Research On The Rules Of Witness Investigation In Criminal Trials In My Countr

The 18 th CPC Central Committee at its Fourth Plenary Session raised to “promote the reform of lawsuit system centralized by the judgment”,and required to “comprehensively implement the rules of evidence judgment ”,as well as “guarantee the court trial to play a decisive role in the fact finding,judicial evidence,protection of just claim,and just decision”.In order to implement the Central Decision-Making,promote the reform of lawsuit system“centralize by the judgment”,realize the “trial substantiation”,it is required to improve the rules of trial evidence investigation.In terms of the investigation to defendant,victim,witness,appraiser and the testimony of a witness for the people with professional knowledge etc.has always become the focus and key for the trail investigation due to the quantity and importance of evidence.Meanwhile,due to the variety,complexity,variability and the possibly existing adversarial,the witness investigation is also one difficult point for the trial investigation.Therefore,establish the rules of trial witness investigation that is appropriate to the criminal justice of our country is the demand of implementing the wordage procedure and evidence judgment principle and improving the trial system,as well as the requirement of realizing the trial substantiation and promoting the reform of lawsuit system centralized by the judgment.This paper is based on the system background and practical status for the criminal trial in our country,performs the analysis to the key points and difficult problems in the witness investigation so as to explore the path and method for the improvement of witness investigation and the practical enhancement for the criminal trial in our country.The first chapter streamlines the basis issues for the witness investigation rules of criminal trial.First of all,it defines the core concepts of “witness”,“witness investigation”,“witness investigation rules” etc.,clarify the space,object and extension for the research of witness investigation rules,analyzes the historical development for the witness investigation rules of criminal trial in our country,as well as the research significance of “centralized by the judgment” under the background of lawsuit system reform.Secondly,it deeply analyzes the bases of legitimacy for the witness investigation rules of criminal trial.The establishment of trial witness investigation rules is not only the requirement of wordage procedure principle,but also the demand of evidence judgment.It not only follows the direction of “trial-centered”reform,but also the basic requirement for the openness,centralization,effectiveness of trial investigation.In addition,it analyzes the important factors that affect the development and operation of witness investigation rules of criminal trial.It raises that the allocation of trial control right,construction of referee subject and functional relationship of accuser-defendant etc.are the direct affecting factors for the trial witness investigation rules;The lawsuit idea,conceptual foundation and traditional culture etc.are the internal affecting factors for the trial witness investigation rules;The pretrial aware of evidence,effective defense and “privilege against self-crimination” etc.are the institutional affecting factors for the trial witness investigation rules,which provide the correct direction of path selection for the witness investigation rules of criminal trial in our country.The second chapter researches the order for the witness investigation of criminal trial,which mainly includes four aspects: Firstly is to define the concepts of witness investigation order,the prosecution,defence and appraiser all have the rights of deciding the order of witness investigation,and the presiding judge is responsible for guiding the witness investigation order at court.The witness investigation order is not only the important content for the witness investigation rules of criminal trial,but also affects the development of trial witness investigation method and the rules on inquiring witness.Secondly is to analyze the main types of extraterritorial witness investigation order by comparison,concludes the different features of witness investigation order under the different criminal trial systems,as well as discuss the influences of “interlocutory proceedings”,wordage procedure principle,defendant’s attitude of confession and judges’ rights etc.on the trial witness investigation order.Thirdly is to take the issuance of supreme law “court investigation regulation”(hereinafter referred to as the “Regulation”),as well as the pilot reform of trial substantiation in both Chengdu,Wenzhou as the focus on attention,deeply analyze the changes of the legislation,current status of legislation and reform exploration for the witness investigation order of criminal trial in our country,as well as specifically analyze the system reasons for segmented evidence investigation order of accusing prior to defending,documentary evidence-based under the accusing convenience that has been widely applied by the trial in our country.Fourthly is to raise the path and method of reforming the witness investigation order in our country from three aspects including the strengthening of attention obligation of defence,establishment of pretrial order of burden of proof and improvement of witness compulsory