How to implement the principle of direct in criminal proceedings

China's criminal procedure in the principle of direct speech

Direct speech principle, also known as the principle of oral evidence, refers to the judge to personally listen to both parties, witnesses (witnesses in this article, take a broad meaning, including experts) and other participants in the court oral statement and court debate, so as to form the truth of the facts of the case of the heart of the conviction, and based on the case of the decision. As a basic principle of litigation, the principle of direct speech of the litigation value is to protect the prosecution and the defense equal status and equal arms, to ensure procedural fairness of the trial, and then realize the substantive justice, and to protect the parties to the case, especially in criminal proceedings in the position of the natural weakness of the defendant's legitimate rights. Specifically, the principle of direct speech mainly includes the following requirements:

1, the judge's personal experience. The judge must be in the courtroom to personally hear the statements of the participants in the proceedings, review and judgment of the evidence, directly listen to the court debate, the formation of inner conviction and personally make a decision, shall not be replaced in the middle of the process.

2, the case of speech. The case is heard verbally, the parties, witnesses and other litigants must personally make oral statements in court on the case, not with legal circumstances, any out-of-court statements shall not be used as a basis for a decision.

3. The principle of uninterrupted hearing of cases. The hearing of the case must be centralized, consecutive sessions to ensure that the judge's inner conviction of the case is correct.

With the progress of society and the improvement of the legal system, China's revised Criminal Procedure Law embodies the principle of direct speech to a certain extent, but there are still many problems in the improvement and implementation.

One, China's criminal procedure to implement the principle of direct speech of the current situation

China's criminal law on the principle of direct speech is mainly scattered in the criminal procedure law and the supreme people's court "on the implementation of the (Chinese people's **** and the state of the criminal procedure law & gt; a number of issues in the interpretation" (hereinafter referred to as "interpretation") of the relevant provisions. Mainly embodied in: 1, the establishment of a preliminary cross-examination rules: witnesses should testify in court; witness testimony, identification must be in court after the public prosecutor, the victim and the defendant, the defender, the two sides of the interrogation, questioning, and after the verification, in order to serve as the basis for the case; the public prosecutor, the party concerned, the defender, the litigation agent, with the permission of the presiding judge, may ask questions of the witnesses. The trial judge may question the witnesses. 2, the establishment of a trial mainly in open court, in particular, the provisions of the second instance cases in principle, open court. Nevertheless, the principle of direct speech in criminal proceedings in China is still very imperfect, the existing provisions have not been truly implemented, there are a variety of problems in the Criminal Procedure Law establishes the rules of cross-examination and even the successful operation of the adversarial process is very detrimental to the trial may make the reform of the trial mode to lose the practical effect and significance:

1, witnesses, victims rarely testify in court, and did not set up hearsay Rules of evidence. Witness testimony, victim statements are important evidence in criminal proceedings, but due to the lack of a full set of witnesses, victims to appear in court system of safeguards, coupled with the parties to do the work of the witnesses, the victim and the outcome of the case has an interest in the reasons, resulting in witnesses, victims do not appear in court or the phenomenon of making a false statement of the existence of a large number of phenomena. The best way to solve these problems is to implement the principle of direct speech, so that witnesses and victims must appear in court to accept the parties and the court's inquiry. However, the Criminal Procedure Law and the Interpretation of the relevant provisions, but only for the failure to appear in court witnesses of the relevant transcripts, read in court and by the "verified", can be used as a basis for the finalization of the case. Victims to testify in court even more lack of specific provisions. In this way, the problem is not solved, witnesses, victims still rarely testify in court, the parties can not be cross-examined, the relevant evidence can not be effectively cross-examined. In addition, some judicial personnel laziness, fear of trouble, how and whether "verified" are also very doubtful.

2, the criminal procedure law for the full protection of the rights of the accused, the provisions of the second instance cases should be heard, only in the case of clear facts can not be heard. But in judicial practice is exactly the opposite, the second instance cases are usually written hearing, often only in the case of possible re-sentencing of the trial, the provisions of the criminal procedure law in the actual implementation of the cart before the horse, so that the principle of direct speech in the second instance in the null and void.

3, the phenomenon of mid-course replacement of trial staff still occurs. Criminal Procedure Law on the replacement of the trial staff did not stipulate, the Interpretation of Article 99 provides that "incidental civil litigation can be in the criminal part of the trial, by the same trial organization to continue the trial. Members of the same trial organization really can not participate in the trial organization can be replaced", the provisions of the principle of direct speech is clearly contrary to some courts arbitrarily change the collegiality of the members of the court is even more contrary to the principle.

