Research On The Right Of Confrontation In The Trial

As a procedural right, the right of confrontation is listed in the constitutional right as a basic defense right of citizens in a criminal trial by the United States and the vast majority of European countries. With long-term development and evolution, the right of confrontation becomes more adequate as procedural defense in protecting defendants in their criminal charges and plays a important role in promoting the protection of the rights of criminal defendants. As a method of investigation of evidence in the criminal trial, the right of confrontation, under the requirements of due process, provides a great way to discover facts in the case in which the facts are not clear or controversial. Therefore, the right of confrontation fully meets the two requirements of discovering facts of the case and protecting the basic right in the court. To the values of the criminal litigation, the mature and well developed foreign experiences on the right of confrontation show us three points:first, it achieves a fair trial and prevents the government abuse of rights or power; second, it strengthens the confrontation in court and promotes the quality of the trial process; third, it guarantees the legal rights of the accused and improves judicial authority and credibility. Due to the profound influence of authority principle of judicial tradition in criminal procedure, the right of confrontation has not drew enough attention in the criminal judicial practice of our country, sometimes even the confrontation the defendant presented against unfavorable witness in the trial is ignored in the court. There is no doubt that the defendant is concerned with fact-finding and legal judgment in court, therefore, different results of fact-finding and legal judgment will bring diverse effect on the freedom, security of property and the irreplaceable lives of defendant. Therefore, criminal proceedings should ensure the defendant an effectively participation in all process and stages of criminal trial, because providing defendants opportunities for participation is the only possible way for them to affect the criminal trial. The right of confrontation is not only an important way for defendants to further participate in the trial of the case, but also a vital design to promote the confrontation during the trial. Given the right of confrontation to the defendant in first instance, second instance and retrial is an effective way to avoid the adjudication of the case in the "files center doctrine", which will bring change to the negative situation when the defendants and his lawyers face the prosecutor’s unilateral testimony against them in the court. Meanwhile, it also prevents judges from making wrong decision by listening the prosecutor’s unilateral testimony only. Historical experiences remind us of the fact when the testimonies encounter with violence, threat and intimidation, their authenticity cannot be guaranteed and eventually misjudgment is inevitable. Each time of wrong sentence correction produces lasting harm on the judicial credibility and also arouses negative public opinion. Therefore, more attention paid to the right of confrontation in the trial fit the current "trial center doctrine". Based on the foreign study of the right of confrontation, this dissertation points out the defect and shortcoming of Chinese criminal procedural law by analyzing the characteristics of the area in the United States, Europe and Taiwan and combining with the related laws, regulations and cases of China. Based on what argued above and the reality of Chinese judicial status, the dissertation makes some beneficial exploration on the establishment of the right of confrontation in China. The dissertation includes five parts:The first part, firstly, the dissertation starts with the description of a basic problems of the right of confrontation to clarify the conception and content of the pledge and the right to cross-examination. Then the dissertation analyzes the two forms of the right of confrontation:first, it is a form as a method finding legal facts; second, it is a form as a constitutional right. Secondly, the dissertation explores the beginning and the development of the right of confrontation by researching the changing history of it.The second part introduces the development process and the status of the right of confrontation in the three regions, including the characteristics of he right of confrontation in America as a typical representative of the Anglo-American law system, the features of related cases in the European Court of Human Rights on behalf of the European continental countries and the development of the right of confrontation in Taiwan area. Considering the history of criminal procedure and the cultural traditions of Taiwan are similar to China, Taiwan’s experience on the right of confrontation is a important reference to China.The third part points out the problems in confront system of our country by analyzing and comparing the differences in dealing Wang Yuansong case according to the laws of the three countries or area. Through emphasizing the special procedural value of the right of confrontation, the dissertation pictures out the future of the right of confrontation in the criminal trial.The fourth part, by analyzing the difference in the right of relatives exemption privilege between the case of Crawford and Bo Xilai and on the base of laws of China, the dissertation reveals the reality of the system and its problems in China.The fifth part, based on the former four parts, indicates the prospects of the right of confrontation in Chinese future criminal trial by concluding the possible condition of the establishing and growing of the right of confrontation in our criminal trial.