Criminal Pre-trial Procedures, A Comparative Study

Preliminary Hearing procedure is an important litigation stage thatlinks the public prosecution procedure and the judgment procedures,which restricts the movement of the public prosecution procedure anddecides the mode of judge and affects the structure of the criminalprocedure. Some main legal states have integrated PreliminaryProcedures in their criminal proceedings codes, however, there is noPreliminary Hearing procedure in our criminal proceedings codes, withthe criminal justice reform, the absents of Preliminary Hearing restrictsthe effective operation of the criminal trial and the whole criminalprocedure and brings some passive effect to the criminal justice.Therefore, studying the criminal Preliminary Hearing proceduresystematically has the important theoretical meaning and practicalmeaning. This text carries on the overall research of the PreliminaryHearing procedure from two aspects of theory and practice, put forwardto set up the lawmaking suggestion of the Preliminary Hearingprocedure of our country that has the blemishes currently to expect tomodify the function that rise lawmaking's draw lessons from to thefuture code of criminal court of our country.This dissertation paper is composed of four parts, except forintroduction, and the main content is as follows.The first chapter mainly defines the concept of the PreliminaryHearing procedure. Preliminary Hearing means that the subjectpossesses the power of judicial review inspects the case which theprosecutor is prepared to bring an action against, determines if theindictment is necessary and then submits it to trial.The second Chapter is the comparison research of the PreliminaryHearing procedure to the foreign countries. Through the comparisonresearch of the lawmaking practice of the foreign main nations, thechapter theories analyzes the problems of the theory and the practicethat appears in the practice of Preliminary Hearing procedure. Finally, The author draws the conclusions: Main nations in the world haveestablished the Preliminary Hearing procedure, the purpose of which liein keeping the public prosecution power from abusing, guaranteeing thedefendant rights.The third Chapter is the theories study of Preliminary Hearingprocedure. Litigation relation take the litigation behavior as the invalidresult of loading, the result of behavior is the important problem inPreliminary Hearing procedure. The chapter researches the value of thePreliminary Hearing procedure of the criminal prosecution case. Thevalue is the result that the function of demand. Also it is subjective andobjectivities to unify the value that expels the prejudge, which is one ofthe importance values guaranteeing the fair purpose realization, andcarries out important guarantees of the adversary trial models. The idealmodel of Preliminary Hearing procedure follows the principles: opencourt reviewing; the substance reviewing; the limited reviewing;excelling prejudge; Limited defending. The Preliminary Hearing notonly has its rationality theoretically, but also has its necessity of theexistence practically. The Preliminary Hearing is an importantmechanism that carries out human rights guaranteeing and also carriesout many other value functions in Preliminary Hearing procedureThe forth Chapter introspects and sets up Preliminary Hearing ofour country pretrial procedure. Firstly, this chapter investigates thehistory and the present conditions and introspects the shortcomings ofour country public prosecution reviewing. The public prosecutioninvestigation of our country did not attach many other functions as othernations and regions in the world. Secondly, The public prosecutionreviewing of our country only does the written reviewing of judge's oneside, not carry through the principle of open court reviewing. Thridly,this chapter puts forward to set up our country public prosecutionreviewing that should follow the ideal model of the Preliminary Hearingprocedure. On the purpose it should prevent the public prosecutionpower abuse and guaranteeing human rights. On the function it should develop many worth functions and carry out the functions of knowingthe proof, excelling the proof and applying the proof investigation etc.On the procedure, it should carry through the principle of open trial.The concrete system design should establish the PreliminaryHearing court in the different stage court, Practice the systems thatseparate the judger of the public prosecution investigation from thejudger of the trial and that the whole case removes the court with the jobpower or be to open court session the condition of the reviewing withthe application. After the reviewing, the court should make aconsignation judgment or reject the public prosecution.