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| Research on the Procedural Guarantee of Substantive Trial of Parole Cases#br# — Based on an Empirical Analysis of Parole Cases in Z Province from 1990 to 2020 |
| Sun Haiyan |
| School of Law, Nanjing University, Nanjing 210093, China |
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Abstract The trial procedure of parole cases in China has not really been included in the litigation procedure, for its initiation is completely controlled by the penalty execution organ. As a result, the function of the litigation subject has been lost and misplaced, the power of judgment is alienated into the power of review, and the current adjudication procedures and logic can not guarantee the legitimacy of the trial results. How to ensure the realization of substantive trial of parole cases through procedural operation has become an urgent problem to be solved. The reason behind the problem is mainly due to the system setting of “power” rather than “right” in value orientation, the cognitive factors that parole has different faces in the eyes of many litigation subjects, the normative factors that the judgment of substantive conditions is complex and the litigation operation rules are missing, and the mechanism factors that the supporting mechanism is flawed. So, we should prefer the notion of “right” to that of “reward”, set the system objectives of standard procedure and judicial corruption prevention, and create a trial procedure, different from that of ordinary criminal cases, that shifts from the adversarial transformation of the litigation mode to the dual judicial mode based on cooperation. We should establish the functional orientation of the trial mode rather than the review mode. Thus, through the choice and diversion of multiple proceedings, we can realize the substantive trial of parole cases.
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