| Taking the online trial of criminal cases as the research object,this paper examines the legitimacy of the online transformation of criminal trial procedures from the aspects of fairness and efficiency.The first part is a summary of the development process of the online trial of criminal cases in China.Conceptually,the online trial of criminal cases is divided into a broad and narrow sense.The broad online trial includes all online litigation activities involving the three parties involved in the accused and defense.The narrow online trial mainly refers to the remote appearance of criminal defendants to participate in trials,excluding online pre-trial meetings and witnesses in traditional trials.Testify online.Compared with traditional offline trials,online trials of criminal cases have three prominent characteristics: plurality of court venues,electronic trial activities and dependence on information network technology.The development of online trial of criminal cases in China has an obvious phase.Based on the outbreak of the COVID-19 epidemic in 2020,it can be divided into the independent exploration period of local courts in the early stage of the epidemic,the application period of the national court outbreak during the epidemic,and the national unified planning period in the post-epidemic era.The whole development process reflects the pursuit of judicial efficiency.Seek to be an endogenous driving force,take judicial informatization construction as the background of the times,and take public security as an opportunity to deepen the development logic.After decades of practical exploration,courts at all levels in China have also been basically equipped with software and hardware facilities to support online trials.The overall development level of online trials in criminal cases in China has been at the forefront of the world.The second part is the procedural legitimacy disputes and the causes of disputes faced in online trials of criminal cases.Criminal due process of law is a basic principle of modern rule of law,which means that citizens can be criminally held criminally liable only through due process of law.The legitimate criminal trial procedure should be fair and efficient,and meet the requirements of impartiality of the referee,equal confrontation between prosecution and defense,protection of the rights of defendants,and timely trial.The procedural due diligence challenge faced by the online trial of criminal cases mainly focuses on the fairness of the trial,including that the judge’s online trial may violate the principle of direct speech,the defendant’s online appearance in court weakens their litigation rights,and the virtual court space may be difficult to guarantee the court order,thus undermining the authority of the criminal trial.Behind many disputes is the concern that the application of remote audio-visual transmission technology will reduce the fairness of criminal trial proceedings.The important reason for this concern is that the traditional principles of due process lack complete interpretation of online trials,and it is difficult to view the risks of technical application in litigation procedures rationally due process due process by adhering to traditional due process standards.The third part is a technical update of the traditional due process theory carried out by scholars at home and abroad in response to the development of information judicial procedures,and on this basis,it reconstructs the procedural legitimacy standards for online court trials in criminal cases to provide guidance for the improvement of the system.In view of the application of online litigation technology,the beneficial development of traditional due process theory should adhere to the basic idea of power control and rights protection,take technical application care as the form characteristics,and take judicial efficiency and basic judicial justice as the value pursuit.Therefore,the online trial procedure for criminal cases should ensure that the trial method meets the requirements of online direct trial,including simultaneous trial by video,and judges need to conduct hearings in a formal court;the rights of defendants should be guaranteed incremental equivalent,and the online trial defendants should continue to be guaranteed the same as in traditional offline trial procedures.In addition,the defendant needs to be given the procedural choice incremental,and the decision on whether to bear the risk of derogation caused by the remote appearance in court should be handed over to the defendant to achieve the "substantive equivalent" of the protection of rights.The online trial of criminal cases should be applied to a specific scope to reduce the risk of technical application,and the technical and factual determination of online trial.The trial activities of cases that are not difficult and the confrontational between the prosecution and the defense have a high degree of fit;the online trial technology embedded in the criminal trial procedure also needs to meet certain normative requirements,that is,the online trial system should specialize the operation of technology and fault handling on the basis of fully evaluating the application characteristics of information network technology.The fourth and fifth parts put forward suggestions for the future development of China’s system with the goal of strengthening the procedural legitimacy of online trials in criminal cases.The release of Online Procedure Rules and Online Court Rules has basically completed the institutional framework for online trial of criminal cases in China,but there is still room for relevant rules to refine and improve.Combined with the difficulties in the operation of the system exposed in the judicial practice of online court trials,it is necessary to further improve the system of online court trials in China.Ontology rules,consider refining the scope of application of online court hearings in criminal cases by formulating negative lists,strengthening the protection of defendants’ procedural choice rights by refining the rules of consent in the form of court hearings,guaranteeing the order of online court hearings from both the aspects of rule improvement and technical security,and aiming at the inevitable network operation in the trial process.To formulate more perfect program conversion rules,we should also pay attention to the improvement of the online trial data security protection mechanism,strengthen the technical guarantee of data security,and build a data security supervision mechanism.At the same time,in view of the lack of standardization in the operation of the system exposed by judicial practice,attention should also be paid to the timely follow-up of safeguard measures.By strengthening the coordination and cooperation between the courts,procuratorates and detention centers,and earnestly giving full play to the role of court administrative measures in ensuring the smooth development of online trials,we should also provide online court sessions for criminal cases.The judicial standardization of the trial provides fuller guarantees. |
