The principle of separation of Accuse

[Abstract] Criminal controlled trial separation principle is an important principle of the Criminal activity affects the situation. Amendments to the Code of Criminal Procedure of 1996 has embodied the spirit of the principle of separation of control trial but for the provisions of this principle, there are still many unreasonable at the meaning of the principle of Accusation, the theoretical basis of the significance of the detail. analysis Prosecution and Adjudication of criminal justice, pointed out that the existence of the unreasonableness of the rule of law in our country hazards. Then put forward the proposal to build a reasonable Accusation system architecture.

[Keywords] Accuse the principle of separation of criminal proceedings, judicial review, the indictment of a doctrine, no trial without complaint, v. Adjudication

[Body]

Controlled trial separation principle is a principle of modern criminal procedure generally followed, is also an important symbol of of Modern Criminal civilization, democracy, scientific. >> << Code of Criminal Procedure in 1979 and revised in 1996 << Code of Criminal Procedure >> does not expressly require controlled trial separation principle embodies this principle, but in a certain extent, but the provisions of this principle is not thorough enough, there are a lot of regulations and control of the program trial separation principle contrary to the spirit from this situation not only does not meet the requirements of procedural justice, is not conducive to the protection of the human rights of the people to be prosecuted, and even lead to the decline of judicial authority, and hinder the process of the rule of law in China., controlled trial design of China's Criminal Procedure regardless problem The reason for the analysis, put forward countermeasures to solve problems Prosecution and Adjudication, and provide some suggestions for China's ongoing reform of criminal justice.

Accuse the principle of separation Overview

(The meaning of the principle of separation of a controlled trial

Controlled trial separation principle in the slave society of trial activity has been established, once abandoned feudal inquisitorial proceedings, re-confirmed anti-feudal revolution of the bourgeoisie, the important principles of modern criminal litigation activities. The Accusation principles include the following:

1 complaint functions and judicial functions were borne by the state of different specialized agencies. Accusation function is mainly borne by the prosecution, the trial functions borne by the judicial organs. The procuratorial organs exercise of the rights of complaint, judicial exercise judicial power. The procuratorial organs can not share jurisdiction, trial authority complaint can not be divided rights. the accusation rights and the independence of the judicial authority should be given equal protection.

Trial prosecution premise without the prosecution's case, the court shall make a judgment, and that no trial without complaint. Controlled trial separation principle core no trial without complaint, including both on procedural and substantive procedures reflected in the complaint right as to the jurisdiction of a request the court trial and claims of those whose criminal responsibility of the accused, has the initiative to launch a trial program. depends on the trial proceedings with respect to the complaint right to perform its functions exercise has a passive entity, including both the effectiveness and the effectiveness of thing. effectiveness of the people, the trial is limited to the suspects set out in the indictment, and aspects of the matter, the trial is limited to prosecution set out the facts of the crime in the book In other words, the courts of the content set forth in the indictment to trial and sentencing, because "as a representative of the national interest, the judiciary in the course of criminal proceedings to protect the power of punishment by the exercise of judicial power exercised "countries to give up their obligations not only is a laissez-faire behavior, but also is a crime" (Note 1 was found in the course of the trial, but not charged with criminal suspects or the facts of the crime, as long as the prosecutor's office or private prosecutor and the legal representative is not appended, the judicial shall not be automatically attributed to the jurisdiction of the applicable range. (Note 2

(Two Accuse the theoretical basis of the principle of separation

1, the theory of the separation of powers

The separation of powers theory reveals the division of powers and the need for the establishment of a power restriction mechanism, it is an important theoretical basis for state power configuration and the independence of the judiciary. Country though the implementation of the separation of powers system of checks and balances, but for the separation of powers doctrine principle positive attitude. fact, both the configuration or the judicial system of China's state power construct reflects the conscious use of the theory of the balance of powers, so the separation of powers theory is also our criminal Accusation and the theoretical basis of the principle of separation.

Recently, the modern state is generally divided into three parts of the legislative, executive and judicial state power is exercised by the authorities of the three countries. Relationship between the three state organs in the exercise of state power, but also to maintain a balance each other, mutual restraint. Divided right to the core of the theory is the constraints and limitations of state power. reach protect citizens' legitimate rights and interests, the purpose, the most effective means to prevent the abuse of power is the power to restrict power. separation of powers theory emphasizes state power can not be a person or a exercise of the national authorities, the division of labor must be performed by a different state organs, constrained to each other. Otherwise, the rights of citizens not only can not be guaranteed, even easy to violate.

