On The Balance Of The Values Of The Criminal Litigation

It's no doubt that "balance" is the emphasis of the proposition "On the balance of the values of the criminal litigation", but "balance" is just a state and the proposition can not be pressed for the basic which can support the state. The value of the criminal litigation are just the basic which can support the state of "balance" in the thesis, and it must be the secondary emphasis of the thesis. According to this cognition, the preface which explains the origin of the problem and the course of the research and four chapters constitute the thesis. Chapter one "on the values of the criminal litigation" is written at length about the theory about the values of the criminal litigation, and it tamps the basic of the "balance". Chapter two "on the conflicts of the values of the criminal litigation", Chapter three "on the balance of the values of the criminal litigation" and Chapter four "on the rectification of the unbalance of the values of the criminal litigation" discuss the "balance" which is the emphasis of the thesis jointly, and establish the integrated system of the theory about the "balance" of the values of the criminal litigation. The theory about the conflict is the precondition of the theory about the balance. The theory about the rectification is the progress of the theory about the balance.The preface explains two problems: one of the problems is the origin of choosing "on the balance of the values of the criminal litigation" as the subject, and the other one is the course of the research about the "on the balance of the values of the criminal litigation". As to the origin of the problem, the preface explains the course from the notion about the balance of the values being inspired by the subject of the entrance examination to the notion being intensified gradually and the notion being chosen as the subject at last. As to the course of the research, the thesis uses the positivism method of research about the whole criminal laws in the specifically research about the values of the criminal litigation, and uses the method of research about Marx establishing the theory of the values of the commodities for reference in the research about the specifically values the criminal litigation has, and uses the method of the utilitarianism and the method of comparison research in the research about the inherent relation of the values of the criminal litigation, and uses the method of system in the research about the "balance" which is the emphasis of the thesis and is a big system which is made up of three small systems including the "conflict", the "balance" and the "rectification".In Chapter one, after defining the values of the criminal litigation, the thesis reviews the historical evolution of the values of criminal litigation and expounds the arrangements of the values of the modern criminal litigation, and then establishes the new theory about the criminal litigation, and tamps the basic of the theory about the balance of the values of the criminal litigation.The first part of this chapter "the definition of the values of the criminal litigation" firstly defines the values of the criminal litigation. According to the logistic principle that the conception must open out the given meaning and confirm the extension, the conception of the values of the criminal litigation is that the values of the criminal litigation is the benefit attribute of the criminal litigation which is endowed by the dominators or the interest groups which have power to legislate law and hold the national power, and can satisfy the given demands of the dominators or the interest groups. The conception emphasizes the essence of the values of the criminal litigation is the benefit attribute of the criminal litigation which is endowed by the people legislating the criminal law. The definition indicates that the values of the criminal litigation represent the intrinsic values, such as the right of criminal litigation and the obligation of criminal litigation, when the value of the criminal litigation must satisfy the criminal litigation itself, and the values of the criminal litigation represent the extrinsic values, such as the value about achieving the purpose of criminal law and the value about encumbering the purpose of criminal law, when the values of the criminal litigation must satisfy the given demands which are set by the people legislating the criminal litigation law. The values about achieving the purpose of criminal law indicate concretely three arrangements including the value about achieving the criminal law, the value about controlling the crime and the value about the maintaining the order. The thesis opens out the character of the values of criminal litigation in succession. The values about encumbering the purpose of criminal law indicate concretely three arrangements including the value about restricting the power, the value about protecting the right and the value about the justice of the procedure. The essential characters of the values of criminal litigation include the criterion, the subjectivity, the evolvement, the arrangement and the opposite. The criterion means the values of the criminal litigation must be restricted by the criminal litigation law and the values of the criminal litigation law. The subjectivity means the values of the criminal litigation must be satisfied by the given demands of the dominators or the interest groups legislating the criminal litigation law. The evolvement means the values of the criminal litigation must be developed constantly along with the development of the society of the human. The arrangement means there are several arrangements between intrinsic values and extrinsic values, and in the extrinsic values. The opposite means no matter intrinsic values or extrinsic values, are obvious opposite.The second part of this chapter "on the historical evolution of the values of criminal litigation" reviews the historical headstream of the formation of the modern dualistic value system. The thesis reviews that the impeachment model and the classical dualistic value system exit in the same period, and in the classical dualistic value system, the value about encumbering the purpose of criminal law