法律thesis—中外刑事回避制度的比较研究
08-06, 2014
刑事回避制度在刑事诉讼中占有重要地位，在刑事诉讼法中被置于重要的位置。然而在立法和实践中却还存在很多的缺陷和不足。本文通过对我国刑事回避制度及外国回避制度的分析和对比，找到我国刑事回避制度缺陷的症结所在，进而更好地完善我国刑事诉讼制度，更好的维护人权以及法律的公正性。
Occupies an important place in the criminal challenge system in criminal proceedings, is placed in the important position in the criminal procedure law. In the legislation and practice, however, there are a lot of defects and the insufficiency. This article through to our country criminal challenge system and foreign withdrawal system analysis and contrast, find the crux of the criminal challenge system defects in our country, to better improve our criminal lawsuit system, better uphold human rights and the justice of law.
I, overview of withdrawal system
(1) the basic theory of withdrawal system
The concept of 1, withdrawal
Avoidance system, in which the criminal challenge system in criminal lawsuit, refers to the investigators, prosecutors and judges, in case the parties have some interests or other special relationship that may affect the impartiality of the criminal case processing, and shall not engage in litigation activities for the case of a lawsuit system.
Challenge system is the modern criminal procedure law from all over the world universal establishment of lawsuit system. Criminal challenge system is based on the theory of western suit "natural justice" principle, which requires anyone shall not act as the judge in the oneself for the case of the parties, or by his lawsuit does not have legal effect. [1] according to this principle, the establishment of the challenge system is designed to make investigators and prosecutors and judges in the lawsuit to be neutral, fair treatment of the parties and handling the case.
2, avoidance of species
Based on the theory of procedural law, avoidance can be classified according to different standards.
(1) according to the way of different can be divided into apply for withdrawal, voluntarily withdraw and instructions to avoid.#p#分页标题#e#
(1) to avoid: refers to the judge, procurator or investigator who met in the process of litigation, such as legal avoidance, active request out of the system of criminal lawsuit activity. The practice of this system mainly by the judicial staff professional ethics and self-discipline consciousness. To eliminate the factors of obstruction of justice.
(2) apply for withdrawal: refers to the case of the parties and their agents think any judge, procurator or investigator who legally avoid situations, such as apply to their administration, ask them to withdraw. This is one of the parties and their agents AD litem important litigation rights. Public security judicial organs have a duty to ensure the parties and their legal representatives to fully exercise the rights effectively. So the criminal suspect or the defendant have shied away from right.
(3) instruction to avoid: refers to the judge, procurator or investigator who meet the statutory avoid situations without recuse themselves, the parties and their legal representatives also did not apply for withdrawal, courts, prosecutors, the public security organs and other relevant organizations or the administrator shall have the right to make a decision, make its exit litigation activities. Instructions to avoid is a necessary complement to voluntarily withdraw and apply for withdrawal.
(2) according to whether you need apply for withdrawal made for divided into because of avoiding and peremptory challenges.
From (1) : refers to the litigation participants have to avoid right only in the case with legal cases, avoid reason, to request the relevant judicial staff to avoid application.
(2) the peremptory challenges: refers to the parties have avoided right don't need to come up with any reason, can request relevant judicial staff to avoid.
(3) according to avoid objects into the judges to avoid, the prosecutor avoiding, investigators avoidance, jurors avoid, expert witnesses and avoidance of clerks, interpreters, etc.
(4) according to the expression can be divided into oral and written.
(5) according to shy away from the object of avoiding responsibilities are divided into the officials and the officials of the avoidance.
(6) in a case of private prosecution in accordance with the nature of the applicable cases are divided into avoiding, avoidance and incidental civil cases in the case of public prosecution, avoid.
In (7) in accordance with the procedure can be divided into simple procedure to avoid and ordinary procedure to avoid.
(8), according to a different application methods can be divided into the avoidance of the prosecution of avoidance and the defense applications. [2]
3, avoidance of reason
Avoiding reason refers to the implementation of the law explicitly avoid essential basis in fact. Can be used as the judicial personnel to avoid according to situation, mainly is the judicial personnel or the parties to the case there is some concern or other relationship, that the case is difficult to get a fair treatment. China's "criminal procedural law" article 28 to avoid reasons made clear provisions.#p#分页标题#e#
(1) is the close relatives of the party or the parties to the case.
If any judge, procurator or investigator who is itself such as in the case of a criminal suspect or defendant, the victim or other parties concerned, so they may be from the perspective of maintaining their own interests litigation activities, too fast to make the parties was treated fairly, also has effect on the handling of the case can fair and objective. In this case, even if the judicial personnel does not affect the impartiality of the case, also will be affected by the parties and even social suspicion. The person close relatives refers to the range of the "husband and wife, father, mother, son, female, and brothers and sisters".
(2) himself or his close relative has a stake in the case.
With the situation of the judicial personnel shall withdraw.
(3) served as the case of the witnesses and expert witnesses, defender or agent AD litem.
This case, the judicial personnel may cause preconceptions in the case of prognosis, but can't calm and objectively deal with the case, also should avoid.
(4) with this case the parties have other relationships, may affect the fair treatment.
Trial procuratorial or investigators if with the cases of the relationship, other than the above three kinds of situations to bring justice to the case processing, also should avoid.
(5) any judge, procurator or investigator who accept the parties and their clients such as gift-giving, in violation of regulations meet with the parties and their clients.
Violation of the provisions, they shall withdraw.
(6) participated in the case, the investigation of their personnel if transferred to the people's procuratorate or the people's court, may not serve as the case
Prosecutors and judges; The people's court which originally tried the case for retrial case, shall form a collegial separately
Court, in accordance with the procedure of first instance; The people's court shall, in accordance with the procedure for trial supervision retrial case, shall form a new collegial panel.
4, avoid personnel's scope
Scope refers to the person whose withdrawal in the case of the law defined the scope of the judicial personnel shall withdraw. Only belongs to the scope of the staff can recuse themselves, or by the parties to apply for withdrawal, avoidance or instructions.
Combined with the related law and judicial interpretation, it is suitable for the person whose withdrawal basically has: investigators, prosecutors, judges, and to participate in the investigation, prosecution, trial activities of clerks, interpreters and expert witnesses.
Specific include, head of the public security organ, investigators, to participate in the activities of investigation of the recorder, interpreters and expert witnesses. Attorney general, examination committee members and other inspectors, to participate in the prosecution activity's clerk, the judicial police and the people's procurator to hire or assign interpreters, expert witnesses; Trial committee members, the collegial panel are and a judge alone, to participate in the activities of trial court clerks, interpreters and expert witnesses.#p#分页标题#e#
5, withdrawal program
(1) to avoid is put forward
The judicial personnel voluntarily withdraw, can put forward oral or written, explain the reasons, and put on record. The parties and their legal representatives to the judicial personnel to accept the parties and their principal gift-giving, in violation of regulations meet with the parties and entrusted human reason or meet other legal withdrawal application apply for withdrawal, shall provide the relevant testimonial material. With the situation of legal shall withdraw without recuse themselves, and the parties and their legal representatives also did not apply for withdrawal, enjoy the power, head of the case-handling organ or tissue command his withdrawal.
Avoidance of applicable for investigation, prosecution stage, China's criminal procedure law did not make clear provisions, but investigators and prosecutors in the investigation, examination and prosecution activities started, deal with the criminal suspect and the defendant party told its shall enjoy the right to apply for withdrawal.
In the trial stage, the presiding judge shall have the obligation to inform the parties of the right to apply for withdrawal, the party immediately after aware of their rights to apply for the relevant personnel to avoid. Applies to the procedure of first instance, shall also apply to the procedure of second instance and retrial procedure and death penalty review procedure.
Whether the withdrawal application have been put forward, but avoid decision has not been made during the period, proceedings of the general should be suspended. But before a decision is made on avoidance of investigators, an investigator may not suspend investigation of a case.
(2) avoidance of review and decision
For voluntarily withdraw and apply for withdrawal, must by relevant organizations to avoid decision or head, to conform to the statutory omissions of investigators do not participate in criminal proceedings, etc. Shall examine the investigators put forward by the head of the relevant organizations or "required" and "application" put forward by the parties and their legal representatives in compliance with statutory avoidance situation, and then make a decision of approval to avoid or in accordance with the law in accordance with the decision to be rejected.
For instructions to avoid, the decision of the organization or department head need to take the initiative to review, once found legally should avoid situations, should make a instruction to avoid decision immediately.
