The Study Of China's Criminal Trial In Absentia

In China's criminal litigation field,the discussion on trial by default has never stopped.Whether trials can be conducted in absentia and how to be absent are both theoretical and operational issues.With the amendment of the Criminal Procedure Law,the criminal default trial system was formally established.There are currently only 7 articles.The jurisprudential level is in preliminary discussion and analysis,and the practical level has not been fully tested and explored.What follows is how to refine the relevant procedural mechanisms for absent trials in the future to ensure the procedures.The utility is really there.For the improvement of the criminal absence system,it is necessary not only to solve the problem of the new type of application,but also to deal with the inherent rights protection requirements.The article is divided into four parts to discuss this problem including basic theory,extraterritorial investigation,system exploration,and program improvement.The first part is the basic theory of criminal trial.Starting from the definition of absence to discuss the system concept of criminal default trial,then introduce the past attempts of criminal default trial in our country.From that,start to talk about the theoretical basis of the system from three levels: the nature of the defendant's presence in court,the multiple orientation of litigation value,and the internal coordination of the procedure.Finally,make a list about objective needs of the response in the system from the actual needs of China's anti-corruption and the future perfection trend of the criminal procedure law.The second part is the comparative law investigation of criminal trial.This part summarizes the system of absentia trials in representative countries such as the United Kingdom,the United States,Germany,and France into three aspects.The first is based on the understanding of absentia and the qualitativeness of the trial presence,there are two understanding of absence and three kinds of attitudes towards presence of trials.Second,from the scope of application of absentia trials,there are two modes of applying misdemeanor and misdemeanor felony.Third,from the guaranteeing the basic rights of trials in absentia,talk about the right to information,the right to defense,the right to appeal,and the right to object from four representative countries to learn advanced experience.Finally,try to summarize the common features or useful experience of extraterritorial criminal default trial system,which provides a good reference and useful reference for China in the process of constructing and improving the criminal default trial system.The third part is the problems of criminal absence trial system.According to the system clauses and operating conditions,try to analyze China's criminal default trial system,and find out the confusion in system application from multiple aspects.The first is the type of application,mainly from three perspectives: legislative model,semantic understanding,and external cohesion.The current system is confronted with legislative confusion,fuzzy semantic understanding,and poor external cohesion.The second is basic rights,from actual knowledge,effective defense of lawyer and the exercise of the right to relief to analyze the blank areas of litigation rights protection.Finally,it is a dispute with the application of the procedures for illegal income.In view of the coexistence of the two existing,starting from the similarities and differences between the systems,then analyzes the application of the competition and cooperation,and find out two systems current problems.The fourth part is the improvement of criminal default trial.The problems in criminal default trials may lead to the system ineffectiveness.How to improve the system needs to discuss one by one from the application type of the system,such as the protection of basic rights,the identification of the competition and cooperation procedures.First,as a new procedure which born in a special period,criminal default trials should not be explored new types of trials.Instead,we should reconstruct the existing types,which can be made to clarify the application model,improve the protection of basic rights,and clear the boundaries of the joint competition process.Second,the right protection mechanism should be strengthened,mainly by improving the level of delivery to ensure knowledge and increasing lawyers' participation.Finally,in order to further effects of the system of functions,it is significance to make the boundary clear between the absence trial system Trial and procedures for illegal income.On this basis,the combined "1+1>2" effect of the two programs can be achieved.