In this theory of the separation of powers and the separation of powers and the protection of the political system, the court has jurisdiction separated from the executive and legislative powers, and becoming an independent and autonomous, "a third of state power." Court is no longer the guardian of the national social order and public tranquility, and become the defenders of the rule of law and justice. Court as a national judiciary, which bears an impartial, independent mission of the implementation of the law by a judicial trial to solve a variety of interests disputes, in particular the implementation of the law, to explain the laws or even the creation of a new legal rule. the procuratorial organs from the general part of the state administrative agencies, their duty is to promote the guilty are convicted or sentenced by the criminal prosecution of the perpetrators, which safeguard the interests of the state and society can be said to distinguish the functions of the court and the prosecution in criminal proceedings, to some extent, can be regarded as one of the specific performance of the separation of powers of the state judiciary and executive branches, Accuse separated realize also been impact and to promote the separation of powers theory. (Note 3

In criminal proceedings, the court's duty is to the citizens accused by the state prosecution agencies whether he will take the issue of criminal responsibility to make an objective and impartial referee's authority. Thus the task of the criminal prosecution only by specialized agencies set up outside the court that the procuratorial organs to commitment, the court shall not initiate trial proceedings. court trial object must be an object to maintain identity Procuratorate prosecution alleged Procuratorate indictment the defendant and the crime, the trial court shall not directly a result of the separation of the functions of the accusation and trial and checks and balances Accusation and the principle of separation of basic architectural features and a combination of the principle of the criminal proceedings. (Note 4

2, litigation justice concept

Litigation justice has always been regarded as the highest value targets of litigation activities. Litigation impartial contain two substantive justice and procedural fairness. Substantive justice refers to the fair to punish the crime, including the correct to distinguish between Zuiyufeizui boundaries accurately identified charges, moderately sentencing , procedural justice, the proceedings meet the standards of fairness. procedural fairness as the activities of the Criminal pursuit of basic value target, its core philosophy is based on procedural constraints of power, that is fair, reasonable program settings to restrict the right of the national criminal justice abuse, protect the litigating citizens basic human rights.

Target of litigation value as an ideology, procedural fairness has quite abstract, it must be outside for people to evaluate or to build criminal proceedings into a number of specific principles to provide a basis for judging from the content point of view, people generally program neutrality, equality, openness and participatory as the reference standard measure of procedural fairness. "Judge neutrality often justice and procedural fairness even litigation draw an equal sign", "Judge neutral procedural fairness and even litigation impartial implementation process the most basic is the most important factor. "(Note 5)
Accusation in criminal proceedings in the implementation of the requirements of a fair idea of ​​the litigation. Criminal value target is to ensure procedural fairness and substantive justice and procedural fairness to ensure substantive justice, not just program it is difficult to have a fair outcome, entities justice relies heavily on procedural fairness in the feudal society Prosecution and Adjudication inquisitorial proceedings mode, the judge set indictment rights and jurisdiction in one, which will inevitably lead to the judge prejudiced, the presumption of guilt. the Accuse functions centralized, will result in serious prejudge and prejudice the case, the judge , while under the control of the judge to prejudge and prejudice, it is difficult to identify the facts of the case. implement the Accusation and not only in order to ensure the fairness of prosecution fairness of the outcome, but also to protect the physical results.

Criminal controlled trial mode requires a rational perspective to examine the value of procedural justice. Should reflect the defendant legitimate interests in the litigation mode settings, the judge should be neutral, the judge in the court, the prosecutor checks and balances. Law of justice, the only through the program's impartiality can truly be realized.

3, the program theory of subjectivity

Called subjectivity is different from the object of the essential attribute of a particular individual as a moral subject has the recognition of a person's body, it is equal to the recognition of the dignity of his purpose and personality, this is the main principle core program subjectivity theory is designed to emphasize the the Criminal Prosecution objects in the course of criminal proceedings complaint organs, judicial organs have the same program the dominant position, with no distinction or distinction on the identity of the judges and prosecutors, only the the litigation role played by difference.

