Procedure in ordinary criminal

Wang Junmin Zhong Zhengkang

Abstract: since January 1, 1997, the implementation of the revised criminal procedure law to determine criminal summary procedure, how to simplify a hot problem in criminal proceedings. Criminal simplified procedure was evaluated for further reform of the existing mode of trial. This paper thinks: the simplified procedure is not the main problems to be solved in the reform of China's judicial institute. Study and certainly simplified trial judicial philosophy of due process, its significance is for creating the judicature in China the mainstream model breakthrough development of the accumulation of experience. This paper also comment on issues related to the trial, such as simplified ordinary procedure legal attributes of accurate positioning, guarantee the simplified trial the prosecution and defense in litigation rights, simplified trial the prosecution and defense in litigation rights, the simplified trial of the accused can be within the range of statutory penalty discretionary lighter punishment "trial by the transaction", simplified trial the pronouncement, and "simplified" and "refinement" dialectical relationship.

Keywords: procedure in ordinary criminal law non mainstream mode of trial

The simplified common procedures in criminal cases, referred to as criminal simplified procedure, refers to the existing criminal law frame, some apply the ordinary procedure of criminal cases, as the premise of a guilty plea in the defendant, in fact clear, well-documented, take the simple part of trial procedure, a new trial quickly concluded cases. Put forward the judicial practical departments of criminal cases simplified trial idea and mode of operation, from the legal theory and judicial circles quite sure and praise the simplified trial, criminal cases were evaluated for further reforms of the existing form of trial. Continue to the combination of theory and practice, criminal cases simplified trial from a proposal to present a short span of one or two years, on how to simplify the prosecution, court documents, proof and interrogation debate and a series of trial process, has a specific design, and the trend of further deepening development. And even if the court finally decided the simplified ordinary procedure applicable to the trial, the trial process, the defendant and his counsel's attitude is also likely to vary with the change of the trial, the court denied the allegations of facts, counsel pleaded not guilty, which result in the termination of simplified procedure, to apply the ordinary procedure "④, seems to have the criminal cases simplified trial to the level of the independent judicial procedure and general procedure in criminal cases column. Procuratorial organs concerned to simplify the procedure is much higher than the judicial organ, the simplified, but also the simplified trial, in theoretical research and judicial practice "simplified" diffuse heat on the occasion, the author thinks that it is necessary to simplify the trial of the criminal case background, legal attributes of the research, analysis, understanding, not only to good use the simplified trial of criminal cases, also contribute to the correct understanding of be just unfolding in China from the trial way reform to the trend of the judicial reform objectives.

A simplified procedure, the main direction is not our judicial reform
Since January 1, 1997, the implementation of the revised criminal procedure law to determine criminal summary procedure, how to simplify a "hot" problem in criminal proceedings. The simple procedure is independent of the ordinary procedure implemented in less than 3 years, and proposed a simplified ordinary procedure. Beijing Haidian District procuratorate first proposed the simplified common procedures in criminal cases, as a kind of courage to explore the spirit of reform should be fully affirmed, judicial reform Chinese only from the theory of "advocating" is far from enough, but from the exploration and attempt to judicial departments, will start in essence to promote judicial! The reform process. As proposed in the late 80's, officially started in the early 90's, still be just unfolding trial way reform experience is the case. But should see, the simplified procedure is not the main problems to be solved in the reform of China's judicial institute.
1, from the historical development of legal system of litigation. Substantive law and procedural law in one, the heavy entity, light procedure, so the situation is particularly prominent in the China long feudal society. From the human society, on how to investigate the crime, some criminal entity standard that is not a fundamental change, but in who pursue, how be being investigated by method, what is the object rights appears huge changes, means of judicial proceedings from the primitive, foolish autarchy to civilization, science, democracy, judicial organs of the state power suits from unlimited to limited, the parties especially the criminal litigation rights of the defendants from no to have, to implement a series of system security to determine the defendant litigation rights; litigation proof standard from man-made "God's will" divine judgment, to weaken the legal evidence human factors, to fully embody the human effects of free evaluation of evidence, the basic trend of development of judicial system is from simple to complex, the litigation procedure in the design of "plea bargaining", "summary", it should be considered the "from simple to complex", then "by fan to Jane," from "realm of necessity" to "freedom" sublimation. Did not experience the "fan", not to "jane".

