The Prosecution Of The Person's Constitutional Rights

Constitutionalism is the result of modern democratic politics and of the modern legal system surmounted the traditional one. Constitutionalism means that the government should exert its power within the scope of legal of law and for the people. In the meantime, constitutionalism also intent to remain and protect the human rights while having an independent organ to handle legal affairs so that the government will not depart from the constitution and ensuring the power will not be centralized to injure human rights. One of the constitutional spirits lies in that to limit the power according to constitution to safeguard human rights. Because criminal procedure is related to limiting and depriving citizen's freedom, assets and life, almost all the countries in the world provide the criminal procedure and the relating systems at the level of constitutions. "Concerning the constitution" is a marked character of criminal procedure law. The three concepts of constitutionalism, constitution and criminal procedure should be related to each other closely at the same time of mutually benefiting each other. However, the current situation is not so in China. The fact results in that the constitution cannot exert its functions to some extent so that the realization of constitutionalism is delayed and lots of problems arise from the implementing the criminal procedure law, esp. the problems of injuring human rights, which can not be resolved only by reforming criminal procedure law. The research of the relations of constitution, constitutionalism and criminal procedure is the most pressing matter of the moment in China. But the knowledge and issues concerning the research are very wide and not easy to handle, so the article select the constitutional rights of the accused as a starting point to discuss these relations. As I think, in criminal procedure, besides ensuring the implementation of criminal law, the most important purpose of it is to limit power while protect rights of which the main targets is the accused. In criminal procedure, it is very common to see the rights of the accused were injured. There are lots of reasons to explain the phenomena that are not fit with the constitutional spirits, and one of them is that the law itself is not good. Making the comparative research, we can find that the criminal procedure should be explained at the level of constitution while not only at the level of criminal procedure law. That is to say, some of the important rights of the accused should be provided by constitution at the same time protected by a series of systems, such as constitutional litigation and review of constitutionality. There are seven chapters of the article. In chapter one and two, the discussion is mainly about constitutional spirits and the internal values of human rights protection. The contents of current constitutionalism have gone through a long history of economy and politics changes, and is the results of maintaining principles and compromising. At the different stages of history, the protection to the accused in criminal procedure is different. Therefore, it is very important to determine what is the modern constitutional spirits. In the two chapters, on the basis of discussion of the value of constitutional spirits and the relations between criminal justice and constitutionalism, I pointed out that in the process of modernization of our criminal justice system, there are two characters should be paid attention to: the respects to human rights and the pursue of the value of procedural independence. The analysis provides a good theoretic stage for the further discussion and establishment of the constitutional rights system of the accused in China. From Chapter 3 to Chapter 5, the discussion and research are aiming mainly to the comparative and practical analysis to the accused's constitutional rights system. When introspect the current constitutional rights of the accused in China, I am also focusing the rights, which should be added to the constitution. First, there have been some rights of...