Today the concept of human rights is sweeping the globe, its spirit is concerned about the citizens of a country's status in the criminal proceedings, he incurs the prosecution whether a fair and humane treatment. So the United Nations as well as the worldwide organization called for the establishment of a rational and fair criminal proceedings in order to protect the dominant position of the defendant, the State must make the powers and checks and balances, after all powers with self-expanding nature defendant in the face of strong state power is weak, so state public power to the several departments to exercise and make each other constraints If the law can not exercise effective control over the prosecution of officials Accuse regardless of the judges and prosecutors to investigate the criminal responsibility of the accused, then the accused the program principal position to speak of. program subjectivity theory calls for Criminal Accusation mode. the prosecutor exercised only recourse, not conviction and sentencing of the accused, the judge can only exercise jurisdiction, and not actively crime prosecution. (Note 6

(Significance of the principle of separation of three controlled trial

The principle of separation of the accusation and trial services in the course of justice, and justice is the life of the criminal proceedings. Aristotle believed that the ideal judge should be the embodiment of justice and procedural fairness first asking the judge in the neutral position. Because of the nature of the litigation is that both sides conflict of interest, the complaint they trust, authoritative third-party judge to resolve the contradictions are biased in favor of one's own in the litigation, the two sides psychological, when the judge reasonable balance of interests, to make a scientific judgment, neutrality is the best choice (Note 7 judges are not neutral and will inevitably lead to a miscarriage of justice. Accusation and the principle of separation as a regulatory complaint over the jurisdiction of the important principles of clarity of the prosecutors, the private prosecutor and legal representatives, and judicial organs of the relationship, given the complaint functions and judicial functions accurate positioning. especially judges functions in our complaint, not the complaint behavior, its litigation conduct litigation consistent with the objectives after the start of the trial proceedings, the judge in the court at the same time equally concerned about both the prosecution and the defense advocate eliminating judges psychologically as prosecution, may produce emotional partial different tendencies, between the prosecution and defense to maintain a detached, unbiased attitude. Accuse the principle of separation of complaint rights tertiary properties, independent nature certainly make constrain relationship with jurisdiction, effectively prevent the wanton arbitrariness of judges.

Second, controlled trial separation principle embodied in the current Code of Criminal Procedure

Of 1979 << Code of Criminal Procedure, the provisions of the principle of separation of Accusation and also very thorough also lack assurance measures, plus legal and cultural traditions of China's "entity, light program" procuratorial organs, and therefore the judicial practice the judicial mutual restraint often enough 1996 >> << Code of Criminal Procedure Amendment absorption characteristics of adversary proceedings mode, establishing a new trial. such trials have similar evidence of the adversarial system characteristics of the method of investigation. controlled trial separation principle has been further confirmed and strengthened, mainly reflected in the following aspects:

(A judge trial activities tend negative neutral

1996 << Code of Criminal Procedure, prior to the amendment, the judges on the court investigation, a series of links occupies a dominant and controlling position: the judge before the hearing to determine the range of evidence need to be incorporated into the court investigation, the judge decided the order of the court investigation evidence and presentation of all the evidence presented, the judges in accordance with the outline of the investigation to determine in advance the initiative interrogate the defendant, the questioning of witnesses, victims and expert witnesses, as well as activities to produce any physical evidence and documentary evidence by the judge first, the prosecution and the defense can only thereafter allowed to put forward and express their views. judge based primarily on public prosecution dossier, very easy to try cases to the Public Prosecution Service of vision, so easy to lose neutrality 1996 amendments to the Code of Criminal Procedure << >> introduced a certain extent similar to the method of investigation of the adversarial system of evidence, the burden of proof to the prosecution and the defense dominated instead of a judge arranged evidence investigation and avoid a the fierce confrontation party of the judges and the prosecution, and is conducive to the realization of judges neutrality.

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(B judge ex officio investigate and collect evidence subject to certain restrictions

1979, "the provisions of the Code of Criminal Procedure >> During a court hearing, in the event the collegial panel considers that the lack of evidence in the case, or discover new facts and situations such as when postponing the trial and the investigation itself << Code of Criminal Procedure as amended in 1996 The >> 158 although it retained the investigative powers of the judge's court, but the premise of the investigation instead of evidence have questions. 1996 << Code of Criminal Procedure >> clearly explains that "there is doubt on the evidence" relevant judicial interpretations, but, according to the 1996 << Code of Criminal Procedure >> 162 "on the lack of evidence can not be found guilty should be made to the lack of evidence, the provisions of the guilty verdict, "the alleged crime can not be established, the judge had clearly not based on the collection of evidence, supplementary evidence to make conviction purpose of court investigation, but only in order to investigate and verify the evidence the court The survey is consistent with the original intent of the legislation. modify further embody the principle of separation of accusation and trial.

