Study On Judges’ Investigation Right In Criminal Process

China, as one of continental law system countries, upholds the traditionalprinciple of pursuing entity truth. As there appear conflicts and gaps betweenprosecution and the defense in the court of judicature, and there is no way to eliminatesome reasonable doubts, judges are empowered to go out of the court to investigateand verifying the evidence. Overviewed from the historical changes of criminalprocedure system in continental law system countries like Germany, France and Japanand so on, all of them regulate the investigation right of judges to some degree. Owingto the effect of traditional litigation and litigation reality having the main body ofunitary court hearing, investigation right of judges is still protected after the latestprocedure criminal law is revised.Investigation right of judges, representing an option of pursuing legislation valueof substantive justice, means that judges as the adjudicator, for the smooth progress ofaction, according to the client’s application and the authority of function and power,make evaluation and alternatives as to the evidentiary material that the two sidespresented in the courts. The investigation right can be divided into investigation incourt and the investigation right out of court. The later one has much greaterrandomness and is not easy to be supervised, which has a great conflict with thejuridical philosophy of judges, being passive and neutral and exclusively takingjuridical function Modern criminal judicial philosophy asks for the equal confrontation andcounterbalance, and judges as the passive and neutral judicator independently executecriminal jurisdiction. Although investigation right of judges are helpful in realizingfairness, improving procedural efficiency and increasing the acceptability ofadjudicating, it breaks the image of neutral judge, violates the fairness of procedureand there exist a lot of problems in jurisdiction practice. In2012procedural lawwelcomes the second great amendment, which still keeps this system. This paper isbased on the research foundation home and abroad, proceeding with the security andperfection of the lawyers’ right in the new procedural law, taking the relation betweenresponsibility and investigation of judges as the break gap, and it makes procedureregulations of this right from perspectives like investigation object, investigation waysand cross-examination mode, aiming to improve and perfect the investigation right ofjudges.The first part discusses the fundamental theoretical questions of investigationright of judges, including the necessity of the study on system of investigation right ofjudges in the background of the amendment of new criminal procedural law and theconcept definition and characteristics of such right.The second part is based on the elaboration of qualities of investigation right ofjudges, and makes statements about the value of this system. Although the criminalprocedure law after amendment is more perfect in ensuring the right of defendants andlawyers, the prosecution and defense can not make equal confrontations. In such aprocedure reality and the traditional principle of “pursing entity truth”, the system hasits reasonability and positivity.The third part mainly makes a comparative study of investigation right of judgesin state’s criminal process in China and western countries. Based on introducingrespectively the general situation of investigation right in state’s criminal procedure incontinental law system countries, Anglo—American law system countries andmixed mode countries, after comparisons among them, this paper figures out kinds ofdrawbacks existing in this system in China.The fourth part is the focus of this paper. It mainly states the improvement measures of the system of investigation right of judges. The paper, through definingthe object, strategies and investigation ways and cross-examination way of theinvestigation right, combing with the principle in the amendment of procedural law,with the application of defense as primary and judge’s investigation in accordancewith authority as secondary, and prosecution having no application right, expects toperfect the system of investigation right of criminal procedure and brings benefit tothe criminal process in China.