keep balance between justice and efficiency of litigation.Chapter 2 Construction of the Prosecution-Defense Relationship against the Backdrop of Modern Criminal ProcedureThe trial-centered doctrine should not be an isolated and single concept that exists on its own upon excluding the pre-trial criminal procedures.It should be considered about the pre-trial procedures.In other words,the trial-centered prosecution-defense relationship should not be taken lineal or extreme.Discretionary prosecution is the condition precedent to and basis of trial-centeredness.The discretionary power of the prosecutors make it possible to make plea bargain,which ensure the establishment of trial-centeredness.This is the meaning of discretionary prosecution in the reform of litigation system centered on trial.The trial-centered doctrine does not conflict with discretionary prosecution.On the contrary,discretionary prosecution serves the doctrine by ensuring the normal function of criminal litigation.The trial-centered doctrine is commonly practiced most countries,while the most difficult problem in the pre-trial prosecution-defense relationship in China lies in the multi-function of the prosecution.Such system does not comply with the principles of trial-centeredness and finality of judicial sentences;therefore,proper reform thereof is necessary.The conflicts between prosecution and defense has become a distinct social phenomenon during the process of establishing the rule of law in China.The unhealthy construction or irrational conflicts between prosecution and defense would severely impair the quality of trial and sentence,and might endanger the reform of litigation system centered on trial in the long term.At the moment in China,the conflicts between prosecution and defense exists not only in academia,but also among practitioners,with respect to issues such as difference in judicial interpretations that should be observed and executed respectively by prosecution and defense,and the conflicts between the roles they respectively taken in litigation,etc.It is correct to establish a review and control system by a neutral judiciary institution during the investigation procedures to include all actions during the investigation procedure that may impose substantial restriction on rights of the person and freedom into the scope of judicial review and litigation,but the key issue is who should take the lead thereon.Whether the prosecution,i.e.,the prosecutorial organs,should be considered judicial institution is still under debate,which has adversary effect on the total implement of the trial-centered doctrine.The major feature of the Chinese prosecution-defense relationship is the conflicts between the common-law theories and the civil law theories,which would continue to exist for a long time based on the coexistence of the rational and the irrational relationships.Irrational prosecution-defense relationship is commonly seen.The Chinese prosecution-defense relationship will show both apparent and potential conflicts.Apparent conflict between prosecution and defense include,other than those mentioned above,conflict in court,conflict in crimes charged,the appropriacy of punishment proposed by the prosecution,different views on death penalty review procedures,etc.But the potential conflicts,which are mainly represented as the confrontation between the prosecutors and defense lawyers,are the most worrisome,as it would jeopardize the judicial reform in the long run.The prospect of the prosecution-defense relationship in China relies on the clarification of its nature.The nature of the prosecution-defense relationship lies in the collision and integration of pluralistic litigation values and concepts in China at the moment.It can be observed that the idea of crime control and due process in in both inquisitorial system and adversary system,but have different characteristics due to their differences in litigation values and historical customs.When personal freedom conflicts with litigation values such as safety,justice and efficiency,it is impossible to acquire completely equity while setting up rights and obligations of the two parties in the prosecution-defense relationship;however,conflicts could never be completely eliminated from the basic manners and procedures of litigation.Chapter 3 Prosecution-Defense Relationship and Social Ideological TrendsThe fact that criminal procedural law is closely connected with constitutional law determines that social ideological trends impose decisive influence on the prosecution-defense relationship.It is impossible while unnecessary to avoid the influences of typical or untypical social ideological trends in contemporary China,mainly,liberalism,neo-conservatism and the New Left,on the prosecution-defense relationship which is an important part of criminal litigation system.The most striking feature of liberalism would be its critical thinking attitude.Neo-conservatism advocates achieving social progress by making steady and gradual progress on the basis of keeping the historical continuity of existing order.The author recommends the neo-conservative methods to realize the refinement of prosecution-defense relationship.To the Chinese criminal litigation which originated from civil law system,liberalism,especially moderate liberalism,is not as strange as one might image,nor is it as isolated as people are made to believe.It should not be considered enemy to both the prosecution and the defense.However,it is not uncommon in the academia to show extreme liberalism,which is misunderstanding of western legal culture,that considers western