(Three-Pretrial scoring range reduction will help prevent a judge Pretrial prejudge

1996 << Criminal Procedure Law >> the provisions of Article 150: "People's Court review of the prosecution's case, the indictment clearly alleged facts of the crime and with evidence directory, copy of the witness list and the main evidence or photo should decide the trial is held. "This shows that China's prosecutors have no longer like the original as" the transfer of full docket permit. "so, before the hearing, the judge scoring narrowed it down to help prevent a judge Pretrial prejudge, for the realization of the tribunal The former program and further separation of the trial proceedings is of great significance,

(D enhance the prosecution and the defense and procedural rights on sexual

Criminal Procedure Law >> 1996 << enhance both defense and prosecution procedures right to avoid prosecution side of the force is too weak, and the prosecution side of the force is too strong the litigation structural distortions that trial the prosecution tilt phenomenon. enhance the strength of the defense, the defense, the prosecution and the defense balance, the Code of Criminal Procedure >> 1996 << modified mainly the following aspects: (1 lawyers to intervene in the proceedings ahead of time, from the suspects. from the investigative organs messaging for the first time or after the date of compulsory measures are taken, the lawyer can accept commissioned to provide legal Oration and complaints, accusations, (2 expanded the lawyers and other defenders of the right of action, they can not only access to archival materials understanding of the facts of the case, met with communication with the defendant, at the same time be able to extract, copy of proceedings in the case instruments, technical expert conclusions, and also given the right to defense counsel personally collected or to apply for judicial authorities to collect or obtain evidence. (31,996 years << Code of Criminal Procedure >> repeal the provisions of the original << Code of Criminal Procedure >> presiding judge can only stop the parties, counsel, witnesses unrelated questions, and certainly can be stopped regardless of the prosecutor's questions.

(E cancel immunity from prosecution system

1996 << Code of Criminal Procedure >> cancel the immunity from prosecution system, unified by the People's Court convicted immunity from prosecution system procuratorial organs of criminals convicted sentenced in accordance with the provisions of the criminal law does not require or be exempted from punishment but not to prosecute a entry system, immunity from prosecution system played a role in the criminal policy embodied combining punishment with leniency and minor cases closed in a timely manner., however, without trial program for a person convicted of a crime, and obviously does not comply with the principle of judicial final judgment. conviction of the accused by the prosecution to pardon, and also beyond the scope of the right of public prosecution, to confuse the functions of the prosecuting authorities and the judiciary, and therefore also the principle of Accusation depart from. (Note 8)

Three controlled trial, regardless of the presence of problems in our criminal justice and the rule of law in China hazards

<< Code of Criminal Procedure in 1996, "the embodiment of the Accusation and the spirit of the principle of separation, but for the provisions of this principle is not thorough enough, there are many of the provisions of the program with the accusation and trial are contrary to the spirit of the principle of separation of from this law. imperfections and judicial practice in some improper practice of the process of the rule of law in China will produce a great deal of harm.

(A controlled trial, regardless of the problems existing in China's criminal justice

Controlled trial, regardless of our criminal justice issues, mainly including the following aspects:

1, controlled trial, regardless of the pre-trial procedures

Pre-trial proceedings in the Criminal, the only recourse of the party and the prosecution of the party, the judge does not intervene. Prosecutor fact both the prosecution, and the judge of this situation so that the prosecution of persons litigation position objectified, prescribed by the Constitution and laws of the prosecution of political rights, personal freedom, property rights, human dignity, residential security, communication secrets and personal privacy and other fundamental rights are not guaranteed, to depart from the the Accusation principles and basic requirements of due process. mandatory disposition referee nature. statutory authority decided to apply some kind of coercive measures, it will be prosecuted the decision setting specific litigation rights and litigation obligations, not only directly related to citizens' personal freedom and the litigation process, but also related to whether the litigation purposes can achieve justice. shows that the trial before the program mandatory measures, in particular, approval of arrest rights should become an important part of the national jurisdictions, by the court to exercise and arrest approval rights litigation with prosecutors assumed functions inherent contradictions and conflict. former is a finding of the nature of the powers, and the latter is a relative claim rights, the two powers should not be performed by the same body to exercise. hard to mix the two, not only to break the control as the core mechanism of modern proceedings, litigation structure will debate the balance between the two sides, lose its intrinsic rationality.

