Research On The Right To Apply For Challenge In Criminal Proceedings

The right to apply for challenge during criminal proceedings is a very important procedural right of the parties which is entitled by law when the case comes to trial. Exercise the right properly and effectively is significant to realize judicial justice, protect the parties'rights and interests, improve efficiency of judicature, and enhance public confidence in judicature. However, in our country, the provisions about the right to apply for challenge in the existing criminal procedure law and the relevant judicial interpretations are too rough to practice, which makes the right become a symbolic one in judicial practice. Therefore, in this paper, the author prepares to research on the right to apply for challenge in criminal proceedings with the view from the procedure of first instance. Starting from the interpretation of the right, the author investigates the relevant provisions about applying for challenge in foreign countries, reflects on the present condition of the right in our country, and then makes suggestions about how to perfect it. This paper is divided into four parts and amounts to more than 20,000 words.The first part is about the interpretation of the right to apply for challenge during criminal proceedings. This part contains the following three aspects: firstly, analyses and defines the meaning of the right. Secondly, traces the origin of the right, introducing the origin of the challenge system of western country and the emergence and development of the right in criminal proceedings in the history of our country. Lastly, analyses the basic value of the right to apply for challenge, pointing out that the right plays an important role in promoting the justice of judicature, protecting the rights and interests of the parties, improving efficiency of criminal procedure, and enhancing the public credibility of judicature.The second part is about the investigation of the foreign countries'relevant provisions about applying for challenge during criminal proceedings. In this part, the author analyses some representative provisions about the procedure of applying for challenge that is the subject who have right to apply for challenge, the period to apply for challenge, the decision on the application for challenge, the effect of the application and the way to relief the right, etc. By investigating on the above, the author tries to provide a valuable reference to improve our procedure of the right to apply for challenge.The third part is about the reflection on the present condition of the right to apply for challenge during criminal proceedings in our country. In this part, the author analyses the status quo in two aspects, the legislation and the judicature. First of all, it discusses the provisions about the right in our criminal procedure law and the relevant judicial interpretations. And then it analyses the reasons for the predicament of the exercise of the right in the criminal judicature, in which the author analyses the defects about the procedure of applying for challenge, resulting from the faulty design. So as to pave the way for the following part that discusses the way to improve it.The fourth part is about the discussion about the way to improve our country's provisions about the right to apply for challenge during criminal proceedings. In this part, the author puts forwards some tentative suggestions based on the discussion about the defects in the previous section. Specifically, these suggestions include the following: first, expands the extent of the subject of the right to apply for challenge. Second, establishes a special procedure for notification before the trial opens. Third, specifies the period to apply for challenge. Fourth, distributes the burden of proof reasonably. Fifth, changes the subject that have the power to make a decision on the application as well as the way to make the decision. Sixth, strengthens the legal effects and responsibility of the application. Seventh, properly designs the procedure for relieving the right to apply for challenge, etc.