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Criminal Evidence-given-system

Posted on:2012-11-05Degree:MasterType:Thesis
Country:ChinaCandidate:X GeFull Text:PDF
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Evidence-given is one method and procedure by which one party in lawsuit provides and discloses the relevant evidence and information about the case to the other party. Evidence-given-system is an important system in the lawsuit proceedings of common law , which is an important pre-trial unit to realize information exchange. The core requirements of the system is : if the defense proposes the reasonable application ,the prosecution should allow the defense to read or obtain the evidence material held by the prosecution; At the same time ,under the particular circumstances of the law, the defense should prepare the evidence material presented at trial to the accused party. So, evidence-given-system is one effective path by which the accused and the defense can fully understand each other's evidence before the trial. It has become one vital protection of fair and effective operation of adversarial trial procedures. This article is based on the analysis of the causes and values of evidence-given-system, in comparison with the evidence abroad, combining with the current situation of the relevant legislation, theory and judicial practice and then proving that it is necessary to establish this system. At the last of this article, the specific legislative recommendations was proposed about the construction of evidence discovery system.Paper is divided into four chapters, as follows:Chapter 1 Overview of Evidence-given-system. First, the paper analyzes the reasons of discovery system. Overall, the system derived from the common law countries, which is used to overcome the mechanism defects of the adversarial system, and to prevent the ambush trial and improve the lawsuit efficiency. It is the product of Anglo-American model of the parties learning from the pretrial of the mainland countries. Its production has a special historical context. Next, the paper analyzed the value of the evidence-given-system, which provides a theoretical basis to demonstrate the necessity of establishing our discovery system. Evidence-given-system has the following value: powerful means of ensuring the balance between the defense and the prosecution, criminal procedure embodiment of public, the guarantee of the defense principle and right, conducive to the discovery of objective truth of the case, conducive to the realization of proceeding justice,favorable to the enhancement of litigation efficiency , and so on.Chapter 2 Comparative Perspective of Evidence-given-system. Making a comprehensive analysis and comparison in British, U.S, Japan, Italy and other countries on criminal evidence-given-system in order to make the reader understand the status and development trend of the system. First, the evidence-given-system of the common law states were introduced. Because the United Kingdom and the United States carry out adversarial system of criminal proceedings, the two countries have established a "discovery" system in order to solve the problem that the prosecution and defense do not understand each other's evidence material before the trial and realize the "equality of arms"between the prosecution and defense at maximum extent. Second, introducing the evidence-given-system of the civil law countries, for example by Italy and Japan. This two countries have undertaken trial reform. The litigation mode has been transformed from the authority into the adversarial. When they abandoned the "files transfer" type of prosecution, they established evidence–given-system with the reason to ensure the defense to obtain and use the available evidence held by prosecutors under the strengthen of antagonism of the prosecution and the defense and to ensure judicial justice. Last, in the comparison with the evidence-given-system between the common law and civil law countries, we can conclude that there are many differences in place ,method and consequences ,and many same points in the basis of adversarial trial means, pretrial procedure, the function of forming controversial issues. To arrive at a conclusion: we should establish the evidence-given-system on the basis of the characteristics of our own country's litigation system, and can not transplant overseas systems easily and to pave the way for the legislative proposals at the last of this article.Chapter 3 The Status and Necessity of Evidence-given-system in China. First, what is the current condition of evidence-given-system in China. The law entitled the right to reading files of the defense lawyers in order to ensure that the defense counsel can fully grasp the evidence collected by prosecution before trial and to make effective preparations for the defense. Our law and relevant judicial explanations don't defined evidence-given-system clearly. Our current relevant system still exist some problems to be solved: inconsistent with the relevant regulations, not perfect procedural regulations, single-subject requirement, not provide the appropriate judicial relief measures. Next, the paper analyzes the necessity of establishing the evidence-given-system on the basis of the current status in China. Thus, we can conclude that: the system is the effective power to ensure the balance between the prosecution and the defense. It is conducive to improve the right of criminal defense of counsel, and aslo helpful to ensure the quality of trials, helpful to improve the efficiency of proceedings. It is the necessary requirement of legal principles of the balance between the prosecution and the defense to establish evidence-given-system and also a basic measure to form the real adversarial relationship in the judicial practice of criminal proceedings. If we want the"adversarial relationship"of criminal proceedings run up truly in the judicial practice in China, evidence-given is the necessary institutional conditions. It is imperative to establish a complete system of criminal evidence-given-system in China.Chapter 4 Construction of Evidence-given-system. First, in accordance with the causes and value analysis of this system under the first three chapters and the comparative perspective in the current situation in our country, the specific legislative proposal about this system was presented, such as starting method, scope, subject, moderator, content, period, place, security system. However, when we learn from overseas legal system and foreign successful experience, we should fully take the structure of the existing judicial system into account, legal culture soil and implementation of existing laws. When we follow the world trend, we should also take into account the experiences of the judicial practice in China. Next, this paper also proposed a suggestion about relevant systems associated with the evidence-given-system. A system can not operate by itself. A system can grow up healthy on the condition of the external environment. Otherwise, even if this system has be written into the law book, it will be hard to imagine to achieve the desirable results in judicial practice. So, when we establish evidence-given-system, we should also pay attention to its growth environment. Thus, this paper proposes a suggestion to complete relevant system such as criminal defense system, legal aid system, law clerk system.
Keywords/Search Tags:Criminal Procedure, Evidence Discovery, the Balance between the Prosecution and the Defense
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