   2, from the trial reform of China's starting point of. As China's economic construction and reform and opening up, the judicial system can not adapt to the increasingly prominent problem. Because of the objective aspects affected by China, for a considerably long period of time did not establish a set of contemporary judicial idea mode of operation of the judicial system, trial mode of old, outstanding performance in the design procedure is too simple, restricting the abuse of judicial power, judicial personnel security when the things people especially the mechanism of criminal defendant litigation rights have not been to establish an effective, in the investigation of criminal crime, no accurate evaluation through legal procedures, using the means of legitimate, reach a legitimate objective the relationship between the three judicial system and procedure of operation mechanism. Therefore, China's judicial reform is essentially a in the concept to abandon the old new, in the litigation method from simple to complex "revolution". Trial reform goal is based on the existing "too simple" litigation mode, abandon Jane fan, create into the successful experience of other countries in the world, and the characteristics of China's refined, scientific, democratic judicial mainstream model.
  3, from the main obstacles of carrying on trial at. How to ensure judicial justice and improve judicial efficiency, is entering the 90's of the twentieth Century Chinese most attract sb.'s attention topic. Since the 80's at the end of the theory proposed, in the early 90 by the Supreme People's court started the trial way reform, since reform and opening up is Chinese lasted the longest, the most controversial topic, conflict problems inherent in traditional and contemporary judicial idea, the control problem more restrictive environmental social system reform of the judicial system. The reform of the trial, "fan" difficult, "Jane" easy problem is very obvious, "fan" others difficult, "Jane" own difficult problem is more prominent. Charges such as evidence in criminal proceedings in the trial by trial personnel to produce change by the public prosecutor to produce, start by a strong opposition to a considerable level of authority, and published papers in Journal of China University of Political Science and Law's words, is "the order type intervention" theory permits the; if the trial, when a judge in court, in the court is to stand up to the judge to salute, need to be made by the Supreme People's court shall stand up, also caused a fierce debate, and suffer the same department to make "confrontational" notice, and even to a higher authority to coordinate, to make the sentencing judge should stand up, set the standing together, the trial reform of 10 years, hearing a standing ovation to judge small etiquette is difficult to establish. On the contrary, in the "simplified" is smooth, such as: in the legislation, the revised criminal procedure law implementation in 1997, to cancel the pretrial evidence display system; in the administration of justice, although the procedure law does not have the statutory conditions of witness testimony, adducing evidences of double side plea shall not be used as a basis evidence not accepted by the court, but in actual operation, the burden of proof shall not be any reason not to appear in court testimony of witness is not without risk, judicial organs admissibility.
   4, from the legislative purpose of the proceedings at. As the action of understanding the truth of facts, and the general understanding of the activities, subject to the understanding of time! Understanding method and process of understanding public constraints and limitations, not only to make the cutting on the plea of controversy, but also through the litigation activities, to remind people of legal authority and credibility. Through the procedure legislation, the distribution of relevant judicial power in the constitution of the refinement, the reform of the judicial system, re allocation of judicial power, the intention of the complicated judicial power configuration, process of cognition, complicated method, ensure accurate understanding of the facts of the case and the objective truth, knowledge representation, the applicable law case although the judicial lawsuit goal, but by the subjective and objective conditions and litigation cost constraints, have to choose between justice and efficiency, design procedure had to be taken into account in the proof obstacles, how to continue to push or the end of the proceedings, the only way is exhausted all means of litigation evidence, still choose to dilemma, make "Ning longitudinal not wrong" choice. Thus, design cumbersome procedure, its itself is not only contribute to the understanding of the facts of the case, and restrict help power! Build the credibility of law, and the judicial cognition ability to build a limited tolerance evaluation system.
   Two, the simplified procedure contains the rationality and prominent contemporary judicial idea
   The simplified procedure cannot become the mainstream mode of the judicial system and litigation, but the existence of complex and simple don't, trial procedures are simplified streaming problem after all, simplifying procedure of criminal case background, intended to give the law attribute of accurate positioning, not favour one more than another, or simplify the procedure value and function. Program. Study and certainly simplified trial judicial philosophy of due process, its significance not only lies in the accurate understanding, evaluation and operation simplifying procedure, but also on the concept of first issue, in order to create a judicial mainstream breakthrough development of the accumulation of experience.
  1, ensure judicial justice and improve judicial efficiency "should see this simplified after the trial way reform for 10 years of trial procedure, it is different from the traditional sense of" severe punishment "simplified, has been integrated into the modern judicial idea" in all modern judicial philosophy, justice and efficiency is the core content of the most basic. Without the correct concept of justice, which is unable to form a correct understanding of simplifying procedure law in the judicial practice, more cannot use and improve the simplifying procedure.
