I. Background conflict
At present, the large number of cases has become the main contradiction in China's court trial work. According to the data released by the Supreme People's Court, in 20 14 years, the national courts accepted 104 million criminal cases of first instance, an increase of 7.09% over the previous year, accounting for 89.32% of the total criminal cases of first instance, second instance and retrial. 6.5438+0.23 million cases were concluded, up by 7.24%; The number of defendants1185,000 whose judgments became effective increased by 2.24%. The contradiction of too many cases in the court system is more prominent at the grassroots level. Take the Criminal Second Court of the Intermediate People's Court of C City as an example. The hospital mainly undertakes first-instance cases and second-instance cases of duty crimes, economic crimes and drug crimes. In 20 14, the court * * had judges 15, and received 49 1 case, with an average of 32.7 cases per person, including 77 cases of first instance/kloc-0. The other 37 yuan, an average of 2.5 yuan per person. Based on the effective working days of 240 days a year, a case will be closed in about 7 days, which also includes the time of court session, the time of inputting case handling information in the case management system, and the time of writing legal documents. And the work intensity and pressure are quite big. The contradiction between more people and fewer cases in grass-roots courts in some urban areas of this city is more prominent.
This brings a realistic paradox: with the intensification of social transformation, the number of cases accepted by the people's courts has increased year by year, and it has been running at a high level for many years, becoming the new normal. This factor exists objectively and is not influenced by the subjective factors of the court; On the other hand, the number of judges is strictly controlled, and it is unlikely that the court will expand on a large scale for at least a long time. In this context, in order to solve the contradiction between a large number of cases and a small number of cases, courts and judges have to simplify the handling process to "squeeze" time and "suppress" workload. The reform of the litigation system centered on trial will inevitably require the materialization of trial, which undoubtedly increases the workload of judges in disguise. The trial of court reform in various places shows that after the reform of the trial-centered litigation system, the trial duration has been significantly extended, and the original case of 1 hour can now take 4 hours or even longer; At the same time, because of sentencing in court, the psychological pressure of judges in court is greater than before, the intensity of trial work is also significantly increased, and the requirements for the quality of legal documents are also higher. These new requirements and the new normal have formed irreconcilable contradictions with the reality of too many people and too few court cases.
In this realistic contradiction, in order to succeed in the trial-centered litigation system reform, we must first solve the "entrance" problem of trial procedure, that is, we must divide the complexity and simplicity of cases, limit the application of substantive trial reform to those relatively complex, difficult and significant cases, and solve the cases with simple cases and little dispute between the two sides through summary procedures. At present, the options that can be considered include: first, increase the application ratio of summary procedure and enhance its ability to divert cases; The second is to strengthen the application of the procedure of "light punishment and quick punishment", simplify the way of handling cases, shorten the period of handling cases and speed up the flow of procedures.
Second, institutional conflicts.
The reform of litigation system centered on trial is a systematic project, which affects the whole body. The success of the reform depends on the assistance, support and matching of relevant institutional resources. Otherwise, the simple reform of the trial system will be like "going deep alone", strategically passive and tactically unsustainable. Judging from the pilot reform of local courts, the absence of relevant systems has seriously affected the effectiveness of the reform, and the problems are mainly concentrated in three aspects:
First, the function and effectiveness of the pre-trial meeting system are not clear. The core of the trial-centered litigation system reform is the materialization of the trial. However, under the background that the number of cases has become the main contradiction in the court's trial work, the materialization of trial reform must be based on the premise of efficient trial, and the materialization of trial can only focus on the controversial focus of both parties to the case, but not on the details. For this reason, when the courts all over the country carry out the trial-centered litigation system reform, they all propose to give full play to and highlight the functions of pre-trial meetings to solve procedural matters, present evidence and sort out disputes. However, the problem is that although the criminal procedure law of our country stipulates the pre-trial meeting system, its function and effect are not clear, such as whether the defendant attends the pre-trial meeting, whether the understanding reached by the prosecution and the defense on evidence and facts is binding, and whether it is allowed to go back on our word. In practice, the phenomenon of "fried rice" or procedural reversal in court trial caused by the defendant's remorse frequently appears, which not only disrupts the pace of court trial, but also reduces the efficiency of court trial. Another difficulty in practice is whether the exclusion of illegal evidence can be handled in the pre-trial meeting. The pilot situation of local courts shows that the trial effect seems to be not good when dealing with the exclusion of illegal evidence in the trial procedure, so some people advocate dealing with the exclusion of illegal evidence in the pre-trial meeting. However, there is no clear legal basis for excluding illegal evidence in pre-trial meetings. Therefore, to promote the trial-centered litigation system reform, it is urgent to clarify the function and effectiveness of the pre-trial meeting through legislative interpretation or judicial interpretation.
Second, the witness's absence in court guarantee system. Witness appearing in court is the core of trial concentration, and it is also the focus and difficulty of substantive reform of trial. In China's judicial practice, the low attendance rate of witnesses, appraisers and investigators who should testify in court according to law has long been a chronic disease, which violates the direct verbal principle of the Criminal Procedure Law and is widely criticized. The failure of witnesses to appear in court and the extensive use of evidence substitutes (such as witness interrogation transcripts) in the case files are important reasons for the prevalence of written trials. The trial-centered litigation system reform will inevitably require witnesses to testify in court, but witnesses need to establish relevant security systems. In this regard, Article 61 of the Criminal Procedure Law specifically stipulates: "People's courts, people's procuratorates and public security organs shall ensure the safety of witnesses and their close relatives." Article 63 also stipulates: "A witness shall be subsidized for transportation, accommodation, catering and other expenses incurred in fulfilling his obligation to testify. The witness testimony subsidy is included in the business expenses of the judicial organs and is guaranteed by the government finance at the same level. " But the problem is that since the implementation of the new criminal procedure law, the above legislation seems to have never been really implemented. In the reform pilot, the standard and subject of witness fee subsidy can not be clearly unified, and they can only act in their own way, and the subject and specific measures to ensure the personal safety of witnesses can not be put in place. Whether the next reform can be carried out smoothly depends largely on whether the witness appearing in court guarantee system in legislation can really "land".
