Research On The Protection Of The Defendant’s Rights In The Trial By Default System

In order to effectively and fairly crack down on corrupt elements fleeing abroad and make up for the shortcomings of the confiscation procedure of illegal income,China officially added the criminal trial by default system when revising the criminal procedure law in 2018.While fighting corruption and punishing evil,protecting the defendant’s legal litigation right is the due meaning of China’s criminal trial by default system.However,as a new special system adopting the direct legislative model,the existing seven provisions seem too thin and simplified,which brings a series of problems to the protection of the defendant’s rights,such as the single mode of service,the unclear standard of service and the unsuitable subject of service,resulting in the imperfect service mechanism and the unreasonable protection of the right to know;The defender’s late intervention in the proceedings affects the exercise of the right to meet and the right to investigate and obtain evidence,and hinders the realization of effective defense;The unrestricted right of appeal of close relatives has the risk of functional alienation;The lack of specific content makes the exercise of the defendant’s right of objection lack of operability.The absolute and unlimited right of objection has the possibility of challenging the judicial res judicata.The existence of such problems highlights the necessity and urgency of systematic research on the protection of the defendant’s rights.Therefore,based on the beneficial experience of foreign countries and respecting China’s national conditions,this paper aims to explore how to protect the rights of the defendant in the application of trial in absentia,so as to make up for the defects of the procedure itself,coordinate litigation justice and efficiency,and realize the unity of punishment of crime and human rights protection.Specifically,in the pretrial procedure,the public prosecution organ should adopt diversified service methods to ensure that the defendant “actually knows” the litigation cases related to it,improve the service mechanism and protect the defendant’s right to know;In the trial procedure,the access standards of defense lawyers are strictly limited in advance,and the time for lawyers to intervene in the proceedings is advanced to the stage of review and prosecution,so as to ensure that lawyers fully participate in the case,and evaluate the quality of lawyers’ defense afterwards,so as to form a closed loop and ensure the quality of defense;In the post-trial relief procedure,we can make up for the damage to the original rights by clarifying that close relatives should exercise the right of independent appeal for the rights and interests of the defendant,appropriately extending the time limit of appeal for the defendant abroad,including the “ruling”into the object of appeal,standardizing the reasons for objection,clarifying the specific contents of the right of objection and so on.