The principle of direct words, also known as the principle of words, means that the judge personally listens to the oral statements and court debates of the parties, witnesses (in this paper, witnesses in a broad sense, including experts) and other participants in the proceedings, thus forming an inner conviction of the truth of the case and making a judgment on the case accordingly. As a basic litigation principle, the principle of direct words has its litigation value in ensuring the equal litigation status and equal rights of both the prosecution and the defense, ensuring the procedural justice of the trial, thus realizing substantive justice and protecting the legal rights of the parties to the case, especially the defendants who are in a natural weak position in criminal proceedings. Specifically, the principle of direct words mainly includes the following requirements:
1, the experience of judges. The judge must personally listen to the statements of the participants in the proceedings in court, examine and judge the evidence, directly listen to the court debate, form inner conviction and make a judgment in person, and shall not change halfway.
2. The oral nature of the trial. The trial of a case shall be conducted by oral statement, and the parties, witnesses and other participants in the proceedings must appear in court in person to make oral statements on the case. Unless there are legal circumstances, any out-of-court statement shall not be used as the basis for final decision.
3. Adhere to the principle of uninterrupted trial. The trial of a case must be centralized and continuous to ensure that the judge's inner belief in the case is correct.
With the progress of society and the perfection of legal system, the revised criminal procedure law of our country embodies the principle of direct words to a certain extent, but there are still many problems in its perfection and implementation.
First, the current situation of implementing the principle of direct words in criminal proceedings in China
The provisions of the principle of direct words in China's criminal law are mainly found in the Criminal Procedure Law and the Supreme People's Court's Interpretation on Several Issues Concerning the Implementation of the Criminal Procedure Law of People's Republic of China (PRC) (hereinafter referred to as the Interpretation). Mainly reflected in: 1, the preliminary cross-examination rules are established: witnesses should testify in court; Witnesses' testimony and expert conclusions must be interrogated and cross-examined by the public prosecutor, the victim, the defendant and the defender in court and verified to be true before they can be used as the basis for finalizing the case; Public prosecutors, parties, defenders and agents ad litem may, with the permission of the presiding judge, put questions to witnesses. The judge may question the witness. 2. A trial mode based on trial has been established, especially for cases of second instance. Nevertheless, the principle of direct words in criminal proceedings in China is still far from perfect, and the existing provisions have not been really implemented. The existing problems are not conducive to the smooth operation of the cross-examination rules established by the Criminal Procedure Law and even the adversarial procedure, which may make the trial mode reform lose its practical effect and significance:
1. Witnesses and victims rarely testify in court, and there is no hearsay evidence rule. Witness testimony and victim statement are important evidence in criminal proceedings. However, due to the lack of a set of safeguards for witnesses and victims to appear in court, and the fact that the parties work for witnesses, the victims have an interest in the outcome of the case, so there are a large number of witnesses and victims who do not appear in court or make false statements. The best way to solve the above problems is to implement the principle of direct words, so that witnesses and victims must appear in court to be questioned by the parties and the court. However, there are no relevant provisions in the Criminal Procedure Law and its interpretation, only the relevant transcripts of witnesses who did not appear in court and "verified" can be used as the basis for finalizing the case. Lack of specific provisions for victims to testify in court. This problem has not been solved, witnesses and victims still rarely testify in court, and the parties can't cross-examine them and effectively cross-examine relevant evidence. In addition, some judicial personnel are lazy and afraid of trouble. How and whether they can "verify the truth" is also very doubtful.
2. In order to fully protect the rights of the defendant, the Criminal Procedure Law stipulates that a case of second instance should be heard in court, and only when the facts are clear can it be heard without a court session. However, in judicial practice, on the contrary, cases of second instance are usually tried in written form, and often only when it is possible to revise the sentence. The provisions of the Criminal Procedure Law put the cart before the horse in actual implementation, which makes the principle of direct words useless in the second instance.
3. The phenomenon of changing judges in the middle still happens. The Criminal Procedure Law does not provide for the replacement of judges. Article 99 of the Interpretation stipulates that "after the criminal part is tried, the incidental civil action may be tried by the same trial organization. If the members of the same judicial organization are really unable to participate, they can change the members of the judicial organization ",which obviously violates the principle of direct words, and some courts arbitrarily change the members of the collegiate bench halfway, which is even more contrary to this principle.
