On Written Testimony

This dissertation is composed of introduction,text and conclusion.Question is the starting point of all scientific research.At the outset,the introduction clarifies the "question-centre" investigation path throughout the whole process of selection, ideation,as well as composition.The research questions of this dissertation lie in why the amendment of Chinese Criminal Procedure Law in 1996 did not receive the expectant effect and what is the real dilemma of Chinese criminal trial which cumbered the effectiveness of the judicial reform.The first step of the "question-centre" investigation path is to discover the problem.In order to draw the conceptual contours of the dilemma of Chinese criminal trial,Chapter?pursues a synthetic approach of textual analysis as well as demonstrative survey.The textual analysis inspects on the underpinning of "Research Summarizes of Criminal Procedure Law" (1993-2008),which involves two category materials:the Annual Conference Summarizes of China Criminal Procedure Law Society(1993-2008),and the Review of Criminal Procedure Law Research(1993-2008).Pursuant to the assortment and analysis on the 15 years' research summarizes,the provisional conclusion might be that the bottleneck of the dilemma lies in the absence of witness.However,the absence of witness might be only the ostensible aspect entering the picture which is far from the truth.Therefore,it is of paramount importance to view from a demonstrative survey perspective.The survey on criminal files reflect that the criminal trial in China continues to run in the circumstance of universal absence of witness, and even maintains the high rate of conviction,which mirroring the absence of witness does not coincide with the fundamentality criteria.Besides,although the witnesses usually do not participant in the trial,they testify to investigation and prosecution organs and the written testimonies are adopted by the judges as the substitute of witnesses' verbal testimonies and among the most important evidence of conviction.Therefore,as a concluding observation,the absence of witness is only the surface of the problem,the substantial dilemma of Chinese criminal trial lies in the unlimited and optional usage of written testimony,and regarding it as the significant evidence of conviction.That is the reason why the amendment of Criminal Procedure Law in 1996 did not achieve the original intention and fundamentally escape from the odd circle of empty procedure. The direct outcome of lasting,universal and hardly limited usage of written testimony in Chinese criminal trial rests with the block to the nitty-gritty discovery consisted in series of exposal injustice cases,whereas until now this durative,universal and significant issue still has not been ironed out.Chapter?scrutinizes the reason of aforementioned question.First of all,the sole motivation of constituting the "two-supreme" and regional criminal evidence regulations is apt to be as guidelines of fact cognizance,the ultimate purpose of which is to guarantee the correct exertion of national power rather than safeguard the personal right. Besides,the regulations hardly limit the usage of written testimony,which influence the effectiveness of their practice impact.As the scrutiny digging more deeply,it is concretized that the relative rationality of wirtten testimony results in its unlimited usage and becoming the dilemma in Chinese criminal trial.The so-called relative rationality,namely the usage of written testimony has its own necessity,efficiency and advantage.However,the isolated relative rationality can not explain the status quo of written testimony abuse sufficiently.In China,written testimonies are not used only in certain specific conditions,but lasting,universal and hardly limited,and the judges prefer written testimonies even when the witnesses appear in court.In a word,the attitude of Chinese judgment towards written testimony is not merely using,but giving full trust as well as dependence.The further reason lies in that the usage of written testimony corresponds with punishing-crime litigation notion,and the dependence of written testimony is the inherent demand and undoubtedly outcome of administrative procedure framework.The root of aforementioned dilemma rests on that the written testimony has deeply embedded in the administrative Chinese criminal procedure system.Similarly,in order to solve the abuse of written testimony within Chinese criminal trial,the key point is not to raise the attendant rate of witness,but to shift the bred-in-the-bone notion of "power religion",and restrict the space of written testimony through the improvement of criminal procedure system.Turning to the side of comparative research,from Chapter?to Chapter?,the dissertation scrutinizes the practical usage of written testimony in America,Germany,France, Italian and Japan and puts the emphasis on its precondition and limitation.It would be impossible and unnecessary to simply forbid the usage of written testimony,and it will continue to consist in Chinese criminal trial during a long period because of its inherent and exterior rationality.Therefore,a more feasible path is on the underpinning of standing on Chinese national situation,and at the same time using other countries' experiences for reference,to table proposals of how to reasonably frame the scope and limitation of using written testimony in Chinese criminal procedure.Moreover,the insight of comparative research does not only localize on the specific regulations of countries' criminal evidence rules,but spread out to the whole criminal procedure,and try to analyze evidence law through a procedure view to provide a integrated framework rather than one or two separate evidence articles.In the wake of comparative research,Chapter?of the treatise sets forth the institutional fabric of how to reasonably regulate the usage of written testimony in China.First of all,viewing from a holistic perspective,the usage of written testimony should be rested on three issues.Firstly,although western countries keep consistency on the general attitude towards written testimony,and add strict limitations on its usage in criminal trial, their methods or paths,and even the focuses are obviously diverse.The existing criminal procedure in China is the compound which encompasses of the inherent traditional institution, the modern inquisitorial system,and adversary system.Taking a long-term view,even if China continues the "accusing and defending" trial reform,it might be impossible to establish the real adversary system,on account of political institution and litigation notion.Eventually, the direction of Chinese criminal trial should be developed into a Chinese model which learning from others' strong points to offset its weakness.More concretely,in order to realize the aforementioned object,China should use other countries' experience for reference and combine with its own institution and practice.Secondly,the "geometrid effect" in economics also exists in Chinese criminal judicial practice;in respect that the exertion institutions of public right discretionarily interpret the magnitude of the power without a correspondence between power and responsibility.Being restricted by the practical factors,judgments of most common criminal cases will continue to trust and depend on written testimony for a long time. Accordingly,it is of crucial importance to guarantee the authenticity of written testimony in Chinese criminal trial,especially in the circumstance that the Chinese criminal defence can hardly been improved within a short time,and it would be a more available way to recover the correspondence between power and responsibility of the public right institutions and implement the insurance system.Thirdly,the confrontation right as one of the basic human rights,has been affirmed and ensured by constitutional laws in many countries,and at the same time it is also the basic right of criminal defendants which is regulated as a minimum criterion of impartial trial by international conventions,such as the European Convention on Human Rights and the UN International Covenant on Civil and Political Rights.Hence, establishing the confrontation right of the defendant to limit the universal usage of written testimony is on the one hand the requirement to implement the membership duties of the International Covenants,and on the other hand the practical demand to resolve the protruding problems injustice.Moreover,it is the inevitable choice to use written testimony limitedly in Chinese criminal trial,since it is impossible and unnecessary to forbid its usage completely,not only in China but all over the world.Accordingly,under the framework of guarantee fair judgment and limited use of written testimony,it is necessary to set up the rule of written testimony, involving the scope of fair use and the minimum standard.This dissertation advocates that in principle written testimony should be forbidden,however,under six special circumstances,it can be used limitedly.Lastly,as a concluding observation,since the criminal procedure and judicial institution is the living environment of evidence law,the reform of testimony system should under the premise of criminal procedure reform.Accordingly,in order to exert the effectiveness of aforementioned rule of written testimony,it is compulsory to reform the corresponding institution of the existing Chinese criminal procedure law and provide a systematic framework of improving the reasonable usage of written testimony.Furthermore,the reform of the corresponding institution of Chinese criminal procedure system should be pursuant to two rationales,which including continuing the reform of establishing an accusing and defending trial,and emphasizing the correspondence between power and responsibility of public right institutions.Since the dilemma of written testimony can not be solved thoroughly and completely within a short term,a rather feasible and effective avenue is to accumulate the minor improvements into a fundamental shift.