law as a convenient tool to solve the problems in China,while failing to realize that the western legal system has evolved over long time and is supported by their economic,social,political and cultural,customs and other factors.Neo-conservatism has different meanings in different countries at different times.The basic idea of the neo-conservative reform that the author refers to aims at setting up certain transitional mechanism,which is a theory or thought of progressive modernization based on respect of the historical continuity of traditional order.The major advocate of this school of thoughts include the scholars such as Qingong Xiao.The particularities of the Chinese criminal litigation system originated from the complexity and diversity of social problems herein.The New Left is actually an unrealistic romanticism.If we hold a radical view to the trial-centered reform of litigation system(romanticism sometimes equals to radicalism),the prosecution-defense relationship in China will be neither fair nor efficient.Social ideological trends effect the prosecution-defense relationship by reflecting litigation value thereon.The view one holds toward litigation value is usually the same as toward social ideology.Litigation value answers the question “what should be the purpose of criminal litigation”,which is another form of expression of social ideology in legal academia,though the level and manner of expression thereof are different from those of purpose of litigation.The differences in litigation structures between inquisitorial system and adversary system are caused by their differences in the purpose of litigation,i.e.,the de facto litigation values.Therefore,they represent different views on purpose and structure of litigation,and ultimately the prosecution-defense relationship.Under this logic,the influence of social ideological trends on the prosecution-defense relationship is realized through the decisive influence of litigation value on litigation structure.These views have deeply influenced the construction of prosecution-defense relationship by discourses,views and laws formed since the 1990's.Until the present days,even though there shows trends of fusion of inquisitorial system and adversary system,their respective features are still reserved in basic litigation methods and specific procedures employed by different countries,which implies the influence of divergence of different social ideological trends.In the author's point of view,based on the tolerance nature of the Chinese culture,the prosecution and the defense should not be of a life-and-death confrontation.Both the defense and the prosecution should fulfill their respective duties,reasonably optimize the allocation of their respective judicial resources,and effectively expedite the litigation progress by duly reducing litigation procedures and costs,and therefore better protect the justice of litigation.To reconstruct the prosecution-defense relationship pre-maturely or behind time both have consequence.In doing so,we need changes as well as relative stability.The reconstruction of the prosecution-defense relationship is a constant theme,but shall avoid radical change.Chapter 4 Litigation Structure of Prosecution-Defense RelationshipThe formation,development and perfection of the prosecution-defense relationship are accompanied by the evolution of litigation structure.The countries that adopt inquisitorial system such as France and Germany focus more on efficiency,while the countries that adopt adversary system such as the UK and the US focus more on freedom and equality.The prosecution-defense relationship cannot develop scientifically and reasonably without the establishment of the triangle structure as generally recognized in modern criminal litigation.The triangle structure of the prosecution-defense relationship consists of the following: the prosecutor and the defense lawyer along with defendant acting as two parties,while the judge acting as the adjudicator(if bringing a lawsuit);and the defense lawyer along with defendant and the policy acting as both parties,while the prosecutor acting as the adjudicator(if reviewing for arrest warrant or not to prosecute).The prosecution-defense relationship should based on the adequacy of this litigation structure.The inquisitorial system and adversary system are not mutually exclusive,but intend to integrate.The author is of the opinion that China should adopt the mixed litigation structure.The Japanese criminal procedure law has made great success in this regard,which may serve as reference for China.Which one of inquisitorial system and adversary system would dominate over the other determines the difference of the prosecution-defense relationship.The basic principles of modern litigation culture such as “no trial without complaint”,“separation of prosecution and trial”,“presumption of innocence” are the foundation of the adoption of mixed mode in China.The research on pre-trial litigation structure shall focus on overall litigation structure,which means to consider the litigation structure and duties from an overall standpoint,but not to be limited to the trial proceedings.A prosecutor's actions decide his different duties under different situations,and his actions as a party in litigation might lead to different litigation duties.When a prosecutor exercises his duties to determine whether to prosecute,he is the adjudicator facing the police and the defense lawyers.When a prosecutor exercises his duties to take coercive measures against suspect or defendant,his actions determines that he exercises prosecution duties,and acts