Criminal proceedings preliminary analysis of failures (on)

Keywords: program failure / legal consequences / litigation cost / performance evaluation / legal traditions / judicial system

Summary: Criminal Procedure Act in the implementation process was widespread evasion and overhead issues. This program has become a failure of the Criminal system, the biggest challenges caused by failure of the Criminal procedure mainly because the Law does not establish an effective procedural sanctions and procedural mechanisms for the referee, some of the legal proceedings brought by the design of the cost of inputs beyond the maximum tolerance of the judicial system, the investigators in order to avoid adverse results of the exam had to take the initiative to avoid certain legal proceedings Some programming because of conflicting legal traditions by the impact of the emergence of self-contradictory situation. Moreover, the existing Criminal Justice system is also derived from the West for many of the effective implementation of program design, constitute a "bottleneck effect . "


I. Introduction

In recent years, as China's legislature to amend the Criminal Procedure Law of the re-incorporated into the legislative plans, more and more attention from legal scholars are beginning to "modify the Criminal Procedure Law" issue. Jurisprudence published a series of related papers and books, some senior scholars to draft a more than "the proposed draft Code of Criminal Procedure expert" on the proposed amendments to the Law a comprehensive, systematic theoretical scheme [1] I also participated in the All China Lawyers' Association of criminal business seminars organized by the Committee, and chaired the drafting of the first edition of the Code of Criminal Procedure Department lawyer draft the proposed changes [2] In this way, then the question of amending the Criminal Procedure Law of the first to break the legislative branch dominated entirely by the situation, showing legal scholars, lawyers to participate in and influence the state legislative process.

In general, the Code of Criminal Procedure re-involved in nothing more than modify the rules of criminal procedure changes, including the rule of law add, delete and change the problem which, by the rule change brought about by the power of the three organs of public security may be adjusted , suspects, defendants, defense counsel the expansion of procedural rights, as well as some new legal system was established. Then, in the Chinese criminal system, the fundamental problem facing the implementation of what? for this problem, legal scholars each can give their own answer: the suspect, the defendant's right to defense needs to be strengthened, investigators need to curb the illegal acts evidence, the witness did not testify the problems to be solved; need to expand the scope of the bail, in custody pending the application object need to limit, to evidence the ability of the need for more explicit limitations, etc. However, if we are not just concerned about "the improvement of criminal procedure in writing," but examine the implementation issues of criminal procedure, then, despite these problems very important, but not the fundamental problem. In fact, the Chinese criminal system in the implementation of the fundamental problems faced, neither expansion of the rights of parties to the proceedings, the three organs of public security is not a redistribution of power, but rather the failure of the criminal procedure issues .

The so-called "failure of criminal procedure" refers to the statutory procedures established by legislators in the criminal Justice activity has been to avoid and set aside, so that the provisions of the Code of Criminal Procedure written ineffective to varying degrees, we usually call "the court trial a mere formality, "in fact refers to the Code of Criminal Procedure the trial court set the norms have been elevated, we generally think of as" two final pre-trial system exists in name only ", in fact, in the expression of the trial-level legal system has been to avoid, what we call the "collegiate system no longer exists", is actually implemented in the description in the collegiate system has been shelved ... ... As for the bail of the "real sanctions" and the arrest of the "conviction and sentence preview" of , status of the parties and the defense of criminal defendants the right of emptiness, the trial court in the "files record-centrism," the court for insufficient evidence of guilt in cases generally refused to take "the Conflict" referee method, are also shown from different aspects the design of the relevant criminal procedure has not been implemented.

Of course, the so-called "failure of the criminal process," mainly refers to the statutory procedures designed legislators have not been effectively implemented, neither the investigation, prosecution or judicial authorities in the criminal Justice process in any non-compliance is not specification. but they are not actually pursuing a formal legal recognition of the "hidden rules" or "invisible system." These "hidden rules" or "invisible system" is often based on public security authorities and the convenience of handling their own designed, and in practical activities in the criminal Justice universally accepted norms gradually as the criminal Justice practice in China, "spontaneous" formation of norms, these unspoken rules, hidden system, despite often being on the legitimacy of the legal circles, "they hate." , but it seems to have a strong vitality, and largely replaced the formal legal position of authority.

