| The judge’s power of out-of-court investigation for evidence is inconsistent with the separation of the judge’s neutrality and the function of the trial and defense in the modern criminal trial.The investigation of the evidence which has positive initiative and exploration and the judge who was expected to become a neutral referee are opposite.China’s current criminal procedure law still retains the judge’s power.The theoretical circles often have a argument-"disputed dispute".The author believes that under the current judicial state of China,Out-of-court evidence investigation is necessity of existence.Focusing on reality,there are cases where the parties have insufficient evidence and evidence collection ability,the lawyer system is imperfect,the administrative agency’s intervention and the burden of proof are distributed,and the parties are unable to protect their rights.The proposition that "the criminal judge’s right to investigate outside the court" is true which is the author’s first affirmation.The focus of this paper is mainly on the extent to which the judges are empowered to investigate evidence outside the court and how to regulate and exercise this right.The first part of this paper introduces the development process,characteristics and value of the criminal judge’s out-of-court investigationpower.The time period of development is divided into three parts: ancient China,the Republic of China and the founding of the People’s Republic of China.The characteristics of the judge’s out-of-court investigation power are described around the three characteristics of complementarity,subjectivity and responsibility.The value aspect emphasizes the three aspects of ascertaining facts,balancing the power of both sides,and embodying procedural justice.The second part mainly analyzes the current situation and existing problems of the criminal investigation of the criminal judges in China.At present,China’s current situation of the exercise of the right to investigate outside the court is more than "dare to use" rather than "abuse".This actually reflects the defects of the mechanism.The author summarizes the problems mainly including the initiation of the investigation right outside the court,the type of investigation means are inconsistent with the actual situation,the evidence of the prosecution and the defense is incomplete,the lack of supervision of the investigation behavior,and the provisions of the cross-examination rules are contradictory.The third part makes an extraterritorial investigation of the judge’s right to investigate evidence outside the court from the perspective of comparative law.From the party model,the authoritarian mode and the mixed trial mode,the author analyzes the current regulations on the judges’ evidence investigation in many countries,analyzes theircharacteristics and commonalities,and provides reference for the improvement of the out-of-court investigation system in China.The fourth part is to explore the perfect path of the investigation power outside the court.The analysis was carried out from the start-up phase,the implementation phase of the out-of-court investigation and the phase of evidence use after the investigation.The author puts forward his own opinions on the specific construction of the system,including the need to start the evidence investigation according to the application or the ex officio,and the statutory investigation means should make different requirements according to different natures.The purpose of this paper is to seek the precise positioning of the judge’s out-of-court investigation power in the process of the integration of the litigation system,so that it can exert its unique tool value.And in the improvement of the system,both physical reality and procedural justice are taken into account. |
