On Criminal Judicial Precedent Mechanism

In contemporary China, as an important part of the construction of politics civilization, modern judicial system, which is reconstructing justice and efficiency, has received certain achievements. At present, the court of our country's still faces how to strengthen justice's determinacy, how to achieve the important goal of judicial policy effectively -law's stability. To criminal judicial system, the main shortcomings are the absence of law's stability, which has many showoffs at present: the measurement of penalty guilty reflects some partial and light, even lopsided and heavy, lopsided and light. We should say that, the judicial system should have the function of fitting firmly rights of people, offering the effective guide for social life and people's behavior mode, all depend on the judgment's determinacy remarkably. In other words, criminal judgment's determinacy is not only the technical pre-requisite of whether criminal law achieves the protection of human rights and social protection, but also is the direct reflection of the embodiment of value of the law's stability, and the inevitable requirement of the achievement of social justice. There must be certain tension in a powerful legal system. In the criminal judicial process, although legal principle does not repel the amount of judging freedom, but the strict rule occupies even more important position forever. Criminal law system construction is to use the law's stability restraining the flexibility of law, to use the strict rule of legal crime and punishment restraining the freedom of judgment. And what the criminal judicial procedure reflected is to take determinacy as the core,complemented with proper adaptability. Then, to most people, does the criminal judicial determinacy have a fairly objective daily standard? To a great extent, the advanced conception, rational proposition and tight logic of the criminal legal systems, proper, complicated judicial process, which make professional experts feel hesitate, are not the total intension of the criminal judicial determinacy. To the general extent, the general standard of the criminal judicial determinacy should include " the colleague is with judging ". Just as we know, among civil, administrative judicial proceedings, " the colleague is with different judging" often can influence the basic principle of" interests trusts and protects " seriously; but in the criminal judicial proceedings, which is mostly involved with the people's freedom and life. " the colleague is with different judging" means unequally punish (crime) and protect (right). This certainly will injure people's value, law fairness and social order basically. So with" the colleague is with judging " as the core, to establish the criminal precedent mechanism has great realistic meanings.This text is divided into four parts: the definitions of the criminal precedent mechanism, the principle of criminal precedent mechanism, the history of criminal precedent mechanism, the construction of our country's criminal precedent mechanism.First part is the definitions of the criminal precedent mechanism. In this Part, the author firstly gives the conception of the criminal precedent, and discusses the core intension and of this conception. After that, the author pays more attention to the main part of this paper, that is "dynamic" research on the criminal precedent mechanism.Second part is the principle of the criminal precedent mechanism. The author discusses the principle of the criminal precedent mechanism through the observation of the criminal judge how to apply the law in judgment. First of all, the author analyses the judge's real work and idea around adjudicating the previous judgment. Therefore we find that, on one hand, the previous judgment has some guiding meanings to the judge, on the other hand, the judge has some impulse to deviate the previous judgment, and these form realistic contradiction. On this basis, the authorannounces that this" paradox " reflects the tension between the law's determinacy and the law's adaptability, and also reflects diversified judge's colony realization and experience. Judge cannot finish the coordination of contradiction, it needs effective relevant system. Secondly, the author discusses the meaning, structure , function and mode of the criminal precedent mechanism. In the discussion of the meaning of the criminal precedent mechanism, the author discusses the formation of the criminal precedent mechanism, and discusses how to make the abstract system to adapt to concrete numerous and complicated realistic circumstances, how to solve the difference of the law's words and phrases and the objective world, how to unite the judge's law experience and clear up the diversified issue of their experiences, how to protect the unity, determinacy and predictability of criminal judicial proceedings to achieve criminal law's stability. Moreover, the author tries to use the theory mode " structure + function ", gets deeply to the proposition of the criminal precedent to find the social arrangement which is based on human ration, and to find the basic structure of the criminal precedent mechanism--" growing system ", " the society conducting system " and " operation ensuring system", thus the author announces its main function. After comparative analysis to the different criminal precedent mechanism mode, the author exhaustively discusses the system character of criminal precedent mechanism in different law family.The third part is to utilize the relevant theories of the principle of the criminal precedent mechanism to discuss the generality, distinction and social background of the criminal precedent mechanism under different legal systems (history and culture, function and its one's own logic