Pretrial Procedure Prosecution and Adjudication

From the provisions of section 150 of the Code of Criminal Procedure >> 1996 << Transfer System in the abolition of the entire case file does not completely take the indictment a doctrine, instead of using a range of between prosecute the way, according to the provisions of << >> section 150 of the Code of Criminal Procedure, the prosecution in the prosecution, transferred to the witness list, the evidence directory of the same time, a copy of the main evidence must be transferred or photos. << criminal proceedings method >> did not make the "evidence" clearly defined, Procuratorate, not the same view and understanding of the court shall refer the case to the content of the Procuratorate, the Supreme People's Court and Supreme People's Procuratorate made << to explain >> and << rules >>, << explained >> << rules >> difference is mainly due to: the former requires transfer of the allegations are the nature of the crime, the main evidence of the plot, which requires to play a major role in the transfer constitute a finding of criminal or against conviction evidence. Six ministries in 1998 >> << regulations on a number of issues in the implementation of the Code of Criminal Procedure (referred << regulations >> 36: "evidence" including: (1 indictment types of evidence involved in major evidence, (2) the same type of evidence is identified as the main evidence, (3 surrendered as a legal punishment fits the crime, meritorious, recidivism, aborted attempted, evidence of self-defense. People's Procuratorate in specific cases prosecuted, mainly evidence determined by the People's Procuratorate in accordance with the above provisions. << >> 37 provisions also provides for the People's Procuratorate of public prosecution cases, the people's court shall accept the addition, the case for the application of summary procedure, the procuratorial organs shall refer the case to which evidentiary material the Code of Criminal Procedure was not clearly defined.

View from above the relevant authorities of the judicial interpretation, the trial judge almost all contact with the investigation and prosecution of the volume of all material evidence., Under our current indictable way, the main evidence of the scope of the decision lies in the concrete of the hands of investigators, not only the scope of arbitrariness and uncertainty, and most of the evidence or the evidence of the defendant is not conducive to the evidence in favor of the defendant, the prosecutor general will not at this time transferred to the court, so it can not judge by virtue of all of the materials in the case to make an objective and fair to prejudge. Clearly, our current preliminary hearing procedure not only for the exercise of the rights of the defense of the defendant constitutes a substantial threat, controlled trial runs counter to the basic requirements of the principle of separation of.

3, in the first instance Prosecution and Adjudication

In China's criminal procedure of first instance, there are three aspects of the program design easily lead to the Prosecution and Adjudication:

(1 is reflected in the people's court found that the new facts after handling. Explained according to the Supreme People's Court << >> 178: "People's Court in the trial in the discovery of new facts that may affect the conviction, should be recommended to the People's Procuratorate supplementary or The change to the prosecution. "from the view of the provisions of this interpretation, the judge recommended that the People's Procuratorate supplementary investigation sometimes blur the boundaries of the jurisdiction and prosecution right, and even lead to the jurisdiction of the prosecution of Accusation principle is difficult to protect.

(2 embodied in the People's Court directly change charges. According to the Supreme People's Court << explained >> 176 (two provisions, the People's Court "to prosecute the alleged facts clear, the evidence is reliable and sufficient, the alleged offenses and the People's Court hearing finds that the charges are inconsistent, the court is entitled to directly change the charges (including adding new charges. court after the trial, a guilty verdict in the case found not guilty by the prosecution allegations, made directly to the other counts, the fact is without charge, without the defendant defense cross-examination of the new charges and the court imposed on the defendant, in fact, the defendants launched a new prosecution. heavy court ruled that the charges in the original indictment charges identified , the court actually assist complaint "or" disguised prosecution, both confused indictment, trial respective functions, violated the defendant's right to a defense.

(Reflected in the judge's court evidence investigative powers. << Code of Criminal Procedure >> 156 provides that: "During a court hearing, the judge on the evidence in question may announce an adjournment, investigation and verification of evidence." new evidence material obtained in the investigation and verification according to << explain >>'s provisions, the court shall, after the court investigation procedures verified in order as the basis for deciding However, the manner in which, by what the evidence into court does not specify the scope of the investigation, the Criminal Procedure Law and << explained >> In fact, no matter in what manner, the judge will be facing the loss of neutrality may judge by the court on its own initiative to produce, it means prosecution and the defense participants and not just as a third party outside both sides put forward their own independent evidence claims, accusing both sides Once you have a different opinion, and subsequent cross-examination, the course of the debate became control the defense for the judge's conduct, the judge becomes controversial referee who, if the proof of the role of the judge according to the evidence, by evidence in his favor, party to produce evidence, let the other party to cross-examination, rebuttal, will feel the judge clearly standing on the party's stance on the support of its claims put forward a more favorable to fight each other, regardless of what is shown to permit cross-examination the judge be difficult to maintain the status of neutrality.

