The Change Of An Accusation By Courts

As to the change of an accusation by courts in judicial practice, scholars and judicial staff have an intensives dispute. But it is still being unsolved by now.The authors thinks the solution must depend upon the advanced experience on criminal judicature from foreign countries as well as the domestic judicial practice. Only by doing that we could transplant the advanced pattern.This paper is divided into five parts. Chapter One summarizes the current condition how the courts change the accusation, in which it includes the disputes that the scholars and legal professionals brought—Are the change based on legal basis? Is the change just in procedure? Does the change infringe the parties'right to counsel?Chapter Two analyzes the reasons why courts change the accusation. The subjective reason is the guideline of "Regarding Substantiality While Depreciating Procedure" of criminal lawsuit and its resulting litigation pattern of authority principle, the different judicial explanation in affirming the accusation by The Supreme Court of People's Republic of China and Supreme People's Procuratorate of the People's Republic of China, and the conceptual ambiguity by courts and procuratorates. And the objective reason is that there has not been the principle of the identity of accusation and trial and the competent system of public prosection changes in China.Chapter Three starts to search for the solution to the problems as said above. The scholars design an procedure for which the courts have to take when they decide to change the accusation. As a result, the court are limited when they change an accusation , because a third procedure is added before the change. Moreover, to upgrade the current system of public prosecution is needed.Chapter Four introduces some patterns which are selected by other countries when change the accusation. One of those patterns is the "substantially limited pattern" applied by litigant principle countries, and the other one is the "procedurally limited pattern" applied by authority principle countries.Chapter Five is the most important part of this paper, because it five some pieces of useful advice. One of them is that when the procuratorate should bring the affiliated accusations at the same time when they review an accusation. Furthermore, if the procuratorates refuse the change their prosecution when the court finds out that there are still undiscovered accusations, the court can only declare the accused innocent other than turning down the prosecution.The author adds the crime constitution theory to discuss which includes the subject and subjective elements of crime; the criminal object and objective circumstances of a crime.