Research On The Protection Of The Defendant's Right To Know In The System Of Criminal Trial In Absentia In China

When the criminal procedure law of China was amended in 2018,the criminal trial in absentia system was established in time based on the actual needs of fighting against crime and improving the efficiency of handling cases.Under the balance of the efficiency value,due process value and human rights protection concept,the legitimacy of the trial in absentia is based on the information that the defendant has been fully informed of the relevant information of the trial and all the litigation rights he enjoys On the basis of giving up the right to attend the trial voluntarily.Therefore,the full protection of the defendant's right to know is an important prerequisite for the establishment of the trial in absentia,and also a prerequisite for the protection of the defendant's other procedural rights.In judicial practice,the defendant's right to know is generally indirectly proved by the way of "proof of service".Effective service is the key to guarantee the defendant's right to know.But at present,there are few academic researches on the defendant's right to know in absentia trial.There are some legislative gaps in legislation,such as the lack of general provisions on the subject and object of the right to know,the lack of consideration of the particularity of trial in absentia when designing the system,the lack of differences in various applicable situations,the lack of effective delivery provisions,the lack of disciplinary provisions when the defendant's right to know is violated and the lack of relief measures,which will make it difficult to realize the effective protection of the defendant's right to know in judicial practice?In the judicial practice,the protection of the defendant's right to know has not been fully paid attention to by the judicial organs,and has not been fully guaranteed.And the defendant's right to know is difficult to be fully protected,which may also be one of the main obstacles that cause the trial in absentia can not be effectively implemented and the application rate is very low.Therefore,this paper hopes to fully explore the protection of the defendant's right to know in all cases applicable to the trial in absentia in China.Starting from the relevant provisions of the criminal procedure law,combined with the judicial practice after the amendment,the problems and causes analysis,and drawing lessons from the relevant provisions of Germany,law,Italy and Europe on the defendant's right to know in the trial in absentia,this paper aims to further Refine and improve the relevant provisions of the defendant's right to know,so that it can be applied in practice.Finally,to realize the effective protection of the defendant's right to know and promote the effective implementation of the criminal trial in absentia system.This paper consists of the following six parts.The first part is written to discuss the reasons of choosing "the defendant's right to know in the absence of trial" as the research object,make a literature review of the relevant literature of the absence of trial and the defendant's right to know,and introduce the research methods of this paper.The second part is the definition and constitution of the defendant's right to know in criminal trial in absentia.The main content is to clarify the concept of criminal trial in absentia and the defendant's right to know,clarify the subject,object and content of the defendant's right to know.The third part expounds the necessity of protecting the defendant's right to know in criminal trial in absentia,which mainly lies in the requirements of the due value of the procedure,the needs of realizing the defendant's other procedural rights and the needs of obtaining international criminal judicial assistance.The fourth part summarizes and analyzes the legislative and judicial practice of the defendant's right to know in criminal trial in absentia,finds out the existing problems and analyzes the causes.Starting from the comparison of the application of criminal trial in absentia,this paper summarizes the current situation of legislation from the constitution,criminal procedure law and relevant judicial interpretations,and concludes that there are legislative gaps in the composition of the right to know,service procedures,disciplinary consequences of infringing the right to know of the defendant,relief measures,etc.;in judicial practice,the application rate of trial in absentia is low and unbalanced,all of which are the cases in which the defendant suffers from serious illness The protection of the defendant's right to know has not been paid enough attention by the judicial organs,and there is no relief way when the right to know is violated.This reflects that the judicial concept ignores the value of due process and human rights protection;the criminal procedure ignores the status of the defendant as the main body of the proceedings;there are misunderstandings in the understanding of the principle of timely litigation.The fifth part is a comparative study of Germany,France,Italy and Europe,mainly from the scope of application of trial in absentia,the subject and object of the right to know,service,the consequences of the infringement of the right to know and relief ways,combined with the actual summary of our country is worth learning.The sixth part is the suggestion to improve the system of protecting the defendant's right to know in criminal trial in absentia.First,the concept of trial in absentia should be rationally defined,and the due value of procedure and the protection of human rights should be emphasized.Secondly,improve the legislation of criminal trial in absentia,increase the general provisions on the right to know of the defendant in the trial in absentia,improve the provisions on subj ect and object,refine the provisions on effective service on the basis of distinguishing the service of the defendant at home and abroad,and increase the provisions on the consequences of infringing the right to know of the defendant and the relief ways of the defendant.Third,optimize the practice of criminal trial in absentia,and implement the legislative provisions of the defendant's right to know.The judicial organ shall strictly apply the laws and regulations to ensure the defendant's right to know,and the defendant shall attach importance to and supervise the implementation of the right to know.