Researches On Criminal Preparatory Procedures Of Taiwan

Taiwan sharply revised "criminal procedural law" in 2003, and established lawsuit system for improved adversary system. In order to bring the effect of litigation of improved adversary system into play and enable the first instance of criminal case become a decisive trial of fact, criminal preparatory procedures became an indispensable supporting system. The current criminal preparatory procedures in Taiwan had substantial content and completed function, which laid a solid foundation for centralized trial and rapid judgment. The effect of practice was good. In 2012, after Law of Criminal Procedure was revised in China mainland, pretrial preparatory procedure was also improved. "Chinese-style" pretrial conference system was established, which reasonably used part of pretrial preparatory procedure under adversary system for reference. Nevertheless, for the overall present situation of pretrial preparatory procedure in China mainland, there were still many issues, such as short-handed independent status, unknown legislative level, disordered practical problems, and other issues. In this regard, the study of legislative norms and operational situation of practice of criminal preparatory procedures in Taiwan could provide useful reference for the further improvement of pretrial preparatory procedure in China mainland, so as to bring the due value of pretrial preparatory procedure in China mainland into full play.This paper was divided into four parts, about forty thousand words. Specifically:The first part was the basic theory of criminal preparatory procedures in Taiwan. From the theoretical point of view, this part introduced background of construction, basic connotation and specific functions of criminal preparatory procedures in Taiwan. The construction of criminal preparatory procedures in Taiwan had profound background: on the one hand, after the lawsuit system of improved adversary system was carried out, the criminal trial needed to realize the goal of centralized trial and bring the effect of improved adversary system into play; On the other hand, in the past trial practice, criminal preparatory procedures only acted as the replacement of procedure of court trial, its function wasn't brought into play, and didn't achieve independent status. The basic system of criminal preparatory procedures in Taiwan contains three levels: court notice, monition and other procedures, pretrial conferences and the investigation and preservation of evidence. Generally speaking, there are four specific functions of criminal preparatory procedures in Taiwan: Splitting case, sorting out the point of contention, selecting and preserving evidence.The second part was the analysis of norms of criminal preparatory procedures in Taiwan From the legislative point of view, this part analyzed matters of preparation, main contents, and evaluation of legislation on criminal preparatory procedures in Taiwan. Matters of preparation of criminal preparatory procedures in Taiwan generally contained presiders and participants who determined preparation procedures in court, and the obligations of notification and monition to perform the date of preparation. There were two core contents in criminal preparatory procedures in Taiwan: pretrial conference, and the collection and preservation of evidence. The content of pretrial conference mainly contained the following matters: whether defendant, agents and defender made plea of guilty, whether summary procedure can be applied, the important point of contention of case and evidence, the opinions of relevant evidence ability, scope, sequence and methods of evidence investigation, and other matters; the collection and preservation of evidence mainly contained the following matters: presented or commanded to take out evidence before trial, accepted the evidence presented by client or defendant, processed search, seizure and inspection, and other matters. In summary, the superiorities of criminal preparatory procedures in Taiwan were: relatively independent status, focusing on concept of program, explicit participants' rights, informative and detailed content, and explicit legal validity. But in the direction of development, criminal preparatory procedures in Taiwan can consider to vest the right of the application of starting procedure for defendant, induct system of evidence preservation, adjust system of evidence perpetuation, and further enhance the legal effect of preparatory procedures.The third part was the practical operation of criminal preparatory procedures in Taiwan From the practical point of view. This part studied the mode and effect of practical operation of criminal preparatory procedures in Taiwan. In practical operation in Taiwan, it was common for commissioned judge to preside preparatory procedure. But for the case which was particularly complex and had social influence, all the judges from collegial panel would participate in preparatory procedure generally. Processes of specific operation of the court: the prosecutor stated gist of prosecution first, the judge practice the obligation of right-informing, whether defendant admitted guilt, sorted out point of contention, the judge interrogated the defendant whether to present evidence for investigation, notified to apply evidence of investigation, processed scope, sequence and methods of evidence investigation in trial, and formulated plan of inquisition. Criminal preparatory procedures in Taiwan has made relatively good effect in practice, the number of acceptance and end of cases of local court was rising simultaneously, judges' average handling time was shortened, and the rate of retention of appellant of criminal cases was increased. But there were some issues in the concrete operation process of criminal preparatory procedures in Taiwan, such as defenders' insufficient participation, judges' smaller authority, and other issues.The fourth part was the enlightenment of criminal preparatory procedures in Taiwan on China mainland. In accordance with the present situation of pretrial preparatory procedure in China mainland and the reference of relevant legislation and practical experience in Taiwan, this part brought forward proposals of reform. Shortcomings of pretrial preparatory procedure in China mainland were as follows: short-handed independent status of pretrial preparatory procedure, disordered levels of legislation; unknown mode of convocation in pretrial conference and people for participation; not substantial topic in pretrial conference, weaken efficacy; short-handed system of perpetuation of evidence. In this regard, based on actual situation, China could use related experience of legislation and practice in Taiwan for reference, and carry on the following reforms: adjust status of legislation preparatory procedure; definite the mode of convocation and people for participation for pretrial conference; expand and definite the scope of topic for pretrial conference; intensify the legal effect of pretrial conference, especially intensify the exclusion of pretrial illegal evidence; and establish system of perpetuation of evidence in addition.