The Commanding Power Of The Judge In Criminal Procedure

The judge is the only subject who can identify the case facts and make the final judgments,and the only subject who can conduct court activities correctly and smoothly.By applying the commanding power of criminal litigation,the judge can manage the trial order,handle the trial rhythm and guide the prosecution and defence of the two sides of the litigation.The commanding power of the judge plays an irreplaceable role in keeping court activities in an orderly smooth and efficient operation.The command of criminal litigation takes the goals of procedural justice and litigation benefit into account,and these two theories lay a proper and incisive theoretical basis for the power of the judge.From the perspective of power control,the procuratorial organs have the power of legal supervision authorized by Chinese Constitution,thus,they can supervise the commanding power of litigation,leading to the opposition of supervision power and the judicial power.From the perspective of rights protection,it is time to avoid the excessive expansion of the commanding power of criminal procedure,so as to protect the legitimate rights and the interests of defendants.Therefore,the decentralization theory and the concept of human rights in constitutional principles provide powerful support for the commanding power of criminal procedure.In criminal court trial activities,the commanding power of criminal procedure can contribute to the final realization of procedural and substantive justice in a visible way,and to promote the progress of the trial activities in an acceptable manner.Owing to the absence of systematic and comprehensive provisions in the law to regulate the judge' s commanding power of criminal procedure,the judge has quite large autonomy in specific operations which leads to a series of problems,such as the arbitrary of judge's investigation power outside the court,the ambiguity of the judge's interpretation right,the deficiency of remedy approaches for the litigants,the intervention to the exercise of judge' s commanding power in criminal procedures by the procuratorate's legal supervisory power and the impediment caused by the violation of the court rules to the exercise of commanding power of criminal procedure and so on.The exercise of the commanding power of criminal procedure is not at random and inordinate.It must be based on the command power of litigation and add the subjective passivity and creativity sufficiently.The commanding power of criminal procedure plays a role in conducting and controlling judicial proceedings,the judge must follow the principle as follows:the neutral principle,the presumption of innocence,the equality of procurator and the defence and separation of accusation and judgment.Currently,in order to protect the trial rights of the defendant and maintain trial order,it will be necessary to regulate judge's power of investigation outside the court from the substantive aspects,and to grant the litigant the right to put forward objection to the commanding power from the aspects of rights remedy.In order to make the commanding power of criminal procedure a complete and separated system,measures must be taken not only from the aspects of system and protection,but also from the aspects of reforming and improving the commanding power of litigation.Evidence regulation system of criminal procedure clarifies the scale of evidence adoption and judgment,avoiding undue delay of the proceedings.And it is helpful for the judge to guide the prosecution and the defence of two sides in the litigation.Meanwhile,it can constrain and standardize the commanding power of criminal procedure.The evidence rules can guide judicial practices,and can realize the organization and stabilization of trial activities.The structure of the evidence rules system can launch with the system of criminal witness regulation which can standardize the qualification of evidence and probative force.As the judge is the particular subject performing the commanding power of criminal procedure,the professionalization of the judge,which consists of one's self-cultivation,professional ethics,levels of expertise and still the art of orders in litigation skillfully,consequently,determines the effect of the commanding power of criminal procedure.Thus the professionalization of the judge must be based on the judicial practice and various measures must be put into force,specifically including the establishment of judicial system for specific number of judges,judicial accountability system,regulation of the selection system of judges and the standards to the judge performance evaluation.The judge's right of interpretation can help improve the harmony and unity of the procedural justice and substantive justice.The establishment of judge' s interpretation system demands to clarify the main content,the method to wield and its restriction mechanism.Canceling the legal supervisory power of the Prosecutors Office is of particular significance in the justice system:On the one hand,prosecutor can submit themselves to judge's command modestly and earnestly,so that the judge can dispel their misgivings to prosecutor who have legal supervisory power,commanding their trial behaviors.On the other hand,canceling legal prosecutor supervisory power will contribute to a prosecutor performing as a party,and it can make inspection staff status truly practical and realize the equality between procedure and advocacy.