Study Of The Main Substance Of The Issue Of The Criminal Trial

In recent years, the theoretical circle shows more enthusiasm in the substantial criminal trial problems. However, it was more from the perspective of the trial manners reform on trial substantial. It seems that the substantial trial can be ture as long as the court confrontational be enhanced, the rules of prejudge exclusion be implemented, and the principle of direct words be implemented. However, if trial organizations have no jurisdiction, the members of the trial organizations need to report to the presiding judge, the chief justice or a higher court before judge, the court still is a show, and the substantial trial is an illusion. To achieve substantial trial, we must realize substantial trial subject. Therefore, this article studies the substantial trial subject,and expect to have a benefit to perfect the substantial trial through this article research.The full text is divided into four parts, about 40,000 words.The first part research on the basic theory of criminal substantial trial subject. This section sets out the main concept of criminal trial subject and the basic requirements of criminal substantial trial subject. Criminal trial subject are the individuals or organizations who exercise criminal jurisdiction in accordance with the law and carry out the functions of criminal justice. The concept of criminal trial subject is a hiberarchy concept can be divided into 3 levels: the abstract trial subject, the specific trial subject and the individual elements of trial subject. The abstract trial subject is court, the specific trial subject is trial organizations, the individual elements of trial subject is judge. The basic requirements of criminal substantial trial subject include: Firstly, the criminal trial subject independently own and exercise the criminal jurisdiction. Because Criminal jurisdiction is the main fundamental empowerment of the criminal trial subject. Secondly, the criminal trial subject should combine inquisition to judgment. The criminal jurisdiction includs inquisition and judgment two elements, both of which are an integral part of the criminal trial subject power can not be artificially separated, so that inquisition and judgment must be an unity. Finally, the criminal trial subject consolidate powers and responsibilities. The social function of the criminal trial subject exercise its criminal jurisdiction , as well as the public power attributes of criminal jurisdiction decide that the criminal trial subject is necessary to exercise judicial power, and also to assume responsibility for the trial.The second part analyse the status of the criminal trial subject. In our country, many external and internal factors of the judicial organization lead to the virtual situation. Firstly, external factors of the judicial organizations include the system that the cases submitted to the Superior Court and the system that the cases asked the presiding judge. The system that the cases submitted to the Superior Court lead to a higher court judges exercise jurisdiction instead of lower court judges. It is contrary to the trial-level system, and the lower court judges lose independence. The system that the cases asked the presiding judge lead to the presiding judge decide the results of court through the audit instruments on the issue of referees , and bring the tremendous damage to the quality of cases. Secondly, the judicial committee of Chinese characteristics trial organization exercising jurisdiction leads to single court and the collegiate bench virtual. The judicial committee discuss the cases of a very wide scope, and judges often submit cases to the judicial committee, so the judicial committee is often used by judges to shirk its responsibility. The judicial committee appointments are often linked with the job, these members are not accomplished in general business. They determine the fortune of the defendant by the secret and unilateral meeting, so at last, they can not guarantee the quality of cases. Finally, the case undertaker system, the people's jury system and imperfect collegiate bench appraisal system, lead to the subject status of the members of trial organization virtual. The direct result of the case undertaker system is collegiate trial formalization, because the case judgement has become undertaker's power and responsibility. People's jurors accompany without trial and discussion, and often do not fully play its due role in the judicial democracy in the trial activities, so become the display for decorating democracy which is named "foil member". The third part search for the reasons why we failed to achieve criminal substantial trial subject from the problems of the practice. First of all, the most fundamental reason is that the principle of judicial independence has not been fully established, led to the trial subject can not exercise jurisdiction. China's judicial independence has a gap with international standards: the judge failed to have independence, judges tend to leader or collectivity decide the cases, so the system of instructions report in case, the system of approval in case and the judicial committee have living space; court has insufficient independence, which lack of political independence in state institutions. Judicial independence is imperfect, directly led to the jurisdiction was divided, and the trial subject is difficult to have awareness and behaviour to maintain judicial independence. Secondly, the court administrative system lead to the trial subject unwilling to exercise jurisdiction. The administrative relationship between the lower courts and higher courts lead to the supervised relationship becoming the leaded relationship, the lower court deal with cases in accordance with the opinion of superior court as the administrative order relationship, the system of approval in case was further fixed; administrative justice system bring the result of the administrative system jeopardising the function of trial, the court of a typical bureaucratic mode of administration, the system of instructions report in case was further fixed. Finally, the unreasonable responsibility of misjudged case lead to the trial subject not dare to exercise jurisdiction. Misjudged case is difficult to define clearly, in practice misjudged case was commuted the case which is need to try again or result is altered. So that the judges assume tremendous risk, in order to reduce risk, seeking shelter has become a realistic option. The responsibility of misjudged case aims at undertaker, so exceptant judges and people's jurors have no sense of responsibility.The forth part discuss system reconfiguration of the realization of criminal substantial trial subject. Firstly, reconstruct background system, because this is the prerequisite for the realization of criminal substantial trial subject. This need to address three issues: Firstly, improving judicial independence, including that enhance collective degree of independence from the court and establish individual independence of judges. Secondly, taking out the administrative court system, including that cut off administrative relation between the superior and lower court to protect their supervision; in the court, stress that the administration of services, highlighting the trial work in the Court of the centre. Thirdly, establishing a scientific judge disciplinary system. We should completely cancel the results standard, instead, establish conduct standard, and develop detailed disciplinary rules. Afterwards, reconstruct specific system, which is the inevitable requirement for the realization of criminal substantial trial subject. To this end, we need to do a good job in the following three aspects: Firstly, abolish the system of instructions report in case and the system of approval in case to return power to trial organization. A higher court can only supervise the lower court through the trial-level legal system; the specific measure to abolish the system of instructions report in case is that cancel the Magistrate instruments authority. Secondly, cancel the jurisdiction of the judicial committee. Trial organization form can only be single court and the collegiate bench. We should focus on improving the quality of judges, rather than designing the system that avoid the low quality of judges. Thirdly, reform the case undertaker system and the people's jury system to ensure that the powers and responsibilities of equal members of the collegiate bench. We should change the roles and responsibilities of the undertaker and establish new assessment mechanism and accountability mechanism; the people's jury system reform needs to solve empanel problems, improve the rules of duties, exert jury's function and define work protection; in addition, it is necesarry to perfect procedures of collegiate bench appraisal, and establish detailed rules of deliberation, so that exceptant judges and people's jurors can also have enthusiasm and sense of responsibility to participate and deliberate, and ultimately ensure the all members of the collegial bench to deliberate equally, state fully, vote independently and assume responsibility jointly.