Research On The Principle Of Direct And Verbal Trial In Criminal Procedure

The Principle of Direct and Verbal Trial is one of the basic criminalprocedural principles prescribed explicitly in statute law in Continental LegalSystem countries. It is not regulated clearly in Anglo-American Legal Systemcountries, but the trial mode under the Adversary System embodies the valueand the ideal of this principle perfectly. This principle is also carried out fullyin Japan and Italy. However this axiomatic principle for most countries of theworld is still not established in our Criminal Procedure Law, besides, somearticles of legislation and the judicial practice are deviated from the principle.Therefore, the author tries to analyze the Principle of Direct and Verbal Trialdeeply, and then gives the author's advices on establishing the principle in ourcountry ultimately.Part one is the outline of the Principle of Direct and Verbal Trial. ThePrinciple of Direct and Verbal Trial is a criminal procedural principlecontrasted with the Principle of Indirect and Written Trial. It is an importantachievement of the legal system revolution in Continental Legal Systemcountries'bourgeoisie revolution. This principle animadverts on theunreasoning and unfair of the Principle of Indirect and Written Trial, discardsthe useless, then develops to the mode of directness and wordage. Thisprinciple is not only established in Continental Legal System, but also carriedout in Anglo-American Legal System and the Composite Legal System.Meanwhile, this principle is also prescribed in some international conventionsrelated to criminal law and protecting human rights. The principle has becomeone of the basic worldwide criminal procedural principles. Synthesizing somescholar's understandings about this principle, the author believes that thedefinition of this principle is: in the judicial trial phase, the judges listen to thestatement of the defendant, the witnesses and other participants in person withall the participants attending the court. The facts and evidences must bringforward to the court orally; the inquisition must be carried through by meansof verbal debating and confrontation. The judges can only adopted theevidences which has been stated, debated and confronted in the judicial trial,and then confirm the facts and make the sentence based on those evidences.These requirements of the Principle of Direct and Verbal Trial must be carriedout in the criminal trial: in the judicial trial, the defendant, the prosecutor andother participants must attend the trial in person; all the eyewitnesses, expertwitnesses, the victim and the defendant must attend the court and bringforward the evidences orally; the judge must exquisite and adopt the evidencesin person; the hearing of the court must be carried out by oral debating;meanwhile there are some relative principles and rules should be establishedto guarantee the Principle of Direct and Verbal Trial to fulfill concretely.Part two is the values of the Principle of Direct and Verbal Trial. ThePrinciple of Direct and Verbal Trial has unique values on Procedural Justice,Substantive Justice and Procedural Efficiency. On the Procedural Justice, thisprinciple is helpful to achieve the impartiality of the procedure, the equality ofthe procedure, the participation of the parties, the autonomy of the judges andthe openness of the judicial trial. On the Substantive Justice, through the directand verbal trial, the judges can touch the evidences in person, so theestrangement between the judges and the original evidences can be expelled,and the link between the judges and the dossier delivered by prosecutor can becut off. The fulfillment of this principle can also ensure the defendant toperform his right of defense, thereby, the defendant's human rights can beprotected better. Through such judicial trial, the judges can cognize and adoptthe evidences well and truly, disclose the case's facts and make a just sentence,thus the Substantive Justice can be achieved. Through the direct and verbaltrial, the judges can inquire the participants at the court and don't need toinvestigate out of the court. The litigants will have the chance to state theirideas and thoughts, so they will accept the judge willingly. All these canreduce the waste of the judicial resource, the litigants'procedural cost and thenational trial cost, so the Procedural Efficiency can be enhanced.Part three is the relationship between the Principle of Direct and VerbalTrial and the correlative principles and rules. Regulating the Principle ofDirect and Verbal Trial in criminal law doesn't mean that the principle will becarried out perfectly, it needs some correlative principles and rules, such as theCharge-Statement-Only Doctrine, the Principle of Actual Participation, thePrinciple of the Same Judges Hearing One Case, the Principle ofConcentrating Trial and the Rule of Judgment Pronounced in the Court. Theseprinciples and rules are not the requirements of the Principle of Direct andVerbal Trial, but the establishment of them is helpful for truly exercising thePrinciple of Direct and Verbal Trial, thus the principle will not become averbal manifesto and a futile pattern.Part four is the establishment of the Principle of Direct and Verbal Trial inour country. There are some articles in our Criminal Procedure Law and somerelative judicial interpretation has embodied the Principle of Direct and VerbalTrial's spirit to some extent, but our Criminal Law doesn't prescribe theprinciple definitely; some relative principles and rules hasn't been establishedand there are many articles and practices violated the requirements of thePrinciple of Direct and Verbal Trial. For example: the prosecutor still deliversthe dossier to the criminal court, and this behavior can't prevent the prejudgeof the judges and can't stop the judges to disclose the facts depending on the...