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4, the second procedure Prosecution and Adjudication

The design of China's criminal procedure of second instance there are also many links easily lead to the Prosecution and Adjudication:

(A court of second instance trial in accordance with the principle of "comprehensive review" of this principle, the current << Code of Criminal Procedure >> states: "The People's Court of second instance of first instance verdict, the facts and the applicable law should be comprehensive limiting the scope of the review, subject to appeal and protest. "by the referee for the trial court, the defendant only for part of the contents of one of the appeal, procuratorial organs only present a protest on the part of the contents of the facts and the law of the court of second instance of the whole case to examine the issue, such divisions and reasonable behavior is clearly contrary to the principle of separation of accusation and trial. comprehensive review of the principle means that the court of second instance of the Court of First Instance has determined that the prosecution and the defense have no objection to the judgment part of the re-launch review. In a way, the judge is not only a case the referee, but has become the party has actively advocate, which makes the second trial judge there is the danger of sliding into Defendants'Right.

(2 trial verdict on charges to be changed. Explained according to the Supreme People's Court << >> The provisions of section 257, the court of second instance, after a new trial, on charges of "original verdict, the facts are clear and sufficient evidence, just identified improper not to aggravate the original punishment, you can change the charges. "That is, the court of second instance can directly change the judgment of the Court of First Instance finds that the charges the new charges may be defended without the defendant, and certainly without the first-instance trial. This approach not only deprived of the right to defense of the accused, but also deprived the defendant's trial-level interests free to change the behavior of the charges with the Court of First Instance, this behavior is also a violation of the principle of separation of accusation and trial.

5, controlled trial supervision procedures, regardless of

Controlled trial, regardless of the procedure for trial supervision mainly retrial procedure in the court on its own motion, the court, in the following three circumstances in accordance with the provisions of the Code of Criminal Procedure >> current << retrial: (any higher court Dean is entitled to the commencement of the Court's referee "adjudication committee process" to determine the retrial, (2) the Supreme People's Court has the right to the effective judgment of the local court arraignment in accordance with the procedure for trial supervision or instruction retrial, (3 superior court of the right to effective judgment of the lower court arraignment or instruction retrial.

Court trial supervision program launch is not conducive to the retrial of the defendant, may indeed be correct in some cases "error", but objectively it may play a role of the Defendants' This is the fundamental principle of separation of accusation and trial deny the second instance, the court responsible for the retrial general but also for retrial was a comprehensive review, while not parties to the complainant and prosecutorial agencies limited counterappeal range. fact, this is still a "reason" without consulting beyond the limit of the prosecution and defense litigation claims, apparently is also a violation of the principle of separation of accusation and trial. (Note 9

Controlled trial, regardless of the dangers of the status quo of the rule of law (two of China's criminal justice

1, the violation of the rights of persons being prosecuted

Accusation and trial functions, regardless of the criminal proceedings, directly hurt people is to be prosecuted. Compared with the prosecution side, the prosecution of people at a great disadvantage. Confrontation by the prosecution is a prosecution side, while the latter represents is a powerful country, enjoy various forms of judicial resources provided by the State to as recourse force. In this case, as the referee square judges lose its transcendent, negative attitude and initiative to take on some of his duty of investigation of the prosecutor, then prosecution In addition to sit still, have no choice but the rights of the people to be prosecuted will serious violations of rights have been violated will not be able to get relief. mutually exclusive with the goal of protection of human rights in the criminal proceedings.

2, the litigation structure imbalance

The main value of the controlled trial separation principle is to protect the neutrality of the judge. Accusation function in China is mainly borne by the prosecution and trial functions are carried out by the judicial and judicial organs to make and to listen to the arguments of both defense and prosecution on the basis of the center referee. Due natural imbalance, which the prosecution and defense requirements of the country in the construction of the criminal proceedings must consider how to provide the necessary special rights for suspects in a relatively weak position, the defendant, in particular to protect the rights of the defense of the prosecution of persons in order to maintain control, defense, the power of the judge, the basic balance.

Legislation and judicial practice of China's Criminal Prosecution and Adjudication situation is very common, and judges can not be neutral in the trial, just to exercise judicial power, the courtroom defense function it is impossible to really get to play. Because once neutral referee who tend complaint party, and inevitably a referee who with criminal prosecution Fangdui Li. In this case, the defendant's right to a defense naturally difficult to get adequate protection in extreme cases, criminal prosecution functions of the criminal trial functions completely combined, there may be completely reduced to the object of criminal prosecution the defendant, There is no defense of the right to play a role in the space.

3, so that the Court loss of neutrality, and to reduce the authority of the judiciary

Judicial neutrality, requiring the judge both the facts of the case, has no interest in, but also equally to both defense and prosecution, and shall not prejudice any party he can not see themselves as set up by the Government to combat crime tool that prosecution of crime showed too much enthusiasm, not to themselves as partners of the prosecutor, "Change charges," the court investigation "comprehensive review" and "correct the error" engaged in any criminal activities in the name of, As to become the de facto public prosecution. Otherwise, the court will be difficult to remain neutral, thus difficult to achieve visible impartiality famous British judge and jurist, Lord Denning, the judge in conducting fair not only to justice, but also to unmistakable, have no doubt that justice is seen, it is not only important, but it is extremely important. The reason is simple, justice must be derived from the trust.