The face of formal legal procedures are circumvented, the unspoken rules popular, we can not just on the ethical legitimacy of this evaluation. This evaluation is necessary, but it is not enough, we need to stand in the position of the social sciences on the failure of China's criminal procedure issues more in-depth investigation and analysis on the one hand, we need to carefully study the performance of criminal procedure and the failure of the main types of research possible to make this theoretical modeling on the other hand, we need out of the fact that failure of criminal procedure, from the outside into a series of exogenous variables, and thus the cause of the problem have a convincing explanation.

This is a great deal of experience in analyzing and summarizing the facts on the basis of criminal procedure failure five reasons, that is, I want to reveal the "failure of the five laws of criminal procedure." First, the Code of Criminal Procedure does not establish a more comprehensive Program implementation mechanisms, making some of the criminal process has been inherently and set aside to avoid the risk of the other legislators do some programming, and implementation costs are too high, will bring down the efficiency of litigation and the rising caseload, This tends to encourage the judiciary to implement these programs away, third, because the role of a judicial management, the investigators once strictly comply with certain legal procedures, not only can not get real benefits, they may therefore be punished, it was doomed cause these procedures are to avoid the situation; Fourth, legislators from the West to introduce some of the legal system, legal tradition and local produce in a fierce conflict, making the relevant procedures designed to face contrary to this criminal policy challenges, resulting in judicial people give up on legal compliance, Fifth, some imported from the West of criminal procedure do not have the proper protection of the judicial system, judicial reform has lagged far behind in the case, these slightly "ahead" of criminal procedure design, destined to become difficult to implement.

These issues have to be fundamentally resolved, does face a series of difficulties this paper aims to reveal the existence of the problem and the reasons for, and in this analysis based on the general concept, which creates a problem for universal explanatory power. As for the ultimate resolution of these issues, and some require a huge change in the national judicial system, and some to be a complete social transformation, and some even require other changes in social conditions, but in the final analysis, does not find the deep problems, the reasons for these problems does not make an accurate reveal any criminal proceedings to promote the idea of ​​institutional change and action, is likely to be blind, but also risky.

Second, the criminal procedure law enforcement mechanisms

From a certain point of view, the failure of the criminal procedure is a formal criminal proceedings, the issue can not be implemented. So, why the criminal proceedings can not be implemented? We first need to examine the way the Criminal Procedure Law, Criminal Procedure Law of China and can not be implemented to reveal the reason.

Rules established by the substantive law can be roughly divided into authorization rules, mandatory rules and rules, three against, but any kind of rule of law, whether authorization of, obligations of, or prohibited, and generally contains " assumes, "" punishment "and" responsibility "and other basic elements, of course, we can" assume "and" punishment "to be merged together, the" standard content "," responsibility "can be regarded as" legal consequences " , which is bound by a rule of law violated the rule of law are subject to liability or to bear the legal consequences. Thus, the implementation of the substantive law to have two basic conditions: First, the rules contained in the right obligations and prohibitions, a clear, specific content, the second is a violation of the right to performance of an obligation or in violation of a ban on the subject, to bear the adverse legal consequences, but not the physical implementation of the law can be done automatically. Specifically, both the rights and obligations, prohibitions or legal consequences, can not be achieved just by itself but rather must rely on the implementation of procedural law, which requires both that the claim put forward, sharing the burden of proof, the standard of proof determination, the referee should have a corresponding manner and means of relief from this perspective, the substantive law of procedural law is to ensure that the final implementation of the tools and instruments, is established to ensure that the substantive law of the rights, obligations, prohibitions and liability applicable to the case of intermediate and bridges.

Similarly with the substantive law, procedural law established legal rules often can be divided into authorization of, obligations of and prohibitions, and also has a "assume", "action" and "responsibility" of the three major elements however, the procedural law of the "legal responsibility" or "legal consequences", not the usual sense of the general liability entity, such as civil liability, administrative penalty liability, criminal or disciplinary responsibility, and usually one of those to declare null and void as a symbol of the procedural legal consequences, which means that the substantive law that the "principle of own responsibility" does not apply to procedural law, violation of procedural law of the "perpetrator" and will not breach proceedings suffered the loss of personal interests, up to bring "the proceeds of illegal deprivation," the consequences, that is, the implementation of the action illegal behavior will not produce the desired legal effect. Of course, this is just the general sense of the procedural law judgments. If a procedural violation has reached a more serious level, and substantive law violated a rule of law established, then, this procedural violation will be a substantive change in offense, and therefore the procedure and substantive law adversely on the double meaning of legal consequences.

