ABSTRCTS



ABSTRCTS

Special Manuscript

Build Prosecutorial Documentation Center of China to Promote the Continuity and Development of the People's Procuratorial Cause

CAOJianming·3·

Thematic Seminar—Litigation System Reform Based on Trial-centeredness

Trial-centeredness and Procuratorial Work

CHENGuangzhongFANChongyi，etc·7·

The Relationships in Criminal Procedure from the Perspective of Trial-centered

BIANJianlinXIEShu·33·

To promote the “trial-centered” reform of the criminal procedural system，it is necessary to clarify the relationships between prosecution and trial，investigation，defense first.The new relationship between prosecution and trial should be based on the separation of prosecution and trial，and the principle of “no judge without plaintiff”，so as to promote substantive trials.In the new relationship between prosecution and investigation，the procedural stage of investigation should be considered as the extension and expansion of the function of prosecution.Prosecutors should explore the mechanism of prosecution directing investigation，define its dominant position in the pre-trial proceedings，and strengthen the supervision of investigation and dynamical restriction.In the new relationship between prosecution and defense，prosecutors and lawyers should do their jobs and duties in proceedings under reasonable structure of procedure，reach the consensus，form the positive interaction of mutual respect，mutual support and mutual supervision，and further implement the responsibility of prosecutors to safeguard the legitimate rights and interests of lawyers.

Key Words：Trial-centered；Making Trials Substantive；Relationship between Prosecution and Trial；Relationship between Prosecution and Investigation；Relationship between Prosecution and Defense Trial as Centrality; Litigation Stage Theory; Misunderstanding of Cognition ; Practical Problems; Wrongful Convictions Procurator；Participating in Homicide Cases；Criminal Scene Investigation；Guide Evidence-taking；Legal Supervision Military Justice System；Judicial Activities；Procedure Law；Commanding Power；Typological Analysis Joint Harm；Mutatis Mutandis；Norms of Civil Law；Administrative Compensation；Administrative Action with Incidental Civil Action Broken Window Theory；Positive Prevention；Zero Tolerance Policy；Misdemeanor；High-risk Crime Criminal Legal Aid；Defence；Reading Files；Investigate Evidence；Lawyers Meeting Electronic Data；Basic Attributes；Evidence Investigation in Trial；Procedural Models the Right to Refuse Unsafe Work；the Natural Right；the Statutory Right；the Practical Right Legal Hermeneutics；The Principles of Legal Interpretation；The Techniques of Legal Interpretation；The Institution of Legal Interpretation Korean Jury Trial；Shadow Jury；Deliberation；Judge；Jury Size

Bian Jianlin，Professor and Ph.D Supervisor at Procedural Law Research Institute of China University of Political Science and Law.

Xie Shu，Master Candidate at School of Criminal Law and Justice of China University of Political Science and Law.

Trial-centeredness Doctrine: Misunderstanding of Cognition and Practical Problems

ZHANGJianwei·43·

The function and meaning of trial as centrality is clear. Its own connotation of “trial as centrality” has some vague space. This paper analyzes the concept and the arising misunderstanding，and llustrates that “trial as centrality” is of considerable flexibility and depth which has the possibility of further expansion. It is not difficult to make some trials of cases be substantive，but not easy to make substantive trial as institutionalized immobilization. This paper analyzes the practical problems of trial-centeredness doctrine and how to solve these problems.

Zhang Jianwei，2011 Member of the Judicial Civilization Collaborative Innovation Team，Professor of Tsinghua University，Doctoral Supervisor.

Procuratorial Monograph

On Procurators′ Participating in Investigation at the Scene of Homicide Cases

WANGShouan·55·

There are many legal issues in criminal scene investigation in china.On one hand，the criminal investigators are short of procedure consciousness，and the law enforcement is not normative and scientific；on the other hand，investigators who pay much more attention to arresting suspects and solving criminal cases often collect evidences partially and fragmentally which results in insufficient evidence to judge.The system of procurators′ participating in investigation at the scene of homicide cases can realize simultaneous supervision，guide evidence-taking，standardize the scene investigation，and ensure the quantity and quality of evidence collection，aiming to reduce the miscarriages of justice.To establish the system，basic rules of procurators′ participating in investigation at the scene of homicide cases should be established，the duties of police and procurator should be distinguished.And also a complementary mechanism including information notifications and communications should be established to ensure complete cooperation in the investigation.

