Criminal Balance Theory

This dissertation is organized into two parts. Part I (encompassing Chapter 1 -4) covers the fundamentals of criminal procedure theory of balance. Chapter 1 covers the basic scope of criminal procedure theory of balance. Chapter 2 covers the jurisprudential foundation of criminal procedure theory of balance. Chapter 3 covers the basic principles of achieving the balance of criminal procedure. Chapter 4 covers the mechanisms of achieving the balance of criminal procedure. Part II (encompassing Chapter 5-6) is devoted to the improvement of criminal procedural structure and criminal procedural process. Chapter 5 discusses the establishment of China's criminal procedure theory of balance. Chapter 6 emphasizes concerns over the improvement of criminal procedural structure and criminal procedural process.Chapter 1: the Basic Scope of Criminal Procedure Theory of Balance.Criminal procedure is a mixture of contradiction and conflict over the values of criminal procedure, the purposes of criminal procedure and the interests of the parties to criminal procedure. A reasonable choice is needed in the process of criminal law legislation and justice to resolve the conflicts. The theory of balance is a reasonable choice of resolving conflicts in the modern society and its fundamental principle is to meet the widest possible range of requirement of the parties. The basic scope of the theory of balance includes the balance of the values of criminal procedure, the balance of purposes of criminal procedure and the balance of multiple interests involved in criminal procedure. The balance of the values of criminal procedure is the essence of the balance of criminal procedure and has direct effects on the balance of purposes of criminal procedure. The choice of the values of criminal procedure and advance purpose are entirely depend on the balance of interests involved in criminal procedure. The values, purposes and choices of interests of modern criminal procedure, among which conflicts, overlaps and fusion exist, are multiple. The balance of criminal procedure is achievable and the key is the establishment of due criminal procedural process.Chapter 2: Jurisprudential Foundation of Criminal Procedure Theory of Balance.The subjectivity principle, the reasonableness principle and the democracy principleare the jurisprudential foundation of criminal procedure theory of balance. The subjectivity principle is the foundation of the theory of balance. The reasonableness principle is the intellectual norms of the theory of balance. The democracy principle is the guidance on dynamic balance. As the foundation of the theory of balance, the subjectivity principle imposes requirements for the widest possible range of interests of the parties including national interests, social interests and personal interests. The modern criminal procedure is supposed to respect and ensure the subjectivity of the accused and weigh the various interests. The reasonableness principle requires that disputes of criminal procedure be settled through negotiations with voluntary and active participation of the parties. The democracy principle provides for procedural guarantees and rigorous reasoning in the settlements of disputes of criminal procedure. The theory of balance originates from human subjectivity, uses reasonableness and procedural democracy as theoretical foundation, relies basically on the realization of justice, and aims to ensure civil, reasonable and democratic settlements of disputes of criminal procedure to balance the widest possible range of the interests of the parties.Chapter 3: Basic Principles of Achieving a Balance in Criminal ProcedureThe presumption of innocence principle, the accusatory procedure principle, the proportionality principle, the rule of warrants and the double jeopardy rule are the basic principles to achieve a balance in criminal procedure. The presumption of innocence principle provides for a fair start to prosecutors and defense lawyers in adversary trial and creates room for them to carry out the accusatory procedure. The accusa...