line of reasoning). On the basis, the author announces that different systems have inherent connection, and he clears some obscurity that has appeared already, clarifies the origin of the criminal precedent mechanism. In the discussion to the criminal precedent mechanism of the common law family, the author regards that; the meaning of the criminal precedent mechanism is for the judicial system. To some contents, this mechanism does not distinguish in the criminal precedent mechanism of the statute law family. In the judicial proceedings," all factors " which impel the growth of the criminal precedentmechanism, such as the judicial determinacy, appear difference with the forming factors of the precedent law system. When we transform microscopically words of social control of the criminal precedent mechanism to judicial concrete practice, we can find that, in the history of the formation and development of the criminal precedent, revival particularity of the precedent law system is also the problem which puzzles us, that is, the tension of judicial determinacy and judicial adaptability, the tension of judicial unity and flexibility, and so on. Constrained strength of criminal precedent is also around the self-related paradox to entangle and change, and to make judicial proceedings need the operation of the criminal precedent mechanism to really reflect stronger determinacy and social adaptability. Herein, the precedent mechanism of the precedent law has very important inspiration and realistic meaning to us. In the history and development of the precedent law, formation of the criminal precedent mechanism is from the factor of "who provide legal rule", which is connected with the power construction of country administration. This is inevitably connected with the Britain's unique politics, the history of social administration, culture, tradition and logic. The meaning of the precedent law system is not only just an unique macro law mode, but it is also the special practice of country and society administration. In the discussion of the criminal precedent mechanism of the statute law mode^the'author analyses the criminal judicial proceedings of Germany, Japan and Taiwan, and he regards that the court is not restrained by the criminal precedents of other courts, specially the upper courts, is correct ideally. In the concrete operation, many statute law countries through the criminal procedure law and even court organization law take measures to guarantee the judgment and precedent of the inferior court does not deviate from the precedent of the supreme court. In these countries, the criminal precedent has not the effect in legal origin meaning (on the legislative aspect), but it through the power of judicial procedures and the court organization system guarantees the function of maintaining the judicial unity, therefore, the criminal precedent has some indirect meanings. In the discussion to the criminal precedent mechanism on China's history, the author analyses the structure, function, history, culture of the ancient criminal precedent mechanism, he regardsthat, the logic of China's ancient criminal precedent mechanism is to solve the paradox of the law's determinacy and law's adaptability. However, the question to solve is inevitably connected with the political system and country's administration. In China's ancient society, law has no independence itself. This reflects the law had not reformed its own character and value, and also it reflects the law had not formed systemically judicial ration. The judicial system is a kind of political tool to guarantee the empire's power and peaceful kingdom. Once the ruler feel the law abandoned his power, he would tie down the trick. Moreover, ancient law experts had not formed objective, neutral legal techniques, for example, the criminal precedents has great amounts, but legal system had not developed the principle of the formulation of precedent and other relevant judicial technology. The independence of law is connected with the democratization degree of the society. Ruling by law is an organic part, just like democratic politics, freedom, and human rights. Lacking one of them, the others would not exist. In contemporary China, construction of democratic, rule-of-law society has been the policy of country administration of our communist Party of China. Under this narration, the criminal precedent mechanism is not the tool of ancient officer to " produced clouds with one turn of the hand and rain with another ", but the mechanism of protecting judicial unity, balancing the law's determinacy and adaptability.The fourth part is to discuss the construction of China's criminal precedent mechanism. In the part, the author mainly discuss these questions, "why China needs the criminal precedent mechanism", "China needs what kind of the criminal precedent mechanism". Our country's criminal justice has the meaning of criminal judicial proceeding's determinacy. This kind of mechanism mainly reflects microcosmic judicial technology and practical ration to protect the criminal judicial proceedings. To the condition of the construction of the criminal precedent mechanism, the author deeply discusses China's precedent tradition, the chance of modern rule-of-law construction, solid foundation of the theory research and judicial practice, judicial reform and modern technology. On this basis of macroscopically argumentation of the construction of the China's criminal precedent mechanism, theauthor discusses the unity of punishment of the criminal precedent mechanism, and using the criminal precedent mechanism to substitute "legislating" judicial explanations. Finally, the author provides the whole designing of the construction of China's criminal precedent mechanism, and discusses relevant detail questions.