China's "criminal procedural law" stipulated in article 30: judge, procurator or investigator who avoided, respectively, by the people's court, the prosecutor and the public security organs, head of decision; Court of the withdrawal by the judicial committee decision; The attorney general and head of the public security organ to avoid is determined by the procuratorial committee of the people's procuratorate at the same level; Avoid clerks, expert witnesses and interpreters, decided by the head of the investigation organ in investigation phase, the examination and prosecution stage is determined by the attorney general, in the trial phase of a people's court decision.#p#分页标题#e#
There is no specific provision in the criminal procedure law of our country and judicial committee members of the procuratorial committee to avoid program problem. But in practice, the procuratorial committee member of avoidance shall be decided by the attorney general, submitted to the procuratorial committee to discuss, but the members should not join any discussion; Avoid trial committee members, should be submitted by the President of a discussion and decision, the judicial committee members also participate in discussion.
(3) avoidance of reconsideration
The people's court, people's procuratorates and the public security organs in addressing the problem of whether should be avoided, can adopt the form of the "decision", can make oral, can also be written. The general is once made, it has legal effect. But the parties and their legal representative is not satisfied with the rejected a withdrawal application decision, may apply for reconsideration once.
Have the right to decision has been made to reject his application for withdrawal is original to make the decision on reconsideration of relevant organizations and individuals. The final result for reconsideration, relevant organizations or individuals shall inform the application for reconsideration of the parties and their legal representatives.
(4) avoidance of relief
Found the people's court of second instance or report according to the parties and their agents AD litem, defenders, think of the people's court of first instance trial violate recuse themselves and apply for withdrawal of the relevant provisions of, after verification are correct, it shall rule to cancel the original judgment, back to the people's court which originally tried the case to trial. The judges know has voluntarily withdraw and apply for withdrawal, deliberately not recuse themselves in accordance with the law or meet the conditions for avoiding application intentionally don't make a decision on withdrawal, should be handled in accordance with the regulations.
(2) the challenge system of function and meaning
1, to get objective and fair treatment for the criminal case to provide the system guarantee of the basic
Challenge system strictly, has a stake in to the case or other special relationship to the relevant personnel to exit the litigation process, conducive to the fair and reasonable to deal with the case, avoid the happening of criminal miscarriage.
2, common respect for law enforcement by the parties, and further improve the efficiency of criminal proceedings
The challenge system is helpful to eliminate the distrust of the judiciary, enhance its respect for the judicial process and the judgement, thus reducing unnecessary appeals and complaints, improve the efficiency of lawsuit.
3, to respect and safeguard the legitimate rights and interests of criminal litigant, embody the democracy of criminal proceedings in our country#p#分页标题#e#
The parties and their legal representatives shall enjoy the right of way, the related judicial staff can be conditional. So that to improve the legal consciousness of citizen participation in criminal proceedings, to maintain their legal rights, improve the transparency of the handling work, promotes the development of democracy in our country under the rule of law.
II, the development of China's criminal challenge system process
(1) the evolution of ancient Chinese challenge system
1, the emergence of the spring and autumn period and the warring states period statutes laid the groundwork for the formation of the challenge system.
2, the han dynasty period, in order to strengthen centralization and strict rules on officials' appointment system: "the kingdom shall not enemies", "the king's brother is unfavorable for Dan" [3]. Embodied in three aspects: one is the imperial clan must avoid near the capital of henan, Hanoi and hedong three county high rank; Consorts shy away from the high rank in the capital. 2 it is prescribed fief my wife shall not be in the capital, vassal states of the position appointed by the central, but not get jingshi, appointment, other subjects are avoided in the capital. Three is a regulation countries keep from county, the county magistrate, cheng and his lieutenant officer, are not allowed to use in this county. [4] but these regulations only on official employment challenge system, mainly is suitable for the administrative personnel system.
3, the challenge system of the tang dynasty in the official appointment has to be more perfect, more important is the challenge system in the sense of criminal lawsuit. Relatives to avoid duties continue to increase, especially for the position of special nature, such as monitoring, inspection officer and with department officer three, every home and the above relationship may not be in the same sector, avoid joint relationship, in case of cheating in the forum. [5] for the perfection of legal system in the tang dynasty played a certain role. At the same time in order to prevent officials from people intentionally by kinship, "tang six standard" for the first time in the form of a code of rules on the judicial officials' challenge system, called a "push" system. Its rules: every governor and the bow bow with relatives revenge too, all listen to more. The "close", "WuFu in law, that is, have above the house of marriage, and by the industry division by in this area, the secretariat, the magistrate, and assist in mansion, all with the push for". [6] that is all to the case of judge have a certain interest relationship with the parties concerned, to change "push".
4, the challenge system of song dynasty has reached a fairly detailed and complete. On avoiding applicable situation, in addition to several avoidance circumstances prescribed in the tang dynasty, also stipulates "poor shao should push, ask officer, except the same subjects and in accordance with the RMB orders to avoid, the person shall not be more different subjects in the same year resigned to avoid". At the same time avoid relationship between higher and lower and the same case after the judge with former judge officials have close relationship also should avoid. In avoiding appeared on the way to avoid and command to avoid two kinds of situations. To avoid object also increased the appraiser to avoid, and should be avoided and not shy away from the official rules on the principle of punishment. This is part of a big progress of ancient challenge system.#p#分页标题#e#
5, after the yuan dynasty, to specify the rules of the challenge system gradually. History of the yuan. Criminal in criminal law. To appointment on "regulation:" hearing, the official is to have a close and the house of marriage and have been trained with the enemy too, should be avoided and not avoiders, each with its made by it." This is the first time in our country in the "criminal law" to use the word "avoidance". [7] in addition, the yuan dynasty also stipulates the judicial officials shall not judge previously reported themselves. Visible has been relatively complete withdrawal system in yuan dynasty, the criminal justice system has gained great development.
6, the rules of the challenge system of official of Ming dynasty is very strict. "Big law. Criminal law. Litigation" regulation: "every official in the litigants, close to have a close, and the house of marriage, if the industry division, and the old enemy too, and listen to avoid moving. Offenders, and reach forty. If there is increase or decrease in sin, theory to reason out people sin." [was] can be seen, of official of Ming dynasty should be avoided and not avoid situations should be convicted and punished. The challenge system has developed more scientific and reasonable.
7, the qing dynasty inherited and developed the generations of lawsuit withdrawal system, more careful and strict. Relative to avoid blood and in-laws divides into two kinds of situations. Cases according to the qing reign "volume 84" official department action byelaw "regulation, : consanguinity within a scope is limited to" Sun Zufu uncles brothers ", consanguinity with and different grandfather's distant cousin can not be restricted by avoiding. The in-laws is divided into "the genus" and "isolation is a" two categories. Thirty-ninth year qianlong imperial edict pointed out: "inside and outside the in-laws, in addition to this genus are still remains the same to avoid, its belong to avoid the case, the ministry shall be completed." According to the imperial edict, the official department "belongs to the in-laws, beyond withdraw." While addressing the avoidance of the friends, teachers and students and pioneered [pet-name ruby] "staffs" forms to avoid regulation. Qing dynasty such a specific provisions to ensure the feasibility of lawsuit withdrawal system.
(2) the advantage of the ancient criminal challenge system in China
1, the avoidance of the provisions of the applicable situation is more detailed and comprehensive
Dynasties in history, detailed lists the situation of application of avoidance and the characteristics of diversification, to prevent the avoidance and not shy away from, and could not be in accordance with the emergence of the phenomenon.
2, clear to avoid responsibility rules
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In violation of the challenge system personnel set up corresponding charges and the way of severe punishment, to guarantee the normal operation of the challenge system has played an important role.
(3) the disadvantages of criminal challenge system in ancient China and its influence
Ancient challenge system regulation is very detailed, but at the time of execution because ancient for nepotism special attention, therefore avoiding system mainly is above the office of the officials, and the rules of the challenge system of criminal trial because officials have too much power, just become a mere formality, the criminal challenge system for modern criminal had a profound impact.
III, foreign criminal challenge system evaluation
(1) avoidance of object
In the United States, any criminal proceedings, the defendant has the right to a jury trial of justice. And for the candidate of jurors review in advance, for avoiding and forced to avoid (peremptory challenges), is a means to ensure the impartiality of the main program. (attending) the American federal criminal procedure rules stipulated in article 24: "(a) the court may allow the defendant or their lawyers and government prosecutors to review of jurors' names, the court itself can also review. (b) if the high amount of charges can be sentenced to death, the parties have the right to 20 times without choosing." As the sixth amendment requires an impartial jury, amendment "due process" clause also requires an unbiased judge, especially in (a jury) the case of a judge. Therefore, in addition to the jury, the judge in the United States is usually due to violation of the "due process" clause withdrawal has been applied for (such as economic interests or other personal relationship with the case and be avoided). The judge in the United States due to violation of the "due process" withdrawal has been applied for, but not shy away from the center of gravity. [11]
While Germany's criminal prosecution to avoid object mainly is the judge. "Germany's criminal procedural law" article 22, article 24 the avoidance of the judge; "The judges can be set in accordance with the reason to avoid and rejected due to the specter of favoritism". [12] article 31 the provisions of the secretariat to the court clerk, and the record of production personnel to avoid; Article 74 the avoidance expert witnesses. [13] can be seen, the civil law countries avoid object scope is far greater than common law countries.