is in the station of superiority and the value about achieving the purpose of criminal law is in the station of inferiority; and the inquisitorial model and the unitary value system exit in the same period, and the value about achieving the purpose of criminal law is the only one value of the unitary value system; and the modern mixed model and the modern dualistic value system exit in the same period, and in the modern dualistic value system, the value about the achieving purpose of criminal law and the value about encumbering the purpose of criminal law come into equilibrium gradually. The thesis demonstrates the historical inevitability of the evolution from the classical dualistic value system to the unitary value system and the evolution from the unitary value system to the modern dualistic value system.The third part of this chapter "the arrangements of the values of the modern criminal litigation" expatiates on the relation about the arrangements of the values between the intrinsic values and the extrinsic values, and the relation about the arrangements of the value about achieving the purpose of the criminal law including achieving the criminal law, controlling the crime and maintaining the order, and the relation about the arrangements of the value about encumbering the purpose of criminal law including restricting the power, protecting the right and the justice of the procedure. It forms a new view of the arrangements of the values of the criminal litigation through this expatiation. Firstly, in order to explain the arrangements of the values of the modern criminal litigation, this part uses the method of positivism to review the fact that the intrinsic values is made up of the subject who has the right of the criminal litigation and bears the obligation of the criminal litigation, the condition of exerting the right of the criminal litigation and performing the obligation of the criminal litigation, the procedure of exerting the right of the criminal litigation and performing the obligation of the criminal litigation, and the safeguard of the right and the obligation of the criminal litigation. There are several innovative views, such as the sum-up of three models about the subject who has the power to censor the case and prosecute, and two models about the subject who has the power to hear the case, and three models of the subject who has the power to judge the case, and four characters of the subject who has the power to judge the case, and two models of restricting the power, and the sum-up of the single-track model, the oppositional model and the triquetrous model about exerting the right of the criminal litigation and performing the obligation of the criminal litigation, and the sum-up of the safeguard of the right and the obligation of the criminal litigation including three models which are the self safeguard of the right of the criminal litigation of the departments, the restricted safeguard of the obligation of the criminal litigation of the departments and the safeguard of the right of the criminal litigation of the litigants. Secondly, the thesis explains the relation of the implement and the purpose between the intrinsic values of the criminal litigation and the values about achieving the criminal law in the extrinsic values connects the intrinsic values of the criminal litigation to the value about achieving the purpose of the criminal law in the extrinsic values, and explains the relation of the implement and the purpose between the intrinsic values of the criminal litigation and the value about restricting the power in the extrinsic values connects the intrinsic value of the criminal litigation to the value about encumbering the purpose of the criminal law in the extrinsic values. Thirdly, the thesis ravels the relation of the implement and the purpose between each anterior value and the posterior value in the arrangements of the value about achieving the purpose of the criminal law which includes the value about achieving the criminal law, the value about controlling the crime and the value about maintaining the order, and ravels the relation of the implement and the purpose between each anterior value and the posterior value in the arrangements of the value about encumbering the purpose of the criminal law which includes the value of restricting the power, the value about protecting the right and the value about the procedure.Chapter two "on the conflicts of the values of the criminal litigation" expounds respectively the conflict between the right of the criminal litigation and the obligation of the criminal litigation in the intrinsic values of the criminal litigation, and the conflict between the value about achieving the purpose of the criminal law and the value about encumbering the purpose of the criminal law in the extrinsic values of the criminal litigation, and the conflict between the value about achieving the criminal law and the value about restricting the power, and the conflict between the value about controlling the crime and the value about protecting the right, and the conflict between the value about maintaining the order and the value about the justice of the procedure. It has established a new system of the values of the criminal litigation which is the precondition of the balance of the values of the criminal litigation.The first part of this chapter "the conflicts of the intrinsic values of the criminal litigation" firstly generalize that there are three conflicts in the right and the obligation of the criminal litigation which are the conflict between the right of the criminal litigation of the accusants and the obligation of the criminal litigation of the defenders, and the conflict between the right of the criminal litigation of the accusants and the simplex obligation of the criminal litigation of the accusants, and the conflict in the rights of the criminal litigation of the accusants. Secondly, the thesis emphasizes that the conflict coming from the entitative problems, such as the evidences, the facts and the judgments, progresses in the achieving the purpose of the criminal law, and after going to externality, the extrinsic value is just the value about the achieving the purpose of the criminal law, and there isn't the