4. The phenomenon of adjudicating cases before trial still exists in the judicial practice of judicial committees, courts and presidents to varying degrees. According to Article 149 of the Criminal Procedure Law, the collegial panel must implement the decision of the judicial committee to discuss the case. The collegial panel is the witness of the trial, but the members of the judicial committee did not attend the trial and did not listen to the statements of the parties and other participants in the proceedings. "The judge will not judge, the judge will not judge" does not meet the requirements of the trial.
Second, my humble opinion on fully implementing the principle of direct words in China's criminal proceedings
As mentioned above, the principle of direct words has not really been established in China's criminal proceedings. Firstly, there are legislative defects: the Criminal Procedure Law lacks a perfect guarantee and restraint mechanism for victims, witnesses and investigators to testify in court, which can not effectively restrain the testimony behavior of the above-mentioned personnel, "connive" them to testify in court to a certain extent, and also encourages the lazy political thinking of the judicial organs. Second, social traditions, culture and other deep-seated reasons. Our traditional legal culture has the idea of being tired of litigation. People are generally reluctant to get involved in right and wrong, and it is not difficult to understand that they are unwilling to testify for specific reasons such as fear of retaliation. The third is the backwardness of judicial thought and concept. Deeply influenced by the past trial habits, the judicial department is not adapted to the new trial method, afraid of mistakes and troubles, and is unwilling to use it. These problems have endangered the real realization of the cross-examination rules and even the confrontation procedure established by the criminal procedure law, and may make the reform of trial mode lose its practical effect and significance. In order to solve the above problems and realize the equal arms and confrontation between the prosecution and the defense, we must thoroughly implement the principle of direct words. The author believes that according to China's actual national conditions, combined with judicial practice, we should improve legislation and related regulations from the following aspects:
1. It is clearly stipulated that witnesses and victims must testify in court by oral statements, accept cross-examination by the parties and court inquiries, and their out-of-court statements are inadmissible in principle. In view of the fact that witnesses do not testify in court at present, legislation should stipulate the legal consequences of refusing to testify in court, such as fines, detention, compulsory testimony in court and even obstruction of judicial investigation of criminal responsibility, and effectively protect the legitimate rights and interests of witnesses, including personal safety and economic losses such as lost time and transportation expenses caused by testifying in court, so as to encourage them to testify actively. Of course, under special circumstances, the witness may not appear in court, but its scope should be strictly limited. In my opinion, referring to the practice of foreign countries and combining with the actual situation in China, it can be clearly defined as the following situations: a. The witness has died or is abroad; Both the prosecution and the defense agree to take their written statements as evidence; C. Out-of-court statements are used to question the credibility of their statements in court. D witness's testimony is cross-examined by both the prosecution and the defense in other proceedings. For the victim, it should be stipulated that if he does not testify in court, he will bear the adverse consequences in handling the case.
2. When the defendant's confession is the final basis, if the defendant's confession out of court is inconsistent with his confession in court, the verified confession in court shall prevail. The confession of the defendant must be cross-examined by both the prosecution and the defense.
3, the establishment of investigators to testify in court system. When proving the facts of some cases, investigators are no different from ordinary witnesses, and they must appear in court for cross-examination, such as the methods and processes of confirming physical evidence and obtaining the confession of the defendant.
4. Further clarify that cases of second instance must be heard in court, and clearly limit the conditions for written hearing to prevent the popularization of general exceptions and exceptions. According to Articles 187, 19 1, 189 (2) and (3) and Article 253 of the Interpretation of the Criminal Procedure Law, combined with judicial practice, the conditions for a written hearing can be limited to the following situations: B the defendant and his defender did not raise any objection to the facts and evidence found in the original judgment, but appealed against the applicable law and conviction and sentencing, and the facts were found to be no problem after examination in the second instance.
5. Strengthen the responsibilities of the collegial panel and the sole judge, and endow them with truly independent judicial power. Cases tried by a collegiate bench or a single judge shall be finally decided by a collegiate bench or a single judge, unless it is clearly stipulated by law. Clearly stipulate that the scope of the audit Committee's discussion of cases is limited to the application of law, until the responsibility of the audit Committee to discuss specific cases is finally abolished.
6. The trial of a case must be centralized and continuous, so as to ensure the continuity and correctness of the judge's inner belief in the case. Members of the collegial panel shall not be replaced midway. If it needs to be replaced due to inevitable reasons such as death or transfer, it shall be retried.