Research On The Problems Of Changing The Name Of The Prosecuted Crime By The Court

Changing the name of the prosecuted crime by the court is a very popularphenomenon in the judicial practice, whereas there is no regulation about it in theCriminal Procedure Law of PRC. Article 176, subsection 2 in the Interpretation on theCriminal Procedure Law of PRC, regulated by the People's Supreme Court, statesthat "if the facts are clear and the evidence is objective and sufficient represented bythe people's procuratorates, although the name of the prosecuted crime does notmatch the name of the crime decided by the court, the court should render a judgmentof guilty. " According to this regulation, the court gets the authority of changing thename of the prosecuted crime.In my opinion, there are some shortcomings in the regulation: a) contrary to theneutral principle of the judges;b) infringing the right of defense of the accused personand his/her defenders;c) making no use of the trial;d) violating the principle ofseparating the judicial power from procuratorial power. However, there are somespecial reasons to justify this institution. i.e. the institution helps to realize thesubstantive justification, to assure the procedural justification, and to advance theefficiency of trial and save the judicial resources.In the eye of comparative law, the common law country don't think it is right toallow the judges to change the name of the prosecuted crime, and the judges has alittle power change it. Only if the crime decided by the court is minor than the crimeprosecuted by the prosecutor, does the judges exercise the power to change the nameof the prosecuted crime. In Germany and Japan, the court has the power of changingthe name of the prosecuted crime. The name of the counterpart is persuasive, notbinding to the judges.All in all, the jurisprudence, the law and the foreign practices allow the judgeshave the power to change the name of the prosecuted crime. The issue is how to makeit work reasonably. In my opinion, if the criminal facts are clear and the evidence issufficient, and the name of the prosecuted crime is comprised by that of the judgment,the judges shall decide to change the name of the prosecuted crime, but the judgmentshall not violate the right of defense owned by the offender. If the name of theprosecuted name can not be included by the name of the judgment, the prosecutorshall initiate the public prosecution once again. The judges shall notice the accusedperson and defender attorney, and offer the sufficient time to them to prepare for thedefense.