Study On The Power Of Investigation To Verify Evidence Outside The Courtroom By Judges In China

The extrajudicial investigation is a way of getting evidence out of the court to pursuit the substantive truth and the value of procedural justice, and to ascertain the facts. The judge is an extension of the referee function. Currently, in our criminal trial the judges referees the defendants "guilty" or "not guilty", "light crime" or "heavy crime" still based on the truth of the cases. The evidence is the key to determine the facts of judging. But in the actual trial, because of the inequality of prosecution and the defense litigation status, the lack of capability to obtain evidences, and the conflict roles of the accuser and the suspect, both parties would extracted and showed the evidence to the benefit of realizing the interests of the respective proceedings angle. The above two situations occur, the judge is very difficult to alone shows evidence of the prosecuting and defending parties in an objective and comprehensive grasp of the facts. Based on the above situation, the extrajudicial investigation becomes one of the important ways to verify the evidence materials, to find out the case facts, to pursuit the real entities, and to ensure the trial judicial. The extrajudicial investigation to verify evidence of activities outside the court is a judge aid to perform the functions of the referee. Chinese legislation just do the principled provisions, but not do the detailed procedural requirements. This phenomenon offers the opportunity for judges in practice to use the legal loophole and use the power of investigation and verification optionally out of court. Eventually it leads to the law enforcement unfair, damages the interests of the defendant, and breaches the justice procedural. In this paper, according to the research and analysis of present situation and practical problems in the investigation and verification out of court, the author suggested to regulate this item from the legislation, fill learning gaps, and realize the unity of justice in practices.The article analyzed and discussed the concept, theory, current legislation, foreign legislation comparison and perfection of legislation of the right of verification which judges investigate in the outer court. The first part is the main view cited based on simple analysis of judge's right of out-of-court investigation which is analyzed and summarized under two different litigation modes including inquisitorial system and adversary system. The second part presented the theory of judge's right of out-of-court investigation in our country. By demonstrating and analyzing if the judge's right of out-of-court investigation is still existed, the article mainly discussed the importance of judge's right of out-of-court investigation on the practice of criminal justice in China under the current judicial circumstances. The third part is the analysis and study of the current state of judge's right of out-of-court investigation in China. Since the subject of out-of-court investigation power, the start of program, the scope of the evidence, investigative techniques to obtain evidence in the investigation process and other procedural issues lack effective legal regulations, out-of-court investigation is randomly started in practice, the miss management of evidence and other issues also happened. The fourth part is comparing the difference in laws and regulations between Anglo-American law systems and civil law countries and gives a brief analysis of these two systems. The last part is advises to improve the legislation and practice of judge's right of out-of-court investigation in our country. It discussed from the role of judge in the practice of right of out-of-court investigation, the laws and regulations of the start of investigation procedures, the process of the evidence acquired from outside of court, the remedy measures when defendants fail to apply for out-of-court investigation to improvement of judicial accountability.