Of Criminal Litigation Principles Of Judicial Review

In China the principle of judicial review in criminal proceedings has not beenestablished, not to mention a complete system of judicial review. The control of thecriminal investigative power at present mainly depends on inspection andsupervision from the people’s procuratorate, while the people’s court should not getinvolved in the investigation. The real effect of this control is not all it could be, forit fails to perform effectively and tends to be easily misused. So far studies on thecontrol of criminal investigative power in academic circles have mainly focused onthe strengthening of procuratorial supervision, which was proved by the revision ofthe Criminal Procedure Law in2012. A systematic study of how to establish theprinciple of judicial review in the criminal procedure is yet to make.With the “protection of human rights” being written into China’s Constitution,how to protect the legal rights of the suspects and defendants becomes one of theissues the public concerns most. Till now the second revision of the CriminalProcedure Law has been completed, and the law has taken into effect since January1st,2013. Although plenty of highlights and progresses have been made in therevision, the principle of judicial review has still not been established. The lack ofthis principle has long been the cause of the unbalanced power between the threeorgans of the public security, the procuracy and the court, which further leads toserious administration of criminal investigation, high rate of detention, hugesquander of judicial resources as well as impossibility of protecting citizens’ legalrights and interests in the pre-trial phase. Should the principle of judicial reviewremains unestablished for a long time, it would not only do harm to the constructionof our country under the rule of law and the protection of human rights, but alsohave a bad impact on the image of Chinese government in the international community.Numerous difficulties in theory and practice lie ahead for the establishment of anew principle. Despite some scholars’ misunderstandings with judicial review in thecriminal procedure, problems exposed during the long-standing judicial practices areanother obstacle requiring to be overcome in establishing the principle. Based uponthe comparison and study of major western countries under the rule of law andChina’s practical situation, the author puts forward suggestions to establish theprinciple of judicial review in the criminal procedure and relevant systems in thehope that by doing so we can improve the litigation structure, optimize the balanceof powers, achieve the equality of the prosecution and the defense, protect thecitizens’ legal rights from the state power in the course of the proceedings, guaranteethe smoothness of the criminal procedure, and promote the construction of criminallitigation system under the rule of law.