(two) custody
   The referee and perform the detention of suspected or accused person, called the custody, also called the pending custody. And China's arrest are similar.

   The court has substantial reasons to suspect the accused of crimes and meet one of the following conditions, can be kept in custody accused: no shelter; ② have substantial reasons to suspect the accused will destroy the evidence; the escape behavior or substantial reasons to suspect may flee. But should be 300000 yen fines, detention or a fine case, the defendant has no definite residence. Custody to inform the defendant accused cases, and inform the defendant has the right to appoint defense. The suspected man custody, must have been arrested (called the arrests of pre war), and the public prosecutor in the statutory deadline to request.

   The prosecution of former detention period is generally 10 days, not to prosecute 10 days, should release the suspected man. The judge can according to the prosecutor's request will be extended for a period of 10 days. The offenses, foreign aggression crime cases, such as the complexity of the case, an important reference illness, travel or unknown and need identification, not to extend the period of detention further investigation will make it difficult to prosecute or not to prosecute decision, the judge can according to the prosecutor's request to extend the deadline, but then extended a total of not more than 5 days. The case has been a public prosecution, detention period since the date of 2 months, particularly when necessary, may be extended once every month. But division cases, only to a limited extend.
   On the detention, become a prominent problem is the place of custody. In accordance with the law, places of detention should in principle be forensic setting around the detention house. In 1908, Japan formulated the prison law, given the detention house, allowed to use police detaining field in place of detention house in special circumstances. This is known as the substitute prison system. At that time, Congress is considering the drawbacks substitute prison possible, has made it clear that will not be used as a prison. However, the system in use were supposed to use in exceptional circumstances the police detaining field as normally custody suspected people place. In practice, custody suspected people is about 90% in the field of indwelling police department, to investigate the end often for 10 to 20 days, or even longer (in some cases more than 100 days). Responsible for the investigation, police investigation and management of custody matters, so for a long time governs all life detained people, it is easy to use this power to extort confessions. This phenomenon has attracted widespread criticism scholars and lawyers, it is a hotbed of violations of human rights and the error of the suspected criminal in japan. In 1980 the government of Japan police agencies will be separated from the Department of investigation and supervision department, in order to prevent the harm occurred. However, in practice, because the investigation officer than indwelling field supervision staff in the position is superior, the suspected people dining time etc., it still has considerable authority, until the 90's in the field, on human rights violations occurred frequently. This phenomenon has led to judicial criticism. In April 23, 1991, the Tokyo High Court together acquittal verdict that, substitute prison is very prone to extort confession system, carefully consider the need; must make crime investigation and detention of transaction based on independent on correctly.
   Japan Federation of bar in the 70's will abolish the substitute prison as the legislative issue, "quickly in the specified period of completely abolishing the substitute prison". In 1976 March the Japanese justice minister said the need to modify the prison law, and gradually reduce the police detained field. Ministry of justice has to modify the prison law puts forward "criminal act" and "retention facilities facilities act", Japan Federation of bar respectively in 1991 and 1992 put forward the "substitute prison abolition of outline" and "criminal treatment act". In spite of the proposed scheme based on their respective positions and have very big difference, but the substitute prison abolition of the system, it has become a subject of Japanese legislation to solve.
   Four, not to prosecute in prosecuting hesitation
   The Japanese criminal law 248th stipulation, prosecutors based prisoner character, age and circumstances, the severity of the crime and crime situation and the situation after the prosecution, not necessary, can not to prosecute. This is called the prosecuting hesitation. In China, the translation for "suspension of prosecution". May be influenced by translation expression, domestic scholars mistakenly believe that the prosecutor in making "prosecuting" action to set a test period, if no crime in the test period, "prosecuting" sin is no longer pursue; if in the meantime and new crime, the old and the new crime investigation. In fact, this is a misunderstanding. In Japan, the final disposition of prosecutors for prosecution and non prosecution of two, non prosecution is divided into innocent (including insufficient evidence not prove guilt), and not to prosecute prosecution hesitate not to prosecute. Hesitating prosecution as a situation of not to prosecute, and innocence, not to prosecute the legal consequences no difference; prosecuting hesitation no test period; be hesitating prosecution person of having committed a crime, as long as the original hesitating prosecution action is correct, prosecutors only new crime investigation.