  2, the judicial reform process should be gradual, not "tough", to "soft". China reform, is seeking to seek development through reform, the whole nation, to achieve social stability goals, but in the method, take the stable development reform steps!. So judicial reform. Starting from the actual situation of our country, the target of judicial reform is clear, but the steps, methods, stability is the first, not "tough", to "soft". In the judicial reform from "complex" problems, from the "easy" to start, just step adjustment in the process of reform, and should not become a directional change.
  3, through the simplifying procedure emphasizes the court adjudication, advocate the judicial independence, the court has the real trial function. Judicial organs shall independently exercise judicial power, not by administrative organs, social groups and individuals, is our constitution already determines the principle, but still can't be "the law, enforce the law strictly" problem in the judicial independence, in such environment, the unfairness of justice, efficiency is not high, long etc. all attributed to the judges, prosecutors and lawyers legal occupation population quality is not high, not only the objective, not just, also be of no avail. This simplified procedure, the court ruled that, though intended to improve judicial justice and efficiency, which is advocated. The independence of the judiciary. If there is no judicial independence, judicial case facts, legal decisions, is still the "instructions", "instructions" constantly, simplifying procedure can only exist in name only, is only "no parsnips" form. Through the implementation of the simplifying procedure, promote the legal occupation groups more professional, elite, more emergent legal occupation practitioners in case analysis, the referee to litigation, careful analysis, trouble clear, rigorous organized legal application ability, to maximize the mobilization of their enthusiasm and intelligence, prompted the judge "application case" analysis and legal, more delicate, more exquisite beyond compare.
  4, outstanding performance of the litigation function concept in accordance with the law, the impartial judges, weakening the function of lawsuit seeking to transcend objective reality. In the criminal procedure is also recognized Co. "adversary", the prosecution does not appeal, the defendant does not debate, the judge will not judge ignore; for the same, the judge should be identified, to ensure that the legal occupation groups of all employees in the judge's judicial "baton", with a total occupation, with knowledge, language skills, thinking and ethics, to ensure that the legal occupation community unity and homogeneity, with their respective responsibilities. Starting from the procedural justice, ensure the justice of entity.
  5, the standard of proof, the standard of legal truth. The practice of criminal justice in China is relatively emphasized "take facts as the basis, take the law as the criterion", emphasize "faithful to the truth" (forty-fourth criminal procedure law terms) the objective truth. The so-called legal truth standard refers to the judicial staff to use evidence for ascertaining the facts of the case to the provisions of the law as a true standard. Legal reality can also be called subjective reality or presumed true, namely reproduction in the lawsuit is the legal sense of the real, and not the actual facts of the original state, the main reason is that law is true: firstly, the process of proof of litigation facts must be over in accordance with statutory certification program representation in the referee before, and prove everything active evidence materials, in the process of collection, review, judgments are stipulated by law, therefore the lawsuit case fact formation process from first to last by the law and regulation. In this case, reproduced in the referee before just has a specific legal meaning in the fact that not all cases occurred in the process of the objective facts. Secondly, the facts of the case is in the lawsuit that activities found! Verification, is a procedural process, in accordance with the requirement of justice in the litigation procedure, reproducing the facts of the case must be consistent with the legal provisions in the form of. Identified on the basis of the "real" legal fact is the justice of the procedure facts. The procedure for judge the fact, is the only legal true. Once again, the final determination of the facts of the case, judge from the evidence and the formation of the legal truth, actually it is only the judge with subjectivity form evidence material understanding. The truth of case representation level, depending on the accuracy, the subjectivity of cognition rationality. The subjective judgment of judges of the facts of the case and eventually the formation of decisive significance. The judge of fact, is essentially that authenticity from the legal point of view of the facts of the case made. In the ordinary procedure of adversary philosophy implication simplified trial, non prosecution not argue without trial, in the standard of proof, only the legal truth standard, can reflect the simplified trial value.
   Three, the simplified procedure accurate localization issues on legal attribute
   The simplified trial, about the legal attribute of. The simplified procedure is not an independent procedure, simplified trial actually apply the ordinary procedure in the trial, using simple procedure trial rules, simplify the trial procedure. The court focused on plea both the facts and evidence on quality of debate, argument. If the case facts are clear, the evidence is sufficient, the defendant and his counsel on the facts of the crime accused to be recognized, the prosecution is not necessary to the facts of the case to the defendant, the burden of proof with interrogation, the prosecution evidence only clear evidence that name! The evidence sources, contents and cases can be, do not have to read out in full (except for the defendant people do not know). The examination part of facts to the facts are not clear or the accused, should let the parties fully the. The simplified procedure is difficult problem of shunt on trial, distinction. Therefore should not be simplified examination as an independent judicial procedure, there are not simplified trial returned to the normal procedure.
