Study On China’s Criminal Trial In Absentia

As an important supplement to the criminal trial system,criminal trial in absentia has become mature and stable in foreign countries,but it is the first time that it was clearly stipulated in the criminal procedure law of China in 2018.The establishment of criminal trial in absentia in criminal procedure law is a rational choice after weighing various values.However,as a naturally flawed system,there are still many contents that need further study,especially in the protection of human rights of the accused.In order to strike a balance between the fight against crime and the protection of human rights and to play the role of effective judgment in the international community,criminal trials in absentia must be perfected as soon as possible to prevent its undermining of the right to a fair trial.Based on the guiding function of theory to practice,this paper interprets the concept,characteristics,legitimate basis and value of criminal trial in absentia,analyzes the legislative status of criminal trial in absentia in China.And based on the full investigation and reference of the experience of criminal trial in absentia in developed countries under the rule of law,this article puts forward the idea of optimizing the internal procedure and refining the operational norm of the criminal trial in absentia in China.In a word,this paper advocates the reconstruction of China’s criminal trial in absentia based on the international standard of fair trial.Specifically,in terms of the extent of application of the criminal trial system,China should devote itself to constructing the procedure of trial in absentia for misdemeanor cases,and applying criminal trial in absentia to cases where the maximum statutory penalty is three years or less imprisonment,criminal detention,public surveillance or a fine.As far as the starting conditions are concerned,in the current situation that criminal trial in absentia is applicable to some specific crimes,it is possible to start criminal trial in absentia only when the criminal suspect or defendant is confirmed to be abroad and his or her overseas address is known.In order to promote a fair trial,inquisitional procedure can be added and pre-trial intervention by the defender should be allowed to extend the mandatory defense to the pre-trial stage;Moreover,ensuring the defendant’s right to know is important.It is clear that the defendant should not only know the charges,but also know the consequences of voluntarily giving up the right to participate in the trial.The close relatives of the defendant can be allowed to serve as the recipient of the summons and the copy of the indictment,and the defendant should be given the right to know the progress of the lawsuit.In addition,in order to fully protect the close relatives of the defendant to exercise the right of independent appeal,we can establish the auxiliary system of the defendant to clarify the identity and status of the participants in the litigation of the close relatives of the defendant.