Research On Issues Related To Criminal Summary Procedure

Presently, the domestic law circle is lacking in thorough and systematic researches on issues related to criminal summary procedure. From the perspective of "Opinions on the Use of Normal Procedure to Try 'Cases Where the Defendant Admits Guilt'(Test Provisions) "(hereafter "Opinions") enacted by Supreme People's Court, Supreme People's Procuratorate,and Ministry of Justice, and using the methods of historical review, comparative research and demonstration analysis, this article discusses the background of criminal summary procedure, its main contents, legal orientation, and application premises, then based on the discussion, the article gives reflections on the existing defects in criminal summary procedure and offers some suggestions for its improvement. The article can be divided into three chapters totally. Chapter 1: brief review on criminal summary procedure. It discusses the emerging background and main contents of criminal summary procedure, and analyzes the legal orientation of criminal summary procedure. The first section focuses on the emerging background of criminal summary. First, it introduces the emerging background of summary procedure to try cases where the defendant admits guilt in foreign countries. Since 1960s, under the influences of dividing complexity and simplification, and collocating judicial resources rationally, countries all over the world have begun to reform and innovate their criminal procedures. Adopting the principle of treating distinctively and ensuring that the justice of basic procedure is not affected, they have begun to apply different procedures to different cases according to the degree of complexity in order to improve the efficiency of litigations. The most usual way is to set up relative criminal quick decision procedure on the premise of the defendant admitting guilt. Second, it introduces the emerging background of criminal summary procedure in our country. First, the limitation of legal summary procedure on the scope of application is the internal demand of the emergence of criminal summary procedure; Second, the prolonging of criminal litigation periods is the external impetus of the emergence of criminal summary procedure; Third, the technical maneuverability and the remarkable effects of experimental spots are the objective conditions for the emergence of criminal summary procedure. The second section uses the judicial interpretative text of "Opinions"as basis, introduces main contents such as the conditions for applying criminal summary procedure, the scope of unapplied cases, the subjects of lodging application, and specific sectors that can be simplified, which paves the way to discuss other related issues on criminal summary procedure in the following. The third section, which focuses on the legal orientation of criminal summary procedure, is the key part in the whole article. The section analyzes the legal orientation of criminal summary procedure from three aspects: theoretical disputes, comparative review and demonstration of law theory. The theoretical interrogatories of criminal summary procedure are concentrated on two points: one, whether to exceed the framework of current procedure law; two, whether to be able to ensure the justice rights of the defendant. By comparisons between criminal simple procedure in our country and several foreign criminal quick decision procedures, we can clearly see the differences between those foreign procedures and criminal summary procedure. Speaking from the legal attribution, criminal summary procedure belongs to general procedures and has the basic characteristics of general procedures, thus is different from criminal simple procedure in essence. Criminal trials in our country still take functions and powers as basis, while in western countries the mode of concerned party as basis in criminal trials is adopted, which is the main reason why our criminal summary procedure is distinguished from debating procedures in Britain and America. Though kinds of interrogatories on criminal summary procedure exist in the law circle, its justice and legality is obvious as a whole. Criminal summary procedure is not a third procedure out of general procedure and simple procedure but a reasonable reform in the criterion of general procedure and the legal simplification based on basic criminal principles. Chapter 2: the application premises of criminal summary procedure----the defendant admitting guilt, which also the emphasis of thisarticle. The chapter contains four sections. The first section defines the concept of the defendant admitting guilt. In western countries and Taiwan of China, the defendant admitting guilt is called confession, which means that the defendant admits his criminal facts voluntarily under the condition of total arbitrariness, containing three significations of voluntary, admitting guilt and admitting criminal facts. By defining the concept of the defendant admitting guilt, the article clarifies the affirming principles and measures of the defendant admitting guilt under three conditions of the charged party committing one crime, several crimes, and committing crimes together, and it makes a clear distinguish for whether applying criminal summary procedure or not. The second section discusses the procedural essential components of the defendant admitting guilt. As a legal act, the defendant admitting guilt is composed of time component, substance component and form component in procedure law. Time component means that the defendant admitting guilt should happen before holding a court; Substance component means that the defendant should admit guilt based on the exposition of evidences; Form component refers to the admitting act happening before judges with the attendance of the defendant attorney. The third section discusses the affirming procedure of the defendant admitting guilt. First, it briefly introduces the affirming procedure of the defendant admitting guilt in foreign countries. Countries of continent law system usually affirm the confession during the pretrial procedure or the judicial procedure before holding a court; the litigation admitting or denying procedure in countries of American law system is in fact special procedure for affirming the defendant admitting guilt. Second, it introduces affirming manners of the defendant admitting guilt in our criminal summary procedure. Affirming the defendant admitting guilt is done respectively during the preparative procedure before trails and the court investigating procedure in the session. The former is preparatory affirming procedure, while the latter is reconfirming procedure. The fourth section focuses on the lenient punishment to the defendant admitting guilt. Imposing a lenient sentence on the defendant admitting guilt not only belongs to conditions of lesser punishment according to penalties in the sense of entity, but also anindependent condition with procedural nature which can co-exist with other substantive condition. The principle of crime and punishment accordance in criminal law has reality and guidance meaning to the application of imposing a lenient sentence on the defendant admitting guilt: first, it acknowledges the properness of lenient punishment; second, it restricts the scope of lenient punishment; third, it emphasizes on the harmonization of varied penalties. From the aspect of lenient penalty, the lenient punishment on defendant admitting guilt in summary procedure can make accordance with our criminal policy of lenient punishment to confession. The foundation of the lenient punishment system on defendant admitting guilt in summary procedure makes up the deficiency in executing the criminal police of lenient punishment to confession, therefore affirms legal basis for lenient punishment to confession in certain degree. Chapter 3: the defects existing in criminal summary procedure and its improvement. It is divided into three sections. The first section demonstrates and analyzes the test instances. Through tracking the case data of applying criminal summary procedure in certain court and procuratorate in recent years, the article analyzes the test instances and legal effects of criminal summary procedure, and acknowledges its important function in improving litigation efficiency and economizing judicial resources. The second section focuses on the existing problems and defects. First, it points out many defects exist in the proceeding design of criminal summary procedure, which mainly includes the following four points: the scope of applicable cases is too broad and general; the defendant is not endowed with procedural prosecuting rights; the security prescriptions for defendants to name counsels are lacked; no prescriptions are made to prescribe how to take part in the summary procedure. Next, it analyzes the risks in the application of criminal summary procedure, which is shown in three aspects: the existence of the phenomena of extorting confessions by torture in judicial practice is hard to guarantee the voluntaries and liability of the defendant admitting guilt; the simplification of judicial procedure can easily lead to wrong judgments; the enlargement of procurator's and the judge's power of discretion gives new inducement for judicial corruption. The thirdsection puts forward the suggestions to make improvements. In procedural design, we should improve criminal summary procedure from the following five aspects: determine the scope of cases applying summary procedure reasonably; endow the defendant prosecuting rights for applying summary procedure; set up affirming procedure for censoring the voluntary confession by the defendant; prescribe that in summary procedure the defendant must have an attorney to defend for him; increase the prescriptions of victims attending summary procedure. In the improvement of relative system, the author suggests four points: first, make the rule of confessing randomly to ensure the unconstraint of the defendant admitting guilt; second, introduce the system of demonstrating evidences before the session to ensure the defendant's right of evidence awareness; third, endow the procurators'power to suggesting penalty to ensure lenient punishment for the defendant admitting guilt; fourth, improve the internal and external supervision system to avoid the grow of judicial corruption.