| Since the 18 th National Congress of the Communist Party of China,the Party Central Committee has placed the anti-corruption struggle of strictly punishing corruption and strengthening the international anti-corruption work of chasing,escaping and recovering stolen goods in the context of the "five in one" overall layout and the "four comprehensive" strategic layout under the background of the unprecedented great change in the world and the historical intersection of the two 100 year goals,and has made historic achievements.How to adapt to the severe situation and challenges faced by anti-corruption,make up for the system defects of overseas anti-corruption and recovery of stolen goods from the perspective of international cooperation in anti-corruption and recovery of stolen goods abroad,and build a centralized,unified,authoritative and efficient anti-corruption legal system.The Party Central Committee timely summarizes the new experience of supervision system reform,consolidates the achievements of anti-corruption struggle,and leads and promotes the 13 th National People’s Congress.The decision on Amending the criminal procedure law was deliberated and passed at the sixth session of the National People’s Congress on the basis of the adoption of the Constitution(Amendment 2018)and the promulgation of the supervision law The promulgation of the International Criminal Judicial Assistance Law is a significant landmark achievement of anti-corruption legalization in the new era.Its content is extremely rich,which is of great and far-reaching significance for the realization of the anti-corruption system of "dare not corrupt","can not corrupt" and "do not want to corrupt".From the perspective of "special procedure" in the fifth part of the amendment to the criminal procedure law,the chapter of "trial by default procedure" is added.Focusing on the construction of this new type of special procedure,seven legal provisions are made to clarify the case scope,application conditions and litigation procedure of trial by default.According to the legislation,the criminal trial by default in China can be divided into three types: solving criminal responsibility,solving litigation obstacles and correcting the name of the dead defendant.According to different types of cases,it can be divided into bribery cases,crimes against national security cases and terrorist activities cases.The anti-corruption anti-corruption trial system is the focus of legislation creation.This is the concrete framework of building the anti-corruption legal system in the context of China’s overall rule of law.It embodies the concrete measures of strengthening the international anti-corruption pursuit of stolen goods and ways,deterring and escaping corruption crimes,thus manifests the Central Committee of the party with Comrade Xi Jinping as the core to speed up the anti-corruption rule of law.It is the strategic choice and implementation of the modernization of the ability of the Department and the rule of law.As a case of bribery,the advanced and practical characteristics of the trial by default system are worthy of full recognition.On the other hand,as a special system which is different from the trial in person,it is worth discussing and responding theoretically because it takes the loss and deprivation of the defendant’s right to appear in court and conflicts with the traditional tripartite litigation structure of prosecution,defense and trial in criminal procedure,thus causing disputes on its legitimacy in the theoretical and practical circles.What is worth paying attention to is the "Scene" of many difficult procedural regulations in the current judicial practice,which is mainly manifested in:corrupt criminals abscond abroad with money to escape criminal prosecution,causing huge losses to the party and the state,seriously affecting the clean image of the party and the state;litigation is suspended due to the absconding of criminals,and the case is protracted,which leads to unlimited increase of litigation cost and litigation cycle;the corruption of the party and the state has a negative impact on the integrity image of the party and the state;Because of the risk of losing the evidence,the social legal interests such as political integrity,public interest and public order destroyed by the bribers can not be repaired in time;the national judicial authority is questioned,and so on.This series of adverse consequences obviously deviate from the litigation value of judicial justice.Therefore,the establishment of the default trial system of bribery cases solves the criminal responsibility of the absconded defendant through trial activities on the premise that he fails to appear in court.Although it causes the impairment of the defendant’s litigation rights to a certain extent,this limited impairment is based on the contradiction between justice and efficiency A reasonable balance.The establishment of the system of trial by default in bribery cases,based on facts and evidence to convict and sentence absconded criminals,deny their reputation and identity in law,so that the cases of corruption and bribery absconded abroad can be dealt with in time,avoid the case delay caused by the absence of the accused,and damage the order of State Administration and public management Order and social order were restored in a timely manner.As a new special criminal procedure,the trial by default of corruption cases is based on the value inspection of procedural justice,substantive justice,human rights protection and litigation efficiency.Its