Study On China's Criminal Default Trial System

On October 26 2018,the Sixth Session of the Standing Committee of the Thirteenth National People's Congress voted to adopt the Decision of the Standing Committee of the National People's Congress on the Amendment of the Criminal Procedure Law of the People's Republic of China,marking the establishment of the criminal trial by default system in the form of legislation in China.The establishment of the criminal trial by default system in China not only reflects the determination of the state to fight corruption and pursue stolen goods overseas,but also reflects the trend of our country to seek international cooperation in accordance with the rule of law in other countries.Judging from the legislative provisions of some foreign countries which have established the system of criminal trial by default,although the system of criminal trial by default differs in concept,type,scope of application and characteristics.However,the theoretical basis of system construction is similar,including the procedural law foundation of compulsory prosecution for guilt and compulsory prosecution,the criminal law value of general prevention,and the economic value of improving litigation efficiency.In addition,the system of criminal trial by default also meets the general requirements of human rights protection.It does not restrict the defendant's right to be present in court,the right to defense and other lawsuit rights,and does not violate the principle of direct speech and the principle of "no compulsory self-incrimination".The Criminal Procedure Law of the People's Republic of China regards China'scriminal default trial procedure as a special procedural provision.In Chapter 3 of Part5,seven articles are shared to introduce the content of the criminal default trial system.In the process of analyzing these contents,we find that there are still some problems in the current system of criminal trial by default in terms of legislative technology and provisions,such as imprecise classification of cases,difficulty in guaranteeing the effect of service,insufficient protection of defendant's right to defend and imperfect protection mechanism of defendant's relief rights.To solve these problems,we can optimize and perfect our criminal default trial system from the legislative technical level,the system improvement and rights protection level in the procedure,the system construction outside the procedure and supporting measures.At the technical level of legislation,it is necessary to rationally distribute three types of criminal trial by default,at the same time,regulate the expression of provisions and reduce the defects in legal statements.In the procedure,we can start from two aspects: system improvement and rights protection,flexibly apply the service mode to protect the defendant's right to know,clearly stipulate to effectively protect the exercise of defendant's right to defense,appropriately extend the period of appeal,and re-examine the judgement which objected to the defendant conditionally in order to safeguard the authority of the judgment and the stability of the law.Outside the procedure,we can start from the system construction and supporting measures,perfect the connection between the criminal default trial procedure and the illegal income confiscation procedure,ensuring effective defence by lawyers,implement the principle of open trial,and accumulate the experience of criminal default trial in practice to provide a good external environment for the operation of our criminal default trial system.As a new system,the system of criminal trial by default has the necessity in the international context,the practical feasibility and the theoretical legitimacy in the domestic context,but its operation in our country has no local practical experience to refer to.We need to find and solve problems through continuous practice in the future judicial practice,so that the criminal trial by default system can run smoothly in our country.