The unique program of sanctions decided by the program implementation of the law is different from the substantive law of nature, but this is not the whole story. Compared with the substantive law, procedural law, not the implementation of a program by another to complete the implementation of the law. Almost all countries have not developed a special "procedural law, the implementation of the law." Thus, the program implementation of the law had to be done by its own. So, what is the procedural law by the way how to implement their own established the rule of law? First, the procedural law must establish a workable mechanism for declaring invalid, which can be classified into the above mentioned "procedural legal responsibility" category, which requires the establishment of illegal acts against the illegal investigation exclusionary rule of evidence, the prosecution for illegal conduct prosecution declared invalid rule set, and for the illegal conduct of the trial to establish the mechanism of cassation. Second, the procedural law must also establish a set of specific procedural violations of the law of the justice system, which also is the author that the "procedural decision" problem. For example, to the implementation of the exclusionary rule, we need to determine where the exercise of the right to appeal, claim to the action stage and the admissibility of the court, the court accepted the referee after the way the allocation of the burden of proof to prove that the standard setting and appropriate judicial relief. do not judge the establishment of these procedural mechanisms, then the so-called "procedural sanctions" is impossible to be implemented, and those who violate the legal action proceedings in the application level can not be declared invalid and subject to effective containment.

Implemented in accordance with the basic principles of procedural law, we can conclude that the first failure of the criminal procedure law: criminal procedure law as long as there is no violation of established legal procedures to declare the act invalid mechanism, as long as there is no mechanism for the implementation of this establishment declared invalid The basic mechanisms of justice, then, the rules of criminal procedure is not implemented, it has a natural possibility of failure.

This law set up to demonstrate, in fact, not difficult, we can find a lot of Chinese criminal procedure failure examples to show this principle of universal applicability. For example, the Chinese legislature in 1996 established a counsel in the investigation phase "Meet the rights of suspects in custody," but did not create any rights designed to protect the realization of this mechanism makes this right subject to judicial practice in the overhead. Legislators infringement procedures against those who did not establish any legal consequences, such as the available evidence does not have this evidence of the ability, by limiting the right of the lawyer filed the indictment has no legal effect, but also help to punish those who did not establish any right to restrict lawyer The legal responsibility for acts. Moreover, any restrictions in case of investigators, the case of deprivation of the right lawyer, whether suspects or lawyers, are unable to obtain a neutral court for judicial relief to the opportunity, nor any court would accept this class actions involving the legality of the investigation of claims as a result, the suspect in custody lawyer rules, not only there is no effective sanction mechanisms to ensure its procedures are implemented, but also become a non-actionable and non-relief of the rule of law, although causing investigators arbitrary restrictions, deprived of the right lawyer for many reasons, but, "lawyer suspects in custody," this rule can not be implemented, but at least have contributed to this problem is an important factor.

Again, the revised Criminal Procedure Law in 1996 established the suspect, the defendant's right to apply coercive measures to change, especially the right to apply for bail, which shows that the legislators of the high status of pending custody concerns. However, in judicial practice, suspects, defendants, or whenever the application of coercive measures proposed changes to the bail application, whether it is the public security organs, the prosecution or the courts tend to be dismissed, making this action can not be right to a large extent become to achieve the right result in this situation may also be many reasons, but one question on the implementation of criminal procedure perspective, suspects and defendants' right to apply coercive measures to change "the rules do have the possibility of the implementation ? The answer can only be negative. This is because, for the coercive measures should be changed but not changed, it should be refused bail application of the applicable legal decisions, legislators did not establish any procedural legal consequences, especially for those who violate the legal process to extend the detention of any pending actions, there is no valid legal action to establish a special mechanism, investigators and no act of abuse in custody pending the establishment of illegal evidence exclusion rules the town. Moreover, if the suspect, accused or the application of coercive measures to change bail applications, not only unreasonably refused, but also impossible to obtain judicial relief opportunities. this problem occurs, either the prosecution or the court can not apply for relief for the suspect, defendant, a judicial hearing opportunities, it is impossible for the suspect, the defendant challenged the legality of detention pending a suitable occasion. Thus, suspects and defendants have the right "to apply coercive measures to change" or "apply bail application," becomes into a non-implementation of the rule of law, the rights become non-relief. the rule of law and the avoidance of failure, has become an inevitable result.

