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A Study On Criminal Pre-trial Diversion Program

Posted on:2010-11-03Degree:MasterType:Thesis
Country:ChinaCandidate:J N HanFull Text:PDF
GTID:2166360275460593Subject:Procedural Law
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The backlog of court cases such as Hill is an indisputable fact, and the procedure of justice is that we must adhere to. The organic integration of fairness and efficiency is the ultimate destination, and the criminal diversion of pre-trial procedures is a product of the organic combination of both. Researching on the criminal diversion of pre-trial procedures is valuable. Through it we could establish a wide range system of procedures, and consider a different path for our country's criminal law reform, as well as ease the conflict of procedural guarantee and improving litigation efficiency.The dissertation consists of five parts apart from preface and epilogue.The first part is about testing the etymological Approach to the word "diversion" and analyzing the mechanism of pre-trial diversion program in value. The criminal pre-trial diversion program is the mechanism: that is, at the early stages of criminal investigation, prosecution and pre-trial review stage, some particular cases is dealt with an appropriate manner, or not to pursue the case, or using dependalization method in Dealing with Crimes, or deciding to use special procedures rather than submitting to the law court in accordance with the ordinary system of trial. The valuable of this mechanism is that: First of all, on the legal theory level, the mechanism can improve litigation efficiency greatly, and accords with efficiency idea. On the basis of the facts of the case and timely termination of the proceedings, not only the case is finished quickly, but also the society order is resumed, and the suit pressure can be avoid .it is also in line with the concept of justice. Second, the criminal proceedings, as a triage mechanism for non-penalty of a product, have a unique role in prevention and rehabilitation of offenders through sensible regulation of the case to filter like "hourglass-type". Finally, because our country's criminal law presents "assembly-line" characteristics, there has little filtering mechanism. This is not only caused the effectiveness of the proceedings resulted in lower, but also caused the weight of our country and judicial investigators, as well as the phenomenon of extended detention. Criminal pre-trial diversion mechanism is extremely beneficial on saving suit resources.The second part is about the investigation of present. In-view of the criminal legislation and judicial practice, although our country has some filtering mechanism, from the global aspect more stringent principle is still used of criminal prosecution. China's pre-trial criminal diversion program shows the following characteristics: (l)The investigation procedure does not enjoy the power of diversion.(2)The prosecution stage of the procedure exists some diversion, but the actual effect is poor.(3)Pre-trial review process's function is single, not contain filtering or triage function.In addition, because of the judicial status of the cultural traditions of our country requires the easing of penalties, in transition the uncertainty of social relations, the diversification as well as highlighting of social contradictions, the characteristics of this stage to promote Criminal Policy of Combining Punishment with Leniency, establishing a criminal mechanism for pre-trial diversion program is needed. The mechanism is a reasonable triage, because it has been used sostenuto and widely. And some of exploratory of the judicial procedural practice also shows that our country existent the triage mechanism to be growth. This shows that setting the pre-trial criminal procedure division mechanism in our country is feasible.The third part is about division mechanism of the investigation stag, by referencing the segregation of foreign-related. At this stage the police usually enjoy a certain degree of division power, such as the warning system, at this stage our country's division mechanism should be limited to minor criminal cases about special groups. Diversion of this group, there is in favor of the principle of "light heavy" criminal policy.Part IV focuses on the prosecution phase of our Review Prosecution Procedure. Through the investigation of foreign-related system, we found that doctrine of prosecuting discretion almost has been accepted by all countries in the world. But our country's Discretionary Non-Suing System is stringent, which is not conducive to the realization of the effectiveness of the proceedings. So we should add the Non-prosecution of Additional Conditions, as well as properly enlarge the application scope of the Discretionary Non-Suing System.Part V is about the division of Pretrial Review System. Pre-trial review process means that judges are on the case's transfer of private prosecution or a review of the case to determine whether the activities to be trialed. By comparing, we find that the foreign pre-trial review process usually has the following features, such as: (1) filtration and separation of functions; (2) evidence of the display, exchange and clearance function; (3) the functions of a clear dispute litigation; (4) other preparation functions. And China's Criminal pre-trial review process can be said to be a single review process, which does not have the function similar to pre-trial procedures. Considering of the pre-trial review process' independent of values, the author considers that we should set up the pre-trial procedures similar to foreign and the procedures to plead guilty. Improving suggestions are as follows: (1) set up pre-trial proceedings. In order to prevent the occurrence of improper prosecution, the pre-trial proceedings shall be carried by the specific pretrial courtroom, which is consisted of full-time pre-trial judges. Through it, the case should be not only reviewed on procedure, but also on substance. (2) Set up pleading guilty procedure. The case could be limited to this case, in which the defendant pleads guilty and the evidences are accurate and sufficient, except for Summary Procedure cases.
Keywords/Search Tags:Procedure Efficiency, Procedure Diversion, Pre-trial Procedure, Filtration, Diversity
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