On The Principle Of Prosecution And Trail In Criminal Procedure

The principle of separation of prosecution and trial, as one of the basic principles of the modern criminal procedure, reflects the rules and the nature of the criminal procedure mechanism, also provides a basis for theory of the distinction of criminal procedure functions, forming a basis for the benign interaction of the three major functions of criminal procedure:accusation, defense, and the judgment. The principle of separation of prosecution and trial is a product of social development. In the early stage of human society, there is no state control and intervention on social conflicts. It was produced along with the development of social productive forces, the increase of ruling class's control on society, and the context of realizing that certain actions will endanger to the dominance of the ruling class. At this time the national judicial power was separated from the executive power. Beat against criminal acts changed from slavery private impeachment-style to state intervention system. From the pattern of state intervention the state, as the judge of private dispute, was in the neutral position, and had no natural affinities with the two sides of the accuser and the defendant in nature. This place established the basis for the principle of separation of prosecution and trial.The principle of separation of prosecution and trial, as the fundamental principle of criminal procedure, has its rich theoretical basis. These theories include the theory of procedural justice, theory of procedural subjectivity, and the theory of the distinction of criminal procedure functions. The theory of procedural justice admits that the justice of law can really be achieved only through a fair procedure. The theory of procedural subjectivity holds the point that the criminal suspect and the defendant can not passively wait for state prosecution in criminal procedure and passively accept judgment but should be entitled the equal right of complaints with the state authorities. Also the defendant no longer undertakes their own obligations of self-incrimination. The distinction of the criminal procedure functions means that in a criminal trial the subject's division of labor in the litigation role, affect and the function. The accusation function, defense function, and the judgment function in the criminal procedure has very close links between them.In accordance with the requirements of the modern concept of criminal procedure, we must strictly comply with the requirements of the principle of separation of accusation and trial. But in our country, there are a number of problems of confusions of accusation and trial in criminal procedure. For example, the relationship between the three organs of bureau of public security, procurator ate and the law court is partnership, which is a principle rule. Also because of the requirements of the principle, there are a lot of confusions of accusation and trial phenomenon in our country. This the first one. Second, the lack of pre-trial check in the criminal procedure does not reflect the requirements of separation principle of accusation and trial. Third, in our country, judges' discretion of investigation and evidence collection out of the court has hardly no constraints and limitations. There is suspicion that the judge was transformed into a prosecution. Fourth, the trial object of the court lacks normative, seriously violating the action concept of "non-divisions and ignored ". Fifth, the court's start of the trial supervision procedure is contradict with its judgment role. Finally, the principle of prohibition of adverse alteration in defense is an important safeguard for the framework of the separation of accusation and trial. But this failed to adequately reflected in our criminal procedure and Criminal Procedure Law.For the relationship between the three organs of bureau of public security, procurator ate and the law court, I propose to cancel the relationship of "mutual cooperation". For the lack of the judicial review mechanism in criminal investigation procedures, we should take some transitional reforming measures in our present judicial system. For the review proceedings, considering all the courts have their own register courts, therefore, I propose to reform our current filing a Pre-Trial court to make up the embarrassing situation of the judge missing in the review process. For the problem of judges' right to investigate and collect evidence outside the court, I propose to regulate and restrict the right of investigating and collecting evidence outside court. The law court, as an impartial and neutral administration judge, their power to start the trial supervision procedure is unreasonable. It is proposed to cancel court power of starting the procedure for trial supervision. Finally, perfect the principle of prohibition of adverse alteration in defense to make it one of the security guarantees of the separation of accusation and trial.