Research On The Legislative Perfection Of The Procedure Of Trial In Absentia For Fugitives Under The Background Of Overseas Fugitive And Asset Recovery

In October 2018,China’s criminal procedure law was amended and the criminal trial in absentia procedure was formally established,which is a milestone in the process of China’s criminal procedure legislation and lays a legislative foundation for promoting the work of anti-corruption and overseas recovery of fugitive and asset.The current criminal procedure law provides for three types of trial in absentia procedures:trial in absentia procedure for fugitives,trial in absentia procedure for defendants suffering from serious diseases and trial in absentia procedure for dead defendants.The first kind of criminal trial in absentia,that is,the procedure of trial in absentia for the fugitives,is the criminal trial in absentia in essence.Its establishment has greatly strengthened the anti-corruption overseas overseas recovery of fugitive and asset,and has formed a strong deterrent to the behavior of the corrupt criminals fleeing with money.The interpretation of the Supreme People’s Court on the application of the criminal procedure law of the people’s Republic of China(hereinafter referred to as the interpretation of the new criminal procedure law),which came into effect on March 1,2021,adds a chapter of trial in absentia procedure according to the provisions of the criminal procedure law,and makes specific provisions on relevant procedures of trial in absentia,which enhances the practical operability and further demonstrates China’s determination to fight corruption.The establishment of trial in absentia procedure in China’s criminal procedure law is not only the practical need of comprehensively promoting the rule of law,promoting the work of chasing and recovering fugitive and asset abroad,and deterring corrupt officials from fleeing,but also the need of coping with the increasing number of corrupt officials fleeing abroad and the difficulties in the work of chasing and recovering fugitive and asset abroad,especially the extradition cooperation.China’s criminal procedure law has established the preliminary framework of criminal trial in absentia procedure,and the new interpretation of criminal procedure law has made further provisions.However,the provisions on the service procedure of trial in absentia,the protection of the right to defense,and the appeal procedure,objection procedure,retrial procedure after judgment by default are still too principled and have some shortcomings.It needs to be further improved in combination with the specific situation of China’s criminal judicial practice to form a new mode of overseas pursuit and recovery of fugitive and asset,in which the criminal trial in absentia procedure is combined with extradition,repatriation,persuasion and other means of pursuit fugitive,and multiple measures should be taken simultaneously.In addition to the introduction and conclusion,the full text is mainly divided into five chapters.The first chapter mainly discusses the legitimacy basis of the trial in absentia for the fugitives.This paper mainly discusses the value balance between procedural justice and litigation efficiency,the practical needs of anti-corruption overseas recovery of fugitive and asset,and the abandonment of the defendant’s right to appear in court under specific circumstances.It is mainly based on the current practical difficulties of chasing and recovering fugitive and asset abroad.Allowing the court to hear in absentia under certain conditions reflects the abandonment of the defendant’s right to appear in court,which is based on the theory of right abandonment.If the defendant intentionally evades the trial,intentionally fails to appear in court,or fails to appear in court due to objective reasons,he can be regarded as a voluntary abandonment of the right to appear in court.At this time,the court’s trial in absentia does not violate the basic concept of criminal procedure,but also reflects the respect for the defendant’s willingness not to appear in court,and maintains the defendant’s litigation dominant status.The second chapter is mainly to clarify the difference between the procedure of trial in absentia for fugitives and the other two types of procedure of trial in absentia and the procedure of confiscation of illegal income,so as to establish the independent status of the procedure of trial in absentia for fugitives.On the one hand,the procedure of trial in absentia for fugitives is independent of the other two kinds of trial in absentia.Compared with the other two types of cases,the scope of the application of the procedure is special,which is mainly applicable to the cases of corruption and bribery,crimes seriously endangering national security and terrorist activities,and the space of the application object is limited,which is mainly aimed at fugitives.In addition,its litigation structure is also relatively special.In the the procedure of trial in absentia for fugitives,because the defendant is abroad,he is absent from the beginning and the whole process,rather than because the defendant suffers from serious illness or death and other objective factors.From this point of view,the procedure of trial in absentia for fugitives is essentially the trial in absentia procedure.On the other hand,the procedure of trial in absentia and confiscation of illegal income are relatively independent.The two procedures are different in nature,function,scope and object of application.Compared with the procedure of confiscation of illegal income,the procedure of trial by default can achieve the dual effects of conviction and punishment of "people" and legal disposal of "things".However,there are some limitations in its scope of application and the convenience of the procedure,which can not completely replace the procedure of confiscation of illegal income.The two procedures are relatively independent.The third chapter mainly discusses the possible challenges of applying the procedure of trial in absentia for fugitives.According to the current criminal procedure legislation and judicial interpretation,this paper discusses the provisions of the trial trial in absentia procedure,and discusses the shortcomings of the provisions of the trial in absentia procedure in China from three aspects:pre-trial procedure,court procedure and right relief means.In addition,it also points out that there is a certain tension between the trial in absentia procedure and overseas means of pursuing fugitives.If overseas pursuing fugitives and asking for international cooperation are carried out on the basis of the default judgment,it is very likely to be rejected by the requesting state,which will bring different degrees of difficulties to the work of pursuing fugitives.The fourth chapter combs the legislation of criminal trial in absentia in Germany,France,Italy,the United States and the United Kingdom,and investigates the extraterritorial legislation of pre-trial service,right protection in court trial and right relief after trial of the defendant in trial in absentia,so as to provide reference for the further improvement of trial in absentia procedure in China.For example,the time limit of service for the defendant outside the country should be differentiated in the service procedure of trial in absentia in France,and the special right relief provided by the restitution procedure in Germany and the objection procedure in France.On the basis of China’s national conditions and judicial system,this paper considers the mature experience of foreign countries’ criminal trial in absentia procedure legislation,and finds the development path suitable for China’s criminal trial in absentia procedure.In the fifth chapter,on the basis of combing the legitimacy basis,independence and possible challenges in practice of criminal trial in absentia in the first four chapters,combined with the legislative experience of criminal trial in absentia in foreign countries,aiming at the shortcomings of the current legislation of criminal trial in absentia in China,the author puts forward some suggestions to improve the legislation of criminal trial in absentia in line with China’s national conditions.The suggestions mainly include three aspects:the pre-trial service procedure,the protection of the right to defense in the trial and the right relief after the trial.First,in the service procedure,the corresponding suggestions are put forward from three aspects:service standard,service method and service period.Second,in the protection of rights in trial,on the one hand,we should improve the protection of the defendant’s right to defense,which is mainly exercised by the defense lawyers.We should appropriately move forward the time for the defense lawyers to intervene,protect the litigation rights of the defense lawyers,and ensure the defense lawyers to defend effectively.On the other hand,the principle of not imposing death penalty should be made clear in trial,which is conducive to improving the recognition of other countries on the default judgment in China,and promoting the convergence and application of the trial in absentia procedure and overseas means of pursuing fugitives.Third,in the aspect of the right relief of the defendant after the default judgment,it puts forward more specific suggestions on the right of appeal of the defendant’s close relatives,the right of objection of the defendant and the retrial procedure,which improves the operability of judicial practice.Finally,this paper puts forward some ideas on the coordinated application of the trial in absentia procedure and overseas means of pursuing fugitives.We should fully protect the litigation rights of the defendants in the trial in absentia,enhance the recognition of other countries on our criminal trial in absentia and the fairness of our judicial system,and make the criminal trial in absentia procedure an effective supplement to the anti-corruption work of overseas recovery of fugitive and asset.