Research On The Qualitative Question Of The Criminal Court Trial

The substantiation of court trials is an important part of the reform of the litigation system with “judicially as the center”.It requires “factual evidence investigation in court,conviction and penalty debate in court,and referee results in court”.As the central link of criminal trial,cross-examination is the core of the substantive reform of the trial.However,for a long time,the formalization of cross-examination in court in China has been extremely serious and needs to be resolved.Therefore,based on the status quo of China's criminal trials,this paper discourses the discourse of the substantiation of cross-examination,analyzes the phenomenon and causes of the non-substantiation of criminal cross-examination,and explores the path for the substantive reform of cross-examination in China.In addition to the introduction,the full text consists of four parts,approximately 47,000 words.The first part studies the basic theories of the substantiation of the cross-examination in the criminal court.It mainly includes four aspects: First,it interprets the connotation of the substantiation of cross-examination.From the perspective of semantics," substantiation of the cross-examination " means that cross-examination activities should be based on their specific attributes,to achieve its own intrinsic value,to play its due function.The second is to demonstrate the scope of application and the scope of evidence for the substantiation of cross-examination.It should be clarified that the reform of the substantiation of cross-examination does not mean that all cases need to be substantively cross-examined.There are two types of cases requiring substantive cross-examination: the defendant's case of refusal to plead guilty and the case of possible imprisonment and the death penalty.In addition,under the premise of guaranteeing the right of reviewing and revoking the cross-examination of the cross-examination,the evidence of no objection may not be substantively cross-examined.The third is to refine the basic requirements for the substantiation of cross-examination.The substantiation of cross-examination includes both formal and substantive requirements: Formally requires the subject of the cross-examination to face each other in an equitable structural position,essentially requiring the satisfaction of the “three adequate” elements,that is,the evidence-giving party can fully present the evidence,cross-examination to fully understand the evidence,Both parties can fully express their opinions.The fourth is to explain the significance of the substantiation of cross-examination in the context of the substantive reform of court trials.Judging from the judicial practice,the formalization of the court debate stage is not outstanding,and the core of the substantiation of court trials should focus on solving the problem of the substantiation of cross-examination.The second part is to study the reality of the non-substantiation of the cross-examination of the criminal court.Considering the typicality and comprehensiveness of the sample,through collecting and analyzing a large number of trial transcripts,viewing and statistics of most trial videos,designing and publishing relevant online questionnaires,and several criminal cases in Chongqing,Gansu,Xinjiang,Tibet,Qinghai and Guizhou.Judges and prosecutors exchanged views and extensively and in-depth understanding of the status quo of China's criminal courts.It can be found that there are serious problems in the non-substantiation of the criminal trials in China: First,the proportion of cross-examination time to the total time of court trials is relatively low,which demonstrates the formal features of cross-examination.Second,there is serious non-substantiation of evidence.The public prosecutors used the comprehensive evidence methods such as mass proofs,excerpts,proof readings,etc.,resulting in inadequate proof of key evidence.Influenced by "files-centricism," witnesses,appraisers,and investigators remain at a very low level.Thirdly,there are also unsubstantiated phenomena in the stage of the cross-examination.The prosecution did not defend the majority of the defense's cross-examination opinions.Even if it responded,it responded very generally.Defendants rarely issued cross-examination opinions.Even if they spoke,they were mostly unclear and reasoned.Defense lawyers have the tendency to “reform entities,light procedures”,“weight penalty,and light conviction”,and their enthusiasm is not high,and the cross-examination opinions are not comprehensive and effective.Fourth,there are also unsubstantiated phenomena in organizing and guiding the cross-examination of judges.The judge presided over the cross-examination activities and often interrupted the defense to issue cross-examination opinions.Fifth,there are also unsubstantiated phenomena in the cross-examination of some special evidences.For example,in the case of technical investigation evidence cross-examination,the tension between investigators' court protection and effective cross-examination cannot be resolved.The defense requires the prosecution to provide related approval procedures.The cross-examination opinions cannot be supported either.The low appraisal person's court appearance rate,the lack of scientific evidence verification methods,and the absence of cross-examination rules lead to the form of evidence of scientific evidence.In addition,due to the retreat of the "preliminary investigation" and the specific rules for the investigation of the legitimacy of evidence,there are still flaws,so that the cross-examination of illegal evidence has not been materialized.The third part analyzes the reasons for the non-substantiation of the criminal cross-examination.There are many reasons for the non-substantiation of the cross-examination in criminal trial.First of all,there is a lack of systematic procedural rules for trial and cross-examination in