as a party,same as the suspect or defendant,in front of the judges.The prosecutor's actions determine his duties.The pre-trial litigation structure also has connection with judge,which is a form of pre-trial litigation structure.It is the inner requirements of modern criminal litigation system to establish pre-trial judicial review.The litigation structure in trial procedures is a typical triangle structure.As to the form of litigation,the difference between inquisitorial system and adversary system lies is who oversees maintaining the legitimacy of trial and dominating the trial procedures.With a well-equipped prosecution-defense-adjudicator structure,the public should have faith in the judicial authority.Chapter 5 Subjects of Prosecution-Defense RelationshipThe discussion regarding the prosecution-defense relationship mainly focuses on the defense lawyers and prosecutors rather than the prosecution and defense in an untypical sense.A defense lawyer is equally subject to the obligations of objectivity,but the meaning thereof is not entirely different from those of a prosecutor,as he focuses more on the obligations of truthfulness under the premise of protecting the legal rights and interests of the defendant.A defense lawyer's obligations of truthfulness to the truth and faithfulness to the defendant usually conflicts with one another.A defense lawyer is under difficult situations as he has to gain and maintain the trust from his client,and from the court too in order to defend his client more effectively.Many problems involving the conflicts between the two types of responsibilities are yet to be solved.A prosecutor also has professional ethical dilemma to overcome.Under the principle of prosecutorial integration,when obeying his superior's order conflicts with the objectivity obligations,a prosecutor should observe the objectivity obligation to ensure the case be handled legally and impartially.However,a prosecutor cannot handle a case entirely according to his own opinion regardless of his superior's orders.The key is to treat his superior's orders correctly.The future judges,prosecutors and lawyers should help each other to improve their skills in their joint study and research,unify their common understanding of legal knowledge and legal profession ethics,shape the common qualities of legal profession,and create common awareness of legal profession.The highest value of the rule of law is to be believed in,which is the foundation of the existence of both the prosecution and the defense.The role of “non-civil servant officer of the law” should be an indispensable part of a defense lawyer as part of the law profession community.To establish the objectivity obligations of a defense lawyer will also help ensure a case is handled objectively and fairly.From the standpoint of criminal litigation structure,to establish the defense principles is essential to maintaining a reasonable framework of criminal litigation.In the triangle structure consisted of the judge,the prosecution and the defense,the defense functions and the prosecution functions are both pillars of the litigation structure.At present,there is no exactly same prosecutorial system in any country.Comparing to the trial system,the prosecutorial systems differ from country to country.The development process of prosecutorial system reflects the practice process of the theory of separation of powers.As long as the prosecution-defense relationship of China occurs within this framework,it would be normal.The integration of procuration and police should be categorically rejected in order to establish a healthy pre-trial prosecution-defense relationship.A “Super cop” integrating the prosecution and the police will make it much harder for the defense lawyers exercise their rights in adducing proof.According to the instructions of the central government,after the reform of prosecutorial system,the prosecution-defense relationship only exist after the case has been submitted to the prosecutorial institution upon reviewed by the Prosecution Supervisory Committee.The author believes that the prosecution-defense relationship after the reform of prosecutorial system still complies with the modern criminal litigation framework.Based on the powers and duties of the Prosecution Supervisory Committee,theoretically,it can be regarded as the future prosecution in a broad sense,and consequently conforms with the general background of the analysis of the prosecution-defense relationship in this paper.Chapter 6 The Demonstration of Facts and Evidence in Prosecution-Defense RelationshipOne of the basis of existence of the prosecution-defense relationship is evidence which plays a decisive role in the success of creating a prosecution-defense structure in a trial-centered litigation system,which is also determined by the principle of evidentiary adjudication.The standard of proof of criminal prosecution is generally lower than the that of criminal defense in most countries.In China,the current stand of proof for both the prosecution and the defense is “clear facts,accurate and sufficient proof”.The unanimity in stipulations of law does not represent unanimity in understanding by the parties in practice.The unified standard of proof for both the prosecution and the defense complies with the litigation patterns in China.When deliberating,the judges need to consider the impartial enforcement of the law,the credibility of evidence submitted by each party,the possible influence on the society of the sentences,etc.,while employing different standard of proof for different parties will bring unnecessary difficulty