Study On The Principle Of Direct And Verbal Trial In Criminal Adjudication

The adjudication stage is a very importance stage in the criminalprocedure, which has a very important function in punishing crime,guaranteeing human rights and realizing judicial impartiality. However, thisstage may make a person's legal rights violated because of the phenomenon ofwriting trial and judging or trailing separately. Therefore, We should set up arule that controls procedural participants' behaviors on the criminal procedure,It is necessary to insure the judicial trial progress smoothly. According to this,many countries that construct rules of laws are more flourishing in the worldestablish the principle of direct and verbal trial in the law ,such as Germany,France and Japan. They can insure the judicial trail progress smoothly anddiscover the truth of the case through it. However, the rule which is used in theword generally hasn't been established in our country. And it neither accordswith the current of the development of international law, nor does it satisfy theneed of our country's judicial practice. So I think, our country shouldstrengthen the research on the principle of direct and verbal trial, we should setup the principle of direct and verbal trial suitable to our country's specificcondition as soon as possible.This text is divided into four chapters.The first chapter is the general statement of the principle of direct andverbal trial. The principle of direct and verbal trial is an important ruleestablished generally in Continental Legal System Countries .It is a conceptwholly of the principle of direct and the principle of verbal trial's generic ,which has close contact. In the principle, it emphasize a judge to trial directlyand collect evidences directly, but the principle of verbal trial pay attention toprocedural participants' oral debate and to the hearsay rule of exclusion .Thoughthe two principles have much differences in adjusting direction and scopes, thetwo principles are close contact and mutual dependence in the contents.Therefore, the two principles are usually synthesized in the theories, It iscalled the principle of direct and verbal trial. The principle of direct and verbaltrial is originated from the Germany in 19 centuries,it is a kind of mechanismestablished after abandoning the principle of indirect and written trialtraditionally in Europe , it is very important for insures judicial trail andrealizing judicial impartiality. Therefore, it is widespread established byContinental Legal System countries. Anglo-American Legal System countrieshas not establish the principle of direct and verbal trial, But according to theneed of the adversarial system, they built up the hearsay rule .Although thisrule is different from the principle of direct and verbal trial in many respects ,it is similar with the principle of direct and verbal trial objectively to a largeextent ,it insures effectively judicial trail to fulfill in Anglo-American LegalSystem countries .Moreover, The principle of direct and verbal trial is notvague principles, it has own basic principles and relative rules systems , thebasic principles include the present principle,the principle of direct trial,theprinciple of verbal debate and the principles of against hearsay etc. Therelative rules concludes the Charge-Statement-Only Doctrine,the principle ofconcentrating trial and the rule of judgment pronounced in the count etc. Thesebasic principles and relative rules constituted the principle of direct and verbaltrial.The second chapter is the theoretical foundation and the value analysis ofthe principle of direct and verbal trial. One of the theories foundations thatestablish the principle of direct and verbal trials is law theories, it emphasizesthe law should have the highest authority in the procedure, anyone can notviolate it. It established the foundation of the authority for the principle ofdirect and verbal trial. Two of the theory foundations that establish theprinciple of direct and verbal trials is human rights theories, It emphasizesreality of the protection of the personal human rights ,especially the protectionof the accused in the litigation by the national power, It established thehumanized foundation for the principle of direct and verbal trial. Three of thetheories foundations that establish the principle of direct and verbal trials issubstantive truth. For long time, Continental Legal System countries payattention to the targets that find out substantive true facts in the litigation. Theprocedure designed is mostly serve for the purpose, it establish the purposivefoundation for the principle of direct and verbal trial .The principle of directand verbal trial not only has the deeply theories foundation in the procedure,but also has a special value in practice, its embodied the pursue to theimpartiality and the efficiency in criminal procedure. On the other hand, seenfrom the impartiality, The principle of Direct and Verbal Trial's implement ishelpful to realize the openness of the judicial trial ,the participation ofparties ,the equality of the procedure and the impartiality of the judiciary;Onthe other hand, seen from the efficiency, the principle of direct and verbal trial'implement is helpful to match the economic rationality of the operation ofcrime procedure, at the same time, it is helpful to realize the participants'desire and need.The third chapter is the status of the principle of direct and verbal trial inour country. In 1996, our country passed the new criminal procedure law , thelaw built up adversary system , the system depends on the principle of directand verbal trial's implement more than before, for the law of the principle ofdirect and verbal trial is very vague in our country , lack of perfection ofrelated auxiliary systems, it exists many obvious weakness in practice, forexample, the principle of direct and verbal trial has not explicit established inChinese criminal basic principle system. The rules on trial directly is notperfect in our country. The principle of verbal trial has weakness in practice .And, a lot of auxiliary mechanisms have not been established in crimeprocedure system of our country , those problems not only injure thedefendant's rights, but also affect the impartiality of the trail. In thiscircumstance, in order to satisfy the need of litigation practice, it is verynecessary to establish the principle of direct and verbal trials in our country,(1)to realize the demand of both parties' equality;(2)to satisfy the requestof finding out substantive truth;(3)to demand better to undertake theinternational law duty and consist with the international law .Moreover, withthe development of the our country's economy and legal construction system,establishing the principle of direct and verbal trial in the our country has stillfeasibility, Firstly, the development of the socialism market economy providethe socially economic foundation for the principle of direct and verbal trial .Secondly, our country's constitution and relative law provide the lawenvironment for the establishment of the principle of direct and verbal trial, Atlast, in our country, various material condition and personnel's conditions thatthe principle of direct and verbal trial is carried out has already completebasically,all shows various conditions of the theories and the practice thatestablish the principle of direct and verbal trial in our country, in our countrythe opportune that establish the principle of direct and verbal trial had alreadyarrived.The fourth chapter is to set up the principle of direct and verbal trial thatmatch our country's specific conditions. It is a complicated engineering thatestablish the principle of direct and verbal trial in our country , many factorsshall be considered, some key factors such as our country's specific conditions,judicial resources, the litigation purpose etc. It is very important to establishthe principle of direct and verbal trial in our country. Therefore, establishmentthe principle of direct and verbal trial, we must insist the following principle:Depending on our country's specific conditions and draw lessons from theforeign successful experiences;To protect the basic human rights at the time ofpunishing the crime accurately. The principle combines with the vivid. At thesame time, in the specific design, the writer think, that establish the principleof direct and verbal trial in our country should attain: To regulate the principleat the part of the basic principle of the criminal adjudication;Reforming thesystem of china-characterized trial committee, giving the independent judicialpower to the court or the judge;Drawing the advanced experiences from theforeign and improving the witness giving evidence system in our country;Perfecting the examination system and improving cross-examination rule;Modifying and perfecting relative laws in our country, establishing some rulesabout the principle of direct and verbal trial is correlative. Moreover, for thesake of better exertive the principle of direct and verbal trial's function injudicial trail ,insuring justice of judgment, our country should still strengthensome relative auxiliary systems,such as reforming the Preliminary hearing,carrying out Charge-Statement-Only Doctrine, building up Discovery ofEvidence System;perfecting the system of the judiciary's selection andexamination etc, the author think, only this can we insure the principle ofdirect and verbal trial's implement smoothly in our country, insure the justicesof trail.