Research On The Criminal Preliminary Hearing

Preliminary hearing is a pretrial judicial system, it is a very important part and plays an important role in the whole criminal proceedings. Whether the preliminary hearing is good or not, influence the procedural progress and results of the trial in large extent. Preliminary hearing system is widespread, although there are obvious difference in the economy, politics, culture and legal traditions, the two families of law have regulated more comprehensive perfect preliminary hearing in their own criminal procedure, from which can we see the strong functions and legal values. However, our preliminary hearing system is absent in the criminal proceedings code in the whole, which restraints the effective operation of the criminal proceedings. Therefore, researching the preliminary hearing system has an important theoretical and practical significance. At the same time, with an opportunity of amending the Criminal Procedure Law, constructing and improving our preliminary hearing system has become more necessary. The whole article is divided into five parts.The first part debates on the meaning of the preliminary hearing and points out that the preliminary hearing has the broad and narrow sense. The broad sense can refer to all the pre-trial formal judgment, which is the key point of this article, while the narrow sense is a modern concept in specific litigant procedure which modern scholars put forward. The article analysis the sameness and the difference between the Anglo-American law system and the Romano-Germanic law system by referring to the definition and interpretation of the professional legal dictionary. In the end, this section introduces regulations in the international criminal justice system.The second part focuses on the functions of the preliminary hearing. The preliminary hearing has last for a long time from the date of its creation, which is based on its powerful functions. There are four functions as follows: review indictment in order to achieve the case diversion and improve efficiency of the proceedings, judicial review to protect human rights, evidence discovery to promote equality and to initiate effective against between the prosecution and the defense, to achieve fairness and justice, strengthen the judicial authority.The third part talks about the preliminary hearing system of the other countries. This section mainly uses comparative analysis, selecting three typical countries in the two families of law, from which author discusses the preliminary hearing system. It covers the body, scope, mode of the operation and the close of the procedure, as well as the remedies of the preliminary hearing system. Expounding and comparing the preliminary hearing in order to construct our preliminary hearing system and to absorb and learn from the proceedings which includes the spirit of the law and the reasonable composition.The forth part discusses the preliminary hearing system in China. First of all, this section points out that the provisions of the preliminary hearing system in the Criminal Procedure Law of China are rather vague, positioning uncertainty and lack of workability. In the judicial practice, it lacks external forces in order to effectively constraint the investigation power. Then author indicates the preliminary hearing of china has some shortcomings and drawbacks, it is imperative to reform and improve. This section also clarifies an issue that the pre-trial review procedure of China is not the preliminary hearing in nature, points out that there is weakness in the pre-trial review procedure, it needs to be reformed and improved too.The fifth part debates on constructing the preliminary hearing of our country. First of all, this section points out the necessity and the feasibility as to building preliminary hearing system of China. Then, exerting functions of the preliminary hearing needs some system and mechanism which support it, including the independence of the judicature, trial center and renewed the character of the procuratorial power. Finally, this section constructs preliminary hearing of China in a forward-looking view. It covers several aspects, eg. The body, content, mode of operation, scope and so on.