The United States and Germany on avoidance object to define the scope of the different is mainly related to their own legal system. The jury in the United States in a very important position, which is the symbol of judicial justice and fairness. And the judge in a criminal trial for criminal review, only in a negative, neutral position, not active intervention trial process, a jury trial, after the jury about the facts in a referee guilty, the judge to have the opportunity to play to the function on the applicable law. If the jury cutting the defendant in fact not guilty, then the court must immediately release the defendant. Is the duties of a judge directed the jury to the relevant laws, the jury duty is to take the law applicable to their recognition of the fact. This limits the powers of a judge, so the judge not to avoid the main using objects. Second, most of us judge a lawyer, has a law degree and the experience of practicing lawyers is to become a judge the general eligibility requirements. Present as a result, the United States of the judge class elite, authority and honor characteristics, naturally led to the people to judge the impartial disposition believer. Litigants sceptical, mainly from the jury of ordinary people. And the main use of criminal challenge system object is the jurors. While Germany to avoid the object scope of far more than the United States, this is the advantage of avoiding system in Germany. Is worth using for reference.#p#分页标题#e#
(2) avoidance of reason
The avoidance of jurors are mostly "from" and "peremptory challenges". And the civil law countries such as Germany, carrying out the "from".
1, about the close relationship.
The United States and Germany for the definition of "family" is different, but the basic is relatively wide, including at least "by blood within three degree" and "within the second degree in-laws".
2, the provisions of the "interest"
The civil law countries such as Germany to "interested" have detailed provisions. The German criminal procedure code article 22, article 23, also to avoid reason clear list one by one. German judge and jury, which we have for avoidance.
The German code of criminal procedure stipulated in article 31: "in this chapter, the third chapter, the court clerk avoidance in accordance with the law, the court clerk refused to) the provisions of the corresponding applicable to the jury, the court secretariat of officer and other hiring record of production personnel." [14]
3, "based on the procedural law to avoid" problem
Avoidance based on procedural law refers to a specific subject based on the procedural law of reason, out of litigation activities [15]. It includes two kinds of circumstances: one kind is any judge, procurator or investigator who worked as a case of the witnesses and expert witnesses, the agent or the relevant departments of the parties, the defenders and so on. The other is a relevant subject in involved in the case of litigation activities, shall not participate in the case of other procedure.
Common law countries to avoid use peremptory challenges more form of jurors, this has eliminated the burden of proof of the parties, the parties to exercise the right to apply for withdrawal conveviently. Germany based on the "close relationship" and "concern" the provisions of the "relationship between the procedural law" to avoid basically covers the main reason why the avoid happen. Define the content of the is very specific, comprehensive, more easy to operate, is well worth our using for reference.
(3) avoidance of program
1, avoid start time
In the United States, to aim at the jurors whether there exists a review, allowed to adopt the method of extended appropriately question time, when the jury trial to determine down, call to ask a group of jurors is going to be, that is to "tell the truth", at that time, both parties can select jurors, criminal right to apply for withdrawal of the jurors. [16]
Germany is set to a judge refused to last moment: a. the first defendant individual situation to interrogation before and in appealed and appeals process, before the reporter began to report, to allow for bias, and the trial judge rejected. B. For the moment, only in the following cases, allowed to judge rejected: it is based on which the proposed refused to appear later or just to the right holder is known, and the obligee does not delay is proposed to refuse. After the final statement, the defendant is not allowed to judge rejected.#p#分页标题#e#
"Tell the truth" program in the United States, namely the jurors before the inauguration, the victim, defence lawyers, the prosecutor or the judge can ask about it, and would like to ask you "do you know this case the defendant lawyer or any party". This will help the parties find jurors should avoid situations, make better peremptory challenges right. In the civil law countries, the provisions of the German more comprehensive and perfect, set different avoidance rev. Stop time, also provides for special cases, apply for withdrawal deadline, more maneuverability.
The main body of 2, start to avoid
The main body of the United States started to avoid the prosecuting and defending parties in mainly by the parties, lawyers and judges.
According to the criminal procedure law in Germany, the German people's procuratorate, private prosecutor and the accused person, have the right to be informed to participate in the referee's court staff name, application refused to judge, as the main body of start to avoid. But it does not lawyers may subject can be started.
3, around the way start
The review jury selection in the form of "to speak the truth" to start the withdrawal program. Peremptory challenges the jurors is administrative, that is, the heavier charges, allow it, and the more the number of peremptory challenges American judges recuse themselves to avoid two starting ways and application. [17]
In Germany, refused to be put forward to judge belongs to court the judge the amount of application, the application is successful, and has been applied for court shall rule to the judge. Was put forward to judge should refuse to reason internal comment, but I don't participate in to the application for ruling.
The provisions of the two countries contribute to avoid decision in an objective and fair, the present challenge system be used for reference to our country.
The effectiveness of the 4, withdrawal
Court in the United States, when the withdrawal and lead to one or several jurors were lifted, whether in the trial, or leaves the review stage, the court can be decided by the jury of less than 12 to make effective decision. In Germany, different avoidance object, start to avoid program effectiveness is different also.
Avoid the start has binding constraint on the related personnel and department authority, the person whose withdrawal has been applied for must immediately stop the lawsuit behavior or loss of qualifications to participate in the trial.
(4) avoidance of relief
The United States is not set up relief way, that is, to apply for withdrawal of the ruling can only accept, but not published opinions and statement on the ruling reason, this is obviously biased. While Germany choose to discriminate, to declare refused to apply proper ruled that shall not be required to cancel changes; To refuse to apply for as not allowed, no reason for rejection of defy, granted immediately challenged. The trial judge ruled that the design, for it will only require revoked, change along with the verdict, if an irrevocable decision, is not satisfied with the rejection of the application cannot be stated. Such a relief pattern more perfect and reasonable, both to maintain the ruling and the stability of a withdrawal application, and applicant through impeached further realize their right to apply for withdrawal, realized the avoidance of the right of relief. Worth the challenge system in our country.#p#分页标题#e#
IV, present situation and reason of criminal challenge system in our country
(1) the status quo of criminal challenge system in our country
Based on the investigation to the practice of the criminal lawsuit of our country, our country's criminal challenge system implementation is not ideal. In fact many court for more than ten years without a case shall practise a system of avoidance. May say that our current criminal challenge system although seemingly have status, but in fact the implementation of the system is only become a mere formality, its implementation completely deviated from the original intention of making criminal challenge system.
1, the legislative defects of criminal challenge system in our country
Challenge system in the criminal procedure law of our country's legislation regulation more rough, principle, program setting is unreasonable, the lack of operability, there are many needs to improve and perfect place, basically has the following several aspects:
(1) avoidance of applicable object is too narrow
Our country legislation applies only to "open" object to avoid, such as investigators, such as the judges and the court clerk. But for "behind the scenes" to avoid problems of regulation and oversight.
A supervisory committee was not included in avoidance object, [18] just follow the convention in practice, but not conducive to the parties exercise their powers. Because of the procuratorial committee for major cases to discuss the decision, and the parties have no right to apply for withdrawal, the procuratorial committee clearly goes against the practice of avoiding system.
2 it is to list all executives did not avoid the object. [19] execution is an integral part of the judicial process, if the main content of the executives there shall withdraw and not shy away from, is bound to affect the specific rights and interests of the parties.
(2) to avoid too principled reason of regulation
One is interested in avoiding reason too general, fuzzy and other relations. This is not easy to master, in the judicial practice to the practice of challenge system has caused some difficulties.
The second is the scope of "close relatives" too narrow. China is a country with a very valued relationships, in this respect, should expand the scope of close relative definition, to better safeguard judicial justice in practice.
Three is the legal of avoidance is only for avoiding, law is not peremptory challenges. This increased the obligations of the parties, which is unfavorable for the exercise of withdrawal right.
(3) avoidance of program set is not reasonable
One is to avoid the term is not clear. Although the law shall withdraw time made general provisions, such as: "the investigators, prosecutors, judges the withdrawal of should be in it knows or should know oneself have withdrawal application situation of the application." But for the concrete should be within a few days to apply and should be within a few days to make the decision whether to avoid did not make specific requirements for this to bring great difficulty in judicial practice, for the processing of the judiciary also has certain influence.#p#分页标题#e#
2 it is to should avoid the judicial personnel before did not shy away from the effectiveness of the lawsuit behavior confirm the problem without rules. Because the investigators must continue to carry out investigation before has not been decided to avoid activities, so for the behavior will affect the impartiality of case treatment, did not mention the law.
Three is in violation of the provisions of avoid the legal responsibility and punishment of the judicial personnel did not make clear rules. In ancient China in violation of the stipulations of withdrawal system of official with clear charges and harsh penalties. But now our country law has not on violators of criminal responsibility, in violation of the phenomenon of the current challenge system is more and more serious, but not limited and punishment.
