| The relationship between the accusant and the judiciary is vital in the legal relationship of criminal proceedings. The principle of separation between the accusant and the judiciary is an important principle of criminal proceedings, and is one of foundation tenets and the intensive reflection of fundamental law in criminal proceedings. The principle of separation between the accusant and the judiciary means the separation between the accusatorial duty and the judicial duty, which wants to keep neutrality of the judge, strengthen the accused, prevent misusing of the accusatorial power and protect the defendant’s rights and interests. In our country, the principle of separation between the accusant and the judiciary has still many disadvantages in the criminal proceedings. Many provisions violate the principle of the separation between the accusant and the judiciary in the system. So we must correct the principle of separation between the accusant and the judiciary in order to improve the quality of a criminal case, to find the real entity as soon as possible. At present, our country scholars generally agree that the principle of separation between the accusant and the judiciary plays a very important role in criminal procedure, and also point out some problems in the trial stage, but not systematic, not comprehensive enough. This paper adopts historical, comparative and the method of linking theory with practice, this paper adopts historical comparative and the method of linking theory with practice, to describe the principle very comprehensively. And from the history origin and development process of the principle, analysis the contents of the principle. This paper discusses the connotation and history of the principle, and analysis the principle of separation between the accusant and the judiciary of representative state of the law systerm. The represent state of common law system are Britain and the United States, while the representative state of continental law system are French and German,it sums up some characteristics according to these countries, as the foundation of our principle in china. Then according to the actual condition of our country, it sums up many problems of the principle in our judicial practice. And put forward seven suggestions according to China’s actual situation and draw lessons from the principle of separation of the accusant and judiciary of two law systems. Which relates to the non-trial without application, judicial neutrality principle, limited review principles of application, and the concept of procedure justice, protection of human rights concept, balance of power theory, which runs through the paper and we hope they can correct that seven problems, the principle of separation between the accusant and the judiciary is an important principle of criminal proceedings,if the separation between the accusant and the judiciary is not carried out, the neutrality of courts, effective defense, and procedural justice can not be achieved. Only the principle is carried out on the level of legislation and the judical aspect, we can guarantee the substantive justice and the human rights.I hope these suggestions in this article can be useful to the judical practice. |
