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Research On Pre-trial Review Procedure In Criminal Case

Posted on:2013-02-17Degree:MasterType:Thesis
Country:ChinaCandidate:R R WangFull Text:PDF
GTID:2246330371979616Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The theme of this thesis is the Pretrial Review Procedure in Criminal Case. ThePretrial Review Procedure in Criminal Case refers to the court review the indictmentafter receiving it from the procuratorial organs before the formal trial, to remove theunfair prosecution, guarantee the human rights of the accused and improve trialefficiency and quality.Throughout the major countries of the two major legal systems, Pretrial ReviewProcedure corresponds to the pretrial proceeding or intermediate procedure in theirCode of Criminal Procedure. The Pretrial Review Procedure has three mainfunctions: the first one is the judicial review of public prosecution to protect thehuman rights of the accused; the second one is the organization of both sides forevidence discovery to guarantee the defender’s evidence prophet right; the last one isthe case shunting procedures to improve the efficiency of lawsuit. But as per thePretrial Review Procedure in Criminal Case in our country, in order to prevent thepretrial prejudge of the judges and ensure their neutrality," Code of CriminalProcedure " in1996were substantially revised on the program. As a result, in alegislative setting, the Pretrial Review Procedure is not an independent procedurewhich connects the independent prosecution and trial procedure, but the one attachedto the pretrial preparation procedures that erases the independent value of theprocedure. In the judicial practice, Pretrial Review Procedure is only to carry out theform examination on the procuratorial agency’s indictment and the copy of mainevidence, the picture and so on; lacks the legal function of examination on thesubstantive judicature. In the pursuit of value, since the most of the evidenceprocuratorial organs pretrial provides is to prove the prosecution of persons guilty,the legislative intent to exclude judge Pretrial prejudge has not been achieved.After a preliminary study on Pretrial Review Procedure, the author has suchdoubt: Why our Pretrial Review Procedure can not play the function of inhibition ofthe public prosecution? Why the modified Pretrial Review Procedure becomesformalized and void? In order to remove the doubt, the author uses a research method of comparative analysis, comparing Pretrial Review Procedure in China andthe US’s preliminary hearing procedure and grand jury proceedings, England’s publicsecurity judge the preliminary hearing system and Germany’s middle procedure,Japan’s petition of appeal principle the French pre-trial procedure. The authorconsults a number of prominent scholars on the Pretrial Review Procedure, analyzesthe judicial present situation of this procedure deeply and draws on the researchresults of the pilot reform of some of our District Court. The author thinks that thecurrent Pretrial Review Procedure should be reformed by stages on the basis of thelegislation and the judicial practice in our country. Therefore, the author takes theopportunity of the introduction of the2012amendment to the Code of CriminalProcedure and raises the conceive of reforming Criminal Pretrial review programand improving the supporting measures.In this article, the method is to write deeply step by step, pointing to five parts.Part1, focuses on the Concept of China’s development status of the Pretrial ReviewProcedure, clearly defines the theme of the exposition, and expounds the necessityand feasibility of the reform of China’s Procedure. Part2, uses the method ofcomparative method, highlights of the features and legal value of the program by theCriminal Pretrial Procedure extraterritorial visits. Part3, with the doubt why ourpretrial review procedure cannot function like foreign examination procedure, theauthor analyses the reason of the function loss of our pretrial review procedure, andfinds out a direct and two indirect causes of the program function lack. Part4, theauthor reforms the pretrial review procedures from the following five levels, its startand the applicable scope, examination content, examination way, operation results,relief mechanism. Part5, program reconstruction needs to perfect the existing filingprocedure and the judge independent two supporting measures, in order to makeChina’s pretrial review program play its due legal value.
Keywords/Search Tags:Pretrial Review, Pretrial Judge, Judicial Review, Procedure Reconstruction, Supporting Measure
PDF Full Text Request
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