Wang Shouan，Professor at Collaborative Innovation Center of Judicial Civilization，University of Political Science and Law，Ji Lin University and Wu Han University；Director of the Institute of Procuratorial Theory of Supreme People’s Procuratorate of P.R.China.

Jurisprudential Monograph

Theoretical Basis of the Military Justice System and Typological Analysis

HUJinguangHUDalu·65·

There have been three ways to acknowledge military justice system，including management tool perspective，judicial power perspective and mediation perspective.In order to reach a consensus and advance the study，the judicial nature of military justice system must be accepted as the theoretical basis.Its specificity lies in the dual relationship between the service man and the state.The object and the legal interest of the military judicial power and the commanding power connect closely. The coordination can only be realized when bringing the element of commanding power into consideration. The military justice system can be divided into four types. The legitimacy, functions and institutional design of two types of military justice will be further discussed, one involved in the military relationship directly and the other aiming to protect service man's general social rights.

Hu Jinguang，Professor and Ph.D.Supervisor at Law School of Renmin University of China；Hu Dalu，Ph.D.Candidate at Law School of Renmin University of China.

Apportionment of Liability in Joint Harm Cases of Administrative Organ and the Third Party

ZHANGLiang·76·

The administrative law system constructed around public law is not perfect.The mixed liability resulted from cases of joint harm of administrative organ and the third party is not clear in State Compensation Law，but such cases happens.Judicial practice and judicial interpretations created by the Supreme People′s Court apply relevant norms of civil law essentially when dealing with such cases.Through the analysis ofHuangYuhevs.TumenForestryOffice，it can be clear that，in order to actively improve the remedies of rights and legal system，the relevant civil law can be applicable mutatis mutandis basing on the legal interests and norms，when dealing with the cases of joint harm of public body and private body and judge can not apply the relevant norms of State Compensation Law；the difference between proceedings of public and private law should also be distinguished while clearing the liability in substantive law.

Zhang Liang，Ph.D.Candidate at Guanghua Law School of Zhejiang University.

Broken Window Theory and Reconstruction of Chinese Criminal Regulation Pattern

JIANGTao·85·

Broken window theory make people believe that there is a necessary relationship among disorder，illegal act and crime by the way of empirical methods，and advocate zero tolerance policy as the basic strategy of crime control.Strengthening positive prevention is the product of broken window theory acting on the concept of criminal law.Positive prevention requires the legislator to pay attention to the treatment of micro crime to prevent the evolution of micro crime into a serious one.In that case，result-oriented crime determination in Chinese Criminal Law，which can’t regulate behavior but also be conducive to the effective defense of society，is worthy of reflection.It need to be revised by the way of constructing misdemeanor system and clearing applicable object of positive prevention.

Jiang Tao，Professor，Ph.D.Supervisor at Law School of Nanjing Normal University.

Empirical Research on Criminal Legal Aid

LIUFangquan·101·

The Criminal Procedure Code(CPC)amended in 2012 extended the object and procedural stages of criminal legal aid.According to the practice of the amended CPC，the number of the criminal legal aid cases is increasing somehow，and the timeliness of the aid is improved，although there is still some distance from the ideal situation.According to the survey of F city，inform aid is still the main type of criminal legal aid in practice，and applying for aid by the suspect，defendant or their immediate family member is few.As to the effectiveness，all the aiding lawyers can fulfill their basic responsibility of a defending lawyer，although there is somewhat short of initiative in investigating and searching for evidence.

Liu Fangquan，Professor at Law School of Fujian Normal University.