   And the Chinese Criminal Procedure Law of 142nd provided for in the second paragraph by the prosecutor discretion not to prosecute, the Japanese prosecuting hesitation has the following characteristics:
   1, there is no specific conditions, and by the prosecutor on the criminal personality, age, experience and crimes, circumstances and after the crime situation to determine;

   2, although there is no specific restrictions applicable conditions, but the exercise of discretion restriction mechanism more in the procedure. Mainly has: quasi prosecution system. The article 193rd of the criminal law to article 196th (breach of privilege) and prevent sabotage act forty-fifth (police investigators, breach of privilege) the crime accused person, such as sorry v. sanctions, but within the statutory time limit for prosecutors to prosecute. Prosecutors insisted not to prosecute, the victim can apply and governed by the local court to determine whether the case to court trial; decided to trial by court appointed lawyers, public prosecution. This is believed to be the prosecutor's monopoly exception. In practice, in accordance with the procedures to correct the prosecutor discretion erroneous cases are not many. According to statistics, by 1994 December, more than 13000 in accordance with the above provisions requesting the court trial, only 17 and a trial delivery. Its reason, one is the procuratorial inspection will play a big role in the constraints of prosecutor's discretion; two is the judge of the general attitude is negative. The prosecutors will review system. In each district court jurisdiction is provided with at least one will review the prosecution, not to initiate a public prosecution process review whether it, and put forward the improvement suggestions of procuratorial affairs. At present, there are a total of 207 prosecutors will review. Prosecutors will review the decision not legally binding on the prosecutor, but in practice, prosecutors will take their suggestions seriously. Since the beginning of 1966, prosecutors will review the annual review the cases of all 2000; since its establishment by the end of 1988 the resolution shall be prosecuted, 835 prosecutors to accept the proposal and the prosecution, of which more than 80% by the court verdict of guilty. In 1994 years, prosecutors will review the new accepted 1691 cases, 1288 cases have been treated, think not to prosecute 209 errors, 19 prosecutors to accept the proposal and the prosecution, to maintain the 48 people the decision not to initiate a prosecution, the rest have not yet been decided. In 1994 21 people charged in the prosecutor's (including prosecutors will review the previous accept advice and the prosecution case), the court, 1 not guilty, 20 people guilty.
   Japanese scholars and experts engaged in the judicial practice are considered, hesitating prosecution and prosecution to the court sentenced to probation, play a better role better in the aspect of ensuring human rights and controlling the crime. 1980 was hesitating prosecution staff in 3 years the crime rate is 11.5%, over the same period was sentenced to probation and re released crime rates were 21.5% and 57.2%. Therefore, prosecuting hesitation is widely used in practice, in recent years, hesitating prosecution for non prosecution all around 90%, accounting for 25 - 30% of criminal cases about. In 1994, the prosecutor's Office handled 2126988 cases, of which non prosecution cases was 658163, accounted for 30.9% of all cases, hesitating prosecution case 621463, accounted for 29.2% of all cases of non prosecution cases, accounting for 94.4%.
   Five, the prosecution way and evidence information system
   One of the characteristics of Japanese criminal prosecution way is to carry out the indictment. Its meaning is: in the prosecution filed with the statutory form, the indictment only apply to a court of competent jurisdiction, that allegation, but not other documents and evidence to judge the prognosis and may make the case, nor shall refer to the evidence and document content. Its purpose, to prevent the judge prejudgment and prejudice. According to the case, against the indictment filed a public prosecution, public prosecution judgement will be rejected.
   Because the prosecution to the court not the transfer of evidence, the defence in court about the prosecution would not have to survey what evidence in court. In order to avoid the resulting in the defense line to interfere with the defense rights, the law established evidence information system. The Japanese Criminal Procedure Act 299th provisions of the first paragraph: "the prosecutor, defendant or defendants request asking the witness, Jian Dingren, oral interpretation or written translation person, should be given names and domiciles of the other knows their chance. At the request of the evidence documents or evidence objects, should advance to give each other the opportunity of reading. But the other side has no objection to the limit." Therefore, knowing each other reservation request survey evidence in court, both sides' rights; a reservation request survey evidence by one party, when the other party to inform, have to let each other know the proof obligations. In fact, the prosecution party to collect evidence on the absolute advantage in the defense, the evidence from the prosecution and defense owned, limited evidence generally the prosecution can grasp, so, the evidence discovery system has always been considered to be the defense line to a security defense right.
