Research On The Present Situation And The Problem Of The Witness Appearing In Court In Criminal Procedure

The fourth Plenary Session of the 18 th CPC Central Committee provided an important goal of judicial reform which was to promote the reform of building an litigation system based on the center of trial.The Supreme Court,The Supreme Procuratorate,Ministry of Public security,State Security and the Ministry of Justice jointly issued "Opinion on the Reform of the Criminal Procedural System Which is Centered on the Trial”(hereinafter referred to as the "Opinion")on July 20,2016.In order to implement “Opinion”,the Supreme Court enacted “Implementation Opinion on Fully Promotion of the Reform of Criminal Procedural System Which is Centered on the Trail” on February 17,2017.Both of these Opinions work for this reform of the judicial system.The trial is the key part and the main method of adjudication,and the system of witness testifying in court is the core and point of the trial,so perfecting the system of witness testifying in court and insisting on centering on trial will promote the establishment of litigation system which is the centered on trial.Although the current "Criminal Procedural Law" implemented in 2013 cleared the startup process of the system of witness testifying in court,added a pretrial conference which the judge could hear the opinions on whether the witness should be requested to show in court from the prosecutors and defense lawyers,and regulated that when and how to force the witness to testify in court and legal responsibilities of witness and the personal protection and economic compensation for witness and the right of immunity of the close relatives of defendant,“the low rate of criminal witness testifying in court” is still regarded as a problem or predicament which is constantly stressed and put forward.In the procedural area,whether the witness testifying in court is directly related to the application of the direct verbal principle,and the achievement of the defendant's right to defense;in the substantial area,whether the witness testifying in court is directly related to whether the judge can find the facts,verify the evidence,and issue a correct judgment.Therefore,the first problem should be resolved is how to improve the proportion of witnesses testifying in court and make sure the testimony is verified when used as evidence by the court.The idea of this thesis was originated from a program named “Analysis of judicial predicament and innovation of resolution on witnesses testifying in court” which was responsible by the author,and the data gotten from this program.This thesis was based on the accumulation of the theories and surveys,and wrote under the background of the judicial practice after the implementation of "2013 Criminal Procedural Law".It regarded "Opinions","Rules of Witness Testifying in Court of Shanghai Municipal Superior People Court” and “Rules of Exclusion of Illegal Evidence of Shanghai Municipal Superior People Court” as Basic References,and combined with judicial practice of the Procuratorate of Huangpu District and Xuhui District,the People Court of Baoshan District and Shanghai Municipal Superior People Court.Through the methods of interview,questionnaire,on-the-spot investigation,the author analyzed the current situation of witness testifying in court,focused on the new situations and problems happened after the legislative changes of the system of witness testifying in court,and the foreign legislative systems and judicial practice,explored the new ideas and countermeasures to perfect the system of witness appearing in court and improve the rate.The full content is divided into six parts:In the introduction part,the author introduces the background of the thesis,the background of the topic,the way of thinking and the related literature review.The first chapter mainly analyzes the present situation of witness appearing in court.Through the procedure division mechanism,the author analyzed the situation of witness testifying in court in Summary Procedure,Quick Procedure of Minor Criminal Cases,Simplified Trial of General Procedure and General Procedure,respectively,and got a result that there was necessary to study on the problem of witness testifying in court only in the situation where there existed testimony and it was used to prove the facts of the case,the facts of this case were in dispute,and this case applied the general procedure.According to the data from the surveys,the author found that it was a big issue in the rate of witness testifying in court.Based on these results,the author explained three different types of present situations,i.e.,the situation when the prosecutor applied the witnesses to testify in court in the process of proof providing,the situation when the defense lawyer applied prosecution witnesses to testify in court in the process of cross examination,and the situation when the defense lawyer applied his/her own witnesses to testify in court in process of proof providing.The second chapter mainly discusses the causes of the problem which the rate of witness appearing in court was so low.The author analyzed and made comments from three aspects which were the social factors,legal factors and judicial factors.The third chapter mainly compared our system with the extraterritorial system in criminal witness appearing in court,and proposed the feasible references.Based on the introduction of the system of witness appearing in court in common law system and civil law system,the author put forward some simple suggestions.The fourth chapter mainly introduced the background and need of judicial reform about perfecting the system of witness testifying in court from three aspects,i.e.,the need of judicial reform on regarding the trial as center,the need of the power reform of jury,and the need to protect the procedural rights of lawyers and parties..In the fifth chapter,the author summarizes up the thoughts and countermeasures to increase the rate of witnesses to testify in court from the following three aspects: the change of perception and the consciousness training,the perfecting of legislation and the system,and the mechanism coordination and the professional training.