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Judicial Risks And Preventive Measures For Bribery Crime Trial In Absentia

Posted on:2021-03-08Degree:MasterType:Thesis
Country:ChinaCandidate:S H BaiFull Text:PDF
GTID:2416330605455252Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
The value of criminal trial is diverse.The establishment of criminal trial in absentia in 2018 is an important measure to realize fairness and justice in the choice of multiple values,which provides legal support for pursuit of persons who committed duty-related crimes and recovery of illicit money circulated in China.As a result of bribery crime in the post economic crime has the distinct characteristics of "involution crimes",the defendant is not documented can give a case of the litigation activity brings huge impact.However,the provisions of the law on the specific application of absentia trial in bribery crime cases is still in the need to perfect state,thus it is inevitable that there will be judicial risks that the value of the party fighting crime and protecting human rights is out of balance.And academic circles generally pay more attention to whether the system design of default trial can guarantee the legitimate rights and interests of the defendant,thus ignoring the impact of the defendant's absence on the discovery of the truth of the cases.The bribery crime is special in criminal law from both the subject of the crime and the evidence.The defendant's not being put on record may affect the fact finding and judicial proof of the whole case.Therefore,based on the litigation concept of fair trial,this paper fully studies the potential judicial risks in the application of absentia trial in bribery crime cases from the three aspects of fact finding,judicial proof and law application,finds out the causes of the risks and proposes countermeasures to avoid the risks.This paper is divided into four parts:The first part is the basic problem of judicial risk of trial in absentia case of bribery crime.The premise of finding the judicial risk in the absentia trial of bribery crime is to fully understand the content stipulated by law and the basis of the system.The legal provisions include the conditions for the use of trial in absentia,the way to protect the rights of the defendant and the way to remedy.The trial in absentia breaks the traditional litigation structure,and understanding its theoretical basis and practical basis is helpful to grasp the value orientation of the system.Understanding the basic meaning of judicial risk is the basis of studying the judicial risk and prevention and control countermeasures in the absence of trial of bribery crime cases.The absence of the defendant may cause the judicial risk of imbalance of one party's value in the absence of trial in the operation of bribery crime cases,including substantive and procedural ones,so that the justice of the case cannot be guaranteed.The second part is the main manifestation of judicial risks in absentia trials of bribery cases.In bribery crimes,the "one-to-one" crime features make the handling of cases rely heavily on verbal evidence,especially the confession of the defendant.Therefore,the defendant's not being placed on record will lead to judicial risks in fact determination and judicial proof.In fact finding,it is difficult to find the subjective facts,to find the facts of the case comprehensively,and to guarantee the standardization of evidence collection.The judicial proof includes the judicial risk that it is difficult to reach the original standard of proof and the formalized judicial proof.In terms of the application of law,the legal provisions may lead to the judicial risks such as the difficulty in unifying the scope of application,the abuse of the appeal right of close relatives and the repetition of litigation.The third part is the reason of judicial risk of bribery crime in absentia trial.The judicial risks in fact determination are mainly caused by the characteristics of bribery crime and the obstacles in evidence collection.The fact that the defendant is not on record aggravates the difficulty of evidence collection,so that there is a risk of unascertained facts.In addition,under the influence of traditional judicial concepts,the standardization of evidence collection is difficult to guarantee.The risk of judicial proof mainly includes the difficulty in reaching the original standard of proof and the formalization of the judicial system.The former is mainly because the defendant does not register,which makes it difficult to form the evidence chain of the bribery crime case,thus causing the judicial risk that it is difficult to reach the original standard of proof.For the formalized judicial risk,it is mainly caused by the imbalance between the prosecution and the defense.And in the application of law,the lack of restriction of power and right,the nature of trial in absentia,the ambiguity of independence of appeal right of close relatives and the ambiguity of right of objection are all the reasons for the judicial risks in the operation of trial in absentia.The fourth part is the prevention and control countermeasures of the judicial risk of bribery crime trial in absentia.In the absence of the critical evidence of the defendant's confession,the burden of finding facts can be alleviated by expanding the scope of evidence collection and adopting the system of immunity and the presumption of bribery.At the same time,the legality of the means of evidence collection should also be supervised,and the rule of excluding illegal evidence should be strictly applied to protect the legitimate rights and interests of the defendant.In the aspect of judicial proof,the binary proof standard can be used to guarantee the correctness of the case and the rights and interests of the defendant,and the antagonism between the prosecution and the defense can be strengthened to guarantee the integrity of judicial proof.At last,it is necessary to weigh and restrict the rights and powers of all parties according to the original intention of system design,and avoid the judicial risks arising from the application of law by making it clear that death penalty cases are not applicable,regulating the right of appeal of close relatives and the right of dissent of criminals.
Keywords/Search Tags:criminal trial in absentia, bribery crime, judicial risk, human rights protection, evidence
PDF Full Text Request
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