A Study On The Fairness Of My Country's Criminal Trial By Default System

As an exception to the normal trial,the trial in absentia has been established both in the civil procedure law and administrative procedure law of our country for a long while which has been working well in the current judicial practice.In 2005,with the approval of the UN Convention against Corruption by the standing committee of the National People's Congress,a new wave of the research of trail in absentia was greatly inspired.The mainstream theory holds that,for the urgent need of fighting against corruption and dealing with the phenomenon of prolonging and accumulation of many cases in practice,as well as strengthening the connection with the extraterritorial criminal litigation system,it is indeed necessary for China to construct the system of trial by default to improve the criminal proceedings.Nevertheless,the development is always full of twists and turns.Due to various reasons,the trial in absentia was not accepted by the law amended in 2012.Instead,the procedure of independent confiscation was added.Since the 18 th National Congress of the Communist Party of China(CPC),with the introduction and constant refinement of “eight regulations of austerity” and other policies,the crackdown on corruption in China has been continuously intensified,so that the strengthening of the international cooperation on fugitives and assets,as well as judicial cooperation,is needed.For these purposes,the criminal procedure law was amended in 2018 and the procedure of trial in absentia was finally introduced.As a procedure with inherent deficiency,criminal trial in absentia focuses on the litigation efficiency and litigation economy,of which the expense is the sacrifice of procedural justice and rights of the defendant that violates the conception of due process and protection of human rights to some extent.Therefore,its application must be strictly limited in practice.Although China has initially constructed the system of criminal trial in absentia,and made corresponding provisions on its suitable situation and scope,determination of jurisdiction,protection of the rights of the accused and its right relief,etc.,it has just started,and many provisions are abstract and insufficient,which need further study and improvement.In addition,the way to guarantee the justice in operation of the system in the judicial practice in the future and to strengthen effective connection with other procedures is worthy of further exploration,so as to keep the balance between fighting against corruption,promoting the litigation efficiency and securing the justice of the procedure operation,which can help eventually achieve an organic unity of legal effect and social effect.Based on the system of trial in absentia,this paper mainly focuses on its justice theory,combined with the experiences of main foreign developed countries and international organizations.Besides,the discussion of related concepts,characteristics and theories,as well as further analysis on the present situation,shortcomings and some other problems that might be faced with in the future about the justice of the system under domestic legislation and judicial practice is also referred,hoping to provide certain reference for the perfection of prospective legislation and procedure operation.This paper is mainly carried out from the following four parts:Chapter one overviews the system of criminal trial in absentia,which mainly introduces the background and main contents of recent legislation,concept,characteristics and value of the system,as well as the relationship between the trial in absentia and the independent confiscation.Chapter two demonstrates the justice of trial in absentia,mainly concentrating on a remark of theoretical basis about the justice of the criminal trial in absentia.Chapter three is a research on comparative law of foreign criminal trial in absentia.Taking four nations and some other international organizations as samples,the paper introduces the legislative provisions and relevant cases of criminal trials in absentia,and highlights the provisions on the guarantee of justice,so as to provide reference for the study of the guarantee of justice of trials in absentia in China.Chapter four is an overall analysis of the fairness of criminal trials in absentia in China.It introduces some related academic disputes.In addition,the viewpoints and attitudes of the paper on the aforementioned disputes are also stated.This chapter also discusses the concrete operation of the guarantee of justice about criminal trial system in absentia.Based on the three suitable situations regulated by law and the sequence of criminal procedures,the discussion and envisagement on how to guarantee the procedural justice and entity justice of trial in absentia within the practical procedure operations is mentioned in detail.