Of course, one may ask: is not China's current legal system does not create any procedural sanctions regime, established the Code of Criminal Procedure Court of First Instance on the "violation of due process of law" and "affect fair trial" will result in the second instance court system of cassation, the Supreme Court established judicial interpretation of Chinese-style rule of excluding illegally obtained evidence, however, these procedural mechanisms and sanctions have not been well implemented. That being the case, procedural law, the problem is really caused by the implementation mechanism criminal procedure failure reason?

Indeed, from the perspective of the implementation of criminal procedure, whether the system cassation or illegal evidence exclusion rule, have to protect the relevant procedural rules to implement the function, but they themselves are "procedural rules" an integral part in accordance with previous explain any of the rules of procedure as long as there is no operational procedural sanctions and procedural mechanism to protect the referee, will become a non-implementation of the rules, but lawmakers even for those procedural violations of the sanctions regime established procedures These procedural sanctions regime itself is not automatically implemented, more difficult to protect the other programs play the role of rules to be implemented [3]

From this, the exclusionary rule and the system of cassation, as Chinese law also established two "legal" procedures of the sanctions regime, and indeed there is "difficult to implement problem." However, the problem and lack of failure to overthrow the criminal procedure law of the first. This is precisely the description of empirical fact, any rules of procedure, whether the entity constitutes a rule or procedure to implement rules, we need to have a more complete implementation of the mechanism of the protection. As long as a legal process to become a non-implementation of the rules, as long as a right of action into a right to relief is not, then the failures of criminal procedure will appear. This means that the failures of criminal procedure, both may appear in the general authorization rules, mandatory rules and rules against being, will also affect those seeking to establish the procedural law of the legal consequences of the procedural rules of sanctions implementation.

Third, the cost of legal proceedings

Proceedings often involve the design cost of inputs to the litigation as a need to invest human, material and time resources of the judicial activities, criminal activities, effectiveness of the proceedings is a need to seriously ponder. Any of the criminal justice system reform program, if you do not consider the litigation costs of restrictions, such reforms can not have any realistic basis. As former U.S. Supreme Court Chief Justice Burger said, if the proportion of cases will apply to plea bargain reduced by 10 percent, then the U.S. federal and state criminal investigations, prosecution and judicial resources would need to double, or This criminal justice system will become overwhelmed. [4] The reason why Justice Burger made the remark, mainly for the proposed repeal of plea bargaining point of view put forward questions, but words can also be interpreted as follows: in the design of any legal proceedings If you will bring an increase in litigation costs and reduce the effectiveness of the proceedings, and this increase and decrease beyond the criminal justice system's maximum tolerance, then the failures of criminal proceedings will occur, which can be regarded as criminal procedure failure the second law.

So far, in relation to the legal value - particularly procedural fairness and effectiveness of the proceedings of the conflict coordination problems, some legal scholars have always assumed a condescending attitude, that "coordination of the value of fairness and efficiency theories of conflict imagine. "However, this lack of basic theoretical assumptions, once the support of empirical fact, it will become a pure" metaphysical "speculation, and in the judicial activities is difficult to have the least operational. Judicial practice experience and lessons that proceedings must be designed to fully estimate the increase in litigation costs to the criminal justice system might impact, must also take into account the affordability of the criminal justice system, otherwise, an ideal legislative mind with programming, it will be a castle in the air, rather than with the possibility of being implemented. Whenever this situation, overwhelmed judicial system often spontaneous contributed to the emergence of a rule to replace the kind of plausible but not sufficient judicial resources to support the design of the system.

In 1996 the legislature amended Code of Criminal Procedure, when the "criminal justice approach" reform is a typical example of legislators realized that the original trial judge to give way too much judicial power of investigation in the course of the trial dominated the forensic investigations and court procedures for debate, making it difficult for full prosecution and the defense against, and because the whole case before the trial and the evidence grading the work of investigation and verification, resulting in the prevalence of the court, "the first set after the trial" "trial a mere formality" and problems [5] to address these issues, legislators repealed the prosecution's case before the trial court's substantive examination system, greatly limiting access to files before the trial judge the scope of the investigation changed the court order and manner, undermine the judge investigation of the evidence of dominance; the introduction of cross-examination mechanism, allowing both parties to the investigation of evidence to play a greater role legislators believe that this kind of Anglo-American adversarial system modeled on the "Reform of the trial" to ensure that the defendant people more fully the right to defense, better play the trial function [6] On the other hand, to avoid "adversarial trial means," the implementation of the serious problem of delays in the proceedings, legislators to promote the establishment of a minor criminal The summary of cases to be quick decision making that might be sentenced to three years in prison the following penalty cases, the defendant voluntarily pleaded guilty, under the premise can be handled relatively easy way.