Four is the extension of the statute of limitations caused by the to avoid problems. For failing to regulation, resulting in the judicial practice, for fear of more than the statute of limitations lead to challenge system generally does not apply.
(4) to avoid incomplete relief measures
For the person whose withdrawal has been decided our country stipulated the right to apply for review, it is not reasonable. Also its if you have any objection to the parties and their legal representatives rules, shall court reconsideration request, this is quite unfavorable for reconsideration, extremely easy to conflict in the court, and easy to influence the outcome of the reconsideration.
2, execution of criminal challenge system in our country
(1) to avoid the decision shall be exercised on his behalf
There exist in practice to avoid the decision by the organ shall be exercised on his behalf, head of the situation, such as: director decided cases within the authority to undertake personnel is avoided; The presiding judge to determine whether members of the collegial panel to avoid and so on. Therefore the implementation of criminal challenge system and law, there are a great distance.
(2) the parties can not fully exercise the withdrawal right
In the judicial practice, a party is unlikely to investigators and in case the parties know a lot and the relationship of the case, so in this case the withdrawal right of the parties often because of the knowledge is difficult to fully exercise.
(3) investigators recuse themselves can't strictly abide by the laws and regulations
In criminal cases, case undertaker who voluntarily withdraw the case is not rare. This and the professional quality of judicial personnel and law enforcement idea has a lot to do. At the same time, the cases tend to be influenced by the social bad style, "the people" to help the parties to handle affairs, the people with legal withdrawal application tend not to recuse themselves, so not conducive to the protection of the rights and the maintenance of judicial justice.#p#分页标题#e#
(4) for the rights of criminal to avoid told too little content, time is too short.
Though legal provisions in China: "open a court session, the presiding judge shall inform the parties have the right to the collegial panel are" withdrawal, the court clerk, the public prosecutor and translators applied for, but not detailing the content over rights to the party concerned and their related specific identity, because they don't understand the exercise of the right, the general fear of trial, choose not to exercise the right to avoid.
(5) in a second trial, the parties the right to apply for withdrawal in the death penalty review procedure is empty
According to the law in our country, second trial can take written trial and trial in two ways. But in practice, most criminal cases with the method of the court, in the death penalty review procedure, generally USES the written examination way, also don't summon the parties and other parties to the lawsuit, no trial. So don't tell party its withdrawal right, therefore, in these two stages to avoid right is neglected, it's safe to say that there is no.
(2) the cause of the current situation of the criminal challenge system in China
1, the causes of the current situation of the legislation in China is the development of the legal system of our country is not yet mature, the legislation is not comprehensive, and the formulation, the speed of change in the law can not keep up with the speed of social development, the law is too lag, cause could not be in accordance with the situation.
2, the cause of the current situation of the execution in China is our country the judicial personnel quality is not high, the understanding of the law is not fully in line with the law, and at the discretion of the judge is too big, cause to perform on the same case has different results.
V, the perfect way of criminal challenge system in our country
According to the analysis above, the legislation of criminal challenge system in China still has many problems. But the United States and Germany's criminal challenge system has developed to the point of a more perfect, very worth our using for reference. Summarized as the following aspects:
(1) for reference for legislation of foreign criminal challenge system
1, for the improvement of the legislation mode
Our country's criminal procedure law, though still in practice, but because of its overall lack of time, has apparently unable to meet the requirements of the development of society and economy in China, as a result, the supreme people's court and the supreme people's procuratorate have issued a lot about withdrawal system of judicial interpretation, but the judicial interpretation is too complex, some even or violate basic principles of the criminal procedure law, so the rules of the challenge system and implementation in our country is quite a mess.#p#分页标题#e#
Our country at present the most main task is carried out on the criminal procedure law related to nap, and to develop a complete and comprehensive criminal procedure law and the criminal procedure law from the legislative especially neglected challenge system was perfected. At the same time, the legislature should be clear division of labor, to challenge system, its main applicable object is the staff of the judicial and procuratorial organs, therefore shall be formulated by the Supreme Court and the procuratorate to avoid the related judicial interpretation is unreasonable, so that they will break through the limitations of its own. Only solve the problem above challenge system in criminal legislation and the practice of challenge system in our country can have a new start.
2, the content of the reference to foreign legislation
According to the analysis of the challenge system in the United States and Germany in the legislation, first of all, the regulation of our country on avoiding objects are not enough comprehensive, many should be applied to avoid object has not been clearly stipulated in the law. Legislation in China should not be a specific aspects as the main avoid applicable objects, while ignoring other objects. Should focus on the judge's avoidance rules, both is applicable to avoid other objects.
Second on the avoidance of reason first should increase the provisions of the peremptory challenges, because only have from existing in our country, and put the burden of proof entirely upon the parties, it is not reasonable. Provisions of peremptory challenges more conducive to protect the withdrawal right of the parties and the judicial justice, improve the overall efficiency of lawsuit. At the same time for "interest", "close relatives" and "other relations" should expand the scope of the regulations and specific and explicit, such ability is more easy to operate and implement.
Again is to avoid the improvement of the program, according to the regulation of the United States and Germany, should expand the main body in avoidance of start, true to the parties and their agents and defendants right to apply for withdrawal, the right to implement. Apply and clear, avoiding the limit of time and make the better exercise their rights. Also improve the content and the obligation, to make the judicial personnel will be told to avoid program as a duty, and then implement, make a second trial and to avoid the death penalty review procedure of not be fause, really do to maintain the rights of citizens. [20] censorship beforehand and learning about the United States, the related judicial personnel qualifications related to the case review, to nip in the bud.
The final challenge system is to strengthen the relief measures and legal responsibility. Should learn from Germany's remedies, carries on the distinction between, according to the specific situation can decide whether to appeal, and make clear stipulation. Set the supervisory organ at the same time, supervision and decide whether to conform to the provisions of the challenge system. For should avoid rather than to avoid the legal responsibility shall conduct strict law, a severe punishment for violators, so as to eliminate influence of justice by not avoid phenomenon.#p#分页标题#e#
(2) of the Chinese criminal challenge system on the improvement of the environment
Criminal challenge system in China in addition to the problems in the legislation, and implement the environment problems. For a lot but it is not a real law so avoid regulation, in fact is the implementation of an environmental problem.
Form of our country's criminal system environment, the first is the judicial personnel. At present, the judicial personnel's quality is generally not high, which leads to the practice of law is not in place. Understanding of the law is not comprehensive, lack of basic knowledge of law, they will make the real practice of law. So to cultivate and strengthen the quality of judicial personnel, only has the legal power of people grow up, to safeguard the legitimate rights and interests of citizens.
The second is the citizen's legal consciousness. Apply for withdrawal is one of the important ways of avoiding system startup, if citizens from the beginning, it is not clear their rights and how to implement? In reality a lot of all don't know if I have to avoid right, the parties that the judge told the rights, because not informed but not exercise their rights. This is bad for the maintenance of civil rights and judicial fairness. Therefore shall conduct the franco-prussian education, is not only the provisions of the criminal law is quite necessary to the popularization of criminal procedure, the only truly improve the citizen's legal quality and legal awareness, to develop into a higher level of socialist legal system in China society.
[1] the criminal procedure law, Peking University press, higher education press, 2008), p. 122
[2] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition 2005, pp. 169-168
[3] cheng-you li, xin-min, the challenge system in the history of supplement in the archives of heaven and earth 1998
[4] YanWei, personnel challenge system in our country's historical evolution, liaoning administrative college journal, 2007
[5] "the ancient officials who challenge system and the modern enlightenment", journal of chengdu municipal party committee party school in 2010
[6] "Chinese legal tutorial", law press, 1998
[7] yong-hong zhao, the lawsuit withdrawal system in ancient China, lies in the "journal of the central management cadre institute of politics and law in 2000
[8] yong-hong zhao, the lawsuit withdrawal system in ancient China, lies in the "journal of the central management cadre institute of politics and law in 2000
[9] "ersion qing reign case" volume 97 "official department disciplinary cases. Hail) scrutiny"
[10]Attending Zhang Pinze, the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004#p#分页标题#e#
[11] Zhang Pinze, the comparative study of foreign criminal challenge system, in the study of comparative law, 2004
[12] [DE] g routh. Rocco faith, the criminal procedure law law press, 2003), pp. 53-54
[13] Li Changke translation, the German criminal procedure code, China university of political science and law press, 1995. 8 pages, page 21
[14] Zhang Pinze, the comparative study of foreign criminal challenge system, in the study of comparative law, 2004
[15] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition, 2005, p. 179
[16] Zhang Pinze, the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004
[17] the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004
[18] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition 2005, pp. 191-190
[19] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition, 2005, p. 191
[20] jing-cun xu, "criminal procedural law" (on), law press, 1998), p. 121
刑事诉讼中的回避制度即刑事回避制度，是指侦查人员、检察人员和审判人员，因案件的当事人具有某种利害关系或其他特殊关系，可能影响刑事案件的公正处理，而不得参加对该案进行的诉讼活动的一项诉讼制度。
回避制度是现代各国刑事诉讼法普遍确立的诉讼制度。刑事回避制度是基于西方的诉讼理论“自然公正”原则，即要求任何人不得担任自己为当事人的案件的裁判者，否则由他主持进行的诉讼活动不具备法律效力。 根据这一原则，回避制度的确立目的在于使侦查人员、检察人员及审判人员在诉讼中保持中立，公平对待当事人及处理案件。
回避制度是现代各国刑事诉讼法普遍确立的诉讼制度。刑事回避制度是基于西方的诉讼理论“自然公正”原则，即要求任何人不得担任自己为当事人的案件的裁判者，否则由他主持进行的诉讼活动不具备法律效力。 根据这一原则，回避制度的确立目的在于使侦查人员、检察人员及审判人员在诉讼中保持中立，公平对待当事人及处理案件。
Occupies an important place in the criminal challenge system in criminal proceedings, is placed in the important position in the criminal procedure law. In the legislation and practice, however, there are a lot of defects and the insufficiency. This article through to our country criminal challenge system and foreign withdrawal system analysis and contrast, find the crux of the criminal challenge system defects in our country, to better improve our criminal lawsuit system, better uphold human rights and the justice of law.
