On The Application Of Trial By Default In China

According to the traditional concept of criminal procedure in our country,the trial in person is not only the need to explore the truth of the case,but also the basis of the legitimacy of the penalty.The accused is irreplaceable and must participate in the proceedings in person.However,China set up the criminal trial by default system in 2018,which changed this tradition and took the absent accused suspected of specific crimes as the trial object.As a new system,trial by default has both significance and controversy.In order to give full play to the expected value of the system,this paper discusses how to improve the system of trial by default.First,trial by default is an exception to criminal proceedings,which is a derogation of the defendant’s procedural rights.Therefore,there are legitimate reasons for the application of this procedure,such as the defendant voluntarily waives the right to appear in court.It can be seen that it is an important content to construct the system of trial by default in our country to protect the legal rights of the accused at the same time of anticorruption and recovery of stolen goods.Secondly,it is a common practice in the field of international criminal justice to focus on the protection of the right to know and reduce the possibility of the restriction of the defendant’s legitimate rights by trial in absentia.In this regard,China can learn from the absorption to improve the protection of the right to know to a legislative level.The proper arrangement of service procedure is the core of protecting the right to know,which should be paid enough attention to.Third,fill in the legislative blank of the criminal procedure law amendment(hereinafter referred to as the new criminal procedure law)in 2018 to clarify the scope of application and strictly limit the application of the trial procedure by default.Because the death penalty has a very special severity,it is the deprivation of the defendant’s life and should be excluded from the scope of application.Fourth,the close relatives of the accused and the defense lawyers often maintain stable information exchanges with the accused in the process of the accused’s flight.Expanding the close relatives and defense lawyers as the main body of service,using the characteristics of their stable contact with the accused,can improve the efficiency of service and ensure the substantive service;at the same time,the procuratorial organ bears the burden of proof for the substantive service of litigation documents.As for the form of service,because it is difficult to meet the requirements of "clear and voluntary",it is arbitrary and abusive,and easy to make the mistake of pursuing efficiency and sacrificing procedural justice,the service of public announcement should be excluded.In addition,as a newly established criminal legal system,the trial by default system,together with the procedure of confiscation of the property of the suspect and the defendant who escaped and died,such as the wings of birds and the two rounds of vehicles,is indispensable in the international pursuit of stolen goods.Both are special procedures,and there is a certain degree of cross,legislators should consider in the system design.The two procedures have their own advantages under their respective legislative background,which should not be combined into one,and should be used flexibly to make them better connected,so as to play their respective values in the criminal procedure law.To sum up,we need to constantly revise and improve the system of trial by default in practice,so as to ensure the legal and reasonable operation of the system.