In modern bourgeois states, two types of criminal procedure have evolved historically and exist now; a continental type of officialist criminal procedure called “half-inquisitorial and half-accusatory”, and an Anglo-American type of more accusatory and adversary criminal procedure.
The continental type of criminal procedure has its essence in the procedure before trial (especially in the procedure of
Voruntersuchung) which maintains the inquisitorial procedure approximately as it is, and therefore, this can be called inquisitorial proceeding by
Untersuchungsrichter, in that it makes
Untersuchungsrichter a substantial judge for all criminal procedures. It is generally known that this “inquisitorial proceeding by
Untersuchungsrichter” takes its original form in the French Criminal Procedure of 1808, and that the Prussian Criminal Procedure of 1847 and the German Criminal Procedure of 1877 belong to this type. But these two types of modern criminal procedure have been made several revisions in each country.
In Japan the Criminal Procedure of 1880 and that of 1890 received the French Criminal Procedure of 1808, and the Criminal Procedure of 1922 was under the great influence of the German Criminal Procedure. As regards the old Criminal Procedure of 1922, entirely amended by the new Criminal Procedure of 1948, the previous “inquisitorial proceeding by
Untersuchungsrichter” was revised and evolved to “inquisitorial proceeding by a prosecutor”. However, the reformations and revisions in each country did not result in the abandonment of the “original type”.
From this discussion, our problems can be set up as follows. First, what is the fundamental cause of the formation and development of these two types? Secondly, what is the cause of the development from “inquisitorial proceeding by
Untersuchungsrichter to the “inquisitorial proceeding by a prosecutor”?
In this paper, I dare focus my research on the second problem with a perspective of the first problem.
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