Japan's Discovery System Research

Discovery originally belongs to adversary system.Under an adversary system,the basic idea of criminal proceedings is "due process",the court did not bear Burden of Finding Out.Both parties gather evidence to prove their points of view,since the prosecution and defense strength is extremely unbalanced,there is a need of Evidence Discovery to balance the strength of both sides.However,In inquisitorial criminal proceedings,investigation,the prosecution,the trial and other national power activities are governed by the terms of "entity verismo",not only investigative procedure is entirely controlled by the investigation judges and prosecutors,but also defense has a very limited right to evidence collection and preservation.The court has the responsibility of investigating all evidence,ensure to find out all facts among the scope of prosecuted fact.The result is not limited by range of both parties' proof in court.The defense is given the Right of Reading for preparing well for the trial,so it is believed that there is no need to set evidence discovery system.But the evidence discovery system,with its fair value and efficiency value attracted the attention of many countries,including Japan,who has the mixed mode of litigation.Although after World War II,in Japan's Criminal Procedure Law provides both sides should discover the evidence they had,the law is very vague and simple,just provides that as long as an evidence is prepared to be displayed on court by the prosecution or the defense,it should be inspected by other side in advance.During the Provisions of the Code of Criminal Procedure in 2004,the Disclosure process have been made major changes,formed a three-stage Disclosure system.In 2015 Japanese parliament passed the latest amendments to the Criminal Procedure Law,the revision also involves the evidence disclosure system reform,including the introduction of evidence list delivery system,expanding the range of Disclosure target,giving both parties of request rights for pretrial arrangement.This paper compares the old and the new Code of Criminal Procedure of Japan evaluates the amendments,then puts forward a number of places worth our reference.This article includes five parts.The first part briefly describes the concepts and values of Disclosure.Disclosure is a program which aims to prepare for the trial.During Disclosure both parties should show the evidence they collected to each other.Disclosure has fair value and efficiency value.Then by illustrating thedevelopment of the British and American Disclosure and France and Germany's Reading File Records system to explain under different legal systems the Disclosure has different manifestations.The second part describes the current situation and problems of Disclosure in Japan.In this section,highlights Japan's current provisions of Disclosure in Criminal Procedure Law.Japan's Evidence Discovery consists of three phases,namely,discovery of alleged facts relevant evidence, discovery of the item evidence and disclosure of issues relevant evidence.Then by analyzing current situation of Disclosure System points out the problems of Disclosure in Japan.The third part mainly introduces the amendments to the Criminal Procedure Law of Japan regarding the Disclosure.The section discusses problems in four aspects:the revision of ideas,revisions,evaluation to amendments and remaining problems.Finally the amendments introduced evidence list exchange, expanded the scope of disclosure of the type evidence, and gave parties the right to request pretrial arrangement proceeding, but didn't provide discovery in retrial phase.The fourth part introduces the current situation and issues of Disclosure in China.First,discusses the necessity and conditions of establishment of Discovery System,then describes Reading Right,the defense's obligation to Disclosure,pretrial conference and retrial procedure Disclosure,shows problems in Disclosure.Our marking rights body does not include the defendant and the marking right to counsel is limited; the scope of defense's Discovery shows too narrow;in practice pretrial conference is difficult to start; evidence disclosure in retrial procedure provision is not clear.In the fifth part,by learning from Japan's Disclosure System,puts forward a few recommendations of establishing and improving Disclosure in China.Refer to Japan's disclosure system, our country should establish the evidence catalog exchange and expand the scope of disclosure.Both parties should be granted the right to pretrial conference start request, and the discovery should be stipulated as a regular content of pretrial conference program. During retrial stage there should be discovery for new evidence and controversial evidence. In order to guarantee the progress of Discovery can be smoothly carry on,we should provided legal consequences when violation of disclosure obligations happens.