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Constructing The System Of Trial By Default In Criminal Lawsuit Of Our Country

Posted on:2010-04-14Degree:MasterType:Thesis
Country:ChinaCandidate:T QianFull Text:PDF
GTID:2166360275460561Subject:Procedural Law
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The content abstract criminal activity trial by default system is an important legal regime .In the world many countries and the area stipulated that this system takes the exception of the ordinary criminal procedure from the different aspect. But our country flaw this system, which causes that when the crime suspect, the accused person escape, dies or loses lawsuit capacity, no one is able to deal with the ill-gotten money in lawsuit, the stolen goods as well as is unable to solve to victim's questions , and it is not good for attacking crime or protecting the victim's and accused person's legitimate rights and interests, it also can not maintain law authority and the social stability. Joining "the United Nations Counter-corruption Joint pledge" and strengthening the international cooperation step, our country also sped up the law construction advancement, the Law of Criminal Procedure revision and the consummation is also just around the corner. Because the criminal activity trial by default system has its practical significance and the feasibility of existence , therefore, based on analyzing our country's present Law of Criminal Procedure in the legislation flaw foundation, unifying our country's national condition and the judicial practice, and profiting from other national and the local legislation, this article studies why we must construct the criminal activity trial by default system in our country and how to construct this system.The full text altogether is divided into four parts, approximately 30,000 characters.The first part elaborated why we has to construct the criminal activity trial by default system in our country.This article needs to study the criminal activity trial by default, referring that in the appeal case if the criminal accused person and the private prosecution case the private prosecutor or the accused person does not attend in the court trial program, it still carries on the court trial. In our country, the people once believed that, the trial by default system does not good for right-protection of the accused person. However, if it is designed appropriately, and the operation has its standard, the criminal activity trial by default system will be helpful to the coordinated fair trial and the lawsuit efficiency. The criminal activity trial by default system legislation foundation displays for the following three aspects: One, it safeguard human rights, safeguard the accused person and victim's legitimate rights and interests not to be violated; Two, it maintains the judicial authority, the criminal activity trial by default system can effectively advance the lawsuit normally, who maintains the judicature; Three, it must enhance the lawsuit efficiency, the criminal activity trial by default system stresses the lawsuit efficiency, guaranteeing the lawsuit fair premise in maximum. In our country, the construction of criminal activity trial by default system has the important value in regarding fulfills the duty which "the United Nations Counter-corruption Joint pledge" stipulated, the perfect corrupt preventing and controlling system, the perfect criminal prosecution legal system, and the expansion measure being suitable, .First, the party 17 loudly proposed we must carry out comprehensively rules to control a nation legally, construct fair highly effective authority's social legal system, and speeds up the construction socialism country under the rule of law, the central government also emphatically advanced punishment and prevents the corrupt system, our country has joined "the United Nations Counter-corruption Joint pledge", these all provide the turning point to legal system environment for constructing the criminal activity trial by default system for our country .Next, it is necessary for our country to construct the criminal activity trial by default system, .The establishment criminal activity trial by default system realizes our country criminal activity legal system and the international trail connection, and accommodate world government's law development inevitable trend. Finally, this system also is necessary for the expansion of obtaining a guarantor to post one's baa guarantor to post one's bail awaits trial and so on must to take into custody the precautionary measure suitable. This may eliminate the worry about the criminal offender escaping, fully safeguards the crime suspect's personal freedom power.The second part elaborates the suitable situation of our country criminal activity trial by default system and the case scope.By comparing the research overseas and related local legislation, and unifying our country's concrete national condition and the judicial practice, the author has conceived the suitable situation of the criminal activity trial by default and the case scope. Because the criminal activity trial by default system has its particularity, we must be strict when concreting programming, guarantee the particularity of the case suitable situation and applicable scope.By carrying on the outline to the related overseas legislation situation, and analyzing our country's present "Law of Criminal Procedure" and the correlation legislation situation, the suitable situation concrete classification should include five situations such as the slight crime, the accused person violates the court order, the legitimate subpoena do not appear in court, the accused person for some reason or cause oneself to lose the lawsuit capacity and the crime suspect, the accused person intentionally died. It includes two kinds of basic types which are suitable for our country's ordinary criminal activity procedure: It mainly aims at two situations: the accused person does not appear in court or does not appear in court. Regarding case being suitable, we carries on the criminal activity trial by default holding the discrete manner, strictly controls the suitable scope. The author's manner is that under the guarantee lawsuit fair premise, we may reasonably expand and limit suitable scope. The suitable case scope is supposed to include the reality feasible corrupt official to escape the case, the private prosecution case, the criminal supplementary civil action case, the common crime case, the unit crime case and the minor crime case, as well as the second trial case under the specific condition. These cases all may be suitable for the criminal activity trial by default system under the controlled condition permission.The third part talks about the hearing procedure of criminal activity trial by default system.Because the Criminal activity trial by default procedure has its particularity, therefore its hearing also should have the special request. In the analysis to the hearing procedure elaboration in to the hearing procedure request, we must fall to during pursue lawsuit efficiency this system to the lawsuit fair harm, this guarantees the hearing procedure and carries on smoothly intrinsic request. The criminal activity trial by default procedure should include the following four aspects to request:First is the trial publicizes with judge examines the duty objectively, we must guarantee the trial causes the case transparence, to emphasize publicly judge's objective examination duty and guarantee the entity is real; Next safeguards accused person's right to counsel fully, safeguards accused person's right to counsel to be advantageous fully in adding the argue obstinately side to contradict the nature, achieved as far as possible controls the balance of the debates , in order to safeguard the accused person's right to counsel fully to exercise effectively, in the criminal activity trial by default procedure it should stipulate the following content: Submit the defense opinion Outside the courtyard, writes out the compulsion defense and the evidence; What's more, consummate the system of the decision to reason things, it's possible to cause decision coming into the open if consummating the system of the decision to reason things , getting up the surveillance effect to the hearing; Finally, establish the court's lawsuit-look-after-duty, recovering the accused person's lawsuit right who is absent midway and appears in court.The fourth part is the special procedure of criminal activity trial by default system after the judge.As with the special procedure request of criminal activity trial by default system after the judge, in order to guarantee the lawsuit's fairness in maximum, the author suggested it should be consummated from three aspects: First, the impartation system must be consummated, the result of the trial by default decision must be delivered and the announced in time; Next, the consummation of criminal law is needed to guarantee the establishment of the effectiveness system ; Finally, the debates should be entrusted the appeal right and the objection power, expanding the debates' the main appeal scope and the suit period.For the situation that the accused person is absent, we should safeguard it to propose the objection opportunity. Constructing the Criminal activity trial by default system, there are also some practical significance regarding solution absence when involves accused person's legal responsibility and victim's questions and so on compensation, encourages the litigant to participate in the lawsuit, the attack corrupt official positively takes along the great sum of money to escape, to consummate our country criminal prosecution system . By analyzing the criminal activity trial by default system theory and the structure, this article proves why we have to construct the criminal activity trial by default system, as well as proposing some preliminary concrete tentative plans on how to construct this system. Constructing the criminal activity trial by default system, its applicable scope assurance is a key, but many procedures to safeguard the system effectively are also needed. It needs our unceasing endeavor, we must carry on the full fumble and the proof to the theory and the practice, which needs us to choose the reasonable pattern to construct our country's criminal activity trial by default system.
Keywords/Search Tags:Criminal activity trial by default, Fair, Efficiency, Legislation
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