However, despite the simple implementation of the program has achieved some positive results, but can not fundamentally solve the serious backlog of criminal cases, the courts and lack of resources, such as early implementation of the "normal process is simple trial" grass-roots courts, Beijing Haidian District Court's summary description of the situation is the establishment does not really solve the limited nature of judicial resources and substantial growth in cases of conflict between, according to statistics, the Court in 1997 for the summary criminal cases to 464, total 35% of the number of criminal closed in 2000 it reached 1000, accounting for 50% of the number of closed criminal, but because the base of criminal cases increased year by year, the trial has not eased the pressure, even with the adversarial mode of trial implementation and the chief justice and the implementation of the system is more aggravated in only three of the presiding judge sentences a court, presiding judge of each year through the normal procedures for trial of cases as high as 350 or more. It is in this sort can not be case under the pressure of circumstances, the court has created a "normal process is simple trial mode", so there is no dispute that the case can be heard within an hour finished. [7]

Links to free download http://www.hi138.com

Haidian court created by the "normal process is simple trial" system has been extended to the national Supreme Court, has now become a par with the statutory summary of the "guilty plea cases, the ordinary procedure." Of course, the primary way by the trial court "Spontaneous reform" can be interpreted as an important way for the growth of the legal system, that is, according to the needs of society and the pressure on judicial resources and develop a kind of a viable system, but from the legislature to implement the so-called " adversarial trial means, "the legislative mind point of view, the implementation of the Primary Court," the ordinary procedure is simple trial, "no doubt means that at least in those cases where the defendant voluntarily pleaded guilty, that the Anglo-American adversarial system modeled and set up new mode of trial, has been to avoid and set aside. This "normal process is simple trial" of the reform experiments, in fact, is "adversarial judicial proceedings" evidence of a significant failure occurs.

Reform of the trial in 1996 the impact is far more than that. Originally, lawmakers have realized that China's criminal justice system and the central problem is the court, "the first set after the trial", "the court a mere formality," the problem however, legislators did not address this issue out of any effective "prescription", but the mode conversion in the trial proceedings and make a greater effort on the issue. So, learn from and transplantation adversarial litigation system, fix the court hearing a mere formality problem? The answer is probably no. according to research by the author in the first instance the current criminal proceedings, the court actually imposed a "record files to the center," the way the referee for Almost all the prosecution evidence, the court read through the files by investigators to record the way forensic investigations, especially for the statements, victim statements, confession of the accused, the court allowed the prosecutor read out the direct witnesses, victims, defendants made to investigators the transcripts for the investigators by inquisition, inspection, search, seizure, identification and other investigative act to obtain evidence, the court also read the related files by reviewing the transcripts of the way in the vast majority of witnesses, victims, experts do not appear to testify in the case, the so-called "court cross-examination", in fact, that is, the court read the complete transcripts of the relevant files, after the defendant, counsel for the record their views, and not the defendants, counsel for witnesses, victims, identification of even the cross-examination by investigators while in court after the prosecutor to the case file materials will be transferred over, the Full Court in the court members can continue to the case marking and additional investigations to verify the evidence of the work so that the entire court process Almost a mere formality, the real activities of the administration of justice in the trial after the entire case marking and supplementary investigation and verification stage.

