The Jurisprudential Analysis Of Modern Criminal Litigation Structure Theory

It is obvious to the western scholars that Modern Criminal Procedure theory in the Anglo-American Law Countries and Continental Law Countries are well integrated with their long-time formed law culture, also their law systems are nourished by their litigation ideas. However, most of the structural scholars in China do their researches on the system level, interpreting the study of criminal litigation structure by analyzing criminal litigation structure, which cuts off the necessary connection between modern western criminal litigation structure study and its theoretical sources. This leads to the academic only seize the surface, even misunderstands the modern criminal litigation structure when early theory faces to our criminal proceeding legislation and execution practice. Moreover, China has joined UN's International Covenant on Civil and Political Rights (not become effective yet), which represents modern criminal proceeding ideas. There are many problems exposed in the criminal proceeding practice, which also makes it necessary to re-amend the criminal procedure law. Therefore, basing on western traditions, it is crucial for us to understand the criminal procedures of the western countries. Meantime, it is of vital importance to interpret our criminal proceedings basing upon Chinese theory tradition and current reality.Western Liberalism is the theoretical sources of modern criminal proceeding structure study. On one hand, modern criminal litigation structure study is based on Western Liberalism theoretically. The relatively mature liberalism was born and developed in the process of anti- absolute monarchy by west European people, whose basic contents are ontological liberalism and passive notion. The superorganic and ontological core of liberalism is individualism, which refers to putting people first, taking them to be the more"real"and ultimate ones that is superior to society, system and structure. It also represents that we should owe more cherish value to people rather than society or collective groups. By this way, individual, who is superior to society in any sense, is much more real than society. Passive freedom, which means"freedom from…,"is closely associated with the development of liberalism. It emphasizes the minimal and inviolable private domain. On the other hand, Limited Government Belief provides the theoretical basis for Modern Criminal Litigation Structure. One essential principle of the Limited Government Belief is"the rights or authority of the state or government is limited rather than absolute", which can be realized through Rule of law and Constitutionalism. Seeing from the ideological aspect, Rule of law refers to the primacy of good law, restriction of powers, equal rights and social self-determination. While from the latitudinarian principle it stands for the coherency of the official behavior and exoteric rules, availability of the Courts and the introducing of judicial review principle. One important aspect of Constitutionalism is powers restriction, and the primary way is power separation.Modern Criminal Procedure is not differentiated simply by time, while it is based on the theory of Liberalism and the idea of Rule of law and power separation. It is the generalization of criminal procedures that is completely reconstructed Inquisitive model after the Bourgeoisie Revolution, and then gradually developed according to the needs of the society. This means, it is connected with western Liberalism internally.At the same time,modern criminal procedure contains modern criminal litigation structure.Thus, modern criminal litigation structure is connected with western Liberalism and exhibited in the following aspects: first of all, the common position to fight against Absolute Monarchy; secondly, the establishment of modern criminal litigation is a part of the practice of Liberalism; finally, the form and evolution of modern criminal litigaton is guided by Liberalism. Therefore, it determines the following aspects: on one hand, modern criminal litigation structure ought to exhibit Passive Freedom sufficiently,that is: the freedom from inquisition by torture, the freedom from improper conviction and punishment, the freedom from illegal intervention, the freedom from violating one's dignity; on the other hand, modern criminal litigation ought to exhibit the inner values, such as: participation ,justice, neutrality, autonomy, promptness;finality,and it should carry out according to the legal principle. Moreover, with the change from Inquiry model to modern criminal procedure, the prosecuting organization that is an independent prosecuratorial organ appeared, and then prosecution-trial separation came into being. Modern Criminal Procedure established the idea and principle of prosecution-trial separation, that"is no claim no trial,"the burden of testifying one's guilty is on the prosecutor, and judicial authority gets control of the prosecution through due proceeding process. Since the 1990s', our criminal litigation structure has achieved much success and the general current is as follows: first, the visual angel of research changes gradually from simplification to pluralism, which embodies in the transformation from the single subject angel to the functional and sociological angel; second, under the subject angel, the research exposes the current of slightness and profundity. However, they cut off the internal connection between modern criminal procedure system and western theoretical tradition, which leads to the ignorance of the interests of the prosecuted and the abuse of the power restriction. Modern Criminal Litigation Structure, as the institutional express of the theory of modern criminal litigation structure, is the core of modern criminal proceeding. Because modern criminal procedure recognizes the prosecuted as the subjects and their litigant rights, some delaminating structure that is based on the interests of the prosecuted appears. Above all, since the interests of the prosecuted are appreciated, modern criminal procedure requests that the interests of the prosecuted should be always superior to that of the state represented by the prosecutor and the impartial judges, which leads to the interest structure of modern criminal procedure. Then, because different interests are vindicated by different parties,"triangle structure"comes into being. Finally, during the criminal procedure, for the benefits of their party, they need to take part in the primary process and the key step by the way of rights restriction and power inhibition, which lead to the formation of behavioral structure among the subjects.The basic notion of Western Liberalism is foundation of modern criminal procedure, while our theory foundation is mainly"family and state first", which emphasized that individual obeys and serves his country. Therefore, they contradict with each other: first, the radical difference between"family and state first"and"people first"; second, the essential differentiation between the sovereign imperial power and"king inferior to the law". This means, we can't establish criminal litigation structure that concerns the interests of the prosecuted basing on the elementary idea of Liberalism. But it is necessary to grasp their relations: on one hand,"individual is superior to the state"provides the theory support for the birth and progress of the modern criminal litigation structure, which is good for understanding the objects and direction of our criminal procedure legislation. On the other hand, our traditional law culture determines our current law practice, which helps us face to the long and difficult criminal legislative course reasonably. However, with some specific facts, western liberalism is consistent with the fundamental theory of our criminal procedure. That means: we are similar to modern criminal procedure in the jumping-off point and tasks, so it is unnecessary for us to deprive all and begin quite differently.Especially at present, our party takes the"human-oriented outlook"as its administrative notion, and makes it into effect through putting human rights into Constitution and the construction of a harmonious society. Therefore, our criminal proceeding will change with the development of times. With the conversion of the previous theory, it is exigent to clarify the following ideas of criminal procedure: first, taking the prosecuted as the main party during litigation; second, the exclusiveness of the essential human rights in our criminal procedure; third, supervision over our criminal proceeding. We should perfect criminal procedure legislation. In the Constitution, the basic rights should be taken into consideration and the power of the prosecutorial organs ought to be designed reasonably. In the criminal procedure law, the essential rights of the prosecuted should be confirmed and the relations among different government departments need to be orientated.So we can say that our criminal procedure is transiting from a traditional model to a modern one. Because it refers to the above-mentioned three all-round changes: theory foundation, procedure idea and legislation, it will take a long time to accomplish the modernization of our criminal litigation structure.