   However, has always been considered as the defendant defense right evidence to inform the system, but in practice by lawyers and scholars of criticism. The Japanese criminal law article 299th paragraph first is establishing evidence system to inform, is taken into account in the court party may present evidence to surprise attack way, adverse to each other, the starting point is to prevent the party before the court to give unexpected blow. Because of the limited legislative basis, therefore, for the prosecutors have in hand but whether to request investigation in court has not yet been determined or has no intention of request survey evidence in court, the defense party has no right to apply for reading, prosecutors also does not have to provide the opportunity to advance the reading defence obligations, and in these the evidence is likely to contain evidence favorable to the defendant. Lawyers and the majority of scholars think, this situation is extremely unfavorable for the defense line of the right to defense, in fact the right to defense this constitutional right infringement.
   In view of the above viewpoint, some suggest, the current criminal procedure law is to the parties as the keynote, and the equivalence principle is an important content of the principle of parties, prosecutor for the prosecution party, is to make the defendant in a disadvantageous position. In the evidence informed on the issue, the public prosecutor as one of the parties, not to the application for investigation and evidence in court, of course, not have the right to inform, this is for the prosecution of the rights of the parties. However, this opinion by the start of a strong retort. Refuted the view that, these views just stick to the parties in the form of. As the investigative authorities and defense in the authority and ability for collecting evidence can not actually equal, therefore the first criminal law 299th established evidence information system becomes the provisions significantly restrict the defendant defense right. Especially the prosecutor hidden in favor of the defendant evidence requirements against the justice in the dispute, the defendant has no real case if considering that no real evidence by the prosecutor of concealed will found guilty in this case, then, the provisions in the first paragraph of only 299th of the criminal procedure law is not perfect in any case. From the adversary's point of view, the defense through a comprehensive understanding of V. chase our evidence, to determine the correct defence policy, the prosecutor of the vertical card can also be rebutted proved effective. So, can we actually guarantee the litigant. Because the essence of the adversary is better to expose the truth and facts of human rights to protect the defendant. If you understand the evidence from this point of this system, then, it should be all the evidence told prosecutors hand in advance, whether or not favorable to the defendant.
   On the evidence in the case that, there are some problems. Japan's Supreme Court in December 26, 1959 ruled that: "in order to enable the court to find the truth in action, prosecutor as public representatives, for favorable evidence of the accused should also actively to show to the court, is the function of" national laws, but also thinks, "there is no such provisions: on the prosecutor's master evidence documents or evidence, regardless of whether the request investigation in sentencing, all command public procurators shall advance to the defendant or defendants reading". This case immediately drew harsh criticism. Critics stand apart from the substantial adversary position requires prior notice to all the evidence, also actively advocated the court litigation command power for individual evidence according to inform theory. In this context, the Supreme Court of Japan in April 25, 1969 two relevant evidence informed the special exception cases ruled, that court action command command elements based on evidence informed. The case that: "should be understood like this: enter the stage of evidence investigation, the defender indicates the necessity of specific, and put forward the request for the command to allow prosecutors the reading some evidence of the case, the court considered the nature of the case, the trial conditions, the types of evidence and the content of reading, reading time, the degree and method, and other aspects, the reading for the defendant's defense is particularly important, and does not exist and therefore incur hidden out evidence, stress witnesses evils danger and appropriate, litigation command power based on, can command prosecutors will be the evidence for the defence of people reading."
    For the above sentence purpose, need to note the following: (1) the case is not clear before entering the public trial procedure evidence investigation stage whether can make evidence information command, and this is a defendant could effectively exercise the right to defense is very important; (2) the defenders application does not have the rights to the court on beyond the launch procedure command; (3) even if make broad interpretation of "some evidence" for defense, people do not know the evidence for the existence of, or can not be determined to show the "necessity" concrete evidence, get informed of command, is still very difficult; (4) "for the defense special the important", "does not exist and therefore incur hidden out evidence, stress witnesses evils danger and appropriate" as elements, showing cases to the court with evidence to inform command too negative or limiting attitude; (5) using the action command based evidence to inform the command, the court litigation command more the possibility of increasing the authority doctrine, which is against the whole structure of criminal procedure of Japan with the parties as the keynote.
