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Dossier Transfer In Pretrial And The Prevention Of Prejudgment

Posted on:2010-07-22Degree:MasterType:Thesis
Country:ChinaCandidate:F YuFull Text:PDF
GTID:2166360275460523Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Generally speaking, there are two modes of how to initiating a public prosecution. The one is called "dossier transfer", and, the other is named as "indictment-only doctrine". In China's criminal proceedings, we practice in a special way, so-called the "photocopyism". However, during a long time's practice, many Scholars think that, because of the Pre-contact of the files, the trial had been not fair. The system of "photocopyism" Cause the prejudgment of the trial judge, and, that is why the files been so important, therefore, made the trial formally. So, Scholars believe that the reform definitely lies in the establishment of the indictment-only doctrine.In author's opinion, there are some misunderstandings about "indictment-only doctrine" in pretrial procedure in Japan. In fact, there is no necessary link between indictment-only doctrine in pretrial procedure and the prevention of prejudgment of the judge. Also, there has absolutely different ways between continent law system and Anglo-Saxon law system on regarding the judge's prejudgment. Either dossier transfer or indictment-only doctrine is a proper way based on the legal culture of these two systems. Dossier transfer in Germany have not formalized the criminal trial, there are some principles and institutions to guarantee the trial substantively.The adoption of the indictment-only doctrine could not be a perfect prescription to cure the formalism of China's criminal trial. Blindly introducing this rule into China could not prevent the prejudgment in criminal trial. On the contrary, it will put the defendant in an even less favorable position in the trial. The reform of the criminal proceedings in China should be pay more attention to The Principle of Trial-centered.This passage includes six parts:First part gives a brief introduction of china's criminal procedure reform from 1979 to 1996.By introduce the different practice, we can see there is some consensus on how to prevent the prejudgment, and this consensus also be the cause of the adoption of the indictment-only doctrine.Part 2 discusses the different way of some other countries in it's Pretrial proceedings. As this part a basis for the next, the below two parts could be very important.Part 3 view the U.S an important example, the author attempt to show that, instead of saying that the Indictment-only Doctrine is an integral part of adversary system, it is better to say that the jury trial model of the Anglo-Saxon law system made the Indictment-only Doctrine formation.The 4th part of the passage pay attention to the continent law system. With the example of Germany, although, dossier transfer haven't excluded the prejudgment of the judge, the principle of direct, the declaration of the verdict reasons, and the particular appeal system, always guarantee the trial substantively.Part 5 introduce Japan's practice about the current situation of judicial difficulties of applying the Indictment-only Doctrine, view as a example for china's reform.In the last part, the author thinks, it is more urgent to pay critical attention to how to enforce the trial process more and more substantively than how to reform the dossier transfer in pretrial context and to pursue for excluding judge's prejudice or forbidding judge's accessing to case information before trial absolutely.
Keywords/Search Tags:The Indictment-only Doctrine, Dossier Transfer, Prejudgment, Trial-centered, Trial Substantively
PDF Full Text Request
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