A Study On Defense Disclosure System

As an important part of the system of evidence disclosure,the defense disclosure is an important procedural mechanism in Anglo-American law.It is of great significance to prevent litigation delay,improve trial efficiency and promote real discovery.The Criminal Procedure Law,which was amended in 2012,has taken an important step in the system of defense evidence disclosure,which stipulates the defender's obligation to disclosure certain evidence.After all,the defense disclosure system is an exotic,and the current domestic theoretical research is still very weak,coupled with the new legislation is too rough,these undoubtedly bring the actual operation of the defense disclosure system a lot of uncertainties.After a brief instruction of the basic theory of the defense disclosure,this paper analyzes the problems existing in the system of defense evidence disclosure in our country from the perspective of comparative law,and puts forward some concrete suggestions.In addition to the introduction,the text is divided into five parts,about 35,000 words.The first part provides an overview of the emergence and development of the defense disclosure system in the Anglo-American countries from the historical dimension.In this paper,it is argued that the defense disclosure is the product of the continuous development of adversary criminal trial in the process of the adjustment of the relationship between prosecution and defense and the change of litigation notions.And the trend is continuous expansion on the scope of the defense disclosure in Anglo-American law.The second part elaborates the theoretical basis of the defense disclosure.Through the comparative analysis of adversary and inquisitorial criminal trial,the author argues that the defense disclosure is produced in the soil of adversary criminal trial,in order to prevent the “evidence raid” and realize the equal confrontation of the prosecution and defense as the system goal.In terms of the legitimacy foundation of the defense disclosure,it is argued that the legislation requiring the defense to show the prosecution the evidence that will be used in court before the trials not that requires the defendant to present evidence to prove his innocence,but only an advanced notice obligation when he puts forward an active defense on the basis of the investigation of pros and cons opinions.The third part introduces the background,purpose,theoretical basis and practical significance of the establishment of the defense disclosure system in China,as well as its characteristics.The author argues that there are at least four aspects in theoretical basis and practical significance as following to establish the defense disclosure system in China.Firstly,it is the inherent requirement to ensure procedural justice.Secondly,it can promote the discovery of the truth and prevent the occurrence of misjudged cases.Thirdly,it helps to improve judicial efficiency and save judicial resources.Finally,it contributes to the ongoing focus of the trial,and enhances the effectiveness of the trial.In addition,the defense disclosure system in China shows characteristics as miscibility,based on the national conditions and serves real discovery.The fourth part studies the existing problems of the present system of defense disclosure in China from the perspective of comparative law.Specifically speaking,comparing with mature legislation of Britain,the United States,Japan and other developed countries,this paper analyzes the existing problems of the defense disclosure system in China based on in-depth interpretation of Article 40 of the Criminal Procedural Law amended in 2012.The first is the subject of the defense disclosure that is not comprehensive.The second is the evidence scope of the defense disclosure that is too narrow.The third is the content of the defense disclosure that is not clear.The fourth is unfair on the disclosure time to the defense.The fifth is lack of dispute resolution procedures in the defense disclosure system.The sixth is lack of legal consequences and right relief procedures when the defense violate the obligations of evidence disclosure.The fifth part puts forward some concrete ideas to improve the defense disclosure system in China.In this paper,the author argues that in the future legislation to improve the defense disclosure system should adhere to the basic principles of statutory disclosure,limited disclosure,direct disclosure and judicial review.Under the guidance of the basic principles,this paper puts forward some concrete suggestions from the aspects of the subject,time and place,content and way,dispute resolutions and right remedies,and the consequences when the defense violate the obligations of evidence disclosure.In the end,taking into account the integrity of the litigation system operation,this paper also carries out a research on the construction and improvement of the relevant supporting mechanism of the defense disclosure system in China.