Criminal Proceedings Modernity

The subject of this thesis is about the modernity of criminal procedure. The thesis will try to explore the main characteristics and basic rules of criminal procedure on the base of studying the basic theory of the modernity of criminal procedure, and at the same time explores interaction between social change, development and the evolution of the rule of criminal law. The thesis will try to build up a development type of the rule of criminal Law, and try to explore the inner logic of the rule of criminal law in China.This thesis is divided into 6 chapters. Chapter one is introduction. The three chapters in the middle is about the three dimensions of modernity in Criminal procedure, they are rationalization, subjectivity and legitimacy, the last two chapters explore the modernization of Criminal procedure, that is the evolution of the rule of criminal law. Chapter one explores the purpose and the meaning of this study. It analyses the concepts and theory, in the end it provides the way and study methods.Chapter two: The first dimension of modernity of criminal procedure——rationalization. In section one, firstly the thesis explores the ideas of classic thinkers, secondly it analyses the notion of Max Weber, and thirdly it explores the idea of communication ration of Herbemas. In section two, the thesis points out the law is the of rational existence, and then analyses the ideal type law and its embody in criminal procedure. In section three, the thesis explores the principle of procedural ration, and then analyses the relationship among the ration, the ration and criminal procedure on the base of value- ration and value-ration of criminal procedure. In section four, it points out non-ration of criminal procedure, and advances the solution.Chapter three: The second dimension of modernity of criminal procedure——subjectivity. In section one, firstly the thesis explores the concept of subjectivity, and then analyses the theory of procedural subjectivity on the base of the accused and the victim's subjectivity. In section two, firstly, it explores the theory of inter-subjectivity, and secondly it explores the accuse subject, the defense subject and the trial subject in the perspective of perspective of procedure structure. Thirdly it analyses the relationship among every subject in the vertical structure, at last it analyses the relationship among every subject in the horizontal structure. In section three, it gives case study on the inter-subjectivity of criminal procedure, firstly it explores the Plea Bargain, secondly it analyses the relationship between the accused and victim on the base of Restorative Justice, thirdly it analyses the relationship among the accused, victim and the accuse subject on the base of criminal contract.Chapter four: The third dimension of modernity of criminal procedure——legitimacy. In section one, firstly it explores the meaning of legitimacy, secondly it analyses the legal ruling type of Max Weber, secondly, it makes a contrast between the legitimacy and legality, at last it analyses the theory of Luhmann's legitimating by procedure. In section two, firstly it explores the role that the procedure plays in the legitimating, and points out that procedure is the basic resource in legitimating; secondly it explores the content and the evolution of Due Process; thirdly it analyses the social value of criminal procedure legitimating.Chapter five: The expression of modernization of criminal procedure——the evolution of the rule of criminal law. In section one, it explores the idea of the rule of law in ancient, middle ages. Modern and contemporary time, it analyses the content of the rule of criminal law, and makes a contrast between the formal and substantive rule of law, and explores their advantages and disadvantages. In section two , it explores the formation and transformation of the rule of criminal law. Firstly it gives the study frame work of state-society on the base of state-society theory of Gellher and Habermas Secondly it analyses the evolution...