On Investigating Right Outside The Courtroom By Judges

Through discovering the substantial authenticity of the case to apply the law implement the national power of punishment correctly in order to achieve justice, the protection of human rights litigation aimed at the majority of the countries where criminal purposes. The judge's investigation outside the court will undoubtedly help to achieve this purpose. The judge's investigation outside the court means that during criminal adjudication campaign, judge spreads out accord into authority to collect,investigate the evidences to find out the fact of law case. The judge's investigation outside the court has the function to collect evidence, to protect the evidence and to verify evidence. It plays positive role for fudge to make correct fudge, and realize entity.In spite of this that the judge's investigation outside the court still receives the dispute fully. In Anglo-American law system, the doctrine of confrontation system lawsuit of involved party is taking procedural justice concept as first value orientation, and does not have the legislative of judge investigation evidence. Generally speaking, the judge's investigation outside the court belongs to authorized doctrine of adjudication pattern lawsuit system of continent law department. Because in the country of the continental law system, the judge possesses the function of judicature investigation, and judge is undertaking the duty to finds out the true of case. In France and German criminal litigation that the judge's investigation outside the court extensively exists and is frequently used, not only existing in trying stage, but also can be carried before the trial; not only can the litigants apply for the judge to investigate, but the judge also can initiatively mention it. And the Japan and Italy of lawsuit model representative by the type thinking to compromise is though all permitting the judge to investigate outside the court, but there have been very big difference between them and the traditional country of inquisitorial system of France and Germany. In addition China's Taiwan Province also retained the right to judge court investigation.It was precisely because of other countries and regions of the relevant legislation, I believe that our country should retain the right to judge court investigation, but it should be reconstructed.This paper is divided into three parts: the preface, the text and the conclusion.Preface: Identify the case, punish the perpetrators, in order to achieve substantive justice is the world's common objective of the proceedings, the judge court investigation will undoubtedly help achieve this goal of the proceedings, but such a system is not accepted by all States. A country or region on whether to retain the right to judge court is investigating its judicial system, legal traditions, cultural, and other litigation-related factors. As a country of the continental law system, China should retain the right of investigation outside the court by the judge.The text is divided into five parts: The first chapter carried on introduction to the concept that judge's power to investigate outside of court, and try to definite it at my own. At the same time, a brief court judge investigating the nature and the right to dispute with the intention of later for the status of the legislation introduced and compared to pave the way. The second chapter, a comparative study of methods used to model different perspective litigation, France, Germany, Italy and Japan, and the investigating judge for a court inspection, and introduce the changes after Taiwan's criminal endure have modificated. Based on the above analysis, the author believes that, as one of the civil law countries, China should be based on country-specific litigation culture, from the perspective of practical reason and should not be a matter of perspective should be considered out-of-court judge investigating the pros and cons of the system. Reservations judge court investigation is conducive to China's realization of the purpose of criminal proceedings, in line with China's legal traditions and culture of litigation; Otherwise, the other supporting system is not perfect circumstances, outright cancellation judge court investigation may lead to a series of adverse reactions resulting in the court system operational mechanism of paralysis. China should learn from other countries and regions on the basis of the legislative court judges retain the right to investigate, and its regulation system. The third part, the judge's investigation outside the court of our country according to system has long legislative historical background, today under the popular feeling of procedural justice concept scene, this system has been still retained, and has both inside and outside reasons lawsuit system: Inner factor is the traditional authorized doctrine adjudication pattern of our country, lawsuit two make no equal position, position, the public prosecutor controls particular lawsuit position; Besides the reason is the traditional strong tendency in psychological influence of the social ordinary people to pursue entity justice. In short, our country at this stage of court judges retain the right to investigate the combined effects of various factors result, it is not the result of blind imitation of foreign, is not as arbitrary, but in light of China's national conditions of present-day realities. The forth chapter, in our country the judge's investigation outside the court should follow a survey the guiding principles such as the principle of neutrality of the judges. In establish the concrete system, as for starting the investigation outside the court, generally judge should not start the proceeding initiatively, the law should endow the litigants with the rights of application; as for accepting application, only under the circumstances of legal reason, can the litigants apply judge to investigate outside the court, judge should censor the application objectively: as for the proceeding, it should be clearly and definitely stipulated that the judge who investigate before the trial should not attend the trial, the judge should inform the litigants to take part in before investigate, the judge should inform the litigants to collect evidence in principle when there is new evidence. As for the measures judge can take to investigate, the judge can use the method of asking about witness, except spot, checks up, detains, appraises and inquire about and freezes stipulated by the criminal litigation law; As for the evidence gained by investigation outside the court they should be shown and argued by litigants to be the verdict evidence: as for the illegal action carried by the judge, the law should protect the right of litigants.The conclusion: The judge's investigation outside the court in China have more terms of reference and arbitrariness, which lack of proper procedures to be regulated, so that unable to meet the requirements of procedural fairness. Therefore it is necessary for our out-of-court judge investigating procedures remodeling and entities to seek to identify the real procedural fairness and the protection of the balance between the two, which is the purpose of this paper.