   Despite the problems, Japan in 1969 the Supreme Court case after all, the court should play a role in evidence to inform program, which provides a solution for the problem, using also promoted the evidence in judicial practice of inform procedure. According to the Japanese Federation of bar judicial investigation in 1986 February conducted a questionnaire survey of its members for the results, presented by the defense evidence information request, 30 pieces of advice to inform the court prosecutors, 31 in fact urged prosecutors told, command 9 told, 11 pieces for rejection of the application, not make 17 judgment.
    Provides an opportunity to use Japan 1969 Supreme Court case as evidence of inform procedure, but not from the system to solve the contradiction between the parties on this issue. The 1969 case, in a lower court case, the prosecutor for witnesses in the investigation stage confession, even if the command told, is limited to the prosecutor made notes, command told time also in the main query after the end, opposition asked before, command told police transcripts or command told in the main before asking only a few. From the above analysis even Japanese bar association judicial system will be the results of the questionnaire survey, using evidence informed is not just as one wishes. For one, evidence informed majority is actually implemented through advice, make an order of only 20%; second, the number of the same command told to reject the application are at a disadvantage, although not much difference, but still showed that the court to order notify take strict control attitude; third, not judge cases considerable number, showing negative tendency to inform the court order.

   That situation of Japanese criminal litigation, evidence informing procedure while relying on court litigation command power or background fact advice in use, but a lack of the right of informed of the request, the court's attitude is not very positive. In view of this situation, the majority of people in the practice of Defense said discontent informing procedure on the evidence at the same time, also realized this problem can not be too much to expect the court. The investigation organ have strong organizational and material conditions, the right of investigation can be fully guaranteed, the evidence collected more than suspected, the defendant, the defenders; on the other hand, suspected in the investigation stage defense right both in system and in fact are quite limited. The investigation evidence collection rights and ability of both sides of inequality and defense right limit, if no system of measures to make it up, it will affect the trial stage. In this problem, as the system of remedy in advance, is the guarantee to the prosecutor's evidence to inform, the defendant, the defenders can equal the prosecutor's evidence, to ensure that the trial stage to realize the essence of equality of litigant. Based on the above considerations, appeared the trend of the reform of the system of evidence informed.

   Reform is divided into two parts, one is the institutional reform, to ensure that the right of claim with evidence to prosecutors, fully informed, this is the purpose of the reform; second is to consider the feasibility of the system, before the reform, use as far as possible to improve the evidence to inform procedure.
   The reform scheme about the system are put forward by the Federation of Japanese lawyers. Include the following contents:
   (1) the prosecutor to initiate a public prosecution, shall not delay to the defendant, or in the defendant has chosen a counsel to counsel submitted by all the evidence of its management directory. The prosecutor began in the management of litigation evidence, the same.
    (2) prosecutors asked survey evidence documents or evidence, shall, prior to the defendant or defendants submit the evidence copy or photograph.
   (3) the defendant or defendants to prosecutors for reading, writing, pictures prosecutor management evidence, for this application, the prosecutor shall agree.
   (4) the prosecutor does not agree to inform the evidence, inform the defendant or defendants request evidence to prosecutors' office of the prosecutor and the corresponding court order.
   (5) receives a command requesting court evidence informed, according to the prosecutor's request, when necessary, to inform about the evidence, you can specify the date and time, place, method, or added that other conditions appropriate.
   (6) for evidence informed command, not apply to accept.
   (7) for the rejected evidence informed command requests the referee, refuses to accept or about evidence information specified date or conditional judgment, the defendant or defendants made for simple court judge to the jurisdiction of local courts, the other judge's referee may belong to the court, requesting revocation or changes to the referee.
   (8) the public prosecutor not to submit all the evidence to the defendant or defendants directory or not to obey the court evidence to inform the commands, accepts the prosecution court shall not accept the declaration of public prosecution.
