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Reference Value Of Japanese Pretrial Conference Procedures To Chinese Pretrial Conference

Posted on:2021-04-21Degree:MasterType:Thesis
Country:ChinaCandidate:S H JiangFull Text:PDF
GTID:2416330647954327Subject:Procedural Law
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As a newly established procedure in the criminal procedure law of 2013,the pretrial conference focuses on solving the matters that may cause the interruption of the trial,improving the efficiency and creating conditions for the smooth progress of the trial.However,the provisions of the criminal procedure law are not detailed enough so that there are many problems in practice,resulting in a number of judicial interpretations and other documents that make detailed provisions for the pretrial conference.But even so,many problems in the pretrial conference in China,such as the application scope is not unified,the legal effect is not clear,the provisions of evidence discovery are vague,and the rights of the defendant are not fully guaranteed,have not been fundamentally resolved by the come-up of the above provisions.As one of the pre-trial preparation procedures in Japan,the purpose of the Pretrial Conference Procedure is to realize the rapid and centralized operation of the trial.In view of the similar characteristics of civil law system and background of legal reform before the introduction of the procedure in China and Japan,the author believes that the Pretrial Conference Procedure in Japan has the reference value for the improvement of the pretrial conference in China.Based on the judicial theory and practice in China,the author studies the content of the Pretrial Conference Procedure,analyzes many problems existing in the pretrial conference in China,analyzes the significance of the Pretrial Conference Procedure on the reform of the pretrial conference in China,puts forward several the improvement measures in the pretrial conference,and also pays attention to emphasizes avoiding the problems existing in Japan's Pretrial Conference Procedure,so as to avoid the same problems Japan's Pretrial Conference Procedure while the pretrial conference plays a substantive role.In addition to the introduction and conclusion,this paper is divided into four parts to analysis as followed :The first part: It gives a brief overview of Japan's Pretrial Conference Procedures and introduces the theoretical basis of the comparative study between the Pretrial Conference in China and the Pretrial Conference Procedure in Japan.On the one hand,the author briefly introduces the Pretrial Conference Procedure in Japan.First of all,it expounds that the Pretrial Conference Procedure is mainly focused on the collation of evidence and issues.Secondly,the procedure is divided into three stages,which are prosecutor's testimony,defender's testimony and court summary.Thirdly,it summarizes the important significance of the Pretrial Conference Procedure in promoting the centralized trial of cases to help the referees and protect the defense right of the,.On the one hand,first of all,it expounds that the two countries have similar characteristics of civil law legal system,including the purpose of finding truth and protecting human rights in the concept of criminal procedure,as well as the purpose of promoting the substantiation of trial,protecting the centralized trial and protecting the defense right of the defendant.Last,from the legal reform background of the two countries,it discusses the alienation of the court judgment mode and the low efficiency of the trial caused by the whole case transfer doctrine and the indictment one doctrine.and the restriction of the right of the defenders to know the evidence leads to the unequal information between the prosecution and the defense.The second part: this chapter analyzes the start of the procedure between the two countries' procedures.First of all,from the start-up conditions,start-up main body,the participation of the main aspects of comparison,draw the difference in judicial practice caused by the different terms of the two countries,as well as the defendant's different ways to protect the rights of different degrees of protection.Secondly,it discusses the problems existing in the pre-trial meeting of our country through the comparative analysis of the start-up,mainly including the confusion of the start-up conditions,the pre-determination of the host,the inadequate protection of the defendant's right to participate and the right to defense.In the end,it draws on the advantages of Japan's pre-trial reorganization procedure and offer suggestions to make improvement in connection with China's national conditions.The third part: this chapter starts from the content between the two countries.First of all,the paper compares the specific issues of the two countries and discusses the differences between the two countries from procedural matters,substantive matters and procedural remedies.Secondly,through the comparative analysis,we can find the problems in the issues,evidence display and relief ways.At last,the author puts forward her own opinions on clarifying the scope of issues,improving the evidence discovery and clarifying the relief ways.At the same time,it points out that there is a tendency of long-term trial in Japan's Pretrial Conference Procedure,and reminds China to avoid falling into the same situation when referring to relevant contents.The fourth part: it compares the effectiveness of the two countries' procedure to the trial.First of all,in terms of the provisions of legal effect,both countries have reflected that they should have a certain substantive effect on the trial,but the level of normative documents that produce legal effect in China is not high enough.Secondly,it analyzes the existing problems and the reasons of the legal effect of the pre-trial meeting in China from the aspect of literal interpretation and legal theory,mainly including that the criminal procedure law does not stipulate the effect of the pretrial conference,while the legal rank of the pretrial conference is relatively low.At last,the author put forward her own opinions on the improvement of effectiveness.
Keywords/Search Tags:Pretrial Conference, Evidence Discovery, Rights Protection of the Defendant, Pretrial Conference Procedure
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