The Study Of The Power To Investigate Outside The Courtroom By Judge In Criminal Proceedings

As the important extension of the trial function of the judges,the power to investigate outside the courtroom by judge is a special power to help judges to find out the facts of cases and to make the right decision.The discussion about whether the power to investigate outside the court room by judges should exist is a hot issue which is discussed in jurisprudential circle all the time.The power to investigate outside the courtroom is generally regarded as the representative of the inquisitorial system,it often exist in civil law countries.Before new criminal procedural law has been issued,the judges in our country had the absolutely dominant power of the court trial.The power to investigate outside the court room emphasizes more on supplementing investigation.The color of authority is more strong.In the process of the 96 criminal procedure law being modified,a large number of positive factors of the parties is absorbed,the trial status of the prosecuting and defending parties was promoted.To a certain extent,the judges' initiative was reduced,and the auxiliary function of the trial is more outstanding.The new criminal procedural law issued in 2012 basically continues the provisions about the power to investigate outside the courtroom by judges which was stipulated in the criminal procedural law issued in 1996.It just enriched the means of evidence investigation outside the courtroom.Thus it can be seen,the legislation is not only preserves the power to investigate outside the courtroom by judges,it also is not only be preserved by legislation,it also be limited and perfected.The main reasons are:in one hand,if the judge has the power to investigate evidence outside the courtroom,it be better for him to find out the truth.In other hand,to allow the judge investigates evidences out of court can make up the disadvantage of evidence obtained for the defense.However,for the reason of the lack of legislation about the power to investigate outside the courtroom,the exercise of the power is short of the effective supervision.In addition,some judges professional quality is low,there are a lot of problems in the process of exercising the power to investigate outside the courtroom by judge.For example,the judges start the program to investigate evidence outside the courtroom at random.It is not only accorded with the legislative intent,but also be harmful for the substantive justice.Literature study and comparative research will be used in this paper.The article will examine the overseas legislative cases about the power to investigate outside the courtroom by judge,reflect on the shortcomings of the existing legislation in our country,and provide suggestions to perfect our country's rules about the power to investigate outside the courtroom by judge.The article is divided into five parts.The first part is about the definition of the power to investigate outside the courtroom by judge.This chapter will also summarize the characteristics of the power to investigate outside the courtroom by judge,which is neutrality,objectivity and complementary.The second part is the discussion of overseas legislative experience about the power to investigate outside the courtroom by judge.It concludes the comparative analysis about the power to investigate outside the courtroom by judge in adversary system,inquisitorial system,mixed system and Taiwan.The third part is responses to the discussion whether the power to investigate outside the courtroom by judge should exist.It analyses the rationality of the existence about the power to investigate outside the courtroom by judge.The fourth part analyses the deficiency of the existing legislation about the power to investigate outside the courtroom by judge,and discusses the problems which it may lead to.This part is the expression about the legislative rules and operation actuality of the power to investigate outside the courtroom by judge.The fifth part concludes the suggestions about how to perfect the rules of the power to investigate outside the courtroom by judge,It also provides instructions about the relationship between the power to investigate outside the courtroom by judge and the burden of proof allocation principles and the controlled trial separation principle.