   Secondly, a simplified trial the prosecution and the defense security in litigation rights. The proceedings from the principle point of view, using the simplified procedure is based on the defense has no objection to the accused, to debate the quality right, whether to apply simplified procedure must be approved by both parties, the simplified trial in court, sufficient attention should be given to ensuring the plea parties especially the rights of the defendants in the trial, confirmed should have a defense, such as:
   1, take all effective measures to inform the defendant and counsel for simplified trial decision, and obtain their confirmation. Shanghai some judicial organs such as Changning District in the people's court to the defendant served the indictment copy to inform the accused, the defender to the defense attorney told a defender the simplified trial of trial, and listen to them; such as the Huangpu District court to adopt a unified production "notification" litigation rights method, after informing the defendant when applicable, also advise simplified trial decided and confirmed by the defendant signed.
2, in the case fact investigation and prosecution proof, then to the defendants and their counsel to confirm the simplified trial opinions on the application. First of all, the presiding judge in the natural condition to verify the defendant, the court declared that the members and participants in the proceedings after the list using the simplified trial method clear trial, introduces the principles and contents of the simplification of the trial, the defendant sought advice; second, the defendant and the prosecution counsel to listen to advice, should once again listen to the defense of the alleged facts and whether the charges have objections, did not confirm that any objection cases, the accused party direct evidence, not on the defendant to interrogation.
3, the burden of proof! Evidence stage should pay attention to whether the defendant and counsel to the fact that the accused arguing. The burden of proof, cross examination is the most important in the trial, which is the most of the time, a simple fact may have a variety of relevant evidence, on the other hand, more content in the same or similar evidence is likely to prove a simple fact "simplified procedure, can put a few evidence that the same charges no dispute the column as a group, select one of the most representative of the evidence was read and explains the relation between the evidence and other contents of the same evidence, and then be cross examination, without a license for one matter. But for the defendant and lawyer alleged evidence presented evidence to justify, should adjust the mode of trial, a certificate of quality.
Thirdly, a simplified trial can be within the range of statutory penalty discretionary lighter punishment on the defendant. The current judicial practice, this approach is not a, there is no uniform standard. The author thinks, the defendant punished more leniently "reason is, can the simplified trial, indicate that the defendant plead guilty attitude, should reflect the wide strict policies have not" but it should be clear whether the defendant, to light punishment, should be in after the defendants in the investigation stage! All case v. comprehensive consideration, should respect the accused party advice. The accused plead guilty attitude based on whether or not, shall be given a lighter punishment, is the Prosecution Sentencing right should include the specific content "judicial organs cannot because the defendant is guilty attitude in court, given a lighter punishment. Whether a defendant pleaded guilty in court, many factors, especially the defense to charges of evidence, the defendant is guilty has considerable influence "and the confession, the role of evidence, not the defendant's repentance attitude. It cannot be simplified as the applicability of the lighter punishment discretion into the statutory conditions.
Fourthly, a simplified trial of rjc. A simplified procedure, the main purpose is to save the time trial, to improve the efficiency of the proceedings, such as the presiding judge to be on the safe side, on the implementation of simplified cases, still pronouncement, not in court, the simplified trial will be greatly reduced the significance of "court trial and whether it should be according to the specific circumstances of the case, should not make unified provision the simplified trial, but, except for the complex case is not in court, should the court verdict, otherwise it is difficult to promote, enhance the judges hearing ability to decide. Of course, the RJC rate is not high for all attributed to the presiding judge, not only do not seek truth from facts, also be of no avail. How to ensure that the rate of RJC, still to establish guarantee mechanism with the support of the judicial independence, judge personnel system, occupation, etc..
Fifthly, the dialectical relationship of "simplified" and "refinement". To ensure that the simplified trial trial quality parts, should be through the court the prosecution and the relevant preparations "refinement" price, in exchange for the trial "simplified", "wood Zhigong Modaomen not mistaken" pre-trial preparation work "cost", to ensure that the quality of the simplified trial. Therefore, in a sense, simplified procedure, the actual is simple and the judicial organ, the procuratorial organs busy; simplified trial procedure, is to accentuate the review prosecution procedure as the premise. In the judicial practice, to ensure that the following procedures should be simplified, refinement, such as:
Refinement of 1, the indictment. Application of simplified trial indictment, regardless of the facts! Evidence list, or applicable law, shall be provided with a "pre" referee's detailed, thorough, convincing strength and depth.