Prosecution and Adjudication our criminal justice practice widespread problem, actually the public, prosecutors, law authorities to cooperate with each other than mutual restraint. Court's neutrality be greatly affected.

Judge the loss of neutrality will lead directly to the judicial crisis of trust. Society governed by the rule of law stressed the supremacy of law and the judicial is the the final patron saint of legal justice, supremacy of law is embodied by the judicial authority. Judicial authority, the supremacy of the law will be an empty promise, no judicial authority, and the unification of the country's legal system will be delayed indefinitely; judicial authority, the administration of justice will weaken the effectiveness of its Mediating indisputable.

Fourth, build a reasonable the Accusation system architecture

(A pretrial procedures to establish a judicial review mechanism

In the pre-trial proceedings to establish a judicial review mechanism to solve the problem of pre-trial prosecution procedures in the absence of neutral arbiters. Has always been the lack of a neutral referee does not undertake prosecution task agencies on a range of pre-trial proceedings in the Criminal program issues a ruling, so that the pre-trial proceedings to have the danger of becoming administrative procedures, is detrimental to the protection of the rights of litigants, criminal pre-trial procedures Accusation been a great influence. therefore, we can learn from Western countries generally established system of pre-trial judge, within our existing court system, the establishment of a specialized agency responsible for resolving pre-trial proceedings dispute, to be called the pre-trial court pre-trial court by a judge and two assessors examining magistrate must phase separation and the future of the trial judge, and prohibits pre-trial judges and trial judges to exchange views, and even real contact, in order to exclude prejudge. The main role of the pre-trial court that pretrial procedure as a neutral third party intervention, both on the civil rights mandatory investigation behavior such as arrest, detention, detention, residential surveillance, bail, search, seizure, eavesdropping, wanted issuance of a warrant, and will also be responsible for the pre-trial review of the case of public prosecution, the prosecution's evidence in order to determine whether there are reasonable based on whether it is necessary to the case to court trial in court, the defendant against unfounded, frivolous prosecution and trial.

(B) the implementation of the indictment a 'indictment

Tend to avoid a judge Pretrial prejudge the prosecution side, it is necessary to cut off the link between the pre-trial prosecution procedures and trial procedures. Transferred to the indictment, the implementation of the "indictment of a 'required to prosecute may not be subject to any situation right so that the judge in the case were to occur prejudge the documentary evidence and other evidence, the indictment nor refer to these contents. legislation should also explicitly prohibit ex parte contact referee seized, police agencies in other forms, such as in a court trial to start before, such as the activities of the "exchange of views" and the like, to avoid control the direction of the referee who exert undue influence, or one-sided information by providing outstanding issues related to the referee by preconceived prejudice, that through the channels having a predetermined force, the conclusion of the criminal prosecution is no longer on the outcome of the judicial referee, the referee can really go neutral, the trial in the court of the separation of functions in order to play a substantial role. "indictment of a 'can avoid a court judgment for the investigation conclusions the left and right with the requirements to prevent the judge unilaterally by Detective side effects form not conducive to prejudge the guilt of the accused party, truly reflect the "trial centrism.

(C) establish a strict "no trial without complaint and Adjudication same principle

Establish a strict "no trial without complaint and Adjudication same principle. Court solely the responsibility of the trial, the complaint can only be filed by the prosecution, the court shall not take the initiative to open the trial proceedings, the Court of objects must be prosecuted with prosecutors alleged object remains the same object remains the same, the Court shall not consider procuratorial organs not to prosecute the alleged object The object of the trial court must Procuratorate prosecution allegations, the trial court only Procuratorate prosecution allegations object within, not charged not only for the Procuratorate accused their crimes court has no right to be heard and adjudicated, even if the court found that in the course of the trial errors and omissions Procuratorate indictment objects can not be divorced from the Procuratorate prosecution alleged the defendant or his offense prior trial and sentencing, the court in the trial process in general can not be changed by the object of the trial. prosecutors charged offenses can not be established, the people's court to change the charges should be given to the defense party full defense ready.

