Research On The System Of Criminal Trial By Default

On October 26,2018,the Sixth Session of the Standing Committee of the 13 th National People's Congress voted to adopt the Decision on Amending the Criminal Procedure Law.The new law creates the trial by default procedure in the fifth chapter of Criminal Procedure Law,and makes institutional arrangements for the trial by default.The enactment and implementation of China's criminal trial by default system has great significance in combating these criminal,such as,corruption and bribery,terrorism and crimes against national security,and will solve the problem that delaying court proceedings in because of without the defendant attendance in the court.However,it is a new system in China,and the relevant implementation rules are not perfect.Whether it can be implemented smoothly and the effects after implementation are cant not accurately foresee.At the moment,the practice of trial by default has already existed in other countries,and has achieved good results.Comparing the legislation of China and foreign countries,we can find that there are some differences between China's criminal trial by default system and foreign criminal trial by default system.For these differences,we should take the actual situation of China and the background of judicial reform into account,and learn from these useful experience,abandon unreasonable points,and improve the criminal default trial system considering Chinese characteristics.It should be pointed that the protection of human rights and the procedural rights of the accused should be taken as the center in the reform,whether in the learning of foreign beneficial experience or judicial reform.The article is divided into four parts: The first part introduces the origin and concept of criminal trial by default,and the legislative status and background of China's criminal trial by default system.The second part introduces the legislative cases of foreign countries,lists the relevant legal provisions of four foreign countries about the criminal default trial system,and compares the similarities and differences between China and foreign countries in the criminal default trial system.The third part mainly introduces the problems that need to be solved in China's criminal trial by default system,which mainly embodies in four aspects: legislation,human rights protection,procedural rights protection of the accused and the relief procedures of criminal trial by default.The fourth part puts forward a series of suggestions solving the problems of China's criminal trial by default.In terms of legislative provisions,it puts forward the viewpoints that clarifying the sequence of application between criminal trial by default procedure and special confiscation procedure,establishing the applicable principles between criminal trial and criminal trial by default,and adjusting the content of criminal trial by default.In terms of specific application,the principle of proportion should be introduced into criminal trial by default,and it is necessary that setting up a series of strict systems of criminal trial by default via urging the defendant to attend the court,telecommuting trial and strict application conditions.In the application of criminal trial by default,the procedural rights of the defendant should be guaranteed from three aspects: granting,learning the truth and refusing defending.In terms of relief rules,we should refine the conditions of the retrial,and clarify the time,subject and way in the applying of the right to dissent.