From Theory To Practice: Research On Chinese Criminal Trial Reform

Apart from the introduction and conclusion, this thesis consists of five sections.The first section mainly concerned with the distinction of relevant concepts andexplanation of reasons for the reform. The pattern of criminal trial is the procedure, act andproceeding adopted in the criminal trial, along with the summary of the states andrelationships among them. Pattern of criminal trial and structure of Criminal Proceedings arenot included in a concept, they have the differences as well as convergence.It is better toemploy with "adversary system" and "inquisitorial system" to describe the pattern of criminaltrial existing in the two main law systems.Maintaining or reconstructing the legitimacy ofcourts in jurisdiction, improving the authority of criminal trial and preventing judicial risk aredeemed original motivate of the reform of the trial. While the invalid of the new system andthe political needs for the balance between reform and social stability are the reasons why wechoose the evolutionary approach.In the second part, a specific outline is drawn to give a view of the reform history of thecriminal justice system in the past20years of our country. More specifically, before the courttrial, the transfer of the files gradually changed from a rule of transferring all of the files into arule of part of it; also the investigation before the trial altered from a substantial one into aprocedural one. In the court trail, the judge proved to be much more independent in will andneutral in character; In the meantime, the prosecutors increasingly tend to being a party, whilethe defendants get a growing strength in their subjective status.Apart from this, a significantprogress has made in guaranteeing the judge a direct hearing of the case, imposing restrictionson rumor and excluding the illegal evidence. Yet the defects and insufficient in the reform isquite evident. For instance: the investigation and the prosecution mechanism areinharmonious with the new "Adversary Proceedings" trail structure. The reform of thepretrial phase not only failed to help the judge in getting rid of the prejudgment, but alsoviolated the defendants’ right to know towards the evidence. With duality and irrational, thecharacters of the prosecutor, the defendant and the judge are in disorder; the rules of the trialand the evidence remain to be perfected.In the third part, the efficacy in the criminal justice practice of the reform is examined ina prospect of positivism. Because the files transferring after the court, the judges can’tconcentrate on the inquiry, cross-examination and debate between the prosecutors and the defendants. This directly lead to a neglect towards the court trial while a widespread behaviorthat only emphasis on the files and the court record. The legal status and capacity to actionamong prosecutor，defendant and judge still in a state of unbalanced. And an ideal"Triangular Structure" is far from its reality. Low presence rate of witness brings about anunobstructed use of documentary evidence. The administration of justice still remains to be aproblem that the judges can’t be independent in judicial activity. It is hard to eliminate theillegal evidence in practice and a pervasive issue that the extort confessions by tortureviolated the legitimate right of the accused also stands in the way.The forth part generalizes the advantages and disadvantages of Chinese criminal trialreform, and mainly analyzes the underlying reason of its failure. Up to now, we also havesome deficiencies in the formalization of criminal trial. What are worse, new problems haveappeared gradually through the extension of reform. However, these reforms also havebeneficial aspects. They play the role of transition in their own reform process and the role ofmodeling and leading in the whole vicissitude of criminal suit. Whereas the inferior nationalmanagerial capacity, the irrational allocation of criminal juridical power, the immaturelegislative technique, the unsound related cooperative system and the inadequate judicialresource are the underlying reasons leading to the failure of criminal trial reform.The fifth part concludes the practical enlightenment of the reform for our national farthercriminal procedures of amending activities. These lessons or experience mainly include: thereform of judicial system is the precondition of the change of penal procedure; no matter whatreform of that cannot and impossibly transcend the judicature mechanism of the time. Fromnow on, we should further stress the research and practice of legislative technique in case thejust released law faces the destiny of avoidance and vacancy. All the reforms should set footon fundamental realities of our country without excessive yielding. Besides, when we strengththeoretical research in order to provide legislature more comprehensive direction, we alsoshould intensify the experiment on the reform before it released to improve the precision andeffects of legislature, reducing the risk of legislation. Finally, we also should pay closeattention to the exotic legislative tendency, lest should take an indirect route in vain; moreover,we also should retrospect our national past mending practice of law now and again.