A Study Of Courts' Modification Of Charges

Changing accusation is one of the most important issues in criminal trial,which refers when charges approbated by court is different from the one suited by the prosecution department, the court modify the charges allegated and re-approbate the charge after the adjudication. Research about court's modifying charges in foreign countries has been matured nowadays. Countries of Anglo-American law system have made principles of non-modifying accusing charges and taken modification as exception,which restricts this power by bounding it in a substantial scope, that is called"substance restricted model", and meanwhile countries in continental law system stipulated: courts judge cases in function and power, being restricted the prosecute terms in factual judge but can being autonomous action in application and choose of charges. Some general value inclination and mechanism design can be found, though we can also find some differences in the specific legitimate. There exists the principle that where the charge is modified, the new charge can not be added and the defense rights of the debating cannot be infringed. Though it has been stipulated in laws in our country, it is too simple, too general and it seems to have no ability when facing some actual problems.The dissertation analyzes the present situations and contributing factors of alleged offense which is changed directly by court, points out the disadvantages of the action. The author acclaims that courts should have rights to modify the accused charges based on the analysis of basic theory and the modification of the charges under different suit mode and the modification in the comparative law. The article puts forward a new way to perfect the system of changing of accusation of our country: the re-establishment of the theory and the choice of model of substantial restriction. The author gets the conclusion that court should pay attention to substance as much as to procedure, and court should abide by the principle of identity of accusation and trial, the principles of defense and the principle of non-trial without accusation. Furthermore, the author holds that the judicial program for our legal institution of changing accusation should be rooted in our own legal culture, legal system, and the four-crime-requirements, and then conformed to the system of counts.