I, overview of withdrawal system
(1) the basic theory of withdrawal system
The concept of 1, withdrawal
Avoidance system, in which the criminal challenge system in criminal lawsuit, refers to the investigators, prosecutors and judges, in case the parties have some interests or other special relationship that may affect the impartiality of the criminal case processing, and shall not engage in litigation activities for the case of a lawsuit system.
Challenge system is the modern criminal procedure law from all over the world universal establishment of lawsuit system. Criminal challenge system is based on the theory of western suit "natural justice" principle, which requires anyone shall not act as the judge in the oneself for the case of the parties, or by his lawsuit does not have legal effect. [1] according to this principle, the establishment of the challenge system is designed to make investigators and prosecutors and judges in the lawsuit to be neutral, fair treatment of the parties and handling the case.
2, avoidance of species
Based on the theory of procedural law, avoidance can be classified according to different standards.
(1) according to the way of different can be divided into apply for withdrawal, voluntarily withdraw and instructions to avoid.#p#分页标题#e#
(1) to avoid: refers to the judge, procurator or investigator who met in the process of litigation, such as legal avoidance, active request out of the system of criminal lawsuit activity. The practice of this system mainly by the judicial staff professional ethics and self-discipline consciousness. To eliminate the factors of obstruction of justice.
(2) apply for withdrawal: refers to the case of the parties and their agents think any judge, procurator or investigator who legally avoid situations, such as apply to their administration, ask them to withdraw. This is one of the parties and their agents AD litem important litigation rights. Public security judicial organs have a duty to ensure the parties and their legal representatives to fully exercise the rights effectively. So the criminal suspect or the defendant have shied away from right.
(3) instruction to avoid: refers to the judge, procurator or investigator who meet the statutory avoid situations without recuse themselves, the parties and their legal representatives also did not apply for withdrawal, courts, prosecutors, the public security organs and other relevant organizations or the administrator shall have the right to make a decision, make its exit litigation activities. Instructions to avoid is a necessary complement to voluntarily withdraw and apply for withdrawal.
(2) according to whether you need apply for withdrawal made for divided into because of avoiding and peremptory challenges.
From (1) : refers to the litigation participants have to avoid right only in the case with legal cases, avoid reason, to request the relevant judicial staff to avoid application.
(2) the peremptory challenges: refers to the parties have avoided right don't need to come up with any reason, can request relevant judicial staff to avoid.
(3) according to avoid objects into the judges to avoid, the prosecutor avoiding, investigators avoidance, jurors avoid, expert witnesses and avoidance of clerks, interpreters, etc.
(4) according to the expression can be divided into oral and written.
(5) according to shy away from the object of avoiding responsibilities are divided into the officials and the officials of the avoidance.
(6) in a case of private prosecution in accordance with the nature of the applicable cases are divided into avoiding, avoidance and incidental civil cases in the case of public prosecution, avoid.
In (7) in accordance with the procedure can be divided into simple procedure to avoid and ordinary procedure to avoid.
(8), according to a different application methods can be divided into the avoidance of the prosecution of avoidance and the defense applications. [2]
3, avoidance of reason
Avoiding reason refers to the implementation of the law explicitly avoid essential basis in fact. Can be used as the judicial personnel to avoid according to situation, mainly is the judicial personnel or the parties to the case there is some concern or other relationship, that the case is difficult to get a fair treatment. China's "criminal procedural law" article 28 to avoid reasons made clear provisions.#p#分页标题#e#
(1) is the close relatives of the party or the parties to the case.
If any judge, procurator or investigator who is itself such as in the case of a criminal suspect or defendant, the victim or other parties concerned, so they may be from the perspective of maintaining their own interests litigation activities, too fast to make the parties was treated fairly, also has effect on the handling of the case can fair and objective. In this case, even if the judicial personnel does not affect the impartiality of the case, also will be affected by the parties and even social suspicion. The person close relatives refers to the range of the "husband and wife, father, mother, son, female, and brothers and sisters".
(2) himself or his close relative has a stake in the case.
With the situation of the judicial personnel shall withdraw.
(3) served as the case of the witnesses and expert witnesses, defender or agent AD litem.
This case, the judicial personnel may cause preconceptions in the case of prognosis, but can't calm and objectively deal with the case, also should avoid.
(4) with this case the parties have other relationships, may affect the fair treatment.
Trial procuratorial or investigators if with the cases of the relationship, other than the above three kinds of situations to bring justice to the case processing, also should avoid.
(5) any judge, procurator or investigator who accept the parties and their clients such as gift-giving, in violation of regulations meet with the parties and their clients.
Violation of the provisions, they shall withdraw.
(6) participated in the case, the investigation of their personnel if transferred to the people's procuratorate or the people's court, may not serve as the case
Prosecutors and judges; The people's court which originally tried the case for retrial case, shall form a collegial separately
Court, in accordance with the procedure of first instance; The people's court shall, in accordance with the procedure for trial supervision retrial case, shall form a new collegial panel.
4, avoid personnel's scope
Scope refers to the person whose withdrawal in the case of the law defined the scope of the judicial personnel shall withdraw. Only belongs to the scope of the staff can recuse themselves, or by the parties to apply for withdrawal, avoidance or instructions.
Combined with the related law and judicial interpretation, it is suitable for the person whose withdrawal basically has: investigators, prosecutors, judges, and to participate in the investigation, prosecution, trial activities of clerks, interpreters and expert witnesses.
Specific include, head of the public security organ, investigators, to participate in the activities of investigation of the recorder, interpreters and expert witnesses. Attorney general, examination committee members and other inspectors, to participate in the prosecution activity's clerk, the judicial police and the people's procurator to hire or assign interpreters, expert witnesses; Trial committee members, the collegial panel are and a judge alone, to participate in the activities of trial court clerks, interpreters and expert witnesses.#p#分页标题#e#
5, withdrawal program
(1) to avoid is put forward
The judicial personnel voluntarily withdraw, can put forward oral or written, explain the reasons, and put on record. The parties and their legal representatives to the judicial personnel to accept the parties and their principal gift-giving, in violation of regulations meet with the parties and entrusted human reason or meet other legal withdrawal application apply for withdrawal, shall provide the relevant testimonial material. With the situation of legal shall withdraw without recuse themselves, and the parties and their legal representatives also did not apply for withdrawal, enjoy the power, head of the case-handling organ or tissue command his withdrawal.
Avoidance of applicable for investigation, prosecution stage, China's criminal procedure law did not make clear provisions, but investigators and prosecutors in the investigation, examination and prosecution activities started, deal with the criminal suspect and the defendant party told its shall enjoy the right to apply for withdrawal.
In the trial stage, the presiding judge shall have the obligation to inform the parties of the right to apply for withdrawal, the party immediately after aware of their rights to apply for the relevant personnel to avoid. Applies to the procedure of first instance, shall also apply to the procedure of second instance and retrial procedure and death penalty review procedure.
Whether the withdrawal application have been put forward, but avoid decision has not been made during the period, proceedings of the general should be suspended. But before a decision is made on avoidance of investigators, an investigator may not suspend investigation of a case.
(2) avoidance of review and decision
For voluntarily withdraw and apply for withdrawal, must by relevant organizations to avoid decision or head, to conform to the statutory omissions of investigators do not participate in criminal proceedings, etc. Shall examine the investigators put forward by the head of the relevant organizations or "required" and "application" put forward by the parties and their legal representatives in compliance with statutory avoidance situation, and then make a decision of approval to avoid or in accordance with the law in accordance with the decision to be rejected.
