我国缺席审判的适用——以欧洲逮捕令为参考

An Analysis of the Application of Trial in Absentia in Chinafrom the Perspective of International Criminal Justice Cooperation

我国在开展缺席审判时,首先,必须采取适当的措施查找通知被告人,当被告人在明确知道预定审判并清楚缺席后果的前提下放弃了出庭权与辩护权,或者在知情权得到保证的情况下通过辩护人行使了辩护权,可以进行缺席审判。其次,当被告人未能明确已知预定的审判及其后果,则需要保证在引渡后无需被请求引渡人申请即重新审理或者给予被请求引渡人重新审理的机会。未来我国在开展缺席审判的过程中,需要充分保证被告人的知情权、辩护权与异议权。应将查找锁定被告人的下落作为首要前提,并谨慎处理重新审理中前后判决的衔接问题。

In carrying out trials in absentia in our country,we must first take appropriate measures to find and inform the defendant.When the defendant clearly knows the scheduled trial and the consequences of his absence,he or she has given up the right to appear in court and the right to defense,or the defendant’s right to know is guaranteed when the right of defense is exercised by lawyers can the trial be conducted in absentia.Secondly,when the defendant fails to clearly know the scheduled trial and its consequences,it is necessary to ensure that the trial is retried without the application of the person sought after extradition or under the application of the person sought.In the process of conducting trials in absentia in china in the future,we need to fully guarantee the defendant’s right to know,to defend and to dissent.The search for the whereabouts of the locked accused should be the primary prerequisite and the interface between judgments before and after the retrial should be carefully addressed.