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On co-defendant statements

Author: WangZhongLong
Tutor: FengTao
School: Southwest University of Political Science
Course: Procedural Law
Keywords: Co-defendant Statement Witness qualified Separation of trial Joinder Segmentation theory Improve the system
CLC: D925.2
Type: Master's thesis
Year: 2008
Downloads: 92
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Abstract

A co-defendant in a statement of the nature of the co-defendants in criminal proceedings related to the positioning of the role of litigation as well as the rules of evidence applicable for a co-defendant's rights greatly. Of the Code of Criminal Procedure \This article is committed to a co-defendant in a statement of research from qualitative issues, through comparative law path to address the co-defendants in the Code of Criminal Procedure on the basis of the co-defendant statements shall examine three typical representative countries statements nature of the presentation of the problem, and put forward recommendations to improve the system of co-defendant statements be modified in the Criminal Procedure Law, and the rationality and feasibility of the proposed demonstration. This paper is in five parts, body 30,000 6000 words. The introduction part introduces the motive, research objectives, methods, and the last of the main problems to be solved. Because our current criminal procedural law for the absence of co-defendant to state regime, leading academics and practitioners exist \The debate whether to include the co-defendant statements fierce. Starting from the practice, the use of a comparative approach, looking associated with the theory and to study it, and finally back to reality, to solve the problem. The first part described herein defined co-defendants. This section is mainly defined the connotation and extension of the co-defendants, using the concept of \I believe that the co-defendants is the concept of criminal procedural law, refers to the applicable the same proceedings joinders, trial two or more defendants, its extension: the prosecution is based on the relationship between common crime and implicated in the same criminal trial procedures, and co-defendants constituted by a natural person subject. This section combined with a simple case analysis of a co-defendant in the case described in this article, will be used in the case discussed later. The second part is a co-defendant in a statement of the nature of. This section introduces our academic view of the presence of co-defendants stated, controversy, and debate the relationship between the focus. I believe that, there are two points of view, that is, \Grounds to support the point of view focused on security, the view of the traditional judicial litigation role, the types of evidence, the rights of the defendant, the pros and cons of the practice. Focus of debate is mainly focused on two aspects: First, the co-defendant in a criminal trial the feasibility of each other witnesses; Second, in the absence of other evidence, the only co-defendant statements and statements consistent with co-defendants, whether alone statement consistency finalized. A dual relationship between the two issues, first of all, this is a problem on two different levels, followed by the solution of a problem before and after a solution to the problem is not necessarily linked. The third part is divided into \This section examines the United States, Germany, Japan and the Criminal Procedure Law of the provisions of the co-defendant statements focused on three issues, namely how the provisions of the country, the country why the provisions in place to solve the problem of our draw significance. Which is why the provisions of this part of the center of gravity, the study focused on the country adopted the driving force behind the theory of this kind of system. I believe that, on a co-defendant in a statement of the nature of the provisions of the Criminal Procedure Law of the United States, Germany, Japan, the three countries are different. American Criminal Procedure Law provides a co-defendant as a witness competent to testify on whether the right to self-determination. Germany and Japan, the Criminal Procedure Law provides that do not co-defendant as a witness, but in order to obtain the evidence of the co-defendants' statements, Germany in defining the concept of co-defendants on the basis of the development of a \The Trial \On the separation of the trial proceedings, the original intention of the American Law order relief joinders may not the interests of the co-defendants caused the protection of the rights for the purpose, separated or not solely on the basis of joinder whether it be caused by a co-defendant bias or its suffered not the interests of the separation of non must. The provisions of the German law to legally obtained the evidence of the co-defendants' statements, a choice is made on the basis of the balance of the national prosecution and protection of the rights of the individuals concerned, holding the state prosecution stance, so the court wishes to decide to obtain the testimony of his co-defendants, must take temporary separation trial, co-defendant turned witness. The requirements of Japanese law by protecting the rights of the co-defendants for the purpose by the discretion of the Court on the necessity of a measure of the co-defendants of the right to silence \. Countries of the rules and regulations of the reason, to improve our system of co-defendant statements biggest inspiration is whatever side we take, in other words, we reform or the introduction of some system of theory what is the driving force behind, in order to protect the rights of the co-defendants or, or prosecution of crime in order to better between these two to find a proper balance point, how to find this balance point, where it is. The fourth part is the \The part of the Criminal Procedure Law be modified on the basis of the preceding three-part system of co-defendant statements studied in given the improvement of the system of the recommendations of the author, and the rationality and feasibility of the proposed argument. This is the focus of this article, is the final problem to be solved. I first pointed out that the statement of the nature of his co-defendants should be different according to the co-defendant to state content division for the confession of the accused or the testimony of witnesses, the two types. The view that respects defendant shall not witness the judicial tradition, and consistent with the standards of the current Criminal Procedure Law in the confession of the accused and the testimony of witnesses, evidence type by a solution depending on the specific circumstances of flexibility. The segmentation theory, can be a very clear definition of the scope of application of Article 46 of the Criminal Procedure Law to solve the controversy exists in the judicial practice. Secondly, the statement of a co-defendant in the way I think we should learn from the practice of the Criminal Procedure Law of Japan, adopted the two-track system of joinder and separation of trial coexistence approach. Recommended to learn from the Japanese law practice, mainly on account of the Chinese judicial tradition, Law, Japan, the advantages of this kind of system design implementation and other factors in the Chinese judicial practice. I did not agree to replace the collegial panel separation during the trial, this is because the country does not use a jury trial, plus quite a long period of time will prevalence of silent reading trial \the practice does not achieve the the U.S. Separation trial where the intended effect. Then, I stressed to fully trust the judge's judicial system settings, it is recommended that the separation of the purpose of positioning the co-defendants are not for the protection against self-incrimination privilege and of confrontation rights. Real protection is to ensure that the rights of the defendant, joinder and separation trial coexist adopt the system, given the co-defendants of the right to appeal the judge's decision. Co-defendants that the decision of Judge merger or separation violations of its non-self-incrimination privilege or confrontation questioning the right of appeal, the second trial judge this judgment, if indeed violations of their rights, should cassation, sent back retrial.

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