The Distinguishing of Trial Evidence Investigation Mode of Electronic Data

BIYuqian·123·

The development of information technology has profound influence on judicial investigation while changes people’s daily life.As a special new kind of evidence，how to define the attributes of electronic data is a subject causing intense debate in jurisprudence.The attributes of electronic data impacts not only on the parties how to gather，preserve and submit evidence before trial but also the court how to determine the way to investigate evidence in trial to find facts.

Bi Yuqian，Expert at National 2011 Program Judicial Civilization Collaborative Innovation Center，Professor and Ph.D.Supervisor at China University of Political Science and Law.

Discussion on the Right to Refuse Unsafe Work in Labor Law

ZHAOYixuan·133·

Working in a health and safe environment is one of the basic rights of workers.And the right to refuse unsafe work which function is to protect the right to health is also the most important and basic right of workers，which has a decisive influence on worker’s existence and development.Although it has been recognized under law and studied in theory，workers still cannot exercise the right to refuse unsafe work.The theory of three forms of the human rights provides a new unique perspective to study the right，from which we will find that it means compromising when the right to refuse unsafe work turns from the natural right to the statutory right and then to the practical right，and the most important thing is how to avoid the compromising when study the right and put it into the practice.

Zhao Yixuan，Ph.D.Candidate at Law School of Renmin University of China.

Law Forum

Content Framework of Legal Hermeneutics and Scene of Its Writing

ZHANGZhiming·145·

Legal hermeneutics is both a system theory about legal interpretation of phenomena and a complete disciplinary knowledge system.Legal hermeneutics involves three aspects，namely，the principles of legal interpretation，the techniques of legal interpretation and the institution of legal interpretation.The exploration on the principles of legal interpretation is to make an overall and profound inquiry into what is legal interpretation based on its practical definition.The techniques of legal interpretation，in a practical sense，illustrate how to explain the applicable law in the process of legal practice，especially judicial judgments，which involves how to establish interpretation methods and to construct and present the practice of interpreting arguments by using such techniques.The institution of legal interpretation explores who has the right to interpret the law and the matter of the interpretation authority basing on the current situation of China.Legal hermeneutics should be studied in complete theory and practice resulted from the developments of epistemology，the evolvement of jurisprudence，the progress of rule of law and justification of judicial judgments.

Zhang Zhiming，Professor at Law School of Renmin University of China，Ph.D.Supervisor，Yangtze River Scholar.

Law Abroad

Empirical Analysis on Shadow Jury Deliberations in Korea

[korea]Jae-HyupLee，etctranslatedbyHETing·155·

By direct observation and content analysis of the videotape about shadow jury deliberations in 18 actual cases between November 2010 and July 2011 in Korea，we examined four key areas in jury deliberation：(1)the binding effect of the jury verdict，(2)the number of jurors，(3)the jurors’ deliberations regarding both conviction and sentencing，and(4)the judge’s intervention in jury deliberation.The results demonstrate that the shadow jurors in general actively participated in the deliberation process by speaking in turn，and were respectful toward other jurors in debate.Misunderstanding of law and the intermingling of facts relevant to conviction or sentencing were not as frequent as many people expected.Also there was no definitive relationship between the size of the jury and the quality of deliberation.Although encouraging aspects as well as areas for improvement coexist，the overall quality of jury deliberation in Korea，as evidenced by this study，is positive.Over time，the Korean jury system is expected to be firmly established as a robust institution to increase democratic participation of the lay people and to enhance the credibility of the judiciary.

Jae-Hyup Lee, Professor at Seoul National University School of Law; Jisuk Woo, Professor at Graduate School of Public Administration, Seoul National University; June Woong Rhee, Professor at Department of Communication, Seoul National University; Jeong Min Choi, Lecturer at Graduate School of Public Policy of Sogang University; Hyunki Shin, Guest Lecturer at Korea Institute of Public Administration.

He Ting, Associate Professor at College for Criminal Law Science of Beijing Normal University, Doctor of Laws.