The Changing Of The Prosecute Accusation Made By The Court

The changing of the prosecute accusation made by the court in the criminal juridical practice has been repeatedly criticized. The crux of the problem rests with whether the changing of the prosecute accusation made by the court is contrary to the principle of separation of accusation and trial or not, whether it will infringe the defendant's right to defend. If we establish the court's changing prosecute accusation system, how to eliminate its negative impact of the system itself. Beginning from its current situation in our country, this paper from the perspective of comparison reviews empirically the changing prosecute accusation in legislation all over the world. It also discusses the system's rationality in theory and further probes into its construction in China.This paper is composed of four chapters.Chapter one talks about the current situation of court's changing prosecute accusation in China. The empirical studies show that: first, it is common in juridical practice in our country; second, in the changing direction, more accusation is lighter than before being changed; third, in the changing way, it is mainly the court that takes the initiative to change; fourth, in the changing course, public prosecution organ lacks the opportunity to modify the accusation on his own. In the existing changing accusation, the defendant has been excluded and the prosecutor only has limited function, so the court has played a leading role. Regarding the changing accusation in the current practice, people have different theoretical perspectives. The dispute focuses on the following three aspects: first, whether or not the court can change the prosecute accusation and its theoretical basis; second, whether or not the court's changing prosecute accusation infringes the defendant's right to defend and violates the principle of separation of accusation and trial as well as procedural justice; third, how to build a changing prosecute accusation system that suits the national conditions in China. Chapter two is to review the comparative study on changing of the prosecute accusation by the court. The changing of the prosecute accusation by the court is ubiquitous in England, American, Germany, Japan, Russia, Italy, France as well as Taiwan region in our country. But England, American, Germany and Japan, these three countries are more representative on this issue. The changing pattern in England, American and France contains misdemeanor, which is closely linked to the litigation principle of priority of procedural justice, the lawsuit mode of litigant, the particular jury system and the system of cause of action in the law of England and American. Also in the reply for crime procedure, there are imputation changing procedure, ready record and selective record of cause of action, which are helpful to convict the defendant so as to achieve the substantive justice. In Germany, carries out defending changing pattern to apprize of identification of prosecuting facts. It is closely related with the litigation principle of priority of substantiality in Germany, the lawsuit mode of power of office and its precise logic system. This pattern pays attention to substantial protection to defending defendant's right. And Japan adopts the cause of action change pattern in the identification of prosecuting facts, which comes from Japan composite litigation structure. However, the cause of action change system can't be fully brought into play without the indictment-only doctrine system. It can be concluded, after comparison and analysis, that: first, it has been a trend to allow the change of accusation, legislation absolutely prohibiting it almost no existing now; second, there are some differences in the selection of pattern of changing accusation among these countries. Every country emphasizes the principle of division between accusation and trial, and the principle of protecting defendant's right. In a word, they all take the litigation efficiency into account in designing the procedure.Analysis by legal principle on court changing prosecute accusation will be discussed in the third chapter. The existence of this system shows that it has its own theoretical base. The court's changing prosecute accusation system is necessary for the nature of prosecutorial power and jurisdiction, court as umpire, trial centralism, realization of substantive equity, improving litigation efficiency and for implementing human rights protection. Therefore, the changing accusation system is justifiable. Yet criminal procedure has not only discovered real value aim, but also abided by its basic principles, while court's changing prosecute accusation in a sense plays the role of public prosecution organ, which is harmful to its neutral image and has negative influence on defendant's right either. Hence we must limit the court's power of changing accusation; otherwise it will result in non-division between accusation and trial, the kickback to trample defendant's right, as well as the lost of proceeding's basic justification. More specifically, the court in the change of accusation must be confined to the principle of division between accusation and trial, identification of action object and defendant's human rights protection.In the fourth chapter, we will talk about the construction of court changing of the prosecute accusation in our country. First of all, we have to establish definitely court changing prosecute accusation system in legislation. Legal abstract and generalization, varied litigation phrase, our idea to pursue substantive truth, the active criminal procedure system, the lawsuit mode of power of office and special trial object, all these make it inevitable to establish the system in our country. It is necessary to have a certain perspective and practical nature in the choice of mode for changing accusation. We should consider that the transplanted law is reasonable and advanced, but also the law in receptor country is acceptable. The three patterns in Britain and the United States, Germany, Japan, their concept and background of the rule of law are not fit our nation's current legal system and juridical tradition. Therefore, totally transplanting any of the patterns do not consistent with China's national conditions, but they all have some reasonable components. British and American law containing misdemeanor in the changing pattern pays attention to protect the right of the accused and procedural justice, providing us a new vision on the reconstruction of changing accusation pattern. German changing mode with the scope of identification of prosecuting facts furnishes us useful references in determining the scope of court's changing accusation. Japanese particular cause of action change pattern offer us a model on how to handle accusation and trial in the changing accusation system. Consequently, according to China's national conditions, we should within the scope of identification of prosecuting facts build the court's changing prosecute accusation system, in designing specific procedure consider keeping the accuser, the defender and the judge, these three parties procedure structure. Furthermore, we have to think over mutual respect and mutual restraints between accusation and trial, the defendant's human rights protection, the victim's human rights protection, the maximum earned value of substantive justice and procedural justice. This means the party, who could apply for changing accusation, can be public prosecutor, the accused , victims or the court on its own operating procedures.Any system cannot be established and perfected in one day, so is the changing prosecute accusation system which also needs a long process and the gradual improvement of its support mechanisms. This includes gradually improving the operation way of public prosecution, enhancing the judiciary's law knowledge and legal theory, further improving the quality of lawyers, enabling every defendant to receive effective justification from lawyer.