Study On The System Of Criminal Default Trial

The procedure of trial by default in the system of criminal default trial only refers to the trial activity where the accused does not appear in court.Neither the absence of prosecutor side nor the appearance of accused in court without statements is not applicable to the trial by default.At the same time,the procedure of criminal default trial does not belong to the punitive procedure,but belongs to the supplementary procedure in the inter parties trail procedure and the direct verbal trail procedure.The establishment of the criminal default trial system is of legitimacy,which is based on the theory of compulsory trial,the theory of emphasis on efficiency,the theory of the protection of human rights and the proper restrictions of the defendant's right to participate in litigation.While it exists some disadvantages,such as failing to form strict tripartite structure,suffering a loss on the defendant's litigation rights,the risk of abuse of procedure and the difficulty of execution.The system of trial by default established by the amendments to the Criminal procedure Law of 2018 in China is not perfect.First of all,the system of criminal default trial has a narrow scope of application.Secondly,there are two problems in the remedy right of criminal trial in absentia,such as the right of dissent and the total lack of restrictions on the independent appealing right of close relatives.Finally,the retrial procedureof the criminal default trial system also has the question of failing to know the jurisdiction court and which kind of trial procedure is applicable.In view of the above-mentioned problems and shortcomings,the author puts forward some suggestions for improvement: First,misdemeanor and felony should be included in the scope of application of trial by default,but cases of immediate execution of the death penalty should be excluded;Second,set up the restriction measures of the dissent right,limit the time when the dissent right is put forward,and restrict the independent appealing right of close relatives appropriately;Third,the "ex post" retrial shall apply to the ordinary first instance procedure and shall form a collegial panel at the time of rehearing.