| This article uses the way of comparision analysis and linking theory with practice practice to analyse and study the existing problems in our country's preliminary hearing procedure systems,introduce the procedure systems in foreign courts,and makes some suggestions on reconstructing our country's preliminary hearing procedure systems .This article contains four parts:Part 1 expouds the present condition and malpractice of preliminary hearing procedure systems in our country.First,makes comparison to the rules of the preliminary hearing procedure systems between the new criminal procedure law and the old one .Point out the important modification of the preliminary hearing procedure systems if revolution of the serious distinction between prosecution and trial,the substance of this procedure and the trial in form .Then point out that the malpractice exists in the current preliminary hearing procedure systems ,that is can't exclude the judge's pretried judgement,and make court review an unreal one .Two is the way of sending copies of the main proof makes it more difficult to let keep objective and neutral.Three is that it is hard to prevent unsuitable prosecution and it can't make the proper judgment realized.Part 2 investigates and analyses the foreign preliminary hearing procedure systems.By introducting the preliminary hearing procedure systems in the United states ,England,France,Germany,Italy,Russia,and the concerning system of Japan,get to know the characteristics of the foreign preliminary hearing procedure systems .And point out the advantages and disadvantages that appears in preventing the judes's antiapaton,unsuitable prosecution guaranteeing the procedural right of the defendants and procedural efficiency.Part 3 investigates the purpose and functions of the preliminary hearing procedure systems in our country. Point out set up our country criminal procedural mode should aim at guaranteeing human rights and punishing crime, only can we do it to adjust the position and correlations of prosecution , vinclcation and trial. It demands to establish a equal waist triangle criminial procedural mode of guaranteeing the equal protesting of prosecution and vinclicution, the neutal trial of judges. Point out that the our country'spreliminary hearing procedure systems should have the following function: One is to keep the public prosecution power from being abused to the wrong prosecution ,thus to avoid the unnecessary even wrong cases quaranteeing the limited resources be used reasonably. Two is to make the both parties discover completely, to make both parties challenge, before having the full proof: to make court discover facts, to quarantee the justice and efficiency. Three is keep the judge objective and neural, to prevent the anticipation, that is to keep the trial judge from anticpation, suspicion and prejudice.Part 4 is to put forward the scheme of reconstruction the preliminary hearing procedure systems, according to the experience of the fact of our country, and from the lawmaking experience of foreign countries. Include the following contents:One is to establish the special preliminary hearing judge to be responsible for earring on court procedure, make preliminary hearing judges separate from trial judges in the procedure formally. Two is to limit the scope of case through preliminary hearing procedure, limiting the crimes of importance serious punishment, complication, spreading to attain the purpose of using procedural resiurses effectively and raising the pricedural efficency. Three is that the preliminary hearing procedure should be launch by the procuratoria organization, give the defense certain claim power at the same time. The preliminary hearing judge can't start the defense right. Four is the method written reviewing combining with procedural reviewing. Five should establish the complete system to discover by both parties in the preliminary hearing procedure, thus guarantee that the both parties armed equally, and it lays the good foundation to one's application... |
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