On the other hand, in practice, the judge is more concerned about whether the judge can not consult and use the written testimony (witness interrogation record) in the case file after the witness testifies in court. The trial-centered litigation system reform certainly opposes "investigation-centered", that is, judges advocate "four courts" based on various written transcripts formed in the investigation stage: litigation evidence is cross-examined in court, case facts are determined in court, defense opinions are published in court, and judgment reasons are formed in court. However, this cannot be understood as completely excluding judges from consulting and using evidence materials including written testimony in the case file. In practice, although the witness has testified in court and has been cross-examined by both the prosecution and the defense, in some cases, especially when the witness recants the evidence, in order to find out the truth, the judge still has to refer to the statements made by the witness in the pre-trial procedure to review the continuity and stability of the witness's testimony, and then judge the rationality of the retraction. In this case, consulting and using the written testimony in the case file is actually one of the assistants for the judge to review and judge the evidence. Therefore, what is urgently needed in practice is to clearly define the conditions and methods of using written testimony through judicial interpretation and establish corresponding evidence rules.
Third, the legal aid system is absent. The trial-centered litigation system is not a judge's "one-man show", but a system design based on the benign interaction between the prosecution, the defense and the trial. Only when the prosecution and the defense, especially the defense lawyers, put forward quality cross-examination opinions and opinions on the application of the law can the judge comprehensively find out the case and apply the law correctly. Therefore, the defense system is an indispensable aspect of the trial-centered litigation system reform. However, the current criminal defense practice in China is not satisfactory. Although the Criminal Procedure Law of 20 12 has been amended, the scope of cases to which designated defense applies has been expanded to cases that may be sentenced to life imprisonment or more, but compared with the amount of criminal cases in practice, it is a drop in the bucket. According to the preliminary statistics of C city court, the participation rate of defense lawyers in criminal cases in its city, district (county) courts is only about 1/3. In other words, there are two-thirds of criminal cases without the participation of defense lawyers. This shows that China's criminal legal aid system is far from meeting the needs of the trial-centered litigation system reform, and how to expand the scope of application of legal aid in the next reform is a crux.
Fourth, the current court chamber system conflicts with the reform. The word "trial centralism" was actually introduced from Japan. Japanese academic circles have reflected on the tendency of "investigation centralism" based on written trials and documentary evidence in their judicial practice. In fact, it is closely related to the way courts usually hear most cases in parallel. In cases that need to be tried more than twice, the interval between sessions is very long, usually several weeks, sometimes even months. Because judges undertake multiple cases at the same time, they can only hold cross-sessions, and cannot hold consecutive and centralized sessions, resulting in a long interval between two sessions of the same case. Therefore, the judge may forget or confuse the statements made by the parties and witnesses in previous trials. In order to prevent the error of fact finding, the judge can only repeatedly review the statements of the parties and witnesses in the investigation stage, which leads to a written trial, that is, investigation centralism. In fact, the way of hearing most cases in parallel also exists in China. Because most courts implement the case rotation system, each presiding judge may have to undertake multiple cases at the same time, and each case has a trial time limit. In order to prevent the trial of a case from exceeding the trial limit, the judge can only take the form of cross-session and alternate session, that is, after hearing case A once, the case B is tried again, but the same case cannot be tried continuously and intensively. In order to prevent the facts of the case from being forgotten or forgotten. Based on this, the implementation of the trial-centered litigation system reform also requires the court to carry out supporting reforms in the division system, that is, on the basis of diverting the complexity of cases, reasonably control the number of cases undertaken by each judge in the same period.
Third, technical conflicts.
The reform of litigation system centered on trial is actually a system that advocates technical rationality, emphasizing centralized trial, centralized trial, authentication in court and sentencing in court. This is a trial system design that attaches great importance to and emphasizes judicial technology. It requires both the prosecution and the defense and the trial to have superb litigation skills: for judges, the ability to control the court is strong, and they should be able to properly guide both sides to attack and defend around disputes, be familiar with the rules of evidence, and be certified in court. For both the prosecution and the defense, it is necessary to have outstanding ability to produce evidence, produce evidence and cross-examine, and skillfully use the rules of cross-examination to cross-examine and investigate witnesses.
However, judging from some pilot cases of court reform, there is still a big gap between the prosecution and the defense in judicial technology and litigation skills, which is manifested in the cross-examination of witnesses. Both the prosecution and the defense obviously lack the experience and skills of how to effectively cross-examine witnesses and do not know how to correctly use the right of opposition. In court, there are often objections one after another, but they are all irrelevant. As a judge, the judge also has a little knowledge of the rules prohibiting induced questions in the cross-examination system. Both the prosecution and the defense don't know whether the ruling is valid or invalid when exercising the right of dissent, which makes the whole trial seem a bit confusing in witness investigation. However, some judges frequently ask questions of witnesses in court, which makes the trial more like rotation inquiry in civil law system than cross-examination. These situations show that the skills and abilities of both the prosecution and the defense in cross-examination need to be improved. In the next reform process, it is really necessary to organize both the prosecution and the defense and judges to carry out special training and practical training on relevant judicial techniques and litigation skills.