For instructions to avoid, the decision of the organization or department head need to take the initiative to review, once found legally should avoid situations, should make a instruction to avoid decision immediately.
China's "criminal procedural law" stipulated in article 30: judge, procurator or investigator who avoided, respectively, by the people's court, the prosecutor and the public security organs, head of decision; Court of the withdrawal by the judicial committee decision; The attorney general and head of the public security organ to avoid is determined by the procuratorial committee of the people's procuratorate at the same level; Avoid clerks, expert witnesses and interpreters, decided by the head of the investigation organ in investigation phase, the examination and prosecution stage is determined by the attorney general, in the trial phase of a people's court decision.#p#分页标题#e#
There is no specific provision in the criminal procedure law of our country and judicial committee members of the procuratorial committee to avoid program problem. But in practice, the procuratorial committee member of avoidance shall be decided by the attorney general, submitted to the procuratorial committee to discuss, but the members should not join any discussion; Avoid trial committee members, should be submitted by the President of a discussion and decision, the judicial committee members also participate in discussion.
(3) avoidance of reconsideration
The people's court, people's procuratorates and the public security organs in addressing the problem of whether should be avoided, can adopt the form of the "decision", can make oral, can also be written. The general is once made, it has legal effect. But the parties and their legal representative is not satisfied with the rejected a withdrawal application decision, may apply for reconsideration once.
Have the right to decision has been made to reject his application for withdrawal is original to make the decision on reconsideration of relevant organizations and individuals. The final result for reconsideration, relevant organizations or individuals shall inform the application for reconsideration of the parties and their legal representatives.
(4) avoidance of relief
Found the people's court of second instance or report according to the parties and their agents AD litem, defenders, think of the people's court of first instance trial violate recuse themselves and apply for withdrawal of the relevant provisions of, after verification are correct, it shall rule to cancel the original judgment, back to the people's court which originally tried the case to trial. The judges know has voluntarily withdraw and apply for withdrawal, deliberately not recuse themselves in accordance with the law or meet the conditions for avoiding application intentionally don't make a decision on withdrawal, should be handled in accordance with the regulations.
(2) the challenge system of function and meaning
1, to get objective and fair treatment for the criminal case to provide the system guarantee of the basic
Challenge system strictly, has a stake in to the case or other special relationship to the relevant personnel to exit the litigation process, conducive to the fair and reasonable to deal with the case, avoid the happening of criminal miscarriage.
2, common respect for law enforcement by the parties, and further improve the efficiency of criminal proceedings
The challenge system is helpful to eliminate the distrust of the judiciary, enhance its respect for the judicial process and the judgement, thus reducing unnecessary appeals and complaints, improve the efficiency of lawsuit.
3, to respect and safeguard the legitimate rights and interests of criminal litigant, embody the democracy of criminal proceedings in our country#p#分页标题#e#
The parties and their legal representatives shall enjoy the right of way, the related judicial staff can be conditional. So that to improve the legal consciousness of citizen participation in criminal proceedings, to maintain their legal rights, improve the transparency of the handling work, promotes the development of democracy in our country under the rule of law.
II, the development of China's criminal challenge system process
(1) the evolution of ancient Chinese challenge system
1, the emergence of the spring and autumn period and the warring states period statutes laid the groundwork for the formation of the challenge system.
2, the han dynasty period, in order to strengthen centralization and strict rules on officials' appointment system: "the kingdom shall not enemies", "the king's brother is unfavorable for Dan" [3]. Embodied in three aspects: one is the imperial clan must avoid near the capital of henan, Hanoi and hedong three county high rank; Consorts shy away from the high rank in the capital. 2 it is prescribed fief my wife shall not be in the capital, vassal states of the position appointed by the central, but not get jingshi, appointment, other subjects are avoided in the capital. Three is a regulation countries keep from county, the county magistrate, cheng and his lieutenant officer, are not allowed to use in this county. [4] but these regulations only on official employment challenge system, mainly is suitable for the administrative personnel system.
3, the challenge system of the tang dynasty in the official appointment has to be more perfect, more important is the challenge system in the sense of criminal lawsuit. Relatives to avoid duties continue to increase, especially for the position of special nature, such as monitoring, inspection officer and with department officer three, every home and the above relationship may not be in the same sector, avoid joint relationship, in case of cheating in the forum. [5] for the perfection of legal system in the tang dynasty played a certain role. At the same time in order to prevent officials from people intentionally by kinship, "tang six standard" for the first time in the form of a code of rules on the judicial officials' challenge system, called a "push" system. Its rules: every governor and the bow bow with relatives revenge too, all listen to more. The "close", "WuFu in law, that is, have above the house of marriage, and by the industry division by in this area, the secretariat, the magistrate, and assist in mansion, all with the push for". [6] that is all to the case of judge have a certain interest relationship with the parties concerned, to change "push".
4, the challenge system of song dynasty has reached a fairly detailed and complete. On avoiding applicable situation, in addition to several avoidance circumstances prescribed in the tang dynasty, also stipulates "poor shao should push, ask officer, except the same subjects and in accordance with the RMB orders to avoid, the person shall not be more different subjects in the same year resigned to avoid". At the same time avoid relationship between higher and lower and the same case after the judge with former judge officials have close relationship also should avoid. In avoiding appeared on the way to avoid and command to avoid two kinds of situations. To avoid object also increased the appraiser to avoid, and should be avoided and not shy away from the official rules on the principle of punishment. This is part of a big progress of ancient challenge system.#p#分页标题#e#
5, after the yuan dynasty, to specify the rules of the challenge system gradually. History of the yuan. Criminal in criminal law. To appointment on "regulation:" hearing, the official is to have a close and the house of marriage and have been trained with the enemy too, should be avoided and not avoiders, each with its made by it." This is the first time in our country in the "criminal law" to use the word "avoidance". [7] in addition, the yuan dynasty also stipulates the judicial officials shall not judge previously reported themselves. Visible has been relatively complete withdrawal system in yuan dynasty, the criminal justice system has gained great development.
6, the rules of the challenge system of official of Ming dynasty is very strict. "Big law. Criminal law. Litigation" regulation: "every official in the litigants, close to have a close, and the house of marriage, if the industry division, and the old enemy too, and listen to avoid moving. Offenders, and reach forty. If there is increase or decrease in sin, theory to reason out people sin." [was] can be seen, of official of Ming dynasty should be avoided and not avoid situations should be convicted and punished. The challenge system has developed more scientific and reasonable.
7, the qing dynasty inherited and developed the generations of lawsuit withdrawal system, more careful and strict. Relative to avoid blood and in-laws divides into two kinds of situations. Cases according to the qing reign "volume 84" official department action byelaw "regulation, : consanguinity within a scope is limited to" Sun Zufu uncles brothers ", consanguinity with and different grandfather's distant cousin can not be restricted by avoiding. The in-laws is divided into "the genus" and "isolation is a" two categories. Thirty-ninth year qianlong imperial edict pointed out: "inside and outside the in-laws, in addition to this genus are still remains the same to avoid, its belong to avoid the case, the ministry shall be completed." According to the imperial edict, the official department "belongs to the in-laws, beyond withdraw." While addressing the avoidance of the friends, teachers and students and pioneered [pet-name ruby] "staffs" forms to avoid regulation. Qing dynasty such a specific provisions to ensure the feasibility of lawsuit withdrawal system.
(2) the advantage of the ancient criminal challenge system in China
1, the avoidance of the provisions of the applicable situation is more detailed and comprehensive
Dynasties in history, detailed lists the situation of application of avoidance and the characteristics of diversification, to prevent the avoidance and not shy away from, and could not be in accordance with the emergence of the phenomenon.
2, clear to avoid responsibility rules
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In violation of the challenge system personnel set up corresponding charges and the way of severe punishment, to guarantee the normal operation of the challenge system has played an important role.
(3) the disadvantages of criminal challenge system in ancient China and its influence
Ancient challenge system regulation is very detailed, but at the time of execution because ancient for nepotism special attention, therefore avoiding system mainly is above the office of the officials, and the rules of the challenge system of criminal trial because officials have too much power, just become a mere formality, the criminal challenge system for modern criminal had a profound impact.
