| With the advancement of the process of rule of law in China, the reform of criminal trial pattern has also been gradually deepened. Criminal dossier transfer system, which connects the proceedings of investigation and trial, is widely criticized due to its numerous problems arising in practice, thus triggering a reform thereof afterwards. However, the reform of Chinese criminal dossier transfer system has undergo a winding course from the “transfer of all dossier” to the “transfer of the copy of main evidence” and from the latter to the former in just some thirty years. Although dossier transfer system is just a tiny part of criminal justice system, it can be said to be the epitome of the whole criminal justice system. Therefore, it deserves our in-depth thought about the very reason and root cause of the reform and resetting of dossier transfer system during the whole process of criminal justice system reform, though it is just a small episode thereof. Given this, this paper makes a comprehensive and in-depth research on criminal dossier transfer system, putting forward some constructive and reasonable suggestions targeted at the defect currently existed in Chinese dossier transfer system after absorbing other country’s relevant experience.Apart from the introduction part, this paper is divided into four chapters with about 25,000 words in total.Chapter 1 first makes a brief introduction to criminal dossier transfer system, including the meaning of dossier and the three categories of criminal dossier. Then, it introduces three modes of dossier transfer system, the first one is “doctrine of all dossier transfer” mode adopted by civil law countries such as France and Germany; the second one is “indictment-only doctrine” mode by common law countries such as Britain and America; and the third one is “two-step dossier transfer” mode by other countries represented by Italy.Chapter 2 makes an in-depth analysis on the relation between criminal dossier transfer system and criminal proceedings mode from the theoretical level. Looking from whether it is a judge-led trial and the certainty of reaching a judgment, criminal dossier transfer system is a must choice for countries adopted inquisitorial system. Meanwhile, indictment-only doctrine is a proper choice for countries adopted adversarial system, this is tightly bound with their judicial philosophy that procedural justice is pursued, neutrality of judges required, parties-led trial advocated and jury system favored.Chapter 3 makes an introduction to two reforms of criminal dossier transfer system in China, and makes a comment on both of them respectively. Although the dossier transfer system established in criminal procedure law of 1979 plays a positive role in crime-cracking and litigation efficiency-improvement, it can easily lead to judges’ prejudgment, thus turning the trial into a mere formality. Although judges were not allowed to pre-contact all dossiers by the “photocopyism” established in 1996 to, he or she can still render judgment by way of “examining dossiers after a trial”, thus making the trial present a new “pattern”. It seems that the reform of criminal procedure law in 2012, which makes the “dossier transfer system” return, is well received, at least not being criticized by scholars who actively advocated the “indictment-only doctrine”. It brought new breakthroughs in preventing judges’ prejudgment, ensuring equal debate of prosecutor and defendant and substantiating a trial. However, its limitations still can’t be ignored.Chapter 4 presents some suggestions for the reform of Chinese criminal dossier transfer system. There is no doubt that indictment-only doctrine plays a positive role in preventing judges’ prejudgment and substantiating a trial, but it cannot work in China for the reason that it cannot fit into Chinese criminal litigation structure and there is a lack of system foundation(political independence of judicial system) and technical foundation(well-established evidence system), on which indictment-only doctrine must rely to exist. Therefore, we should continue to adopt dossier transfer system since the failure of indictment-only doctrine. As for the limitation of dossier transfer system that it can easily lead to judges’ prejudgment and trial formalization, the author puts forwards some corresponding countermeasures in this paper. To prevent judges’ prejudgment, prosecutors’ obligation of objectiveness and fairness shall be emphasized, the content of dossier transferred by prosecutors shall be reasonably regulated. Prosecutors should put not only the evidence that proves the defendant is guilty but also the one that is advantageous for the defendant into dossier. Moreover, the evidence that is advantageous for the defendant transferred by the prosecutor should be given an obvious mark so as to remind the judge to attach special importance to it, thus having a comprehensive knowledge of this case. In addition, criminal dossier transfer system should be applied together with the rule of evidence, and the exclusionary rule of illegally obtained evidence should be carried out in accordance with the law. Meanwhile, we should prevent judges’ inner conviction from being influenced by the character evidence. To prevent the trial becoming a mere formality so as to substantiate the trial, the independence of trial and defense shall be guaranteed. Meanwhile, the principle of directness and verbalism should be fully integrated with the rule of mutual verification of evidence on the condition that, making the whole criminal proceeding trial-centered, thus allowing the judge to form his or her inner conviction strictly based on the trial. Finally, when we prevent judges’ prejudgment and substantiating the trial, we should also improve relevant supporting systems, such as pre-trial meeting system, judgment documents reasoning system, etc., to ensure that dossier transfer system can bring itself into full play. |
