| With the continuous progress of the substantial reform of the trial,it puts forward a higher standard for the public prosecutor to support the public prosecution in court.In order to meet the needs of the reform,the Supreme People’s Procuratorate issued the guidelines for the work of public prosecutors presenting evidence and cross examination in court(hereinafter referred to as the guidelines),which specifies in detail the responsibilities of public prosecutors in non confession cases.The guideline has been implemented for more than a year.What are the current situation and problems of public prosecutor’s performance? Why? How to improve the work of public prosecution? This paper intends to analyze these issues,hoping that through the research of this paper,we can improve the public prosecutor’s work of proof and cross examination in the case of not pleading guilty,so as to promote the reform of the litigation system of "trial centered".In addition to the introduction,the text is divided into five parts,the full text of more than 39000 words.The first part studies the necessity of strengthening the public prosecutor’s evidence cross examination in the case of not pleading guilty.The problem of false trial has a long history,which has seriously affected the development of criminal procedure in China and seriously damaged the rights and interests of the defendant.In view of this,the Fourth Plenary Session of the 18 th CPC Central Committee put forward the reform of "trial centered" litigation system,the most important of which is to realize the substantive trial.In this environment,as one of the participants in the trial,the public prosecutor must take this opportunity to change the working mode of proof and cross examination and improve the working level.This is not only conducive to the prosecutor to effectively complete the prosecution activities,but also conducive to the judge to accurately determine the facts of the case.The second part investigates the current situation of the public prosecutor’s evidence cross examination in the case of not pleading guilty.By comparing the requirements of the guidelines,it can be seen that the work of public prosecutor’s evidence cross examination mainly focuses on conviction.In the aspect of proof,interrogate the defendant around the objection point,and focus on the interrogation,so as to clarify the attitude of the defendant.The scope of proof is related to the facts of conviction,and the facts of sentencing are rarely presented separately.In the aspect of cross examination,the prosecution can issue sufficient cross examination opinions on the evidence submitted by the defense,give the defense a reasonable explanation,respond to the doubts about the legality of the evidence,solve the doubts for the defense,refute the other party’s inappropriate cross examination opinions,and reiterate the establishment of its own opinions.The third part investigates the problems of the public prosecutor’s cross examination of evidence in the case of not pleading guilty.By comparing the requirements of the guidelines,we can see that the work of public prosecutor’s cross examination of evidence presents a formal feature.The public prosecutor didn’t fulfill his duty seriously.The essence of the work of proving evidence and cross examination in court is a kind of field form limited by the law.Specifically,in the aspect of proof,interrogation lacks skills,the way of proof is not flexible,and the attendance rate of witnesses and experts is low.In the aspect of cross examination,the attitude of public prosecution hostage testimony is negative,which does not promote the formation of judges’ psychological testimony.At the same time,there are some problems in the expression of cross examination language.The fourth part analyzes the reasons for the dilemma of the prosecutor in the case of not pleading guilty.The main reasons for the public prosecutor’s appearance in court are that the public prosecutor’s burden of proof,the performance of cross examination is lack of legal compulsion,the litigation structure is out of balance,and the working mechanism is solidified.In detail,the lack of legal enforcement in the performance of the burden of proof and cross examination mainly includes two aspects: the record of testimony before the court of the witness and the time node of withdrawal of the prosecution;the imbalance of litigation structure includes the prominent phenomenon of "one prosecution and one trial" and the unequal access to information between the prosecution and the defense.The former refers to the excessive responsibility of the prosecutor and the deprivation of the rights of the defendant,while the latter refers to the defense The lack of lawyer’s access to case information is mainly due to the their own failure to fulfill their duties,the exercise of their rights is not optimistic,and the communication channels are not smooth;the solidified working mechanism is manifested in the working mechanism of relying on investigation files,confirming investigation conclusions,reviewing evidence out of court and repeatedly supplementing investigation,emphasizing that investigation,prosecution and trial organs have more cooperation and less restriction.The fifth part is the suggestion to the public prosecutor to fulfill the burden of proof and cross examination.The public prosecutor’s evidence and cross examination should be substantive,and promote the realization of the substantive trial.It is necessary to give the public prosecutor the compulsory duty of evidence and cross examination,establish the defense’s right guarantee mechanism,and establish the fine working mechanism.In details,first,the compulsory duty of giving evidence and cross examination to the public prosecutor mainly means that the validity of the testimony of the witnesses who have not appeared in court should be made clear and the time node for withdrawing the prosecution should be stipulated;second,the establishment of the defense rights protection mechanism specifically includes the establishment of the guarantee mechanism for the exercise of the defense right before trial and the relief mechanism for the defense’s cross examination right during the trial,so as to effectively protect the defense lawyer’s rights Third,the establishment of a fine working mechanism includes three aspects: strengthening the guidance and supervision of the procuratorial work on the investigation,implementing the burden of proof and cross examination,and establishing the training and assessment mechanism.It emphasizes that the public prosecutor should actively act,constantly improve his own strength,and face the challenge of substantive trial. |
