The Relationship Of Prosecution And The Scope Of The Trial

The three components of criminal action are prosecution, defendant and judge, which, with their respective functions, promote the conduct of prosecution by mutual cooperation as well as mutual conditioning. Thus, it is urged to avoid the concentration and confusion of the functions. Moreover, as the basic requirement of Procedural Justice, the clarity of the relationship between right of prosecution and the scope of the trial exerts a significant effect on the protection of the right of the accused.The relationship between right of prosecution and trial scope, namely the latter rests with the range that power of prosecution attaches, is the fundamental requirement of principle of no trial without complaint. However, there are a series of theoretical and practical problems to be solved with regard to it. For instance, as judicial institution, should the court stay negative or responsive in initializing a prosecution procedure? Does the court have the right to institute a proceeding without lawsuit? Is the court capable of altering the charge of procuratorate? If it is, what is the range of the alternation? Etc. To solve the problem properly, this article, in the first place, has given a definition to right of prosecution and trial scope. Discussion on its nature, category and enforcement has brought the conclusion that right of prosecution is a kind of criminal prosecution right, as well as judicial required right, a procedural right exclusive to procuratorate. Another crucial principle has been brought up especially—principle of prosecution indivisibility, which is, procuratorate is not allowed to charge part of the fact. If procuratorate charges part of the acting in a case, it has no right to bring another prosecution of the resting part. Thus, the prosecution enforcement of prosecutor would necessarily extend to the entire case. According to the prosecution indivisibility, the trial scope of court has been enlarged and it is able to conclude uncharged facts similar to charged ones into the trial procedure, bringing not only charged but uncharged crime to a trial. In this way, trial scope of court has been enlarged. The two properties of simplicity and similarity of trial scope have decided that right of prosecution is the boundary of trial scope. Prosecution scope defines trial scope and the court has no right to hear cases against uncharged human or issue or legal evaluation without prosecution. This, as a matter of fact, relates to the issue whether the court is rightful to alter a prosecution.Later on, an analysis on the current situation of prosecution alternation of court has been put forward from the angle of legislation and individual cases, which unveiled major problems in China as follows: firstly, the alternation ranges over accusation as well as criminal acting with high haphazardry; secondly, the court commonly change original sentence on court, expropriating the two parties of prosecution right, especially the defendant in a secret way; thirdly, in usual case, the sentences are altered from misdemeanor to felony. Such practices have been in such a long existence that it could even be called a judicial convention.Viewpoints, positive and negative, towards prosecution alternation have been proposed with solid reason. Approvals hold the idea that "accusation should be under the jurisdiction of the court, so the court can alter the charge" while the disapprovals are convinced that "approval of prosecution alternation of the court violate a basic principle which, specifically, no trial without complaint". So far as the author concerned, it is not only necessary for the court to alter accusation within certain limit, but it reflects the essence of the principle of no trial without complaint. To better improve the prosecution alternation system of the court, it is of great significance as well as necessity to learn from overseas experience. In common law countries, the strict accusation system urges the court hear the criminal details described in the accusation and the duty of the judge and the jury is to tell the existence of the accusation, guilty if positive and vice versa. If the judge and the jury can not bring in a verdict of guilty according to the criminal acting on accusation and if no addition or alternation to the accusation, no other acting should be judged. However, exceptions have been made for the court to alter comprehensive accusations. In civil law countries, however, accusation alternation is usually expressly stipulated. As for the alternation of criminal facts, though not that strict, it is preconditioned by the principle of identity of the fact. In Japan, on contrary, the problem has been addressed in system of the cause of action. Japan has formed a unique system of the cause of action with its own characteristic from the selection of prosecution pattern and as a result, supported by a series of theories, it has its own feature in prosecution alternation of the court.In the final part of the article, the author proposed that to improve the system in China, efforts should be made both in legal entity and procedure on the base of the following four principles: principle of no trial without complaint, principle of division of prosecution and trial, principle of consistency of prosecution and trial and principle of defense.