Abstract

Through the empirical study of the demonstration court and contrast court of two-level courts in Chengdu，and with the combination of the basic theory of criminal procedure law，this book takes the criminal trial investigation reform as the main object of study，mainly focusing on the study of the proof-providing，court examination，witness problem and court certification，with a view to be helpful to the trial-centered substantive reform，including the future direction of development and possible optimization path. This book is divided into seven chapters，and the main contents are as follows.

The first part is the introduction. It mainly introduces the process of the pilot reform of the two-level court in Chengdu and the significance of the settlement of the trial emptiness in the context of advancing the trial-centered litigation system. The empirical material for this book is mainly derived from the demonstrated court case of the first instance trial reform in the two-level courts and the contrast court cases which are similar to the trial in the corresponding period. The span of the trial time of demonstration court and contrast court cases is from February 2015 to April 2016. It can provide theoretical support for the further reform of the trial by concluding the experience of substantive reform of the court in Chengdu. This book，based on the existing excellent research results，and combing with the two-level courts in Chengdu pilot reform cases，conducts the empirical research on the trial of the proof-providing，cross-examination，witness，and certification.

The second part is the case scope of making criminal trials substantive. In this part，the case type，case level and future trends are mainly discussed. The limitation of the reform making criminal trials substantive partly reflects the case choice in grass-roots court，which select a large number of cases applied to simple procedures against the request of the substantive trial. The reform mainly refers to the major and difficult cases as well as the defendant does not plead guilty. There are also many cases applied to ordinary procedure which mix the defendant completely pleaded guilty as well as less controversial cases. The dynamics of the judicial proceedings will make the judges evaluate the evidence differently with the advancement of the first instance and the change of subsequent procedure in the trial level. However，the first instance procedure is more advantageous than appeal procedure in the fact-finding of a case and the application of the law. Thus，a reasonable mechanism for the operation of the proceedings in the trial should be the first instance as the center. In principle，the second instance adjudicating an appeal does not belong to the case making criminal trials substantive，only in a few special cases can be used to it. The reform making criminal trials substantive should pay more attention to the survey link of the first instance，and the evidence used to prove claims of the prosecuting and defending parties must be fully investigated can be taken as a basis for the court adjudication. If there is no special reason，the prosecuting and defending parties should accept the results of the first-instance court investigation.

The third part is the proof-providing of making criminal trials substantive. This part mainly discusses the proof-providing sequence，the main body of proof-providing and the proof-providing scope. On the determine of the evidence investigation sequence，the prosecution and the defense should seek the collegial panel judge’s opinions on the basis of reaching a consensus. The court investigation procedures in China’s mainland is basically the same as that in civil law system countries and regions，except that due to the deviation of system design concept，some human rights protection procedures are missing，and the evidence investigation sequence of “objective to subjective” or “subjective to objective” appears. However，the inherent defect of this seemingly orderly way of presenting evidence is the formalization and lack of logic of court evidence，which easily leads to the disorder of proof system. In 1996，the Criminal Procedure Law incorporated the victims into the litigant category. Although this corresponded with the internationalization trend of strengthening the protection of victims and was beneficial to realize the balance of interests among litigation subjects to a certain extent，there was a conflict with the victim as the legal party，and it was contrary to the basic legal principles of criminal proceedings. The prosecutor questioning the defendant clearly weakened the defendant’s subjective status，and the objectification of defendant’s role and the discrepancy of its litigation status made it extremely easy to lead the prosecution and the court to overly rely on the defendant’s confession and excuse. Another prominent problem the current practice faces is that the prosecution’s proof is too simple and one-sided：First，the defendant cannot effectively examine the evidence under the group proof-providing. Second，the proof-providing of the prosecutor is partial to the incriminating evidence and serious evidence，but neglects sentencing evidence and innocence or misdemeanor evidence，which is obviously contrary to the prosecutor’s burden of proof and objective obligations.

The fourth part is the court examination of making criminal trials substantial. This part mainly discusses the meaning of court examination，the internal structure of court examination，as well as the complementary measures to optimize the court examination. The court examination is undoubtedly an important means for the accuser and the accused to refute and attack the other party’s evidence and also an important way to influence judges. The function and status of the judges in the process of litigation determine that they should be a negative “hearing” subject rather than a positive subject. The subject matter is different from the proof object. The former refers to the evidence and the latter refers to the conviction and sentencing facts related to the crime. As for the distinction between questioning-free evidence and non-testimonial facts，the former refers to the undisputed evidence，confidential evidence，while the latter refers to a highly reliable evidence. Although the evidence of questioning-free evidence does not provide the court examination，it should be included in the scope of the cross-examination in necessity. The scope of the contents of the examination evidence mainly refers to the evidence competence and weight. The examination method mainly refers to the ways and means of questioning or verifying the relevant evidence of the case，which can be divided into the basic form of examination evidence and the basic method of examination evidence. With the continuous promotion of making criminal trials substantive，as well as the implementation of the words of the trial，the way of evidence investigation with the main line of witness survey and interspersed with physical evidence will replace the former evidence audit method of investigation which is centered on interrogating the defendant. Therefore，cross-questioning and confrontation questioning will become the basic examination evidence method for court investigation. As for the complementary measures to optimize the court examination，it can mainly be proceeded from two aspects：first，narrow the scope of examination at the pre-trial meeting；second，protect the defendant to obtain help from lawyer.

