The Reconstruction Of Preliminary Hearing System In China

Preliminary Hearing is an independent litigation stage of criminal case,which is placed between prosecution and trial.The modern country under the rule of law established both mature and perfect Preliminary Hearing System.Preliminary Hearing is a procedure that neutral judges do procedural review about prosecution conducted by prosecuting organizations to make sure the case can enter the trial procedure,meanwhile,take judicial examination about the investigation conducted by investigative organization,by the means of issuing judicial writ,in order to achieve the purpose of cases and procedure filtering,and then rise to the effect of protecting litigation justice,saving judicial resources and protecting human rights.The word" preliminary hearing" first appeared in the criminal law enacted in 1979 in our country,and gives the power to the public security organs,However,the Preliminary Hearing in judicial practice in our country is not a separate judicial procedure with judicial review function,placed in the middle of prosecution and trial,but only a continuation of investigation activities.It is a kind of special investigation activity with the nature of review and prosecution,Which is far from the Preliminary Hearing system in the extraterritorial justice system.The "nominal" status of China's Preliminary Hearing breeds destruction of criminal litigation structure,not conducive to human rights protection and waste of judicial resources and other serious problems,dilapidated old legislation and reconstruct new Preliminary Hearing system is necessary.This paper defines the concept and connotation of the Preliminary Hearing in the study of the origin history of the Preliminary Hearing system.Through the comparative analysis of the typical Preliminary Hearing system of the two major legal systems,combined with China's specific national conditions and judicial practice,this paper points out the drawbacks of our Preliminary Hearing system and puts forward the idea of reconstructing the Preliminary Hearing system.The article is divided into four parts,the first part is about the theory of Preliminary Hearing system.That the Preliminary Hearing system is a judicial review system that the Preliminary Hearing judge to take coercive measures to review whether the prosecution of case is coincident with the conditions of prosecution,and also take a review of the need to take coercive measures point to the freedom of human and property.the system also has a part of investigation function.The Preliminary Hearing and prosecution review,review and prosecution,Preliminary Hearing review,pre-court preparation and other similar concepts were distinguished,make clear that Preliminary Hearing has intermediate,independence and referee and other characteristics.Preliminary Hearing is a procedural judicial review mechanism,which runs in accordance with the principle of equal participation,moderate confrontation,limited disclosure,exclusion and prejudice,and has the function of prosecution review,filtering diversion and prevention of wrong cases.The second part conducted a comparative study of the Preliminary Hearing system of the two major legal system,selected France,Germany,Britain,the United States as four typical countries,the main body,start the way,review standards of the two Preliminary Hearing system of the two legal system,However,relatively speaking,the Preliminary Hearing system of Anglo-American legal system has more of the value of the parties,the civil law system's Preliminary Hearing system is of multi-authoritarianism.The prerequisite for the construction of Preliminary Hearing system in our country is to pay attention to the principle of combining the principles of litigation,litigation and fairness and efficiency of trial-centeredism.In the third part,the history and status quo of Preliminary Hearing system in our country were expounded,through the analysis of China's Preliminary Hearing system in late Qing Dynasty,the revolutionary base period and the establishment of people's republic of china,concluded that the current Preliminary Hearing is "pre-trial" in investigation,the Preliminary Hearing system in judicial review meaning missed as a whole,bringing the problem of not meet the trial centerist litigation structure,not conducive to human rights protection,not conducive to justice and so on.The fourth part analyzes the necessity and possibility of the reorganization of Preliminary Hearing system in our country,and puts forward the proposal of canceling the Preliminary Hearing power of the public security organ and re-positioning the procuratorial power.Raise the design plan of reconstruction of China's Preliminary Hearing system from the Preliminary Hearing subject,the scope of application,the way of starting,the review,Methods,tangled procedures and other aspects.