The Realization Mechanism Of The Right Of Criminal Suit

The criminal defendant’s confrontation right is the fundamental right of procedure, which is ruled by constitution and international human rights treaties, and this right is also the minimum standard of fair trial in criminal procedure. As a constitution right that makes criminal defendants receive the fair trial in criminal procedure. The confrontation right derived from Anglo-American law, but this right has the universal value no matter in genealogy of law or litigation structure, and it has been widely accepted around the world. The Federal Supreme Court and European Court on Human Rights have made a great contribution to the confrontation right, and exert a positive influence on other countries’criminal procedure. As a fundamental right of procedure, confrontation right guarantees fundamental rights of criminal defendants, keeps the balance between prosecution and defense, and discovers the truth. But to find the truth is only secondary value of confrontation right, in other words it is the instrumental value, while to protect the basic rights of criminal defendants and achieve a fair trial are the core value of confrontation right. Therefore, we should not exaggerate the secondary value. The basic theory of confrontation right originates from the constitutional theories including the theories of human dignity, procedure subject, the balance between prosecution and defense, and due process. Therefore, the confrontation right has own theoretical base, value and function, and as an independent constitutional right, it is different from the right of defense or cross-examination.In China, it is normal that witnesses do not testify in the criminal trial. Because of the lack of procedural fundamental rights of criminal defendants in our constitution, witness testimony can be used as the basis for a final verdict read selectively by the public procurators, that lead to the miscarriages of justice, and this practice deviates the protection of human rights from the Constitution and criminal procedure law. Under the background of the protection of human rights written in constitution and as the fundamental task of criminal action, the protection of fundamental right of procedure has become the key of reform. The confrontation right confirms our country’s criminal trial fair. There are many lessons for China to confirm the criminal defendants’confrontation right, such as the legislative and judicial practice from the late Qing Dynasty to early Republic of China, the U.S. Federal Supreme Court and the European Court of human rights to expatiate on the theoretical connotation of the confrontation right and those countries’ practice of security system, and the development of economy and technology. Therefore, the author offers some preliminary ideas on the basis of reflection domestic situation and the experience from foreign countries. Firstly, we should confirm this right in constitution that we will have the base of the upper law, when we revise criminal procedure law. Secondly, we should consummate the security system and procedures of the confrontation right in judicial practice. At last, we should consummate the judicial system at the level of constitutionalism in order to realize criminal judicial justice and achieve the constitutionalism goal of protecting human rights.