application conditions are not strict enough,the rights of the absent defendant are not well protected,the proof system is not complete,the connection with the confiscation procedure is not clear,the supervision and investigation procedure and the follow-up criminal procedure are not clear The connection of litigation procedure is not clear.In addition,the "congenital defects" in the litigation structure of the system itself,the "acquired weakness" in the system design level,the constraints of the "political factors" contained in the system itself,the constraints of the quality and ability of China’s law enforcement team,and the restraint of China’s cross-border anti-corruption recovery mechanism add risk factors to different litigation stages in the future judicial practice The investigation stage may face the risk that the "investigation centralism" is strengthened,the traditional investigation strategy can not adapt to the "case separation" investigation mode,and the connection between the supervision investigation procedure and the follow-up criminal procedure is not smooth;the start-up stage may face the risk that the start-up conditions are fuzzy,the obstacles of overseas delivery affect the start-up of the procedure,and the conflict with the illegal income confiscation procedure leads to the difficulty of the procedure In the trial stage,the defendant’s absence may lead to the judge’s inability to find out the facts of the case,the right of defense and the right of pledge,which may affect the equal confrontation between the prosecution and the defense,and the unclear system of proof,which may lead to the judge’s arbitrary judgment;in the execution stage,the judge may face the risk of ineffective implementation of transnational judicial assistance and conflict with extradition.Therefore,how to make up for the natural defects of the system itself in order to enhance the legitimacy of the system,and how to avoid the possible risk of Default Trial of bribery cases through the system arrangement and procedure design.In this context,based on the characteristics of the limitation of the subject of corruption and bribery cases,the incompleteness of the litigation structure,the transfer of the right of action,the revocability of judgments,the national interest of international anti-corruption cooperation,and the particularity of the proof system,this paper proves its legitimacy,examines its current legislative situation,and analyzes its possible problems From the perspectives of system concept optimization,litigation rights protection,program design improvement,proof system adjustment and construction,and guarantee mechanism improvement,this paper systematically studies the default trial system of corruption cases,so as to explore the optimization approach for the perfection of Default Trial System of corruption cases.The first chapter is "the noumenon of default trial system of bribery cases".This chapter defines the basic concept of the default trial system of corruption cases,reveals the characteristics of the default trial of corruption cases,and combs the development process of the default trial system of corruption cases,so as to lay a theoretical foundation for the subsequent article.Based on the definition of the scope of corruption and bribery cases,this paper defines the default trial of corruption and bribery cases as the case of corruption and bribery that damages the integrity of the state and government staff according to the current criminal law.The accused absconds abroad to escape criminal prosecution and fails to appear in court on the day of trial.With the effective participation of the prosecutor and the defendant’s defenders,the defendant shall be prosecuted The court presides over and solves the special trial system of the defendant’s criminal responsibility.Through the summary of the concept,the default trial of bribery cases shows the characteristics of the specificity of the absent subject,the incompleteness of the litigation structure,the transfer of the litigation right,the revocability of the judgment,the national interest of the international anti-corruption cooperation form,and the particularity of the proof system.By reviewing the development of the trial by default system of bribery cases,the trial by default system of bribery cases can be divided into "empty window period" and "development period".The second chapter is "justification of the system of trial by default in bribery cases".Based on the "natural defects" of the system itself,this chapter summarizes the theoretical and practical discussions on the legitimacy of the default trial system of bribery cases,such as the conflict between the system and procedural justice,the conflict with substantive justice,the conflict with human rights protection,and the conflict with litigation efficiency.By combing the legitimacy disputes,this paper expounds how to bridge the legitimacy disputes of the default trial system of bribery cases through system arrangement and procedure design from the perspective of value balance theory.At the same time,based on the theory of legality of prosecution,the theory of focusing on efficiency,the theory of procedural subjectivity and the theory of procedural stability,this paper logically proves the legitimacy of the absence trial system of bribery cases.The third chapter is "investigation of the present situation and risk estimation of the default trial system of bribery cases".First of all,through the legislative investigation of the default trial of bribery