Refinement of 2, pretrial evidence exchange integrity. According to the existing provisions of the criminal procedure law, the procuratorial organs prosecution to the court by the prosecutor accused of evidence is the selection of "major criminal evidence", to advocate not before trial to understand all the evidence collected by the investigation organ. The simplified cases, the evidence display should step in place, no further resolution of display.
Refinement of 3, simplified trial court in advance to inform program. Procuratorial organs that can be used to simplify the procedure to try a case, should be in the indictment of the form to propose, the court should give procuratorial organs of the court in the confirmation notice, inform the defendant, and effectively counsel.
4, the simplified trial the defendant shall be borne by the lawyer to defend. The defendant not entrust a lawyer to defend, shall be in accordance with the provisions of the appointed defense, appoint one for him, to ensure that the simplified trial after trial quality.

(author: East China University Of Politics and Law, Shanghai Changning District court)
(Editor: force center)

Notes.
Research group of the first branch of the Shanghai Municipal People's Procuratorate: thinking about the summary trial of criminal procedure of second instance, the Journal of East China University Of Politics and Law, 2001 Sixth
② see: jointly issued the Shanghai Higher People's court and the people's Procuratorate of Shanghai city in 2001 October about the opinions of criminal simplified procedure
Li Ling, Huang Xiaowen, Wu Xiangyi, Lin Jing: the simplified common procedures in criminal cases to explore, the people's Procuratorate, 2002 tenth
Research group of the first branch of the Shanghai Municipal People's Procuratorate: thinking about the summary trial of criminal procedure of second instance, the Journal of East China University Of Politics and Law, 2001 Sixth
⑤ in vibration, Zhuang Wei, Wei Minghao: the essential practice summary trial of general procedure, procuratorial daily in July 11, 2002
The Cui Min: "comprehensive review" of the criminal procedure law revised on China new development of criminal law, Chinese People's Public Security University press, 1996, pp. 146~152 "Abstract: November 30, 1992 by the Supreme People's court punishment a court to draw up a" on the first instance criminal cases (prosecution) trial program views ", the main contents: 1, the duplicate copy of the indictment to the defendant ahead of time. 2, changed to review the case of public prosecution before the court of the original content, substantive review of cases, to a review of procedures. 3, before the court in the preparatory work, increase the requirements of both sides need to provide witnesses and expert witness list. 4, in court for the prosecution, interrogating the defendant and to show to the court that the accused is guilty evidence. 5, to allow the defendant refused to defend defended, also allows the defense lawyers in accordance with the relevant provisions of the court refused to plead for the accused. 6, the collegial panel shall have the right to the general cases decision made after the council. 7, clearly defined in the case facts unclear, insufficient evidence, cannot prove the defendant guilty, shall declare the innocence of the defendant.
The Cui Min: "the new development of China criminal procedure law" amendment to the criminal procedure law on the comprehensive review ", Chinese People's Public Security University press, 1996. PP. 146~152. The abstract is as follows: the Supreme People's Procuratorate Luffy comrades, in the Journal of China University of Political Science and Law "Tribune" in 1994 first, published "on the views of" procedure justice in criminal cases, the Supreme People's court punishment a court to "on the first instance criminal cases (prosecution) trial program views" to a violent attack. The main point of this paper is as follows: some departments to formulate a "on the first instance criminal cases (prosecution) trial program views" (hereinafter referred to as the 3 opinion 4), some local courts has had different contents of the pilot, the overall goal is to learn from the practice of common law countries, "the adversary" the trial. 1, the judicial reform to meet the China situation, "the source" trial in common law countries, the situation of our country compared with it, there are many differences. 2, will China's current criminal trial mode called "inquisitorial", is not exactly "; the" pursuing litigation convenient, only consider the interests of the accused, not pay attention to the protection of the interests of the victim, which is not conducive to the fight against crime, the country can't we the people's democratic dictatorship in this way. 3, "6 views" contrary to the existing laws, such as: the procuratorial organs called "Prosecution", just as a party to the case, to change the status of the procuratorial organ in criminal proceedings; limit the right of the procuratorial organ, weaken the function of legal supervision of the prosecution; improve the defendant position, increase the litigation rights and some new opinions for the defendant; "6" for almost all of the witness, identification of per capita to testify in court, inappropriate, too much emphasis on some kind of evidence and its effect in the trial, the effectiveness of ignoring the other evidence. The article was published, the Supreme People's Procuratorate declared firmly opposed to the trial way reform views, and the people's procuratorates at all levels shall command with the reform of the court trial of the so-called.