Font Size: a A A

Property Right And Criminal Procedure

Posted on:2006-09-17Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y WanFull Text:PDF
GTID:1116360155463824Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
In the sight of development history of human society, property institution had been operating great and irreplaceable functions. It is the basis of human society, not only for her existence, but also for her evolution. In the view of the legislation and judicial practice in modern countries', property right protection institutions have been set up comparatively well. They are regulated both in the Constitutions and laws. For the first, it is the fundamental right affirmed by the Constitutions; furthermore, almost all the important branch laws, both public laws and private laws, provide a great deal of rules for protecting the property right, such as the articles about property right impingement crime in criminal law, the articles about real rights, creditor's rights, and the intellectual property rights in civil law, and so on. Accordingly, property right protection becomes the value orientation and basic contents of the modern legal institution.Criminal procedural law is usually called "applied constitution" or "the operative law of constitution". They have very close relationship, which decides criminal procedural law inevitably acts as the guardian of the fundamental rights of citizens, especially for the property right Criminal procedure is a kind of process for enforcing penalty power in nature, which have the assignment to solve the problems how to deal with the criminal responsibility of the suspects and the accused. So, inorder to fulfill it, the enforcement organs should perform public power actively, broadly, and far-reachingly, sometimes, national power should unavoidably interfere defendant's fundamental right,compel to restrict and even temporarily deprive their person and property rights. This kind of national power and actions also may illegally impinge defendants' fundamental rights, and also, with consideration of the lopsided power and equipment (including the procedural resources and technical strength) between public organs and defendants in the criminal procedure. Defendants usually can't protect themselves in the face of the great public power. So this makes the protection of defendants' property rights become a universal and urgent theoretical issue.This paper is named "Property Right And Criminal Procedure: in the perspective of protection of the defendants' rights", which is divided into four parts:In the first chapter, I put forward the theoretical proposition about property right protection in the criminal procedure, and explain the value, meaning and standpoint of the paper. Property right institution is undoubtedly of significance for the existence and development of the human society. For a long time, criminal procedural research concentrates on the protection of the person rights of the defendants, but comparatively neglects what of the property rights. Accordingly, the first purpose and assignment of this paper is to emphasize the issue that property right is also the one of the fundamental rights, and also should be guaranteed. It-exploits a new theoretical field, and arouses researchers' attentions to the protection of defendants' property right. In this part, it advances ''minimal justice" theory, which emphasizes the universality and transplantablity of criminal procedural principles and identifies the relativity of institution transplantation between different cultures, which has the minimal justice requirements. It is the premise for all analysis and research of the paper.The second chapter gives a theoretical system for property right protection. It mainly solves the problem why we should emphasize the protection of defendants' property rights. It follows two approaches, for the first, the history which property becomes the fundamental human right from a customary right Therefore, itdescribes the evolution history of property notion from ancient CJreek and ancient Rome to neoteric and modern eras. For the second, in the view of the nature of criminal procedure, with the increase of the public power, the impingement of defendants' fundamental rights is inevitable, of course including property rights. While, modern criminal procedure pays much more attention to the protection of fundamental rights, therefore, it will necessarily restrict national power through Hue process.The third chapter, "the procedural principles for property right protection in criminal procedure." In order to guarantee the defendants' fundamental rights, most countries construct a system of procedural principles, which accord with the nature and order of fair criminal justice, such as legal process principle, due process principle, proportional process principle, judicial writ principle, and so on. These principles set up a very strong system for the defendants' property right protection, certainly including the property right. Therefore, I give a profound analysis on the origin and meaning of these principles.The fourth chapter,"the institutions for property right protection in criminal procedure." In order to protect the defendants' property right absolutely, there are comparatively mature and systemic institution structures in modern countries. In this part, I use the comparative method make a research on the correlative legislative experiences and practical mechanism in foreign countries and regions, which contain a series of specific procedural institution and rules about search, seize, interrogate, examine, and so forth. And then, I try to conclude the universal experiences on defendants' property right protection in criminal procedure.The fifth chapter, "The condition, problems, and reform of China's criminal procedure on property right protection in criminal procedure." Nowadays, the reform of criminal procedural institution is in the wind. It is an important part of reform to revise the articles related to the property right protection. Recently, property right is affirmed as a fundamental right, as an applied Constitution, criminal procedure law should necessarily make a response. In order to fulfill this assignment, we should know the real condition of property right protection in the enforcement of criminalprocedure law, and grasp the real problems. Through our surveys, we find out that the process about property rights not only lacks of the basic notion and principles, but also lacks of rational institution and procedures. Therefore, we should modify and regulate the relative procedure in criminal procedure law pertinently, on the basis of learning, transplanting the foreign legislative and judicial experiences and combining with our concrete situation.
Keywords/Search Tags:property right, criminal procedure, minimal justice, coercive measures
PDF Full Text Request
Related items