conflict between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law. The theses also emphasizes that the conflict coming from the procedure problems, such as the coercive measures relating to the right of the personal freedom of the citizens and the right of the property of the citizens, and the other coercive spy, and after going to externality, the conflict between the accusants and the defenders will form the conflict between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law. Thirdly, the thesis points out that the procedure conflict between the oppositional model and the triquetrous model in the pretrial procedure lays particular stress on the procedure problems, and after going to externality, this conflict will form the conflict between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law; but the triquetrous model in the judicial procedure, which is the most typical procedure conflict model and has the character of the conflict, such as complete, obverse, direct and equal, lays particular stress on the entitative problems, and after going to externality, this conflict won't form the conflict between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law. Fourthly, the thesis summarizes that the conflict in the intrinsic values must form two extrinsic conflict systems after going to externality. One extrinsic conflict system is about the conflict between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law in the extrinsic values of the criminal litigation and the conflict between the arrangements in the intrinsic values and the extrinsic values, and this system includes the conflict between the value about achieving the criminal law and the value about restricting the power, and the conflict between the value about controlling the crime and the value about protecting the right, and the conflict between the value about maintaining the order and the value about the justice of the procedure. The other extrinsic conflict system is about the conflict about the entitative problems, such as whether the defendant is guilty or not and what responsibility the defendant must bear for the crimes, in the value about the achieving the purpose of the criminal law which is in the extrinsic values of the criminal litigation.The second part of this chapter "the conflicts between the value about achieving the criminal law and the value about restricting the power" points out that the realization of the criminal law must have three elements which include the manpower, the material resources and the power. Each of these three elements and the realization of the criminal law are in the relation of the direct proportion. The thesis demonstrates that the relation of the direct proportion between the national power in the criminal litigation and the possibility of the realization of the criminal law decides the relation of the conflict between the value about achieving the criminal law and the value about restricting the power, and quests for the origin of the conflict between the value about achieving the criminal law and the value about restricting the power. The thirdly part of this chapter "the conflict between the value about controlling the crime and the value about protecting the right" points out that the double characters of the justice and the improbity which national power has in the criminal litigation is the origin of the conflict between the value about controlling the crime and the value about protecting the right. The thesis also demonstrates the conflict between the value about controlling the crime and the value about protecting the right is the conflict between the improbity of the national power in the criminal litigation and the justice of the right of the citizens in substance.The fourthly part of this chapter "the conflict between the value about maintaining the order and the value of the justice of the procedure" opens out that there are two origins of the conflict between the value about maintaining the order and the value of the justice of the procedure. One of the origins is there is a direct conflict between maintaining the social order which may be infracted by the crime and maintaining the social order which is in the area of the legitimate procedure when the problem whether the national power in the criminal litigation must be expanded or not is faced. The other origin is that the resource the nation devotes to the criminal litigation is limited.Chapter three "on the balance of the value of the criminal litigation" firstly points out the balance of the values of the criminal litigation is the inevitable result of the conflicts of the values of the criminal litigation, and then defines the definition, the basic character and the balanceable standard of the balance of the values of the criminal litigation, and discusses the academic basic about the balance of the values of the criminal litigation.The first part of this chapter "the definition of the balance of the values of the criminal litigation" defines the balance of the values of the criminal litigation as the balanceable state about the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law and the balanceable state is formed by the bout between the value about the achieving the purpose of the criminal law and the value about the encumbering the purpose of the criminal law. The balance of the values of the criminal litigation has two states including the absolute balance of the values of the criminal litigation and the relative balance of the values of the criminal litigation. The thesis opens out that there are four basic characters in the balance of the values of the criminal litigation which are the criterion, the arrangements, the idealization of the absolute balance and the actualization of the relative balance. The thesis essentializes the absolute balanceable standard among the values of the intrinsic value of the criminal litigation, and between the value about achieving the criminal law and the value about restricting the power, and between the value about controlling the crime and the value about protecting the right, and between the value about maintaining the order and the value about the justice of the procedure, and then studies the relative balanceable standard of the values