The Study Of The Judge's Investigation Power Out Of Court

In view of the long history of the legal tradition of the judicial organ being responsible for investigating the truth of the case,the inquisitorial litigation mode focusing on the judge,the judge's investigation power out of court has been defined in the Chinese law for a long time.The establishment of the judge's investigation power out of court will enable the judge to better utilize the judicial procedure,balance the prosecutor's and defendant's abilities to provide evidence as well as narrow the wide gap of power between both sides.Moreover,it can also assist the judge to remove the doubt about the evidence,complete the evaluation of evidence through inner conviction and investigate the truth of the case.Hence,China should learn from the successful experience of the countries adopting the adversary system and also achieve the balance the values.However,the initiation,implementation and the use of result of the judge's investigation power out of court have not yet been clearly defined,thus leading to the improper application of the power.The procedure featured by the participation of the prosecutor and defendant can not be guaranteed,thus hindering the determination of the truth of the case.Besides analyzing the establishment,development and relevant problems of the judge's investigation power out of court,this paper has made a study of the root and difficulty faced by the judge's investigation power out of court.The realistic significance of the judge's investigation power out of court will be also analyzed so as to justify its existence.Further efforts will be made to improve the regulation over the power,design the constraint procedure as well as reduce the abuse of the power.In this paper,besides introduction and conclusion,include four chapters.The first chapter aims to sort out the establishment and development of the judge's investigation power out of the criminal court.The judge's investigation power out of the criminal court in China has been closely related to the judicial system.It is also deeply influenced by the inquisitorial system.China has a long history for the judge's investigation power out of court.Defined in the Criminal Procedure Law,it has been present in the whole law.The legal provisions constraining the initiation,investigation and acquisition of evidence outside the court have been constantly improved in the Chinese law.The second chapter aims to figure out the realistic significance of the judge's investigation power out of court.The legislative hysteresis of the judge's investigation power out of court has given much discretion to the judge.The judge's investigation power out of court can satisfy the requirement for the judicial activism in the new age.The judicial activism requires the judge to adopt a global vision,balance the interests between all sides and serve the whole society.Therefore,it can reflect the judicial activism in China and also pursue the truth of the case actively.In addition,the inherent imbalance between prosecutor and defendant in China has required the judge's investigation power out of court which can balance the power between both sides,ensure the prosecution subject of the defendant as well as better uncover the truth.The third chapter is devoted to analyzing the practical status and problems related to the judge's investigation power out of court based on the relevant survey and research.It is found that some judges negatively exercise the investigation power out of court,for most of time exercise the power for the sentencing evidence,and in a certain area have exerted the investigation power out of court improperly.Besides,it is also faced with some problems,such as the improper initiation,the investigation being detrimental to the procedural justice,the lack of regulation over the means of investigation and the acquisition of evidence out of court as well as the violation of the principle of no punishment in doubtful cases.In the fourth chapter,the principles of supplement,constraint,equality and participation on regulating the judge's investigation power out of court will be provided.Some principles have been established for the judges to form a proper value.Based on the principle guidance,some advice has been offered on how to realize the judge's investigation power out of court.The excessive discretion of the judge should be controlled.The supplementary investigation and confidentiality for the procedure regarding the investigation power out of court should be corrected.Further efforts should be made to further improve the procedure of the initiation,investigation and the review of the evidence collected out of court.The relief procedure should be also established.The judge should be given more operative guidance for exerting the power,which can improve the scientific exertion of power.