The Research For Challenge System To The Criminal Judge

Challenge System to the Judge, in which the justice is supposed not to participate the case hearing, refers to a certain restriction in official activities and incumbency, preventing abusing the law and practicing favoritism and selfish interests even engaging in crimes by taking advantage of duty by the justice, in order to avoid the injustice of judicial cases. Its basic foundation is to avoid the injustice of processing of the cases influenced by participant through this judicial challenge system, defending justice of the law.Early in the Spring and Autumn and Warring States period of China, this system had come into being of rudiment. In Tang Dynasty, such challenge system for bureaucracies emerged in the form of code named Tang Liu Dian. And the term challenge system was fixed officially in Yuan Dynasty and the jargon withdrawal was used Xingfa in Penal Laws. This system got its consummate in Qing Dynasty.Sorted by different categories with different standards in the doctrine, which is formed into voluntary withdrawal, withdrawal by petition and withdrawal by order in initializing mode of challenge system. It formed into challenge for cause and challenge without cause in the difference of the reason of the withdrawal. It also formed into challenge to the poll and challenge to the array according to the singular and plural of the withdrawal of the subject. The theoretical basis of a the Challenge System to the Judge is natural justice theory and the principle of preliminary exclusion. The theory of natural justice originated from the ancient Roman concept of natural law, and became a basic rule after a long time of development. There are two basic requirements. In the trial proceedings:the first one is that there is no one is allowed to work as his or her own judge (nemo judex in partesua); the second one is that he or she should hear the party's opinions (audi altermpartem). The principle of preliminary exclusion is under the proceedings of principle of direct trial and under the centre doctrine of public, which is an important principle for fair trial. It mainly includes justice and the judge's impartial position.The Challenge System to the Criminal in every country mainly included the rangeability challenge to criminal, the starting procedure of challenge to the criminal, the relief procedure challenge to the criminal, the decision procedure challenge to the criminal and the legal liability system challenge to the criminal. At present, criminal procedure law related to the rule of challenge system is concentrated in Chapter III of the first entry that is to say, line 28-31 of the criminal procedure law of the people's republic of china, which include the challenge to the subjects, reasons and ways. Supreme Court issued on Jan.31st 2000, Supreme Court's Certain Provisions about Judges'Strict Enforcement of Challenge System to Justice is the important supplement to the China's current Challenge System to Justice.The shortcomings of challenge system to criminal judge in our country are mainly embodied in the defects of legislation and the limitations of system design. Reforming and improving challenge system to criminal judge firstly should combine with the state of the country, and then follow the theoretical basis of nature justice and preliminary exclusion to increase the external independence of the court and modify the form of trial of administration, and finally by using the procedural theory of sanction to improve it. Under the specific design to fully confirm the principle of"nature justice", closely combine with the state of China as well as make effort to find best joints of each other, based on all of those which can design the challenge to rational criminal system which is to combine with the state of China. This thesis illustrated about optimizing the challenge for causes; establishing the modified jurisdictional system which is to deal with the judge of challenge to the array; using the experience of other countries'legislation for reference; absorbing in reasonable parts of peremptory challenge system in foreign countries and to establish its own peremptory challenge system. The author also suggested that China should establish publicity system of judge, protecting the party's right to apply, setting up the effective relief measures, clearing the legal liability of challenge system and further improving the challenge system to the judge.