| The procedural rule of law is an important symbol to measure the level of a country’s rule of law.The Decision of the CPC Central Committee on Major Issues Pertaining to Comprehensively Promoting the Rule of Law,which was passed in the Fourth Plenum of the18th CPC Central Committee,proposed that boosting the reform of the trial-centered litigation system is precisely the system guarantee for the implementation of the procedural rule of law and the judicial justice.At present,the reform of the trial-centered litigation system in China mainly focuses on the reform of the trial mode.However,“trial-centered”is not only the technical improvement of the trial procedure,but also the establishment of a more reasonable judicial power structure through the adjustment of the allocation of criminal judicial power and the improvement of the relationship between the subjects of criminal proceedings.For a long time,the principle of“the division of responsibility,mutual coordination,mutual restriction”and the principle of procuratorial supervision,which guide the relationship between public security organs,procuratorates and courts in China,have shown a serious tendency of alienation in the practice of criminal procedure,leading to the deviation of the center of criminal procedure in China.The Fourth Plenum of the 18th CPC Central Committee makes it clear that“the procuratorial organs’legal supervision over criminal proceedings should be strengthened and perfected”while putting forward the idea of“trail-centered”.President Xi Jinping stressed that the three organs,public security organs,procuratorates and courts,should adhere to the principle of“each performing its own duties,mutual coordination,mutual restriction”,which is a litigation system with Chinese characteristics,in the statement on“boosting the reform of the trial-centered litigation system”.“Explaining the basic principle of the relationship between the subjects of criminal proceedings scientifically,clarifying the misunderstanding in the theoretical understanding and improving the allocation of power in criminal procedure and the relationship between subjects”has become a major subject that we urgently need to study under the background of the reform.In consideration of the complexity of the subject,it is necessary to make a detailed study on the relationship between investigation and prosecution,prosecution and trial,and investigation and trial.The relation of prosecution and trial plays a key role in the horizontal structure of prosecution,defense and trial and the vertical structure of investigation,prosecution and trial.This paper,which takes the relationship between prosecution and trial as the research object and closely follows the reform background of“trial-centered”,will systematically explain the basic principles that should be followed in the relationship between the subject of criminal proceedings in China,comb the foreign advanced system experience comparing with the key words of the relationship between prosecution and trial in our country,and put forward the theoretical view and system construction idea in view of the shortcomings of the relationship between prosecution and trial in China’s legislation and practice.In addition to the introduction part,this paper consists of five chapters,about 290,000 words.The first chapter is about“interpretation of the relationship between prosecution and trial under the background of’trial-centered’”.This chapter mainly defines and analyzes the concepts and contents of“the relation between prosecution and trial”and“trial-centered”,and looks forward to what the relationship between litigation and trial could to be in the context of“trial-centered”.First of all,the relationship between prosecution and trial is a relationship of functions and powers formed by the public prosecution and trial organs on the basis of the allocation of judicial power.It can be divided into the relationship of“division of labor,coordination,restriction and supervision”.The nature and characteristics of public prosecution and trial is the basis of shaping the relationship between prosecution and trial.The criminal litigation mode,the purpose of the criminal procedure and the nature of the procuratorial organs are the important factors that affect the relationship between prosecution and trial.Secondly,from the perspective of“doctrine”,“trial-centered”can be understood from several dimensions such as“the purpose of trial-centered”,“the way of realization of trial-centered”and“the basis of legitimacy of trial-centered”.At present,the reform of the trial-centered litigation system of China focuses on the substantive reform of the court hearing,the reform of the evidence system,and the reform of the system of lenient punishment for admission of guilt and acceptance of punishment.Again,the reform of the trial-centered litigation system has an important influence on the operation of the prosecution power and the judicial power.In order to build a“trial-centered”relationship between prosecution and trial,scientific division of labor and orderly cooperation are the basic premise,powerful power restriction is the core requirement,the coordinated development of public prosecution power and procuratorial supervision power is an important guarantee,and the diversification of specific forms of the relationship between prosecution and trial is an inevitable trend.Chapter two is about“the basic principles of the relationship between prosecution and trial”.This chapter analyzes the basic principles that should be followed in the relationship between prosecution and trial in the modern criminal procedure of“separation of prosecution and trial”and“due process”,and studies the principle of procuratorial supervision with Chinese characteristics.First of all,the principle of separation of prosecution and trial,as a concentrated embodiment of the theory of separation of powers and checks and balances in criminal proceedings,is the basic criterion for adjusting the relationship between prosecution and trial.The principle of separation of prosecution and trial is based on the premise condition that the functions of prosecution and trial are assumed by different subjects respectively.The core content of the separation of prosecution and trial is“no complaint,no trial”on the proceeding startup and“identity between prosecution and trial”in the proceeding operation.It is the proper meaning of the separation of prosecution and trial that the prosecution and trial organs should not overstep their respective functions.In order to avoid the excessive rigidity of the litigation structure,the separation of prosecution and trial principle does not exclude a certain range of“flexible processing”.