Research On Exclusion Of Prejudgment In Criminal Judgment

Criminal judgment is the core of the whole criminal procedure. Rational setup of a concrete system for judgment will play a decisive role for the final justice of litigation. In current criminal judgment, attention has not been paid for prejudgment, which resulted in ignorance of prejudgment by judges in many areas. Therefore, it is necessary to introduce the idea of exclusion of prejudgment in criminal judgment. The principle of exclusion of prejudgment means in criminal judgment, any prejudice or bias incurred before or in the process of judgment should be excluded. In domestic academic circle, there are no books existing relating to this subject. This article is the first to put forward and discuss the principle. With rational analysis and comparison, I believe we should introduce the principle and use it improve related systems. The whole article includes five sections, including Introduction and End.The impact imposed by prejudgment to the final judgment is intangible. The Introduction of the article explains such impact by giving two famous cases. The second section is a summary. First of all, I review the status of the principle in current theoretical circle. Following that, by using theory of cognition psychology, I discuss the source of judges' prejudgment, including impression, prejudice and interest, pointing out the harm of prejudgment to criminal judgment. This is not a simple copy, but a new consideration over judge psychology on the base of current theory of psychology. This is the first to discuss prejudgment academically. By differing prejudgment from doctrine of the presumption of innocence, the centralization of trial, doctrine of evidence judgment, doctrine of discretional evaluation of evidence and direct wordage, I believe the principle is not isolated. By evaluating this principle, we shall raise its status in criminal judgment.The third section of the article review oversea doctrine of exclusion of prejudgment. Criminal judgment in Anglo-American law system countries advocates litigation structure of adversary system. In such countries, judges keep a neutral status, and their prejudice is restrained. The principle is completely executed. Some traditional civil law system countries, such as Germany, France, advocate doctrine of function and power. In those countries, judges are active, and prejudgment is not excluded. However, negative effect has raised attention from the public in those countries. So it is expected to change such situations. Some other civil law system countries, such as Japan, Italy, adopt mixed litigation structure, with deep sense of adversary system. In these countries, prejudgment is completely excluded. The purpose for such review is not to introduce the principle simply because such practice is popular in other countries. It is the conclusion based on above theory and from the perspective of our country.In the fourth section, the author discussed some concrete systems in criminal judgment in our country. It includes pre-trial review procedure, withdrawal system, avoidance of judgment from the press and public opinion, judge's investigation of evidence in outside the court, the order to investigate evidence, and so on.Given the principle of exclusion of prejudgment is a totally new subject, this article is a trial research on it. It is inevitably with some limitation. I expect that this subject will raise attention from more scholars and welcome criticism on my article.