to the judges.The unanimity in the standard of proof for the prosecution and the defense is a typical manifestation of the trial-centered doctrine in legislation regarding evidence,which conforms with the value of granting equal importance to fairness and efficiency,and constitutes one of cornerstones of the prosecution-defense system.It suffices to fulfill the litigation purposes to punish criminals as well as protect human rights.We shall insist on cross examination of evidence which is essential to the judicial rationalism.How to determine the achievement of reasonable inner conviction is a difficult subject,but as long as we insist on cross examination of evidence,this problem should be solved.Litigation involves retrospective evidencing.To insist on cross examination of evidence as a principle is the basic of the basics of a trial-centered system.To examine the facts and evidence in trial can improve the efficiency of litigation and establish the concept of due process.In the reform of litigation system centered on trial,proving legal facts in a criminal litigation is ultimately to solve the issue of inner conviction of the judges which based on legal facts.Therefore,the prosecution-defense relationship must base on legal facts.In the concept of the triangle litigation structure in China,to promote the legal profession community by the prosecution-defense relationship shall also centers on the judgment of legal facts.It is of critical significance to study the problem of using the legal facts as the foundation of trial-centered judgment and major aspect of prosecution-defense relationship,as there is no absolute fact but the fact confirmed by the prosecution,the defense and especially the judge in accordance with the procedures prescribed by law.Chapter 7 Practical Construction of Prosecution-Defense RelationshipThe fundamental purpose of reconstruction of the prosecution-defense relationship in practice in China is to forge a criminal legal pattern suitable to the Chinese social culture and popular customs,which makes the majority of Chinese feel comfortable.The amended Criminal Procedure Law of the PRC upgraded criminal reconciliation from practice to legislative level by specific stipulation therein,which is adopted by the trial-centered litigation system.Although there has been relatively extensive experience of criminal reconciliation in practice,there still is much room of research and improvement of the prosecution-defense relationship in the practice thereof.With certain basis of criminal reconciliation in substantive law,the basis in procedural law is more solid.One of the major values of criminal reconciliation with connection to the prosecution-defense relationship is fairness.Criminal reconciliation system helps to fully restore justice,since it is its purpose to consider the interests of both the victim and the perpetrator,all the while repairing the damaged social relations by bring harmony thereto.There is also the value of efficiency.It is unreal for both the prosecution and the defense to put limited judicial resource equally into each criminal case and pursue absolute judicial justice.It is important to distinguish criminal reconciliation and plea bargain,which does not really exist in a real sense in China.There was no established reconciliation mode in the previous criminal litigation proceedings.It is important to determine how to initiate the reconciliation by the prosecution and the defense,clarify the supervisory department overseeing the settlement agreements and the contents thereof to be regulated,clarify the measures to be taken on the prosecution and the defense after reconciliation,and establish non-criminal punishment during the transition upon decision not to prosecute after reconciliation.The new Criminal Procedure Law formally established the pre-trial conference system,which refers to the pre-trial conference between the prosecution and the trial.The inner values of pre-trial conference system are being the source of the judge's discretion,pillar to the litigation structure,and safeguard of the standard of proof.It is important to keep balance between the prosecution and the defense in their relationship in the pre-trial conference.The judges in the pre-trial conference shall treat the prosecution and the defense equally,giving them equal opportunities,granting them the same period to show evidence,and give equal level of attention to the opinions of both parties,and break their set minds and inclination,which will benefit sentencing objectively later on.Pre-trial review is procedural review but not substantive review,which means the judge only determines if all procedural requirements are met for trial from a procedural law perspective,whether the accused should be handed over to the court.Pre-trial review focuses only on the requirements of acceptance of the case by the court and procedural issues,but does not make any judgement on substantive issues.It is necessary to set boundaries for the pre-trial conference system in China,which may include: 1.whether or not to apply for change of compulsory measures;2.to provide advice on whether summary procedures should apply;3.to provide advice on discovery;4.whether or not to apply for the exclusion of illegally obtained evidence;5.whether or not to apply for collecting new evidence or re-appraisal of evidence;6.whether the parties agree to criminal reconciliation;7.other relevant matters such as civil law suit attached thereto.All countries have reach to consensus on exclusion of illegally obtained evidence.The view on acceptance or exclusion of illegally