Research On Several Problems Existing In The Criminal Pre-trail Review Procedure

During the criminal litigation proceeding, the pre-trail review procedure is the intermediate tache between prosecution and hearing. Even though that the intermediate tache is not an official trail procedure, however it has a significant meaning in relating to the well proceeding of the trail as well as the optimization of the judicial resource's utilization. Pre-trail review is only a prepare activities of the hearing, which is not the core of the whole litigation proceeding. However, as a necessary procedure of the criminal litigation, the scientific and rationality of the pre-trail review has a great impact on the parties', especially the defendant's, litigation rights and safety, as well as the fundamental impartiality and economy of the whole litigation proceeding. The prosecution authority is the supervision authority according to the constitution and law, who is also the sole prosecution department who has the right to make the decision on whether the litigation will be brought with the court. Even the pre-trail review stipulated in the Criminal Procedure Law dated 7th July 1979 may easily lead to the judgment before or without hearing, however, to some extend, it has the function to prevent the undue prosecution. The Criminal Procedure Law dated 17th March 1996 did some revisions on the pre-trail review, but the revisions failed to make up the defect as the"judgment before hearing"or"judgment without hearing"and lead the situation that the judicial power cannot balance the prosecution power. PRC Criminal Procedure Law has set up complex balance mechanism in relating to the non-prosecution, which increases the possibility of the undue prosecution. What more important is that, Chinese pre-trail review has preclude the participation of the defendant, which has no advantage to the protection of human rights, but also fall away from basic requirement of due process.To achieve the great progress on the research regarding the pre-trail review requires the enhancement of the knowledge on foreign counties'relevant systems. Actually, no matter the case law system or statute law system, all the courts basically are entitle the right to judicially review the litigation brought by the prosecution, which comes from western countries'emphasis on the check and balance of the power. The so-called pre-trail review is a pre-hearing activity conducted by special judges before the court's official hearing, and it has a complete proceeding structure during which the prosecutor and defendant both enjoy corresponding rights.By holding the position that china shall establish an independent system as pre-hearing judge, making analysis on the specific operation model of the pre-trail review procedure, and also taking the new contents of the pre-trail review procedure under the background of judicial harmony into the consideration, this paper expect to perfect the pre-trailing review procedure in china's criminal litigation proceeding in order to protect the impartiality, orderly and high efficient operating of the criminal hearing.