A Comparative Research On The Trial In Absentia

In 2018,China established the trial in absentia system.For our country,the trial in absentia is a brand-new system,but there are many mature experiences outside the region.When constructing the trial in absentia system,China referred to many foreign experiences.In addition,the conduct of trial and enforcement of judgments is closely related to the assistance and cooperation of extraterritorial judicial authorities.Therefore,it is necessary to directly study the relevant extraterritorial systems in order to further improve China's criminal default trial system.Protecting the defendant's litigation rights is the central topic of criminal litigation.In terms of protecting the rights of the accused,there are three procedures in the trial in absentia system that are closely related to them,namely,the service procedure,defense procedure and relief procedure,which correspond to the defendant's right to information,defense and relief.Based on this,the main content of this paper is the research on the typical service procedure,defense procedure and relief procedure in the trial in absentia system of a foreign country or an international trial organization.And discussing establishment of service procedures,defense procedures,and relief procedures of trial in absentia.The full text consists of an introduction and six parts.The introductory part explains the origin of the research,briefly reviews the current research of the trial in absentia system,and chooses comparative method as the main research method to study the trial in absentia system.The first part is an analysis of the theoretical basis of trial in absentia system.This section consists of three sections.The first section analyzes the theory of waiver of rights.The waiver of rights means that defendants who have rights also have the freedom to waive their rights.Once the defendants voluntarily waive their rights,the court can initiate absentia trials.The trial in absentia based on the theory of waiver of rights emphasizes the subjectivity and initiative of the defendant.The court must start the trial in absentia after confirming that the defendant knows and voluntarily waives his rights.The second section analyzes the theory of forfeiture of rights.The theory of forfeiture of rights means that the defendant loses his rights due to his misconduct,which gives the court a justifiable reason to start a trial in absentia.In the trial in absentia under the theory of forfeiture of rights,the court has a more active position than the defendant.Once it is determined that the defendant intentionally evades or obstructs the trial with his actions,the court can conduct a criminal default trial in order to maintain the smooth progress of the trial.Trial in absentia under two different theories have different emphasis on power and rights.Clarifying the theoretical basis is helpful for a more systematic comparative study of specific procedures,and it also helps to improve China's trial in absentia system.The second part is a comparative study on the procedure of service in trial in absentia.This section can be divided into four sections.The first section discusses the significance of the service procedure to the trial in absentia procedure,which is concentrated in the meaning of service to the right of option and equal arms.The right of option is a natural right of the person.In the litigation procedure,the defendant has the right to choose,and the right to decide procedural matters related to his own rights.The concept of equal arms is an inevitable requirement of adversarial litigation system.In the trial in absentia procedure,the absence of the defendant puts forward higher requirements for equal arms.Service as a means to protect the defendant's right to know is the prerequisite for equal arms.The second section discusses the first mode of the foreign service procedure of trial in absentia,which is the loose service mode.The loose service mode does not make special requirements on the effectiveness of service,and there is a risk of infringing the defendant's rights.The third section discusses the second mode of the foreign service procedure of trial in absentia,namely the strict service mode.The strict service mode places strict requirements on the effectiveness of the service procedure.The validity of service is directly related to the legality of the procedure.The strict service mode has positive significance in protecting human rights and promoting procedural justice.The fourth session compares the two service modes,and comprehensively analyzes them.The third part is a comparative study of the defense procedure in trial in absentia.This section consists of four sections.In the first section,the significance of defense including the significance in protecting human rights and investigating facts of cases.On the one hand,the defense procedure plays a role in protecting the rights of the defendant,and on the other hand,a full and effective defense is conducive to digging the truth of the case.It can be said that defense has positive significance in guaranteeing the fairness of the procedure and the impartiality of the criminal trial.The second section analyzes the non-mandatory defense mode of the defense procedure in trial in absentia outside the territory.In trial in absentia,the United Kingdom adopt a nonmandatory defense mode.If the defendant is not appointed by the