obtained evidence show the country's orientation on the values between substantive justice and procedural justice,fight against crime and protection of human rights,which is the purposes of litigation as an important content of the prosecution-defense relationship.If the purpose of criminal litigation in one country is to fight crime,all illegally obtained evidence will be accepted;if that of a country is to protect human rights,all illegally obtained evidence will be excluded.At the present stage of the construction of rule-of-law system in China,crime-fighting and protection of human rights are given equal importance,consequently,we adopt a balanced view on exclusion of illegally obtained evidence.From the perspective of prosecution-defense balance,only if the prosecution investigate and collect evidence strictly in accordance with legal procedures and methods,and the judges take an absolutely neutral position in litigation and pay equal attention and provide equal protection to the prosecution and the defense regarding their respective submission of evidence and the opinion on the evidence shown thereby,we can better protect the legal rights and interests of the defense who is on the comparatively weaker position in litigation in practice,avoid and reduce injustice,and realize due process and judicial justice.It is beneficial to the solution of the issue of illegally obtained evidence to analyze the existing phenomena and problems in the practice of exclusion of illegally obtained evidence.In order to keep balance between the prosecution and the defense and correct the long existing imbalance,the first step is to strengthen the rights of the defense and weaken the power of the prosecution,change the prosecution from the position of “judge above judge” to “judge before judge”,actively promote the prosecution as a party to the litigation,and to change the prosecutors' mentalities non-conforming with the spirit of rule-of-law.In a trial-centered criminal litigation system,the trial of the first instance is the core thereof.The prosecution-defense relationship thereof shall be considered mainly from the perspective of cross examination system,because cross examination embodies the criminal litigation structure as mentioned above,and legal facts should be the core of the prosecution-defense relationship.Cross examination consists of challenge and defense.Challenge refers to challenging,raising objection or denying the evidence presented by the other party,and defense refers to answering and rebutting the challenge by the other party and defending the evidence presented by oneself.No evidence shall be accepted as the basis of judgment before it has been examined by the prosecutors,victims,defendants and defense lawyers,and all parties' opinions have been taken into consideration and verified.There is,at some level,principle of direct and oral hearing in the criminal procedural law in China,which predicts that witnesses shall testify and be cross-examined in court.One of the core values of direct and oral hearing is that the judge may obtain the testimony from the witnesses directly thus forming his inner conviction.It would certainly be preferable to form the judge's inner conviction through the investigation of evidence in trial.However,it has been too long since the criminal trial in China has stayed merely a formality.In the future,only with a large proportion of witnesses appearing in court can ensure the substantive conduct of trial.As to cross examination,in our country,the basic principles for both parties to follow are: keeping direction,reasonable selection,and elimination of interference.Keeping direction means that the challenges and debates during cross examination should always focus on the admissibility of the evidence crucial to making a verdict,while the challenges against evidence that is irrelevant or insignificant to the effect of proof should stay brief or ignored.Reasonable selection means that the process of cross examination is that of eliminating false evidence and sustaining the truthful one.From a jurisprudential standpoint,the nature and purpose of cross examination of both parties are basically the same,that is to pursue the true-to-facts,objective and fair justice.Both the prosecution and the defense shall eliminate the evidence that does not prove any fact,that is irrelevant,that has been investigated or is impossible to be investigated,etc.Elimination of interference means that,during cross examination,sometimes one party might take the opportunity to interfere with the other party by misdirecting him or misleading him into a well-designed trap,which results in the other party's failure.Therefore,during the process of cross examination,when one party intentionally distorts the direction and effectiveness of the prosecution's attempt to prove,the other party should rightfully make his utmost efforts to fight against such actions and point out the illogical or fallacious arguments in the other party's argument,thus guaranteeing the due progress of cross examination and the success in trial.It is important to improve the rules of written testimony.In China,similar to Japan,the written investigation evidence prepared based on the carefully made decision to prosecute by the prosecutors plays an extremely important role in the trial,and the conviction rate of guilty verdict is almost one hundred percent.Due to the same reasons as in Japan as explained above,the defense does not play an important role in trial in China.They can only make certain difference based on... |
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