China Prosecution And The Defense Relationship Development Trend Of Visits

Generally speaking, modem criminal procedure, with Presumption of Innocence and due process as its basis, usually displays the adversarial situation between the prosecution and the defense. But it should be noted that various forms of cooperation between the two sides has become a kind of noticeable judicial tide in recent years on a worldwide scale. As to the adjustments and changes of Chinese criminal procedure, it is also closely rooted in the background of the worldwide tendency. On the one hand, in order to achieve the modernization of the criminal procedure, the overall reform has been strengthening the confrontation between the prosecution and the defense. On the other hand, Chinese criminal procedure recently begins to show the seeds of cooperation between the two sides. However whether the confrontation or the cooperation in Chinese criminal procedure is still in the process of adjustment. So it's significant to explore the development and trends of the relationship between the prosecution and the defense in China from the perspective of the confrontation and the cooperation.This thesis has four sections besides an introduction.In the first section, the author determines the subjects of the thesis after analyzing the definition of the confrontation and the cooperation in modem criminal procedure. The definition of "confrontation" could be understood from general viewpoint or specific viewpoint. Therefore "confrontation" concerning the criminal justice may refer to the model of the criminal procedure or the specific activity between the prosecution and the defense. In general, though the classification of adversarial system and non-adversarial system in some way reflects the different way of the criminal proceedings, the way of the criminal proceedings in different legal systems is no doubt merging gradually. However from the specific viewpoint, the confrontation between the prosecution and the defense is common in the criminal proceedings of different countries. Based on the clear definition of the "confrontation", the author brings up new categories regarding the criminal justice system: "adversarial justice" and the counterpart "cooperative justice". The second section minutely examines the "confrontation" in Chinese criminal procedure and emphatically points out the defects. The author firstly discusses the basis and the manifestation of the confrontation in the criminal procedure. It agrees that the confrontation not only has the profound political, philosophical and legal basis, but also displays some specific traits. These points usually consist of four aspects: the establishment of Presumption of Innocence, the judicial control of the prosecution, the necessary rights entrusted to the defense and the founding of the system instrumental to the confrontation. According to the said points, it can be found that the confrontation in China has been preliminarily shaped. But there are also obvious defects. Firstly, Presumption of Innocence hasn't been really established. Secondly, the power of the investigation is still short of proper control. Thirdly, there are a lot of problems about the rules and their administration relating to the defense. Fourthly, the rules about the proof and testimony couldn't ensure the balance between the defense and the prosecution. Fifthly, the prosecution still has great preponderance over the defense in the period of the trial.The third section discusses the causes of the cooperation in modern criminal procedure and pays more attention to the forms of the cooperation between the prosecution and the defense in China. The challenge against the criminal justice and the change in the notion of it are two main causes to drive the appearing of the cooperation in the criminal justice. Of course, the cooperation in Chinese criminal justice is also closely connected with the said causes. The emergence of the cooperation between the prosecution and the defense in China is reflected by various forms such as immunity of witness, conditional suspension of prosecution, summary trial based on the pleaded guilty by the defendant, Chinese-style plea bargaining and criminal reconciliation. However, these forms of cooperation may be attributable to the practice of innovation rather than the formal rules.On the basis of the judging that the relationship between the prosecution and the defense in China will manifest twofold tendency, the fourth section puts out the specific ideas and suggestions centering on the confrontation and the cooperation. Aiming to protect the human rights and to advance the rationalization of the criminal procedure, it's necessary to properly strengthen the confrontation between the prosecution and the defense from six aspects. First, Presumption of Innocence should be completely established. Second, the power of investigation should be strictly regulated. Third, it's vital to properly define the status and power of the prosecutor. Forth, the rights of the defense should be added and guaranteed. Fifth, the pre-trial preparation procedure should be developed. Sixth, the trial reform should be furthered. At the same time , in order to respond to the needs of judicial practice, China should introduce formal rules relating to the cooperation. These rules should include immunity of witness, conditional suspension of the prosecution, criminal reconciliation and summary trial based on the pleaded guilty by the defendant.