III, foreign criminal challenge system evaluation
(1) avoidance of object
In the United States, any criminal proceedings, the defendant has the right to a jury trial of justice. And for the candidate of jurors review in advance, for avoiding and forced to avoid (peremptory challenges), is a means to ensure the impartiality of the main program. (attending) the American federal criminal procedure rules stipulated in article 24: "(a) the court may allow the defendant or their lawyers and government prosecutors to review of jurors' names, the court itself can also review. (b) if the high amount of charges can be sentenced to death, the parties have the right to 20 times without choosing." As the sixth amendment requires an impartial jury, amendment "due process" clause also requires an unbiased judge, especially in (a jury) the case of a judge. Therefore, in addition to the jury, the judge in the United States is usually due to violation of the "due process" clause withdrawal has been applied for (such as economic interests or other personal relationship with the case and be avoided). The judge in the United States due to violation of the "due process" withdrawal has been applied for, but not shy away from the center of gravity. [11]
While Germany's criminal prosecution to avoid object mainly is the judge. "Germany's criminal procedural law" article 22, article 24 the avoidance of the judge; "The judges can be set in accordance with the reason to avoid and rejected due to the specter of favoritism". [12] article 31 the provisions of the secretariat to the court clerk, and the record of production personnel to avoid; Article 74 the avoidance expert witnesses. [13] can be seen, the civil law countries avoid object scope is far greater than common law countries.
The United States and Germany on avoidance object to define the scope of the different is mainly related to their own legal system. The jury in the United States in a very important position, which is the symbol of judicial justice and fairness. And the judge in a criminal trial for criminal review, only in a negative, neutral position, not active intervention trial process, a jury trial, after the jury about the facts in a referee guilty, the judge to have the opportunity to play to the function on the applicable law. If the jury cutting the defendant in fact not guilty, then the court must immediately release the defendant. Is the duties of a judge directed the jury to the relevant laws, the jury duty is to take the law applicable to their recognition of the fact. This limits the powers of a judge, so the judge not to avoid the main using objects. Second, most of us judge a lawyer, has a law degree and the experience of practicing lawyers is to become a judge the general eligibility requirements. Present as a result, the United States of the judge class elite, authority and honor characteristics, naturally led to the people to judge the impartial disposition believer. Litigants sceptical, mainly from the jury of ordinary people. And the main use of criminal challenge system object is the jurors. While Germany to avoid the object scope of far more than the United States, this is the advantage of avoiding system in Germany. Is worth using for reference.#p#分页标题#e#
(2) avoidance of reason
The avoidance of jurors are mostly "from" and "peremptory challenges". And the civil law countries such as Germany, carrying out the "from".
1, about the close relationship.
The United States and Germany for the definition of "family" is different, but the basic is relatively wide, including at least "by blood within three degree" and "within the second degree in-laws".
2, the provisions of the "interest"
The civil law countries such as Germany to "interested" have detailed provisions. The German criminal procedure code article 22, article 23, also to avoid reason clear list one by one. German judge and jury, which we have for avoidance.
The German code of criminal procedure stipulated in article 31: "in this chapter, the third chapter, the court clerk avoidance in accordance with the law, the court clerk refused to) the provisions of the corresponding applicable to the jury, the court secretariat of officer and other hiring record of production personnel." [14]
3, "based on the procedural law to avoid" problem
Avoidance based on procedural law refers to a specific subject based on the procedural law of reason, out of litigation activities [15]. It includes two kinds of circumstances: one kind is any judge, procurator or investigator who worked as a case of the witnesses and expert witnesses, the agent or the relevant departments of the parties, the defenders and so on. The other is a relevant subject in involved in the case of litigation activities, shall not participate in the case of other procedure.
Common law countries to avoid use peremptory challenges more form of jurors, this has eliminated the burden of proof of the parties, the parties to exercise the right to apply for withdrawal conveviently. Germany based on the "close relationship" and "concern" the provisions of the "relationship between the procedural law" to avoid basically covers the main reason why the avoid happen. Define the content of the is very specific, comprehensive, more easy to operate, is well worth our using for reference.
(3) avoidance of program
1, avoid start time
In the United States, to aim at the jurors whether there exists a review, allowed to adopt the method of extended appropriately question time, when the jury trial to determine down, call to ask a group of jurors is going to be, that is to "tell the truth", at that time, both parties can select jurors, criminal right to apply for withdrawal of the jurors. [16]
Germany is set to a judge refused to last moment: a. the first defendant individual situation to interrogation before and in appealed and appeals process, before the reporter began to report, to allow for bias, and the trial judge rejected. B. For the moment, only in the following cases, allowed to judge rejected: it is based on which the proposed refused to appear later or just to the right holder is known, and the obligee does not delay is proposed to refuse. After the final statement, the defendant is not allowed to judge rejected.#p#分页标题#e#
"Tell the truth" program in the United States, namely the jurors before the inauguration, the victim, defence lawyers, the prosecutor or the judge can ask about it, and would like to ask you "do you know this case the defendant lawyer or any party". This will help the parties find jurors should avoid situations, make better peremptory challenges right. In the civil law countries, the provisions of the German more comprehensive and perfect, set different avoidance rev. Stop time, also provides for special cases, apply for withdrawal deadline, more maneuverability.
The main body of 2, start to avoid
The main body of the United States started to avoid the prosecuting and defending parties in mainly by the parties, lawyers and judges.
According to the criminal procedure law in Germany, the German people's procuratorate, private prosecutor and the accused person, have the right to be informed to participate in the referee's court staff name, application refused to judge, as the main body of start to avoid. But it does not lawyers may subject can be started.
3, around the way start
The review jury selection in the form of "to speak the truth" to start the withdrawal program. Peremptory challenges the jurors is administrative, that is, the heavier charges, allow it, and the more the number of peremptory challenges American judges recuse themselves to avoid two starting ways and application. [17]
In Germany, refused to be put forward to judge belongs to court the judge the amount of application, the application is successful, and has been applied for court shall rule to the judge. Was put forward to judge should refuse to reason internal comment, but I don't participate in to the application for ruling.
The provisions of the two countries contribute to avoid decision in an objective and fair, the present challenge system be used for reference to our country.
The effectiveness of the 4, withdrawal
Court in the United States, when the withdrawal and lead to one or several jurors were lifted, whether in the trial, or leaves the review stage, the court can be decided by the jury of less than 12 to make effective decision. In Germany, different avoidance object, start to avoid program effectiveness is different also.
Avoid the start has binding constraint on the related personnel and department authority, the person whose withdrawal has been applied for must immediately stop the lawsuit behavior or loss of qualifications to participate in the trial.
(4) avoidance of relief
The United States is not set up relief way, that is, to apply for withdrawal of the ruling can only accept, but not published opinions and statement on the ruling reason, this is obviously biased. While Germany choose to discriminate, to declare refused to apply proper ruled that shall not be required to cancel changes; To refuse to apply for as not allowed, no reason for rejection of defy, granted immediately challenged. The trial judge ruled that the design, for it will only require revoked, change along with the verdict, if an irrevocable decision, is not satisfied with the rejection of the application cannot be stated. Such a relief pattern more perfect and reasonable, both to maintain the ruling and the stability of a withdrawal application, and applicant through impeached further realize their right to apply for withdrawal, realized the avoidance of the right of relief. Worth the challenge system in our country.#p#分页标题#e#
IV, present situation and reason of criminal challenge system in our country
(1) the status quo of criminal challenge system in our country
Based on the investigation to the practice of the criminal lawsuit of our country, our country's criminal challenge system implementation is not ideal. In fact many court for more than ten years without a case shall practise a system of avoidance. May say that our current criminal challenge system although seemingly have status, but in fact the implementation of the system is only become a mere formality, its implementation completely deviated from the original intention of making criminal challenge system.
1, the legislative defects of criminal challenge system in our country
Challenge system in the criminal procedure law of our country's legislation regulation more rough, principle, program setting is unreasonable, the lack of operability, there are many needs to improve and perfect place, basically has the following several aspects:
(1) avoidance of applicable object is too narrow
Our country legislation applies only to "open" object to avoid, such as investigators, such as the judges and the court clerk. But for "behind the scenes" to avoid problems of regulation and oversight.
A supervisory committee was not included in avoidance object, [18] just follow the convention in practice, but not conducive to the parties exercise their powers. Because of the procuratorial committee for major cases to discuss the decision, and the parties have no right to apply for withdrawal, the procuratorial committee clearly goes against the practice of avoiding system.
2 it is to list all executives did not avoid the object. [19] execution is an integral part of the judicial process, if the main content of the executives there shall withdraw and not shy away from, is bound to affect the specific rights and interests of the parties.
(2) to avoid too principled reason of regulation
One is interested in avoiding reason too general, fuzzy and other relations. This is not easy to master, in the judicial practice to the practice of challenge system has caused some difficulties.
The second is the scope of "close relatives" too narrow. China is a country with a very valued relationships, in this respect, should expand the scope of close relative definition, to better safeguard judicial justice in practice.
Three is the legal of avoidance is only for avoiding, law is not peremptory challenges. This increased the obligations of the parties, which is unfavorable for the exercise of withdrawal right.