Why do the courts at the grassroots level through the "normal process is simple trial" test, the legislators designed to be part of the adversarial trial process overhead, the color of this trial with the adversarial process is still in the normal procedure to avoid it? The author It seems, there still exists the cost of the program design into much of a problem, because even if the defendant pleaded not guilty to not guilty, or for the ordinary procedure, the "adversarial judicial proceedings" of the operation still requires a lot of judicial resources. Truly adversarial proceedings, means that both parties need to be in court all the evidence to show that all the evidence provided by words must testify in person, both parties want to investigate all the evidence and cross-examination, for all witnesses, victims, experts, even those accused disputed the legality of investigative actions of the investigators, should be summoned to give evidence, to accept both sides of the cross-examination, which also means that the ability to judge the evidence for the review of the evidence, the evidence of adoption and the facts of the case identification, must be made in both defense and prosecution both participation and effective cross-examination, the court shall be completed such trials will undoubtedly require a court to invest enormous human, material and financial resources and time, or even bring criminal completely changed the way judges work, while for those who have long been accustomed to go through the motions in court, good through the "office work" to form the conclusions of the criminal judge referee, no doubt, pose a serious challenge. Moreover, Chinese courts based on improve efficiency and reduce extended detention and other considerations, the judge handling the case for criminal proceedings term cycle and made more stringent requirements. According to the author of the survey, in many places the court, the criminal judge after the case was asked a half months to complete the trial of the case can be said that the trial court continued to maintain political and administrative-oriented pattern, the court the way the reform will have "indeed affect the whole body" means.

Chinese legislature in 1996 to Anglo-American adversarial system modeled on the design of the trial mode, even in the District Court through the "normal process is simple trial" after the test to be part of the overhead, but also in the general procedure to avoid serious, this clearly shows that any design of the proceedings of the criminal justice system must consider the affordability problem, if this programming with the hands of the court of judicial resources is not commensurate with a serious problem if a program of reform will bring the judge's thorough work change, and the corresponding judicial administrative practices and performance evaluation mechanism without any substantial changes, then this appears to the court and judges are "not convenient" and "too expensive" system design, it is destined to be difficult to implement.

In fact, talking about litigation cost constraints on program design issues, the failure of the collegiate system is a very typical example. Collegiate production of "democratic centralism" of expression, can play a number of referees in the review of the evidence, facts and applicable legal ability and intelligence, according to China's judicial experience, the collegiate system on the one hand to avoid the risk of too much justice concentrated to a single judge who, by making multiple judges, jurors act as co-judge, to reduce external pressures and influences, it can also promote the collegial panel members to checks and balances to avoid the kind of potential miscarriages of justice and judicial corruption phenomenon.

However, the collegiate system, from the date of the establishment in China, it seems that there is no truly effective way to play a role. Judicial practice has been replaced by a kind of universal implementation of the "contractors" or "the judge" system from the formal point of view, Court appointed three judges or jurors hearing a criminal case together, it seems to mean three judges, jurors for the case to bear the same responsibility and bear the same trials. But in fact, really care about the case to judge the case and, ultimately, is responsible for the case of the "contractors." Court of tribunal cases to specific judges assigned to the judge in this case is the "contractors", but also This case has always been responsible from the pre-trial preparation, a preliminary review of case files, court organization, court case after all scoring, investigation and verification of evidence, the trial report writing, drafting of judgments, to the President of the Court report to the Judicial Committee's report to the superior court referrals, etc., mainly by "the judge" a person complete. As for the full court of the other two, "Associate Justice", mainly to maintain the collegial form of organization required by the referee The makeshift. in a particular case in terms of the trial, the judge should accept the tribunal, the Court and higher courts of the performance evaluation, the trial of this case the general contractors who will remember the "caseload", which one case, once the appeal, mediation, concluded, appeals, petitions and other aspects of a problem, especially in the case, once the higher cassation court, remand, or commuted, then the need bear the consequences is not responsible for the full court or jury judges, but the case of the "contractors."

It seems that the "contractors" to act as arbiter in cases of real cases, so-called "collegiate system" has largely been to avoid this sit on such trials not only result in a formal organization, but also lead to collegiate system closely related to the design of the system ineffective, difficult to be implemented effectively. collegial system once can not play a role, that of the full court decision made by members of the design of the "review" process is bound to be overhead. Since the essence of jurisdiction rests in the hands of people handling the case, So, the Full Court is bound to members of the discussion and voting there would be no need, therefore, "review" process to avoid either completely, or only to retain its symbolic form. Additionally, as a "full court members" of the jury, in contractors who have real jurisdiction in the case, more symbolic, the court can only help solve the "not enough manpower handling" problem can be seen, the collegiate system and the jury system is almost a "symbiotic" relationship, once the collegiate system in name only, the jury system will be empty.