process.The third chapter researches the general rules for witness inquiry of criminal trial.This chapter is composed of five parts.First of all is to comprehensively illustrate the cross-inquiry rule,authority inquiry rule and mixed inquiry rule from the aspects of system origin,inquiry method,content of rules,characteristics and reasons etc.As well as compare the similarities and differences in the subject,object,order,interrogation reply system and specific rules for the criminal trial witness investigation under the different systems,and the integral application of various inquiry rules in the international court.Secondly is to analyze the legislation evolution of general rules for the criminal trial witness inquiry and the practical exploration of local legislation in our country.It makes a horizontal and longitudinal comparison to the reform path of general rules for the witness inquiry,as well as the local reform path and “regulation” content in Chengdu,Wenzhou and Chongqing etc.so as to outstandingly analyze the technical difference and different value priorities of local specifications and “Regulations” with respect to the general rules of witness inquiry.Thirdly is to make a path selection for the general rules of trial witness inquiry in our country,that is to refer to the extraterritorial advanced experience on the basis of respecting the law of judicial system,adhering to the dynamic-balanced lawsuit view and scientifically combining with the national conditions of our country so as to establish the relatively refined alternative inquiry rule under the guidance of judge.The judge plays a guiding role in the witness inquiry,and it is required to prevent the excessive execution of judge’s authority during the witness inquiry,and establish the trial alternative inquiry mode with the confrontation between accuser and defender.Moreover,based on the judicial reality in our country,reestablish the trial witness investigation rules that comply with the criminal legislation features in our country from the aspects of witness inquiry method,inquiry round,inquiry order,inquiry scope and cross-examination timing etc.Meanwhile,it raises the general rules for trial inquiry needs to have the feature of relative refinement.The relative refinement of inquiry rule is not only the reasonable demand of judicial form,but also the requirement of trial confrontation;It not only complies with the demand of performing the judge’s functions in our country,but also has the practical and operational feasibility.Fourthly is to raise the specific advice of improving the witness inquiry rules of criminal trial in our country based on the path selection of general rules to the witness inquiry.The first advice is to appropriately limit the scope of judge’s investigation according to the authority,and strictly regulate the timing and method of judge’s authority inquiry;The second advice is to establish the basic procedure of trial alternative inquiry;The third advice is to determine the relatively refine inquiry rules,supplement and improve the forbidden suggestion rule and forbidden induced inquiry rule so as to meet the applicable requirements of trial practice.The fourth advice is to take “” as the principle,and establish the trial inquiry rule of victim to the other witnesses.Finally is to reinforce and improve the accessory system of criminal trial witness investigation in our country from three aspects including the setting of judicial conditions for witness appearance,exertion of pretrial meeting function and establishment of effective defense.The fourth chapter discusses the establishment of party investigation rule for the criminal trial in our country.The trial client investigation rules include the defendant investigation rule and victim investigation rule.In the research of trial defendant investigation rule,this paper compares and analyzes the difference influences of right to silence in the adversary system,inquisitorial system and mixed criminal trial on the trial defendant investigation rule.Through the comparative analysis of timing,method and rule of defendant investigation under the different trial modes,this paper illustrates the main characteristics of extraterritorial defendant investigation rule.Based on the legislation and judicial practice in our country,this paper analyzes the judicial current status of defendant investigation in our country,as well as points out the influences of objectification of position in suit for the defendant,evidence property of defendant’s oral confession and inherent concepts of criminal lawsuits to the defendant investigation rule in our country.Finally this paper raises the reformative advice for the trial investigation rule of defendant e.g.reconstruct the defendant inquiry procedure before the evidence investigation;cancel the interrogation of the defendant in the links of proof-providing and cross-examination etc.In the research on victim investigation rule of criminal trial,this papers starts from the similarities and differences for the victim statement and witness testimony,and analyzes the specialties of victim statement.In terms of the property that the victim has both the source of evidence and the identity of the party,this paper streamlines the victim investigation rule of extraterritorial criminal trial.This paper focuses on analyzing the dual property of victim in the criminal trial of our country,as well