4, the trial committee, the court, the president of the court and judicial practice still exists to varying degrees, the phenomenon of the first to be determined after the trial. According to article 149 of the criminal procedure law, the trial committee to discuss the case of the decision, the collegial panel must be implemented. The collegiality of the court hearing, and the trial committee members did not participate in the trial and listen to the parties and other participants in the proceedings, "the reviewer does not judge, the judge does not trial", does not meet the requirements of the judicial power of personal experience.

Second, in our country's criminal procedure to thoroughly implement the principle of direct speech

As discussed earlier, our country's criminal procedure did not really establish the principle of direct speech. The reason for this, first, the legislative defects: criminal procedure law on the victims, witnesses, including investigators testify in court lack of perfect safeguards and binding mechanism, can not effectively restrain the testimony of the above people, to a certain extent, "indulgence" of their non-testimony in court, but also promote the lazy thinking of the judiciary. Second, social tradition, culture and other deep-seated reasons. China's traditional legal culture is averse to the idea of litigation, people generally do not want to get involved in right and wrong, coupled with the reality of the fear of reprisals and other specific reasons, unwillingness to testify is not difficult to understand. Third, the backwardness of judicial thinking and concepts. Judicial departments y affected by the past trial habits, the new trial mode is not adapted to the fear of error and dare not use, for fear of trouble and do not want to use. The above problems have jeopardized the rules of cross-examination established by the Criminal Procedure Law and even the real realization of the adversarial process, and may make the reform of the trial mode to lose the practical effect and significance. To solve the above problems, the realization of the prosecution and defense trial and the prosecution and defense of equal arms, confrontation, we must thoroughly implement the principle of direct speech. The author believes that, according to China's actual situation, combined with judicial practice, should be improved in the following aspects of legislation and related regulations:

1, clearly stipulates that witnesses, victims must appear in court to testify by way of oral statement and accept the parties to the cross-examination and the court's inquiries, its out-of-court statement in principle does not have admissibility. In view of the current witnesses do not testify in court is quite common, the legislation should provide for the legal consequences of refusing to testify in court, such as fines, detention, forced to testify in court and even criminal liability for obstruction of justice, etc., and effective protection of the legitimate rights and interests of witnesses, including personal safety and due to the economic losses caused by the cost of lost time, transportation costs, etc., in order to encourage them to testify positively. Of course, in special circumstances, witnesses can also not appear in court, but its scope should be strictly limited. The author believes that, drawing on foreign practice, combined with the actual situation in China, can be specified as the following circumstances: A, the witness has died or in foreign countries; B, the prosecution and defense agreed to its written statement as evidence; C, the out-of-court statement was used to question the credibility of its statement in court. D, the witness testimony has been in other proceedings after the prosecution and defense cross-examination. In the case of the victim, it shall be provided that if he or she fails to testify in court, he or she shall bear the unfavorable consequences of the handling of the case as a result.

2, the defendant statement for the case, the defendant confession and the court statement is inconsistent, to the verified confession shall prevail. The defendant's statement must be cross-examined by the prosecution and the defense.

3, the establishment of investigators to testify in court. In the role of proof of certain facts of the case, investigators and general witnesses are no different, must appear in court to accept the evidence, such as confirming the physical evidence, the defendant's confession of the method of obtaining, the process and so on.

4, further clarification of the second instance cases must be heard in court, the conditions of written hearings to make clear limitations, in order to prevent the general become the exception, the exception becomes the general. According to the criminal procedure law, article 187, 191, article 189 (2), (3) and the interpretation of the provisions of article 253, combined with judicial practice, the conditions of the written hearing can be limited to the following circumstances: A with the criminal procedure law, article 191, or one of the circumstances of the first trial of the facts found to be unclear, the evidence is insufficient, the need to be reversed, and remanded for a retrial; B the defendant and his defender on the original judgment The defendant and his defense did not object to the determination of facts and evidence, and only appealed against the application of law and the conviction and sentence, and the second trial did not find that there were problems with the facts after review.

5. The duties of collegial panels and single judges are strengthened, and they are given truly independent adjudicative powers. Where a collegial panel or a single judge sits to hear a case, the collegial panel or the single judge shall decide the case, except where expressly provided for by law. The scope of the trial committee's discussion of cases is explicitly limited to the application of the law, until the trial committee's duty to discuss specific cases is eventually abolished.

6. The hearing of cases must be centralized and held in consecutive sessions to ensure the continuity and correctness of the judge's inner conviction of the case. The members of the panel shall also not be replaced in the middle of the case. If they need to be replaced due to unavoidable reasons such as death or reassignment, the case shall be re-examined.