of the criminal litigation. Based on the four principles about the relative balanceable standard of the values of the criminal litigation, the thesis forms the relative balanceable standard of the right and the obligation of the criminal litigation, and of the subject of the right and the obligation of the criminal litigation, and of the procedure of the right and the obligation of the criminal litigation, which provides the basis for Chapter four "on the rectification of the unbalance of the values of the criminal litigation".The second part of this chapter "the impetus of the balance of the value of the criminal litigation" firstly defines that the transverse impetus of the balance of the values of the criminal litigation is the power of the value which maintains the balance of the intrinsic values of the criminal litigation, and between the value about achieving the criminal law and the value about restricting the power in the extrinsic values of the criminal litigation, and between the value about controlling the crime and the value about protecting the right, and between the value of maintaining the order and the value about the justice of the procedure. The thesis also points out that the impetus comes from the self expandedness of each value, and the expandedness brings the tensile force, and the result of the self expandedness of two opposite values is the conflict, and then the balanceable state will be formed when this conflict neither perishes one value nor breaks through the entia in which the two values exit. Secondly, as to the lengthways impetus of the balance of the value of the criminal litigation, the thesis points out that this self tensile force of the value which is the implement comes from the demands of the value which are the intention, and the basic lengthways impetus of the balance of the values of the criminal litigation comes from the given demands of the dominators or the interest groups who have the national power and legislate the criminal litigation law.The third part of this chapter "the academic basic of the balance of the values of the criminal litigation" firstly defines that when researching the academic basic of the balance of the value of the criminal litigation, we must choose the underprop of the theory beyond the area of the values of the criminal litigation and study that the basic of every couple of the values must have the same characters, and the thesis brings forward a new view that the values can't be compared if the values don't have the same character basic. Secondly, the thesis studies that the value about achieving the criminal law and the value about restricting the power have the same basic which is the social justice, and the value about controlling the crime and the value about protecting the right have the same basic which is protecting the right of the citizens, and the value about maintaining the order and the value about the justice of the procedure also have the same basic which is maintaining the order.Chapter four "on the rectification of the unbalance of the values of the criminal litigation" firstly demonstrates the correctional meaning that the balance of the values of the criminal litigation gives to the unbalance between the value about achieving the purpose of the criminal law and the value about encumbering the purpose of the criminal law in the modern criminal litigation, and points out the intense oriented effect that the balance of the values of the criminal litigation gives to the modern reform of criminal litigation law, and brings forward the view that we must hold the occasion of the innovation of the criminal litigation and pay attention to the power of the value which affects the balance and unbalance of the values of the criminal litigation. Secondly, the thesis uses the method of the positivism to review the typical example of the rectification of the unbalance of the values of the criminal litigation in the foreign countries, which not only find a practical annotation for the "balance", but also give an example for the rectification of the unbalance of the values of criminal litigation in our country. At last, the thesis opens out the unbanceable actuality of the actual criminal litigation in our country through the theory about the balance of the values of the criminal litigation, and then brings forward the comprehensive notion about the rectification of the unbalance of the values of the criminal litigation. The thesis points out that the unbalance of the values of the criminal litigation in our country is very obvious in the world. The values of the criminal litigation obviously partial to the value about the achieving the purpose of the criminal law including the value about achieving the criminal law, controlling the crime and maintaining the order, and try to restrain the value about encumbering the purpose of the criminal law including the value about restricting the power, protecting the right and the justice of the procedure, which makes our country's criminal litigation law becoming the typical implement law the value of which is just achieving the purpose of the criminal law. There are several obvious representations, for example, the first item of the our country's criminal litigation law defines from the very beginning that the criminal litigation law is the implement law the value of which is just achieving the purpose of the criminal law, and for example, the citizens relating to criminal litigation don't have some essential rights which are recognized by the international society and work for the value about the encumbering the purpose of the criminal law, and for example, it's lack of relevant safeguards to protect the legal rights the citizens relating to criminal litigation have, and for example, it's lack of the extrinsic system which can restrict the national power to trespass on the rights of the citizens, and for example, it's lack of the safeguards which can restrict the national power to trespass on the rights of the citizens. This chapter brings forward the comprehensive notion about the rectification of the unbalance of the values of the criminal litigation aiming at the obvious representations about the serious unbalance of the values of the criminal litigation.