Font Size: a A A

Pretrial Procedure And Perfect

Posted on:2011-10-28Degree:MasterType:Thesis
Country:ChinaCandidate:G J XiangFull Text:PDF
GTID:2206360305479766Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The courts examine the cases prosecuted by procurator ate to decide whether there are any abuses of power and whether there is enough suspicion to initiate the trial process, such process is called as pretrial examination process. The name of the process differs from many countries, however, we could treat them as the same process since their functions and goals are relative identical.In order to prosecute the crimes, prosecutors will file the cases to the courts so as to decide whether the suspects have committed any crimes. The process is important and critical. Although the suspects may be innocent,this tediously long trial process itself means a kind of punishment, since they will be inflicted from the torture and pressure caused by the process, which can't be described by words. Therefore, it is a pivotal subject how to protect the suspects from abuses of prosecution and needless burden, thus suspects can extricate themselves from the unreasonable process. To be specific, the significance of the pretrial examination process lies in the following aspects: first, restrict the prosecutors'powers for the sake of eliminating abuses of power; second, make the cases diverge into different processes so as to allocate the resources reasonably; third, provide necessary preparations for the trial process.In the worldwide, many countries have their own pretrial examination processes. In France, it is called as preliminary hearing system; in Germany, it is called as intermediate process; in England and USA, magistrates and grand jury assume the responsibility as pretrial examination; while in Japan, there is no real pretrial examination system because of the"exclusiveness of the bill of prosecution". The differences embodied in these systems are the values lying in them, the startup, time, body, and the criterion of the process.The criminal procedural law revised in 1997, contrasted to the former one in 1979, cancels the requirement of filing all the dossiers to the courts; furthermore, the standard is not as high as the one of"the fact is clear, the evidence is sufficient". It is of sense to exclude the prejudgment and prompt a more adversarial system, however, many problem have exposed from daily practice. First, it is not effective to restrict the prosecutors'power; second, judges are prone to have a"distorted prejudgment"; third, defendants can't take part in this process at all; fourth, the effectiveness of the process is in question.Faced to those problems, we should take the pulse and prescribe some medicine to the current pretrial examination process when the criminal procedure law is being revised. The system of"exclusiveness of the bill of prosecution", which was denied in 1997, become hot issues, since it is good to exclude the prejudgment completely, make the trial process more adversarial trial and take better advantage of principle of directness and argument. Nevertheless, we should remember that Japanese system of"exclusiveness of the bill of prosecution"have also paid a price, for example, the prosecutors'powers are free of restrictions, the defendants can't acquire any evidence from prosecutors and the effectiveness of defense is not satisfactory, moreover, it lead to a trial with longer period and heavier litigation burden.In light of this concern, we have to rethink about the system of"exclusiveness of the bill of prosecution". By analysis, I found that the system of"exclusiveness of the bill of prosecution"is just one of many ways by which we can prevent pediments, rather than a panacea. In deed, in Germany where prosecutors file all the dossiers to the courts, it is still possible to keep judges from prejudgments by certain means. In addition, in light of our own national conditions, the system of"exclusiveness of the bill of prosecution"will have little benefits to abuses of powers and overburden of the courts.Consequently, I conceive a set of moderate suggestions for our pretrial examination process. First, we should change the startup methods of"no denial to prosecution"and endow the judges with authoritative power to decide whether or not to initiate the trial process. Second, we should appoint a independent pretrial judge who will solve the incident issues before trial. Third, the principle of comprehensive review is not suitable in pretrial examination process; it should be reviewed in written form mainly and in speech form secondarily; it is also essential to recognize the reality and necessity of the substantive review in this process. Finally, in terms of the manner of review, we have to expound the article 117 of the judicial interpretation provided by the Supreme Court.
Keywords/Search Tags:Examination of the prosecution, pretrial examination process, exclusiveness of the bill of prosecution, pretrial judge
PDF Full Text Request
Related items