So, to avoid causing the collegiate system is the main reason for that? According to the author's observation, the collegiate system on the whole, China's current judicial system with incompatible after all, an inclined upper and lower body, vertically-oriented management of administrative , and the collegiate system has the equal discussion, rational debate, collective decision-making, almost alien in the case of approval of the President House, the Judicial Committee to discuss the case, the lower court on the question of the referrals to the reporting system is still functioning in the case, collegiate system almost did not play a role in space, however, whether the collegiate system is designed to bring litigation costs increase, so that the court overwhelmed causing it?

In the crime rate continued to rise, the high number of criminal cases in the case, the court handling the case facing increasing pressure to improve efficiency and save resources, the most effective way is to ensure that a single judge's caseload is maximized. In the collegiate system in the form to be maintained under the premise of two "Associate Justice" at most two to three hours in connection with court proceedings, this will not affect him (them of the progress of the contractor handling the case. Moreover, experience handling stress too much, the court also can arrange people's assessors participate in the collegial panel members, to reduce the "Associate Justice" of the trial pressure. As the court after the hearing of the referee, you need one person from the contractors responsible for the completion of not only So, in the accountability and performance assessment, relative to the evaluation of multiple members of the Full Court, the Court of the judge's evaluation of an individual to become easier. that "a contractor who is responsible for a case" of the referee mode significant savings in administrative costs of the courts of justice due to a clear assessment of the standard, the judge in the case of the individual referee's responsibility and risk, within the Court in the caseload and the need to consider, as appropriate into the negative factors to calculate specific scores, it also very simple and easy to operate, while compared to the Full Court of three members share the responsibility, then the court members also need to sit on the size of the allocation of responsibility, which will become very complicated and difficult to operate, can easily lead various disputes and conflicts.

Since the collegiate system naturally has been to avoid the possibility of handling the case since the pressure increases to force the current court system have generally adopted the judge, then why should we take in a large number of cases in this collegiate system? If we are serious to face the reality of justice, do not take that tone too dogmatic position, the majority of criminal cases are heard by a judge individual jurors, or by a judge and two people's assessors for collegiate trial这对于节省审判资源、降低诉讼成本岂不更为有利吗?当然,有人会说这样的做法会破坏合议制度.但是,面对司法实践中普遍存在的合议制名存实亡的现实,倒不如在少数重大、疑难案件中保留合议制,而对大多数案件采取独任制.对于这种做法可能产生的弊端,我们当然也要采取相应的对策.不过,合议制的普遍流于形式,迫使我们在提出一种司法理念和程序设计的时候,一定要注意不能挑战刑事司法制度的承受限度.否则,无论是法院还是法官,都会将这一程序予以架空,而采取另外一种虽然"名不正言不顺"却十分便利的制度.





Notes:
[1]有关学者版的刑事诉讼法修改建议稿,参见徐静村:<<中国刑事诉讼法(第二修正案学者拟制稿及立法理由>>,法律出版社2005年版,陈卫东:<<模范刑事诉讼法典>>,中国人民大学出版社2005年版,陈光中:<<中华人民共和国刑事证据法专家拟制稿(条文、释义与论证>>,中国法制出版社2004年版,陈光中主编:<<中华人民共和国刑事诉讼法再修改专家建议稿与论证>>,中国法制出版社2006年版.

[2]参见田文昌、陈瑞华主编:<<中华人民共和国刑事诉讼法再修改律师建议稿>>,法律出版社2007年版.

[3]有关这一问题的详细分析参见陈瑞华:<<程序性制裁理论>>,中国法制出版社2005年版,第235页以下.

[4]参见陈瑞华:<<意大利刑事特别程序与美国辩诉交易之比较(下>>,载<<政法论坛>>2005年第4期.

[5]参见顾昂然:<<新中国的诉讼、仲裁和国家赔偿制度>>,法律出版社1996年版,第21页以下.

[6]参见陈瑞华:<<刑事审判原理论>>,北京大学出版社:1997年版,第361页以下.

[7]参见北京市海淀区人民法院刑一庭、研究室:<<刑事普通程序简便审模式初探>>,载<<人民司法>>2001年第10期,安克明、陶元迪:<<刑事普通程序简便审>>,载<<人民法院报>>2001年10月8日.

Links to free download http://www.hi138.com