(3) avoidance of program set is not reasonable
One is to avoid the term is not clear. Although the law shall withdraw time made general provisions, such as: "the investigators, prosecutors, judges the withdrawal of should be in it knows or should know oneself have withdrawal application situation of the application." But for the concrete should be within a few days to apply and should be within a few days to make the decision whether to avoid did not make specific requirements for this to bring great difficulty in judicial practice, for the processing of the judiciary also has certain influence.#p#分页标题#e#
2 it is to should avoid the judicial personnel before did not shy away from the effectiveness of the lawsuit behavior confirm the problem without rules. Because the investigators must continue to carry out investigation before has not been decided to avoid activities, so for the behavior will affect the impartiality of case treatment, did not mention the law.
Three is in violation of the provisions of avoid the legal responsibility and punishment of the judicial personnel did not make clear rules. In ancient China in violation of the stipulations of withdrawal system of official with clear charges and harsh penalties. But now our country law has not on violators of criminal responsibility, in violation of the phenomenon of the current challenge system is more and more serious, but not limited and punishment.
Four is the extension of the statute of limitations caused by the to avoid problems. For failing to regulation, resulting in the judicial practice, for fear of more than the statute of limitations lead to challenge system generally does not apply.
(4) to avoid incomplete relief measures
For the person whose withdrawal has been decided our country stipulated the right to apply for review, it is not reasonable. Also its if you have any objection to the parties and their legal representatives rules, shall court reconsideration request, this is quite unfavorable for reconsideration, extremely easy to conflict in the court, and easy to influence the outcome of the reconsideration.
2, execution of criminal challenge system in our country
(1) to avoid the decision shall be exercised on his behalf
There exist in practice to avoid the decision by the organ shall be exercised on his behalf, head of the situation, such as: director decided cases within the authority to undertake personnel is avoided; The presiding judge to determine whether members of the collegial panel to avoid and so on. Therefore the implementation of criminal challenge system and law, there are a great distance.
(2) the parties can not fully exercise the withdrawal right
In the judicial practice, a party is unlikely to investigators and in case the parties know a lot and the relationship of the case, so in this case the withdrawal right of the parties often because of the knowledge is difficult to fully exercise.
(3) investigators recuse themselves can't strictly abide by the laws and regulations
In criminal cases, case undertaker who voluntarily withdraw the case is not rare. This and the professional quality of judicial personnel and law enforcement idea has a lot to do. At the same time, the cases tend to be influenced by the social bad style, "the people" to help the parties to handle affairs, the people with legal withdrawal application tend not to recuse themselves, so not conducive to the protection of the rights and the maintenance of judicial justice.#p#分页标题#e#
(4) for the rights of criminal to avoid told too little content, time is too short.
Though legal provisions in China: "open a court session, the presiding judge shall inform the parties have the right to the collegial panel are" withdrawal, the court clerk, the public prosecutor and translators applied for, but not detailing the content over rights to the party concerned and their related specific identity, because they don't understand the exercise of the right, the general fear of trial, choose not to exercise the right to avoid.
(5) in a second trial, the parties the right to apply for withdrawal in the death penalty review procedure is empty
According to the law in our country, second trial can take written trial and trial in two ways. But in practice, most criminal cases with the method of the court, in the death penalty review procedure, generally USES the written examination way, also don't summon the parties and other parties to the lawsuit, no trial. So don't tell party its withdrawal right, therefore, in these two stages to avoid right is neglected, it's safe to say that there is no.
(2) the cause of the current situation of the criminal challenge system in China
1, the causes of the current situation of the legislation in China is the development of the legal system of our country is not yet mature, the legislation is not comprehensive, and the formulation, the speed of change in the law can not keep up with the speed of social development, the law is too lag, cause could not be in accordance with the situation.
2, the cause of the current situation of the execution in China is our country the judicial personnel quality is not high, the understanding of the law is not fully in line with the law, and at the discretion of the judge is too big, cause to perform on the same case has different results.
V, the perfect way of criminal challenge system in our country
According to the analysis above, the legislation of criminal challenge system in China still has many problems. But the United States and Germany's criminal challenge system has developed to the point of a more perfect, very worth our using for reference. Summarized as the following aspects:
(1) for reference for legislation of foreign criminal challenge system
1, for the improvement of the legislation mode
Our country's criminal procedure law, though still in practice, but because of its overall lack of time, has apparently unable to meet the requirements of the development of society and economy in China, as a result, the supreme people's court and the supreme people's procuratorate have issued a lot about withdrawal system of judicial interpretation, but the judicial interpretation is too complex, some even or violate basic principles of the criminal procedure law, so the rules of the challenge system and implementation in our country is quite a mess.#p#分页标题#e#
Our country at present the most main task is carried out on the criminal procedure law related to nap, and to develop a complete and comprehensive criminal procedure law and the criminal procedure law from the legislative especially neglected challenge system was perfected. At the same time, the legislature should be clear division of labor, to challenge system, its main applicable object is the staff of the judicial and procuratorial organs, therefore shall be formulated by the Supreme Court and the procuratorate to avoid the related judicial interpretation is unreasonable, so that they will break through the limitations of its own. Only solve the problem above challenge system in criminal legislation and the practice of challenge system in our country can have a new start.
2, the content of the reference to foreign legislation
According to the analysis of the challenge system in the United States and Germany in the legislation, first of all, the regulation of our country on avoiding objects are not enough comprehensive, many should be applied to avoid object has not been clearly stipulated in the law. Legislation in China should not be a specific aspects as the main avoid applicable objects, while ignoring other objects. Should focus on the judge's avoidance rules, both is applicable to avoid other objects.
Second on the avoidance of reason first should increase the provisions of the peremptory challenges, because only have from existing in our country, and put the burden of proof entirely upon the parties, it is not reasonable. Provisions of peremptory challenges more conducive to protect the withdrawal right of the parties and the judicial justice, improve the overall efficiency of lawsuit. At the same time for "interest", "close relatives" and "other relations" should expand the scope of the regulations and specific and explicit, such ability is more easy to operate and implement.
Again is to avoid the improvement of the program, according to the regulation of the United States and Germany, should expand the main body in avoidance of start, true to the parties and their agents and defendants right to apply for withdrawal, the right to implement. Apply and clear, avoiding the limit of time and make the better exercise their rights. Also improve the content and the obligation, to make the judicial personnel will be told to avoid program as a duty, and then implement, make a second trial and to avoid the death penalty review procedure of not be fause, really do to maintain the rights of citizens. [20] censorship beforehand and learning about the United States, the related judicial personnel qualifications related to the case review, to nip in the bud.
The final challenge system is to strengthen the relief measures and legal responsibility. Should learn from Germany's remedies, carries on the distinction between, according to the specific situation can decide whether to appeal, and make clear stipulation. Set the supervisory organ at the same time, supervision and decide whether to conform to the provisions of the challenge system. For should avoid rather than to avoid the legal responsibility shall conduct strict law, a severe punishment for violators, so as to eliminate influence of justice by not avoid phenomenon.#p#分页标题#e#
(2) of the Chinese criminal challenge system on the improvement of the environment
Criminal challenge system in China in addition to the problems in the legislation, and implement the environment problems. For a lot but it is not a real law so avoid regulation, in fact is the implementation of an environmental problem.
Form of our country's criminal system environment, the first is the judicial personnel. At present, the judicial personnel's quality is generally not high, which leads to the practice of law is not in place. Understanding of the law is not comprehensive, lack of basic knowledge of law, they will make the real practice of law. So to cultivate and strengthen the quality of judicial personnel, only has the legal power of people grow up, to safeguard the legitimate rights and interests of citizens.
The second is the citizen's legal consciousness. Apply for withdrawal is one of the important ways of avoiding system startup, if citizens from the beginning, it is not clear their rights and how to implement? In reality a lot of all don't know if I have to avoid right, the parties that the judge told the rights, because not informed but not exercise their rights. This is bad for the maintenance of civil rights and judicial fairness. Therefore shall conduct the franco-prussian education, is not only the provisions of the criminal law is quite necessary to the popularization of criminal procedure, the only truly improve the citizen's legal quality and legal awareness, to develop into a higher level of socialist legal system in China society.
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[2] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition 2005, pp. 169-168
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[10]Attending Zhang Pinze, the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004#p#分页标题#e#
[11] Zhang Pinze, the comparative study of foreign criminal challenge system, in the study of comparative law, 2004
[12] [DE] g routh. Rocco faith, the criminal procedure law law press, 2003), pp. 53-54
[13] Li Changke translation, the German criminal procedure code, China university of political science and law press, 1995. 8 pages, page 21
[14] Zhang Pinze, the comparative study of foreign criminal challenge system, in the study of comparative law, 2004
[15] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition, 2005, p. 179
[16] Zhang Pinze, the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004
[17] the comparative study of foreign criminal challenge system, in the comparison research, no. 4 in 2004
[18] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition 2005, pp. 191-190
[19] jing-cun xu, the criminal litigation cutting-edge research (third volume), Chinese procuratorial press, edition, 2005, p. 191
[20] jing-cun xu, "criminal procedural law" (on), law press, 1998), p. 121
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