Research On The Start-up Right Of Criminal Judicial Appraisal In China

The first chapter is an overview of the initiation right of criminal judicial identification.This chapter discusses the relevant concepts of the criminal justice start-up right,the subject of the criminal judicial identification start-up right and the configuration mode of the criminal judicial identification start-up right at the present stage in our country.And analyzed the academic circles from the theory to the startup right allocation mode discussion several kinds of viewpoints.Who has the right to initiate appraisal,who has the initiative to master the facts of the case.As a powerful means of investigating the facts of a case in criminal proceedings,criminal judicial identification has always been enjoyed by the case handling organs.The parties do not have a place in the allocation of the right to initiate appraisal,which violates the balance of prosecution and defense.It has been opposed by some scholars all the time,but some scholars advocate to change the allocation mode of identification right within reasonable limits.The second chapter,the foreign investigation of the initiation right of criminal judicial identification.This chapter uses the method of comparative analysis from the Anglo-American law system and the civil law system of the main legal countries to identify the relevant legal provisions of the right to start,judicial practice to analyze,It also distinguishes between the two legal systems and analyzes the reasons for the differences between the two legal systems.In the civil law system,the examining magistrate controls the pretrial procedure.Based on the tradition of functionalism,the judge has the right to initiate the appraisal,and the judge is also the leader and promoter of the trial.Judicial expertise is regarded as a means for the judge to investigate the facts of the case.Anglo-American law system based on party owner The tradition of justice and the equal adversarial trial between the prosecution and the defense give both parties the right to initiate the appraisal and the parties to promote the process of litigation.The system of recusal of experts established in the civil law system,the objective and neutral judge to initiate the appraisal is conducive to safeguarding the neutrality of the expert's selection and the impartiality of the appraisal opinion.In the Anglo-American law system,the parties are likely to use money to seek "appraisal opinions" in favor of themselves,which cannot guarantee their neutrality,but on the other hand,the Anglo-American law system gives the litigants the right to initiate at the same time is conducive to the realization of procedural justice.To protect the procedural rights of the parties to the maximum extent;With After that,it also analyzes the distribution mechanism of startup right in the two legal systems,and summarizes the merits of the distribution mechanism which is worthy of our country's reference.The third chapter,our country criminal judicatory appraisal initiation right present situation and the reason analysis.This chapter first analyzes the current situation of legislation on the supervision of the start-up right and the relief of the litigants' starting right from the present stage of criminal judicial appraisal of the right to start in our country.China is now based on the legal framework of "division of labor and responsibility,mutual cooperation and mutual restriction".The three law organs enjoy the right to initiate identification without restricting each other,and the parties do not enjoy the right to initiate identification and the right to apply for initial appraisal;In the supervision of the right to initiate(B)Supervisors;Whether or not to accept the application of the party concerned for initiating the appraisal shall be at the discretion of the case handling organ and shall not be subject to supervision and restriction.The case handling organ shall not have to disclose to the party the process of appraisal and the appraisal organization,the process of decision making of the appointment of the expert,etc.The participation of the parties is very limited;With regard to the relief of the right to start,the parties only enjoy the right to supplement the appraisal opinions issued by the organs handling the case,and to repeat the right to apply for identification,and whether or not to accept the application is to be decided internally by the organs handling the cases.Although our country has initially established the "expert assistant" system,but the relief means of the parties is still very limited.The fourth chapter,optimize our country criminal judicatory appraisal initiation right system suggestion.In this chapter,the author puts forward some suggestions on how to optimize the right of initiation of criminal judicial identification in China.In view of the unreasonable disposition of the identification start-up right,this chapter proposes that the prosecution can be retained and appropriately restricted,and the party concerned is given the right to apply for the initiation of the appraisal,and the victim can also be given the independent criminal judicial identification initiation right.It is also possible to improve the judge's right of initiation of appraisal.In view of the lack of supervision over the right to initiate the appraisal,this chapter proposes that the supervision within the investigative organs can be strengthened,and that the procuratorial organs can also enhance the supervision of the appraisal of the public security organs.The supervision of the right of movement can also strengthen the supervision of the right of the public power organ to appraise and start;In view of the lack of relief means for the parties to identify the right to start,this chapter proposes that the relevant supporting system can be established to protect the relief means of the parties' right to identify,for example,Perfecting the system of expert auxiliaries is helpful for the defense to make up for the gap of knowledge about the specialty of the case with the assistance of the expert assistant,and also to strengthen the cross-examination and explanation of the opinion of the prosecution.The establishment of a compulsory appraisal system is conducive to the protection of the parties' right to start judicial identification in time for the facts of important key cases,and the establishment of a reserve system is conducive to the protection of the parties.Restarting the appraisal later and facilitating the court to re-investigate and verify the legality of the appraisal process,appraisal is conducive to the timely relief of the party concerned after the organ handling the case rejects the request for identification.It is also conducive to timely discovery and correction of errors and errors in the appraisal process.