Study On The Pretrial Procedural Review Of The Public Prosecution Case

According to the provisions of the current criminal procedure law and judicial explanation,the pretrial review of public prosecution cases in China is defined as procedural review.The people's court does not review the sufficiency of evidence before the court,but only whether the materials submitted by the public prosecution organs meet the requirements of form.The purpose of procedural restriction in pretrial review is to distinguish the functions of pretrial review and court trial,to prevent the judges from having preconceived impression on the case,and to avoid the waste of litigation procedure.In terms of existing rules,however,the review content on the set belongs to the category of substantive review,for example,the jurisdiction question: determine the public prosecution cases which should be under the jurisdiction of the court itself to have comprehensive and profound understanding of,and a preliminary review stage in the court of jurisdiction between higher and lower transfer is made substantial processing of criminal cases.In addition to that,before the court in the review process for prosecutors to review whether the public prosecution of exceed the limitation of judgment and whether it belongs to case of private prosecution was carried on the substantive review,due to the above two situations will not be investigated for criminal responsibility to the termination of the trial of the ruling isn't completely procedural rule.In addition,in order to pursue the reality of the entity and ensure the correctness of the trial result,the people's court will also conduct a certain degree of substantive review in judicial practice,which is against the orientation of procedural review.It is suggested that the principle of procedural review should be implemented in the pretrial review to avoid excessive restriction of the judicial power on the right of public appeal and waste of judicial resources.In the examination subject,we could consult the overseas country advanced practice,establish the special pretrial examination judge;In terms of the content,the content related to substantive review and treatment in the existing provisions should be canceled;The handling method after the review should be determined according to the specific situation.If it meets the requirements of legal norms,it shall be permitted to submit it for formal trial.If the case does not meet the examination requirements,it shall not be allowed to be handed over to a formal trial,andthe procuratorial organ shall be given an opportunity to apply for a review.In the case of civil incidental to a criminal case,if the criminal case cannot be referred for formal trial,the parties concerned shall be notified that they may institute civil proceedings by themselves.File transfer method is closely related to the pretrial review procedure.At present,we still adhere to the doctrine of transferring the whole case,which is inconsistent with the positioning of procedural examination.Therefore,the file transfer method should be changed.