The Configuration Of ’Right-Power’ In Criminal Procedure: In The Perspective Of Constitutionalism

The ’new’ Chinese Criminal Procedure Law has come into effect since1stJanuary,2013. And the discussion of revising the Criminal Procedure Law will stop temporarily.The Criminal Procedure Law has changed a bit heavily, which includes amending theevidence system, mandatory measures, investigation measures, trial procedures, andexecution; as well as adding special procedures. However, the effect of new law is stillunknown.This thesis will focus on the configuration of ’Right---Power’ in Chinese criminalprocedure. With the perspective of Constitutionalism, it will survey the puzzle ofChinese criminal procedure and rethink the revision of Criminal Procedure Law. Thestructure and function of criminal procedure are both influenced by the political system.So the criminal procedure will have different concerns because of different politicalsystem. The core of constitutionalism is to ’regulate power’. In the background ofconstitutionalism, it is more important for criminal procedure law to regulate the publicpowers. The function of criminal procedure is to safeguard citizens’ freedom and basicrights rather than to punish crimes. Under this view, combing the theory of relationshipbetween law and politics, using the comparative method and taking the perspective ofSociology of Law, this thesis finds that there are two puzzle, which are institutionalpuzzle and technical puzzle in Chinese criminal procedure. And the institutional puzzleis more complicated and important. Not only the Shang Yang’s Puzzle (’how toguarantee that the laws are practiced’), but also the issue of criminal procedure structure,belongs to institutional puzzle. Basing on the analysis of issue of Chinese criminalprocedure structure, the thesis claims that the key to resolve the puzzle of criminalprocedure is to configure right and power. That means to pay more attention to regulatethe power of police, to arrange the power of prosecutor, and to make sure the neutraljudicial power is exist; it also means to take the criminal suspects, defendants and theirlawyers’ rights seriously.Of course, the configuration of ’right---power’ in Chinese criminal procedure notonly relates to the criminal procedure structure, but also need the support of politicalstructure. When there is the institutional puzzle, the power of the revision of CriminalProcedure Law will be limited. Because the institutional puzzle relates to therelationship between law and politics, rather than a pure legal category. Only within the background of constitutionalism can ’right---power’ in criminal procedure beconfigured efficiently, and then bring the rule of criminal procedure law. It is verynecessary to survey the configuration of ’right---power’ in Chinese criminal procedurewith the background of constitutionalism.