legislation,excessively rough proof rules in the prosecution,incomplete investigation rules for the witnesses,lack of rules for judges to pretend cross-examination,and in-house certification,leading to prosecution proofs,witness investigations,judges The activities such as hosting a cross-examination are chaotic and disorderly.Second,there are deficiencies in the attitudes,abilities,and concepts of relevant litigation entities.The defendant lacked legal knowledge,lacked the ability to cross-examine,limited the level of practice of some defense lawyers,had a negative attitude to cross-examination,and the judicial philosophy of prosecutors and judges was backward.Third,the supporting systems and safeguard mechanisms in litigation are not perfect.Witnesses,appraisers,investigators,expert assistants and other court appearance systems have not yet been implemented.The functions of the pre-trial conferences have been blurred,and the judgment documents have failed to fully reflect on the process of cross-examination.The court's protection of the defendants and defense lawyers is still in protection.Lower level.Finally,the related lawsuit outside the lawsuit has a negative effect.The incompleteness of the case shunting system leads to low efficiency of litigation and the shortage of judicial resources,which in turn affects the process of substantive verification.The post reform led to an unreasonable allocation of human resources and increased the pressure on the case.The fourth part studies the reform path of the substantiation of cross-examination in criminal trial in China.The substantive reform measures for cross-examination are mainly divided into three aspects.First of all,the legislature tried to establish a procedural rule system for trial verification.First,on the basis of the "Dispute Investigation Procedures",we will further clarify the way in which key evidence and dispute evidence are presented,and simplify or even omit proofs of non-objective non-key evidence.Secondly,the rules of cross-examination of cross-examination and the actual conditions of our country are used to improve the rules of interrogation and defense.Third,we must clarify the organization of the judges,guide the cross-examination rules,and establish corresponding sanctions and relief provisions.Fourth,we must follow the principle of proportionality,combine the specific circumstances of the case and comprehensively select the methods of testimony of technical investigators,and improve the rules for cross-examination of technical investigation evidence.Fifth,using authenticity and legality as the basis for cross-examination,and constructing cross-examination procedures for specific scientific evidence based on the physical characteristics and attributes of different scientific evidence.Sixth,improve the relevant provisions of illegal evidence to exclude cross-examination.The discretion of judges who disqualify disputed evidence of legality may not be simplified.Rigidity requires a "preemptive investigation," and the deletion of the proviso shall improve the legality investigation procedures and rules under certain specific circumstances.Second,strengthen the cross-training training and judicial escalation of related subjects.Improve the ability of judges to preside over inferences,the ability to authenticate in court,and the ability of judges to analyze arguments,and improve the ability of court prosecutors and defense lawyers to prove their prosecution,cross-examination,and argumentation capabilities,so that the judiciary-centered philosophy and spirit are deeply rooted in the hearts of the people.Third,implement the relevant supporting systems and safeguard mechanisms in the lawsuit.First,continue to promote witnesses,expert witnesses,expert assistants,and investigators to appear in court.It is clear that testimonies appearing in court but not appearing in court do not have the capability of evidence,reform the conditions for the appearance of witnesses in court and the remedy provisions,and the Politics and Law Commission issued relevant documents to coordinate the settlement of witnesses' compensation in court,the protection of witnesses,and the enforcement of witnesses to appear in court.Cancel the court's right to examine whether investigators appear in court,and make it clear that investigators should be interviewed when they appear in court.Second,on the basis of the "Procedures for Handling Criminal Cases before the Court",the pre-court meeting will be further improved.The principle of expanding the scope of application of the pre-trial conference,clarifying the defendant's participation in pre-court meetings,and implementing various functions such as the opening of evidence in front of the pre-trial conference and the consolidation of disputes,and implementing the interface mechanism between the pre-trial conference and the trial.Third,standardizing the judgment of the referee documents has forced the authenticity of the evidence.The judgement documents shall record the circumstances in which the pre-trial conference determines the contention of the evidence,the opinions and propositions of the prosecution and the defense in the process of the trial,the theoretical evidence,and the conclusion of the adoption of the evidence.Fourthly,with the right to review as the core,the defendant's right to cross-examination is further guaranteed.The defendant was given the right to review the document,improve the legal aid system,safeguard the accused's right to cross-examination,upgrade the hardware facilities,establish a corresponding relief system,and give the defendant the right to relief.Fifth,strengthen the protection of defense lawyers' right to investigate and collect evidence,verify the right to evidence,and express opinions.The court was requested to refuse the application of the defense lawyer's investigation of the application for the exception,the justification of the reasons and the decision to physics.