Research On Litigatalization Of Criminal Pre-Trial Procedures

In the trend of legal globalization,people are more and more aware of the importance of the protection of human rights in the criminal judicial areas and pay more attention to the dignity and value of human as the subject of social activities.After World Warâ…¡,the legalization revolution and procedural innovation of criminal procedures in some countries are more embodied in the litigatalization and democratization of pre-trial procedures.With the advance of litigation innovation,furthermore,pre-trial procedures play a more important role in the criminal procedures.In the pre-trial procedures, if procuratorate abuse its authority and operate illegally,we do not think that such kind of procedure is justicial even if the conviction and punishment are correct in the succedent trial procedure.It is not the judicial justice we are pursuing.For the past few years,most eye-catching questions in criminal procedures have occurred in pre-trial procedures and "extort confessions by torture","detention beyond the legally prescribed time limits","illegal evidence","arrest rather than detection" occur despite of repeated prohibition.The common essence of the phenomenon is infringement of suspects' legitimate interest and abuse of state authorities.These problems take away greatly the public image of justice and,what's more critical,the judicial justice can not be ensured. Therefore,the innovation and promotion of pre-trial procedures are imperative.The academic study on the problems of our judicial practice and administrative legislation in relation to pre-trial procedures will be of great importance for better promoting litigatalization of criminal pre-trial procedures with Chinese characteristics.This essay starts with the lack of litigatalization in our criminal pre-trial procedures,traces to the source of litigatalization of pre-trial procedures,examines minutely the theory,anatomizes the reality, analyzes the judicial review mechanism in the western countries and thereafter demonstrates the necessity and feasibility of criminal pre-trial procedures through jurisprudence of procedure law.Finally, the preliminary assumption is raised regarding establishing pre-trial judicial hearing mechanism for the aim of litigatalization of criminal pre-trial procedures and the author hereby proposes a detailed design of public hearing process under the circumstance of detaining enforcement measures and nonprosecution.The essay is composed of introduction and seven chapters.The introduction part explains the intention,background and significance of the research,provides brief comment on research status and proposes to conduct a study on criminal pre-trial procedures by the method of researching on comprehensive law science.The First Chapter Connotation,character and requirement of criminal pre-trail procedures.In this chapter,the author gives the clear definition on the connotation and basic character of criminal pre-trial procedure,indicating that the litigatalization refers that the procedure operates and the relief is executed through litigation.Therefore,the litigatalization of pre-trial procedure means that the investigation and the prosecution of public security institutions and the prosecutorial departments shall be directed into the orbit of judicial judgment through the judicial authorization on the action and method of investigation so as to judge and decide the legalization and justice of prosecution.In addition,the litigant is of the right to be heard judicially to receive judicial relief instead of administrative relief.The author also elaborates the basic character and requirement of the litigatalization of the pre-trial procedure in this Chapter.The Second Chapter The deficiency of litigatalization in criminal pre-trial procedures of China.The case of Du Peiwu in Yunnan Province and the case of Hao Jin'an in Henan Province show the abuse of administrative elements in criminal pre-trial procedures and raise the issue of how to guarantee the validity of detaining before a criminal trial.Upon the basis of litigation theory,this part provides the analysis on the defect of criminal pre-trial procedures,which can be summarized as oneness of litigation structure,self-authorization of action,dissimilation of enforcement measures,pinch of remedies, deficiency of necessary checks and balances in the division of duties between police and procuratorate,and the lack of subject status of suspects in a litigation.Meanwhile,according to the requirement of litigation,the author proposes to establish a complete pre-trial judicial hearing mechanism to solve the problem.When the one whose right is restricted,mainly the suspects,feels that he suffers wrong or improper treatment,he can request a hearing of witness presided over by a neutral judge.The Third Chapter The historical development of criminal pre-trial procedures litigatalization.The initial idea of criminal pre-trial procedures litigatalization is the establishment of administrative hearing mechanism,which embodies the principle of natural justice and the validity of legal procedures.Hearing mechanism originated from Britain and developed in United States. Many counties in the world imitate this mechanism because it contains three procedural values,which are participation,publicity and neutrality.The hearing mechanism gradually comes into criminal pre-trial judicial review system carried out by modern counties under the rule of law at large.Through analysis on the judicial review system of the two legal systems,their common characters and differences are well explained and the essay also point out expressly that the hearing mechanism proposed by the author is different from the judicial review system of western countries and the pre-trial judicial hearing procedures embody the idea that neutral judgment maintains the minimum justice.The Fourth Chapter The theoretical basis of criminal pre-trial procedures litigatalization.The theoretical basis of establishing criminal pre-trial procedures litigatalization includes the theory of judicial control,ensuring the suspects' right to defence and the benefit of doubt.The analysis is provided on the concept,connotation, significance and requirement of the said three theoretical bases.The Fifth Chapter The necessity and feasibility of criminal pre-trial procedures litigatalization.In accordance with jurisprudence of procedure law and actual condition of China,the establishment of a complete judicial hearing mechanism,in terms of pre-trial procedures, will add all kinds of prosecution involving basic human rights of the parties into the track of litigation.It is not only necessary but also actually feasible and favorable for the realization of pre-trial procedures litigatalization.The Sixth Chapter The obstacle and basic path option in the establishment of criminal pre-trial hearing mechanism.The essay analyzes the obstacle of establishing pre-trial judicial hearing mechanism from the following four aspects:deficiency of litigation feasibility of pre-trial activities,the fetters of current litigation structure,contradiction in ideology and conception and deficiency of neutral judgers.The essay analyzes the basic path in the establishment of pre-trial judicial hearing mechanism from the following three aspects:carrying out the idea of thorough litigation,improving current legislation and defining correctly the status and function of lawyers in pre-trial procedures.The Seventh Chapter The issue of lawyers' intervention in criminal pre-trial procedures litigatalization.The dissertation is started with the need of restriction on jurisdiction,the need of validity in judicial process and the need of ensuring judicial justice.The essay emphasizes especially some litigation issues of lawyers' intervention, which need to be noticed,such as the combination of criminal procedural law and the newly issued lawyers' law,as well as the relationship between lawyers and procuratorate.The Eighth Chapter The detailed design of applicable process in criminal pre-trial procedures litigatalization.This part is started with the application status of detaining enforcement measures and nonprosecution process,and provides systematic design on the public hearing mechanism in the process of detaining enforcement measures, nonprosecution and the sanction and relief system of procedural law breach from the following aspects separately:participators,status, functions,condition of proposal,timing of proposal,assistance of lawyers and the phase to conduct hearing of witness.The conclusion of the essay points out expressly that the best way to solve the problems in criminal pre-trial procedures is to carry out judicial review system,which means the neutral trial authorities(the judge) will decide whether the decision in relation to compulsory deprivation or restriction of basic human rights,or appealing the suspects to the court is justice and compliance with the law.The said decision will be made by way of public hearing.Based upon the state condition,it is hard to carry out the said system effectively,however the spirit of judicial review is worth to be studied and use as a source of reference.Therefore,the author tries to construct a relatively complete pre-trial judicial hearing mechanism as a transitional form of judicial review system for the future to promote ultimate realization of thorough litigatalization of criminal litigation litigatalization.