absent defendant,nor does he apply to a legal aid agency to appoint a legal aid defender,the court will decide whether to appoint a defender for the defendant according to the circumstances of the case.The third section analyzes the rules of compulsory defense for trials in absentia.In the trial rules and practical jurisprudence of the Special Tribunal for Lebanon,the court is required to protect the defendant's right to defense.If the defendant has not appointed a defender,the court shall provide legal aid to it.The fourth section reviews and analyzes two different defense models.It is clear that compulsory defense guarantees the defendant's right to defense and it meets the requirements of human rights protection.It also helps to ensure the legitimacy and fairness of the criminal trial in absentia procedure.The fourth part is a comparative study of the relief procedure in trial in absentia.This section is divided into four sections.The first section,the significance of relief,mainly includes the significance in ensuring substantive fairness of criminal procedure,and the importance in balancing the relationship between fairness and efficiency of litigation.The second section discusses the first relief mode in the extraterritorial trial in absentia system,namely the ordinary relief procedure.Under the ordinary relief mode,the defendant who is tried in absentia has no special right to relief,and his right to relief is the same as that enjoyed by the defendant in ordinary trial.The special relief mode discusses in Section III is different.In addition to the right to appeal or retrial,the absent defendant also has other relief rights,and this special relief right usually has the right to deny an effective default judgment,namely objection.The fourth section compares and analyzes the two relief modes.Countries or regions adopting ordinary relief modes generally choose to impose strict restrictions on the commencement of trial in absentia,so there is no need to expand the relief rights.Under the special relief mode,the initiation of trial in absentia is more relaxed,so it is even more necessary to grant the defendant additional relief rights.The fifth part is a review of the criminal trial by default system in China.On the basis of the previous comparative study,the author reviews the existing procedures in China and analyzes their deficiencies.The first section,Chinese trial in absentia service procedure is insufficient.The most important problem is that the basic status of service procedure is not clear in Chinese law.Service procedure should be the procedural premise for courts to conduct trial in absentia.In addition,there are still some deficiencies in the design of specific rules of service procedure,and the existing legal provisions are relatively simple.The second section is the analysis of the insufficiency of the defense procedure.The existing defense procedure do not provide for the legal aid promptly.However,the particularity of absentia trial procedures decides the legal aid defense should intervene in the proceedings in advance.It will not be enough to protect the rights of the accused if the court appoints legal aid defender after the trial begins.At the same time,in the trial in absentia procedure,the close relatives of the defendant shall participate in the defense procedure in trial in absentia to protect the lawful rights and interests of the defendant because of the special connection and natural emotional relationship between them.However,the law does not specify the rules for the close relatives to participate in the defense procedure of trial in absentia.Section three analyzes the shortcomings of the relief procedure of trial in absentia in China.The person prosecuted in trial in absentia may exercise the right of appeal,the right to apply for retrial and the right of objection,and the relationship between these three rights should be clarified to avoid confusion in practice.Afterwards,the specific rules of relief procedure of trial in absentia should be modified to improve the unification of law application.In addition,the law does not properly limit the right of independent appeal of the accused's close relatives and the right of objection of the criminal,which may lead to the abuse of the right of relief and affect the stability of the procedure.The sixth part is the suggestion to improve the trial in absentia system by default in our country,including three sections.In the first section,the author puts forward some suggestions for the improvement of the service procedure,including the time of service,the subject of service,the method of service,the content of service,the subject served and the proof of effective service.The second section is the discussion of the defense procedure,including the timing of the legal defense to intervene in trial in absentia,the litigation status of the close relatives of the defendant in trial in absentia and the construction of the specific participation rules.Section three is a suggestion on the improvement of the relief procedure of trial in absentia.In terms of the appeal procedure,there is still room for further improvement in the subject of appeal,the reasons for appeal and the time limit for appeal.As regards the objection procedure,the author conceives the rules of the reason for raising the objection,the validity of the objection and the time limit for the criminal to exercise the right of objection.