   As one of the system reform of the content, lawyers also according to the Japanese government has joined the United Nations "basic principles on the role of lawyers", "detainees rules of human rights" and other documents, advocate the prosecutor told the range should not be limited to the meaning of the substantive law of evidence, should also be relevant materials and comprises a procedural law, shall inform all the evidence.
    These reforms represent the lawyers advice, though the evidence information to use the program will be gradually improved, but the scheme can completely by the attorney general to accept, whether for the adoption of, is not clear. Before the reform, the status of Japanese lawyers are in practice to improve the evidence to inform procedure. These measures include: ① should unremittingly to evidence informed negotiations with the prosecutor. The prosecutors declined to tell all, should adopt a flexible strategy, seeking to inform the individual evidence, or will not be informed of the evidence to explain. This effort has been the legal precedent to support. The Osaka District Court ruled in November 6, 1974 that, the court to counsel application and ordered prosecutors to explain its evidence is legal and appropriate. Through careful review has informed the evidence and carefully listen to the defendant and other cases of people, to grasp the did not inform the evidence, as a precondition to inform request. The lawyer can not only satisfy the court request, but it should be emphasized to inform the incorrect; when the court considered that the evils, efforts should be made to explain to the court does not produce harm is obviously. The court not to make informed command means, in accordance with the criminal procedure law of 309th first, 2 for objection. When the court not to take active measures, should urge its ruling, dismissed that apply to dissent, or to give a special exception.
    Japanese law aims to improve the evidence to inform program efforts, has achieved some success in practice, the effective exercise of the defendant's right to defense, will undoubtedly have a positive effect.
    Six, the trial mode
   The Japanese trial by parties and the defense evidence, to the court authority investigation as necessary complement way, divided into the following stages.
   (a) at the beginning of the program
   To solve the following problems: the litigant to appear in court and to verify the identity of. The prosecutor read out the indictment. ③ let silence right and other rights. The defendants stated opinions. The area under the jurisdiction of the wrong application and transferred the case request, should be put in the stage. Mild cases of the application of the death penalty on the outside, no period or the minimum penalty in more than 1 years of servitude or confinement in the crime case, when the defendant guilty statement, the court after hearing the views of the parties, in accordance with the procedure for trial can be made simple trial verdict.
   (two) the evidence
   1, opening statement. The prosecutor's statement, according to the evidence that can prove the facts. The defendant may state, but not the necessary procedure.
   2, request survey evidence. The prosecutor should first request that all the evidence in the trial of cases necessary. At the request of the prosecutor defendant after may request the investigation evidence. In accordance with the provisions of the criminal procedure law, the confession of the accused as evidence, can only request investigation after the other evidence investigation, to prevent the generation of prejudgment confession. Questioning the witnesses, authenticators, interpretation and translation in the request, to put his name, file records residence; at the request of the survey instrument, to put forward a record of the directory file. Request shall specify request proof of what.
   3, about the investigation evidence rule. The court should listen to the views of the other party, decide whether to grant the request for evidence. When necessary, the authority may also investigate evidence.
   4, the implementation of evidence investigation. The first investigation has ruled that prosecutors requested permission to survey evidence, the defendant requested evidence. When necessary, can also change the order to investigate. According to the authority survey evidence, should be investigated in the end of evidence investigation after the parties request.
   The questioning of witnesses, occupies an important position in the evidence in the criminal procedure law, the provisions of the 2 paragraph of article 304th first, the survey: the chief judge or puisne judge asked again by request, investigation of the party concerned, finally by the other party to ask. At the time of such provisions, mainly in order to prevent the control, between the two parties on the cross examination are not familiar with the possible confusion. However, lawmakers are worried about does not seem to be happening, parties and soon left the first, 2, and skilled use of "cross examination": the application of the main query, and then by the other party the anti examination, and again asked, and can be repeated.
   5, questioned the defendant. The defendant has the right to silence, the question is not evidence, but as the voluntary confession, the judge can at any time be necessary items required statement. The prosecutor, defendant, the defendant in told the presiding judge, also can ask the defendant voluntary statement.
   6, the objection. Both sides have to investigate the relationship between evidence and action, the presiding judge, the court challenge. Upon application, the court should be controlled, to argue both sides without delay make a ruling.