Balance Study, The Prosecution And The Defense In The Criminal Proceedings

In criminal proceedings, the prosecution has a strong backing of national resources, so power between the prosecution and the defense is inequality. To a certain extent, the gap between the prosecution and the defense forces determines the final outcome of the proceedings, and if it isn't be twisted by a balancing mechanism, that will greatly affect the fairness of criminal proceedings. Therefore, the equilibrium between the prosecution and defense is the eternal pursuit of criminal proceedings.The two aspects of equilibrium between the prosecution and defense are equality of arms and cooperation. Equality of arms requires both parties in the litigation have equal legal status and equal offensive and defensive means. Taking into account of the strength gap between the prosecution and the defense, in the distribution of rights and obligations, equality of arms tends to the defense. Prosecution and defense cooperation means that the defense can use his rights freely and control his own destiny to some extent.The equilibrium between the prosecution and defense is the product of evolution and development of the criminal procedure model. On the other hand, the concept and practice of the accuser-defendant balance play a positive role in developing the patterns of criminal proceedings and optimizing the structure. Because of their culture, the two legal system have different value on the accuser-defendant balance. The common law system pursues the adversary, so it emphasizes the protection of the defense's rights. The civil law system tends to limit the power of the prosecution in order to protect the rights of the defense. But they all develop in the direction of establishing the accuser-defendant balance.The values of the accuser-defendant balance are elucidated with at least the following our items:optimize the structure of litigation, to identify cases of truth, present the equality of the procedure and protect human rights. The revision of Criminal Procedure, to a certain extent, reflects the idea of the accuser- defendant balance. It is manifested in:the presumption of innocence has been initially established; the defendants have the right to counsel; the prosecution way have been improved to prevent the judge prejudgments; adversarial mode of trial have been introduced. But China's criminal procedure did not achieve a real sense of the prosecution and the defense balance:the presumption of innocence on the original meaning has not been established; coercive measures are lack of effective supervision and restriction; the right to defense counsel is severely limited. I believe that the focus on accountability for crimes and negligence of legal rights of the defense and supervision function of the People's Procuratorate are the main cause of imbalance between prosecution and the defense.I believe that we should be based on the concept of the accuser-defendant balance to improve the system of criminal procedure. For example, we should reposition the role of the People's Procuratorate in order to prevent judge bias; we should clear the presumption of innocence to establish the defendant' dominant position; we should strengthen supervision over the coercive measures to protect the legitimate interests of parties to be prosecuted; we should protect the right of the defendant's request for the investigation of evidence; we should establish evidence presentation system to balance the gap of the prosecution and the defense in obtaining evidence; we should enforce the cross-examination rule strictly, so that both parties in court proceedings have equal participation to express their views. Through this series of measures, the power of prosecution and the defense will be balanced.