Procedure of second instance, the scope of review of the court of second instance shall be strictly limited to the scope of the protest the defendant party appeals cases, if the defendant does not explain the reason, but simply refuses to accept the judgment made by the court of first instance ,则二审法院可以依职权进行审查.如果被告方明确提出了上诉的理由,则二审法院也应当受上诉理由的限制,而不得再搞所谓的"全面审理".二审法院也应当严格贯彻"上诉不加刑"原则,不得"巧立名目"搞变相加刑.应当取消人民法院主动提起再审的权力,至少也应取消法院提起加重被告人责任的再审,使再审真正成为保障公民权利的司法救济活动.

(四推进司法体制改革,确保法院及法官的独立

没有司法的独立、尤其是法官的独立,不仅刑事诉讼难以摆脱"行政治罪"的性质,也不会有实质的控审分离.1996年<<刑事诉讼法>>的修改,使我国的法官独立向前迈进了一大步.但由于我国历史和现实社会条件以及传统观念的制约,虽然<<宪法>>以及<<刑事诉讼法>>都规定,人民法院独立行使审判权,不受行政机关、社会团体和个人的干涉,但由于我国法院的人员编制、经费预算和划拨、基础设施和设备建设等物质资源均来自当地行政机关,干部的管理与人员的任免又掌握在地方党委和人大手中,使得法院系统的建制和管理完全受制于同级行政机关或地方政府,迫使法院不得不考虑甚至屈从于司法系统外的各种意见和压力.

为了保障法官依法履行职责,防止法官因秉公办案受到打击报复和其他不公正待遇,防止法官的人身安全和其他权利因执行职务而受到各种形式的影响,我国法官法不仅规定"法官依法履行职务,受法律保护",而且还对法官的职责、权利、义务、资格、任免、任职回避、等级、考核、培训、奖励、惩戒、工资福利、免职、退休、辞职和申诉、控告等涉及法官任职条件和保障的事项作出了规定,尽管这些规定还不够具体.但遗憾的是,这些规定由于种种原因仍然没有得到切实的贯彻执行,应尽快将这些规定具体化,并保障其得到切实的执行.只有保障了司法审判的独立,法官才可以"只考虑与本案有关的事实和法律",控审分离原则的实现才能得到根本的保证.

引文注释:
(注1马克思恩格斯全集(第一卷,人民出版社1965年第1版,第168页.
(注2宋世杰、彭海青:<<论刑事诉讼中控审分离原则的理论与实践>>,<<湘潭大学社会科学学报>>2002年第3期,第82页.
(注3陈瑞华:<<刑事审判原理论>>,北京大学出版社1997年第1版,第219页.
(注4谢佑平、万毅:<<刑事控审分离原则的法理探析>>,<<西南师范大学学报>>2002年第3期,第91页.
(注5陈贵明:<<诉讼公正与程序保障>>,中国法制出版社1996年第1版,第13页.
(注6黄文:<<论刑事控审分离原则的理论基础>>,<<理论与改革>>2004年第2期,第134页.
(注7杨连峰、周星佐:<<论"自然正义法则"——兼评我国刑事诉讼程序的完善>>,<<法学评论>>1996年第3期,第44页.
(注8李奋飞、陈卫东:<<论刑事诉讼中的控审不分问题>>,<<中国法学>>2004年第2期,第141页.

References:

1、马克思恩格斯全集(第一卷,人民出版社1965年第1版.
2、陈瑞华:<<刑事审判原理论>>,北京大学出版社1997年第1版.

3、陈贵明:<<诉讼公正与程序保障>>,中国法制出版社1996年第1版

4、谢佑平:<<刑事司法程序的一般理论>>,复旦大学出版社2003年第1版.
5、李心鉴:<<刑事诉讼构造论>>,中国政法大学出版社1992年第1版.
6、宋世杰、彭海青:<<论刑事诉讼中控审分离原则的理论与实践>>,<<湘潭大学社会科学学报>>2002年第3期.
7、谢佑平、万毅:<<刑事控审分离原则的法理探析>>,西南师范大学学报2002年第3期.
8、黄文:<<论刑事控审分离原则的理论基础>>,<<理论与改革>>2004年第2期.
9、杨连峰、周星佐:<<论"自然正义法则"——兼评我国刑事诉讼程序的完善>>,<<法学评论>>1996年第3期.
10、李奋飞、陈卫东:<<论刑事诉讼中的控审不分问题>>,<<中国法学>>2004年第2期.
11、肖本山:<<控审分离原则在我国刑事诉讼中的现状及完善>>,<<安徽师范大学学报>>2002年第1期.
12、宋英辉:<<建构我国刑事诉讼法合理构造的理念与原则>>,<<政法论坛>>2004年第3期.

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