On Preliminary Hearing System Of China

Preliminary Hearing system is an important pretrial procedure which helps to promote criminal proceedings, guarantee fair acting and improve the efficiency of the action. There are lots of differences between our country and the other countries in this system. Preliminary hearing system was established gradually at the end of the Qing Dynasty in China. Until the promulgation of the Chinese Criminal Procedure Law, debates of whether the system should exist have been lasting. What on earth is Preliminary Hearing System? What are the differences in preliminary hearing system between China and foreign countries? How do these differences occur? Do we need the Preliminary Hearing System in China? What kind of Preliminary Hearing System should we have? The author will analyze these questions historically and comparatively. This paper is composed of five sections.The first section analyzes the concept of the Preliminary Hearing Procedure and points out that, as to the meaning of Preliminary Hearing Procedure, there is a distinction between the broad sense and the narrow sense. The narrow sense of Preliminary Hearing means the review power solely possessed by the judiciary while the broad sense also somewhat includes the criminal investigation by the detective department. Moreover, this section demonstrates the different viewpoints of different scholars and points out that these differences arise out from the ambiguity of the law on the base. Preliminary Hearing System is established on the particular relationship between the three law-enforcement departments. The subject of the preliminary hearing procedure is internally the same with the detective procedure. The questioning function of the preliminary hearing procedure is stressed while the human rights protected function is underestimated. The preliminary hearing procedure is a procedure of investigation.The second section of this paper discusses foreign preliminary hearing systems and points out that: in Anglo-American law system, Preliminary Hearing stresses in the subject who possesses the power of judicial review over the case in which the prosecutor is preparing to bring an action. In Romano-German law system, Preliminary Hearing stresses in that judge collects evidence and verifies the facts on the base of preliminary detection. Judge determines whether suspected violated the criminal law and was submitted to trial.The third section of this paper focuses on the evolution of Chinese Preliminary Hearing System. The author researches preliminary hearing system's appearance and the evolution through historical analysis in order to discover historical factors of Chinese Preliminary Hearing System. Moreover, this section analyzes the theoretical and practical problems and points out the structural lacks in Chinese Preliminary Hearing System.The fourth section of this paper discusses the necessities of the re-construction of Chinese Preliminary Hearing System and debates some representative viewpoints of how to consummate the Preliminary Hearing System in order to discuss necessity and feasibility of rebuilding preliminary hearing system. This section points out some basic principles of rebuilding preliminary hearing system, such as assurance of human rights, limitations of powers, attentions on fairy and efficiency, foothold national condition, uses for reference suitably, the evidence writes out, moderate resistance. At the end of this section, the author proposes the conception of consummating the Preliminary Hearing system in China.