“The moderate expansion of the trial object,the investigation of evidence by the judge according to the authority,and the prosecutor’s discretion not to prosecute”all reflect the adjustment of the separation of prosecution and trial.Secondly,the legitimacy of criminal procedure is an important content of the procedural rule of law.The core elements of due process principles such as“trial neutrality,trial independence and prejudgement exclusion”are the principles that should be followed in the modern prosecution-trial relationship.The“hurdle race”mode of due process emphasizes the progressive restriction of judicial power on the power of investigation and prosecution.The construction of“isosceles triangle”due process puts forward a clear demand for"separation of prosecution and trial and neutrality of trial".Finally,the principle of procuratorial supervision is the basic principle and characteristic of the relationship between prosecution and trial in China.The power of legal supervision of procuratorial organs in our country,which is the creative development and application of the socialist procuratorial supervision system initiated by Lenin in China,has obvious lawsuit characteristic.It highlights the important position of procuratorial power in the relationship between prosecution and trial.The principle of procuratorial supervision and the principle of independent trial of the court not only have compatibility but also have some friction.The third chapter is about“the extraterritorial investigation of the relationship between prosecution and trial”.This chapter investigates the relationship between prosecution and trial in the major countries under the rule of law in the two legal systems from three levels:separation of prosecution and trial power,substantive restriction and procedural restriction of judicial power over public prosecution power,and supervision factors of procuratorial power over judicial power.First of all,in terms of the separation of powers of prosecution and trial,the system of cause of action in the Anglo-American law system,the system of fact of prosecution in the continental law system and the corresponding change mode of judge’s charge embody the“same prosecution and trial”of different degrees.In the Anglo-American law system,judges usually only exercise negative judgment responsibility.While affirming judges’active investigation responsibility,the continental law system restricts judges’investigation power,which avoids the confusion between judges’investigation responsibility and prosecutors’burden of proof.The two legal systems have fully affirmed the appropriate adjustment of the prosecutor’s discretion in non-prosecution to the distribution of the power of prosecution and trial.In order to ensure the blocking of the power of public prosecution and jurisdiction in the operating space,the main countries under the rule of law in the two legal systems have established the rule of prejudgment exclusion in accordance with their own national conditions.Secondly,in terms of restriction of public prosecution power and judicial power,the Anglo-American law system and the continental law system have realized the substantive examination of the request of public prosecution by the hearsay evidence rule（direct speech principle）and the illegal evidence exclusion rule（evidence prohibition system）.Both of the two legal systems embody the judicial control of judicial power over prosecution power in the plea bargaining procedure or prosecution and defense consultation procedures,thus comprehensively establishing the restriction of judicial power over prosecution power in the substantive determination of cases.The extraterritorial legislation also establishes the procedural restriction of judicial power on the abuse of public prosecution power through judicial review of the decision of procuratorial organs to“initiate public prosecution,not to prosecute and change public prosecution”.Thirdly,similar to the function of supervising trials of the procuratorial organs in China,the procuratorial organs outside the region can exert a certain rebound function on the court’s judgment results and judicial activities by means of“appeal,application for retrial,protest”and so on,and have a certain degree of supervision.The extraterritorial legislation realizes the trial center in the substantive sense by relying on the relatively perfect mechanism of case fact determination,and realizes the trial center in the procedural sense by judicial review of public prosecution by judicial power,and lays the legitimacy foundation of the“trial-centered”by the separation of prosecution and trial power.From the perspective of the development trend,the relationship between foreign prosecution and trial reflects the characteristics of“multipal ways of implementation,enhanced protection of the rights of the accused and enhanced filtering and diversion function of the public prosecution power”.Chapter four is about“legislation and practice of the relationship between prosecution and trial in China”.This chapter analyzes the legislative status and practice related to the relationship between prosecution and trial in China by focusing on the four key words“division of labor,cooperation,restriction and supervision”.First of all,there are some characteristics and problems in the division of labor and cooperation of prosecution and trial power in China.For example,the absence of the principle of identity between prosecution and trial has led to the confusion of