Research On Procedural Defense In The Trial Stage

The stage of trial procedural defense is a new defense form in recent years in China's judicial practice,which is the illegal procedural act as a public authority to carry out activities according to the defense,but also the pursuit of litigation related to final invalid consequences,in order to achieve the purpose of safeguarding the legitimate rights and interests.As a kind of aggressive defense form,which should have been paid more and more attention than the substantive defense,but the influence of traditional ideas of China's "heavy entity,light procedure",the defense form is almost no space.Therefore,in this paper the status quo of trial procedural defense as the foothold,summarized through the operation of this system in the judicial practice,problems and deficiencies of the reflection which,combined with the related legal system of Anglo American law system and continental law system,put forward reasonable suggestions to some extent,and thus protect the procedural defense the trial system can really be implemented,realize its function and value.This paper is divided into four parts,excluding the introduction and conclusion,a total of about forty-five thousand words.The first part is an overview of the procedural defense in the trial stage.In this part,the author gives an overall introduction to the procedural defense in the trial stage,which mainly covers the following three aspects: the theoretical basis,the system value and the basic content.The theory foundation of trial procedural defense includes not only the procedural subject theory,right theory and the principle of presumption of innocence,the more important is the public law right of jurisdiction and the right of private law level balance theory on civil rights relief theory;The trial stage of the value of procedural defense because of its aggression,reflects the maintenance of national power restriction and supervision of criminal suspects,defendants and the status of the main program and the promotion of human rights,and on the realization of judicial justice;The main content,the main responsibility,the trial procedural object,purpose,burden of proof,and the review and adjudication and relief is an important part to realize the value of procedural defense at the trial stage,we need to conduct a comprehensive analysis of the content.The second part is a comparative study of the procedural defense in the foreign trial stage.This part makes a brief introduction to the system of the procedural defense in the framework of the criminal procedure of the common law and civil law.Due to the specific procedures of two criminal litigation is different from that in China,and related defense defense opinions proposed mostly can be resolved at the pre-trial stage,while our country is mainly at the stage of trial will involve the contents of procedural defense.In order to draw lessons from the advantages of the extraterritorial system,this part of the two legal systems before the trial procedural defense system also involves.Including the exclusionary rule of the Anglo American law system and withdrawal of the content,including mention of procedural appeal,the conviction overturned;The exclusionary rule of illegal evidence is the main content of procedural defense,which has been widely used in common law countries;And the United States,Canada and other countries to establish the termination of litigation system and the United States to withdraw the prosecution system is also an important part of procedural defense.The procedural defense system in the civil law system is mainly aimed at the judicial review of the legality of detention,the revocation of the original judgment system and the system of invalid litigation act.In the framework of the German criminal law under any coercive measures taken against a citizen must be implemented in the judicial review to the original judgment;civil law system with the cancellation of the Anglo American law is more similar to the German criminal procedure law and the criminal procedure law of Japan circumstances are limited;Ineffective system of legal action is unique to the civil law system,is the procedural law to the public power failure process of the personnel of the departments in the litigation in violation of legal procedures prescribed by law,the basic principle and violation of the defendant's personal rights and litigation rights behavior punishment,is an important part of procedural sanctions.The third part is the summary of the procedural defense in the current stage of our country,and makes a detailed analysis of the root causes of some difficulties.Study on China's trial procedural defense situation from the beginning of the pretrial conference,but also covers the first instance criminal procedure and judicial supervision,and the case analysis of the key stages of the trial stage of procedural defense form,namely the first and second instance of the procedural defense characteristics are summarized.At present,in the first instance of our country,the salient features of procedural defense are as follows: The general case is in the court debate this link to express their views;the court may demand the investigators in the court on the defendant proposed procedural defense to make comments in reply,but the actual effect is not ideal;the mechanism to make the ruling is based on the rules of evidence is not clear on the procedural defense opinions;ruling party defense the procedural defense problem obtained is unable to carry on specialized judicial relief.The characteristics of procedural defense in our country second stage can be summarized as follows: including the court of second instance is usually not in trial way to hear appeals against proposed due to the existence of procedural illegal acts;even if the court of second instance court,no special hearing in violation of the provisions of procedural legal act;the court of second instance in handling the appeals,rarely directly to the court of first instance of the existence of specific procedural illegal activities on the grounds,and cassation,remand to the trial court procedures;the existence of violations of the law and the court of first instance of some related violations do not give legal procedural sanction behavior,the lack of defense the way of further judicial relief.There are many reasons for the current procedural defense in the trial stage in China,which can be summarized into three aspects: The first aspect is the procedural sanction system is not perfect,including the scope of application of the exclusionary rule of illegal evidence is too narrow,and the application of the standard is not clear;at the same time,China's cassation.The scope of retrial system is not clear,the general provisions of the second instance judges have too much discretion in the case of this kind of situation;but on the whole,China's procedural sanction and lack of hierarchy and unitary sanctions also apply this system to judge pressure;The second aspect is the procedural rules are not perfect,no special mechanism of judicial review,and under the two-tier appellate system is mainly to review substantive issues of the verdict of not covering the procedural appeal and review system,and widespread misjudged case investigation system,the lower court between the reporting system.And the special relationship between the three public security are restricting the procedural rules of adjudication effectiveness;The third aspect is mainly lack of pretrial procedure guarantee,including the defense lawyer presence right no key stage,not only the rights of criminal suspects to be violated,the defense lawyers no opportunity to collect the evidence of procedural illegal behavior;at the same time enjoyed by China's defense lawyer's right of investigation and collecting evidence are far from enough,investigation the work is difficult to get support.In the fourth part,the author puts forward the concrete ideas and ideas for the improvement of the procedural defense in the trial stage of our country.It mainly compares the difficulties existing in the current stage of the procedural defense in our country.Specifically,you can start from three aspects: The first is to perfect the procedural sanction system,including the applicable scope,to expand the rule of illegal evidence to clarify its standards;to improve the revocation of the original judgment,the retrial system,clear the absolute and relative grounds for revocation revocation criteria;also can learn from other countries,set up multi-level procedural sanctions,the realization of "crime and punishment fit".The second is to improve the procedural rules,including setting up the mechanism of judicial review special,improve the relationship between the lower court,the abolition of misjudged case responsibility system,the lower court between the reporting system to reduce and enhance the independence of the court;but it is more important to improve the court judge's authority,carry out the principle of judicial final adjudication.The last is to perfect the safeguard measures in the program,including the present right of giving the defense lawyers in the investigation stage,provide advice which allows for the suspect problems,supervise the legality of investigation personnel activities;and to establish the supporting mechanism to ensure the realization of defense lawyers' investigation right,including the strengthening of self with the investigation and the national public power relief people were investigation,at the same time limit the discretion of the judge in reducing the application of investigation and evidence collection,clear relief measures.