A Study About Criminal Preliminary Hearing System

Like with all legal systems, Criminal Preliminary Hearing System is not innate.lt has undergone a long process of development. Nowadays, the Criminal Preliminary Hearing System plays an important role in both of the Civil Law system and the Common Law system. On the surface, the purpose of the Criminal Preliminary Hearing System is to examine the sue before the trial. However, the purpose of the Criminal Preliminary Hearing System is to control the investigating act and the indictment act from the Investigating Authority and the Public Prosecutor before the trial. Therefore, it is called the Criminal Preliminary Hearing System with the Function of the Judicial Review in the West Countries.Because of the political system, legal system and cultural environment and other factors, our criminal Preliminary Hearing System is quite different with the West Countries. In fact, our current system is the Investigation Preliminary Hearing System dominated by the investigative organization, according to the provision in the Code of the Criminal Procedure revised in the year 2012. The biggest drawback of the current system is short of the neutral third party supervision.Thus,it cannot effectively restrict the power of the Investigating Authority before the trial. In the year 2014, the Supreme Court published the Outline of the Fourth Five-Year Reform of the People's Court to promote our judicial system revolution. I believe that, with the outline, our current system should also be reformed and perfected. In view of this, I explore and research on several issues about our criminal Preliminary Hearing System and its revolution, and put forward relevant solutions to build a truly criminal Preliminary Hearing System with judicial review function. This thesis is made up of five chapters with about 150,000 words.The first chapter is the sketch of the Preliminary Hearing System. This chapter mainly about the development of the Preliminary Hearing System, and defined the concept of Preliminary Hearing and Preliminary Hearing Procedure. This chapter is also introduce the same and different of the Preliminary Hearing Procedures and other similar procedures. There are four section. Among them, the first section focuses on the growth of the hearing system. The second section focuses on the concept of Preliminary Hearing It defined. The section is not only introduced the Preliminary Hearing, but also absorb the concept of Preliminary Hearing. Furthermore, the focus of the paper is to build the criminal Preliminary Hearing System with judicial review function in our country. The third and forth sections are mainly on the concept of Preliminary Hearing Procedure's definition and compared the similarities and differences between the related concepts, and finally come to a conclusion that the Preliminary Hearing Procedure has its particular distinct.The second chapter describes the theoretical basis of the criminal Preliminary Hearing System. There are four section in the chapter about the legal nature, the function, the basic principle and the value.With the introduction of the related theory like the dictatorship, the investigation and the judicial review, the chapter reveals that the theory of the judicial review is the best. The first section of this chapter analyzed the relationship between the procedural judicial review and substantive judicial review, then pointed out that the Preliminary Hearing criminal procedure should be a procedural judicial review system. The second section and the third section introduce the function and the basic principle respectively. The extrinsic value and the intrinsic value are both the key of the fourth section. Therefore, we must keep a dynamically balance between the intrinsic value and the extrinsic value, in order to protect the Preliminary Hearing judge to exercise them correctly.The third chapter is the comparison on the criminal Preliminary Hearing System. There are three section. The first section introduced the historical development and the common characteristics of criminal Preliminary Hearing System in the Civil law countries like France and Germany. The second section described the same in the Common law countries. The third section commented the similarities and differences between the two system. The conclusion is that the feature of the Inquisitorial system is prevailed in the Civil law countries, with the Adversary system applying in the Common law countries which paying more attention to the civil rights.The fourth chapter is about the history and the reality of the Criminal Preliminary Hearing System in China.There are three section. The first section describes the development of the Chinese criminal Preliminary Hearing System.The second section focuses on the current situation of Preliminary Hearing criminal system in China, including the function, the role, the scope and the content etc. The third section is the comment on the current system. The section points out the five problem of the current system, including of the lack of rigorous systems theory, the imperfect legal status and nearly no supervision etc. Most importantly, the section also clarifies the fact that the current criminal Preliminary Hearing System has no function of the judicial review, which is unusual from the Western countries.The fifth chapter is the most important chapter of the article with three section. There are six section in the chapter. The first and the second section analyze the necessity and feasibility of the reconstruction of the criminal Preliminary Hearing System, pointing out that the reconstruction will help standardize and optimize the structure of the criminal procedure. The third section analyzes the four representative mode from the Professor Xu, the Professor Han, the Professor Yun and the Professor Cao. On establishing a criminal Preliminary Hearing System with judicial review, the paper proposes the specific program that we should set up independently tribunal in all the courts and give the right to the investigating judge to start the Preliminary Hearing. The fourth and the five section are related to the preliminary achievements of reconstructing the criminal Preliminary Hearing System. Any reform is not achieved in one day. Therefore, we have to do easy things first and then gradually improve, to win the support of all people and reduce the resistance of the reform. From the reality, we may cancel the Preliminary Hearing right of the Public Security organ as a starting point, and then establish a judicial writ system basing from the experience of the western countries. In addition, we should reasonably distribute the Preliminary Hearing right to the Procuratorial organ and the Court, on the purpose of strengthening the examination of the enforcement measures involving personal rights and property rights.