as the current status for the legislation and judicial application of victim investigation rule.It is advised to empower the trail identity option to the victim,clarify that the victim decides on its own whether executing the right of the parties in the trail procedure,as well as set up the corresponding investigation rules for the different circumstances that the victim appears in court with the identity of party and appears in court with the identity of special witness.The fifth chapter discusses the construction of expertise witness investigation rule of criminal trial in our country,including the trial appraiser investigation rule and the specialized-knowledge person investigation rule.In terms of the appraiser investigation rule,this paper clarifies the meaning of appraiser,as well as its dual identity as the assistant of fact judge and case evidence method.It also distinguishes and analyzes the respective properties and characteristics for appraiser,witness,appraisal witness and specialized-knowledge person.Based on the analysis to the current status for extraterritorial appraiser inquiry rule and appraiser trial investigation rule in our country,this paper raises the advice to the reform and improvement of appraiser investigation procedure and inquiry rule respectively,as well as specially clarifies the questioning scope and timing to the appraiser by taking the specialized-knowledge person.In terms of the specialized-knowledge person investigation rule,this paper clarifies the functions and properties of specialized-knowledge person.The specialized-knowledge person has three manifestations in the criminal trial of our country,which include the issuer of appraisal opinion,the compiler of inspection report and the investigator of appraisal opinion.The specialized-knowledge person not only have the property of expertise assistance,and the property of special lawsuit agent,but also a certain evidence property.This paper streamlines the current status and issues of specialized-knowledge person investigation procedure of criminal trial in our country,as well as raises the reconstructing suggestions of specialized-knowledge person investigation rule from the aspects of inquiry scope,inquiry order,inquiry rounds and specific inquiry rules etc.The sixth chapter researches the confrontation rule of witness investigation of criminal trial in our country.The confrontation is not only the important means for examining the evidence and investigating the case of criminal trial,but also the basic litigious right of defendant.Through comparing and analyzing the confrontation rule in the adversary system,inquisitorial system and mixed criminal trial,this paper illustrates the extraterritorial rule of trial confrontation,as well as performs the analysis to the confrontation rule in the law-making stipulation and juridical practice status in our country.In the juridical practice of our country,the confrontation doesn’t have the attribute of right,the applicability rate of trial confrontation is extremely low and mainly concentrated among the defendants in the same case.The confrontation can’t be applied in a unified manner due to the shortage of legislation.After the issuance of “Regulations” in 2018,which expands the scope for confrontation subject,clarifies the applicable conditions and purposes for confrontation inquiry,as well as regulates the investigation method.However,it can be seen from the practices that the problems e.g.the applicable scope is narrow,the ratio is low and the effects of parties of prosecution and defense can’t be exerted effectively etc.are still existed.In order to improve the confrontation procedure,it is required to appropriately grasp the starting conditions and applicable method for confrontation inquiry,support the confrontation inquiry for the parties of prosecution and defense,improve the inquiry mode,and follow the basic confrontation rules of alternative inquiry under the guidance of judge.In the confrontation involved with the participation of defendant,it is required to guarantee the “confrontation right” for the defendant,and avoid the special identity of defendant generating the negative effects on the witness investigation.The seventh chapter studies the objection rule of witness investigation for criminal trial.In terms of the objection rule,which indicates the rule that one party raises the objection to the improper inquiry of violating the inquiry rule from the opposite party or the answer of inappropriate form from the person to be inquired,as well as requests the court to stop or correct during the witness investigation.The objection rule plays an important role of guaranteeing the true investigation of case,realizing the lawsuit efficiency,as well as maintaining the lawsuit right for person to be investigated and the personal dignity etc.Through analyzing the operation foundation of objection rule in the witness investigation of criminal trial,this paper streamlines the basic content for objection rule of witness investigation from four aspects including the reasons of objection rule,raise of objection,handling of objection and remedy of objection.According to the currents status of legislation for objection rule of witness investigation in the criminal trial of our country and the main issues existed in the judicial application,this paper raises the reconstruction advice on objection rule of trial witness investigation.