The fifth part is the witness survey of making criminal trails substantive. This part mainly discusses the development and changes of evidence investigation，the basic method of witness investigation and the key witness appearing in court. For the different litigation structures in the method of witness survey，the witness is asked by the court in the traditional mode of authoritarian litigation and they should generally narratives their experiments. The advantage of this is that the statement is complete and not fragmented and is easy to find the truth of the case. But the disadvantage is that it cannot easily come to the point and mix the argument，which makes the judge have prejudge and bias. However，the setting of confrontation between the prosecution and defense in China’s criminal procedure law is not clear and there is no strict division of prosecution witnesses and defense witnesses，nor is strict distinction between differences of the cross-examination and the leading-examination. This leads to forbid induction inquiring rules in the evidence survey in China，and it doesn’t have any difference for prohibiting induction between the cross-examination and the leading-examination. At present，the key witness of the case should appear in court to accept the cross-examination both the prosecution and the defense，and change the way of evidence survey centered on the interrogation of the defendant；we should narrow the judge’s power to command litigation evidence survey appropriately；setting the adversarial system for parties of prosecution and defense；the improvement of main body investigation and the way of evidence survey its diversity；the way to witness survey as the main line and with the words of the physical evidence trial etc. to perfect the examination system of evidence survey. Although the reform of making criminal trials substantive，to some extent，prompts the appearing in court of some necessary witnesses，the attendance rate of the necessary witness is still low. It is not the purpose of witnesses to testify in court，but to implement the hearsay evidence rule or the principle of directness and verbalism to ensure the right of confrontation between the prosecution and the defense，especially the defense.

The sixth part is the court certification of making criminal trails substantive. This part mainly discusses the significance of court certification，the disputes of court certification，certification basis，and the contents of the certification. In accordance with the different time points of judge’s certification，the certification can be divided into pre-court certification，court certification，adjudication certification，and court certification can be divided into in-court certification and delay certification. The time of in-court certification could be in the phase of evidence investigation or between the court debate and the court closed，which meets the requirements of the trial principle of centralized hearing，direct hearing and word processing. The reform of making criminal trials substantive requires that collegiate bench shall make a judgment whether the evidence presented by the prosecutor and defendant shall be adopted or not to truly realize the judge’s heart certificate and the reason of the judgment in the court. However，the reform of making criminal trials substantive does not significantly improve the rate of attestation in court，which is related to the lack of feasibility of our country’s system of certification rules and the judge’s lack of ability to reason the judgmental arguments. The essential attribute of evidence is competence and weight，not just referring to covering part of the general standard of objectivity，relevance and legitimacy. The reason why the evidence legislation in our country is in the form of verdict evidence covering the competence and weight is related to the misplacement of the essential attribute of evidence，which often results in mixing the concept of “admissibility” and “acceptance” in judicial practice. From the regularity of judicial proof，the rule of weight can only be used as the exception of discretion and the competence but the rule of weight-centered evidence law system should be constructed. Meanwhile，we should build the dissociation procedure including the subject，stage，effect for evaluating the competence and weight，and the corresponding procedural guarantee mechanism for parties of prosecution and defense.

The seventh part is conclusion. This part mainly discusses the realization degree，the effectiveness of the evaluation and the reform path of making criminal trails substantive. The achievement of making criminal trials substantive is mainly manifested in the witness to appear in court，the right to defend the accused，the detailed proof-providing and cross-examination activities，the confrontation of the prosecuting and defending parties，the defense opinions eventually adopted obviously. However，the reform is not a fundamental shift from the previous trial mode，the judge decided the case facts still rely on the written file，the prosecuting evidence investigation occupies the dominant position，the methods of illegal evidence exclusion are malfunctioned. Thus，the reform of making criminal trials substantive is effective but limited，not yet to meet the expected goal of the pilot reform. The limitation of reform plan reflects the lack of top-level design of the pilot reform，inclined to improve the system and ignore the system innovation，which could lead to the involution of one sort of question. The improved path and innovated path of making criminal trials substantive belong to the cooperative relationship between each other and not exclusive. Although the direct purpose of both is different，the ultimate goal is to fully protect human rights，promote judicial ability，maintain the judicature independence. The technological path is the basic way to achieve the rule of law，and the rule of law is the advance direction of the technological path. The feasibility and effectiveness of reform target can be improved by breaking down the institutional barriers encountered in the technical path.

Keywords：Proceedings Centered on Trial；Making Criminal Trials Substantive；Evidence Investigation；Empirical Study