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Research On The Restriction Of The Application Of Written Testimony In Criminal Trial In China

Posted on:2021-04-27Degree:MasterType:Thesis
Country:ChinaCandidate:R HeFull Text:PDF
GTID:2416330626454440Subject:legal
Abstract/Summary:PDF Full Text Request
The written testimony,because of the nature of its presentation in written form,determines its incomparable convenience compared to the witness testimony in court,but in addition,it is also because of its written nature that it also determines that it has"false" The characteristics of "possibility" and the potential risks brought by the use of the evidence as a lawsuit.From the first "Criminal Procedure Law of the People's Republic of China" to the current "Criminal Procedure Law of the People's Republic of China",its attitude towards written testimony has never been restricted.As a result,written testimony was "unimpeded" in our court trial "The prosecution used a large amount of written testimony as evidence of the allegations,and was widely adopted as the basis for the verdict.This method of use undoubtedly constitutes a potential threat to the fairness of the trial.According to the requirement of "substantialization of court hearings",court hearings provide evidence in court,and facts are found in courts to protect litigants' litigation rights so that every citizen can feel fairness and justice in the judiciary.Therefore,it is urgent to restrict the use of written testimony,cut off the reliance of judicial organs on written testimony,and improve the phenomenon of unreasonable use of written testimony in China.Restrictions on the application of written testimony cannot be “extreme”.In other words,it is necessary to take into account the advantages of written testimony,and at the same time to avoid the harm of written testimony to the justice of litigation.This harm includes both impact on physical justice and damage to procedural justice.This article first starts with the current situation of the use of written testimony in China,and explores the current use of written testimony by the prosecution in China and the appearance of witnesses through empirical research.It is found that the current rate of witnesses in China is extremely low.Most of them will be used as the basis for conviction and sentencing,which includes both direct adoption when the "defense is not in dispute" and also "when the defense is in dispute",the appearance rate of dissent witnesses is low,and the written testimony of the dissent is still adopted in two forms.Secondly,combined with the nature of the written testimony to discuss the situation,"non-controversial" to ensure that the use of written testimony has a certain rationality,has a good role in promoting the efficiency of litigation.However,the testimony that the defense has objections is directly adopted when the witness does not appear in the court,and even the key testimony that the defense raises the objection is directly used as the basis for the conclusion of the case without the witness appearing in the court.This is undoubtedly contrary to the concept of fair trial,not only Procedural justice is impaired,and it brings potential risks to the realization of substantive justice.At the same time,this is also very different from the original intention of China's key witness system.Again,the need to put forward restrictions on written testimony,regardless of whether the objection to the written testimony has a significant impact on conviction and sentencing,when the defense has objections to it,the fact that it represents the accusation has not been approved by the defense,either The consideration of substantive justice or the consideration of procedural justice requires the dissent witness to appear in court and avoid the use of written testimony.Finally,combining the relevant experience of restricting the use of written testimony outside the territory,and the current actual situation in China,the paper puts forward a system conception of restricting the use of written testimony based on the relevant concepts of the principle of direct speech.
Keywords/Search Tags:Written testimony, fair trial, principle of direct speech, rules of hearsay evidence
PDF Full Text Request
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