the litigation functions;irregularities in the investigation of judges has broken through the limits of the exercise of power;unilateral out-of-court contact has undermined the separation of prosecutorial and judicial powers in the operating space;the insufficient application of the power to decide not to prosecute has weakened the division of labor and cooperation of the power of prosecution and trial;the mechanism of division of labor and cooperation in the field of sentencing has established by the system of lenient punishment for admission of guilt and acceptance of punishment.Secondly,in terms of the substantive examination of the judicial power on the request for public prosecution,the principle of the direct words in China has not been fully established,which leads to the conclusion of the court’s judgment attaching to the case files of public prosecution,forming the“files and record centralism”in practice.Although the rule of excluding illegal evidence is gradually perfected in legislation,it is still neglected in practice,which affects the effect of restricting the power of public prosecution by the substantive jurisdiction.In the system of lenient punishment for admission of guilt and acceptance of punishment,the judicial control of judicial power over the negotiation of guilty plea is weak,and there are some problems such as“the voluntary examination of the guilty plea is formalized,the examination of factual basis is weak,and the examination and adoption mechanism of sentencing recommendation needs to be clarified”.The failure of the restriction of the substantive jurisdiction on the power of public prosecution in China is highlighted by the exceptionally low rate of acquittal.Thirdly,in the aspect of procedural restriction of judicial power on the conduct of public prosecution,the formal way of pre-trial review of the court cannot realize the restriction on the conduct of public prosecution.The restriction of judicial power on the decision not to prosecute is blank,and“the reconsideration applied by the public security organ,the system of public prosecution to private prosecution,criminal suspect complaints”and other non-prosecution restriction mechanisms lack of scientific and practical effectiveness.The restriction of judicial power on the modification of public prosecution is also in a state of feebleness,and there is a serious procedural backflow in litigation practice.Finally,the relationship between prosecution and trial in China is also embodied in the fact that the procuratorial organ assuming the function of public prosecution can supervise the results and procedures of the operation of the judicial power.However,China’s protest system shows some defects,such as low energy efficiency of supervision and insufficient objectivity and impartiality,while the procuratorial supervision of trial activities shows other defects,such as unclear effectiveness and insufficient procedure.In general,the relationship between prosecution and trial in China’s legislation and practice reflects the characteristics of“low degree of separation of litigation and trial power,weak degree of restriction of judicial power on public litigation right,and a shift of the centre of the power system towards the power to prosecute”.The phenomenon of criminal procedure center moving forward is influenced by various factors such as country type,traditional culture,litigation concept and historical background.Chapter five is about“the improvement of the relationship between prosecution and trial under the background of trial-centered”.This chapter makes a detailed analysis on the improvement and construction of specific systems and procedures by focusing on the further improvement of the relationship of“division of labor,cooperation,restriction and supervision”of prosecution and trial power.Firstly,to realize the scientific division of labor and orderly coordination of the powers of public prosecution and judicial.We should clarify the operational boundaries of the judicial power to avoid confusion between the powers of prosecution and trial,establish a mechanism of restraint on the judgment’s inner conviction to ensure the neutrality of trial,and give full play to the leading role of procuratorial organs to optimize the division of labor and coordination of prosecution and trial power.Secondly,to construct the“entity controlled trial center”in diversified ways.We should establish and implement the principle of direct words,improve and implement the rule of excluding illegal evidence,and realize the substantive examination of the prosecution’s request for conviction and sentencing by judicial power.In the cases of admission of guilt and acceptance of punishment,we should enhance the independence and effectiveness of the voluntary examination,carry out the duty of the judge to examine the actual facts of the case,and rationalize the review and adoption mechanism of sentencing suggestions,so as to realize the judicial control of the judicial power over the conviction and sentencing of cases of admission of guilt and acceptance of punishment.Thirdly,to build the“procedural control trial center”.We should establish a strict sense of the public prosecution review system to achieve the judicial power of the prosecution action,establish the compulsory prosecution system for acts not prosecuted for lack of evidence and the judicial review system for discretionary non-prosecution to realize the restriction of judicial power on the act of not initiating public prosecution,clarify the duties of judges in the procedure of changing public prosecution,set the entity and procedure boundary of changing prosecution,improve the system of withdrawing prosecution and strengthen the restriction of judicial power on the behavior of changing public prosecution.Finally,we should improve the objectivity of criminal protest of procuratorial organs and guarantee the effectiveness of procuratorial organs’supervision of trial activities,so as to realize the coordinated development of“trial center”and procuratorial supervision. |
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