An Empirical Study On Opening No Court Session In The Second Instance

The trial of second instance method refers to the court of second instance cases form. The criminal procedure law of our country stipulates the trial and not hearing two types of criminal trial. For hasn’t trial way, many theoretical criticism, thought it violated the basic principle of criminal trial, the accused, argue, parties in the trial functions cannot effectively play. Hasn’t trial way in practice running status? Whether these defects? Based on J city intermediate people’s court of Guangdong province on the basis of empirical research, analysis of the second instance not hearing problems, and puts forward the idea to solve the problem. Hope through the study of this article, to the improvement of the system of criminal second instance trial way.In addition to the introduction, this paper will be divided into four parts, about thirty-two thousand words.The first part is the general overview of the way to hasn’t hearing. This section introduces the direct trial mode, the inquiry type trial way and the pros and cons of written trial mode, summed up the criminal procedure law in 1979 to 2012 in the criminal procedure law on type selection mode of trial. For the trial of second instance, the criminal procedure law in 1996 for the first time made clear no court hearing and the legal status of the two trial way, and will be of appealed and protested cases as the people’s court of second instance shall open a court session to hear a second trial courts of general principles. In 2012, the criminal procedure law and relevant judicial interpretations of the criminal procedure law in 1996 and the relevant judicial interpretations about the provisions of the criminal trial mode has made a fundamental change. 2012 "criminal procedural law" provisions of the limited of the hearing, which limit the opening several cases, other cases are not in session, at the same time to interrogate the defendant, listen to the other parties, defenders and agents AD litem opinions by the prepositional procedure to determine the case facts for the purpose of change to the program to make trial.The second part studies the second trial operation. This part firstly introduces the 1996 with column data "criminal procedural law" and "criminal procedural law" in 2012 no trial run rate under different legislative principles, and the author generalizes the survey data. Based on the investigation to the practice of criminal trial mode, we found that no court second trial excessively high proportion. Second, the judicial practice in the second instance trial mode option lies largely in the hands of the judge, and judge for not hearing a case for the most part tend to choose not to trial. In addition, due to various factors interweave, procuratorate little influence on the choice of the ways of hearing. Finally, the author of trial practice to run the program, including the marking of a collegial panel, the defendant and heeding the opinions of the lawyers and others and remand the case for the deliberation procedures of a collegial panel.The third part research hasn’t hearing problems. Hasn’t hearing problems including hearing range is too large, but those whose tripartite limited functions, it is difficult to guarantee the defendant rights, etc. First of all, in the legislation of the scope of hearing not specific restrictions, leading to the discretion of judges in the judicial practice, trial way inevitably choose bigger differences between different regions, different judges, no court and excessively high proportion. Second, the people’s procuratorate on trial, who was not involved in, limited participation, defense lawyers and the judge excessive participation, cause the people’s procuratorate, defense lawyers, the functions of the three parties cannot effectively exert collegial panel. Finally, a lawyer shall not be entitled to remand the case for present and only the protested cases all the provisions of the trial appeared one of inadequate protection of the rights of the defendant.The fourth part puts forward the idea of perfecting criminal trial mode. To the problem of range is too large to not hearing only science division is not the scope of hearing can fundamentally solve the problem. Cases involving the entity rights shall open a court session, for the retrial of there is no need to open a court session to hear a case, because the judge discretion in order to avoid big caused by way of trial because of difference of people from place to place and not excessively high opening ratio of the status quo, and expand the scope of hearing the case is feasible. For not hearing procedure in the process of running the defendant on three sides limited functions, failed to sufficiently protect the defendants’ rights issues, first of all, should strengthen the supervision function of the people’s procuratorate, the participation of defense lawyer guaranteed. Secondly, for the disadvantages of trial mode is determined by the collegial panel shall be set up a specialized distribution department. Finally, for the rights of the defendant, the author creatively put forward the reservation if the system, and in the adjudication of the prosecuting and defending parties in the legislative mode selection on inequality, the author thinks that should be the same as the applicable to protest, appeals trial mode selection criteria, in order to fully safeguard the rights and interests of the defendant.