An Empirical Study On Hearing The Opinions Of The Victim When Examining A Case For Prosecution

In 1996,the criminal procedure law originally stipulated that the victim’s opinion should be listened on the period of examination and prosecution,and this requirement has been strengthened since year 2012.However,the procedure has been ignored and omitted in the past ten years.So It hasn’t been implemented perfectly.This paper will take the people’s procuratorate of S district in Guangdong province as the respondent, attempting to analyze the current situation and the course of formation about this problem,so as to finding the appropriate way to carry out the law,and realize the rigidity of the system.This paper is divided into three parts: introduction, body and conclusion. Besides the introduction, it is totally more than 37,000 words.The first part is an overview of the victims’ opinions listening.The law has been provided primitively that the prosecution should care about the victims’ advice in 1996,and in2012,it further refined that the victims’ verbal advice should be recorded,and their written comments should be on file.In the meantime,“the people’s procuratorate criminal procedure rules” has refined its provisions on this problem.These old and new provisions reflect that our legislation attaches great importance to it.However,there’s no clear stipulations about time,content and legal consequences when failing to complement the obligations.The lack of systemic operational specification,leading to a difficult and mixed practice.The significance of this procedure is:Firstly,it reflect the procedural justice, and ensure the victim’s right of knowledge and participation as a litigation subject;Secondly,it promotes the prosecutor’s comprehensive affirmation on the cases,and can secure the justice of the prosecution and not-to-prosecute decision;Thirdly,it can reduce unnecessary complaint, petition, and enhance the credibility of the not-to-prosecute decision;Finally,it will be helpful of improving the efficiency and benefit of lawsuit, and optimizing the rational allocation of judicial resources.The second part observes the current situation of the victims’ advice hearing.From the practice of the people’s procuratorate in S district we can see the work of opinions-listening has been overlooked for the most part and has large arbitrariness,varying from case to case and from person to person.The victim also ignores the right to suggesting.Scarcely no one has filled the blanks of “the form of hearing the victim’s opinion”.Combing with the results of interview,I understand that the victim’s opinion statement is passive and has no substantivecontent.This situation is common caused by multiple reasons,mainly including:the first is the one-side victim’s right protection;the second is the difficulty to implement the victim’s right to obtain counsel;the third is the content of the suggestion should be normalized.For the case that the victim has put forward the views,on the one hand the channel of the opinions adopting and solving is not smooth,and the victim can not participate in this procedure,on the other hand due to the lack of the confirmation mechanism about the effect of advice-listening that the opinions of the victim are difficult to be accepted.In the practice of the people’s prouratorate in S district,prosecutors hardly record even the reasonable opinions of the victim,and if the victim’s advice is improper, some prosecutors are impatient to explain the law and tell the reason.In general,the victim’s suggestion is to a large extend to be regard as the invisible “proof” of the case, just taking a small role.The third part is an exploration of improving this procedure.Firstly,endowing it with rigidity. To realize this target,the most powerful measure is to promote the formation of the strong “shield” in both idea and system.One side,we need to strengthen the internal self adjustment,simultaneously promoting the mechanism of supervision,appraisal and communication,so as to eliminate the obstacles that the wrong concept of law enforcement applied to the procedure.For another,we should construct a external mechanism to control it,especially endowing the court with the power of returning the case to implement the“follow-up”supervision.Through a two-pronged approach to realize the rigidity of the procedure,and make sure each victim’s advice can be heard in each case.Secondly,we should promote that the victim can fully state opinion:in the first place,we should do our best to guarantee the victim’s right to know;in the second place,we need to advance the victim’s right to counsel;in the third place,we need to norm the content of suggestion,make it legitimate,reasonable and comprehensive.Thirdly,constructing the confirming system of the advice-taking program.Through the perfection of the prosecution and non prosecution decision progress to smooth the channel of adopting and resolving.Meanwhile,we should implement the confirm mechanism of the advice-listening procedure.After asking for the opinion of the victim,the prosecutor should records and adopts the reasonable suggestion,explaining the law and telling the reason if there are some improper requirements.