cases,the paper analyzes the legislative overview,and combs the legislative background and legislative design of the default trial of bribery cases,and explores the applicable conditions of the default trial system of bribery cases,such as the lack of strict definition of the applicable conditions,the unclear investigation of legal responsibility,the incomplete proof system,and confiscation The procedure connection is not clear.Secondly,this paper sorts out the risk factors that the default trial system of bribery cases may face in the future judicial practice,that is,the investigation stage may face the risk that the "investigation centralism" is strengthened,the traditional investigation strategy can not adapt to the "case separation" investigation mode,and the connection between the supervision investigation procedure and the subsequent criminal procedure is not smooth;the start-up stage may face the risk of the start-up condition setting mode In the trial stage,the defendant’s absence may lead to the judge’s inability to find out the facts of the case,the right of defense and the right of pledge,which may affect the equal confrontation between the prosecution and the defense,and the unclear system of proof,which may lead to the risk of the judge’s arbitrary judgment At the same time,it may face the risk of ineffective implementation of transnational judicial assistance and conflict with extradition.Finally,it explores the specific reasons for the risks in the default trial system of corruption cases,including the "congenital defects" in the litigation structure of the system itself,the "acquired weakness" in the system design level,the constraints on the quality and ability of the law enforcement team,and the lack of the supporting mechanism for cross-border anti-corruption recovery.For the above reasons,it is difficult for China’s default trial system of bribery cases to meet the system function given by the procedural law.The fourth chapter is "research on criminal trial by default system from the perspective of comparative law".This paper uses the comparative research method to study the criminal trial by default system of foreign countries under the background of different values and legal cultural traditions,combs and compares the legislative setting and judicial practice consideration of criminal trial by default system of various countries or regions under different litigation modes,which provides a useful legislative reference for the construction and procedure design of the trial by default system of corruption cases in China.By comparing the scope of application,the protection of litigation rights and the way of service of the criminal trial by default between the common law countries and the civil law countries,this paper evaluates it from the perspective of the classification of theoretical basis,the setting of the scope of application,the protection of litigation rights and the relief path,so as to draw a conclusion that the scope of application of the trial by default in bribery cases should be strictly limited,the procedure should be started,and the service effect on the defendant should be emphasized We should pay attention to the right setting in response to the effect of "quasi adversary" and the relief mechanism for the absent defendant.The fifth chapter is "the way to optimize the trial system of bribery cases".The idea is the guide of action.To improve the system of default trial in bribery cases,we need to improve the legitimacy of default trial procedure,reduce its risk,strengthen the protection of litigation rights to make up for the imbalance of litigation structure,improve the accountability mechanism to force the litigation subject to regulate the exercise of authority,and enrich the fact investigation to ensure the accuracy of the case entity,it will play an important role in judicial practice.In the construction of the system,we should pay attention to make up for the "restrictive derogation" of the absent defendant’s right to appear in court,and protect the defendant’s right to know,right to defend and right to relief.In the procedure design,we should regulate procedures.In addition,the criminal proof system is often regarded as the cornerstone of fair justice,also known as the core of litigation activities.Due to the huge differences in the trial characteristics between the absent trial procedure of bribery cases and the opposite trial procedure and the illegal income confiscation procedure,the absence trial of bribery cases has the following advantages: the distribution of burden of proof,the determination of the object of proof,the determination of the standard of proof,and the adaptability of the rules of proof it should also show its particularity.In the optimization of the system,we should also pay attention to the coordination and promotion of the relevant guarantee mechanism besides the design of the trial procedure in absentia and the institutional arrangement.In the aspect of the guarantee mechanism of the trial in absentia,we should pay attention to "people-oriented",focus on the continuous improvement of the professional skills of the judicial case handling personnel,clarify the responsibilities of the relevant subjects,strengthen the interpretation and reasoning of the judge’s judgment documents,and improve the efficiency of handling The level of anti-corruption cases and so on,and the professionalism of anti-corruption personnel.So as to realize the benign operation of the default trial system in the future judicial practice. |
